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[2011] NSWCA 201
Court of Appeal (NSW)
2011-05-30
Hodgson JA, Basten JA
Original judgment source is linked above.
Wilson v Sydney Markets Limited (No 2) [2009] NSWADT 281 Before: Fox R - Judicial Member
Deputy President D Patten; Deputy President S Higgins; and Non-Judicial Member B Weule File Number(s): 099075
Judgment 1HODGSON JA: On 11 September 2009 the respondent (Mr Wilson) commenced proceedings in the Administrative Decisions Tribunal (ADT) against the appellant (Sydney Markets) seeking relief pursuant to s 61 of the Retail Leases Act 1994 ( RL Act ). 2On 11 November 2009, the ADT relevantly made the following orders: a. Applicant's Occupancy Agreement for the shop conducted from stalls 234, 235 and 236 at Sydney's Paddy's Markets is a Retail Shop Lease in terms of the Retail Leases Act . b. Sydney's Paddy's Markets is a retail shopping centre in terms of the Retail Leases Act . c. Section 61 of the Retail Leases Act imports its words into the Applicant's Occupancy Agreement. d. the Wednesday trading proposed by the Respondent is a change in the Applicant's core trading hours within the terms of the words imported into his Occupancy Agreement by s61 of the Retail Leases Ac t. e. the Respondent cannot require the Applicant to vacate stalls 234, 235 and 236 on Wednesdays, for Wednesday trading by others until the Respondent has the approval in writing of a majority of the traders who are permanent stallholders trading at Sydney's Paddy's Markets. f. the Respondent may not change the core trading hours of Sydney's Paddy's Markets to include Wednesday trading between 9am to 5pm until it has the approval in writing of a majority of the traders who are permanent stallholders trading at that venue. g. the introduction or the advertising or promotion of Wednesday trading to stallholders in Paddy's Haymarket is to clearly indicate that if such trading requires traders who are permanent stallholders to vacate their stands for Wednesdays, then such trading cannot take place until a majority of traders who are permanent stallholders vote to trade on that day. h. the approval in writing is to be by way of a secret ballot, one vote per trader, which is to be conducted at such times as Applicant and Respondent may agree, or if they cannot agree, as directed by me, on application of either party on 12 November 2009 at 2pm. 3Sydney Markets appealed to the Appeal Panel (AP) of the ADT, and on 22 June 2010 the AP made the following orders:
Statutory provisions 6The appeal requires consideration of the definitions of "retail shop", "retail shop lease" and "retail shopping centre" in s 3 of the RL Act : 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. 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. Note. Sections 6, 6A and 84B limit the retail shop leases to which this Act applies. retail shopping centre means a cluster of premises that has all of the following attributes: (a) at least 5 of the premises are used wholly or predominantly for the carrying on of one or more listed businesses, (b) the premises are all owned by the same person, or have (or would if leased have) the same lessor or the same head lessor, or comprise lots within a single strata plan under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 , (c) the premises are located in the one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops, (d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade. 7Schedule 1 of the RL Act , headed "Retail shop businesses", lists a number of businesses including "gift shops" and "stationery shops"; but also, for example, "barbers", "beauticians", "boot and shoe repairers", "engravers", "key-cutting shops", "nail bars", and "snack bars". Clause 17 of Schedule 3 of the RL Act provides that "the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of" the definition of retail shop in s 3, until regulations are made for the purpose of that definition; and no such regulations have been made. 8Also of some relevance are ss 5, 33 and 61 of the RL Act : 5 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) any shop within premises where the principal business carried on on those premises is the operation of a cinema, bowling alley or skating rink and the shop is operated by the person who operates the cinema, bowling alley or skating rink, (d) any premises in an office tower that forms part of a retail shopping centre, (e) premises of a class or description prescribed by the regulations as exempt from this Act. 33 Lessee to be given notice of alterations and refurbishment A retail shop lease is taken to provide that the lessor must not commence to carry out any alteration or refurbishment of the building or retail shopping centre of which the retail shop forms part which is likely to adversely affect the business of the lessee unless: (a) the lessor has notified the lessee in writing of the proposed alteration or refurbishment at least 2 months before it is commenced, or (b) the alteration or refurbishment is necessitated by an emergency and the lessor has given the lessee the maximum period of notice that is reasonably practicable in the circumstances. 61 Trading hours (1) A lease of a retail shop is taken to include provision to the effect that a lessor is not entitled to change the core trading hours of the retail shopping centre of which the shop forms part except with the approval in writing of the lessees of a majority of the retail shops in the shopping centre (whether or not those retail shops are retail shops to which this Act applies). The initial fixing of trading hours in a new shopping centre is not a change to core trading hours and is not affected by this subsection. (2) Subsection (1) does not operate to permit a lessor to ignore the requirements of any other agreement, arrangement or understanding that prevents or restricts a change to core trading hours by the lessor in a retail shopping centre. Note . An example of how subsection (2) operates is where another agreement requires a 75% majority of lessees to be in favour of a change to core trading hours before the lessor can make the change. Subsection (2) requires that the other agreement be complied with also, so that a 75% majority must be obtained and not merely the 50% majority required by subsection (1). (3) This section does not prevent a lease providing for the action that may be taken by a lessor in the event of a lessee not trading in accordance with core trading hours, including provisions: (a) enabling the lessor, as a condition of granting consent to a lessee trading outside core trading hours, to require the lessee to pay, or pay a contribution towards, the costs of opening the retail shopping centre during those extended trading hours, or (b) requiring a lessee who trades outside core trading hours to make specified payments or additional payments in respect of advertising and promotional costs for the shopping centre. (4) The core trading hours of a retail shopping centre are the times when retail shops in the shopping centre are required to be open for business, whether the requirement is imposed by or under a lease or by or under some other agreement, arrangement or understanding between lessors and the lessees.
Facts 9The facts concerning Mr Wilson's occupation of stands at Paddy's Market are set out as follows in the decision of the AP: 5 Pursuant to the Sydney Markets Authority Dissolution Act 1997 (the SMADA), the appellant purchased the business undertaking of the Sydney Market Authority constituted under the Sydney Market Authority, Act 1968 6 Relevantly to this case, the appellant became entitled to the benefit of a licence to occupy stands at the Haymarket (the Haymarket site) previously granted by Rockvale Pty Ltd to the Sydney Market Authority, 7 Licences or permits held by any person from the Sydney Market Authority, and in force immediately before the appellant's purchase continued to remain in force in accordance with the terms of the SMDA. 8 Upon the Haymarket site, the appellant conducts a market known as Paddy's market, which comprises approximately 850 stands spread over an area under the one roof. 9 The respondent, Mr William Wilson has been entitled to occupy stands numbered 234, 235 and 236 at Paddy's Market since 1997. 10 The respondent in relation to his stand was issued with a new form of occupancy agreement in 2003. Although it was common ground that such agreement was never completed and signed by the respondent it was also common ground that its terms, regulated, the relationship between the appellant and the respondent. It will be necessary to refer later, in some detail to the terms of the document. 11 At all relevant times, the respondent has occupied the stands allotted to him and has traded from them between the hours of 9 a.m. and 5 p.m. each Thursday, Friday, Saturday and Sunday. For this purpose, he has equipped and furnished them with signage, cupboards, display cabinets and counters and has left such furnishings, continuously in place, with the permission, express or implied, of the appellant. 12 For a consideration payable monthly, the respondent was granted approval to leave his unsold stock in place from the close of business each Sunday until the commencement of business the following Thursday. 10Relevant terms of Mr Wilson's occupancy agreement are set out as follows in the decision of the AP: 15 The pro forma occupancy agreement accepted as regulating the relationship between the appellant and the respondent contained, these provisions relevant to the dispute between them: Background A. SML is responsible for the management and operation of the Markets. B. You wish to Sell Goods in the Markets and require the Premises for that purpose. C. SML agrees to allow You to Sell Goods in the Markets and to occupy the Premises on the terms set out in this Occupancy Agreement. ........... 1.1 Definitions In this Occupancy Agreement, unless the context requires otherwise: Access Hours means the days and times when You may use and occupy the Premises and/or be in the Markets or any part of the Markets as advised by SML or as amended at any time by SML by reasonable notice in writing to You; ............ Attendance Time means the time by which You must be present and occupying the Premises as advised by SML or as amended at any time by SML by reasonable notice in writing to You; ............ Casual Standholder means a person SML has allowed to occupy a Stand on a daily basis, including Stands designated by SML as casual stands and Stands a regular Standholder has failed to attend pursuant to clause 6.8 of the Occupancy Agreement; ............ Equipment includes bins, boxes, mobile offices, cartons, containers, packaging materials, tables, counters, racks, buckets, scales, pallets, trolleys, plant and machinery or any other item determined by SML to be equipment; .............. Licence means your right to use and occupy the Premises and to Sell Goods in the Markets pursuant to the terms set out in this Occupancy Agreement; ......... Markets means any land including the Premises, Common Areas, buildings, structures and property used, owned and/or controlled by SML: Market Category means each of the markets conducted by SML at the markets commonly known as: (a) Sydney's Paddy's Markets; ............ Occupancy Agreement means: (a) the occupancy agreement entered into between SML and a Standholder or otherwise determined by SML to apply in respect of the Standholder's use and occupation of a Stand; and/or ............ Occupier means any person who: (a) occupies a Stand or Store pursuant to an Occupancy Agreement; .............. Premises : (a) in the Occupancy Agreement, has the meaning given in paragraph (a) of the definition of Trading Premises; or ........... Relocation has the meaning given in clause 19.1; Relocation Notice means a relocation notice issued under clause 19.2 pursuant to clause 19 of the Occupancy Agreement; Rent means the amount charged by SML to You for the use and occupation of the Premises (excluding Dues) as advised by SML or as varied by SML at any time by 30 days' notice in writing to You in accordance with clause 12 of the Occupancy Agreement; ......... Stand means any open floor space or other space in the Markets identified by SML as a stand; .............. Standholder means any person occupying a Stand pursuant to an Occupancy Agreement or other arrangement with SML; ............. Sydney's Paddy's Markets means the retail markets conducted by SML for the sale of general goods, services, merchandise and food items; ........... Trading Hours means: (a) the days as indicated in Items 7 to 12 of Schedule 1; and (b) the times as advised by SML or as amended at any time by SML, when an Occupier may Sell Goods from the Premises; Trading Premises means: (a) the Stand or Store occupied by You pursuant to the terms of the Occupancy Agreement as indicated in Item 3 of Schedule 1 and in the Market Category as indicated in Item 4 of Schedule 1; and ............. Your Property means your property inside the Premises and/or the Markets and includes your Goods, Equipment, fixtures, fittings, signs. ......... 4.1 Right to occupy Subject to the terms of this Occupancy Agreement, SML grants You the right to: (a) use and occupy the Premises; and (b) enter and remain in the Markets, during Access Hours. 4.2 Access Your Licence only allows You to use and occupy the Premises and be present in the Markets during Access Hours. 4.3 Outside of Trading Hours Notwithstanding clauses 4.1 and 4.2, outside of Trading Hours but during Access Hours, the following persons have the right to use and occupy the Premises: (a) a bona fide employee of You engaged in the business being conducted at the Premises; (b) an officer of You; or (c) a person permitted by SML or an Authorised Officer to enter or be in the Premises outside of Trading Hours. ................ 6.1 Occupation (a) No person other than You may use or occupy the Premises. (b) You may not have a beneficial interest in any other Premises other than these Premises or other Premises in respect of which You have a Licence without the informed written consent of SML. (c) You must not conduct business or Sell from any part of the Markets except from your Premises. ........... 6.3 Use of Premises only You must contain all Your Property within the boundaries or limits of the Premises and must not use the Common Areas to store or place Your Property without the written permission of an Authorised Officer. 6.4 Outside of Access Hours (a) .............. (b) If the Premises the subject of your Licence is a Stand then You may not leave Your Property at the Premises outside of Access Hours without the approval in writing of SML or an Authorised Officer. If You receive this approval, You acknowledge and agree Your Property left at the Premises is left at your risk and remains at all times your responsibility. 6.5 Location of the Premises (a) ........... (b) If the Premises the subject of your Licence is a Stand then the location of your Stand will be as set out in ltem 3 of Schedule 1.1. (c) SML may vary the location of your Stand for any particular day without notice or permanently with 30 days notice in writing at its discretion. .............. 6.6 Trading You must operate the Premises and Sell the Authorised Goods during Trading Hours. 6.7 Attendance You must be present and in occupation of the Premises by no later than the Attendance Time on each day You are required to operate the Premises pursuant to clause 6.6. You must remain present and in occupation after the Attendance Time up until the conclusion of Trading Hours for that day. ..................... 16.1 SML's obligations SML will: (a) manage and operate the Markets in a professional and competent way; (b) obey any law that requires SML to do anything concerning the Markets; and (c) keep the Markets clean, tidy and in good condition 17.1 Closure of Markets SML may decide at any time not to conduct the Markets or any part of the Markets, on any day or days, or for part of any day or days. 17.2 SML's right to deal with the Markets SML may: (a) increase or reduce the area of the Markets or carparks or any part of the Markets or carparks; (b) change the location of any part of the Common Areas; (c) change the nature or location of any of the facilities on the Common Areas; (d) change the direction, area, layout or level of any walkways, pathways, driveways or carparks; (e) change the traffic patterns in the Markets; (f) relocate the vehicular entrances and exits to and from the Markets or any part of the Markets; (g) sell, transfer, lease, mortgage or otherwise deal with any of the Markets; or (h) deal with the Markets in any other way as permitted under the Constitution. .............. 19.1 Right to relocate SML may relocate the Premises or the Markets or any part of the Markets from Flemington and or Haymarket to an alternate location (Relocation). 19.2 Relocation Notice SML must give You written notice of the Relocation (Relocation Notice). This Relocation Notice will: (a) provide details of the Relocation; (b) offer You a licence at the new location; and (c) require You to surrender your current Licence and vacate the Premises on a specified date (which must be at least 90 days after the date of the Relocation Notice). SML will offer you new premises that are, as a minimum, reasonably comparable to the Premises. In this case, SML will charge you rent at the same rate per square metre. In the event the new premises provide you with enhanced facilities (in the reasonable opinion of SML), SML reserves the right to set the rent at a higher level. .............. 22.3 Termination by SML (a) SML may give You notice in writing of its intention to terminate this Occupancy Agreement and cancel your Licence if: (1) You commit a Breach and fail to make good this Breach (if capable of remedy) or to pay adequate compensation (if incapable of remedy) within a reasonable period of being notified in writing of the Breach by SML; ................ (d) SML will terminate this Occupancy Agreement and cancel your Licence with 90 days' notice in writing if it becomes necessary for any reason to permanently close the Markets or the Market Category in which the Premises are located. ................. 25 Variation of this Occupancy Agreement SML may by 30 days' notice in writing: (a) vary: (b) add to; or (c) suspend, all or any part of this Occupancy Agreement. .............. 26.6 No waiver A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by this Occupancy Agreement does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Occupancy Agreement. A waiver of a breach does not operate as a waiver of any other breach. ................ Schedule 1 ................. Item 7 Haymarket Sydney's Paddy's Markets Days (Clause 1) Thursday Friday Saturday Sunday ....................... Schedule 2 ............... 2.1 Trading days You may hold a Stand at Haymarket that will enable You to operate your Stand Thursday to Sunday, unless otherwise approved by SML. 2.2 Trading Hours The Trading Hours when You may (and are required to) operate your Stand are: (a) Thursday Paddy's Markets Haymarket 9.00 am to 5.00 pm (b) Friday Paddy's Markets Haymarket 9.00 am to 5.00 pm (c) Saturday Paddy's Markets Haymarket 9.00 am to 5.00 pm (d) Sunday Paddy's Markets Haymarket 9.00 am to 5.00 pm SML may vary these Trading Hours at any time by reasonable notice to You. 11Also relevant are the definition of "store", cl 6.5(a) and (d), cl 6.8 and cl 6.9, and cl 20.3. Store means an enclosed space of one or more storeys in the Markets identified by SML as a store; 6.5 Location of the Premises (a) If the Premises the subject of your Licence is a Store then the location of your Store will be as set out in Item 3 of Schedule 1. ... (d) SML may vary the location of your Store with 30 days' written notice in writing at its discretion. 6.8 Failure to attend Without limiting, restricting or prejudicing the rights, remedies or powers available to SML pursuant to clause 22.3 following your breach of clause 6.7, if You fail to be present and in occupation of the Premises by the Attendance Time: (a) You must still pay the Rent and the Dues; and (b) if the Premises are a Stand, SML may, at any time after the Attendance Time, decide to: (1) allot the Premises to a Casual Standholder for use on that day; and/or (2) not allow You to use and occupy the Premises or be in the Markets for that day. 6.9 Building works by You You must not without SML's prior approval: (a) alter or add to the Premises or any other part of the Markets, including marking, painting, drilling or otherwise defacing any walls, ceiling, partitions, floors, wood, stone, concrete, iron or metal work; or (b) install, add to or alter or bring onto the Premises or any other part of the Markets any partitioning, fixture or fitting including gas or electrical fixtures, equipment or appliances, or any illumination, heating, cooling or ventilation apparatus for the Premises. SML may withhold its approval at is [sic] own discretion and require You to pay all reasonable costs and expenses incurred by SML in providing its approval. 20.3 Storeholders to hold insurance If You are a Storeholder You must maintain public liability insurance in respect of your Premises for at least $10 million and produce a certificate of currency in respect of that insurance upon request by SML. 12On 9 July 2009, Sydney Markets gave Mr Wilson a notice to the effect that Paddy's Market was to be open for trading on Wednesdays from 14 October 2009, and that if Mr Wilson did not trade on Wednesdays he would be required to remove his stock to allow for casual allocation on that day. 13In his proceedings before the ADT, Mr Wilson sought relief in relation to that notice on the basis that it sought to change the core trading hours of a "retail shopping centre" within s 61 of the RL Act ; and the ADT gave relief on that basis. 14The AP decided that Mr Wilson was not entitled to relief under s 61, on the basis that Paddy's Market was not a retail shopping centre as defined in s 3 of the RL Act ; and for that reason, the AP upheld Sydney Market's appeal in relation to most of the declarations made by the ADT. 15However, the AP upheld the decision of the ADT that Mr Wilson's occupancy agreement was a retail lease in terms of the RL Act , and on that basis did not set aside the declaration 1(a) made by the ADT, and also made its own order 3.
Reasons of the AP 16The AP stated at [18] that there was "no doubt that the business conducted from his stands at Paddy's market by [Mr Wilson] (stationery, gifts, etc) was included in the list of businesses prescribed by Schedule 1" of the RL Act . 17The AP considered the decision of the Court of Appeal in Manly Council v Malouf [2004] NSWCA 299; (2004) 61 NSWLR 394, in which the council had granted a licence by deed to a restaurateur to use public space adjoining his restaurant for the purposes of his restaurant business; and the Court of Appeal (Mason P, Handley and Tobias JJA) unanimously held that this was not a lease of premises and accordingly not a retail shop lease. The AP then said: 21 In the opinion of the Appeal Panel the decision in Malouf may be distinguished from this case. This was not simply a licence to occupy vacant land. It was of an area within a building, an area moreover, which was intended to become and did in fact become a venue for the sale of goods by retail. The erection by the respondent in, the areas allotted to him, of display cases, counters and signage rendered the space indistinguishable from a retail shop, as that expression is commonly understood. It was plainly, the intention of the parties that something like this would occur in order to give effect to the purpose of the licence agreement. We hold that the occupancy of the respondent constituted a retail shop lease within the meaning of the RLA. 18Having decided that Paddy's Market was not a "retail shopping centre" and thus that s 61 of the RL Act did not apply, the AP continued: 40 However, in light of the Appeal Panel's opinion that section 61 of the RLA has no application to this case the appeal must be allowed. The notice dated 9 July 2009 given by the appellant was not affected by s61 of the Act but nor was it of any significance in the relationship between the appellant and the respondent. As the occupancy agreement stands in the opinion of the Appeal Panel the appellant is not entitled to require the respondent constructively or otherwise to open his stand on Wednesdays. Nor would it seem that the appellant in accordance with ordinary legal principles is entitled either to require the respondent to remove his stock each Sunday evening or to permit someone else to use his furniture etc, on Wednesdays. In relation to stock it appears that for a consideration paid by the respondent the terms of the occupancy agreement were varied and in relation to fixtures and fittings installed with the appellants approval they remain the property of the respondent and may not lawfully without his consent be used by anyone else. 41 As for the most part the relief sought by the respondent in the Tribunal assumed the relevance of s61 of the RLA it follows from what the Appeal Panel has said that in its opinion such assumption was unwarranted. In substance the appeal should be allowed although it seems that the respondent is entitled to maintain the declaration that the occupation agreement between the parties was a retail shop lease within the meaning of the RLA and that the appellants notice of 9 July 2009 was ineffective in so far as it sought to stipulate that the respondent was required to trade on Wednesdays from stands 234, 235 and 236 at Paddy's Market.
Grounds of appeal 19Sydney Market relies on the following grounds of appeal:
Submissions 20In support of the first point in ground 1, Sydney Market's written submissions were as follows (omitting footnotes): 14. Ground 1(b) will be considered first. The Appeal Panel found that there was no doubt the business conducted from stands 234, 235 and 236 was included in the list of businesses in Schedule 1 of the RLA. Although it is correct that the Occupation Agreement granted Wilson the right to use and occupy an area for the purpose of the business of selling gifts and stationary, this finding contained an error because the purpose was not for " gift shops " or " stationary shops ", which are the relevant terms in Schedule 1 of the RLA. This is because the Stands are not shops. 15. In Manly Council v. Malouf , supra, Handley JA at [7] referred to Schedule 1 of the RLA and noted that it contains a long list of businesses, the great majority of which include the word " shop ". After stating that the ordinary meaning of a defined word should be considered in construing the definition at [8]-[9], his Honour stated as follows: [I0] This principle applies with special force in the present case because the great majority of the businesses listed in Sch 1 incorporate the word shop which must be used in the Schedule in its ordinary and popular meaning. This is given in the Macquarie Dictionary as "a building where goods are sold retail ". Its meaning in the Shorter Oxford Dictionary is "a house or building where goods are made or prepared for sale and sold". [11] Although the relevant part of Sch 1 "restaurants, cafeterias, coffee lounges and other eating places" does not incorporate the word "shop" there is every reason for construing these words as having a similar connotation because of the context in which they appear. This used to be known as the noscitur a sociis rule of construction. 16. At [16], Handley JA referred to the " ordinary meaning of shop as a building where goods are sold ". 17. In Manly Council v. Malouf , Tobias JA stated at [87] and [88] that a " retail shop lease " applied to a shop which is partly in a building but his Honour did not determine the ambit of what is a " shop ". However, at [75], his Honour stated that a " shop " is " generally defined in a manner which connotes a built structure ". 18. At [76]-[79], Tobias JA discussed the decision of Simos J in Conoid Pty Ltd v. International Theme Park Ply Ltd (1999) 9 BPR 17,369 , where the subject matter of the agreements were wooden structures and a VW Kombi van, which rested on wheels with metal stands next to each wheel. The meaning of the term " shop " which was applied was " a building where goods are sold retail " and Simos J found both the wooden structures and the Kombi van were shops, because they were used as a permanent fixed structure with roof and walls. 19. In Greenwood v. Whelan [1967] 1 QB 396 , the English Court of Appeal held that a market stall was not a shop. The earlier decision of the English Court of Appeal in Summers v. Roberts [1944] KB 106 is to similar effect. In Hooper v. Kenshole (1877) 11 QBD 127 , Mellor J said that there must be some structure of a more or less permanent character to constitute a shop. 20. The authorities discussed above point to a " shop " being a built structure, which is fixed and has the character of permanence. Even the Kombi van in Conoid Pty Ltd v. International Theme Park Pty Ltd had these characteristics. 21. It is important that the subject matter of the Occupancy Agreement is accurately identified. It is the open floor space which constitutes Wilson's Stands, not the large building at Paddy's Markets which houses hundreds of Stands. As Handley JA said at [24] in Manly Council v. Malouf , the leased premises must themselves be a retail shop. Accordingly, it does not matter if the large building is premises or would be a retail shop if leased, because attention needs to be directed to the Stands the subject of the Occupancy Agreement. 22. Stands 234, 235 and 236 cannot be described as structures. They are open floor space. Although display cases, counters and signs can and have been put on the floor space the subject matter of the Occupancy Agreement is not changed by this. Even if events that occur after the Occupancy Agreement can transform an agreement into a " retail shop lease " under the RLA, the placing of these items in stands 234, 235 and 236 could not have this effect because they do not make the subject matter of the Occupancy Agreement a structure. 23. Moreover, there are two further aspects of the Occupancy Agreement which tell against Wilson's Stands being shops. First, the location of Wilson's stalls may be varied for any particular day without notice. Second, the Occupancy Agreement itself draws a distinction between " Stands" which are open floor space and " Stores " which are enclosed spaces of one or more storeys. This distinction broadly mirrors the distinction between a shop where retail trade occurs and an area where retail trade occurs, such as a stall in a market. 24. Because both a stand and a shop are intended to be used for retail trade, the fact that the Occupancy Agreement envisaged that Wilson's Stands would be used for retail trade does not make them shops. If the legislature had intended that places which are not shops where stationary or gifts are sold should fall within Schedule 1 of the RLA it would not have used the terms " gift shops " and " stationary shops " in the Schedule. 21In support of the second point in ground 1, the written submissions were as follows: 25. Ground 1(a) is in the alternative to Ground 1(b) because before the Occupation Agreement can be a " retail shop lease ", not only does it have to grant a right of occupation for the purpose of a " gift shop " or " stationary shop " but also it must grant a right of occupation over " premises ". 26. Wilson's Stands are not premises because they are open floor space. Moreover, the location of the Stands may be varied for any particular day without notice, so their location is not necessarily fixed. 27. In Manly Council v. Malouf , this Court found that vacant or open space is not premises under the RLA. The only difference between the subject of the licence in that case and the subject matter of the Occupancy Agreement in this case, is that stands 234, 235 and 236 had a roof over them. The Appeal Panel erred in distinguishing Manly Council v. Malouf on this basis. 28. As Handley JA stated at [16] & [17] that premises should be understood as meaning a building or similar structure with any associated land not including vacant or bare land. Wilson's Stands are defined as being " open floor space ", which is no different to vacant land. To the extent that Tobias JA's judgment in that case suggests that premises can be part of a building or inside a building, this should not be understood as identifying matters which are sufficient to render the subject matter of an agreement to occupy a " retail shop lease ". Alternatively, his Honour's comments were obiter dicta in the course of considering different facts and should not be applied to this case. 29. Moreover, under the RLA: (a) the lessor is required to provide the lessee with a disclosure statement at least 7 days before the " retail shop lease " is entered into: ss 11. The statement must include the address of the shop and the lettable area. These are variable under the Occupation Agreement; and (b) a " retail shop lease " has a minimum term of 5 years under s 16. Such a fixed period is inconsistent with the flexible nature of a market, as opposed to a shop. 22It was submitted then by Sydney Markets that the consequences stated in ground 2 followed. 23In oral submissions, Mr Ashhurst SC for Sydney Markets submitted that the Occupancy Agreement drew a clear distinction between licences of stores (which were in closed spaces) and licences of stands (which were not); and that cl 6.5(c) showed that the location of stands could be varied without notice for any day. This distinction was confirmed by cl 20.3, requiring licensees of stores but not of stalls to maintain public liability insurance. 24He also submitted that the intention that retail shop leases be leases of shops was confirmed by s 5 of the RL Act , which excluded certain types of shops from the operation of the Act; and also s 33 of the RL Act , which confirmed that retail shops within larger buildings must be part of such buildings (not merely designated spaces within them) (and see also ss 35 and 36). 25The primary submission in relation to declaration 3 was that, since the Occupancy Agreement was not a retail shop lease within the meaning of the RL Act , the ADT had no jurisdiction to make declaration 3; but Mr Ashhurst also submitted that the declaration did not take account of cl 6.4(b) and cl 25 of the Occupancy Agreement. 26At the conclusion of the hearing of the appeal, the Court gave directions for the Crown Solicitor to be notified and invited to make submissions on behalf of the Minister or Department administering the RL Act . Written submissions were provided by the State of New South Wales (Department of Trade and Investment, Regional Infrastructure and Services) as amicus curiae on 27 June 2011; and written submissions in reply were provided by Sydney Markets on 4 July 2011. 27The Department submitted that the appeal should be dismissed. It accepted that the Notice of Appeal raised a question of law. On the question of whether what was leased was used or proposed to be used for the business of a gift shop or stationery shop, the Department submitted that the question went to the nature of the business, not the particular nature of the premises; and that what was licensed to Mr Wilson was premises, being an identified part of a building, and having structures including counters, signs, display cabinets and cupboards, which provided security for unattended stock and differentiation of Mr Wilson's business from his neighbours. 28Sydney Markets submitted in response that the Department's contention would make the use of the word "shop" in Schedule 1 of the RL Act superfluous; that it is not sufficient that what is licensed is part of larger premises; and that it was not shown that the structures on Mr Wilson's area were in place at the time of the making of the occupancy agreement.
Decision 29One difficulty of this appeal is that there is little material concerning the physical setup of Mr Wilson's stand at the time of the Occupancy Agreement or at any later time. I note that in an interlocutory decision at first instance, after referring to a legal opinion given in 1996 by Gary Downes QC, the ADT said this: 27 That opinion was given before the decision of Simos J in Conoid Pty Ltd v International Theme Park Pty Ltd [1999] 9BPR17,369 whereby it was held that the focus of the Act is on the business being carried on, not on the nature of the premises. It has always been my view that any definable area being used for a business described in the Schedule of the Retail Leases Act will be premises for the purposes of that Act. See my reasons in Thai Star Video Limited v Walpole [2007] NSW ADT 193. Although I have been given no evidence in that regard, I think I can take judicial notice of my own less than annual (usually under protest) visits to the Haymarket site to say that the stallholders spaces are as well defined as those in Thai Star Video. 30In the final decision at first instance, the ADT said this: 23 Mr Carruthers [counsel for Sydney Markets] underscored this proposition by reference to the Occupancy Agreement which actually defines the premises not only by reference to the identification of the stall on the ground, but also by the days on which it trades. Thus stall 129 might be described as premises on Saturday and Sunday only, whilst stall 354 might be premises for Thursday, Friday, Saturday and Sunday. I accept that this may be a proper and valid distinction to be applied in respect of another trader, but it does not apply to the Applicant Mr Wilson. It was his evidence that one of the incentives in 1999 to trade on Thursdays (as well as Fridays, Saturdays and Sundays) was that, on payment of a small security fee, he could leave his stand complete, and fully stocked up. I accept that this right of occupancy was extended to every "four days" trader on payment of the security fee. Mr Wilson has display stands which, in effect, are cupboards which can be shut and locked, and I was shown photos of stalls configured into shops with metal security screens or blinds which fully enclosed them. It follows, I am satisfied, despite the unusual device of identifying the day as well as the area as "the premises", that Mr Wilson has an exclusive right of occupation for all seven days and this has been so since 1999. The fact that he pays "high" rent identified by reference to his trading days, and a low one for his occupancy on non-trading days seems to me to make no difference. He has a right of occupation for value for the whole week and so, in terms of the definition found in s3 of the Retail Leases Act , he has a Retail Shop Lease for that whole period. I do not accept that the same defined area can be a retail shop for four days and something different for the other three days, just because it does not trade on those days, the stock and equipment being in situ the whole seven days. 31What the AP said about this is limited to pars [11] and [21] of its judgment set out above. 32None of the photographs referred to in the final decision of the ADT are before this Court, nor is any other relevant evidence concerning the physical set-up of Mr Wilson's stand. It is to be noted that cl 6.9 of the Occupancy Agreement permits building work, including the installation of partitions, with the consent of Sydney Markets; and that this is not limited to the case of stores as opposed to stands . 33It appears that the point now taken about reference to "gift shops" and "stationery shops" in Schedule 1 of the RL Act was not taken below; so in order to allow this point to be taken on appeal, this Court should be satisfied that Mr Wilson's case would not have been conducted differently below, in a way that could have affected the result, had the point been taken below: Suttor v Gundowda Pty Limited (1950) 81 CLR 418. 34This problem links with another problem raised by this appeal. An appeal lies to this Court only on a question of law: Administrative Decisions Tribunal Act s 119(1). There are possible questions of law raised by it: (1) Do the words "premises", "gift shops" and "stationery shops" in the RL Act have their ordinary meaning, or some other and if so what meaning? (2) Are facts relevantly fully found by the ADT such that these facts do not engage the words used in the RL Act , whether such words are used in their ordinary sense or in some other sense: Hope v Bathurst City Council (1986) 7 NSWLR 669. 35I think that, in order to make out an error of law in this case, Sydney Markets would have to satisfy this Court that either: (1) the AP erred in applying the ordinary meaning of the relevant words, when the words had some other meaning, or else in applying some other meaning which was not the correct meaning; or (2) the facts relevantly fully found do not engage the words as used in the RL Act . 36The most relevant finding of the AP is the finding in [21] that: "The erection by the respondent in, the areas allotted to him, of display cases, counters and signage rendered the space indistinguishable from a retail shop, as that expression is commonly understood". In my opinion, it is very difficult for this Court to say that the finding involved an error of law, of either of the types identified above, particularly when this Court does not have evidence of what these display cases, counters and signage were actually like. 37It was contended for Sydney Markets that the case of Malouf shows that there was an error of law. That case concerned a licence by Manly Council to a restaurant proprietor to use public space adjoining the restaurant (some on the footpath of a public street and the balance on a public plaza which was not a public street); and the Court of Appeal held that "premises" in the definition of "retail shop" meant a building or similar structure, not including vacant or bare land. 38Handley JA (with whom Mason P agreed) said at [6] that the question whether a lease or licence of a vacant space is within the RL Act is a question of law; and said at [16]-[17] that the word "premises" takes its colour from the fact that premises are to be leased for the purpose of being used as a retail shop. Handley JA concluded: [24] The fair meaning of this language is that the leased premises must themselves be a retail shop, but even if this were thought to be debatable the subject matter of the lease must be premises and in this Act that expression does not include vacant or bare land. In my judgment this deed was not a retail shop lease merely because the licensed area was to be used in conjunction with a retail shop as defined. 39Tobias JA (with whom Mason P also agreed) said this at [88]: [88] With some hesitation, I have come to the view that the licensed areas are not "premises" within the meaning of the definition of "retail shop" in s 3 of the RL Act. As I have said, the position would have been different had the deed extended to the restaurant as well as the licensed areas. It was uncontested that a "shop" in ordinary parlance is referrable to the sale of goods within the whole or part of a building. There are sufficient indications in the RL Act and, in particular, in the provisions which I have identified above and in the nature of the retail businesses listed in Sch 1, which provide a context which requires that the "premises" referred to in the definition of "retail shop" and "retail shop lease" be construed as confined to a shop being located within a building or similar structure. 40Thus the Court of Appeal supported the view that "premises" in the RL Act has a meaning which takes colour from its context in the RL Act ; and that this meaning is confined to a shop partly or wholly within a building or similar structure. 41The case is clear authority for the proposition that "premises" does not mean vacant land; and that "premises" must be a building or part of a building or similar structure. It is less clear authority that "premises" must be a shop, in the ordinary meaning of that word; and indeed, in my opinion it is plain from par (b) of the definition of " retail shop " and some items in the list in Schedule 1 (for example, "engravers" and "nail bars") that premises need not necessarily be a shop in the sense of an enclosed structure. It is clear in my opinion that a counter in a shopping mall (that is, in a retail shopping centre) used for the business of an engraver or a nail bar would be a retail shop. 42In my opinion, a finding that the area within Paddy's Market licensed to Mr Wilson constituted "premises" is not inconsistent with Malouf , in that it is an area within a building; and in the absence of evidence concerning the physical set-up of this area, I find I cannot be satisfied that this finding was an error of law. 43The English Court of Appeal decision of Greenwood v Whelan [1967] 1 QB 396, relied on by Sydney Markets, does not determine the matter. The stall in that case was in an open area outside a market hall, and consisted of a tubular steel framework with a permanent canvass awning and a bolted on wooden bench counter, which was portable (it could be lifted by two strong men), and was not sunk into or bolted to the ground (as it could have been). Those features were relied on by the court in its decision that this stall was not a shop. 44This brings me back to the question not agitated below, namely whether Mr Wilson's business, involving the selling of gifts and stationery, was not within the definition, because it was not the business of either gift shop or stationer's shop. 45A finding of error of law here would require a finding that use of the word "shops" in Schedule 1 is meant strictly to confine the type of business falling within the schedule, so that hairdressers or engravers would fall within the Schedule, but key-cutters and tobacconists would not unless they happened to be operating from a shop. That is a possible view, and whether or not it was correct would raise a question of law; although there is considerable force in the Department's contention that the matter in issue is the nature of the business and not the nature of the premises. However, even assuming this question in Sydney Markets' favour, there would still be the issue as to whether the view of the AP that Mr Wilson's space was indistinguishable from a retail shop, as that expression is commonly understood, was an error of law (that it might be an error of fact could not be sufficient). 46In all the circumstances, I am not satisfied that an error of law is shown. If the area was in fact "indistinguishable from a retail shop as that expression is commonly understood", I think Mr Wilson's business would plainly fall within Schedule 1 of the RL Act . If it was not, then it seems to me that the finding that it was would be an error of fact; and in any event, without knowing exactly what was there, I could not be confident that this finding was even an error of fact. 47For those reasons, I would not allow the appeal against declaration (a); and that would remove the only basis on which declaration 3 has been challenged in the appeal. 48There was discussion during oral argument whether declaration 3 suffered from other defects. In the absence of Mr Wilson, I will not consider upholding an appeal against declaration 3 on grounds not raised in the notice of appeal or the written submissions, and I will not make a definitive comment on its effect. However, I would advance the following as possible views as to the effect of declaration 3: (1) Declaration 3 in its terms only goes to the effect of the notice of 9 July 2009. (2) Declaration 3 does not say that Sydney Markets could not alter the days of trading by a notice properly given under cl 25 of the Occupancy Agreement. (3) Declaration 3 does not construe the agreement giving the approval referred to in par 12 of the AP's judgment, engaging with cl 6.4(b) of the Occupancy Agreement, as to its extent and duration (indeed, there seems to be no material as to the content of that agreement except as set out in that par 12).
Conclusion 49For those reasons, in my opinion the following orders should be made: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs, assessed on a submitting basis. 50BASTEN JA : The respondent, Mr Wilson, operates a stall at Sydney's Paddy's Market, at Haymarket. The question before this Court is whether it was open, as a matter of law, to the Administrative Decisions Tribunal to conclude that the occupancy agreement under which the respondent operated the stall was a "retail shop lease" for the purposes of the Retail Leases Act 1994 (NSW). The Administrative Decisions Tribunal held that it was: Wilson v Sydney Markets Ltd [2009] NSWADT 256 and Wilson v Sydney Markets Ltd (No 2) [2009] NSWADT 281 (Mr R Fox, Judicial Member). There was a further question as to whether the premises Mr Wilson operated as a shop formed part of a "retail shopping centre" for the purposes of that Act, a point which may not have been fully argued before the single member, who made no relevant findings of fact: [2009] NSWADT 256 at [28]. 51Sydney Markets Ltd ("the appellant") challenged these decisions before an Appeal Panel of the Tribunal. The Appeal Panel (Dep Presidents Patten and Higgins, and Member Weule) upheld the decision that Mr Wilson had a "retail shop lease": Sydney Markets Ltd v Wilson [2010] NSWADTAP 45. It reversed the decision of the single member with respect to the question of whether the lease was within a retail shopping centre. 52The substantive issue underlying these proceedings was whether the appellant could introduce Wednesday trading at Paddy's Market without the approval of a majority of the retail shops in the Market. That relief was premised on the contention that s 61 of the Retail Leases Act operated with respect to Paddy's Markets. The orders made by the Appeal Panel, set out at [3] above, did not in terms deal with that substantive relief, but included a declaration (order 3) with respect to a notice given to Mr Wilson in relation to the stands which were the subject of his occupancy agreement. That declaration was based on the absence from his occupancy agreement of any power on the part of the appellant to change the days of opening prescribed in schedule 2 to the agreement: Appeal Panel, [29]-[30]. 53The present appeal was brought from the decision of the Appeal Panel, pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW). That provision permits an appeal from any decision of the Appeal Panel "on a question of law". Although the appeal to this Court sought to have order 3 set aside, no ground of challenge was identified in the notice of appeal. Because the respondent did not appear before this Court, Sydney Markets should not, as a matter of procedural fairness, be allowed to rely upon contentions of which no notice had been given to Mr Wilson. If forewarned as to the separate attack on order 3, Mr Wilson might have raised a question as to the basis on which, dealing with a question of law, the Appeal Panel reversed the decision of the single member. In these circumstances it would be inappropriate for this Court to address the basis, or operation, of declaration 3.
Statutory scheme 54The jurisdiction of the Tribunal was invoked by Mr Wilson in respect of a "retail tenancy claim" as defined in s 70 of the Retail Leases Act . A claim for a declaration of rights, obligations and liabilities of the parties under a lease satisfies that definition: s 70(a)(ix). A retail tenancy claim may be lodged by a party to a retail shop lease: s 71. These terms are defined in s 3 as follows: " 3 Definitions In this Act: ... 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 possession ...." 55The term "retail shop" is defined as premises used to carry on one or more of the businesses listed in Schedule 1 of the Retail Leases Act : see at [6] above. It appears that the businesses carried on by Mr Wilson included the sale of gifts, jewellery and stationery: "Gift shops", "Jewellery shops" and "Stationery shops" are included in the businesses listed in Schedule 1. 56Most, but not all, of the business listed in Schedule 1 are described as "shops". The definition also includes ""Boot and shoe repairers", "Dry cleaners, collection centres for dry cleaning or laundry services", "Engravers", "Flower shops or allied goods and services", "Nail bars", "... eating places" and "Snack bars", among others. The significance of these inclusions was in part that they indicated that at least some of the relevant businesses need not be conducted in a "shop". On the other hand, the business undertaken by Mr Wilson appears to have been the sale of goods identified in company with the word "shop". As noted above, the appellant (belatedly) relied upon the latter fact to argue that Mr Wilson's stall was not a "shop" and therefore did not fall within Schedule 1. More widely, the argument focused on whether a stall could constitute "premises", being the term used in the definitions of retail shop and retail shop lease. If Mr Wilson was not a party to a retail shop lease, he was not entitled to invoke the jurisdiction of the Tribunal.
Jurisdiction on appeal 57The appellant's case turned primarily, then, on the meaning of the term "premises" in the Retail Leases Act . That may involve a question of law, if it is not used in its ordinary sense, whatever that may be. It is not a defined term. However, it is used in relation to words which are defined. Whatever its ordinary meaning in common parlance, it is necessary to consider whether its statutory context affects that meaning. 58In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 396, the High Court cast doubt upon the distinction drawn by Isaacs J in Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60 at 78 between the meaning of words and the construction of the words as used in a particular context, describing the distinction as "artificial, if not illusory". The judgment in Agfa-Gevaert continued: "The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question." 59The intent of this passage was not to focus on the importance of giving meaning to individual words, but on the fallacy in supposing that the meaning of individual words can be usefully determined without reference to their context: referring to R v Brown [1996] 1 AC 543 at 561 (Lord Hoffmann). Accepting that approach, it is open to the appellant in the present matter to challenge the finding of the Appeal Panel on the basis that it adopted an incorrect construction of the statutory provision, including the operation of the term "premises".
Meaning of "premises" 60Counsel for the appellant submitted that the occupancy agreement entered into by a stallholder did not constitute a retail shop lease because there was no right conferred to occupy "premises". Rather, the right was limited to occupation of an area of floor space within the building known as Paddy's Markets. They cited authority for the proposition that an area of a footpath did not constitute "premises" for the purposes of the Retail Leases Act : Manly Council v Malouf [2004] NSWCA 299; 61 NSWLR 394. Although the appellant accepted that the common expectation of the parties to such an occupancy agreement was that the occupier would install such structures as partitioning, display cases, and a counter, for the purpose of carrying on the business of selling goods, such arrangements utilised equipment provided by the stallholder and not by Sydney Markets pursuant to the occupancy agreement. 61Malouf would appear to be distinguishable on two related bases. First, unlike the outdoor eating areas in question in Malouf , the stalls in Paddy's Markets are within a building. Secondly, to the extent that the land in Malouf had been the subject of improvement, the improvements were for the purpose of public thoroughfare, whether over a public road or a public place vested in the Council. When not being used as outdoor eating areas, they reverted to their primary purpose. In the present case, the floor space occupied by the stall was constructed for the purpose of selling goods and services within a building and not, as it would appear from the findings of the Tribunal, for any other purpose. 62In Turner v York Motors Pty Ltd [1951] HCA 52; 85 CLR 55, two members of the High Court, in remarks unnecessary for the determination of the proceedings, considered whether "prescribed premises" within Part III of the Landlord and Tenant (Amendment) Act 1948 (NSW) included what was described as "bare land", used by the occupant under a lease to store equipment and as a junk yard. The tenant introduced caravans and connected water and electricity, but the rent was not attributable to those structures: at 82. Williams J stated at 83: "The word 'premises' is used in a popular sense and in this sense has a wide meaning. It is wide enough to include bare land. Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole. If the word 'premises' in the present definition is intended to include bare land that part of the definition which refers to any land leased with any premises would be otiose." 63Dixon J agreed that, in the statute, the word "premises" did not include bare land without buildings; he added that if the land were let upon terms which permitted or required the tenant to erect buildings which were not removable by the tenant, the land and buildings would form premises, but if removable, would not: at 75-76. The interpretation of that legislation was much influenced by the fact that it followed earlier Commonwealth legislation in similar terms, which had been the subject of judicial determination to similar effect. The approach adopted by Williams J should be applied in the context of the present legislation. 64In Bonnington & Co Pty Ltd v Lynch [1952] HCA 46; 86 CLR 259, the Court returned to the question of the operation of the Landlord and Tenant (Amendment) Act , noting that to be a lessor of prescribed premises, the "prescribed premises" must form the subject of the demise: at 264. The judgment continued: "That is to say the subject of the demise must be land with a sufficient structure upon it to fulfil the definition of 'prescribed premises.' This may result from the land being in that condition at the time when the lease is made. It may also result from its being put in that condition during the currency of the lease pursuant to a subsequent agreement between the lessor and the lessee amounting to a variation of the lease. But if a tenant, without the consent of his landlord, places a structure upon the land, that is another matter." 65The term "premises" when used in connection with a business, has no narrow meaning in common parlance. It refers to the whole of an area controlled by the operator of the business. A cafeteria may sell food to be eaten on or off the premises. If the business provides chairs and tables both inside a building and outside in a public area, buying food to be consumed off the premises, would arguably not mean food to be consumed while sitting at tables and chairs supplied by the business, even though outside its building. Similarly, a power to remove patrons from the premises might well permit removal from the whole of the area controlled by the business, whether inside a building or not. As between the operator of the business and the customer, no issue would arise as to the nature or terms of the occupation licence under which the business operated. 66On the other hand, it is possible that the term "premises" could have a different meaning as between the occupier and the owner of land. However, the circumstances of the present case suggest the contrary. The term "premises" is used in the standard occupancy agreement adopted by the appellant to mean, in relation to a stand, the open floor space or other space occupied by the licensee: cl 1.1, definitions of "premises", "trading premises" and "stand". Even without the definitions, the substantive provisions of the agreement would naturally lead to such an understanding of the term. 67The use of the word "premises" in the Retail Leases Act should not be given a restrictive meaning, which would necessarily exclude areas within a building constructed for the purposes of retail selling. The fact that the floor space is within a building is, in this context, significant, as is the obligation on the occupier of the space to operate during specified trading hours for the purpose of selling "authorised goods", being goods approved for sale by the applicant: agreement, cl 6.6 and definition of "authorised goods". It is further clear from the provisions of the agreement, that the appellant supplies electricity to the stalls (cl 6.11(b)) and permits the occupiers, with approval, to install walls, ceilings, partitions, floors and equipment for the purposes of their business: cl 6.9. Although the evidence in this respect is limited, it is apparent that Mr Wilson did install such structures, with, it may be inferred, the consent of the appellant. 68It was open to the Tribunal to conclude that the occupancy agreement permitted such structures. It would not conform to commercial reality to suppose that either party anticipated that the business would operate from a bare floor space. Accordingly, to the extent that such structures were the consequence of entering into the occupancy agreement, with the subsequent approval of the applicant, they would satisfy that aspect of the approach adopted in Bonnington . Because the occupancy agreement need not have the characteristics of a lease of land (with exclusive possession) and to the extent that the ordinary meaning of the term "premises" requires some form of structure on the specific area of land the subject of the agreement, there is no reason to import some element of the law relating to fixtures which become part of the freehold title.
Meaning of "shop" 69The appellant also challenged the finding of the Appeal Panel on the basis that Mr Wilson's business did not fall within any category identified in Schedule 1 to the Retail Leases Act . There were several difficulties with this argument. First, this Court was not taken to any finding of fact as to the nature of the business. All that appears from the reasons of the Appeal Panel was to be found in the following passage at [18]: "There is no doubt that the business conducted from his stands in Paddy's market by the respondent (stationery gifts etc) was included in the list of businesses prescribed by Schedule 1 to the [ Retail Leases Act ]. The argument focused on whether or not, the respondent's rights of occupancy, related to 'premises' ...." 70The argument sought to be presented in this Court was that, assuming the businesses included those of stationer and gift seller, those items appeared in the list in Schedule 1 only as "stationery shops" and "gift shops". When asked whether the matter had been raised in this way below, counsel for the appellant said, "Not directly. Indirectly insofar as the reference to the word premises": Tcpt, 30/05/11, p 2(38). 71When further pressed with the problem that there were no relevant findings of fact, counsel stated that, "We rely on the actual terms of the occupancy agreement which distinguishes stalls from those areas which are enclosed": p 3(13). 72The appellant faced two further problems with respect to this argument. First, to the extent that it wished to contend that a shop was a "built structure" there was no dispute that Mr Wilson's stand was within a built structure, namely Paddy's Markets. If it wished to contend that the area of the stand itself needed to be a built structure, with a "more or less permanent character", relying on Hooper v Kenshole (1877) 2 QBD 127, there would need to have been findings of fact, made by the single member of the Tribunal, with respect to Mr Wilson's stand. There was none. Accordingly, the argument ultimately rested on the proposition, already discussed, that the lease was simply a lease of floor space and any structure on that floor space belonged to the occupant. This argument has already been addressed in relation to the concept of "premises". 73The final difficulty is that the term "shop", as used in the Schedule, does not appear in any particular statutory context: it is simply a descriptor used in a lengthy list of businesses. In Manly Council v Malouf , the business in question was one not described as a "shop" in the list in Schedule 1. One issue for the Court was whether, despite that circumstance, it needed to be a business conducted from a building, as might have been implied had the word "shop" been used. Handley JA referred to the fact that the operation of a defined term may turn upon a specific word used in the definition and having an ordinary meaning: at [9]. His Honour continued at [10]: "This principle applies with special force in the present case because the great majority of the businesses listed in Sch 1 incorporate the word shop which must be used in the Schedule in its ordinary and popular meaning." 74Tobias JA also referred to the meaning of the word shop "in ordinary parlance": at [88]. (Mason P agreed with both judgments.) 75In Malouf , Handley JA identified the question whether a lease or licence of vacant space fell within the Retail Leases Act as a question of law: at [6]. That may be accepted: it does not follow, however, that every issue which arises in determining that question is itself a question of law which can be reviewed as such, either by the Appeal Panel or by this Court. The meaning of the word "shop", as used in ordinary parlance, is not a question of law. It would only be possible to raise a question of law in this context if it could be said that the businesses operated by Mr Wilson necessarily fell outside the list of businesses identified in Schedule 1. The appellant did not present an argument in these terms. Its submission was that the use of the term "shop" fortified its submissions in respect of the term "premises". Those submissions, and the reliance upon Malouf , have already been addressed.
Conclusions 76First, to the extent that the definition of a "retail shop lease" in the Retail Leases Act requires the occupation of "premises", which cannot be merely vacant land, the definition is capable of being satisfied in the present case by reference to an area of land devoted to the purpose of retail selling and located within a building. 77Secondly, to the extent that the floor space area the subject of the occupancy agreement needed to be enclosed by some form of structure, such as partitioning, the erection of such structures in accordance either with the terms of the occupancy agreement or with the consent of the applicant, the facts found by the Tribunal were sufficient to satisfy that requirement. 78In relation to the second requirement, the identification in Schedule 1 to the Retail Leases Act of businesses as boot and shore repairers, engravers and snack and nail bars, suggest that retail shop businesses are not limited to business operating from an enclosed space separated by permanent structures from other parts of the building. 79Although the second requirement is satisfied, satisfaction of the first requirement is sufficient to bring the occupancy agreement within the definition of a retail shop lease for the purposes of the Retail Leases Act . 80Because the agreement constituted a retail shop lease for the purposes of the Retail Leases Act , the Tribunal had jurisdiction to grant relief in respect of a retail tenancy claim brought by Mr Wilson. 81The appeal should be dismissed. The appellant should pay the respondent's costs, assessed on a submitting basis. 82TOBIAS AJA: I agree with the orders proposed by Hodgson JA and generally with his reasons. However, I need to add a short explanatory note to [41] of those reasons. For that purpose I shall adopt his Honour's abbreviations. 83At [39] his Honour records [88] of my reasons in Malouf . At [41], his Honour agrees that Malouf establishes that " premises " does not mean vacant land and that it must be a building or part of a building or similar structure. However, his Honour considers it less clear that " premises " must be a shop in the sense of an enclosed structure. 84The problem to which his Honour adverts is sourced in the last sentence of [88] of my reasons in Malouf , where I said that " premises " in the RL Act is confined to " a shop being located within a building or similar structure ". 85I think the problem so identified arises from my infelicitous use of the word " shop ". I intended by my use of that word where last referred to in [88] to refer to a " shop " as defined in ordinary parlance, namely, as referrable to the sale of goods within the whole or part of a building. As such, it refers to an area or space located generally within, or comprising the whole or part of, a building or similar structure used for the purposes of the retail sale of goods. 86In other words, I intended the reference to " shop " to refer, as the Department submitted in the present case, to the nature of the use of the licensed space rather than to its physical characteristics, provided only that that space is located partly or wholly within a building or similar structure. 87Accordingly, the area or space the subject of Mr Wilson's Occupation Agreement constituted " premises " within the meaning of the RL Act and the AP was correct to so find.
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: 26 July 2011
Sydney Markets Ltd
Wilson
(1986) 7 NSWLR 669
(2004) 61 NSWLR 394
(1950) 81 CLR 418