Freedom Group Australia Pty Ltd v RO Corporate Pty Ltd [2016] NSWCATCD 59

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Freedom Group Australia Pty Ltd v RO Corporate Pty Ltd [2016] NSWCATCD 59 Hearing dates: 17 May 2016 Decision date: 14 July 2016 Jurisdiction: Consumer and Commercial Division Before: S Thode, Senior Member Decision: 1 The lease between the parties is not a retail shop lease within the meaning of the Retail Leases Act 1994 (NSW). 2 The Tribunal does not have jurisdiction to hear and determine the issues between the parties. Catchwords: Retail shop – lettable area Legislation Cited: Retail Leases Act 1994 Cases Cited: Thompson v Easterbrook (1951) 83 CLR 467; Wood & Wilson v Bergman [2003] NSWADT 82; Moweno Pty Limited v Stratis Promotions Pty Limited (2002); Jones v Dunkel (1959) 101 CLR 298 Category: Principal judgment Parties: Freedom Group Australia Pty Ltd (applicant) RO Corporate Pty Ltd (respondent) File Number(s): COM 16/15195 Publication restriction: Nil

REASONS FOR DECISION ON COSTS APPLICATIONs

Introduction 1. On 29 March 2016, Freedom Group Australia Pty Ltd ("the applicant") filed an application in the Consumer and Commercial Division of the Tribunal, seeking a declaration that the oral lease entered into by the parties concerned a retail shop for the purpose of the Retail Leases Act 1994 (the Act). 2. The applicant further sought a declaration in the following terms: "this lease relates to the operation of a retail shop being Willow Tree Truck Stop on part of the premises in Lot 21 of Deposited Plan 1011519 New England Highway Willow Tree NSW 2329 comprising a service station building and associated improvements". The parties entered into an agreement on or about 12 December 2012 but a written lease between the parties was not executed. 3. The applicant also sought orders that the terms of the lease remain in effect until 13 December 2017 subject to the applicant paying to the respondent the sum of $14,000.00 per month plus council rates. 4. RO Corporate Pty Ltd (the respondent) submits that the Tribunal does not have jurisdiction to hear and determine the issues between the parties as the lease is not a retail shop lease as defined by the Act. The respondent maintains the predominant use of the premises is a service station and service stations are excluded from the definition of retail shop lease. 5. The applicant submits that the lease is a retail shop lease as defined by the Act, as the lease was an agreement under which the applicant agreed to grant for value a right of occupation for the purpose of the use of the premises as a retail shop, namely a roadhouse where trucks would pull in to use the amenities, eat and sleep. The use of the petrol bowsers and the use of the premises as a service station were not the "predominant use" of the premises within the meaning of the Act. 6. It is not in contention between the parties that, in order to succeed, the applicant bears the onus of proof to establish that it occupies a retail shop used wholly or predominantly for the carrying out of a business specified in schedule 1 to the Act. Service Stations are not included in the list of businesses set out in Schedule 1. 7. The hearing was conducted on 17 May 2016 to determine whether the premises are a retail shop for the purpose of the Act, and secondly, if the lettable area exceeds 1000sqm as prescribed by section 5b of the Act. 8. On or about 16 March 2016, the respondent by its solicitor served a notice terminating the applicant's lease of Lot 21 DP 1011519 (the premises). The applicant seeks a declaration that the premises are a retail shop for the purpose of the Act, and that the lease entered between the parties was a retail lease governed by the Act and should remain in effect until 3 December 2017.