SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council [2019] NSWCATAP 131

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council [2019] NSWCATAP 131 Hearing dates: 9 May 2019 Date of orders: 28 May 2019 Decision date: 28 May 2019 Jurisdiction: Appeal Panel Before: D Cowdroy OAM QC ADCJ, Principal Member D A C Robertson, Senior Member Decision: AP 19/07450: 1. Leave to appeal the decision of the Tribunal in proceedings COM 18/44358 is refused. 2. The appeal is dismissed

AP 19/11824 1. Extend the time for commencement of the appeal pursuant to section 41 of the New South Wales Civil and Administrative Tribunal Act to 8 March 2019; 2. Leave to appeal the decision of the Tribunal in proceedings GEN 18/09402 is refused. 3. Uphold the appeal in part; 4. Vary order 2 made by the Tribunal in proceedings GEN 18/09402 on 18 October 2018 so as to read: 2. SHH Ltd must pay the City of Parramatta Council's costs of and incidental to these proceedings on the ordinary basis, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014, and not to exceed $5000.

Orders in both Appeals

5. Any application in respect of the costs of either appeal to be made by written submissions filed and served within 14 days of the date of publication of this decision. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 6. If any party files submissions in accordance with order 5 above the other parties may file and serve submissions in response within a further 14 days. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. Catchwords: LEASES AND TENANCIES – retail and commercial tenancies legislation - licence by second respondent to first respondent of land for temporary purposes – first respondent entering into sub-licence with appellant – head licence terminated – notice given to terminate sub-licence – appellant claiming to have rights to remain in occupation - appellant alleging that the sub-licence did not contain all the relevant provisions – no evidence to support contention – whether mediation was required – whether dispute resolution process was required before orders for termination of sub-licence could be made – appellant claiming that the sub-licence constituted a retail shop lease under the Retail Leases Act – sub-licence capable of comprising a retail shop lease as defined – permitted use under sub-licence did not constitute a use contained in Schedule 1 of the Retail Leases Act – termination of sub-licence valid. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: BHP Billiton Ltd v Dunning [2013) NSWCA 421 Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Moweno Pty Ltd v Stratis Promotions [2002] NSWSC 1151 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Thompson v Easterbrook [1951] 83 CLR 467 Category: Principal judgment Parties: AP 19/07450 SHH Ltd (Appellant) City of Parramatta Council (First Respondent) New South Wales Land and Housing Corporation (Second Respondent)