Chicken Fetish Pty Ltd v Ausehomes Pty Ltd [2008] RSLT 4

1 [2008] RSLT 4 THE RETAIL SHOP LEASES ACT In the matter of Dispute No 2008/0014 CHICKEN FETISH PTY LTD - Claimant - and - AUSEHOMES PTY LTD - Respondent Coram: A Forbes DECISION Given in Brisbane on Monday, 19 May 2008 -- 1 of 6 -- Decision 2 19 May, 2008. Pursuant to section 83 of the Retail Shop Leases Act 1994 (the Act) the Claimant/Tenant seeks a declaration, as against the Respondent landlord, that its lease permits it to sell seafood products. Although an application of that kind is not spelt out in the informal Notice of Dispute, I understand that a declaration is being sought. Mr Kerry Knight, a director of the Claimant, represents that party, and Mr Guy Drake. company secretary of the Respondent represents the Respondent. The Lease, for a term of five years, commenced on 1 June 2006. Item 6 of the Schedule describes the Permitted Use in these terms: “Retail sale of cooked chicken and chips, salads and associated lines.” At a directions hearing on 17 April 2008 the parties stated that there were no factual issues and that neither sought monetary compensation. Accordingly I set the dispute down for hearing before myself, pursuant to section 106(2) of the Act. At the same time I advised the parties that the hearing would be limited to the issue of permissible use, and particularly the disputed expression “associated lines”. The parties’ written submissions accept that approach. It is therefore unnecessary for me to deal with irrelevant material, much of it describing personal difficulties between the parties. The undisputed facts are these: • The lease gives the Claimant no exclusive use; • The Claimant admits that it is selling seafood; The Claimant did not do so during the first 21 months of the lease, but began to do so in late 2007, when it learned that a seafood vendor in the same centre – another lessee of the Respondent - was selling chicken products. I do not have to consider, now, whether that is a lawful activity. -- 2 of 6 -- Decision 3 19 May, 2008. The Claimant’s Submissions In relation to its Permitted Use clause the Claimant asserts at page 3 of its submissions: “We believe that `and associated lines’ can [cover] any food that we can show has any connection with chicken.” That circular argument is of little assistance. The Claimant quotes dictionaries defining “associated” as denoting “a logical or causal connection”1 and “association” as “a logical or natural association between two or more things.”2 The real question, however, is whether one can reasonably derive from those abstractions the proposition that there is a sufficient affinity between cooked poultry and cooked seafood to regard the latter as a line associated with the former. The Claimant further says: (1) That the Respondent allows two seafood retailers on its premises to sell chicken products. The contractual arrangements between the Respondent and those third parties are not in evidence or in issue here. The sales referred to may infringe the relevant leases or they may not. If they do, it does not follow that the Claimant may act ultra vires its lease, if that is what it has been doing. (2) That in the circumstances alleged in (1), the landlord can “logically” have no complaint about the Claimant, as a chicken retailer, also selling seafood. Perhaps by “logically” is meant morally or fairly. But be that as it may, the present question is not whether the Respondent is being consistent, or whether third parties are observing the terms of their leases, but whether the Claimant is acting within the terms of its lease, properly interpreted. It may be that the Claimant has some remedy with respect 1 Word Web Online: verb: associate. 2 Yahoo Thesaurus: Synonyms and Word Suggestions: noun: association -- 3 of 6 -- Decision 4 19 May, 2008. to those other cases, but that is not a question in these proceedings, and I express no concluded view about it. (3) There is nothing in the Claimant’s lease to prevent it from selling any sort of take-away food. Whether the Claimant is entitled to sell seafood is the question to be decided. The Respondent’s Submissions According to the Respondent: (A) The Permitted Use in the Claimant’s lease is intended to limit, and does limit the lawful use of the Claimant’s premises to the sale of cooked chicken and chips, salads and other items of the same nature; (B) The trade name chosen by the Claimant itself is inconsistent with the sale of seafood; (C) The phrase “and associated lines” does not extend to seafood; (D) The Respondent has never authorised the Claimant to sell seafood; and (E) By selling products not within the Permitted Use, the Claimant is in breach of its lease. What is the true meaning of “and associated lines” in this context? In my view the proper approach to the disputed phrase is that of the well known rule of legal interpretation known as the eiusdem generis rule. A learned text writer explains that rule as follows: “When general matters are referred to in conjunction with a number of specific -- 4 of 6 -- Decision 5 19 May, 2008. matters of a particular kind, the general matters are limited to things of the like kind to the specific matters. … So in specifying the animals that may be carried on a ferry, [a draftsman] may well refer to `horses, cows, sheep and other animals’. [But] he would regard it as an improper reading … if it were suggested that a tiger fell within the words `other animals’. … It is another way of saying that words derive meaning from the context in which they appear. … The very name of the rule indicates the necessity to establish a genus before it can be applied, and the courts have made it clear that this will be their first inquiry: Cody v J H Nelson Pty Ltd (1947) 74 CLR 629.” 3 In a case applying the rule it was held that a power to control “arms, ammunition, gunpowder or any other goods” did not extend to acids.4 The expression “vintage cellar” does not extend to the sales of liquor of any and every quality. 5 “Associated products”, in relation to a card and gift shop, include wrapping paper and gift ribbons, but hardly the whole range of goods normally found in a general newsagency business. 6 Cotton seed is an associated product in a cotton refining business, but not silk or rayon. 7 The more specific the words that precede a residual phrase like “associated lines”, “similar products”, or “other goods of that kind”, the more limited the scope of the residual phrase. The specifics govern the “tacked on” generality. Accordingly, the present question is not to be answered by considering the word “associated” in the abstract, divorced from the particular context in which it appears. If the residual phrase in the subject lease were “or other fast foods”, the Claimant’s argument would be well nigh irresistible, but that is not the case. In my view the phrase “associated lines” should here be confined to goods generically similar to chicken, chips or salads. I am not persuaded that seafood is sufficiently similar to those items to warrant a ruling in the Claimant’s favour, and I am satisfied that the sale of seafood products is outside the Claimant’s permitted use. 3 Pearce Statutory Interpretation Butterworths 1974 paragraph [44] . 4 Attorney General v Brown [1920] 1 KB 773. 5 Hollis v Brisbane City Council and Liquorland (Aust) Pty Ltd [2000] QPELR 243. 6 Re Eftpos Interchange Fees Agreement Australian Competition Tribunal (No 7 of 2003) BC 200402956. 7 Compare Standard Commodities Australia Pty Ltd v Tandou Ltd unreported, NSW Supreme Ct, Cole J, 16 September 1993. -- 5 of 6 -- Decision 6 19 May, 2008. Decision (1) I decline to grant the declaration sought and dismiss the application. (2) No order for costs is sought. There will be no order in that regard. Anne Forbes Tribunal -- 6 of 6 --