Malouf v Manly Council (No 2) [2002] NSWADT 200

Set aside by Appeal : Set Aside by Appeal Panel on 16/04/2003. (confirmed by Court of Appeal on 2/9/2004)

CITATION: Malouf v Manly Council (No 2) [2002] NSWADT 200 DIVISION: Retail Leases Division APPLICANT PARTIES: Michael Malouf RESPONDENT Manly Council FILE NUMBER: 015065 HEARING DATES: 24/05/02 SUBMISSIONS CLOSED: 05/24/2002 DATE OF DECISION: 10/14/2002

BEFORE: Montgomery S - Judicial Member APPLICATION: Jurisdiction MATTER FOR DECISION: Preliminary matter A New Tax System (Goods and Services Tax) Act 1999 (Cth) Interpretation Act 1987 LEGISLATION CITED : Landlord and Tenant (Amendment) Act 1949 Local Government Act 1993 Retail Leases Act 1994 Roads Act 1993 Turner v York Motors [1951] 85 CLR 55 Collector of Customs v Perkins Shipping Pty Ltd [1989] 24 FCR 520 CASES CITED: Botts v Grimme [2001] NSWADT 14 Canwan Coals Pty Ltd v Federal Commissioner Taxation [1974] 4 ALR 223 Kerridge Odeon Corporation v Auckland City Council [1966] NZLR 266 Botts v Grimme [2002] NSWADTAP 15 APPLICANT REPRESENTATION: G Newport, barrister RESPONDENT R Bellamy, barrister ORDERS: 1. An agreement may be subject to the Retail Leases Act 1994 notwithstanding the fact that it was entered subject to section 125 of the Roads Act 1993.; 2. The outdoor eating area which is the subject of this dispute is "premises" within the meaning of the definition of a retail shop for the purposes of the Retail Leases Act 1994. Those premises are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 of the Retail Leases Act 1994.; 3. The matter is to be relisted for a Directions Hearing to determine its future conduct.