Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Lytton v North Bondi RSL Club (RLD) [2012] NSWADTAP 8 Hearing dates: 9 September 2011 Decision date: 22 February 2012 Jurisdiction: Appeal Panel - Internal Before: Deputy President David Patten Judicial Member Robbert Fox Non Judicial Member Jane Schwager Decision: 1. Appeal dismissed. 2. Orders made by the Tribunal on 29 April 2011 confirmed. 3. Appellant to pay Respondent's costs as agreed or assessed. Catchwords: Retail lease - license agreement - right of access - whether constitutes right to occupy Legislation Cited: Retail Leases Act Administrative Decisions Tribunal Act Cases Cited: Trembelas v Cypress Community of NSW [unreported 2 June 1998] Category: Principal judgment Parties: North Bondi RSL Club Limited- Appellant Sean Lytton - Respondent Representation: Mr H Stowe - Appellant Mr D H Murr SC - Respondent David Beattie Pty Limited - Appellant Carroll & O'Dea Lawyers - Respondent File Number(s): 119021 Decision under appeal Citation: [2011] NSW ADT 86 Date of Decision: 2011-04-20 00:00:00 Before: Retail Leases Division File Number(s): 105171 DECISION: 1This is an appeal against the decision of the Tribunal on 29 April 2011 (Lytton v North Bondi RSL Club Ltd [2011] NSW ADT 86). The orders made by the Tribunal were: 1. The deed of licence between the Applicant and the Respondent dated 1 November 2009 is declared to be for a term commencing 1 November 2009 and expiring 7 August 2014. 2. The Respondent is not itself, or by its officers or agents, to interfere with the occupation by the Applicant of that part of the premises at North Bondi RSL Club known as the kitchen and servery, or with access to North Bondi RSL Club by the Applicant or its employees or agents or patrons for the purpose of conduct of the Applicant's business. 3. During the term as set out in Order 1 above, the Respondent is not to take any steps by itself, its officers and/or agents to remove or destroy any fixtures and/or fittings in the kitchen and servery area. 4. The Respondent is to pay to the Applicant the sum of $9,470.72 in reimbursement of payment by the Applicant toward the capital cost of the garbage compound at North Bondi RSL Club. 2The Notice of Appeal indicated that the appeal was made on a question of law but in addition sought leave to extend the appeal to the merits (s.113 Administrative Decisions Tribunal Act (ADT Act)). 3The questions of law were identified as: 1. The first question of law relates to the adequacy of reasoning. The appellant contends that the Tribunal erred in law with respect to its conclusion that "there is no right of occupation of the club auditorium or other areas given to the Applicant", by failing to give adequate reasons for that conclusion: [22] 2. The second question of law relates to the proper construction of the expression "right of occupation" in the expression "agreement under which a person grants or agrees to grant to another person a right of occupation", which comprises part of the definition of "retail shop lease" in section 3 of the Retail Leases Act 1994 (NSW). Further or in the alternative to the first ground of appeal, the Appellant contends that the Tribunal erred in law with respect to its conclusion that "there is no right of occupation of the club auditorium or other areas given to the Applicant" by: (a) holding (by implication) that the nature and scope of the licensee's "right of occupation" of premises is not determined exclusively by reference to the terms of agreement between the parties, but may be circumscribed by the nature and scope of actual occupation of the premises by the licensee (in the absence of any express or implied agreement that the "right of occupation" be correspondingly circumscribed): Decision, [21]-[22]; (b) failing to hold that the nature and scope of the licensee's "right of occupation" is determined exclusively by reference to the terms of agreement between the parties. 3. The third question of law relates to the legal basis for the inference of agreement. Further or in the alternative to first and second ground of appeal, the Appellant contends that the Tribunal erred in law with respect to its conclusion that "there is no right of occupation of the club auditorium or other areas given to the Applicant" by: (a) holding (by implication) that agreement with respect to the nature and scope of the licensee's "right of occupation" of premises can be inferred merely from the nature and scope of actual occupation of the premises (in the absence of the parties' conduct additionally evincing a mutual intention to contractually define and limit the "right of occupation" by reference to the nature and scope of actual occupation): [21], [22]; (b)failing to hold that agreement with respect to the nature and scope of a "right of occupation" can only be inferred from conduct which evinces a mutual intention to contractually define and limit the "right of occupation". 4 Early in the appeal hearing we decided to extend the appeal to the merits. We did so on the basis that there appeared to be no factual matter in dispute between the parties and that therefore we are in as good a position as the Tribunal at first instance to decide the matter on the merits. As a consequence we do not need to give undue attention to the first ground of appeal which asserts that the Tribunal failed to give adequate reasons for its decision. 5 It was not in issue that the appellant occupied premises situated at 118-120 Ramsgate Avenue, North Bondi as a club which provided various services to its members and their guests including the provision of refreshments and entertainment. 6 The substantial matter at issue in the proceedings was whether the parties entered into a retail shop lease within s.3 of the Retail Leases Act (the Act). There is no doubt that the parties entered into a written agreement, the nature and relevant terms of which were described by the Tribunal below as follows: The relevant written agreement between the parties is a document entitled "Deed of Licence" dated 1 November 2009 (the Licence Agreement) The Licence Agreement is expressed to be for a period of one year from 1 November 2009, unless terminated earlier. The Licence Agreement provides for payment to the Respondent of a weekly amount of $1,600 plus GST by the Applicant. Clause 5 of the Licence Agreement requires the Applicant to provide a "Food Service" from the kitchen which is located within the club premises. The Licence Agreement defines the term "Food Service" to mean "the provision of regular and reasonably priced meals to ... its members"; there seems to be no issue between the parties that provision of meals was also contemplated by the parties to include guests at the club premises. In addition to payment of the weekly "licence fee", clause 4 of the Licence Agreement requires the Applicant to also pay outgoings, which are expressed to include operating costs of providing the Food Service, relevant electricity gas and water usage, half the cost of cleaning of windows of the club premises, one half of the Respondent's annual advertising expenses up to a maximum of $10,000 and contribution of one quarter of the capital cost of the garbage compound built at the Respondent's premises. There are also a number of specific obligations set out for the Applicant within the Licence Agreement, including minimum levels of lunch and dinner services and opening hours at various times. 7The nature and extent of the Applicant's agreed use of the overall club premises is set out within the Licence Agreement as follows: "7.1 The Club shall ensure that the Operator has exclusive use of the Kitchen and access to the restaurant and other areas of the Club for the purpose of fulfilling the Operator's obligations under this Deed. 7.2 The Club shall permit patrons of the restaurant to sit anywhere within the Club (except for the gaming room) and shall allow the provision of the Food Service throughout the entire Club Premises and shall arrange appropriate signage to that effect. 7.3 The club shall not permit any other caterers to supply food and non-alcohol beverages at the Club Premises without the prior written approval of the Operator." 8Section 3 of the Act, inter alia, defines a number of expressions relevant to this case: "3 Definitions In this Act: ................. "lessee" means the person who has the right to occupy a retail shop under a retail shop lease, and includes a sublessee and a lessee's or sublessee's heirs, executors, administrators and assigns. "lessor" means the person who grants or proposes to grant the right to occupy a retail shop under a retail shop lease, and includes a sublessor and a lessor's or sublessor's heirs, executors, administrators and assigns. "lettable area" of a retail shop does not include: (a) car parking spaces, or (b) storage areas not attached to the retail shop premises where the business of the shop is or is to be carried on. "listed business" means a business prescribed for the purposes of paragraph (a) of the definition of "retail shop" (including a business for the time being specified in Schedule 1). ............................ "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. "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. 9Amongst the businesses prescribed for the purposes of the definition of "retail shop" is "restaurants, cafeterias, coffee lounges, food courts and other eating places". However, S.5 of the Act excludes certain retail shops from its operation: "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. " 10 At paragraph 14 of its reasons the Tribunal below made these observations: "The use of the term "restaurant" within clause 7 of the Licence Agreement is inappropriate. The system by which patrons at the club can obtain and consume meals from the Applicant was in place well prior to commencement of the subject agreement, and is described in paragraphs 63 and 64 of the Affidavit of the Respondent's secretary manager, Steven Lovat. In general terms, patrons order and pay for food and hot drinks at what is described by him as the "bistro servery" which is an open extension of the kitchen. Patrons pay for the food, which has been ordered while they are at the servery and they are then given a buzzer which activates when the food is ready for collection. Once the buzzer is activated, the food is collected by the patron. The food can then be consumed throughout the entire ground floor of the club premises." 11 The learned Judicial Member below identified the questions which he needed to decide and the contentions made by the Appellant in these two paragraphs: "The important questions which arise for determination in these proceedings are whether the applicant has been given a right of occupation of premises pursuant to the Licence Agreement, exactly what those "premises" are and whether the agreed use of those premises is as a "retail shop". It is contended on behalf of the Respondent that the Licence Agreement gives the Applicant a non exclusive right of occupation over the entire club premises. Accordingly, it is argued that the provisions of the RL Act do not apply because the use of the premises for the carrying on of what is described as the Applicant's "restaurant business" is neither the whole nor the predominant use of those premises. It is also contended that the club premises exceed 1,000 square metres in size which thereby invokes the operation of section 5(a) of the RL Act in excluding the Act's application to the agreement between the parties." 12 As appears from the uncontraverted affidavit of Mr Stephen Lovat, the General Manager of the Appellant, sworn 10 December 2010, the Respondent's bistro servery adjoins a large room called an "auditorium". In Mr Lovat's affidavit, he describes it as follows: "It is a multifunction room, which is at the physical heart of the Premises, and is the place where the overwhelming bulk of the Club's activities are conducted, including drinking, eating, socialising, music, trivia, badge draws, social and charity functions; There are high bi-fold doors leading from the Auditorium to a balcony. There are stunning views from the Auditorium and the balcony south down Bondi Beach and the southern coast; On the western wall of the Auditorium, there are placed honour boards (recording members of the RSL sub-branch that have died during the war), various flags (including the Australian flag, the Union Jack, and the flags of the different armed forces), the insignia of the navy, air force and army;" There are TVs placed at 3 points around the Auditorium;" The furnishings in the auditorium are all lightweight and moveable, because it is often moved and re-arranged to fulfil the different and changing uses of the space. For example, the Club typically clears out a substantial number of tables for Saturday nights, to create a dance floor area; It is the practice of the Club to place on all the tables (excluding the balcony) beer coasters and beer mats, reflecting the use of the tables for the consumption of drinks. The types of tables which are set up in the Auditorium (and balcony) include the following. Many of the tables are too small for dinner plates to be conveniently placed on the tables: (i) 10 plastic trestle tables, that can seat 6 to 8 people. (ii) 5 tall "bar" bench type tables, that can seat 8 people. (iii) 12 balcony tables, that can seat 4 people. (iv) 5 round stool tables, that seat 5 people. (v) Around 25 standard interior tables (most of which are collapsible), that can seat 4. These tables are either kept separate or are abutted together to form a large cluster of tables. The Club bar is located in the Auditorium." 13 It seems to have been common ground that meals served from the Respondent's bistro were consumed at those tables in the auditorium suitable for the consumption of food but also without restriction in other parts of the club including, according to Mr Lovat's affidavit, in the gaming room. 14 As the Tribunal below observed, it was not a restaurant in the sense that food was served in a defined area containing tables and chairs all of which were suitable for the purpose. The word "restaurant" in cl 7.1 of the licence agreement may have been intended to refer to the tables and chairs for the time being in the immediate vicinity of the servery or may have been intended to refer to the whole of the rest of the club. The probability is that it was merely surplusage of uncertain meaning and it is, we think, unnecessary to decide the question. Clearly the reference in 7.2 to "restaurant" refers to the respondent's business. 15 The Macquarie Dictionary Third Edition defines restaurant as "an establishment where meals especially main meals are served to customers". The parties to the agreement chose this word to describe the business which it contemplated and we see no reason to reject this description. In any event we think that the business fell within the description in the Schedule to the Act - "Restaurants, cafeterias, coffee lounges, food courts and other eating places". 16 The licence agreement gave the respondent the "exclusive use" of the kitchen (which we take to include the servery) for the purpose of fulfilling his obligations under the agreement. The kitchen was to be used wholly for the purpose of carrying on a prescribed business and accordingly the right to occupy the kitchen for that purpose which, in our opinion, is implied by the right of exclusive use, satisfies the requirements of the definitions of "retail shop" and "retail shop lease or lease" in the Act. 17 However, in this case that is not an end to the matter. It is necessary to have regard to the nature of the rights given to the Respondent in respect of other parts of the club and possibly the area in square metres of those other parts. 18 The Appellant's case below and before us was that the licence agreement conferred a right of occupation of the whole of the club premises but did not constitute a "retail lease" because it was not contemplated that the club premises would be used wholly or predominantly as a restaurant. In other words, so it was submitted, a multitude of activities were conducted in the club premises of which the service of food was but an ancillary function. It may be accepted that this was factually correct. 19 The Tribunal below dealt with this question in paragraphs 15 and following of its decision: "15 Clause 7.1 of the Licence Agreement gives the Applicant "exclusive use" of the kitchen in order to undertake the business of making and then selling meals and hot drinks. It is also clear from the evidence presented at the hearing that the servery forms part of the kitchen premises and that there is no "restaurant" as such within the overall club premises. The terms of the Licence Agreement give the Applicant general access to the kitchen and servery areas and other parts of the club premises. It appears to be common ground that the overall club premises are neither wholly nor predominantly used for the supply or consumption of meals. 16 Attention has been drawn to the unreported decision of His Honour Windeyer J of the NSW Supreme Court in Constantinos Trembelas v Cypress Community of NSW [unreported 2 June 1998] where the Court dealt with a somewhat similar situation. A licence agreement existed between a licensed club and the plaintiff who was described as "the bistro and auditorium caterer" for a term of one year. Control of the bistro kitchen was given to the plaintiff. The agreement was held not to constitute a retail lease under the RL Act. The Court found that there was a single business conducted in both the bistro and the auditorium, such business being conducted partly by the plaintiff and partly by the club, and that the licence did not give the plaintiff occupation of either of those two areas. The Court also considered that the conduct of the "auditorium business" involved use of an area which exceeded the threshold lettable area set by section 5 of the RL Act . 17 For the Applicant to have a "right of occupation" of premises there must be some degree of control over the premises, however slight, and a degree of "constant use" for relevant business purposes. The Respondent contends that the Applicant's "right of occupation" granted by the Licence Agreement extends beyond the kitchen and servery because the Applicant has the right to invite persons into the club premises, to invite customers of the bistro to sit anywhere in the club premises and the right to serve food throughout the entire club premises which include the right to offer a table service. 18 As stated previously, there is no designated or actual restaurant area within the club. Patrons can consume their food throughout the club, subject to some excluded areas. 19 The Respondent quite correctly cites Moweno Pty Ltd v Stratis Promotions Pty Ltd [2002] NSWSC 1151 ( Moweno ) as authority for the proposition that "the relevant grant of a right of occupation is a grant sourced in the parties' agreement". The Respondent argues that there is no basis for the contention that there has been any variation to the licence by virtue of which the parties have agreed to limit the Applicant's rights under the licence agreement to provide only "take away food". There is certainly no such express limitation within the licence agreement; however, consideration of the express terms of the agreement may be only one part of determining both the purpose for which the premises are let and what those premises consist of. 20 In determining the purpose for which premises were let under the RL Act , Barrett J in Moweno at paragraph 10 of his judgment quoted the principles enunciated by the High Court in Thompson v Easterbrook [1951] 83 CLR 467: "The purposes for which premises are leased at the date of the notice to quit are the purposes which 'may reasonably be held to have been contemplated by both parties, having due regard to the terms of the lease, the character of the subject let, and other similar circumstances' (cf Westropp v Elligott at p.831). In that case Lord Watson said, in relation to provisions of an Imperial Act relating to a 'holding let to be used wholly or mainly for the purpose of pasture', that 'where the particular purpose for which the holding is to be used is not defined by contract, the legislature must have intended that the purpose 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'. This proposition may be accepted as applicable to a case arising under the Act now in question, unless after granting of the lease, a change has occurred in the mutual rights and duties of the parties in relation to the user of the premises." 21 The photographic evidence in this matter shows that, apart from there being no designated restaurant space within the club premises, there are areas which could, if so utilised, have food delivered to them by staff employed by the Applicant. The licence agreement is silent as to the way in which food is to be served in the club premises. However, it is abundantly clear from the evidence that the system in place as at the date of commencement of the subject agreement was one where the business activity of the Applicant involved production and sale of food from within the kitchen and servery area and that patrons of the business then took the food away and were allowed to consume such food in most areas of the club premises. 22 Consideration of the terms of the Licence Agreement together with the context within which the agreement was made indicates that the Applicant was given a right of occupation of the kitchen and servery area of the club premises for the purpose of selling meals to patrons. As such, the licence agreement between the parties creates a right of occupation of those premises which constitutes a retail shop lease. Clause 7.1 also gives the Applicant access to the kitchen and servery area for himself and his employees and for persons delivering supplies to the kitchen and servery which gives commercial efficacy to the Applicant's right of occupation. Clause 7.2 also gives support to the conduct of the Applicant's business conducted at the kitchen and servery by permitting patrons to then consume meals throughout the club premises. There is no right of occupation of the club auditorium or other areas given to the Applicant. 23 The Applicant's business of preparation and sale of meals from the kitchen and servery area is not a business conducted jointly with the club. There are obligations set out within the Licence Agreement as to the manner in which the business is to operate and as to the Applicant's contribution to outgoings, but there is nothing within the agreement nor arising from the evidence in these proceedings to indicate that the business is jointly operated by the parties. As such, the factual situation is different to that which existed in Trembelas . 24 The kitchen and servery area is a designated and distinguishable area within the club premises. It is not an ill-defined area of open floor space such as was the case in Manly Council v Malouf [2004] 61 NSWLR 394. It is a clearer and more permanently defined area than that which the Appeal Panel considered in Sydney Markets Ltd v Wilson [2010] NSWADTAP 45 where, in dealing with a stand area at the market in Sydney known as "Paddy's Market", it was 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 more over, 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." 20 As indicated earlier, the reasons given by the Tribunal are challenged by the Appellant as so inadequate as to constitute an error of law. As this has become an appeal on the merits it is unnecessary for us to dwell on the question. In fairness we should record however that the respondent strenuously argued to the contrary. As it seems to us, what we first need to consider is whether as a matter of law the licence agreement gave the Respondent the right to occupy any area of the Club beyond the kitchen and servery. The starting point is the words used by the parties themselves, namely the grant of a right of access. Those words not only appear to have been chosen deliberately but on the face of it seem to be entirely adequate for the purposes of the agreement. While the respondent may well have required exclusive occupation of the kitchen and servery to fulfil his obligations to prepare and deliver food, he needed no more than access to fulfil the other obligations arising under the agreement. 21 The word "occupy" or a derivative appears in Section 3 of the Act in the definitions of "lessee", "lessor", "outgoings" and "retail shop lease or lease". In that context as it seems to us there must be a significant or substantial, as opposed to a merely transitory connection, with the premises under consideration, in this case those areas of the Club outside the bistro kitchen and servery. 22 The situation is thus different from the cases referred to us where the issue concerned the existence or otherwise of a duty of care to an injured plaintiff. In that circumstance, a duty of care might well arise where the occupation is purely transitory. 23 The submissions for the Appellant accept that "occupation" can have various shades of meaning but point in this case to such matters as the right to serve food to members anywhere in the Club except the gaming room, the right to accept bookings from patrons of the Club, the right to invite persons on to the Club's premises, the right of access to the Club premises for commercial gain etc. 24 It is a question of degree but in our opinion none of the matters relied upon by the Appellant alone or in combination confer upon the respondent sufficient control over any part of the Club's premises beyond the bistro kitchen and servery to constitute it an occupier of those premises in the sense in which that term is used in the Act. Although some of the cases refer to the significance of the right to invite others on to the premises, that right is of little significance in this case as obviously the Respondent needs to invite employees and contractors on to the Club's premises, including the areas where it has exclusive occupation, for the purpose of carrying out its obligations under the licence agreement. 25 We conclude that the parties in their choice of the words "access to" sufficiently and accurately categorised the extent of the rights conferred on the Respondent to areas beyond the kitchen and servery. We agree with the submission of the Respondent that the mere right to use or have access to premises, even for business purposes, is very different from a right of occupation. It depends on the circumstances but in this case we do not think they amount to more than what the licence agreement provides, namely a right of access. In reaching this conclusion we take into account not only the words of the agreement itself, but also the context of a licenced Club providing a variety of services for its members including entertainment, the service of alcohol and gaming facilities. The fact that the Respondent had the right to permit its patrons to consume food which it supplied in other areas of the Club or even to serve food in those other areas does not seem to us to undermine in any way the control by the Appellant of all areas of the Club outside the kitchen and servery or to give the Respondent any relevant degree of control of those areas. As Mr Lovat implied, even the chairs and tables immediately adjacent to the servery were not immune from a decision by the Club Management to move or rearrange them for other club purposes. 26 We should add that in our respectful opinion the Tribunal correctly distinguished the decision of Windeyer J in Trembelas (which of couse on a matter of law would bind us) in light of his Honour's finding of fact that the business conducted in the bistro was conducted jointly by the plaintiff and the club and that the relevant licence (contrary to the express terms of the licence in the present case) did not give the plaintiff occupation of the bistro. 27 If we be wrong in our conclusion that the agreement granted no right of "occupation" beyond the kitchen and servery then we would dismiss the appeal on another basis. Premises constituting a retail shop within the Act must be used wholly or predominantly for the carrying on of one or more of the prescribed businesses. As earlier stated the Club premises outside the bistro and servery could not be so categorised. However as it seems to us, nothing in the Act prevents parties entering into an agreement granting a right to occupy premises which in part constitute a retail shop within the Act and in part do not. In so far as such an agreement relates to a retail shop, it will be governed by the Act, otherwise it will operate according to its terms. In this case section 16 of the Act would operate to extend the term of the Respondent's right to exclusive occupation of the kitchen and servery and for that extended term he would continue to have rights of access to other parts of the Club for the purpose of fulfilling his contractual obligations. 28 It is appropriate that we should make clear that in considering this matter we have had regard only to the terms of the licence agreement itself. This seems to be required of us by the decision of Barrett J in Moweno. There was nothing in this case to suggest a change in the mutual rights and duties of the parties. 29 In the result, we think the Tribunal below was correct in concluding that the agreement gave the Respondent a retail lease in respect of the kitchen and servery because they were truly occupied and no more than a right of access to any other part of the Club. It thus becomes unnecessary to consider whether the areas of the Club to which the Respondent has access when added to the area of the kitchen and servery amount to 1,000 square metres or more. 30 The term of the licence agreement was accordingly extended, as the Tribunal found, in accordance with s. 16 of the Act. 31 No arguments were addressed to us in respect of Order 4 made by the Tribunal below. 32 As to the question of costs:- 33 This is an unsuccessful appeal by a party who was also unsuccessful at first instance. It relates to commercial dealings between business men. In terms of s 88 of the ADT Act we think it would be fair to order the Appellant to pay the Respondent's costs. 34 We make these orders: 1.Appeal dismissed. 2.Orders made by the Tribunal on 29 April 2011 confirmed. 3.Appellant to pay Respondent's costs of the Appeal as agreed or assessed. 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: 05 April 2012