Pozetu Pty Ltd v Alexander James Pty Ltd [2016] NSWCA 208

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pozetu Pty Ltd v Alexander James Pty Ltd [2016] NSWCA 208 Hearing dates: 14 July 2016 Date of orders: 12 August 2016 Decision date: 12 August 2016 Before: McColl JA at [1]; Ward JA at [2]; Sackville AJA at [3] Decision: 1. Refuse leave to the applicant (Pozetu) to appeal from the decision of the Appeal Panel of the Civil and Administrative Tribunal on 21 October 2015, insofar as the application for leave to appeal is based on Grounds 2-6 in the Draft Notice of Appeal. 2. Grant leave to Pozetu to appeal on the remaining grounds in the Draft Notice of Appeal. 3. Direct Pozetu to file a notice of appeal in the form of the draft in the White Book, but reflecting the grounds for which leave to appeal has been granted, within seven days. 4. Direct the first, third and fourth respondents to file within seven days an amended Notice of Contention incorporating a ground that the Appeal Panel erred in law to the extent that it found the first respondent's purported exercise of the option to renew the lease of Shop 1 created a valid and enforceable agreement for a new lease. 5. Direct the second respondent to file within seven days an amended Notice of Contention incorporating the ground referred to in Order 4. 6. Dismiss the appeal. 7. Dismiss the Summons filed on 1 April 2016 seeking judicial review of the Appeal Panel's decision. 8. Pozetu pay the costs of the first, third and fourth respondents of the application for leave to appeal and of the appeal. 9. Pozetu pay the costs of the second respondent of the application for leave to appeal and of the appeal. 10. Pozetu pay the costs of the first, third and fourth respondents of the Summons filed on 1 April 2016. 11. Pozetu pay the costs of the second respondent of the Summons filed on 1 April 2016. Catchwords: LANDLORD AND TENANT – Retail shop lease – purported exercise of option to renew – concession that the term of the lease stipulating alternative methods for ascertaining the rent was rendered void by s 18(3)(c) of the Retail Leases Act 1994 (NSW) – whether renewed lease void because of absence of an essential term – whether lessee was a tenant at will entitled to give one month's notice terminating the tenancy pursuant to s 127(1) of the Conveyancing Act 1919 (NSW). Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 32, 73, 83(1) Conveyancing Act 1919 (NSW), s 127(1) Retail Leases Act 1994 (NSW), ss 7, 15(1)(b), 18(3)(c), Supreme Court Act 1970 (NSW), ss 48(1), 69 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Alexander James Pty Ltd v Pozetu Pty Ltd (No 2) [2016] NSWCATAP 75 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; 149 CLR 600 Chan v Cresdon Pty Ltd [1989] HCA 63; 168 CLR 242 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 DCT Projects Pty Ltd v Champion Homes Sales Pty Ltd [2016] NSWCA 117 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544 Mercantile Credits Ltd v Shell Co of Australia Ltd [1976] HCA 9; 163 CLR 326 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 Placer Development Ltd v The Commonwealth [1969] HCA 29; 121 CLR 353 Pozetu Pty Ltd v Alexander James Pty Ltd [2014] NSWCATCD 183 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; 157 CLR 17 Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Category: Principal judgment Parties: Pozetu Pty Ltd (Applicant) Alexander James Pty Ltd (First Respondent) Christopher Dedman (Second Respondent) Christopher Hancock (Third Respondent) Anthony Maxworthy (Fourth Respondent) New South Wales Civil and Administrative Tribunal (Fifth Respondent) Representation: Counsel: Mr T Lynch / Ms R Francois (Applicant) Mr M Southwick (First, Third and Fourth Respondents) Mr M Pesman / Mr N Allan (Second Respondent)