Lane Cove 83 Pty Limited v Vodafone Network Pty Limited [2017] NSWCATCD 13

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lane Cove 83 Pty Limited v Vodafone Network Pty Limited [2017] NSWCATCD 13 Hearing dates: 21 December 2016 Decision date: 07 March 2017 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1 The lease for the premises being a telecommunications base station is not a retail shop lease. 2. The Tribunal does not have jurisdiction. Catchwords: Sections 3 and 5 of the Retail Leases Act, 1994, whether premises are a retail shop and whether in a retail shopping centre or office tower Legislation Cited: Retail Leases Act, 1994 Cases Cited: Diamond Certification Laboratories Pty Ltd v The Trust Company Ltd [2015] NSW CATCD 122

Honings Bakery Pty Ltd v Verialis Pty Ltd [2014] NSW CAT CD87

Manly Council v Malouf t/as Fusion Point (2004) NSW CA 299 Texts Cited: Shorter Oxford Dictionary Category: Principal judgment Parties: Lane Cove 83 Pty Limited (Applicant) Vodafone Network Pty Limited (Respondent) Representation: Counsel: Mr N Owens SC (Applicant) Mr J Simpkins SC (Respondent)

Solicitors: Mayweathers (Applicant) Bird and Bird (Respondent) File Number(s): COM 16/31935 Publication restriction: Nil

Reasons for Decision 1. The issue for determination by this Tribunal is whether a lease of part of the rooftop area of a building in Lane Cove (the Property) for use as a telecommunication base station is a 'retail shop lease' for the purposes of the Retail Leases Act 1994 (RLA). 2. Lane Cove 83 Pty Ltd (the applicant), as lessor, entered into a lease with Vodafone Network Pty Ltd (the respondent), as lessee, in respect of premises described in the lease as Part Folio Identifier 1/579164 being that part of the premises shown on the plan annexed to registered lease number 2644058W (the Lease) marked 'B', hatched black and thereon described as lease site (the premises). The permitted use under clause 4.1 of the Lease is "a telecommunications base station".