Vendor loses bid to stay in Hyde Park

A business owner has lost an eleventh-hour bid to avoid eviction from Hyde Park, after a court decided the process that delivered a new vendor monopoly rights to the precinct was above board.

The court case centred around the City of Vincent’s decision to remove three food truck operators from the popular park in favour of having Veggie Mama establish a permanent kiosk.

The decision was made in December last year, when the council awarded a tender to the vegetarian eatery and entered into a formal lease agreement.

But under the terms of that agreement, food vans that had previously traded in the park would no longer permitted, including Islam Bouyahia’s mobile business ‘What the Flip!’.

Mr Bouyahia contested the clause, insisting the contract was not what had been put to tender six months prior.

But Mr Bouyahia demanded a review of the decision, insisting he would have participated in the tender process if he had known about the terms of the agreement; particularly given the impact it would inevitably have on his business.

When that demand was opposed, Mr Bouyahia escalated the matter to the Supreme Court.

He alleged the city had failed to adhere to its statutory obligation to lease property by public tender because the contract awarded was not exactly what had been publicly advertised.

The tender comprised leasing a portion of the Western storage shed at Hyde Park as a commercial Kiosk for a five-year term, but outlined that an upgrade of the shed would be required at the vendor’s own cost.

Before the final date for submissions, an amendment was made clarifying that the council would consider whether food vans should be allowed to continue operating in the park, a decision that hinged on the offerings proposed by the tenderer. 

“A future investigation is required to determine whether the food vans and the kiosk work well together, or whether they conflict,” the amendment read.

“It is proposed the outcome of this investigation will be reported to the council along with the result of the public tender.”

Mr Bouyahia submitted that by agreeing to cover the cost of the initial fit out, a three-month rent free period and give the kiosk the monopoly on trade in the park, the city had deviated from the initial terms of the tender.

But Supreme Court Justice Jeremy Allanson disagreed, dismissing the application.

In a judgment handed down in court today, Justice Allanson said the prospect the kiosk would have exclusive rights was foreshadowed in the request and the city was not acting beyond its powers by permitting only certain trading activities in the park.