Sarah Lin v State Rail Authority of NSW [2006] FCAFC 42

FEDERAL COURT OF AUSTRALIA

Sarah Lin v State Rail Authority of NSW [2006] FCAFC 42

CONTRACTS – whether offer and acceptance of lease – no special circumstances or principles arising for consideration

Trade Practices Act 1974 (Cth) ss 51AC and 82 Retail Leases Act 1994 (NSW) ss 6(1)(a) 34 and 62

Lin v State Rail Authority of New South Wales (2005) FCA 1137 SARAH LIN v STATE RAIL AUTHORITY OF NSW NSD 1503 OF 2005 HEEREY, DOWSETT and CONTI JJ 22 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1503 OF 2005

BETWEEN: SARAH LIN

APPELLANT

AND: STATE RAIL AUTHORITY OF NSW

RESPONDENT

JUDGE: HEEREY, DOWSETT and CONTI JJ

DATE OF ORDER: 22 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1503 OF 2005

BETWEEN: SARAH LIN

APPELLANT

AND: STATE RAIL AUTHORITY OF NSW

RESPONDENT

JUDGE: HEEREY, DOWSETT and CONTI JJ

DATE: 22 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

Background to the proceedings and to the present Full Court appeal 1 The appellant ('Ms Lin') formerly occupied premises of the State Rail Authority of New South Wales ('State Rail') as lessee, in which she apparently conducted a kiosk, bookstall and small supermarket. Her occupation commenced on the basis of a monthly tenancy evidenced by a written instrument signed on 10 October 1998, and which continued for some years. Ms Lin's occupation of the premises was terminated on 9 April 2003 for non-payment of rent. That termination occurred in the context of her having withheld from acceptance of an offer of State Rail to her for a new tenure of those premises, being an offer made earlier in June 2002. 2 That offer of State Rail was contained in a letter from real estate agents acting on behalf of State Rail, which included the following qualification: 'Please note that this constitutes an offer to lease only, and is subject to our client's final acceptance and approval. No contractual relationship shall be deemed to have been created as a result of this offer and no lease will be deemed to be entered into until such time as our client's final acceptance is received, all lease documentation has been signed, and all moneys due and payable up to the date of signing of the lease have been paid.' The offer was never accepted by Ms Lin. However Ms Lin adopted the position that the State Rail letter so operated as to bring about the situation whereby a new or renewed tenure of the premises had been put in place, or the existing tenure somehow extended commensurately, for the term or period of time the subject of the offer. 3 The appellant commenced proceedings in this Court on 1 October 2003 against State Rail for relief by way of an application purportedly based upon ss 51AC and 82 of the Trade Practices Act 1974 (Cth) ('TP Act') and ss 34 and 62 of the Retail Leases Act 1994 (NSW) ('RL Act') by reason of 'unreasonable attitude/conduct towards an outsider' and 'cheating and bullying behaviour towards the bookstall'. The basis of the claims thus made was particularised in the application filed by the appellant literally as follows: '(1) SRA knew PFSS [Peter's Four Square Supermarket] has breached its lease for 13 years but never imposed any punishment while closed the bookstall's shop for a few month's rent arrears. SRA knew the full content of clause 23 of memorandum S078957 but purposefully kept silence and never condemned PFSS' illegitimacy in selling cigarettes, small chocolate bars and small bottle of drinks etc. At one stage SRA even openly declared it would not implement the lease with PFSS and refused to take the bookstall's financial situation and my personal suffering into consideration. Although SRA and its solicitor each issued an "one month notice" dated on 18 Dec 2002 and 19 Dec 1002 to Wasada Pty Ltd but purposefully discarded it. (2) SRA knew North Sydney Newsagency has illegally sold its newspapers and magazines through PFSS for 13 years and knew its free ride caused the bookstall's enormous economic loss and created constant conflict between shops and confusion in the community. SRA did not accept the bookstall's repeated plea to oust the newsagency, in contrast SRA closed the bookstall's shop. (3) SRA purposefully delayed the transfer of the dry cleaners shop and hold the bookstall at the geographically disadvantaged location. It resulted in the bookstall's enormous economic loss and its exposure to PFSS' attack.' 4 Upon that footing, the appellant asserted that 'SRA's unreasonable and unlawful conduct resulted in the bookstall's enormous economic loss and put an individual through an unseen torture in a civilised country', and further that '[a]ccording to Trade Practices Act 1974 s 82 SRA is subject to compensation'. Some seven breaches of the RL Act were particularised in the application, and compensation of $1 million dollars was claimed. Moreover the following further orders were sought: '(1) SRA pay the compensation immediately. (2) North Sydney Newsagency withdraw from railway immediately. (3) PFSS operates within its lease. (4) the bookstall return to its original shop – inside the ticket office building that has been vacant since May 2002.' 5 A judge of this Court (Wilcox J) granted the SRA application to strike‑out the application on 13 November 2003. In relation to the first claim, based on the TP Act, his Honour held that the same should fail for the reason that s 51AC of the TP Act did not bind the SRA, irrespective of whether SRA carries on a business. In relation to the second claim, based on the RL Act, his Honour found that this Court had no jurisdiction to entertain the same, '… at least in the absence of an arguably proper claim in federal jurisdiction'. The appellant lodged an appeal against the decision of Wilcox J.