Anastopoulos v University of Sydney Union [2017] NSWCATCD 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Anastopoulos v University of Sydney Union [2017] NSWCATCD 6 Hearing dates: 13 September 2016 Decision date: 30 January 2017 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1. The 2.9 metre sliding door is not to be permanently closed.

2. Either party can restore this matter for Directions Hearing after 28 days from publication of these Reasons. Catchwords: Breach of covenant for quiet enjoyment Legislation Cited: Retail Leases Act, 1994 Cases Cited: Byrnes v Jokana Pty Ltd [2002] FCA 41 Vasile & Anor v Perpetual Trustee WA Ltd & Ors (1987) NSW SC 97829 Category: Principal judgment Parties: Nicholas Anastopoulos (Applicant) University of Sydney Union (Respondent) Representation: Self (Applicant) Agent Taylor Nicholas (Respondent) File Number(s): COM 16/27189 Publication restriction: Nil

REASONS FOR DECISION 1. The respondent, University of Sydney Union (USU) is an unincorporated association affiliated with the University of Sydney (University). It has the right to use and occupy various parts of the university campus and property owned by the University to provide and make services available for the benefit of students of the University, pursuant to an Occupation Licence between the University, as licensor, and USU, as licensee, commencing 1 January 2007 (Head Licence). 2. Under clause 15 of the Head Licence, USU is permitted to sub‑licence part of the property owned by the University with the consent of the University. One of these properties is the Jane Foss Russel building (JFR Building). 3. On 8 January 2010, USU granted a licence to Nicolas Anastopoulos (the applicant) in respect of the area known as S Retail Area 6 (the premises) for a term of six years (JFR Licence). The permitted use of the premises pursuant to the JFR Licence is selling and serving food items limited to those set out in the approved menu in Annexure E2. 4. On 26 April 2012, USU also granted a licence to the applicant in respect of the area known as Shop [***], Wentworth Building (Wentworth Licence). The Wentworth Building is adjacent to the JFR Building and the two buildings are interconnected. 5. The applicant operated cafes from the two licensed areas. There has been a series of disputes between the parties regarding both licences concerning the opening up of a competing cafe in the Wentworth Building by USU and a complaint by USU that the applicant was serving food, such as burritos and Vietnamese rolls, contrary to the permitted use as set out in the JFR Licence. These disputes were resolved by mediation and subsequently settled between the parties. 6. Now there is an ongoing dispute regarding the JFR Licence. On 9 June 2016, the applicant filed an Application for Original Decision seeking orders from the Tribunal that the applicant be allowed to reopen a sliding door between the foyer in the JFR Building and the premises, that the applicant be granted a rent reduction under s 34 of the Retail Leases Act 1994 (RLA) and for a claim for loss of profits as a consequence of the actions by the University and USU by closing the sliding door. There was also a claim of unconscionable behaviour by USU but that claim seems not to have been further pursued in the litigation. 7. Again this dispute was the subject of a mediation and on 19 April 2016 an agreement was reached between the parties as a result of the mediation. However, whatever was agreed upon has not been carried out to the satisfaction of the applicant, partly I assume because such agreement was predicated upon USU obtaining the consent of the University. In any event the applicant has pursued its claim and seeks the orders from the Tribunal irrespective of what was agreed at the mediation. Consequently, I have not reviewed the mediation agreement.