Pyrmont Point Pty Ltd v Westacott [2015] NSWSC 783

Supreme Court New South Wales

Medium Neutral Citation: Pyrmont Point Pty Ltd v Westacott [2015] NSWSC 783 Hearing dates: 5 June 2015 Date of orders: 05 June 2015 Decision date: 18 June 2015 Jurisdiction: Common Law Before: Wilson J Decision: Leave to appeal refused; summons dismissed Catchwords: APPEAL – appeal from NCAT – statutory construction - 6(1)(b) of the Retail Leases Act 1994 – extrinsic material Legislation Cited: Civil and Administrative Tribunal Act 2013 Interpretation Act 1987 Retail Leases Act 1994 Supreme Court Act 1970 Cases Cited: Brutus v Cozens [1973] AC 854 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Maunsell v Olins [1975] AC 373 Pyrmont Point Pty Ltd (ACN 145199784) trading as "Red Bottle" v Westacott [2014] NSWCATCD 40 Pyrmont Point Pty Ltd v Westacott [2014] NSWCATAP 106 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 Category: Principal judgment Parties: Pyrmont Point Pty Ltd (Plaintiff) Albert Victor Westacott (Defendant) Representation: Counsel: D Smallbone (Defendant) Solicitors: Mr. J. Conomy, JDK Legal (Plaintiff) RJI Legal (Defendant) File Number(s): 2014/316028 Publication restriction: None

Judgment 1. HER HONOUR: On 5 June 2015 I refused leave to the plaintiff in these proceedings to appeal against a decision of the Internal Appeal Panel of the NSW Civil and Administrative Tribunal. The Summons filed by the plaintiff seeking that leave was dismissed, with costs in favour of the defendant. 2. These are my reasons for making those orders. 3. The plaintiff in these proceedings, Pyrmont Pty Ltd ("Pyrmont"), seeks leave to appeal against a decision of an Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) made on 16 December 2014, and cited at Pyrmont Point Pty Ltd v Westacott [2014] NSWCATAP 106. That decision was itself a determination of an appeal against a decision of a single member of the Tribunal, Pyrmont Point Pty Ltd (ACN 145199784) trading as "Red Bottle" v Westacott [2014] NSWCATCD 40. The decision of the Appeal Panel dismissed Pyrmont Point's appeal against the first decision, made by Senior Member Mullane on 25 March 2014. 4. By Summons filed in this Court on 12 January 2015 Pyrmont Point Pty Ltd seeks leave to appeal against the decision of the Appeal Panel. The defendant, Mr. Westacott, opposes a grant of leave. 5. Pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 and s 75A Supreme Court Act 1970, the Supreme Court has power to hear the plaintiff's appeal. Section 83(1) provides that an appeal lies by leave on a question of law against any decision made by the Tribunal in internal appeal proceedings. 6. The application to this Court for leave to appeal centres on the proper construction of s 6(1)(b) of the Retail Leases Act 1994 ("the Act" or "RL Act"), this being a question of law: Brutus v Cozens [1973] AC 854.