Definition of a Retail Shop by Paul Anderson | October 2006
A recent decision of the Administrative Decisions Tribunal of New South Wales has highlighted the arbitrary distinctions that can arise in relation to the deﬁnition of a “Retail Shop” under the Retail Leases Act 1994. In Kwon v Kim, Judicial Member Fox had to determine if the Tribunal had jurisdiction to deal with a claim for damages for failure to repair under a lease which permitted the premises to be used as an “Internet Café.”
Legislation “Retail Shop” is deﬁned in Section 3 of the Act as “premises that are used wholly or predominantly for the carrying on of one or more of the businesses speciﬁed in Schedule 1 (whether or not in a retail shopping centre)”. If the premises are not a Retail Shop, the occupancy cannot be the subject of a Retail Shop Lease and the Tribunal would have no jurisdiction. Schedule 1 lists 134 descriptions of shops, some of which are given in multiples, so that more than 150 separate and distinct uses are named. This is in contrast to Parliament’s usual approach of deﬁning concepts in general terms rather than trying to list particular examples. There was no listing in Schedule 1 for Internet Cafés which is perhaps not surprising since such establishments did not exist when the legislation commenced in 1994. The Member described the use of an Internet Café as the “hire, in situ, of computers to either give access to the internet, email or otherwise to use the available programs to process information or play games”. (In situ means in its situation or position.) Schedule 1 contained only two uses that appeared relevant: Equipment Hire Shops or Games and Hobby Shops.
GAMES AND HOBBY SHOPS The Member held that even if the listing could be read as a game shop or a hobby shop, the term “game shop” meant a shop selling games. It did not cover, for example, a site such as a pinball arcade which hired out the use of games machines. It followed that the listing did not cover an Internet Café.
EQUIPMENT HIRE SHOPS The Member considered that this listing required a taking away of goods and not a hiring of computer equipment. An Internet Café could best be described as the hire of the use of the machine rather than the hire of the machine itself.
T U R KSLEGAL
There were four other listings that speciﬁcally referred to a hiring, namely bridal wear sales and hire shops; costume and formal wear hire shops; television, video equipment and other domestic appliances hire shops; and video tape and music libraries. None of the above listings could possibly involve a use on the premises of the goods hired. For that reason, an equipment hire shop was also limited to equipment which is truly packed up and taken away. The Member found support for this approach by comparing the situation with a laundromat which is not a listing in Schedule 1. In the case of a laundromat “there is traded a temporary right of access to a machine for it to carry out its functions”. This was similar to the situation with an Internet Café and only strengthens the Member’s view that an equipment hire shop required the taking away of hired items. The result was that an Internet Café was not a Retail Shop and the Tribunal had no jurisdiction to hear the dispute.
Fine Distinctions The Member highlighted how arbitrary the inclusion of a use can be in the deﬁnition. For example, the Member pointed out the bridal wear sales and hire shops applied to sales as well as to hires but costumes and formal wear hire shops were limited to hires. It is difﬁcult to see the logic or the rationale for the distinction. The Member also referred to a previous decision of Justice Young in Chathay Developments Pty Limited v Laser Entertainment Pty Limited 1998 where a video tape library was held to fall within the Schedule but a shop that sold video tapes did not.
Conclusion A layman would probably regard an Internet Café as a Retail Shop. Certainly, Parliament thought so because shortly after this decision it amended the Schedule to included Internet Cafés. Many of the ﬁne distinctions referred to in the case could be avoided if there was a general deﬁnition of a retail shop, e.g. “premises from which goods and/or services are provided by retail to the public.” There could be a listing of any exclusions or exceptions which Parliament has decided upon for policy reasons. It would then be left to the courts to determine in each case whether the use of the premises was a Retail Shop. In discharging this function, the courts would need to bear in mind the purpose of the legislation, namely to provide additional protection to tenants of premises providing retail goods and/or services to the public. A general deﬁnition avoids the arduous task of going through some 150 uses in order to determine whether a particular lease is covered by the legislation. A general deﬁnition has the added advantage that if new types of stores emerged with technological change, e.g. an Internet Café, such a new type of store may still come within the general deﬁnition without the necessity to add it to the Schedule by amendment.
T U R KSLEGAL
For More Information Please Contact: Paul Anderson Partner T: 02 8257 5742 firstname.lastname@example.org
Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins St, Melbourne VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099
Business & Property | Commercial Disputes & Insolvency | Insurance & Financial Services Workers Compensation | Workplace Relations www.turkslegal.com.au This Tur k Aler t is cur rent at its date of public ation. While ever y c a re h a s b e e n t a k e n i n t h e p re p a rat i o n o f t h i s Tu r k Al e r t i t d o e s n o t co n s t i t u te l e g a l advice and should not b e relied up on for this pur p ose. Sp ec i f i c l e g a l a dv i ce s h o u l d b e s o u g ht o n p a r t i c u l a r m at te r s. Tu r k s Le g a l d o e s n o t a c ce p t resp onsibilit y for any er rors in or omissions from this Tur kAle r t . Th i s Tu r k Al e r t i s co py r i g ht a n d n o p a r t m ay b e re p ro d u ce d i n a ny fo r m w i t h o u t t h e p er mission of Tur ksLegal. For any enquir ies, please contac t th e a u t h o r o f t h i s Tu r k Al e r t .
A recent decision of the Administrative Decisions Tribunal of New South Wales has highlighted the arbitrary distinctions that can arise in r...