Administrative Decisions Tribunal New South Wales Medium Neutral Citation: 73 Union St Retail Pty Ltd v J & S Group Pty Ltd (RLD) [2013] NSWADTAP 32 Hearing dates: 10 April 2013 Decision date: 19 July 2013 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President Decision: 1. The appeal against Order 1 of the Tribunal made on 14 November 2012 is dismissed. 2. (a) The Respondents are to file and serve within 21 days (i) any submissions that they may wish to make in support of the Tribunal's costs order made on 14 November 2012 (Order 2) and (ii) their submissions in support of their application relating to the costs of the appeal. (b) The Appellant is to file and serve within a further 21 days (i) its submissions in support of its appeal against the Tribunal's costs order and (ii) its submissions relating to the costs of the appeal. (c) The Appellant's agent, Mr Haney Soltan, is to file and serve, within the same period, his submissions relating to the Respondents' application (if this is pressed) for an order that he pay their costs of the appeal. (d) If the Appeal Panel is of the view that any party should be permitted to file and serve further submissions in reply, it will ask the Registrar to convey appropriate directions to the parties. (e) These questions as to costs will be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997. Catchwords: Jurisdiction - whether retail lease entered into Legislation Cited: Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Regulation 2009 Corporations Act 2001 (Cth) Real Property Act 1900 Retail Leases Act 1994 Cases Cited: 73 Union St Retail Pty Ltd v J & S Group Pty Ltd & Ors (No 2) [2012] NSWADT 278 Aspromonte Pty Limited v Zagari [1999] NSWSC 831 Antoun v R [2006] HCA 2 Bigdale Pty Ltd trading as Enigma at the Royal Motor Club v Royal Motor Club of NSW Port Hacking Branch [2010] NSWSC 1196 C E Heath Underwriting & Insurance (Aust.) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Conoid Pty Ltd & Anor v International Theme Park Pty Ltd [1999] NSWSC 1138 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Fadu Pty Ltd (ACN 007 815 090) v ACN 008 112 196 Pty Ltd as Trustee of the "International Linen Service Unit Trust" [2007] FCA 1965 Helou & Ors v Bong Bong Pty Ltd & Anor trading as Regional Retail Properties [2006] NSWADT 128 Jenkinson & Anor v Young [2004] SADC 30 Moweno v Stratis [2002] NSWSC 1151 Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 Lu v Miao [2011] NSWADT 309 O'Neill v Henry [2009] NSWADT 254 O'Neill v Henry (RLD) [2010] NSWADTAP 40 Perhauz v SAF Properties Pty Ltd [2007] NSWADT 122 Phoenix Commercial Enterprises Pty Ltd v Canada Bay Council [2010] NSWCA 64 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Randi Wixs Pty Ltd v Pokana Pty Ltd (No 2) [2003] NSWADT 4 Seguin & Anor v Anglican Church Property Trust Diocese of Sydney (No 1) [2004] NSWADT 146 Tarleton & Peters Pty Ltd v EK Nominees Pty Ltd [2010] NSWADT 248 Todorovic v Moussa [2001] NSWCA 419 Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Constantinos Trembelas v Cyrus Community of New South Wales, Unreported, Supreme Court of New South Wales, Windeyer J, 2 June 1998 Whiteway House (No. 199) Pty Ltd v Abrocoona Pty Ltd [1998] NSWSC 521 Category: Principal judgment Parties: 73 Union St Retail Pty Ltd (Appellant) J & S Group Pty Ltd (First Respondent) Union City Convenience Pty Ltd (Second Respondent) Jamal Gebara (Third Respondent) Representation: Counsel M Bennett (Respondents) H Soltan (Appellant, agent) Breene & Breene Solicitors (Respondents) File Number(s): 129041 Decision under appeal Citation: 73 Union St Retail Pty Ltd v J & S Group Pty Ltd & Ors (No 2) [2012] NSWADT 278 Date of Decision: 2012-11-14 00:00:00 Before: Retail Leases Division File Number(s): 125117 reasons for decision Introduction 1This is an appeal from both a substantive decision and a decision on costs that the Retail Leases Division of the Tribunal initially delivered ex tempore on 14 November 2012. At the request of a party, it subsequently delivered written reasons for these decisions (73 Union St Retail Pty Ltd v J & S Group Pty Ltd & Ors (No 2) [2012] NSWADT 278). 2In the proceedings in the Retail Leases Division, the Applicant was a company called 73 Union St Retail Pty Ltd (hereafter '73 Union Street'). When it filed its Application initiating these proceedings on 24 August 2012, the sole Respondent was J & S Group Pty Ltd (hereafter 'J & S Group'). 3An associated application by 73 Union Street for urgent interlocutory relief was heard by the Tribunal, constituted by Mongomery JM, on 30 August 2012. The Tribunal did not grant the relief sought. At the request of a party, written reasons for its decision were subsequently delivered (73 Union St Retail Pty Ltd v J & S Group Pty Ltd & Ors [2012] NSWADT 212). 4Substantially on account of observations made by the Tribunal at that hearing, Union City Convenience Pty Ltd ('Union City Convenience') was later joined as Second Respondent and Jamal Gebara as Third Respondent. From now on, I will refer to Jamal Gebara, who plays a significant role in these proceedings, as ' Mr Gebara'. I will refer to his son Mohamed Gebara, who was the sole director of J & S Group, as 'Mr Mohamed Gebara'. 5In circumstances and for reasons outlined below, 73 Union Street claimed in its Application that a lease of certain premises in Pyrmont ('the Land'), governed by the Retail Leases Act 1994 ('the RL Act'), had arisen between itself as lessee and J & S Group as lessor. J & S Group claimed that no such lease had arisen and that accordingly the Tribunal lacked jurisdiction. 6The hearing of this objection to jurisdiction took place before the Tribunal, constituted by Higgins DP, on 12, 13 and 14 November 2012. Mr Soltan, who is the sole director of 73 Union Street, appeared for that company as its agent. Mr Bennett of counsel appeared for the three Respondents. 7The Tribunal's decision on the question of jurisdiction was that there had been no lease of the Land as claimed by 73 Union Street and that accordingly the Tribunal had no jurisdiction to hear its Application. 8Having given that decision ex tempore after the hearing had concluded, the Tribunal heard argument on an application by J & S Group for a costs order in its favour. It then gave an ex tempore decision ordering 73 Union Street to pay a specified sum ($8,000) on account of costs to J & S Group. 9In its written reasons, the Tribunal formulated its orders in the proceedings as follows:- 1. Applicant's retail leases claim is dismissed. 2. The applicant to pay the respondents' costs in the sum of $8,000 to be paid within twenty-eight days of the date of this decision. 10On 10 December 2012, 73 Union Street filed a Notice of Appeal against both of these orders. 11Because this is an appeal on questions of jurisdiction and costs only, it may be heard by a Deputy President sitting alone, pursuant to section 24A(2)(a) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). 12On 10 April 2013, following the filing of submissions, the hearing of the appeal took place before me. The parties had the same representation as at the hearing by the Tribunal. Because there was insufficient time to hear any address by Mr Soltan in reply to Mr Bennett's submissions, I directed that 73 Union Street should file and serve any written submissions in reply within 21 days. 13In purported conformity with this direction, lengthy submissions were filed on 3 May 2013. In preparing these reasons, I have taken full account of them, even though they are not limited, as should be the case with submissions in reply, to responding to arguments put by the opposing party that were not previously dealt with. They repeat and elaborate arguments already put in Mr Soltan's written submissions in chief and/or at the hearing, and they introduce new arguments. Brief outline of facts 14Most of the following brief outline of the principal facts of this case is adapted from passages in paragraphs [5] to [14] of the Tribunal's written reasons. 15At the time when J & S Group became the owner of the Land, it was subject to a lease governed by the RL Act. This lease, which commenced on 12 November 2001, had been granted to 7 Eleven Stores Pty Ltd ('7-Eleven'). It had a term of five years, with an option to renew for a further period of five years. That option was exercised, with the consequence that the term of the lease was extended to 10 November 2011. During the currency of the lease, 7-Eleven carried on the business of a convenience store on the Land. 16J & S Group is affiliated with the City Convenience group of companies. These companies operate, cooperate in, or supply a number of convenience stores throughout Australia. They all operate under the banner 'City Convenience Store'. 17Mr Gebara is the founder and the chairman of the parent company of the group, City Convenience Store Pty Ltd. He is not a director of J & S Group. 18Since 2001, Mr Soltan, the sole director of 73 Union Street and the agent appearing for it in these proceedings, has run a number of convenience store businesses. In the months before December 2010, he was looking for a suitable site to establish a business of this kind. He became aware of the Land and of its being owned by J & S Group. He knew also that the lease to 7-Eleven was due to expire in November 2011. 19Early in November 2010, Mr Soltan met with Mr Gebara. As a result of their meeting, Mr Soltan instructed his solicitor to prepare a Loan Agreement between J & S Group and 73 Union Street. This agreement, prepared by Mr Soltan's solicitor, was executed on 6 December 2010 by Mr Gebara on behalf of J & S Group and by Mr Soltan on behalf of 73 Union Street. 20Pursuant to the Loan Agreement, 73 Union Street lent the sum of $150,000 to J & S Group. The Agreement provided that J & S Group was to repay the loan, together with interest, on or before 31 January 2011. It also provided that a failure to repay the loan by that date caused the loan to convert to a call option. It was not disputed that the loan was not repaid within the time stipulated and that the call option came into effect. 21The terms of the parties' agreement regarding this call option ('the Call Option Agreement') were embodied in a Schedule to the Loan Agreement. They included a term to the effect that the option was exercisable between 1 December 2011 and 30 November 2012. 22The option has never been exercised. At the time of the hearing before the Tribunal, that period during which it was exercisable had not expired. 23The wording of a number of clauses of the Call Option Agreement is of prime importance in this litigation. These clauses are reproduced below. 24On or shortly after 6 December 2010, Mr Soltan lodged a caveat '(the Caveat') on the title to the Land on behalf of 73 Union Street. The 'nature of the estate or interest' claimed in the Land was described simply as 'Deed of Loan agreement'. The instrument identified as creating this estate or interest was a 'Deed of Loan' to which J & S Group and 73 Union Street were parties. On behalf of J & S Group, Mr Mohamed Gebara, designating himself as 'sole director', gave consent on behalf of J & S Group to the lodgement of the Caveat. 25As was contemplated in clause 2.1 of the Call Option Agreement, 7-Eleven vacated the Land on or shortly before 10 November 2011. On that day, Mr Soltan received the keys to the Land from Mr Gebara. On the next day, he - or, as he claimed, his company, 73 Union Street - opened a City Convenience business ('the Business') on the Land. It is not disputed that the Business is of a kind covered in Schedule 1 to the RL Act. 26In circumstances outlined below, J & S Group claimed to have granted two leases of the Land to parties other than 73 Union Street, pursuant to a clause (clause 13.3) in the Call Option Agreement: the first on 12 November 2011 and the second on 25 July 2012. 73 Union Street disputed the authenticity of the earlier of these leases. 27Mr Soltan (or 73 Union Street) operated the Business until 3 August 2012. On that day, Mr Mohamed Gebara refused to allow him to enter the Land. The urgent interim order that 73 Union Street sought unsuccessfully from the Tribunal on 30 August 2012 was an order that it be permitted to re-enter the Land in order to continue operating the Business. 28At the time when the substantive proceedings were heard in the Tribunal, the owner of the Business was Union City Convenience, which is a company within the City Convenience group. Neither Mr Soltan nor 73 Union Street is a director or shareholder of this company. 29In the hearing before the Tribunal, 73 Union Street asserted as follows: (a) under clauses 12.3 and 13.2 of the Call Option Agreement (these are reproduced below), it acquired an interest in the City Convenience business that commenced operating on the Land during November 2011; (b) it therefore obtained a right to occupy the premises; (c) that occupation amounted to a lease governed by the RL Act; and (d) by virtue of section 16 of the RL Act, that lease had a term of five years commencing on 10 November 2011. 30The position taken by J & S Group was that at Mr Soltan's request, Mr Gebara appointed him on or about 10 November 2011 to act as the manager of a City Convenience business on the Land and that accordingly neither he nor 73 Union Street became a lessee of the Land. 31As already indicated, the substantive decision of the Tribunal was in favour of J & S Group. It rejected the claim of 73 Union Street that it had become a lessee of the Land, either under the Call Option Agreement or by virtue of the circumstances in which Mr Soltan entered into the Land on 11 November 2011 and conducted the Business thereafter. 32Also as indicated earlier, the Tribunal made a costs order in favour of J & S Group. Claim of bias 33In the Notice of Appeal and in his written submissions, Mr Soltan claimed that in reaching these decisions the Tribunal, constituted by Higgins DP, had engaged in conduct amounting to both actual and apprehended bias against 73 Union Street. 34In making this claim, Mr Soltan relied on a definition of actual bias contained in the Federal Court' judgment in Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 at 133-134, and on well-known principles regarding apprehended bias laid down by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 and Antoun v R [2006] HCA 2. 35In accordance with a rule stated by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [117], I will deal with this claim of bias before considering the other grounds of appeal. 36It is convenient for me to commence this discussion by describing in turn each of the specific matters on which Mr Soltan relied. I will add references to Mr Bennett's submissions where appropriate and will then record my own comments. 37Observations by the Tribunal relating to Mr Soltan's representation of 73 Union Street. Mr Soltan was a witness on behalf of 73 Union Street. During his cross-examination by Mr Bennett on 12 November 2012, Mr Bennett referred to a statement made by him earlier in the hearing in his capacity as an agent appearing for that party. He claimed that what he had said at the bar table was not evidence and could not be used in this way. The Tribunal told him that he must answer the question. 38In his oral submissions at the appeal hearing, Mr Soltan argued that this direction from the Tribunal was incorrect and that the giving of it amounted to actual or apprehended bias. 39The transcript of the relevant part of his cross-examination (12 November 2012, p 53, line 14) shows, however, that the question put by Mr Bennett related only to the manner in which 73 Union Street, through Mr Soltan as its agent, had framed its case against J & S Group. The Tribunal pointed this out to him, adding that what he had said on this topic while at the bar table was not being treated as evidence in the proceedings. 40In my opinion, this approach to the question was entirely correct and did not amount to bias of any kind. 41Further events occurring on 13 November 2012, the second day of the hearing, were described as follows in paragraphs 26 to 28 of Mr Soltan's written appeal submissions in chief:- 26... During the proceedings the Tribunal - on its own motion - attempted to curtail the right of audience of Mr Soltan as an agent in order to get him to appear as a director of the Applicant. Mr Soltan insisted on appearing as an agent. The Tribunal also insisted on Mr Soltan to appear as a director. 27 During the second day of the hearing, the Tribunal interrupted a witness's cross-examination and requested the witness to step outside (see passage of transcript T12-268, Page 15 Line 25 to Page 18 Line 30) in order to traverse into the right of audience as an agent issue. 28 During the above passage of discussions the Tribunal referred to the agency representation structure as "it is ridiculous", "you can't just change your hat from one thing to the other", "I can certainly revoke the - I mean you haven't got the approval of the Tribunal for a start", "I think there might be a problem but it does say that the 77C (sic) applies notwithstanding s 71", "so your conduct, it's all your conduct, regardless of what hat you have on", you are the person who is the company", "if indeed the Administrative Decisions Tribunal Act applied, I would certainly not grant leave" (emphasis in the original). 42Mr Soltan added that on a number of further occasions during the hearing the Tribunal said to him 'you are the company' or used words to similar effect. He maintained (at paragraphs 35 and 36) that observations such as these showed (a) that the Tribunal had a 'preconceived opinion' that 'the conduct of Haney Soltan is his conduct in person and not that of the Applicant', and also that 'a director of a company should not appear before the Tribunal as an agent', and (b) that it 'used' these preconceptions to 'decide the case... in disregarding any submissions or evidence that the Applicant wants to rely on'. 43In his written submissions, Mr Bennett argued as follows: (i) the Tribunal did not 'curtail' Mr Soltan's right of audience at all, but allowed him to continue to appear as agent; (ii) during the episode on 13 November 2012, it acted correctly, and certainly did not display bias, in asking the witness to leave the room while it addressed the matter of Mr Soltan's representation 'with much patience and assistance'; (iii) the need to address these questions stemmed from confusion caused by Mr Soltan referring to himself in the third person while questioning the witness; and (iv) the Tribunal's recognition of the 'uncontroversial' principle that a company acts through its directors had 'no bearing on' its capacity to bring an independent mind to the hearing. 44According to my reading of the transcript, the Tribunal displayed a degree of exasperation when making the observations described by Mr Soltan in paragraph 28 of his submissions. In part, this may have been because it was only during this discussion that the Tribunal realised that he was entitled, under section 77C of the RL Act, to appear as agent for 73 Union Street without obtaining leave. The Tribunal appears to have believed until then that leave was required under section 71 of the ADT Act. 45Subject to this observation, I agree broadly with Mr Bennett's submissions. Mr Soltan's right to represent 73 Union Street without leave was acknowledged after the matter had been debated between him and the Tribunal; his right to appear was not subsequently questioned; the Tribunal acted entirely properly in asking the witness to leave the room while this debate took place; sufficient 'confusion' had arisen to make the debate desirable; the Tribunal's observations referring to Mr Soltan's status as the director of one of the parties to the proceedings did not in any way imply that it was affected by 'preconceptions'; and they were in fact similar to observations made by Mr Soltan himself when seeking to argue that his entry into possession of the premises owned by J & S Group necessarily implied entry by his company, 73 Union Street. 46Observations by the Tribunal relating to documents prepared by J & S Group. Mr Soltan argued that the Tribunal 'took upon itself' the task of 'defending' J & S Group when he argued, on the final day of the hearing, that J & S Group had made certain concessions in a chronology and a Notice of Reply that it had filed. The Tribunal did this, he said, by using the following phrases: 'I think it's a typo', 'I assume this is a typographical error', 'It is so obviously a mistake', 'That's not evidence' and 'Mr Soltan, it is not a genuine statement'. 47I have read the passage in the transcript to which Mr Soltan referred (14 November 2012, p 12, line 30 to p 13, line 40). I am satisfied that, when read in context, these phrases went no further than to acknowledge, as was appropriate, that certain minor errors appearing in the relevant documents were inadvertent and did not constitute concessions on factual or legal matters by J & S Group. 48Observations by the Tribunal relating to costs orders. Mr Soltan relied on four observations on this topic during the hearing. The first (see Transcript, 13 November 2012, p 17, lines 13 to 15) was that under the costs provisions of the ADT Act, costs orders may be made against individuals, including agents. Secondly, while hearing argument on costs, the Tribunal suggested that a claim by Mr Bennett that the proceedings brought by 73 Union Street were 'malicious' went too far and would be better framed as a claim that they were 'vexatious' within the meaning of section 88(1A)(a)(vi) of the ADT Act (Transcript, 14 November 2012, p 23, lines 34 to 51). Its third observation, made in the same context, was a request to Mr Soltan to 'explain' what he would 'say about' any costs order that was made against him personally (Transcript, 14 November 2012, p 28, lines 26 to 27). The fourth, also made in this context, was to the effect that Mr Soltan had raised many issues and cited many authorities that were not relevant to his case and had therefore prolonged the proceedings unnecessarily (Transcript, 14 November 2012, p 31, lines 17 to 37). Mr Soltan maintained that he did not have a sufficient opportunity to respond to this last assertion by the Tribunal. 49Mr Soltan relied also on the following two paragraphs ([61] and [65]) of the Tribunal's decision, relating to its reasons for making a costs order against 73 Union Street:- 61 In my view these proceedings were not in fact very complex but were made complex by the manner in which Mr Soltan prosecuted the claim of his company. 65 I note Mr Soltan's insistence on taking a very artificial approach as to the capacity in which he appears before the Tribunal. He has sought to act as the mind of 73 Union Street (i.e. in his capacity as the sole director) and also act as the agent of the company under section 71C of the RL Act. He acknowledged that he did so for the purposes of seeking a cost order in the event 73 Union Street was successful in its claim. While I have not made any formal ruling in regard to Mr Soltan acting both as the mind of his company and at the same time being its agent, I have questioned the appropriateness of this and pointed out that his tactic may expose him to the risk of a possible order for costs. 50Mr Bennett submitted that the Tribunal, by raising issues such as the possibility of a costs order against Mr Soltan personally, was displaying 'not bias' but 'the opposite of bias'. It was 'impartially seeking the submissions of both parties before determining the issue of costs'. 51I agree with this submission by Mr Bennett. Its correctness can be illustrated by pointing out that if the Tribunal, when hearing argument on costs, had not referred to its power to make a costs order against a representative (lay or legal) of a party and had then proceeded to make such an order against Mr Soltan, this would have given strong grounds for a claim of denial of procedural fairness. When a court or tribunal asks a party or representative to comment on a line of argument that is manifestly adverse to the party's or representative's interests, that does not of itself demonstrate bias. In most instances, it constitutes the proper discharge of the duty of the court or tribunal to ensure that the party or representative has an opportunity to respond to an argument of this nature. 52I would add also that the transcript does not bear out Mr Soltan's claim that he had no adequate opportunity to respond to the Tribunal's comments about the length of the hearing. He did in fact make a response. 53The Tribunal's use of J & S Group's submissions. With reference to the Tribunal's substantive decision, Mr Soltan claimed in his appeal submissions in chief (at paragraph 68) that the Tribunal exhibited bias through adopting J & S Group's submissions 'without bringing its own mind to the contested issues which mounts (sic) to failure to constructively exercise jurisdiction which is an appealable error'. He added: 'Bias is a category of failure to constructively exercise jurisdiction.' 54In response, Mr Bennett pointed out that in its decision the Tribunal did not make any reference to the submissions that he had made on J & S Group's behalf. Instead, it commenced a number of its rulings with phrases such as 'in my view' and it formulated these rulings in its own words, not those of Mr Bennett. 55This description of the Tribunal's reasons is broadly correct. The phrase 'in my view' or 'in my opinion' is employed in them as a preface to a ruling on five occasions (in paragraphs [21], [33], [36], [37], [42]) and there is only one reference to Mr Bennett's submissions (at [49]). 56More importantly, Mr Soltan did not demonstrate with regard to any part of the decision that it simply repeated or paraphrased a part of these submissions. I would add that if a court or tribunal is persuaded that all or most of a party's submissions are well founded and that accordingly the party should prevail in the litigation, no bias is displayed merely because it delivers reasons that incorporate the substance of those submissions. 57Rejection of application for transcript. At the commencement of the last day of the hearing (see Transcript, 14 November 2012, p 1, line 25 to p 2, line 46) Mr Soltan requested a copy of the transcript of the hearing of the interlocutory application on 30 August 2012. The Tribunal replied that he should approach the Registry about this, adding that it understood him to have already obtained an audio recording. It repeated this reply when he said that the Registrar had refused to provide a copy to him. It then directed that the hearing should 'move on' to dealing with other matters. 58In an affidavit sworn by Mr Soltan on 10 December 2012 and admitted at the hearing of the appeal, he deposed that an officer at the Registry, when advising him on 30 October 2012 of this refusal by the Registrar, said that he needed to 'take the matter up with the Tribunal' at the hearing. On 29 November 2012, after the hearing had come to an end and the Tribunal had delivered its ex tempore decision, he obtained from a private provider a transcript of an audio recording of the interlocutory hearing that he had previously purchased from the Registry. 59Mr Soltan argued that this conduct by the Tribunal involved the forming of a 'preconceived view' that he should not have access to this transcript without knowing how he wanted to use it and therefore amounted to apprehended bias. Citing the High Court's judgments in Antoun v R [2006] HCA 2 at [28 - 30], [48], [56] and [86 - 87], he maintained that a fair-minded lay observer of this part of the proceedings might reasonably have apprehended that the Tribunal might not bring an impartial mind to the questions that it was required to determine. He maintained also that the Tribunal had breached its duty, imposed by section 73(5)(b) of the ADT Act, to ensure that all relevant material was disclosed to it. 60Mr Bennett submitted that the Tribunal, in rejecting Mr Soltan's application, acted in compliance with section 73 since otherwise it would have been compelled to grant an adjournment of the hearing to a date to be fixed. Implicitly, he relied on subsections (5)(a) and (d) of this section. He argued also that the transcript of the hearing on 30 August 2012 contained nothing of relevance to the matters to be decided by the Tribunal. 61In my judgment, a factor of considerable significance is the time at which Mr Soltan made his application. According to his own evidence, the Registry advised him to 'take up with the Tribunal' the question of access to the transcript, but he did not do so until the commencement of the third day of a hearing that had been set down for three days. By that time, as the transcript of the preceding days makes clear, both parties had completed the task of adducing their evidence and Mr Soltan had embarked on his oral submissions. 62In my opinion, a fair-minded lay observer who had attended the hearing on the two preceding days and was aware of provisions in the ADT Act such as paragraphs (a) and (d) of section 73(5) would accordingly have appreciated that it was too late for Mr Soltan to be putting in his request for this transcript. Such an observer would recognise that any such request should have been made at the beginning of the first day or relatively soon thereafter, in order that (a) it could be duly considered and (b) if it was granted, the transcript could have been made available in time to play some sort of role in the preparation and/or presentation of evidence on behalf of 73 Union Street. 63Rejection of application for leave to file written submissions in reply. Also on the final day of the hearing, the Tribunal rejected an application by Mr Soltan to be permitted to file written submissions in reply to written submissions that Mr Bennett had filed and served on him on the previous day (see Transcript, 14 November 2012, p 15, line 3 to p 16, line 21). 64Mr Soltan argued that the Tribunal's rejection of this application constituted apprehended bias, as defined in Antoun, and also contravened its obligation, imposed by section 73(4)(c) of the ADT Act, to ensure that the parties had the 'fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings'. He claimed that Mr Bennett's submissions were 'extensive' and referred to a number of Supreme Court decisions that he wished to have sufficient time to read before preparing his response. 65In response, Mr Bennett pointed out that Mr Soltan had received a copy of his submissions on the morning of the previous day. He argued that it should be assumed that Mr Soltan, who had described himself during the hearing as a professional agent representing lessees in proceedings in the Retail Leases Division, could 'deal with the ordinary running of hearings' and would be capable of preparing a response during the time available. 66I have perused the submissions that Mr Bennett filed. They comprise 20 A4 pages (108 relatively short paragraphs) of 1.5 space typing. They refer briefly to two High Court decisions and five Supreme Court decisions. The time that Mr Soltan might reasonably be expected to devote to considering these decisions would not be excessive. 67More importantly, Mr Soltan had already filed an outline of submissions in chief. What he sought from the Tribunal was leave to file written submissions in reply. The Tribunal, having set the case down for three days and arrived at a stage where the hearing of it, including the receipt of submissions, would come to a close during those three days, was entitled to expect that Mr Soltan should present orally any submissions that he might wish to make in exercise of his right of reply. Since this right extends only to making arguments that were not advanced in submissions in chief, such an expectation is in line with the Tribunal's normal procedures. Since there were no exceptional circumstances calling for a departure from these procedures, a fair-minded lay observer would not, in my opinion, infer from the Tribunal's ruling that it might not bring an impartial mind to the determination of the proceedings. 68The Tribunal being constituted by an 'actively practising barrister'. Mr Soltan referred in his written submissions in chief (at paragraph 62) to the fact that, according to a search that he had conducted, Higgins DP, who constituted the Tribunal in these proceedings, was 'an active barrister... and an active member of several committees of the NSW Bar Association'. He argued that a fair-minded observer might (his emphasis) apprehend as follows: (a) practising barristers and solicitors 'would always want to restrain the right of audience of professional agents, such as himself, in order to keep that right 'exclusive' for themselves; (b) Higgins DP might (again, his emphasis) accordingly be inclined to ensure that such agents, when appearing before her, should 'lose' their case or 'at least not receive a costs order' in their client's favour; and (c) this possibility would not arise if the Tribunal were constituted by a member to whom the interests of members of the Bar Association or the Law Society were not an 'immediate concern'. 69Mr Bennett argued that this claim by Mr Soltan was 'improper' and 'opportunistic'. I agree. Tribunal members are required on appointment to take an oath of office, to the effect that they will 'faithfully and impartially discharge the duties of' their office (see Administrative Decisions Tribunal Regulation 2009, clause 7(1)). To suggest that, for reasons such as Mr Soltan put forward, a 'fair-minded lay observer' might consider it likely that a member would violate that oath intentionally is totally far-fetched. In so far as his argument contemplated that this occurred or might have occurred in the present proceedings, it conveyed an imputation of serious misconduct without any legitimate grounds for so doing. Mr Soltan would do well to reflect on the ethical implications of making submissions of this kind. 70Further matters raised in the Notice of Appeal. The Notice of Appeal in these proceedings was signed by Mr Soltan as agent for 73 Union Street. In it, but not in his submissions, a few further matters were said to constitute additional grounds for ruling that the Tribunal had exhibited bias. With one exception, they were not particularised sufficiently to enable me to deal with them. 71The exception is an assertion, in paragraphs 36 to 38 of the Notice, that a 'reason' that 'might explain' the alleged bias of the Tribunal was that during 2007 the Tribunal, constituted by Higgins DP, had ruled against a party for whom Mr Soltan appeared as a 'director representative', and her decision had been overturned on appeal. 72Since this ground of alleged bias was not repeated in Mr Soltan's submissions, I will assume that he did not wish to press it. In case I am wrong in this assumption, I will add that it is manifestly of no weight and that again he has shown himself inclined to make suggestions that seriously improper conduct occurred without putting forward a proper evidentiary basis. 73My conclusions on the claim of bias. As will have become apparent from the foregoing discussion, I am satisfied that the Tribunal's conduct of the proceedings did not involve bias, actual or apprehended, on its part. 74There was an occasion where, as I have said, the Tribunal displayed some degree of exasperation when dealing with statements made by Mr Soltan in his capacity as an agent appearing for 73 Union Street. But to show that this occurred does not make good a claim of bias. 75In the extract from Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 at 133-134 that Mr Soltan cited in his submissions in chief (at paragraph 23), the Court expressly indicated that 'displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish [actual] bias', though they are 'relevant to proof' of it. Here, only one 'display of irritation or impatience' was drawn to my attention. 76For reasons that I have outlined, I do not believe that a 'fair-minded lay observer' who had attended all three days of the hearing would or might infer from the rulings and other observations that I have described that the Tribunal would not be able to bring an impartial mind to the determination of the case. Such an observer might conclude that the Tribunal did not approve of certain aspects of the way in which Mr Soltan conducted 73 Union Street's case. But he or she could reasonably be expected to take account also of the Tribunal's obligation to bring the hearing to its close with appropriate expedition - most importantly, within the three days for which it was set down, if that could be achieved without sacrificing procedural fairness. On that basis, it could not be said, in my judgment, that the fair-minded lay observer might apprehend that the Tribunal would not decide the case impartially. Alleged denial of procedural fairness 77In paragraphs 7, 8 and 56 to 62 of the Notice of Appeal, Mr Soltan claimed that 73 Union Street was denied procedural fairness through not being permitted to issue a summons to attend and give evidence to be served on Mr Breene, the solicitor who appeared for J & S Group at the interlocutory hearing on 30 August 2012. He referred to this matter again in his submissions. 78On 7 November 2012, Mr Soltan applied unsuccessfully to the Registrar for the issue of such a summons. The Registrar told him that he should raise the matter at the hearing. He did so unsuccessfully on the first day (Transcript, 12 November 2012, p 25, lines 25-31; p 47, lines 15-24) and on the second day (Transcript, 13 November 2012, p 80, line 34 to p 82, line 43; p 93, lines 48-50). 79Mr Bennett submitted that Mr Soltan could not justifiably complain about this because (i) he made no proper attempt to give adequate notice in advance that he required the attendance of Mr Breene, (ii) his application to the Registrar for a summons was made only a short time (5 days) before the commencement of the hearing and (iii) as noted in the transcript (12 November 2012, p 47, lines 15-24), Mr Breene was required at that time of the hearing to attend a hearing at the Independent Commission Against Corruption. 80At the hearing of the appeal, Mr Soltan argued that this was an important issue because of the following conduct of Mr Breene at the interlocutory hearing: (a) alleging that Mr Gebara was a director of J & S Group when he knew or must have known that this was not the case; (b) alleging that a document which is referred to below as 'the Second Lease' had been executed with the consent of 73 Union Street when again he knew or must have known that this was not the case; and (c) tendering a copy of the Second Lease when asked about an assertion, made by him at the hearing, that an earlier lease, referred to below as 'the First Lease', had been executed. 81Mr Soltan maintained that he should have had an opportunity to cross-examine Mr Breene with regard to the authenticity of the 'First Lease' and that the denial of this opportunity amounted to a denial of procedural fairness to 73 Union Street. He maintained further that by virtue of these matters there were reasons to doubt Mr Breene's integrity. The orders that he sought from the Appeal Panel in his appeal submissions in reply (at paragraph 201) included a direction that Mr Breene be referred to 'the appropriate professional body to investigate his conduct' during the interlocutory hearing and to 'decide whether he needs to be disciplined'. 82For reasons that will emerge below (see [146]), the question whether Mr Gebara was or was not a director of J & S Group is not of importance, so Mr Breene's mistake on this score is irrelevant. His mistaken claim that the 'Second Lease' was executed with the consent of 73 Union Street was immediately contradicted by Mr Soltan at the interlocutory hearing (Transcript, 30 August 2012, p 15, lines 25-33). The question of the authenticity of the 'First Lease' was not, for reasons explained below, a question on which the Tribunal felt it necessary to reach a final conclusion. I have formed the same view about this. 83On account of these considerations, the Tribunal, in my opinion, did not err in ruling that the issue of a summons to Mr Breene to attend the hearing at short notice was not warranted in the circumstances. Mr Soltan did not show a sufficient likelihood that his evidence would have been of significant value in the proceedings. 84Mr Soltan's claim that Mr Breene's conduct at the interlocutory hearing should be referred by the Tribunal to 'the appropriate professional body' is totally without merit. Once again, Mr Soltan has shown himself to be unduly ready to suggest serious impropriety on the basis of clearly insufficient evidence. The scope of the Tribunal's reasons for its substantive decision 85In paragraphs 19- 21 of the Notice of Appeal, Mr Soltan claimed that the Tribunal, in its decision on the substantive questions in the case, did not refer at all to a quantity of case law on which he had relied in his written and oral submissions. He elaborated briefly on this claim in his appeal submissions. 86In paragraph 44 of the Notice of Appeal, Mr Soltan claimed also that the Tribunal did not sufficiently analyse 'the credibility of any of the witnesses' or the relevance of their evidence or its own reasoning in reaching its conclusion as to the capacity in which Mr Soltan entered the Land on 11 November 2011. 87Mr Bennett contested the second of the claims but did not respond to the first. 88In my opinion, the first of these claims has merit. It is apparent from Mr Soltan's written submissions in chief to the Tribunal and from the transcript of the final day of the hearing that he relied on a number of cases, most of them decided under the RL Act, in order to support 73 Union Street's claim that it attained the status of a lessee under this Act. He also put forward arguments based on sections 3 and 8 of the RL Act. The Tribunal did not refer to any of these cases and it mentioned the two sections only briefly (at [16 - 18]). It does not follow from this, of course, that the Tribunal reached the wrong result. 89I am less persuaded by the second claim chiefly because, for reasons that will become apparent, the credibility of the witnesses was not an issue of major significance in this case. There were, however, some items of evidence to which the Tribunal did not refer in its decision but which were at least potentially of relevance. 90In consequence of my opinion on these two claims, my discussion of Mr Soltan's challenges to the correctness of the Tribunal's substantive decision will incorporate a review of the cases that were cited to the Tribunal and/or in the appeal and will pay some attention to evidence that the Tribunal did not mention. 91To this extent, I will accede to an application, contained in Mr Soltan's submissions, for this appeal to extend to the merits of the Tribunal's decision under section 113(2)(b) of the ADT Act. 92Before commencing my examination of the substantive grounds of appeal, I will set out the clauses of the Call Option Agreement that require consideration. The Call Option Agreement 93As already mentioned, the Call Option Agreement was set out in a Schedule to the Loan Agreement. 94Alongside the heading 'Parties', the 'Grantee' was defined in the Call Option Agreement as 73 Union Street and the 'Grantor' as J & S Group. 95A Dictionary, constituting Attachment 1 to the Schedule, contained the following definitions, indicating that they were applicable 'unless the subject or context is inconsistent':- The Land: Property known as 73 Union Street Pyrmont being LOT 13 IN STRATA PLAN 63800. The Business: the Business of a convenience store to be established by the Grantor on the Land following the vacation of the Land by the tenants; 7-eleven. Contract: the combined Contract for Sale of land and Contract for the Sale of the Business at the Land for the Land (sic), to be prepared by the Grantor, in accordance with standard NSW conveyancing practice and as follows: - Settlement of 2 years; - For the purchase price (exclusive of GST); and - Deposit being the Call Option Fee. Call Option: the Option granted by the Grantor to the Grantee under Clause 2 of this Agreement. Call Option Fee: the advance being $150,000. Call Option Period: the period commencing on the 1 December 2011 and ending 13 November 2012. Deposit Holder: the person named in the Contract as the deposit holder. Purchase Price: 30% of the agreed value of the land at the time the advance is provided and such value for the land being $3,000,000 (exclusive of GST), that is $900,000 (exclusive of GST) subject to any ordinary conveyancing adjustments. Relevant Interest: thirty percent (30%) of all interests in the land being the premises (but free of any mortgage or (sic). 96The following clauses of the Call Option Agreement should be quoted: 2 GRANT OF CALL OPTION 2.1 Call option. In consideration of the for (sic) conversion of the advance ('the Call Option Fee') (receipt of which is acknowledged for the sum of $150,000), the Grantor hereby grants to the Grantee an option, on the terms set out in this Agreement, for the Grantee to purchase the Relevant Interest in fee simple in the Land for the Purchase Price and on the terms set out in this document. Such Call Option will take effect as an irrevocable offer by the Grantor to sell the Land which will lapse on the expiry of the Call Option Period. 2.2 Duration of Call Option. The Call Option may be exercised at any time during the Call Option Period. 5 FORFEITURE OF PART OF THE CONSIDERATION 5.1 Consideration. If the Grantee does not exercise the Call Option in the manner and within the time specified in this Agreement then that part of the Call Option Fee that has been paid under this Agreement shall be refunded to the Grantee less the amount of $5,000 which shall be forfeited absolutely to the Grantor. 11 CAVEATABLE INTEREST 11.1 To avoid doubt, the interests herein grant a caveatable interest in the Land by the Grantee (or Nominee). 12 BUSINESS OWNERSHIP INTERESTS 12.1 In entering to the loan agreement and this agreement, the grantor has represented to the Grantee, and the Grantee has relied on this representation, that the current tenant being 7-eleven will be vacated from the Land at the earliest opportunity and the grantor shall use its best endeavours to ensure that the vacation tales place by no later than 12 November 2011. 12.2 It is acknowledged by the parties that the purchase price represents 30% of the combined value of the Land and the business that shall be established on the Land ("the Business"). 12.3 The Business shall be established by the Grantor (or related party) and the Grantee each contributing to the costs in accordance with the following proportions: (a) the Grantor (or related entity) at 70% and (b) the Grantee at 30%. 12.4 Upon settlement of the Contract, the Grantee shall be entitled to be registered as 30% co-owner of the Land and the Business. 12.5 It is acknowledged that in the event the Grantee purchases the relevant interests (sic), the Grantee shall be entitled to; (a) 30% of the rental proceeds from the Land; and (b) 30% of all revenue from such (sic) the Business. 13 TRANSATIONAL (sic) ARRANGEMENTS 13.1 Following the vacation of the premises by 7-eleven (clause 12.1), the Grantor (or nominee) shall invite the Grantee to contribute 30% to the cost of establishing and other costs in running the business. 13.2 Provided the Grantee provides (on any ongoing basis) the monies in clause 13.1, the grantee shall be entitled to distributions of 30% of the income of the business (in income but not in capital). 13.3 Promptly following vacation of the premises by 7-eleven, the Grantor shall lease the Land to a related entity on the following terms: a. rental being $208,000 exclusive of GST; b. no outgoings; and c. term of five years with an option for a further two term (sic) of five years each (total of 15 years). 13.4 In the event that the Grantee (or nominee) does not exercise the Call Option during the Call Option Period and in accordance with this document, following the Call Option Period, the Grantor (or nominee) shall provide to the Grantee (or nominee), and the Grantee (or nominee) shall accept a contract for sale of business for 30% of the Business on the following terms and conditions: a. total consideration being $150,000, receipt of which is acknowledged by the Grantor; b. completion period of 42 days; c. balance of the terms and conditions in accordance with standard NSW conveyancing practice. 97There were flaws in the drafting of this Agreement. In particular, clauses 5.1 and 13.4 contained conflicting provisions as to what should occur if 73 Union Street did not exercise the Call Option within the Call Option Period. No indication was given as to which of these provisions should prevail. There was a further conflict between the statement in the Dictionary that 'the Business' was to be 'established by the Grantor' and the statement in clause 12.3 that it was to be 'established by the Grantor (or related party) and the Grantee'. As Mr Soltan pointed out, however, the latter statement should be taken to prevail because the definitions in the Dictionary were stated to be applicable 'unless the subject or context is inconsistent'. 98It may be added that the Loan Agreement also displayed defects of drafting: for example, 73 Union Street was identified (correctly) in a Schedule as the 'Lender', but in clause 8 as the 'Mortgagor'. Interpretation of the Call Option Agreement 99Mr Bennett submitted that because the Call Option Agreement was drafted by 73 Union Street's solicitor, any ambiguity in it should be interpreted against 73 Union Street. In support of this submission, he cited a passage in the judgment of Deane J in C E Heath Underwriting & Insurance (Aust.) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535 at 541-542. His Honour there referred to 'the settled rule of construction that, if there be difficulty or obscurity of meaning, the words of an instrument are to be interpreted more strongly against him or her whose instrument it is'. 100Although, as Mr Soltan pointed out, Deane J observed in the same passage that this rule of construction had been 'subjected to some distinguished criticism' and was 'particularly applicable to contracts of insurance', his Honour also stated that the rule was 'deeply rooted in the common law and fully justified by considerations of justice'. Accordingly, I consider Mr Bennett's submission to be well founded, though its significance may not be very great. 101Relying on observations by Campbell JA in Phoenix Commercial Enterprises Pty Ltd v Canada Bay Council [2010] NSWCA 64 at [174 - 177], Mr Bennett submitted that since the Call Option Agreement was drafted by a lawyer, any technical legal terms in it should be given their legal meaning. Mr Soltan submitted however that the following passage (quoted by Campbell JA at [153]) in the judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, at 179 [40] was applicable:- References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. 102On the footing that the terms of the Call Option Agreement were ambiguous in certain respects, I believe both of these submissions to be correct. In construing this Agreement, it is appropriate both to take account of 'the surrounding circumstances known to the parties, and the purpose and object of the transaction' and to interpret technical legal terms according to their legal meaning. 73 Union Street's legal position with relation to the Land and the Business, as set out in the Call Option Agreement 103According to the express terms of the Call Option Agreement, the rights and obligations in relation to the Land that it conferred on 73 Union Street were as follows: (a) the Call Option, being an option to purchase the Relevant Interest (30%) in fee simple in the Land, exercisable during the Call Option Period (clauses 2.1, 2.2); (b) on exercise of this Option, an entitlement to be registered as a 30% co-owner of the Land and to receive 30% of 'the rental proceeds' from it (clauses 12.4, 12.5); (c) also on exercise of this Option, an entitlement to be registered as a 30% co-owner of the Business and to receive 30% of 'all revenues' from it (clauses 12.4, 12.5); (d) an obligation to contribute 30% of the 'establishment and other costs in running' the Business, following vacation of the Land by 7-Eleven (clauses 12.3, 13.1); and (e) an entitlement, pending exercise of the Option, to distributions of 30% of the income (but not the capital) of the Business, so long as the contributions amounting to 30% of these costs were maintained by 73 Union Street (clause 13.2). 104If, as Mr Soltan argued, the conflict between clauses 5.1 and 13.4 was properly to be resolved in favour of the latter clause, 73 Union Street would have an additional entitlement under this clause in the event that it chose not to exercise the Call Option during the Call Option Period. This would be an entitlement to purchase a 30% interest in the Business for the sum of $150,000. 105Mr Soltan argued that the provisions of the Call Option Agreement were sufficient in themselves to establish a lease, or an agreement for lease, of the Land from J & S Group to 73 Union Street. He based this argument on the proposition that clause 12.3, by providing for these two parties to establish the Business, conferred on 73 Union Street a right of occupation of the Land. In his submission, it was essential for 73 Union Street to enter into occupation if the Business was to be established in accordance with this clause. 106The Tribunal, in its written reasons at [33] and [36], rejected this claim. It said:- 33 In my view, on its proper construction cl 12 does no more than vest 73 Union Street with a 30% interest in the land (i.e. the premises) and the business, which is to be established by J & S Group on the land. However, that interest is subject to 73 Union Street exercising the call option as set out in cll 2.1 and 2.3 of the agreement... Even if it does exercise the call option, the interest 73 Union Street will acquire under the call option agreement is an interest in the land (i.e. the premises) and the business that is operating from the premises. That is, it will acquire an interest in the J & S Group, which is the owner/lessor of the premises and interest in the Business that is the lessee of the premises. It does not however, give rise to 73 Union Street being a lessee of the premises. 36 In my view, on its proper construction the effect of cl 13 is to give 73 Union Street an immediate right to 30% of the income of the business, established by J & S Group to operate from the premises, pending its exercise of the call option. However, the right vested under cl 13 is also subject to 73 Union Street contributing 30% of the establishment and running costs of the business. However, the clause cannot be construed as giving 73 Union Street a right of occupation of the premises in the event it pays the required contribution. 107In two additional passages in its ex tempore reasons, the Tribunal restated its conclusions that under the Call Option Agreement, 73 Union Street had no interest in the Business until it exercised the Option and that it did not at any stage acquire an interest as Lessee. 108I agree with the Tribunal that this argument by 73 Union Street is not sustainable, for the following reasons. First, the entitlements and obligations outlined above (at [103]) did not amount to, or indeed contemplate, a lease, or agreement for lease, between J & S Group and 73 Union Street. Secondly, participation in the establishment or conduct of a business does not necessarily involve entering into occupation of the premises in which the business is conducted. Thirdly, clause 13.3 of the Call Option Agreement imposed an obligation on J & S Group to lease the Land 'promptly' to a 'related entity' as soon as 7-Eleven had vacated it. Competing claims by the parties as to the meaning of 'related entity' in this clause are discussed below. But whichever of these claims is correct, there is no basis on which 73 Union Street could maintain that it was a 'related entity'. 73 Union Street's claim to a statutory lease 109Mr Soltan's principal contention was that a lease, falling within the scope of the definition of 'retail shop lease' in section 3 of the RL Act, arose under section 8 of that Act. This occurred, he said, as soon as he, in his capacity as the sole director of 73 Union Street, entered into possession of the Land on 10 November 2011, with the consent of J & S Group. 110The relevant part of section 3 of the RL Act is as follows:- 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. 111 Section 8 states:- 8 When the lease is entered into (1) For the purposes of this Act, a retail shop lease is considered to have been entered into when a person enters into possession of the retail shop as lessee under the lease or begins to pay rent as lessee under the lease (whichever happens first). (2) However, if both parties execute the lease before the lessee enters into possession under the lease or begins to pay rent under the lease, the lease is considered to have been entered into as soon as both parties have executed the lease. Note. Therefore, if the lessee starts to pay rent as lessee or enters into possession as lessee, the lease is considered to have been entered into even if neither party has executed the lease at that time. Money paid in advance (purportedly as rent) as a deposit to secure premises for a proposed lease does not constitute rent paid as lessee under the lease. 112The case law on which Mr Soltan mainly relied dealt with two questions: (a) the significance of the statement in section 3 that a lease under the RL Act does not necessarily involve the grant of a right of exclusive occupation of the premises; and (b) the precise nature of the requirements to be satisfied if a lease is to come into existence under section 8(1). 113Non-exclusive occupation. With reference to the first of these questions, Mr Soltan cited five cases, on which I will now elaborate. 114The first in point of time was a decision of the Supreme Court, Conoid Pty Ltd & Anor v International Theme Park Pty Ltd [1999] NSWSC 1138. This concerned a number of 'concession agreements' entered into between the owner of a theme park and the operators of what the agreements described as 'certain concessional activity'. As noted by the Court at [11], [13] and [28], these agreements involved the grant to the concessionaires of 'a non-exclusive licence to occupy' the relevant premises. Relevantly, Simos J held at [72] that 'the agreements granting the plaintiffs the non-exclusive right of occupation of those premises for the agreed purposes are "retail shop leases" within the meaning of that term as defined in section 3 of the [RL Act]'. 115In his submissions, Mr Soltan maintained that this case was authority for the proposition that 'once an occupant enters occupation of premises to operate the lessor's business' the RL Act applies. 116As Mr Bennett argued, however, this proposition cannot be found within his Honour's judgment. In a marked up copy of the judgment provided to me after the hearing, Mr Soltan indicated that he relied particularly on paragraphs [62], [64], [70], [72] and [82 - 85] of the judgment. I have read those paragraphs with particular care and can discern nothing in them to support Mr Soltan's submission. The important proposition supporting his Honour's ruling that the concession agreements were retail shop leases under the RL Act was, as I have indicated, a quite different one. It was that such leases may be created even though the lessee's right of occupation is not exclusive. 117Secondly, Mr Soltan relied on the Supreme Court's decision in Moweno v Stratis [2002] NSWSC 1151. The main question to be resolved in this case concerned the purpose for which a lessor had granted a right of occupation to a lessee. That question does not arise in the present proceedings. The passage (at [4]) on which Mr Soltan relied was the following brief dictum of Barrett J:- 4 Several features of this definition [the definition of 'retail shop lease' in section 3] may be noted. First, any "agreement" of the relevant description is within the "retail shop lease" concept, whether or not it is (or contemplates) a lease in the strict sense: see CAC Pty Ltd v Diamond Hill International Pty Ltd (1996) 7 BPR 14,754. 118The third case cited in this context by Mr Soltan was one decided in the District Court of South Australia, Jenkinson & Anor v Young [2004] SADC 30. The parties to these proceedings, who were dealers in antiques, entered into a joint venture whereby the defendant agreed to share premises owned by him with the plaintiff. The relevant provisions of the South Australian equivalent of the RL Act (quoted in the judgment at [161 - 164]) were in the same terms as appear in the RL Act. The Court held at [168 - 169] that there had been an agreement between the parties under which the defendant 'granted or agreed to grant to [the plaintiff] "for value a right to occupy a retail shop", albeit that it was not an exclusive right...' and that this 'conformed with' the definition of a 'retail shop lease' in the South Australian Act. 119Fourthly, Mr Soltan referred to a decision of mine in this Tribunal, Seguin & Anor v Anglican Church Property Trust Diocese of Sydney (No 1) [2004] NSWADT 146. It concerned a licence agreement conferring on the licensees a right to occupy premises owned by the licensor for the purposes of a retail business, subject to a requirement that the licensees should surrender occupation to the licensor for stipulated periods of time. I held this to be a retail shop lease within the definition in section 3 of the RL Act. At [56], I ruled that the 'right of interrupted occupation' acquired by the licensees was 'one form of non-exclusive occupation' falling within this definition. At [55], I referred to Jenkinson v Young, observing that it did not deal with the same question as had been raised before me. 120The most recent of the five cases cited by Mr Soltan in this context was Bigdale Pty Ltd trading as Enigma at the Royal Motor Club v Royal Motor Club of NSW Port Hacking Branch [2010] NSWSC 1196. Here the plaintiff, a catering company, entered into occupation of an area within the defendant club's premises, comprising a kitchen, restaurant and bistro, while negotiations regarding the nature of its occupation were still on foot. After these negotiations had broken down, the defendant served a notice to quit on the plaintiff. The plaintiff applied to the Supreme Court for an interlocutory injunction against enforcement of this notice. In giving reasons for granting limited interlocutory relief, Slattery J identified the applicability of the RL Act as a 'serious question to be tried'. His reasons on this question included the following passage at [76]:- 76 The defendant argues against the application of the Retail Leases Act. The defendant first says the relationship was at best a non-exclusive licence or right of occupation. But that is not an answer on its own to the plaintiffs' contention that the Retail Leases Act applies. The definition of "retail shop lease" in the Act applies to a "right of occupation" whether or not that right "is a right of exclusive occupation". The Retail Leases Act can apply to non-exclusive occupation rights under licences. 121These last four decisions were not the subject of comment by Mr Bennett. There is, as far as I am aware, no reason to doubt their correctness. But for reasons that will become apparent, I do not consider that they assist 73 Union Street's case. 122Section 8 of the RL Act. On the second question - that of the requirements to be satisfied if section 8(1) of the RL Act is to be invoked - Mr Soltan relied on five decisions of the Tribunal: Randi Wixs Pty Ltd v Pokana Pty Ltd (No 2) [2003] NSWADT 4, Helou & Ors v Bong Bong Pty Ltd & Anor trading as Regional Retail Properties [2006] NSWADT 128, Perhauz v SAF Properties Pty Ltd [2007] NSWADT 122, O'Neill v Henry [2009] NSWADT 254 and Tarleton & Peters Pty Ltd v EK Nominees Pty Ltd [2010] NSWADT 248. The second, third and fourth of these were decisions of mine. 123In Randi Wixs, a lengthy decision was delivered by Molloy JM. The passages relating to section 8 on which Mr Soltan relied were paragraphs [30], [31] and [38]. It is important, however, to take account also of paragraphs [24] to [29]:- 24 Nextly, it was submitted that one cannot have a Section 8 statutory lease unless there is consensus as to the terms of the lease. It was suggested that where a lessee enters into possession or begins paying rent the consensus is given effect to by an executed lease for less than five years. The Respondent relied upon Whiteway House (No. 199) Pty Ltd v Abrocoona Pty Ltd [1998] NSWSC 521 in which the facts were somewhat similar to those in dispute: the lessee was in occupation, subsequently it was offered a lease commencing in the following month for a term of nineteen months, there was some negotiation, the lessee was offered a further lease commencing on a date later than the first offer and ultimately, slightly over 12 months later, the parties entered into a Deed of Variation of Licence. In the meantime however the Retail Leases Act came into operation. 25 Hodgson CJ in Eq said at page 6: "It would be possible to give a construction to Section 8(1) to the effect that there cannot be entry into possession as lessee unless a lease, or payment of rent as lessee under a lease under the lease is already in existence in the full sense of the word; that is, unless there had already been a formally executed lease or at least a concluded agreement. However in my opinion that construction of Section 8(1) should be rejected, particularly having regard to the terms of Section 8(2). Section 8(2) deals with a situation where both parties execute the lease before the lessee enters into possession under the lease, or begins to pay rent under the lease. Those words, in my opinion, clearly contemplate the possibility that the lease may not be executed by both parties until and after the lessee has entered into possession under the lease, or has begun to pay rent under the lease. That means in my opinion that the word 'under the lease' in both sub-sections should not be given a narrow and restrict (sic) construction, but rather should be considered to be satisfied where there is entry into possession or payment of rent pursuant to a consensus as to terms which is subsequently given effect by an executed lease. That is a situation which happens very commonly, and in my opinion, that is the situation which the section is intended to deal with." 26 If that quoted paragraph is relied upon to support the proposition that where there is no subsequently executed lease then Section 8 does not apply, then in my opinion that submission should be rejected. What His Honour was referring to was the facts as put before him in that case, facts that are not unusual and where a lessee is allowed into possession by a lessor prior to the entry into of an executed lease. There is no question that in those circumstances Section 8 applies (although it did not apply in that case because the lease in fact commenced prior to the commencement of the Act) and where it applies (and is not otherwise the subject of exclusion) then the lease is subject to a minimum term of five years (Section 16). In my opinion the submission goes against the definition of "lease" in Section 3 of the Act where it is defined as meaning: "any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purposes of the use of the premises as a retail shop ...." 27 It is important to realise that it is quite specifically provided that in those circumstances a lease is deemed to exist 'whether the agreement is express or implied, and whether the agreement is oral or in writing, or partly oral or partly in writing'. Once it is accepted that an "agreement" can be theoretically implied and oral and such will constitute a 'lease' within the meaning of the Act, then it cannot be a pre-condition that there be an executed lease to call in aid Section 8. Such a proposition in my opinion flies in the face of the definition of 'lease' and Section 8(1). The decision in Whiteway House is limited to an interpretation of Section 8(2). Support for that interpretation is obtained from another decision of Hodgson CJ in Eq in Aspromonte Pty Limited v Zagari [1999] NSWSC 831 where His Honour (at [51]) quoted from his previous decision in Whiteway House and then went on to say (at [52]): "I remain of the view that Section 8(1) discloses an intention that there can be entry into a retail shop as lessee and payment of rent as lessee under a lease, where these events occur at a time when there is consensus as to the terms of such a lease but not yet any written lease entered into." 28 So, it seems to me, there is no requirement for the operation of Section 8 that there be at some stage or other after the lessee has entered into possession and paid rent the execution of a lease document. Hodgson CJ in Eq in Aspromonte appears to be of the view that there must be 'consensus as to the terms of such a lease'. This must be the case because the definition of 'lease' means 'any agreement', whether express or implied, oral or in writing or partly oral and partly in writing. It is predicated on there being an "agreement" - once it is established that there is an agreement and otherwise the terms of Section 8(1) are satisfied then there is created a statutory lease for the minimum term under section 16. The real question is always: "Is there an agreement; if so what are the terms of the agreement; and has the lessee entered into possession of the retail shop as lessee under the agreement or has the lessee began to pay rent as lessee under the agreement (whichever happens first)?" 29 Hodgson CJ in Eq in Aspromonte expressed the view that there must be "consensus as to the terms" of the lease. I am not entirely sure precisely what is meant by the use of the word "consensus". If it is intended to mean that there must be, as a pre-condition to the operation of Section 8, an agreement by the parties to each and every term of the lease, then I would respectfully differ from His Honour's view. The whole purpose of Section 8 is to create a statutory lease if the circumstances fall within the terms of the Section. After all, the terms of the Section are really quite simple and in my view there is a clear legislative intent that there will be created a statutory lease where a person enters into possession of a retail shop as lessee, or begins to pay rent as lessee, in circumstances where there is an agreement between that person and the person having the right to grant possession or receive rent whereby that person grants or agrees to grant to the other person for value a right of occupation of the premises for the purposes of the use of the premises as a retail shop. 30 There is nothing in the combination of Sections 3 and 8 that requires the person granting or agreeing to grant the right of occupation to agree with the occupier or proposed occupier to all the terms of the right of occupation. The definition of "lease" in Section 3 (set out in paragraph 26 above) is in very simple terms and the legislative intent of Section 8 is to create a statutory lease in the particular circumstances such that the occupant is protected by a statutory lease. Once that interpretation is accepted then there is no requirement for there to be "consensus" as to the terms of, or each and every term of, the right of occupancy simply because the statute creates the lease (Section 3). Once the statutory lease is created then the only question is: what are the terms of that lease? In order to answer that question one needs to look at the extrinsic evidence that is available in order to establish the other terms of the agreement between the parties. 31 It is not my understanding that the law requires there to be a concluded agreement between the parties before Section 8 applies. Mr Jacobs for the Respondent has strongly urged that proposition and for the reasons that I set out later in this Judgment I am of the view that the combination of Section 8 and the definition of "lease" in Section 3 is supportive of a different legislative regime designed to protect persons who enter into occupation or pay rent of defined premises such that the section "fills in the blanks" (so to speak) of contract law which would deny a concluded contract in circumstances where the evidence showed that there had not been agreement as to all the terms and in those circumstances would deny the occupant of retail shop premises the protection offered by Section 8... 38 There is perhaps an alternative argument available to the Applicant, although not agitated before me. In the definition of "lease" the legislature has seen fit to use the word "agreement" in contradistinction to the word "contract". Although not expressing a final view on this aspect, it may well be that the use of the word "agreement" imports something less than a full-blown contract but is rather directed to the parties reaching an agreement such that the Lessor permits the lessee into occupation of the lessor's premises (a rather dramatic event in reality) or accepts rent for those premises and in either case thereby creates a lease under Section 8. It seems to me that the legislature has deliberately used the general word "agreement" and avoided the more legal word "contract". There is good reason for this. The Retail Leases Act is, in many of its provisions, purposive and protective. It is directed, in this aspect, to the commercial reality of Lessors and Lessees "agreeing", as distinct from "contracting", such that upon "agreement" plus entry into possession or payment of rent the Act creates a statutory lease and a statutory regime for captured leased premises. It is protective because it creates a statutory minimum term and regime to protect the parties, in particular the lessee. Indeed, I would venture that generally, but not exclusively, the overall purpose of the Act is protective, within its terms, of lessees. Regard may be had, for example, to the concept and content of disclosure statements and the "penalties" that flow from non-disclosure, penalties that seem to affect lessors rather than lessees. Lessors need to be very careful before they permit persons into occupation of their premises or accept rent relating to those premises, because without prior contractual documentation the premises are more than likely to be caught by the statute. Persons in their ordinary activities can reach "agreement" about numerous matters without being contractually bound by that agreement. In simplistic terms (for example) a person can agree to take another to the theatre but will not be contractually bound to carry out that promise. However, what the Retail Leases Act does is effectively create (in my view) a statutory contract where the circumstances envisaged by Section 8 apply. Section 8 itself refers to "the lease" (twice) and "the lease" is the lease defined in Section 3. There is nothing (it seems to me) in the Section 3 definition that requires agreement to be reached between the parties on all terms. And, for the reasons set out in paragraph 27 above, the manner in which the parties actually reach agreement can be varied and the terms of the agreement can even be (theoretically) can be implied and oral and (in my view) it is not necessary for the terms to be all inclusive. 124In Helou v Bong Bong, the passage on which Mr Soltan relied comprised paragraphs [61] to [84]. I shall quote only paragraphs [82] to [84], because the preceding discussion was concerned with (a) summarising what the Supreme Court said in Whiteway House and Aspromonte and the Tribunal said in Randi Wixs, (b) noting a few more recent dicta of the Tribunal that are not directly relevant here and (c) determining the issue (which does not arise in these proceedings) outlined in the second sentence of [82]:- 82 In the Tribunal's opinion, the foregoing cases establish the following propositions regarding s 8(1). First, a person who is already in possession of retail shop premises pursuant to a pre-existing tenancy not covered by the Act may be said notionally to 'enter into possession... as lessee under the lease' without vacating and re-entering the premises, once an agreement for a new lease falling within the Act is concluded. Secondly, the commencement of a lease by virtue of entry into possession or payment of rent by the lessee may occur under s 8(1) even though no formal deed or agreement of lease is ever executed, so long as the parties have reached 'consensus' as to the terms of the lease. Thirdly, in order to reach this 'consensus', so as to give rise to the requisite 'lease relationship', it is not necessary that the parties reach agreement on all the terms of the right of occupation. This is an implicit consequence of the broad definition of 'lease' in s 3, embracing 'any agreement', express or implied, and whether oral, in writing, or partly oral or partly in writing, 'under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purposes of the use of the premises as a retail shop'. 83 Applying these propositions to the facts of the present case, the Tribunal reaches the conclusion that on 8 March 2005 the parties attained a sufficient consensus to attract the operation of s 8(1) and the Applicants notionally entered into possession of the Premises within the meaning of this subsection. This, it will be recalled was the day on which the letter of 22 February 2005, containing [the landlord's] notation amending the rate of annual increase of the rent, was returned to him bearing signatures on behalf of the Applicants and accompanied by a cheque for the 'security deposit'. This conclusion must be drawn even though the terms of the letter stated (and, according to [the landlord], he expressly told the Applicants) that no binding lease would come into existence until a formal document of lease had been prepared and executed. 84 It should perhaps be added that at no stage did the Applicants 'begin to pay rent as lessee under the lease', within the meaning of s 8(1). The reason is that before the next instalment of rent fell due on 1 April 2005, [the landlord] indicated to them that on the Respondents' view of the situation no new lease had been created and the Applicants were still in possession by virtue of the monthly tenancy acquired from Highlands Fresh. It would appear that the Applicants also believed this to be the state of affairs. But this of itself would not be sufficient to deprive them of the rights that they had acquired through the operation of s 8(1). 125In Perhauz v SAF, I held that a retail shop lease falling within the definition in section 3 of the RL Act could be created by a purely oral agreement for a lease intended to commence at a future time. A component of my reasoning was a ruling, set out at [65] and [71], that section 8 did not have the effect of rendering such an agreement unenforceable in circumstances where none of the three 'events' mentioned in the section had occurred. At [61], I had identified these 'events' as entry into possession 'as lessee', payment of rent 'as lessee' and the execution of a written lease by both lessor and lessee. 126Mr Soltan submitted that although the case was specifically concerned with the validity of an oral agreement for a retail shop lease, it both 'upheld' the Tribunal's previous ruling regarding section 8 in Randi Wixs and confirmed that a lease can be 'implied from the surrounding circumstances'. 127Mr Bennett submitted that Perhauz is not directly in point in these proceedings, because they are not concerned with an oral agreement but with a detailed written agreement, the Call Option Agreement. 128My reasons did however include a dictum (at [71]) in the following terms: 'The intention of the section [section 8] appears to be to extend, at least for the purposes of the Act, the range of circumstances in which a lease, as opposed to an agreement for a future lease, comes into being.' To that extent, they support Mr Soltan's broad and distinctly vague proposition that by virtue of this section 8 can be 'implied from the surrounding circumstances'. But I also suggested at [69] that the function of the section was that of 'defining when a prior agreement for a lease, or a series of negotiations, ripens into a fully established lease transferring a legal interest in the land to the lessee'. This proposition envisages that section 8 will not apply unless, as was the case in Randi Wixs and Helou, the parties have agreed in principle that a lease should come into existence or have conducted negotiations with a view to achieving this outcome. 129In O'Neill v Henry, the lessee of retail shop premises (Mr Henry) agreed that his cousin (Mr O'Neill) could take over occupation of them for the unexpired term of the lease, pay the rent due to the lessors (Mr and Mrs Dykes) and establish his own pizza takeaway business in them. Mr Henry and Mr O'Neill acted in accordance with this agreement. Mr Henry told the lessors, however, that Mr O'Neill would be 'running' Mr Henry's business at the premises. They interpreted this to mean that Mr O'Neill would be the 'manager' for Mr Henry. 130A question arising in the proceedings was whether (a) Mr O'Neill had taken an assignment of the lease without the lessors' consent, (b) a sublease to him had arisen or (c) the agreement was merely an informal family arrangement that was not contractually binding. At [54], I resolved this question as follows:- 54 It follows that when during April 2007 Mr O'Neill both commenced paying rent on Mr Henry's behalf to Mr and Mrs Dykes and took possession of the Premises (initially to carry out cleaning and renovation works and install new equipment for the purposes of a retail shop) a sublease was created pursuant to section 8(1) of the RL Act. On account of the provisions quoted above from section 3 of the Act, it did not matter that the agreement between the parties was oral only or that Mr O'Neill's right of occupation was not exclusive. The terms of the sublease were, with the necessary modifications, those set out in the Lease. 131In appeal proceedings following my decision (see O'Neill v Henry (RLD) [2010] NSWADTAP 40), this ruling was not challenged. 132In Tarleton & Peters, a decision of Fox JM, Mr Soltan relied on the following passage at [8 - 10]:- 8 S8 cannot be applied in these circumstances without regard to the s3 definition of "Retail Shop Lease", being any grant for value of a right of occupation for a scheduled business purpose, whether oral or written, express or implied, exclusive or otherwise. That wide "net", it seems to me, can give rise to a situation where a retail shop lease comes into effect to the surprise of all involved (see for instance Helou & Ors v Bong Bong Pty Ltd [2006] NSWADT 128). That is also what happens when there is entry prior to the final documentation; the statute creates what seems to be appropriate to describe as an interim retail shop lease which is eventually "overlaid" by the actual signed document. The terms of that interim statutory creature will depend on the individual circumstances of each matter. 9 In the present circumstances I have no evidence to indicate that the entry on 6th August was pursuant to any agreement other than the Lease offered up by Harris Farms on 3rd August, and that seems to me to bring an interim statutory lease into existence on 6th August when there was entry and the fitout commenced. The many terms of the Lease which were not in issue were part of that statutory construct, and that interim creature will be rescinded by consent of the parties when they sign the document which they acknowledge to be the lease intended to govern the continuing occupancy of the site. 10 I note that my view does not fully accord with the views of Hodgson CJ in Eq as expressed in Aspromonte Pty Ltd v Zagari [1999] NSWSC 831, which seem to indicate that there must be consensus as to every term of the lease for s8 to operate to create that lease by entry or payment, although that decision does accept that the statutory lease can be overridden by subsequent action of the parties. I also note that Mr Kidd's argument stems from that case, on the basis that there was no consensus as to all the terms. Against that are the views of this Tribunal (which, with respect, is the preferred position) in Randi Wix Pty Ltd v Pokana Pty Ltd (No 2) [2003] NSWADT 4, to the effect that s8 overcomes the need for a concluded contract, and that the terms of the statutory occupancy can be found by reference to the extrinsic evidence. 133There is no reason, in my opinion, to cast doubt on the principles stated in the passages that Mr Soltan cited from these five cases. In particular, I adhere to the view, advanced by Molloy JM in Randi Wixs and endorsed by me in Helou and Perhauz, that the 'consensus' between the parties that Hodgson JA held (in Whiteway and Aspromonte) to be required if section 8(1) is to be applicable need not be a consensus as to all the terms of the contemplated lease. 134If section 8(1) is to operate, however, there must at least be a 'consensus' that the relationship between the parties is to be that of lessor and lessee. This follows, in my opinion, from the inclusion of the phrase 'as lessee under the lease' alongside the description of each of the two 'events' that, according to that subsection, will cause a lease to have been 'entered into': namely, entry into possession and the payment of rent. Only if the party claimed to have become the lessor has agreed that a lease is in contemplation, or at least has given the would-be lessee good reasons for believing that he or she so agrees, can the would-be lessee assert that entry into possession or payment of rent gives rise to a lease under section 8(1). With the possible exception of O'Neill v Henry, the cases that I have just discussed provide direct support for this proposition and the cases to which they refer - including significantly the Supreme Court decisions in Whiteway and Aspromonte - contain nothing to cast doubt on it. 135The crucial question thus posed is whether there was a 'consensus' between the parties that the capacity in which 73 Union Street entered into possession of the Land on 10 November 2011 or paid rent subsequently (to the extent that it did so) was that of a prospective lessee. 136Mr Bennett argued that this was not the case, principally for two reasons. They were as follows: (a) under clause 13.3 of the Call Option Agreement, J & S was obliged to grant a lease of the Land to a 'related entity', and in fact granted two such leases in succession; and (b) the occupation of the Land by Mr Soltan between 10 November 2011 and 3 August 2012 was in the capacity of manager of the Business that the parties had agreed to establish. 137I will now give consideration to the Tribunal's findings, the evidence and the parties' submissions bearing upon these two topics, along with some further case law. The leases allegedly granted under clause 13.3 138In the Tribunal's written reasons, its findings with regard to two successive leases that J & S Group claimed to have granted pursuant to clause 13.3 of the Call Option Agreement were set out as follows in paragraphs [43 - 45]:- 43 On 13 January 2012, Mr Soltan's solicitor sent an email to Mr Jamal Gebara stating that in a meeting with Mr Soltan he had identified that there was no lease between 'the landlord and the tenant' for the premises and that it would be prudent to establish one. The solicitor also asked to be informed as to whether a lease had been entered. It would appear that no response was provided. However, Mr Jamal Gebara gave evidence of a written lease having been entered between himself and J & S Group. That lease is stated to have commenced on 12 November 2011 and its terms were in accordance with cl 13.3 of the call option agreement. Mr Soltan questioned the authenticity of this lease. It is his evidence that it was not until 30 August 2012, during the course of the hearing of the interim order application that the existence of this lease was raised. At the same time I note, that on 10 November 2011, the solicitor for J & S Group was requested, by email, from Mohamed, the Administration Manager of the City Convenience Stores, to prepare a lease for the premises with Mr Jamal Gebara being named as the lessee. 44 In his affidavit, sworn 8 November 2012, Mr Soltan said that in March 2012 he became aware that the premises were being offered for sale and as a consequence he contacted the selling agent and requested a copy of the contract of sale and the lease. On 2 April 2012, the selling agent forwarded him a copy of the contract and the lease. In this regard I note that the contract for the sale of the land included a copy of the caveat lodged by 73 Union Street as a result of the December 2010 loan agreement between it and J & S Group. The lease, unexecuted, was a lease between J & S Group and City Convenience Investments Pty Ltd, which I assume to be a company within the City Convenience group of companies. The commencement date of the lease was 9 March 2012. 45 It would appear that a lease was subsequently entered as of 22 March 2012, however the lessee was the second respondent and not the lessee named in the lease provided by the selling agent. However, as a result of 73 Union Street's caveat on the property, this subsequent lease could not be registered, without that caveat being removed. I understand that what followed was a series of negotiations between April and July 2012 so that the caveat could be withdrawn. On 22 June 2012, the solicitor for the City Convenience group of companies, Mr Tim Breen, forwarded to Mr Soltan, for his consideration, a lease, a shareholder agreement and a deed of release. The lease named J & S Group is named as lessor and the second respondent as lessee and the commencement date of the lease was 22 March 2012. 139From now on, I will refer to the lease allegedly granted by J & S Group to the third Respondent, Mr Gebara, as 'the First Lease' and the lease granted to the Second Respondent, Union City Convenience, as 'the Second Lease'. 140Whether the First Lease was granted as alleged. Mr Soltan argued that the Tribunal's findings at [43] with regard to the granting of the First Lease should be treated as unreliable and set aside, for the following reasons:- (a) The transcript of the Tribunal's ex tempore decision given on 24 November 2012 does not include the last five sentences of paragraph [43] of the written reasons (commencing with the words 'However, Mr Jamal Gebara...'). (b) This transcript includes, at pp 7-8, the following sentence in lieu of the omitted five sentences:- Under the agreement a lease of the premises was a matter for J & S Group and while the evidence in regard to the lessee of the premises pursuant to that agreement is not altogether clear in my mind it is not a matter that is necessary for the Tribunal to determine for the purposes of these proceedings. (c) This transcript, but not the written reasons, also includes the following sentence at p 10:- I have also not made any findings in regard to the leases relied on by J & S Group and the second and third respondent (scil: respondents) in these proceedings as it has been unnecessary for me to do so. (d) These three alterations to the ex tempore reasons were 'impermissible' because they altered the substance of the reasons. They should therefore be ignored, in accordance with the Court of Appeal's rulings on this topic in Todorovic v Moussa [2001] NSWCA 419 at [41 - 55]. (e) The transcript of the hearing on 13 November 2012 (p 60, line 44 to p 61, line 12) includes the following exchange between Higgins DP and Mr Gebara during the cross-examination of the latter:- Q: I'm just having a bit of difficulty because the people all seem to be the same and some these things like that First Lease just appear to be convenient. It wasn't in fact ever a lease? A: We could not in fact have registered the lease because they-- Q: I don't mind whether you can register it or not, but it just seems to be - because your evidence was, and I'm saying this to you in fairness, your evidence earlier was that no rent was ever paid from the business. You're saying you owned the business, no rent was paid, yet you say there was a lease in place which required rent to be paid. A: Yes as I said before, J & S and Jamal Gebara is - I mean it's related entities, if J & S went down I have to bail them out, so at the end my name instead, I'm acting as guarantor for J & S. Q: I understand that. But you do understand there are different - look I'll let Mr Bennett ask you some questions about that if he wishes to. But I'm having some difficulty about seeing the lease that was prepared initially as being in fact a genuine lease? A Yes it is a genuine lease... (f) The First Lease, though executed by both of the parties to it, bore no date of execution and was never registered. Furthermore, Mr Mohamed Gebara, who signed it in his capacity as sole director of J & S Group, did not provide any evidence as to the date of execution. (g) Although, as the Tribunal noted in its written reasons at [43], Mr Mohamed Charkaoui, the Administration Manager for City Convenience Stores, requested Mr Breene by an email on the evening of 10 November 2011, to prepare a lease of the Land to Mr Jama Gebara instead of City Convenience Stores, Mr Gebara was unable during cross-examination (see Transcript, 13 November 2012, pp 32-36) to confirm a statement in his affidavit that the date on which he executed the lease was 11 November 2011. (h) When asked by Mr Bennett in re-examination whether he had any recollection of any written lease being 'put in place' at that time, Mr Charkaoui answered 'I don't recall anything, no. I remember discussing it just vaguely but I don't remember any lease in place or any negotiation at all' (Transcript, 13 November 2012, p 79, line 49 to p 80, line 2). (i) There was no reply to an email dated 13 January 2012 from Mr Soltan's solicitor to (inter alia) Mr Gebara, pointing out that 'there may not be a lease between the landlord and the tenant' at the Land and suggesting that 'it would be prudent to establish such a lease'. (j) The first occasion on which Mr Soltan was given to believe that the First Lease existed was during the hearing on 30 August 2012 of 73 Union Street's application for interlocutory relief. (k) Although Mr Breene was asked to produce the First Lease at this hearing, he produced the Second Lease instead. He subsequently refused to attend the Tribunal hearing during November 2012 in order to give evidence as to the date and circumstances of execution of the First Lease. (l) Taking account of all these matters, it was clear that the document annexed to Mr Gebara's affidavit and purporting to constitute the First Lease was 'authored'. 141Mr Bennett's submissions on these matters were to the following effect: (a) the relevant documentary evidence - notably the email from Mr Charkaoui to Mr Breene on 10 November 2011 and the First Lease itself - was sufficient to establish, in the absence of countervailing evidence, that this lease was genuine and was executed on or about 11 November 2011, as asserted by Mr Gebara in his affidavit; (b) in any event, a finding that it was executed some time later would still (as the Tribunal held) provide insufficient grounds for concluding that as from 10 November 2011 the Land was subject to a lease to 73 Union Street; and (c) for reasons already explained (see above at [77 - 83]), Mr Soltan could not justifiably complain about Mr Breene's absence from the Tribunal hearing. 142My position on these matters is broadly in line with that conveyed in the Tribunal's ex tempore decision (and for that reason implements the principles stated by the Court of Appeal in Todorovic v Moussa). The evidence regarding the date of execution of the First Lease is not wholly satisfactory. A finding, however, that it was executed significantly later than 11 November 2011 would not be enough to substantiate 73 Union Street's case that by virtue of section 8 of the RL Act it became a lessee from J & S Group as from the day (11 November 2011) when Mr Soltan entered into possession of the Land with the consent of J & S Group. 143The relevance of the date of execution of the First Lease. My reasons for arriving at this last conclusion are as follows. First, the presence of clause 13.3 in the Call Option Agreement indicates that the parties did not contemplate the granting of a lease to 73 Union Street once 7-Eleven had vacated the Land. The 'consensus' between them was instead that the Land should be leased, on specified terms, to a 'related entity'. It was not suggested that 73 Union Street was a 'related entity'. Secondly, even if the evidence regarding the First Lease was insufficient to establish that it was executed, as J & S Group alleged, on 11 November 2011, it included one document - namely, a copy of Mr Charkaoui's email of 10 November 2011 to Mr Breene - that evinced a clear intention by J & S Group, as at that date, to fulfil its obligation under clause 13.3 to grant a lease of the Land to a 'related entity'. It was not claimed by Mr Soltan that this document lacked authenticity. Thirdly, nothing done by J & S Group after 10 November 2011 gave any grounds for believing that it intended to resile from the conduct (leasing the Land to a 'related entity') to which it had committed itself in clause 13.3. 144It appears to me that an implicit component of Mr Soltan's argument on this matter is that if, as he maintained, he entered into occupation of the Land before any lease had been granted pursuant to clause 13.3, he - or rather his company, 73 Union Street - must have done so as a lessee. In other words, if at that time there was no lease to a 'related entity', a lease to 73 Union Street must have come into being, by virtue of section 8. This wholly ignores a third set of possibilities: that (a) there was no lease at all; (b) J & S Group, as the owner in fee simple, retained the right to possession; and (c) Mr Soltan acquired only such rights of occupation as were necessary to enable him to participate, whether as 'manager' or otherwise, in establishing and carrying on the Business as contemplated in clauses 12.3, 13.1 and 13.2. 145The term 'related entity'. A further argument raised by Mr Soltan with regard to the First Lease was that a lease to Mr Gebara was not within the scope of clause 13.3, for two distinct reasons. 146The first of these was that it was incorrect to accede to the submission by J & S Group that the term 'related entities' in clause 13.3 should have the meaning attributed to it in section 9 of the Corporations Act 2001 (Cth). According to this interpretation, Mr Gebara was a 'related entity' because his son, Mr Mohamed Gebara, was the sole director of J & S Group. This follows from the following paragraphs within the definition:- "related entity" , in relation to a body corporate, means any of the following:... (d) a director or member of the body or of a related body corporate; (e) a relative of such a director or member;... 147Mr Soltan argued that the term should instead be interpreted in accordance with the final sentence of the following extract from the Federal Court's judgment in Fadu Pty Ltd (ACN 007 815 090) v ACN 008 112 196 Pty Ltd as Trustee of the "International Linen Service Unit Trust" [2007] FCA 1965 at [91]:- 91 The restraints bind only the four named covenantors and these do not include Tip Top. Nonetheless, it obliges the parties to "procure that their related entities do not" act inconsistently with the restraints. The applicants have, in a fashion, called into question the meaning of "related entities" suggesting - surprisingly given this formula applies to the related entities of natural persons as well as of Fadu - that the terms have the same meaning as related bodies corporate in s 50 of the Corporations Act 2001. This clearly is not the case. In its context, as the respondents submit, related entities seem clearly to have been intended to signify corporate bodies over which the covenantors jointly or severally have control such that they have the capacity to procure the required result... 148In my opinion, however, the principle that legal terms should be interpreted according to their technical legal meaning is applicable here, for the reasons outlined above at [101 - 102]. The particular meaning ascribed to 'related entity' in Fadu was appropriate to the context in which the term was used. As indicated in the judgment at [33], it appeared in a document entitled 'Heads of Agreement' binding the vendors of various businesses not to engage in activities competing with those of the purchasers. This is a very different context to that of the Call Option Agreement. 149The second argument put by Mr Soltan with reference to the term 'related entity' was that the First Lease, and indeed the Second Lease also, did not comply with clause 13.3. The reason, he said, was that the following requirements were implicit in the clause and were not adhered to: (a) before any lease was entered into, there had to be agreement between J & S Group and 73 Union Street as to 'the substance and form of the related entity'; (b) the 'related entity' had to be 'under the control of' these two parties in order to 'allow them to implement the Call Option Agreement during the Call Option Period and the subsequent possible exercise of the Option'; and (c) it also had to take the form of a 'tenancy in common', with J & S Group and 73 Union Street holding 70% and 30% interests respectively. 150In support of these submissions, Mr Soltan argued that because Mr Mohamed Gebara, as the sole director of J & S Group, had signed a consent clause on the Caveat, J & S Group must be taken to have agreed that the choice of a 'related entity' to become a lessee under clause 13.3 must have the consent of 73 Union Street. 151Relying on these submissions, Mr Soltan argued further that J & S Group and 73 Union Street 'appeared to have abandoned' strict compliance with clause 13.3. 152In my judgment, these implications do not arise from clause 13.3. To rule that they did arise would effectively amount to rewriting the clause. Interpreted according to my ruling at [148], the clause provided for a lease of the Land to be granted by J & S Group to a person (corporate or natural) that fell within the definition, familiar to lawyers, of 'related entity' in the Companies Act. Under accompanying clauses of the Call Option Agreement, 73 Union Street would be entitled, before exercise of the Option, to 30% of the income of the Business. Once the Option was exercised, its entitlement to a 30% interest in the Land and the Business would include an entitlement to 30% of the rent obtained under any lease of the Land (including a lease granted under clause 13.3). None of the implicit requirements urged by Mr Soltan were necessary, as a matter of 'business efficacy', to enable these express provisions of the Call Option Agreement to operate according to their terms. 153My ruling on Mr Soltan's submission based on J & S Group's consent to the Caveat is that, as the form of caveat states, this consent was 'for the purposes of section 74(6) Real Property Act 1900 only'. That provision states that if such consent is given by the registered proprietor of the property to which the caveat applies, the Registrar-General need not send notice of the caveat to the proprietor. It does not carry the implications that Mr Soltan sought to ascribe to it. 154The Second Lease. Mr Soltan's submissions regarding the Second Lease did not include any claim that it lacked authenticity. He maintained instead that it was ineffective because it could not override the rights that 73 Union Street had acquired as a lessee by virtue of entering into possession of the Land some months earlier. 155At the same time, Mr Soltan drew attention in his submissions to evidence, including statements in his own affidavits, establishing the following matters. During December 2011 he asked representatives of J & S Group to enter into a lease with another entity, subject to his approval, in order to stave off the possible repossession of the Land by a mortgagee to which J & S Group owed a significant sum. On 8 March 2012, he sent a request to J & S Group to incorporate a company that would become the lessee, stipulating that he should have 30% of the shares and J & S Group should have 70%. Negotiations were conducted during June and July 2012 for the incorporation of such a company and the granting of a lease to it, but they eventually broke down. Subsequently, J & S Group established Union City Convenience and granted the Second Lease to it. Although in an original version this lease was stipulated to commence on 22 March 2012, this date was corrected to 25 July 2012, the date of execution, by an undated 'deed of rectification'. The deed of rectification made express reference to the First Lease. 156In my opinion, a further aspect of this evidence, to which the Tribunal adverted at [49], assists J & S Group's case, not that of 73 Union Street. It was to the effect that between December 2011 and July 2012, Mr Soltan made no attempt to assert that, by virtue of his occupation of the Land since November 2011 and his activities in the Business, his company, 73 Union Street, had become a lessee of it. During this period, he did not know that J & S Group claimed to have granted the First Lease. He believed that no lease had been granted. 157In his submissions, Mr Soltan sought to explain his failure during this period to contend that 73 Union Street had become the lessee by saying that he did not appreciate the impact of section 8 of the RL Act. He added that in this regard he was not alone among people (including lawyers) who operated in the context of retail leases. But the stance that he took during this period indicated that the granting of a lease to a party other than 73 Union Street was, as he viewed it, a continuing element of the agreement between that company and J & S Group. This adds support to my conclusion that on 10 November 2011, when with the consent of J & S Group he entered into occupation of the Land, there was no 'consensus', such as section 8 requires, that he should do this in the capacity of a lessee or as the director of a lessee. The claim by J & S Group that Mr Soltan or his company was appointed as manager of the Business 158Alleged errors in the Tribunal's reasoning. On the question whether Mr Soltan (or 73 Union Street) was engaged as the manager of the Business conducted on the Land after 7-Eleven vacated it, the Tribunal, in its written reasons, made the following observations (at [5], [38] and [40 - 42]):- 5 J & S Group dispute that the terms of the call option gave 73 Union Street a right to occupy the premises as lessee, or that 73 Union Street occupied the premises as a lessee pursuant to an agreement otherwise. It asserts that at the request of Mr Haney Soltan, the sole director of 73 Union Street, Mr Gebara, the third respondent and controller of J & S Group and other entities within the City Convenience group of companies, had appointed Mr Soltan to act as manager of the City Convenience business operating from the premises. 38... Mr Soltan has produced no evidence that 73 Union Street paid rent to J & S Group or that it had executed a lease with J & S Group. Indeed, his evidence is contrary to this. His evidence is that at the time he entered into the loan and call option agreement he was happy to loan J & S Group $150,000 on the basis of being given an option to purchase a 30% interest in the premises and the business that was to be operated from it once it was vacated by 7 Eleven. In his evidence he said that he told Mr Gebara that he needed to 'trial' the business for one year once 7 Eleven vacated it. After a year, he said he would be in a position to decide whether to purchase the 30% interest in the land and the business operating from it. That is, at all times his intention was to trial/test the business for a year to see whether it was, or was not profitable and whether it was worth his while to make the investment in the terms discussed with Mr Gebara in November 2010. 40 Leaving the terms of the agreement aside, there is no evidence that on 10 November 2011 when Mr Soltan took the keys to the premises that 73 Union Street was operating a business, let alone a business from the premises. The evidence of Mr Jamal Gebara was that the 30% share of the profits was in lieu of a management fee. 41 The onus is on 73 Union Street to establish that it was a lessee in the relevant sense. In this regard, I note that there is no evidence to show that 73 Union Street was registered for the purposes of GST, or that it opened a trading account in regard to the business that was being operated from the premises. What is in evidence is that Mr Soltan described himself and his company (73 Union Street) as 'manager' of the business. I accept he may have made payments for some stock and other matters in regard to the opening of the business. However, there is no evidence that 73 Union Street provided these funds. The evidence is that, in the main, stock was bought by and accounted for through a City Convenience company and the second respondent, the Union City Convenience Pty Ltd. 42 In my view, the schedules of weekly sales and expenses Mr Soltan alleges were provided to the City Convenience business do not demonstrate that his company, 73 Union Street, was operating a business from the premises. They are, however, consistent with Mr Soltan or his company being the manager of the business. 159In the transcript of the Tribunal's ex tempore reasons, the following additional passage appears immediately after paragraph [42]:- In the absence of Mr Soltan being able to provide evidence other than mere assertions that at the time he or he on behalf of 73 Union Street entered the premises pursuant to an agreement that he was the lessee of the premises the only inference from the material before the Tribunal is that he in fact entered the premises in his capacity as a manager as asserted by the respondents. 160In his submissions to me, Mr Soltan argued that this reasoning by the Tribunal was flawed for the following six reasons. 161First, the Tribunal's statement, in the passage just quoted from its ex tempore reasons, as to the 'only inference' available from the material before it was erroneous in law because 'a wide range of inferences' might have been available. Mr Soltan did not, however, give any examples of these additional inferences. At most, it could be said that the Tribunal, in this passage, overstated the strength of the evidence supporting its conclusion, within that passage, that Mr Soltan actually was the manager. In its written reasons, its only explicit finding (at [41]) was that a specified aspect of the evidence was 'consistent' with his or his company being the manager. It treated this lesser finding as sufficient for the purposes of its ultimate conclusion that 73 Union Street was not a lessee. Even if, as Todorovic v Moussa [2001] NSWCA 419 requires, the ex tempore reasons should be regarded as the authentic decision of the Tribunal, what I have described as a possible overstatement of the strength of certain evidence does not constitute an error of law such as to justify appellate interference. 162Secondly, Mr Soltan advanced a number of more specific contentions to the effect that the Tribunal's findings regarding his alleged role as manager of the Business were unwarranted in the light of the evidence. His written submissions included the following propositions: (a) there was no evidence at all to substantiate these findings; (b) the Call Option Agreement did not provide for him to manage the Business; (c) he was 'not a party to any agreement' with J & S Group; (d) Mr Gebara's evidence that he and Mr Soltan agreed orally that Mr Soltan should 'manage the store' for him was of little or no value because it did not specify the time or the place where this allegedly occurred; (e) in cross-examination, Mr Soltan consistently denied having worked as manager; and (f) the Tribunal, when implicitly preferring Mr Gebara's evidence on this matter to that of Mr Soltan, erred in law through failing, in contravention of principles stated by the Court of Appeal in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [64 - 65], to give reasons for its finding that Mr Gebara was the more credible witness. 163My views on the first three of these propositions can be stated briefly. Proposition (a) is obviously incorrect in the light of the testimony of Mr Gebara referred to in (d). Proposition (b) is correct as far as it goes, but does not eliminate the possibility that an informal management agreement arose in the manner described in this testimony. On the assumption that the agreement described in this testimony was made by Mr Gebara on behalf of J & S Group, acceptance of this testimony would undermine Proposition (c). 164Proposition (d) is incorrect. Mr Gebara stated in paragraph 61 of his affidavit that the conversation in question occurred on or about 12 November at 'the premises' (i.e., the Land). In cross-examination (see Transcript, 13 November 2012, p 32, lines12 -17), he said that it occurred just after 7-Eleven...' and gave 'about 5 November 2011' as the date. In seeking to refute this testimony at paragraph 4 of his affidavit of 8 November 2012, Mr Soltan himself identified the alleged conversation as one occurring 'on 12 November 2011 in the premises'. 165Proposition (e) is correct to the following extent. In the circumstances just mentioned, Mr Soltan denied having had the alleged conversation with Mr Gebara 'on 12 November 2011 in the premises'. In the next paragraph of his affidavit, he said that the 'only conversation that he had' with Mr Gebara was on 9 November 2011 and that during this conversation he was told that Mr Gebara had just received the keys to the premises from 7-Eleven. During cross-examination on 12 November 2012 (in this connection, Mr Soltan referred to the transcript at p 56, line 32 to p 57, line 2), he was asked more than once whether he had 'worked for' J & S Group. He answered that he never had done so. 166Proposition (f) might well have been substantiated if the Tribunal had relied to any significant extent on Mr Gebara's testimony in arriving at its finding, in its ex tempore reasons, that Mr Soltan 'entered the premises in his capacity as a manager', or at its lesser finding, in its written reasons at [41], that such a conclusion relating to him or to 73 Union Street was 'consistent' with the evidence. But the Tribunal made no mention of this testimony. Its alternative findings on this question were based on the other matters mentioned in the extracts that I have quoted. 167Mr Soltan's third argument was to the effect that a manager in some-one else's business 'will not spend $25,783 in cash out of his own money' in order to set up the business. This specific amount appeared in a table, annexed to Mr Gebara's affidavit, as the total of a number of invoices paid by Mr Soltan on account of expenses in setting up the Business. But Mr Gebara said in cross-examination (see Transcript, 13 November 2012, p 68, line 27 to p 69, line 49) that according to the understanding between them Mr Soltan would have been entitled to recoup an appropriate proportion of this expenditure from the takings of the Business. In his affidavit of 25 September 2012 at paragraph 42, Mr Soltan confirmed that Mr Gebara had told him to do this. 168A fourth argument by Mr Soltan, allied to the third, was that the Tribunal erred in stating as follows in paragraph [41] of its reasons:- I accept he [Mr Soltan] may have made payments for some stock and other matters in regard to the opening of the business. However, there is no evidence that 73 Union Street provided these funds. 169Mr Soltan maintained that according to his testimony 73 Union Street did supply these funds. But if this is the case, a simple explanation is that according to clauses 12.3 and 13.1 of the Call Option Agreement, 73 Union Street was obliged to contribute 30% of the 'establishment and other costs in running the Business'. 170Fifthly, Mr Soltan argued that the Tribunal erred, in its written reasons at [41], in treating registration for the purposes of GST and the opening of a trading account as 'essential requirements for a "retail lease" to arise'. The short answer to this argument is that this is not what the Tribunal did. It merely observed that the fact that these two tasks were apparently not performed by 73 Union Street was a consideration suggesting that it was not a lessee. In fact, Mr Soltan acknowledged in cross-examination (Transcript, 12 November 2011, p 67, lines 36 to 45) that equally neither he nor 73 Union Street made any provision for the payment of employees' superannuation contributions or payroll tax. 171Sixth and finally, Mr Soltan argued that the Tribunal erred through failing to take account of four additional items of evidence, each of which suggested that 73 Union Street occupied the Land as a lessee. These items, and my responses to Mr Soltan's claims regarding them, are as follows:- Item (1): In paragraphs 40 to 42 of his affidavit of 25 September 2012, Mr Soltan deposed as follows: (i) between 19 and 23 December 2011, he caused three amounts totalling $6,500 to be deposited into the bank account of J & S Group, as rent payments; and (ii) on or about 28 December 2011, Mr Charkawi gave him a 'rent calculation sheet', which was attached to his affidavit. My response: None of this evidence is helpful. There is no documentary evidence substantiating the making of the three payments or their status as payments of rent. The 'rent calculation sheet' contains no reference to rent and no debit or credit entry that might relate to rent due on the Land. Item (2): An email dated 22 February 2012 from Mr Soltan to Mr Rino Zenari, a real estate agent engaged by J & S Group, included this statement: 'The occupier denies that there was any non-compliance with the by-law number 15 of the building whatsoever.' The email was sent in response to a Notice to Comply from the strata corporation, which Mr Zenari had forwarded to Mr Soltan. My response: When this statement is read in conjunction with the rest of the email, and with a passage in the cross-examination of Mr Soltan (Transcript, 12 November 2012, p 57, line 10 to p 59, line 28), the net result is to reinforce J & S Group's claim that he was the manager of the Business. At the end of the email, Mr Soltan inserted his name, followed by the words 'Manager, J & S Group'. In cross-examination, he maintained unconvincingly that he did this because Mr Gebara had given him authority to act as manager 'on this occasion only'. It was, he said, a 'one off authorisation'. He then made a similar claim with regard to an earlier email that he had sent to Mr Zenari on 23 November 2011 'on behalf of J & S Group Pty Ltd'. Item (3): An email dated 2 April 2012 from Mr Soltan to his solicitor, relating to a draft contract of sale of the Land that Mr Breene had sent to him for comment, included the following statements: 'I do not like the proposed lease attached to the contract of sale... Furthermore the lessee shows City Investment Pty Ltd where I hold no interest... It appears that Jamal still thinks that I am an idiot where I can be kept in the dark about what is going on... I do not mind but my interest has to be manifest as a lessee.' My response: This statement is of little or no significance because it bears upon Mr Soltan's claim that any 'related entity' to which the Land was leased under clause 13.3 had to be one in which he, or 73 Union Street, had a 30% interest. It was not an assertion that he or 73 Union Street had an existing interest as a lessee. Furthermore it was conveyed to his solicitor only. Item (4): An email dated 12 July 2012 by Mr Mohamed Gebara to Mr Soltan included the following statement: 'Without saying more than I have to, did you not attend our office with Mazin as Witness, we sat down, we calculate the agreed rental due to J&S Group Pty Ltd, I did a spreadsheet, you have full knowledge at the time, we even agreed on what was the shortfall after all the direct debits had been made...' My response: This statement is of limited evidentiary value because it is not clear whether the 'agreed rental' was rent due from 73 Union Street under an existing lease - as Mr Soltan would argue - or rent that was expected to be paid out of the profits of the Business in satisfaction of the rent obligations of Mr Gebara. In cross-examination (Transcript, 13 November 2012, p 47, line 38 to p 49, line 30), Mr Gebara did in fact say that he did not pay any rent to J & S Group because it was intended that all revenue of the Business to which this company had an entitlement was paid to it anyway. More importantly, the spreadsheet mentioned in the email of 12 July 2012 was not in evidence. 172For the foregoing reasons, Mr Soltan has failed to persuade me that the Tribunal erred in law, in circumstances justifying appellate interference, through finding, in its ex tempore reasons, that he became the manager of the Business. He has also failed to persuade me that the Tribunal erred in any respect at all in stating, in its written reasons, that such a finding was 'consistent with' the evidence. 173Other evidence supporting the Tribunal's findings. The following three items of evidence provide further support to these findings. 174The first of them was mentioned by the Tribunal at [39] and received significant emphasis in Mr Bennett's submissions. It is that Mr Soltan, according to his own testimony, told Mr Gebara that he wished to 'trial' the Business for one year once 7 Eleven vacated it. After a year, he said he would be in a position to decide whether to purchase the 30% interest in the Land and the Business operating from it. Evidently, this activity of 'trialling' the Business could conveniently be conducted by a person who had taken over the role of managing it. If, as Mr Soltan claimed, a lease had come into being, 73 Union Street would have been bound (unless released from this obligation) to remain in possession for the period of the lease even if Mr Soltan had found the Business to be unsatisfactory. 175Secondly, Mr Soltan acknowledged during cross-examination (Transcript, 12 November 2012, p 60, line 21 to p 61, line 15) that during December 2011 he chose to take out business insurance for the Business in the name of J & S Group only. I regard this as significant for two reasons: (a) this decision as to the nature of the insurance cover to be obtained is characteristic of the decisions made by a manager; and (b) Mr Soltan did not ask for the prospective 30% interest to be held by 73 Union Street to be noted on the policy. 176Thirdly, an email sent to Mr Soltan on 11 July 2012 by 'Mohamed' - i.e., apparently, Mr Mohamed Gebara, though this was disputed - commenced with the following sentence: 'All the managers are frustrated in the office in your constant inabilities to manage the business at Union Street in the best interests of the shareholders and director' (my emphasis). This email formed part of the correspondence leading to the termination of Mr Soltan's occupation of the Land. If Mr Soltan did not consider himself to have been, at that time, the person employed at the Land to manage the Business 'in the best interests of the shareholders and director' of J & S Group, one would have expected him to say so when replying to this email. It was put to him during cross-examination that according to his view of the situation it would have been appropriate for him to assert in response that he was not a manager of the Business, but a '30% owner' and a 'tenant'. He acknowledged, however, that he made no response along these lines (see Transcript, 12 November 2012, p 74, line 48 to p 75, line 22). 177Case law regarding the role of manager. Mr Soltan sought to argue that if his or 73 Union Street's role was indeed that of a manager, two decisions of the Tribunal under the RL Act made it clear that this would be sufficient to give rise to a lease. These decisions were O'Neill v Henry [2009] NSWADT 254 and Lu v Miao [2011] NSWADT 309. 178In my decision in the former case, which I have already outlined, I mentioned at [11] that the lessee (Mr Henry) gave the lessors (Mr and Mrs Dykes) to believe that the party whom I held to be a sublessee (Mr O'Neill) had taken over as 'manager' of Mr Henry's business. In fact, Mr O'Neill commenced his own business in the premises. This statement by Mr Henry to the lessors would appear to be the only basis for Mr Soltan's argument that the Tribunal's decision in the present case, in so far as dealt with the issue of 'a manager of [a] business' appeared to be 'inconsistent with' my decision in O'Neill v Henry. This submission has no substance. 179In Lu v Miao, one of the questions to be determined was whether an agreement whereby the Applicants took over a retail business being run by the Respondent and her husband (Mr Chen) in premises occupied under a lease was a management agreement or created a sublease of the premises to the Applicants. According to the agreement, the Applicants were to pay the weekly rent due under the head lease, together with a further weekly amount to the Respondents, and were to purchase stock owned by the Respondents at an agreed sum. The Applicants complied with these obligations, entered the premises and took over conduct over the business. The weekly amount payable to the Respondents was later reduced at the Applicants' request because the business was not doing well. 180At [102 - 104], Patten DP held that a sublease was created for the following reasons:- 102 As it seem to me to the contest is between whether (as the Applicants asset) there was a lease and sublease of the business and the premises granted by the Respondent to the Applicants, or whether (as the Respondent asserts) the Applicants merely contracted to manage the business on the Respondent's behalf. In arguing the latter case, Mr Bors [counsel for the Respondents] referred to an absence of any direct reference in the initial conversations on the Applicants' case to a sublease; to the absence of any obligation to reinstate the premises; and to the fact that initially services were not transferred into the names of the Applicants. 103 In support of his contention that the Applicants were managing the business, Mr Bors pointed to the Respondent agreeing to a reduction in the weekly sum payable when there was a downturn in the business, to the dealings between the parties in relation to stock and to the training given by Mr Chen and Ms Miao. 104 As it seems to me most of these points are in truth equivocal. In my view the actuality of what occurred points strongly to an agreement whereby the Respondent subleased the premises to the applicants and leased to them the plant fittings, fixtures and goodwill of the business. In particular I refer to the evidence that from the very beginning the business name, Cherry's Groceries was registered; that the Applicants acquired an ABN number and were responsible for BAS statements; that services were transferred to them; that the Respondent and her husband did not bring the business to account in any way; and only belatedly returned as income part of the sums they received from the Applicants; and that neither the Respondent nor Mr Chen, on the evidence I accept, took virtually any interest in the state of the business. This, in my opinion, was not the case of someone carrying on the business on behalf of someone else. Rather, in truth, the Applicants were carrying on the business for themselves, albeit under an arrangement which, in no way satisfactorily protected their interests. 181Mr Soltan submitted that this case stood as authority for the proposition that once the owner of a retail business allows a third party into occupation of its retail shop to operate the owner's business for value, a retail lease is deemed to have been created, even though it is contemplated by the parties that the third party should be the manager of the business on behalf of the owner. 182In my opinion, this proposition is neither correct in its own terms nor supported by Lu v Miao. As Patten DP made clear, the Applicants in that case conducted their own business in the premises and attended to all the other matters identified in paragraph [104] of his decision. They also paid the amount of weekly rent owed by the Respondent under the head lease and an extra weekly amount to be retained by the Respondent. Patten DP's decision was based on these factors, not the entry into possession by the Applicants in order to manage a business that initially belonged to the Respondents. 183Within the present context, Mr Bennett drew to my attention an unreported decision of the Supreme Court, which has not proved to be readily accessible. The parties' submissions relating to it relied on the following summary in a case that I have already mentioned, Bigdale Pty Ltd trading as Enigma at the Royal Motor Club v Royal Motor Club of NSW Port Hacking Branch [2010] NSWSC 1196 at [77]:- 77 The defendant next submits that Windeyer J's decision in Constantinos Trembelas v Cyrus Community of New South Wales, (unreported), Supreme Court of New South Wales, 2 June 1998, in which a club's caterer was held not to have rights under the Retail Leases Act, applies directly here. In Constantinos Trembelas his Honour found that the licensee of a bistro kitchen in a community club premises did not have a right of occupation within the Retail Leases Act because the right was not a licence to carry on a "business" but rather to operate only part of a business, which does not fall within the Act. His Honour found that the other part of the business, namely, the provision of drinks waiters and cleaning, was conducted by the defendant club in that case... 184At first sight, this decision might appear to provide assistance in resolving the issue that I am presently discussing, because clause 12.3 of the Call Option Agreement provided for the Business to be established by both J & S Group and 73 Union Street. But there was no suggestion that the parties agreed that different 'parts' of the Business should be operated by different parties. In particular, it was not suggested that Mr Soltan or 73 Union Street should have a right of occupation limited to operating any specific 'part' of the Business. 185My conclusion on the 'management issue'. For the foregoing reasons, I have concluded that the finding made by the Tribunal in its ex tempore reasons - namely, that Mr Soltan entered the Land in the capacity of manager of the Business - is in fact established by the evidence. The inference that should be drawn goes beyond the finding stated in the Tribunal's written reasons: i.e., that his or his company's being the manager was 'consistent' with the evidence. J & S did not allege, and the evidence did not reveal, that any formal document was prepared recording the terms of a management contract. But this does not preclude the finding that his or his company's role was in fact that of manager. 186I should make it clear at this point that the Business of which Mr Soltan or 73 Union Street became the manager during November 2011 was, both at that time and thereafter, a business owned solely by J &S Group. The right of 73 Union Street to share in distributions of the income conferred by clause 13.2 did not make it a part-owner. That would only have occurred if it had exercised the Option, which it chose not to do. 187It is also useful to deal here with an argument raised by Mr Bennett. This was that if, as he maintained, Mr Soltan or 73 Union Street was properly to be characterised as the manager of the Business, being a business conducted on the Land and solely owned by the owner of the Land, section 5(b) of the RL Act would be applicable. 188Section 5(b) states:- 5 Certain retail shops excluded from the operation of this Act This Act does not apply to any of the following retail shops:... (b) shops that are used wholly or predominantly for the carrying on of a business by the lessee on behalf of the lessor... 189While at first sight, this provision might appear relevant, it is in fact not applicable. The reason is that my conclusion, like that of the Tribunal, is that the person (Mr Soltan or 73 Union Street) who carried on (i.e., managed) the Business 'on behalf of' the lessor (J & S Group) was not a lessee. My conclusions regarding occupation of the Land 190My conclusions so far may be summed up as follows:- 1. The terms of the Call Option Agreement did not give rise to a lease of the Land from J & S Group to 73 Union Street. 2. No such lease arose through the operation of section 8 of the RL Act, because there was no consensus between the parties that either the entry into occupation of the Land, or the payment of any amounts that might constitute rent, by 73 Union Street or its director, Mr Soltan, should be effected 'as lessee'. 3. The main reasons underpinning the preceding conclusion are these: (a) under clause 13.3 of the Call Option Agreement, the parties agreed that the Land, once vacated by 7-Eleven, should be leased by J & S Group to a 'related entity'; (b) 73 Union Street was not a 'related entity'; (c) on one occasion, involving the Second Lease, J & S Group took steps, without any objection in principle from 73 Union Street or its director, to lease the Land to a 'related entity'; and (d) the occupation of the Land by Mr Soltan commencing on 10 November 2011 was pursuant to an informal agreement with J & S Group whereby he or 73 Union Street would be the manager of the Business to be established there with J & S Group as owner. The outcome of the appeal against the Tribunal's substantive decision 191It follows from these conclusions, and from my rejection of the grounds of appeal alleging bias and denial of procedural fairness, that the appeal by 73 Union Street against Order 1 of the Tribunal's decision (by which it dismissed 73 Union Street's retail leases claim) should be dismissed. 192Although my reasons for this decision have been lengthy, this is attributable more to the number of grounds of appeal argued by Mr Soltan than to the strength of any of them. In so far as I have investigated case law and evidence to which the Tribunal did not refer, the results of this investigation have had the effect of confirming the correctness of its decision. The question of costs 193Neither of the parties' submissions in the appeal dealt with 73 Union Street's appeal against the Tribunal's costs order. 194At paragraphs 154 to 159 of his written submissions, Mr Bennett applied on behalf of the Respondents for an order for that their costs of the appeal be paid by 73 Union Street or by its agent, Mr Soltan. 195In his submissions, Mr Soltan did not respond to this application. 196I direct as follows:- (a) The Respondents are to file and serve within 21 days (i) any submissions that they may wish to make in support of the Tribunal's costs order made on 14 November 2012 (Order 2) and (ii) their submissions in support of their application relating to the costs of the appeal. (b) The Appellant is to file and serve within a further 21 days (i) its submissions in support of its appeal against the Tribunal's costs order and (ii) its submissions relating to the costs of the appeal. (c) The Appellant's agent, Mr Haney Soltan, is to file and serve, within the same period, his submissions relating to the Respondents' application (if this is pressed) for an order that he pay their costs of the appeal. (d) If the Appeal Panel is of the view that any party should be permitted to file and serve further submissions in reply, it will ask the Registrar to convey appropriate directions to the parties. (e) These questions as to costs will be determined 'on the papers', pursuant to section 76 of the ADT Act. ********** 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: 19 July 2013