Nelmeer Ashfield Pty Ltd v Farah

NCAT Appeal Panel|2015-06-03|Before: Windeyer J

Solicitors: LAS Lawyers & Consultants (Appellant) Penhall & Co (Respondent) File Number(s): AP 14/46547 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2014] NSWCATCD 144 Date of Decision: 01 August 2014 Before: G Meadows, Senior Member File Number(s): COM 14/23465; COM 14/23468

TABLE OF CONTENTS Background - paragraph 1 Subject Proceedings - paragraph 6 Appealed Decision - paragraph 15 Appeal - paragraph 27 Consideration Preliminary Matters - paragraph 32 Nature of Appealed Decision - paragraph 39 Polish Club Ground - paragraph 49 Head Lease Ground - paragraph 56 RL Act s 5(b) Ground - paragraph 67 Condition Precedent and Waiver Ground - paragraph 72 Procedural Fairness Ground - paragraph 82 Cross-Appeal - paragraph 88 Conclusion - paragraph 89 Costs of Appeal - paragraph 90 Orders - paragraph 92

Background

The appellant Nelmeer Ashfield Pty Ltd (Nelmeer) appeals from a decision (the appealed decision) of the Consumer and Commercial Division of the Tribunal (the Tribunal) made on 1 August 2014 whereby the Tribunal determined that an agreement dated 19 October 2012 between the appellant and the respondent was a retail shop lease and that s 16 of the Retail Leases Act 1994 (NSW) (the RL Act) applied to the lease and the term of the lease is from 19 October 2012 to 18 October 2017.
The appellant, and the respondent with another person, entered into a written agreement headed "Bistro Contracting Agreement/Statement" on 14 October 2011 (the first agreement). That agreement referred to the appellant as "the Company" and the respondent and the other person as "the Bistro Contractor" and principally provided (cl 11(a)) that the Company granted a licence to and engaged the Bistro Contractor to provide food and kitchen services and wait staff in dining and/or eating areas of the Ashfield Hotel, 204 Liverpool Road, Ashfield. Included in provisions in the first agreement were: 1. Clause 1(b): The parties expressly agree that no relationship of landlord or tenant is intended to be created by this agreement or the matters contemplated by this agreement, and further that the licence granted to 'The Bistro Contractor' is not a licence to occupy any part of the premises owned by 'The Company'. 1. Clause 2(a) provided for a term of twelve months commencing on 18 October 2011. 2. Clause 2(b): It is an essential term and a condition of this agreement that 'The Bistro Contractor' provides 'The Company' with a certificate signed by a suitably qualified legal practitioner pursuant to section 16 of the Retail Leases Act 1994. 1. Clause 2(c): In the event that "The Bistro Contractor" continues to provide food and kitchen services and provide wait staff to service the hotel dining and/or eating areas after the expiration of the term with the consent of "The Company" it shall do so as if the other provisions of this agreement were to apply, and either party may terminate this agreement for any reason after providing 14 days written notice. 1. Under cl 4(c) the Contractor was to pay to the Company a licence fee of $1,200.00 plus GST per calendar month. 2. Clause 5: which set out various covenants by the Bistro Contractor including (a) for the provision of including workers compensation and public liability insurance, (b) for responsibility for all payments associated with the kitchen and dining area including all food costs and staff wages, (f) for the Bistro Contractor not to sell any drinks, (g) for the supply of all kitchen and serving labour and for all repairs to kitchen equipment, and (j) for responsibility for payment of any fines incurred due to the operation of the restaurant. 3. Clause 6: which provided that the Bistro Contractor was not entitled to assign the benefit of the agreement to any third party without the written agreement by the Company. 4. Clause 7: which provided that the Company may terminate the agreement on 14 days' notice in the event of any breach of the terms of the agreement by the Bistro Contractor and that the agreement would "otherwise terminate on the date which is twelve (12) calendar months after the date of commencement of this agreement".
Attached to the lease was a Retail Lease Certificate signed by Mr G.N. Penhall, Solicitor, in these terms: If section 16 of the Retail Leases Act 1994 applies to this lease, and the term plus any further terms are less than 5 years, the term will be extended unless a section 16 certificate is given. Section 16(1) and (2) provide: 16(1) the term for which a retail shop lease is entered into, together with any further term or terms provided for by any agreement or option for the acquisition by the lessee of a further term as an extension or renewal of the lease, must not be less than 5 years. An agreement or option is not taken into account if it was entered into or conferred after the lease was entered into. 16(2) If a lease is entered into in contravention of this section, the validity of the lease is not thereby affected but the term of the lease is extended by such period as may be necessary to prevent the lease contravening this section. I certify that I a solicitor not acting for the landlord and that at the request of the tent I explained to the tenant before the tenant entered into this lease: The effect of sections 16(1) and (2); and That the giving of this certificate would result in section 16 not applying to this lease.
On 19 October 2012 the appellant and the respondent entered into a second agreement for a term commencing on 19 October 2012, in virtually identical terms to the first agreement (the second agreement). There was, however, no certificate under s 16 of the RL Act attached to, or given in respect of, the second agreement.
The appellant continued and is still continuing to operate the Bistro in the hotel after the expiry of the term of the second agreement. On 10 April 2014 the appellant gave the respondent 4 weeks' notice of termination of the agreement. The subject proceedings were then instituted.

Subject Proceedings

On 6 May 2014 the respondent herself filed two applications in the Tribunal: 1. COM 14/23465, an Application for an Original Decision, Retail Leases, in which she sought an order she sought an order for "relief against forfeiture". She explained her reasons for requesting this order in these terms: [The appellant] has given notice of termination from tomorrow 8 May 2014. My rent is paid up to 20 May 2014. I seek a declaration that I have a retail lease of 5 years duration - see my solicitors letter 17.4.14 - no reply received. I fear I will be locked out. 1. COM 14/23468, a Request for an Interim Order in which she sought an order that the appellant be restrained, pending further order, from terminating her lease or from evicting her or interfering with her business conducted at 204 Liverpool Road Ashfield. She stated her reasons for requesting this order similarly to the reasons specified in the Application of Original Decision but included a statement to the effect that she was seeking in the alternative a declaration as to the meaning of the agreement between the parties.
That day the Tribunal made directions that the present respondent, as applicant in those proceedings, file and serve any points of claim and evidence by 7 May 2014, and that there be a hearing on 8 May 2014.
On her behalf, Mr Penhall lodged Points of Claim dated 7 May 2014, which asserted the following (omitting particulars): 1. By lease dated 19 October 2013 between the applicant as tenant and the respondent as landlord, the parties entered into a retail lease within the meaning of the (RL Act). 2. The second agreement was not a lease to which s 5(b) of the Act applies. 3. The applicant believes that there had been periods of possession before the previous agreement and before the current agreement in which she entered into possession of the bistro premises without an agreement, and where a retail lease agreement is to be inferred by possession and payment of rent, and without a disclosure statement. 4. In the premises and subject to discovery, the applicant has the benefit of a retail lease pursuant to s 8 of the Act by virtue of entry into possession and payment of rent from an unknown commencement date. 5. In the premises and pursuant to s 16 of the Act the applicant as tenant has a five year lease term commencing either from her entry into possession in 2011, or from entry into possession during 2012, and either before the present agreement was signed or at the time the second agreement was signed. 6. In the alternative, the notice of termination dated 9 April 2014 was an invalid notice of termination. 7. In the alternative, in the event that the demise became a monthly tenancy by periodical payment of rent, it is not subject to the restrictions imposed by s 6A(1) the Act and constitutes a periodical tenancy for which rent has been paid until 18 April 2014. 8. The applicant pays periodical utility payments calculated quarterly and at other periodic times not conforming to a monthly tenancy, and longer periodic payments are to be construed as creating a periodic tenancy of longer periods than month to month. 9. The possession of the bistro premises during business hours is vested in the applicant and her staff with respect to the kitchen and counter servery area. Unauthorised persons not holding the appropriate licence under relevant Occupational Health and Safety laws (including hotel management) prohibited from entering the kitchen and service areas. 10. Following the purported expiry of the second agreement, the respondent made representations to the respondent to the effect that if the lease term had expired (which is not admitted) a new lease term would be granted following the completion of extensive building renovations to the Ashfield Hotel. 11. In reliance upon the representations (and without admission that any lease term had expired), the respondent acted to her detriment in continuing to conduct the bistro business with reduced patronage during the renovations which were represented to take a short period of time, but in fact took much longer. 12. Upon completion of the renovations, the appellant purported to gave a notice of termination. 13. The applicant suffered damage. 14. In the premises, the conduct of the respondent amounted to unconscionable pursuant to s 62B of the Act and misleading and deceptive conduct pursuant to s 62D of the Act. 15. The applicant is entitled to: 1. Relief against forfeiture which would occasion the destruction of her business; and 2. Damages pursuant to s 62E of the RL Act and generally.
At the directions hearing on 8 May 2014 the Tribunal made an order (expressed to be interlocutory) restraining the appellant until further order from taking any action which would deny the respondent access to the premises or hinder her use of the premises for the purposes of conducting her business. In brief written reasons the Tribunal stated: The parties were heard and oral reasons were given. In brief the balance of convenience requires an order protecting the status quo. The [appellant] has submitted that the agreement between the parties is not a retail lease and the [appellant] has put forward a number of submissions in support of that proposition. That raises the question of whether the Tribunal has jurisdiction in these matters. That issue may be the subject of further argument at the directions hearing.
The Tribunal also issued directions for the filing of evidence and the matter was listed for further directions on 13 May 2014.
On 13 May 2014 the Tribunal made further directions that the jurisdictional question be dealt with by way of written submissions and dealt with on the papers.
In written submissions on 21 May 2014 the Solicitor for the appellant (as respondent in the subject proceedings), Mr D Manca, outlined the appellant's position that there was an absence of jurisdiction in the Tribunal. In summary, the submissions were principally to the effect that: 1. The evidence before the Tribunal of the applicant (the respondent in this appeal) comprised an affidavit of Ms Farah of 11 May 2014 with annexures and the respondent relied on material tendered at the hearing on 8 May 2014 comprising the two agreements and a street address search for 204 Liverpool Road, Ashfield, and a title search for that property. 2. On the basis of definitions of "retail tenancy claim" in s 70 of the RL Act and of "retail shop lease" and "lease" in s 3 of that Act, the subject agreement was not a retail shop lease and the Tribunal had no jurisdiction to hear any retail tenancy claim, there being no premises used to carry out a relevant business and the subject of an agreement granting occupation thereof for that purpose; nor did the Tribunal have jurisdiction to hear any unconscionable conduct claim as referred to in Part 7A of the RL Act. 3. Alternatively, in the event that the agreement be determined to be a retail shop lease, it would, by s 5(b) of the RL Act, be excluded from the operation of the Act, as the "shop" was "used wholly or predominantly for the carrying on of a business by the lessee on behalf of the lessor". 4. In elaboration of the above: 1. A catering business does not fall within types of businesses listed in Sch 1 of the RL Act. 2. The second agreement did not provide for the Bistro Contractor to carry on a business but to supply services to or on behalf of the hotel. 3. The Bistro Contractor had only a licence to use the kitchen and dining areas in order to provide food and kitchen services to the hotel. 4. The hotel premises are not a retail shop. 5. The second agreement does not identify any particular premises from which the Bistro Contractor is to carry out is business beyond the rights granted to the Bistro Contractor to provide food and kitchen services and wait staff in dining and/or eating areas in the hotel. 6. The respondent (the present appellant) occupies the hotel premises which are owned by another company and conducts business of the hotel at the will of the owner. The premises are used for conducting a hotel business. The catering services are "ancillary to and a single complimentary component of the overall business of a hotel operated from the premises of the Ashfield Hotel". 7. There is no evidence that the dining areas of the hotel are wholly or predominantly used for the conduct of the Bistro Contractor's business. 8. The specification by authorities, particularly Moweno v Stratis [2002] NSWSC 1151, Constantinos Trimbelas v Cyprus Community of NSW (Supreme Court (NSW), Windeyer J, 2 June 1998, unrep) and Lytton v North Bondi RSL Club [2012] NSWADTAP 8, of requirement for a "retail shop" and a "retail shop lease", especially a right to occupy premises which are wholly or predominantly used for the conduct of a business, have not been met. 1. To the extent that the Bistro Contractor contends that her business is conducted throughout the entire hotel premises, then any rights of occupation would be over an area which exceeds the threshold set out in s 5(a) of the RL Act (1,000 square metres).
Written submissions by Mr Penhall on behalf of the applicant (the respondent in the appeal) put the applicant's position, which we summarise thus: 1. The agreement should be construed consistently with the proposition accepted in Thompson v Easterbrook (1951) 83 CLR 467 at 481 that the purpose for which premises are leased "should be ascertained by reference to the use or uses which the contracting parties must as intelligent and reasonable men be held to have had in their contemplation when they entered into the lease" and also the agreement must be read as subject to an intelligent understanding that any attempt to contract out the RL Act will result in a provision as being severed as void under s 7 of the Act. 2. Properly construed, and with reference particularly to cll 1(a), 2(b), 4(c), 5(a), 5(b), 5(c), 5(f) and 5(j) (which we have referred to above in the Background section of this Decision), the agreement provided for a kitchen and a restaurant or dining area over the use of which the Bistro Contractor had exclusive control except that patrons could have drinks from the bar in conjunction with their meal; the requirement for a certificate under s 16 of the RL Act was an unequivocal acknowledgement of a retail lease; and "the reality (was) that a lease has been granted of a bistro comprising kitchen and dining room for which rent is tax invoiced and paid". 3. Provisions in the agreement suggesting that it did not constitute a retail lease were overridden by s 7 of the RL Act. 4. Under s 3 of the RL Act a retail lease does not require exclusive occupation.
The applicant's submissions then went on to propound responses to the submissions on behalf of the respondent's (the present appellant) submissions including the cases relied on by the respondent. In response to the respondent's reference to ownership of the hotel premises, the applicant's submissions attached ASIC searches showing that the respondent and the owner of the hotel premises, Merleen Pty Ltd, had identical directors and shareholders and emphasised that in and about negotiation of and entry into the agreement the respondent had warranted that it was the owner. The applicant's submissions also asked that procedural fairness be observed and suggested that the applicant may be seeking "leave to adduce further evidence before the issue of jurisdiction is finally determined".

Appealed Decision

The Tribunal commenced the appealed decision thus: [1] The applicant asserts that an agreement first entered into between the parties on 14 October 2011 is a retail lease pursuant to the Retail Leases Act 1994 ("the Act"). The respondent denies this. The matter has been listed for a hearing on the papers to determine this preliminary issue. Both parties have provided written submissions in relation to this preliminary issue.
Provisions of the RL Act were then set out and it is convenient for this decision to reproduce those provisions at this point. 1. Section 3 of the RL Act contains the following relevant definitions: retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop: (a) whether or not the right is a right of exclusive occupation, and (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing. retail shop means premises that: (a) are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph (whether or not in a retail shopping centre), or (b) are used, or proposed to be used, for the carrying on of any business (whether or not a business prescribed for the purposes of paragraph (a)) in a retail shopping centre. Note 1. Section 5 limits the retail shops to which this Act applies. Note 2. Clause 17 of Schedule 3 provides that the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of this definition until regulations prescribing businesses and repealing Schedule 1 are made. 1. Certain shops are excluded by s 5 of the RL Act: Certain retail shops excluded from the operation of this Act This Act does not apply to any of the following retail shops: (a) shops that have a lettable area of 1,000 square metres or more, (b) shops that are used wholly or predominantly for the carrying on of a business by the lessee on behalf of the lessor, (c) … 1. Section 16 provides for a minimum term of five years as follows: Minimum 5 year term (1) The term for which a retail shop lease is entered into, together with any further term or terms provided for by any agreement or option for the acquisition by the lessee of a further term as an extension or renewal of the lease, must not be less than 5 years. An agreement or option is not taken into account if it was entered into or conferred after the lease was entered into. (2) If a lease is entered into in contravention of this section, the validity of the lease is not thereby affected but the term of the lease is extended by such period as may be necessary to prevent the lease contravening this section. Note. For example, if a lease is entered into for a term of 3 years, its term is extended by 2 years to 5 years. if a lease is entered into for a term of 2 years with an option for a further 1 year after that initial 2 years, the term of the lease is extended to 4 years (with the option for a further 1 year after that initial ,4 years). (3) This section does not apply to a lease if a lawyer, or a licensed conveyancer, not acting for the lessor certifies (before, or within 6 months after, the lease was entered into) in writing that (a) the lessee or prospective lessee requested the lawyer or conveyancer to give the certificate, and (b) the lawyer or conveyancer has explained to the lessee or prospective lessee the effect of subsections (1) and (2) and that the giving of the certificate will result in this section not applying to the lease. If the certificate is given within 6 months after the lease was entered into, then, without affecting the validity of the lease, subsection (2) ceases to apply to the lease and the extension of the term of the lease effected by that subsection accordingly ceases to be operative.
The appealed decision proceeded to give details of the Bistro Contracting Agreement/Statement and to canvass the (then) respondent's and applicant's submissions, consistently, it seems to us, with the summaries of those submissions which we have set out above.
In a Discussion and Conclusion section of the appealed decision the Tribunal expressed and explained its finding later made, at [49], that "the second agreement is a retail lease". The initial reasons explaining the finding were, principally, the following: [31] After a consideration of dictionary definitions of "occupy" …The appropriate meaning is the simplest of those above: to take up space, or fill, or simply "to be in". In that case, the s 3 definition would be "a right to be in premises for the purpose of the use of the premise as a retail shop". [32] This excursion into the dictionary is necessary because the terms of the agreement appear to assert that no "legal right" of occupation is given by the agreement: see Clause 1(b) above. By the reasoning in the last par, that clause is meaningless. It is plainly necessary to give effect to the agreement to allow the applicant into the premise (the kitchen and dining area) in order to provide the services covered by the agreement. As the applicant points out in her submissions, the applicant could not use the premises at all if there is no right to "occupy" the premises and that this is clear by consideration of Clause 4(c) [see below] which specifically does provide for the applicant to have "the use of the kitchen and dining areas under this agreement". That is, so long as the applicant complies with the terms of the agreement and pays the rent, or the monthly licence fee, on time, she does have a legal right to be in the premise for the purpose of operating her business (whatever that turns out to be). [33] In my opinion, the terms of the agreement, particularly Clause 5, show that the applicant was given, and was intended by the parties to be given, a right of occupation of the kitchen. The right of occupation is not expressed to be "exclusive" (nor is it required to be for the agreement to be found to be a lease pursuant to the Act) but that is in fact the effect of the Clause. The applicant is not only permitted to use the kitchen equipment but the agreement provides for a security deposit covering, inter alia, replacement or repair costs of that equipment and specifies that the applicant is responsible for the repair or replacement of non-wear and tear damage to the equipment (but that provision is not applicable until twelve months after the commencement of the agreement). Clause 5(c) of the agreement has the effect also that the applicant is the exclusive operator of the kitchen and dining and/or eating areas ("the premises") during the agreed minimum days and hours for the preparation and serving of food. It should be noted that the Clause requires the applicant to provide the meals 7 days per week. There is no room or provision for any other person or "operator' to use the premise during those periods. The right of occupation and use must therefore be exclusive, even if not expressly stated to be so. [34] The second section of Clause 1(b), "and a further that the licence granted to "The Bistro Contractor" is not a licence to occupy any part of the premises owned by "The Company", is not effective to displace the finding that the agreement in fact gives a right of occupation of the premises to the applicant. It is clearly the draftsperson's attempt to remove the agreement from the scope of the Act and is therefore void. … [36] Further, I find that the business operated by the applicant pursuant to the agreement falls within the description of "Restaurants, cafeterias, coffee lounges, food courts and other eating places" contained in Schedule 1 "Retail Shop Businesses" to the Act: see Lytton v North Bondi RSL Club [2012] NSWADTAP 8 at [15].
The reasons dealt with the Trembelas and Lytton decisions. The Tribunal found itself (at [39]) unable to accept a submission by the (then) respondent that the terms of this agreement closely resembled the situation in Trembelas and that there were features which distinguish this case from Lytton. We interpolate, shortly, that Trembelas dealt with the situation of a "bistro and auditorium caterer" in a club and Lytton dealt with the situation of a food and hot drinks caterer in a bistro servery and kitchen in a club. In Trembelas there was a finding that the bistro business was conducted jointly by the caterer and the club and that the caterer was not given occupation of the bistro. In Lytton there was a finding that the caterer occupied the kitchen and servery.
At [45] the Tribunal dealt with a submission by the (then) respondent that the agreement was one excluded by s 5(b) of the RL Act as being a retail shop "used wholly or predominantly for the carrying on of a business by the lessee on behalf of the lessor" as the business of the hotel included "the sale, supply and consumption of meals". The Tribunal found that "on the evidence available and on the basis of the agreement, only the applicant operates the applicant's business". More particularly, it found that: "…on the evidence available to me, it appears the hotel does not provide meals: does not prepare meals does not sell meals and merely provides an area (the dining area) where meals may be consumed (and making no distinction in this regard between 'food' as the agreement has it, and 'meals' as the respondent's submission has it)."
There was added: [46] In addition, it cannot be maintained, if that is what the respondent intends to do by invoking s5(b), that the applicant is carrying on a business on behalf of the respondent. There is simply no such suggestion in this matter. The applicant appears to be operating the business for herself. She presumably prepares and provides food for a price which is designed to cover her costs and leave her with a reasonable profit. There is no suggestion the respondent is operating or having the business operated on its own behalf. The respondent is entitled only to the rent, or in the terms of the agreement, the monthly licence fee.
The appealed decision dealt with the (then) respondent's reliance on s 5(a) of the RL Act thus: [47] …There is no evidence to suggest that the kitchen and dining areas, or other eating areas which may exist (but are not mentioned in the evidence) exceed an area of 1,000 square metres. This information would be peculiarly within the knowledge of the respondent but there is no actual submission made, or evidence provided, by the respondent as to the size of those areas. That submission must therefore be rejected.
As to a submission by the (then) respondent that the premises were not used wholly or predominantly for the operation of the applicant's business, the appealed decision said: [48] …There is no doubt that the submission is incorrect so far as the kitchen is concerned. However, the respondent specifically refers to the lack of evidence that the dining area is used wholly or predominantly for the carrying on of the applicant's business. Certainly there is no evidence that the dining room is used wholly for carrying on the applicant's business, but in my opinion, given the lack of any evidence (or suggestion) that anyone else provides food to be consumed in the dining area, and that the dining area is called "the dining area" I find that it is used predominantly for the carrying on of the applicant's business. I repeat my previous remarks that evidence to the contrary is peculiarly within the knowledge of the respondent but such evidence has not been provided.
By way of summary, it seems, the Tribunal then said: [49] I therefore find that the second agreement is a retail shop lease.
The appealed decision finally dealt with s 16 of the RL Act: [50] It is also necessary to consider the effect of the provision or otherwise of a s16 certificate. As noted above, the first agreement required a s16 certificate and one was provided. Even if the first agreement was a lease, the s16 certificate had the effect of limiting the term to 12 months. [51] The second agreement had the same essential term, but the s16 certificate was not provided. As noted in paragraph 26 above, the applicant submitted that this essential term must be taken to have been waived by the respondent. The respondent does not refer to this issue in its submissions. [52] I agree with the applicant's submission in this regard. I note that by s16(3) the respondent could have insisted the certificate be provided up to 6 months into the life of the lease but that on the evidence available to me, nothing was done. I therefore find s16 applies to the lease, and that the term of the lease is 19 October 2012 to 18 October 2017.
Following the publication of the appealed decision on 1 August 2014, the subject proceedings were set down for further directions on 26 August 2014. The respondent in the subject proceedings unsuccessfully sought then to have the Tribunal withdraw its determination that the retail shop lease had a term of five years. Directions were made for submissions as to costs, which were to be decided on the papers and that the appellant was to advise the Tribunal if an appeal in relation to the decision of 1 August 2014 had been filed. The hearing was adjourned to a date to be fixed. By consent, the Tribunal ordered that the appellant be restrained until further order from taking any action which would deny the respondent access to the premises or hinder her use of the premises for the purpose of conducting her business. That order continues.

Appeal

The appeal was instituted by a Notice of Appeal lodged on 9 September 2014. Leave to appeal was not applied for. An Amended Notice of Appeal was lodged on 21 October 2014 and a Further Amended Notice of Appeal was lodged on 6 May 2015. The Further Amended Notice of Appeal specified the orders challenged on appeal and the grounds of appeal as follows: 11A ORDERS CHALLENGED ON APPEAL (1) The Appellant challenges the finding of the Tribunal at paragraph 49 of its Reasons for Decision dated 1 August 2015 [2014] NSWCATCD 144) that the agreement between the Respondent and the Appellant is a retail shop lease. (2) The Appellant challenges the finding of the Tribunal at paragraph 52 of its Reasons for Decision dated 1 August 2014 that the agreement between the Respondent and the Appellant is a retail shop lease whose term is 19 October 2012 to 18 October 2017. (3) The Appellant challenges Order 2 made by the Tribunal on 26 August 2014. (4) In the alternative to paragraphs 1-3 above, if the Appeal Panel declines to consider the challenges in those paragraphs, the Appellant challenges the refusal of the Tribunal on 26 August 2014 to withdraw its declaration at [52] that the retail shop lease to which the Respondent and the Applicant are parties has a term of five years. (5) In the alternative to paragraphs 1-3 above, if the Appeal Panel declines to consider the challenges in those paragraphs, the Appellant challenges the refusal of the Tribunal on 26 August 2014 to permit the Appellant to file and serve evidence relevant to the length of the term of the retail shop lease to which the Respondent and the Appellant are parties. 11B GROUNDS OF APPEAL In these Grounds of Appeal, the Appellant uses the term "the second agreement" in the sense used by the Tribunal in [3] of the Reasons for Decision under appeal. (1) The Tribunal erred in law by failing to find that it was a condition precedent to the second agreement becoming a binding agreement between the Respondent and the Appellant that the Respondent provide the Appellant with a certificate in relation to the second agreement signed by a suitably qualified legal practitioner pursuant to section 16(3) of the Retail Leases Act 1994 (NSW). (2) The Tribunal erred in law in finding at [52] that the Appellant must be taken to have waived the requirement of the second agreement that the Respondent provide the Appellant with a certificate signed by a suitably qualified legal practitioner pursuant to section 16(3) of the Retail Leases Act 1994. (3) The Tribunal erred in law by failing to find that, in the circumstance where the Respondent did not provide the Appellant with a certificate in relation to the second agreement signed by a suitably qualified legal practitioner pursuant to section 16(3) of the Retail Leases Act 1994, the second agreement never became a binding agreement between the Respondent and the Appellant. (4) The Tribunal erred in law by failing to find that, because the second agreement never became a binding agreement between the Respondent and the Appellant, the Respondent on or about 9 April 2014 was holding over pursuant to clause 2(c) of the agreement between the Respondent and the Appellant dated 14 October 2011. (5) The Tribunal erred in law by failing to find that the effect of the notice dated 9 April 2014 given by the Appellant to the Respondent was to terminate the agreement between the Respondent and the Appellant dated 14 October 2011 on or about 8 May 2014. (6) In the alternative to Grounds of Appeal 1-5, if the second agreement was a binding agreement, the Tribunal erred in law by failing to find that the effect of s.17(4) of the Liquor Act 2007 (NSW) was that the premises the subject of the second agreement were proposed to be used, and were used, wholly or predominantly for the carrying on by the Respondent on behalf of the Appellant of part of the business of the Appellant - namely, making food available when liquor was sold, supplied or served, pursuant to a hotel licence issued under the Act, as required by s.17(4) of the Act. (7) Given the matter in Ground of Appeal 6, the Tribunal erred in law: 7.1 By finding at [44]-]46] that the premises the subject of the second agreement were proposed to be used, and were used, wholly or predominantly for the carrying on of a business prescribed for the purposes of paragraph (a) of the definition of "retail shop" in s.3 of the Retail Leases Act 1994; 7.2 As a consequence of the matter in paragraph 7.1, by finding that the premises the subject of the second agreement therefore constituted a "retail shop". 7.3 As a further consequence of the matter in paragraph 7.1, by failing to find that section 5(b) of the Retail Leases Act 1994 had the effect that the Act did not apply to the second agreement; 7.4 As a consequence of the matter in paragraph 7.3, by failing to find that the second agreement had a term of one year commencing on 19 October 2012; 7.5 As a consequence of the matter in paragraph 7.4, by failing to find that on or about 9 April 2014, the Respondent was holding over pursuant to clause 2(c) of the second agreement; and 7.6 As a consequence of the matter in paragraph 7.5, by failing to find that the notice dated 9 April 2014 given by the Appellant to the Respondent terminated the second agreement on or about 8 May 2014. (8) In the further alternative to Grounds of Appeal 1-5 and in the alternative to Grounds of Appeal 6-7, if the Appeal Panel declines to consider those Grounds, the Tribunal erred in law by declaring at [52] that the second agreement was a retail shop lease with a term of five years and thus determining the Respondent's Application for Original Decision on 21 August 2014, in circumstances where only the Respondent's Request for an Interim Order was before the Tribunal for decision. (9) In the further alternative to Grounds of Appeal 1-5, and in the alternative to Grounds of Appeal 6-7, if the Appeal Panel declines to consider those Grounds, as a consequence of the matter in paragraph 8, the Tribunal erred in law by refusing on 26 August 2014 to withdraw its finding that the second agreement had a term of five years and refusing on the same date to permit the Appellant to file and serve evidence relevant to the length of the term of the second agreement. (10) In the further alternative to Grounds of Appeal 1-5, as a consequence of the matter in paragraphs 8 and 9, the Tribunal erred in law by depriving the Appellant of the opportunity to establish by evidence that: 10.1 Pursuant to s.127(1) of the Conveyancing Act 1919 (NSW), on and after about 19 October 2012, the Appellant's tenancy over the premises the subject of the second agreement was deemed to be a tenancy determinable at the will either of the Appellant or of its head lessor Nelmeer Ashfield Pty Ltd by one month's notice in writing expiring at any time; 10.2 As a consequence of the matter in par 10.1, the application of s.16 of the Retail Leases Act 1994 to the second agreement was inconsistent with the terms of the head lease under which the Appellant held the premises the subject of the second agreement, with the consequence that s.16 of the Act did not apply to the second agreement; 10.3 As a consequence of the matter in paragraph 10.2, that the second agreement had a term of one year commencing on 19 October 2012; 10.4 As a consequence of the matter in paragraph 10.3, that on or about 9 April 2014, the Respondent was holding over pursuant to clause 2(c) of the second agreement; and 10.5 As a consequence of the matter in paragraph 10.4, that the notice dated 9 April 2014 given by the Appellant to the Respondent terminated the second agreement on or about 8 May 2014. (11) (Deleted) (12) In the further alternative to Grounds of Appeal 1-5: 12.1 If (which the Appellant denies), the second agreement is a retail shop lease, the second agreement grants the Respondent exclusive occupation of the kitchen and the dining and/or eating areas within the licensed premises. Particulars Clause 5(c) of the second agreement. See [33] of the Tribunal's Reasons for Decision dated 1 August 2014 ([2014] NSWCATCD 144). 12.2 As a result of the matter in paragraph 12.1, the retail shop lease is a "lease" as that term is used in s.92(1) of the Liquor Act 2007 (NSW). Particulars See Polish Club Limited v Gynch [2014] NSWCA 321 (16 September 2014) at [1], [2] and [77]-[78]. 12.3 The Appellant, the lessor of the lease, is a related corporation of the licensee of the Ashfield Hotel. Particulars The licensee of the Ashfield Hotel, Mr [insert name] is an employee of the Appellant. 12.4 The lease is not a lease of a part of the Ashfield Hotel on which liquor is ordinarily sold or supplied for consumption on the premises, nor is the lease a lease of a part of the Ashfield Hotel on which approved gaming machines are ordinarily kept, used or operated. 12.5 As a result of the matter in paragraph 12.4, the lease is a lease of an "other part" of the Ashfield Hotel as that term is used in s.92(1)(d) of the Liquor Act 2007. Particulars See Liquor Act 2007, s.92(1)(d) 12.6 Consent of the Liquor and Gaming Authority to the lease has not been obtained. 12.7 As a result of the matter in paragraphs 12.1-12.6, entry into the second agreement was a breach of s.92(1)(d) of the Liquor Act 2007. Particulars See Polish Club Limited, supra at [57]-[58]. 12.8 As a result of the matter in paragraph 12.7, to the extent that the second agreement gave rise to a retail shop lease, it was rendered void and unenforceable by force of s.92(1)(d) of the Liquor Act 2007. Particulars Polish Club Limited, supra at [79]-[81]. 12.9 Accordingly, the Tribunal erred in law in holding at [52] that the second agreement is a retail shop lease with a term of five years. The Tribunal should have held that, to the extent that the second agreement gave rise to a retail shop lease, it was rendered void and unenforceable by force of s.92(1)(d) of the Liquor Act 2007. 12.10 By reason of the matter in paragraph 12.9, the Tribunal erred in law by failing to find that the second agreement was a mere licence granted by the Appellant to the Respondent. 12.11 By reason of the matter in paragraph 12.10, the Tribunal erred in law by failing to find that the notice dated 9 April 2014 given by the Appellant to the Respondent terminated the second agreement on or about 8 May 2014. (13) In the further alternative to Grounds of Appeal 1-5 and in the alternative to Ground of Appeal 12, if the Appeal Panel declines to consider those Grounds, as a consequence of the matter in paragraphs 8 and 9, the Tribunal erred in law by depriving the Appellant of the opportunity to establish by evidence that: 13.1 The licensee of the Ashfield Hotel at the time the lease was entered into, Mr Ironside, is an employee of the Appellant; 13.2 The lease is not a lease of a part of the Ashfield Hotel on which liquor is ordinarily sold or supplied for consumption on the premises; 13.3 The lease is not a lease of a part of the Ashfield Hotel on which approved gaming machines are ordinarily kept, used or operated; and 13.4 Consent of the Liquor and Gaming Authority to the lease has not been obtained. 11C ORDERS THE NCAT APPEAL PANEL SHOULD MAKE 1A An order setting aside the finding of the Tribunal at paragraph 49 of its Reasons for Decision dated 1 August 2014 ([2014] NSWCATCD 144) that the agreement between the Respondent and the Appellant is a retail shop lease. 1B An order setting aside the finding of the Tribunal at paragraph 52 of its Reasons for Decision dated 1 August 2014 that the agreement between the Respondent and the Appellant is a retail shop lease whose term is 19 October 2012 to 18 October 2017. (1) An order setting aside Order 2 made by the Tribunal on 26 August 2014. (2) In lieu of Order 2 made by the Tribunal on 26 August 2014, an order that the Respondent's Request for an Interim Order and Application for Original Decision be dismissed. (3) In the alternative to orders 1 and 2 sought by this Notice of Appeal, if the Appeal Panel considers that leave to appeal is required and should not be granted: 3.1 An order that the Appellant have leave to file and serve evidence with respect to the terms of the head lease under which the Appellant holds the premises the subject of the second agreement; and with respect to whether there was reliance by the Appellant to its detriment on the promise by the Respondent in clause 2(b) of the Second Agreement; and 3.2 An order that the proceedings be remitted to the Tribunal with directions to the Tribunal that it determine, having regard to any evidence served pursuant to Order 3.1: 3.2.1 Whether pursuant to s.127(1) of the Conveyancing Act 1919 (NSW), on and after about 19 October 2012 the Appellant's tenancy over the premises the subject of the second agreement was deemed to be a tenancy determinable at the will either of the Appellant or of its head lessor Nelmeer Ashfield Pty Ltd by one month's notice in writing expiring at any time; 3.2.2 (If not) whether the Respondent is estopped from denying that it complied with its promise in clause 2(b) of the second agreement that it would provide the Appellant with a certificate signed by a suitably qualified legal practitioner pursuant to s.16 of the Retail Leases Act 1994; and 3.2.3 Whether, as a consequence of paragraph 3.2.1 or 3.2.2, the second agreement was terminated by the Appellant on or about 8 May 2014. (4) An order that the Respondent pay the Appellant's costs of the proceedings before the Tribunal and of this appeal.
We understood Senior Counsel for the appellant, in oral address in reply, to summarise the grounds of appeal as being four in number, all being errors of law, to this effect: 1. As put in [12] of the grounds in the Further Amended Notice of Appeal, and based on the Polish Club decision in the Court of Appeal and s 92 of the Liquor Act 2007 (NSW) (the Liquor Act), that as the consent of the Independent Liquor and Gaming Authority had not been obtained, any retail shop lease constituted by the agreement was rendered void and unenforceable. (We will refer to this as the Polish Club Ground.) 2. As put in [10] of those grounds and with reference to s 16(5) of the RL Act, the Tribunal failed to find that the appellant held the subject premises under a tenancy terminable by a month's notice in writing pursuant to s 127(1) of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) and that the application of any five year term in the respondent (in the appeal) would be inconsistent with that head lease (the Head Lease Ground). 3. As put in [6] of those grounds and with reference to the point based on s 5(b) of the RL Act referred to in the appealed decision, the Tribunal failed to find that the effect of s 17(4) of the Liquor Act requiring the hotel to make food available when liquor was sold, was such that the premises the subject of the second agreement were used, wholly or predominantly, for the carrying on by the respondent of a business on behalf of the appellant of making food available when liquor was sold (the RL Act s 5(b) Ground). 4. As put in [1] and [2] of those grounds, the Tribunal failed to find that the subject agreement contained a condition precedent to it becoming a binding agreement, namely, that the respondent provide the appellant with a certificate under s 16(3) of the RL Act and the Tribunal erred in finding that the appellant must be taken to have waived that requirement (the Condition Precedent and Waiver Ground).
To those four summarised grounds, we would add a fifth: that in dealing with s 16 of the RL Act the Tribunal failed to give the appellant an opportunity to be heard and thereby erred in law (grounds 8, 9 and 10) (the Procedural Fairness Ground).
The respondent filed Replies to the Notice of Appeal and the Amended Notice of Appeal. Apart from making submissions responding to the Grounds of Appeal, those Replies contended that the appealed decision was an interlocutory one and had to be the subject of an application for leave to appeal (which the appellant does not make). The respondent sought orders that: 1. Leave to appeal be refused. 2. The appellant pay the respondent's costs. 3. The respondent's costs be ordered on an indemnity basis having regard to the fact that the appeal is incompetent.
During the hearing of the appeal, a Cross-Appeal was instituted by the respondent by filing on 26 May 2013 of a Notice of Appeal specifying the orders challenged on appeal and the grounds of cross appeal as follows: 11A - Orders challenged on Appeal: (1) (To the extent that is it other than obiter) the Cross Appellant challenges the finding of the Tribunal at paragraph 33 of the Reasons for decision dated 1 August 2014 … that the "right of occupation and use (sic) of the premise must therefore be exclusive, even if not expressly stated to be so". 11B - Grounds of Cross Appeal: (1) The Tribunal was charged with determining whether it had jurisdiction, and this necessarily involved a finding that there was a retail lease. Because of a s.16 issue arising in the lease agreement, it was legitimate for the Tribunal Member to comment thereon, to determine that there was a retail lease, and that in the absence of s.16 certificate the term thereof would be 5 years. (2) Because of the special definition in s.3 RLA of a retail shop lease which does not require exclusive possession, any finding of exclusive possession was peripheral to the issue of jurisdiction and an unnecessary finding. As such it can be regarded as obiter, in which event this Cross Appeal is unnecessary. (3) Because the issue has been raised on appeal, and comment has been made that there is no Cross Appeal, for abundant caution, leave is sought for a Cross Appeal. (4) To the extent that there was any finding of exclusive possession, the Member was in error for the following reasons: (a) In the construction of the document, Member Meadows has interpreted the effect thereof as making the cross appellant quite the exclusive operator of the kitchen and/or eating areas "the premises" during agreed minimum hours provided in the agreement. (b) The Member wrongly concludes (and it is illogical) that if there is no time for any other person to operate the business, then occupation and use must therefore be exclusive. (c) The Member fails to distinguish the grammatical and legal different between the expression "use" and the expression "occupation" - one may have exclusive use of the facility without having exclusive occupation, at least to the extent of a common law lease and the power to lock premises and expel trespassers. (d) There was evidence before the Member to establish that other staff had access to the premises and that they did not need the permission of the cross appellant to enter the kitchen. (e) The Member had no evidence as to the operating hours of the Ashfield Hotel and that it stayed open until early hours in the morning, which should have provided a caveat on expressing any opinion as to exclusive use during periods when the Bistro was not open. (f) The Member was doing no more than construing a document, and his construction of exclusive possession simply cannot be deduced therefrom. (g) The appellant is seeking leave to argue a point pursuant to s.92(1)(d) Liquor Act 2007 (NSW) which was not raised below and leave is opposed. However if the Appeal Panel grants leave, procedural fairness requires that leave be also granted for this Cross Appeal and for evidence in support thereof. (h) However the better view is that the Cross Appeal is unnecessary because the finding of exclusive possession is no more than obiter, having no effect on the issue of jurisdiction which the Member had to decide. 11C - Orders that NCAT Appeal Panel should make: (1) A declaration or finding that Member Meadows was in error in finding that the cross appellant had been granted exclusive possession and use of the demised premises. (2) In the alternative, a declaration or finding that what Member Meadows stated concerning exclusive possession and use in paragraphs 33 and 34 was obiter only and not binding upon the parties. (3) A declaration or finding that the retail lease granted in favour of the cross appellant was not in the nature of a common law lease entitling her to exclusive possession of the premises. (4) That leave be granted to the cross appellant to conduct the Cross Appeal and adduce evidence thereon.

Preliminary Matters

There are a couple of matters which are appropriate to be dealt with at the outset.
The first concerns the times of lodgement of the Notices of Appeal. The appellant's Notice of Appeal was lodged on 9 September 2014 and it stated that the appellant had received the appealed decision on 4 August 2014. That lodgement was probably a few days outside the time allowed by s 25(4) of the Civil and Administrative Rules 2014 which requires it within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). No extension of time was sought in the Notice of Appeal.
In the Notice of Appeal lodged on behalf of the respondent instituting the cross-appeal on 26 May 2015 an extension of time was sought with a stated explanation that "the need for a cross-appeal (or possible need) has only become apparent during the hearing of the substantive appeal to continue on 3 June 2015". These time issues were not agitated as points of contest during the hearing of the appeal and it is appropriate in the circumstances to treat them as irregularities, and we do so (pursuant to s 53 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act)). We add that the Amended Notice of Appeal was lodged on 21 October 2014 and the Further Amended Notice of Appeal was lodged on 6 May 2015. As we have said, Replies to those amended versions were put on by the respondent.
Directions were made by the Tribunal on 5 November 2014 that: 1. Respondent to file and serve Amended Notice of Appeal by 10 November 2014. 2. Appellant to file and serve submissions and other material by 24 November 2014. 3. Respondent to file and serve submissions and other material by 8 December 2014. 4. Appeal listed for hearing on 13 February 2015.
What was intended by the first direction is not clear; the appellant had lodged an Amended Notice of Appeal on 21 October 2014, and the respondent, as noted above, instituted a cross-appeal by the Notice of Appeal lodged on 26 May 2015. The second and third directions were not complied with by the parties. When the appeal came on hearing on 13 February 2015, there were handed up a ten page letter dated 9 February 2015 from the appellant's solicitors, LAS Lawyers, to Mr Penhall canvassing the history of the subject proceedings and the appeal and inviting the respondent to consider various ways in which the matter should proceed, with (what we read as) an ultimate threat to apply for a vacation of the appeal hearing on 13 February 2015 and for the matter to be set down for final hearing at first instance, with an order for costs thrown away. There were also handed up outline submissions for the appellant dated 12 February 2015 and submissions on behalf of the respondent dated 13 February 2015.
The intention of the fourth direction concerning a half-day hearing was, unsurprisingly, not met; a full day's hearing took place on that day, and that was followed by two further (non-consecutive) hearing days and later, by additional submissions.
We are concerned that the second and third directions were not complied with. If difficulties had been perceived by either party in relation to such compliance an application should have been made to the Tribunal for another directions hearing so that order might be restored to the matter. What occurred caused difficulties at the appeal hearing, particularly at the outset, and was not consistent with attainment of the object specified in s 3 of the NCAT Act of the resolution of the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; that is also the guiding principle referred to in s 36 of the NCAT Act where there is stipulated to be a duty of a party to co-operate with the Tribunal to give effect to the guiding principle.

Nature of Appealed Decision

We have detailed in the Subject Proceedings section of this decision the applicant's Points of Claim and the parties' submissions on which the appealed decision was made. In the Appealed Decision section we have sought to explain the contents of the appealed decision. Particularly because of the width of the issues raised in this appeal, we feel that such details are appropriate to have been given to explain what the parties seem to have put forward for consideration and how the appealed decision dealt with those matters.
We comment on three aspects of the nature of the appealed decision initially. 1. First, the appellant's complaints concerning the making of a determination beyond that concerning the existence of a retail lease, namely, one that the term of the lease was up to 18 October 2017 by reason of s 16 of the RL Act. 2. Secondly, the respondent's complaint that the decision was an interlocutory one and as such required leave. 3. Thirdly, complaints by the respondent that the appellant is bringing forward in the appeal matters which were had not been raised in its submissions below or other steps leading to the appealed decision.
The appealed decision was to deal with a separate issue. The issue to be considered was referred to as a jurisdictional one at the initial interlocutory hearings and in submissions then lodged by the parties (as referred to in the Subject Proceedings section above). For example, the short written reasons the Tribunal issued in respect of the interim injunction, spoke of the (then) respondent's submission that the agreement between the parties was not a retail lease as raising "the question whether the Tribunal has jurisdiction" in these matters.
As we have noted in the Appealed Decision section above at [15], the Member identified the preliminary issue as whether "an agreement first entered into between the parties on 14 October 2011 is a retail lease pursuant to the (RL Act)". Any more precise specification of the preliminary issue, particularly the reasons for the contention that there was not a retail shop lease, had to be deduced from the then applicant's (the present respondent) Points of Claim and both parties' written submissions. Unfortunately, particularly as demonstrated by the ambit of the matters brought forward by the parties in this appeal, a sufficiently precise definition of the preliminary issue was not achieved, particularly by the appellant (the then respondent).
For example, the applicant's Points of Claim referred to the applicant as tenant having a five year term pursuant to s 16 of the RL Act and the applicant's submissions on the issue referred to in s 16. The respondent's submissions, which had preceded the applicant's submissions, did not mention s 16. At this initial stage, we comment that particularly because of the significance of the five year term consequence of s 16 generally in relation to retail shop leases, and because of the reliance on that consequence by the applicant in the Points of Claim, it is surprising that the respondent did not refer to that provision in its submissions, or subsequently to the applicant's submissions; we will refer to this situation again when we deal with the appellant's grounds of appeal.
We also emphasise that it is important when any separate issue is set up to be dealt with on a preliminary basis that it should be precisely and comprehensively defined; a comment made on the desirability of a specific order in this regard in Ritchie's Uniform Civil Procedure NSW at [28.4.10] seems particularly appropriate to the situation in this appeal: "Clear formulation of separate issues will properly raise the matter for determination, permit an appropriate judgment or order to be made to reflect the determination, and protect the parties' right of appeal." It is to be regretted that the parties, particularly the appellant, did not put forward such a formulation of this separate issue, particularly the grounds on which it was contended by the appellant that the Tribunal did not have jurisdiction.
Secondly, we deal here with the point made on behalf of the respondent that the appealed decision is an interlocutory one, that as such requires leave to appeal (which has not been sought) and that it is therefore incompetent. This is an internal appeal, and pursuant to s 80(2) of the NCAT Act any internal appeal may be made: 1. In the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel (s 80(2)(a)); and 2. In the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds (s 80(2)(b)).
Section 80(2)(b) refers to ancillary decisions. Section 4 of the NCAT Act defines "ancillary decision" as, inter alia, "including … a decision concerning whether the Tribunal has jurisdiction to deal with a matter". The appealed decision is at least a decision concerning whether the Tribunal has jurisdiction to deal with the matter. Most, if not all, of the arguments raised by the appellant are questions of law. Accordingly, we consider that the appellant may bring this appeal as of right, and does not require the leave of the Appeal Panel to do so.
We add that s 4 also defines "interlocutory decision" with a non-exhaustive list of decisions which do not include any decision of the same nature as this one; and we note the discussion of "ancillary" and "interlocutory" decisions in Hammond v Ozzy's Cheapest Cars Pty Ltd [2015] NSWCATAP 65 at [28] to [40]. We also add that at the directions hearing on 26 August 2014, apparently there was discussion suggesting, with the appellant contending to the contrary, that the appealed decision had made findings of a retail shop lease with a term of five years so that there was nothing else to be considered in the subject proceedings beyond costs and any appeal by the (then) respondent; a decision producing such a result would be of a final, rather than an interlocutory, type. (We note this detail of the directions hearing from the letter of 9 February 2015 from the appellant's solicitors to Mr Penhall, noted at [36] above.)
Thirdly, we comment on a complaint by the respondent that the appellant is, inappropriately, bringing forward in this appeal matters which were not raised in the submissions or other steps leading to the appealed decision. In that regard Mr Penhall has referred to what he has termed "course of conduct of trial estoppel" citing in particular Metwally v University of Wollongong (1985) 60 ALR 68 at [7] and Smits v Roach (2006) 227 CLR 423 at [46] to [48]; he submits that a party is bound by the conduct of his case. As to the general restriction against raising new points on appeal, we note also the discussion in Ritchie's Uniform Civil Procedure NSW at [51.53.105] with reference to other authorities such as Coulton v Holcombe (1986) 162 CLR 1. We will refer to the situation arising from this complaint by the respondent as the "new matter complaint" and we will deal with it in our discussion below of some of the grounds of appeal.

Polish Club Ground

Gnych v Polish Club Ltd [2015] HCA 23 was the ultimate appellate decision in litigation over the lease of a restaurant in a licensed club where the parties had not formalised their arrangement but the tenant was in possession and paying rent, with the tenant having the benefit of s 16 of the RL Act. The club contended that because no approval had been obtained from the Independent Liquor and Gaming Authority for the lease, s 92(1) of the Liquor Act 2007 (NSW) (the Liquor Act) had been contravened and the contravention was such that the lease was void and unenforceable. Section 92(1) of the Liquor Act provides: A licensee or a relate corporation of the license must not: … (c) lease or sublease any part of the licensed premises on which liquor is ordinarily sold or supplied for consumption on the premises or on which approved gaming machines are ordinarily kept, used or operated, and (d) lease or sublease any other part of the licensed premises except with the approval of the Authority.
At first instance (Gnych v Polish Club Ltd (2013) NSWSC 1495) it was held that the contravention did not affect the leasehold interest, the tenants' claim did not depend on any illegality and they were simply asserting that a lease arose from the conduct of the parties and by operation of s 16(1) of the RL Act.
That decision was reversed in the Court of Appeal (Polish Club Ltd v Gynch (2014) 86 NSWLR 650) which held, particularly at [79], that the purposes of the Liquor Act could not be served by any sanction for the contravention short of holding the lease void.
We note that in the Court of Appeal it was conceded on behalf of the respondent that they had exclusive possession of the relevant premises and as such was a common law lease. The Court of Appeal decision was delivered on 16 September 2014, after the appealed decision (in the subject proceedings) was given on 1 August 2014. The appellant, in the Amended Notice of Appeal lodged on 21 October 2014 sought to add to the grounds pursued by the appellant, reliance on the Court of Appeal decision and submitted among other things that this decision "declared the law to be different than before" (in the appellant's submissions of 12 February 2015).
The High Court decision was handed down on 17 June 2015, after the last hearing day in this appeal on 3 June 2015. In that decision the High Court upheld the appeal and set aside the orders of the Court of Appeal; essentially it found that the purpose and policy of the Liquor Act did not require that a lease constituting a contravention of s 92(1)(d), be thereby rendered void and unenforceable (in particular [51] and [52] of the plurality judgment and [75] and [76] of the judgment of Gageler J).
Through the Tribunal Registry, we then invited the parties to put on further written submissions dealing with the High Court decision; the appellant did not do so but the respondent did, on 27 July 2015. Not surprisingly, the respondent submitted that the High Court decision was such that the Polish Club Ground did not assist the appellant in any way and we see no reason not to accept that submission. The respondent's submissions also maintained in relation to this ground, the point that the agreement in the subject proceedings, while it constitutes a retail shop lease, does not involve the grant of exclusive possession to the respondent (and a common law lease). We will deal with this point below in relation to the Cross-Appeal.
It follows that we decide the Polish Club Ground against the appellant.

Head Lease Ground

The appellant argues (grounds 10.1 and 10.2) that the imposition of a five year term by s 16 of the RL Act into any retail shop lease that the respondent had was inconsistent with a head lease under which the appellant held the hotel, being a tenancy terminable by a month's notice in writing, pursuant to s 127(1) of the Conveyancing Act such that any five year term would not be available because of s 16(5): "This section does not apply to a lease to the extent that its application would be inconsistent with the terms of any head lease under which the lessor holds the retail shop."
The point was faintly referred to and not developed in the material put up for the determination of the separate issue. The appellant's submissions there said only (with reference to street address and title searches in respect of the hotel) that "the respondent (the appellant) is not the owner of the Ashfield Hotel … and can only occupy the premises and conduct its business at the will of the freehold owner". That submission was made as part of one that the catering services were "ancillary to and a single complementary component of the overall business of a hotel operated from the premises of the Ashfield Hotel." The applicant's submissions attached ASIC searches showing that the respondent and the owner of the hotel premises, Merleen Pty Ltd, had identical directors and shareholders and emphasised that in and about negotiation of and entry into the agreement the respondent had warranted that it was the owner.
These matters were not explained beyond this and in particular, as we have already discussed, the submissions of the respondent (the appellant) made no reference to s 16 of the RL Act, let alone s 16(5). The appealed decision did not expressly refer to this material and that is not surprising given the inadequate formulation of the separate issue and the paucity of submissions concerning this material. We will comment on this again below in relation to the Procedural Fairness Ground.
On the first hearing day of the appeal we suffered additional evidence relating to this ground to be tendered on behalf of the appellant (over objection from Mr Penhall). This comprised an affidavit dated 12 December 2014 and oral evidence from Mr Aldridge, the General Manager of the Nelson Meers Hotel Group (who was cross-examined by Mr Penhall), and records of monthly rental payments of $120,000 each by the appellant to Merleen Pty Ltd (as trustee for the Nelmeer Ashfield Property Trust) in respect of occupation of the hotel premises. Mr Aldridge said that there was no agreement between the companies as to the duration of that arrangement. We heard full submissions on the issue and, despite an objection from Mr Penhall, we have concluded that we should deal with it.
On behalf of the appellant it was submitted that the arrangement between Merleen Pty Ltd and the appellant in respect of the hotel constitutes a tenancy terminable at the will of either party by one month's notice in writing expiring at any time under s 127(1) of the Conveyancing Act and reliance was placed particularly on Peter Croke Holdings Pty Ltd v RTA (1998) 101 LGERA 30 at 35 and George D. Angus Pty Ltd v Health Administration Corporation (2013) NSWLEC 212 at [124]-[127]. Mr Penhall replied to that submission by reliance on a significant line of authority acknowledged by the Court of Appeal in Lee v Ferno Holdings Pty Ltd (1993) 33 NSWLR 404 at 410 to the effect that a monthly tenancy or a s 127 tenancy will support a sublease for a term of years because it may outlast that sublease. A strong rejoinder was then put up during the addresses, on behalf of the appellant, based on Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189.
In Conoid the Court of Appeal dismissed an appeal from a decision in the Equity Division which had held that certain non-exclusive licenses of parts of a theme park constituted leases under the RL Act but their terms, evidently for periods of 12 months or thereabouts, were not extended to 5 years under s 16 because of the operation of s 16(5). The holding that the licenses constituted leases under the RL Act was not challenged and the appeal was against the holding in respect of s 16. At all relevant times a company called Hartford Lane Pty Limited was the registered proprietor of the property on which the theme park was situated, the respondent was a tenant which was holding over on a monthly tenancy to which s 127 of the Conveyancing Act applied and the appellants were the licensees or sub-lessees.
The trial judge held, in effect, that the respondent as head-lessee having only a periodic tenancy, could not grant a lease for a term and s 16(5) did not apply: "… it is plain, in my opinion, that the legislative purpose of s 16(5) of the Act was to protect the position of a head lessor from what would otherwise have been an unintended consequence of section 16".
The Court of Appeal, in separate judgments by Meagher JA and Giles JA with both of which judgments Sheller JA agreed, found that reasoning to be inapplicable as it was contrary to the line of authority dealt with in Lee v Ferno Holdings Pty Ltd (Meagher JA at [6] and [7] and Giles JA especially at [17], [18] and [20]). Nevertheless, the Court of Appeal ruled that if the head lease were terminated, any 5 year term implied by the Act into the sub-leases would subject the sub-lessor to a liability to the sub-lessees in damages which it would not have otherwise had, and that would constitute an inconsistency between the sub-lessor's right of termination in those different situations; and that the rights of termination were so radically different as discussed in cases such as Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133, as to be "inconsistent" within the language of s 16(5) of the RL Act, (Meagher JA at [8] and [9] and Giles JA especially at [18], [19], [26]-[30] and [41].
The Court of Appeal also expressed the view, contrary to the suggestion of the trial judge that the purpose of s 16(5) was to protect the head lessor, that its purpose was to protect the sub-lessor (especially Giles JA at [40] and [41]).
We see significant differences between the situations of the parties in this appeal and the situations of the parties in the Conoid case including: 1. The appellant and Merleen Pty Ltd have the same shareholders and directors. 2. They are both within the Nelson Meers Hotel Group and they have common management. 3. The arrangement here that is said to constitute a lease to which s 127 of the Conveyancing Act is an informal arrangement between related corporations whereas in Conoid there was a tenant holding over as a monthly tenant under what evidently was a formal lease. 4. The subject premises are licensed hotel premises under the Liquor Act and the licensee is an employee of the appellant. 5. The first and second agreements referred to the hotel premises as being owned by the appellant. 6. Any extension of the term of the second agreement pursuant to s 16 of the RL Act would expire only two years hence.
We assess these matters as establishing on the balance of probabilities that there is no real risk of termination by Nelmeer Pty Ltd of its arrangement with the appellant in relation to the hotel within the next two years and that there is no real risk to the appellant of liability to the respondent for damages consequent upon such a termination. We conclude, therefore, there is not such a difference involved in the position of the appellant under the statutorily extended term of the second agreement as to require a finding that, within the terms of s 16(5) such an extension would be contrary to the terms of any head lease between Nelmeer Pty Ltd and the appellant. Accordingly, we find against the appellant on the Head Lease Ground.

RL Act s 5(b) Ground

As summarised at [12] above (see sub-paragraphs (3) and (4)(f) and (g)) the appellant (as the then respondent) had raised for consideration in the separate issue a contention that s 5(b) of the RL Act applied because there was involved a shop that "was used wholly or predominantly for the carrying on of a business by the lessee on behalf of the lessor". The appealed decision dealt with that contention and rejected it, as noted in the Appealed Decision section of this decision in [21] above. It found in particular that "…it cannot be maintained…that the applicant is carrying on a business on behalf of the respondent", "the applicant appears to be operating the business for herself" and "there is no suggestion the respondent is operating or having the business operated on its own behalf". The appellant now seeks to challenge this aspect of the appealed decision by relying on s 17(4) of the Liquor Act which provides: "…Liquor may only be sold or supplied in a hotel if food of a nature consistent with the responsible service of alcohol is made available whenever liquor is sold or supplied on the premises for consumption on the premises… ."
The new matter complaint of the respondent has a measure of validity in that the appellant now seeks to supplement what it had submitted in relation to s 5(b) of the RL Act for the purposes of the separate issue, with reliance on s 17(4) of the Liquor Act. Such reliance had been available to the appellant at the time of the hearing (albeit on the papers) of the separate issue and unlike the Liquor Act provision involved in the Polish Club ground, s 17(4) was not said to be the subject of a changed interpretation by case law published subsequently to the appealed decision. Nevertheless, the appellant submits that this is only a matter of law and it would not prejudice the respondent if it were now dealt with as such. On balance, we have concluded that we should accede to that submission and we will consider s 17(4).
The appellant's submission seems to be to the ultimate effect that the hotel's obligation under s 17(4) of the Liquor Act to make food available means, as a matter of law, that the supply by a contractor to the hotel of any food in the hotel, and occupation by the contractor for that purpose of part of the hotel premises for the purposes of that supply, mean that such supply and occupation constituted use wholly or predominantly for the carrying on of a business on behalf of the hotel (lessor) under the meaning of s 5(b) of the RL Act.
We are not persuaded by this submission. Whatever method the hotel may choose to go about dealing with its obligation under s 17(4) of the Liquor Act to supply food in the hotel premises could not dictate that the involvement of any contractor in that supply must mean that the use by the contractor of part of the hotel premises is such that s 5(b) of the RL Act must exclude any application of the RL Act to the arrangement between the hotel and the contractor. The circumstances in which the contractor supplies the food and occupies part of the premises must be looked at in each case for the purposes of assessing any application of s 5(b). That is a question of fact and the appealed decision dealt with it. Whether those circumstances constitute a discharge of the hotel's obligation under s 17(4) of the Liquor Act is a different question.
That question should be considered somewhat separately from the question of the application s 5(b) of the RL Act, similarly to separate consideration dictated by the Polish Club case of the consequences of a breach by a licensee of s 92(1)(d) of the Liquor Act. We add that it could not be the case that the failure of the appealed decision to have considered s 17(4) of the Liquor Act, to which it had not been referred, dictates that as a matter of law the appealed decision incorrectly dealt with s 5(b) of the RL Act. In our opinion, the appellant's RL Act s 5(b) Ground fails.

Condition Precedent and Waiver Ground

The appellant challenges the finding in the appealed decision that the appellant must be taken to have waived the requirement that the respondent provide the appellant with a legal practitioner's certificate under s 16(3) of RL Act (ground 2, [27] above; appealed decision at [51] and [52], [25] above). The appellant also submits that the appealed decision should have found that the respondent's failure to provide the s 16(3) certificate had the result that the second agreement never became binding such that the respondent was holding over pursuant to the first agreement (grounds 3 and 4 in [27] above). We will deal with the latter point first.
More particularly, the appellant submits in respect of grounds 3 and 4 that cl 2(b) of the second agreement which provided that "[i]t is an essential term and condition of this agreement that the 'Bistro Contractor' provides 'the Company' with a certificate signed by a suitably qualified legal practitioner pursuant to s 16 of the Retail Leases Act 1994", was a condition precedent; and that "essential term" and "condition" as used in that clause, must have distinct meanings such that "condition" must be read as meaning "condition precedent" (appellant's submissions 12 February 2015).
The first comment we make on those submissions is that they could have been, but were not, made for the purposes of the separate issue. They do not appear to be a reference to, or have an association with, anything put in the submissions made for the purposes of the separate issue. In Coulton v Holcombe (1986) 162 CLR 1 the majority judgment at [9] cited a number of authorities relevant to what we have referred to here (at [36]) as the new matter complaint, including Metwally v University of Wollongong and at [10] noted the recognition by the Court of Appeal as of the great importance, in the public interest, of the principles in those authorities and this summary by the Court of Appeal of those principles: "the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance; keeping it in reserve for appeal; and the need to avoid injustice to a party having to meet facts and new issues of law for the first time at the appeal court."
This condition precedent argument would have been within the ambit of the separate issue had it then been raised. We do not discern any explanation to be advanced on behalf of the appellant as to why it was not then raised. It is put to us , however, that this argument should be now permitted as it involves only issues of law. In our opinion, the appropriate exercise of our discretion in the circumstances we have outlined is not to permit this argument to be advanced and we so rule. The important public interest principles noted above from Coulton v Holcombe are supplemented in this Tribunal by the object specified in s 3 of the NCAT Act of the resolution of the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and by the guiding principle referred to in s 36 of the NCAT Act where there is stipulated to be a duty of a party to co-operate with the Tribunal to give effect to the guiding principle (as we have noted above in [38]). Nevertheless, lest our exercise of that discretion be assessed to be wrong, we did receive submissions on the argument and we will express our opinion on it.
The High Court recently in Electricity Generation Corporation v Woodside Energy (2014) 251 CLR 640, in the majority judgment at [35], recapitulated principles of contract construction: "Both [parties] recognised that this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption 'that the parties…intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'."
At [2], [3] and [4] above we have detailed relevant aspects of the first agreement and the second agreement. We add to the details given there that cl 2(a) of the second agreement provided for the period of engagement to commence on 19 October 2012 whereas the first agreement had 19 October 2011 as a corresponding date; and that in the second agreement cl 4(a) providing for a deposit of $5,000 was deleted with a manuscript note above it "Deposit already paid".
As we pointed out there, unlike the first agreement, the second agreement was not the subject of any certificate pursuant to s 16 of the RL Act. We have already referred to s 16 of the RL Act above, particularly at [43], where we expressed the view that it is surprising that the appellant did not refer to s 16 in its submissions for the purposes of the separate issue. That provision and the RL Act generally would form part of "the surrounding circumstances known to (the parties) and the commercial purpose or objects to be secured by the contract", to repeat the language used in Electricity General Corporation v Woodside Energy cited above; relevant parts of s 16 are set out at [16] above. Another significant aspect of the RL Act in this regard is s 7 which has been mentioned above in this decision on several occasions and which provides under a heading "This Act overrides leases": This Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of this Act. A provision of any agreement or arrangement between the parties to a lease is void to the extent that the provision would be void if it were in the lease.
Clearly enough, it seems to us, the second agreement was intended to regulate the arrangement between the parties after the twelve months term of the first agreement. There was reference to the RL Act in the second agreement. The appellant's condition precedent submission centres on reading "condition" in the opening clause in cl 2(b) "it is an essential term and a condition of this agreement" as "a condition precedent". As explained in Carter on Contract at [14-150]: "Where the occurrence of an event is a condition precedent, the existence of the contract or the obligation of one party (or both parties) to perform is subject to the prior occurrence of a specified event."
Here both parties went on performing their respective obligations in respect of the Bistro and the legal existence of the second agreement was not then questioned, nor subsequently questioned until this appeal. We are not persuaded that, properly construed, the word "condition" where it is used in cl 2(b) in conjunction with "an essential term" should be read separately or read as a condition precedent and we see that phrase using those terms together more as a hendyiadis. We would find no merit in the appellant's condition precedent argument were it appropriate to be considered in this appeal.
The appellant also challenges the finding in the appealed decision that the appellant must be taken to have waived the requirement in cl 2(b) for a s 16 certificate. An essential fact in this regard is that the appellant failed to rely on that provision and require such a certificate at the time of entering into the agreement, during the 6 months period specified in s 16(3) and or at any time thereafter until this appeal. Whether that situation amounted in law to waiver is not necessarily to the point as, alone, the absence of a s 16(3) certificate means that s 16(1) and s 16(2) operated so that the term of the lease became 5 years.

Procedural Fairness Ground

The appellant's grounds of appeal 8, 9 and 10 raise allegations of lack of procedural fairness in respect of the determination of this separate issue. Ground 8 asserts that "the Tribunal erred in law by declaring that the agreement was a retail shop lease with a term of five years and thus determining the Respondent's Application for Original Decision on 21 August 2014, in circumstances where only the Respondent's Request for an Interim Order was before the Tribunal for decision".
Each of the applicant's Points of Claim, the submissions of the respondent and the submissions of the applicant were headed with reference to matter COM 14/123465 which was the file commenced with the Application for an Original Decision. File COM 14/23468 was the file commenced with the Request for Interim Order. The appealed decision was labelled with reference to both files. There is nothing there or in any other record which we have seen, suggesting that the separate issue was in some way to be in respect only of the Request for Interim Order.
It may be that what the appellant is really seeking to complain about here is that the appealed decision, apart from finding that the agreement dated 19 October 2012 was a retail shop lease, also found that it had a term of five years expiring on 18 October 2017. In [43] and [44] above, we recorded our concerns first that the appellant failed to include any reference to s 16 of the RL Act with its possible five year term consequence when the respondent (the then applicant) had relied on that particularly in its Points of Claim and secondly, a clear formulation of the separate issue had not been put forward.
We add that the separate issue had arisen from the appellant's complaint of lack of jurisdiction in the Tribunal. The hearing requirement of procedural fairness is only that there be given to a party an opportunity to be heard; the appellant had the opportunity to be heard on the separate issue in relation to s 16 and did not take advantage of it. There was no denial to the appellant of an opportunity to be heard and this procedural fairness complaint does not assist the appellant in its challenge to the finding of a five year term.
In ground 9, the appellant submits that the Tribunal erred in law by refusing on 26 August 2014 to withdraw the finding of the five year term. That submission is made as a consequence of there having been a denial of procedural fairness as asserted in Ground 8. Ground 8 has failed and Ground 9 also fails.
Ground 10 asserts a denial of an opportunity to be heard in respect of the Head Lease Ground, as we have termed it, (as described in grounds 10.1 and 10.2). We have fully dealt with the Head Lease Ground above at [56] and following and found against the appellant in respect of it. Any denial of procedural fairness as alleged would therefore be no longer significantly relevant but we are of the opinion that by reason of the situation that we have described at [57] and [58] above, there was no denial of procedural fairness.

Cross-Appeal

As described in [31] above in the Appeal section of this decision, the respondent has filed a Cross-Appeal challenging the finding in the appealed decision at [33] (set out in [18] above) that the respondent's "right of occupation and use must therefore be exclusive, even if not expressly stated to be so". That finding apparently was important to the appellant in respect of the Polish Club Ground because of the perceived need for there to be involved a common law lease under s 92 of the Liquor Act rather than just a lease under the RL Act. The Polish Club Ground effectively ceased to be of significance following the recent High Court decision, as discussed above in paragraphs [49] to [55] above. We therefore do not see this finding of exclusive possession as being still a live issue; also, a challenge to it would involve a detailed factual enquiry. In these circumstances, we do not see this as an issue which we should deal with in this appeal.

Conclusion

In the result, the appellant has failed in this appeal and the appeal should be dismissed. The proceedings should, however, be remitted to the Tribunal for outstanding issues to be dealt with. Those issues will include a consideration of the continuation or otherwise of the continuing interlocutory injunctive order ([26] above), any prosecution of the claims for unconscionable, or misleading or deceptive conduct, and any application concerning costs in those proceedings.

Costs of Appeal

The respondent seeks costs in respect of this appeal. In a lengthy appeal, the appellant has been unsuccessful despite prosecuting numerous and complicated grounds, some of which involved issues which the appellant should have, but failed to, prosecute in the subject proceedings. Those circumstances we assess as taking this appeal out of the ordinary and being "special" for the purposes of s 60 of the NCAT Act such that we should order that the appellant pay the respondent's costs of this appeal.
We add that the respondent sought indemnity costs on the basis that the appeal should be dismissed because the appealed decision only involved interlocutory orders. We held against the respondent on that issue. Indemnity costs are not appropriate on that, or any other, basis.

Orders

The Appeal Panel orders: 1. The appeal is dismissed. 2. The orders the subject of the appeal are affirmed. 3. The proceedings are remitted to the Consumer and Commercial Division for outstanding issues in the proceedings to be dealt with. 4. The appellant is to pay the respondent's costs of this appeal, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2015

Civil and Administrative Rules 2014(NSW)

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