ALYSSA CATHERINE GARRETT and GPT RE LIMITED

[2023] WASAT 85

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)

CITATION:   ALYSSA CATHERINE GARRETT and GPT RE LIMITED [2023] WASAT 85

MEMBER:   DR B DE VILLIERS, MEMBER

HEARD:   13 SEPTEMBER 2023

DELIVERED          :   14 SEPTEMBER 2023

FILE NO/S:   CC 1140 of 2023

BETWEEN:   ALYSSA CATHERINE GARRETT

Applicant

AND

GPT RE LIMITED

Respondent

Catchwords:

Retail shop commercial tenancy - Shorter than 5 year term of lease - Make application of free will - Circumstances warrant the granting of the application

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 13(1), s 13(6)(a), s 13(6)(b), s 13(6)(c), s 13(6)(d), s 13(7b)

Result:

Application allowed

Category:    B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Ms J Tang

Solicitors:

Applicant	:	N/A
Respondent	:	Gadens

Case(s) referred to in decision(s):

Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47

REASONS FOR DECISION OF THE TRIBUNAL:

Background:

1. The applicant, who is a tenant of a retail shop commercial tenancy, has requested approval for a clause to be added to the lease for the term to be 3 years. The approval is sought pursuant to sub-section 13(7b) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CTRSA Act). The sub-section represents a departure from the tenant's right to the option of extending the term of the lease to a period of up to 5 years. The option for an extended period is an important and valuable right to the tenant. This importance is recognised by the CTRSA Act since it prohibits the landlord from terminating the lease short of that 5 year term, save in the limited circumstances set out in s 13(6)(a)-(d) of the CTRSA Act (Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47). The tenant may however seek approval from the Tribunal that the option for renewal does not arise under sub­section 13(1). The Tribunal must be satisfied that the tenant makes the application on their free will and that the circumstances of the case justify granting the application.

2. Sub-section 13(7b) of the CTRSA Act provides as follows:

   The Tribunal may, on application in writing by a tenant or prospective tenant, order that an option of renewal does not arise under subsection (1), if it is satisfied that —

   (a)the application was made by the tenant or prospective tenant of his own free will; and

   (b)the circumstances of the case warrant the granting of the application.

3. The Tribunal is now called upon to consider the circumstances identified by the tenant and to determine whether the approval should be granted.  The discretion of the Tribunal is wide, which means I can consider the totality of circumstances to assess whether they meet the threshold.  There is no exhaustive list of circumstances since it depends on the situation of each tenancy.

Facts and consideration

1. The relevant facts giving rise to the decision are as follows:

   1)The application was lodged by the tenant on 28 August 2023;

   2)The address of the tenancy is Shop NCG201, Northcourt Karrinyup – Neurodiversity Haven Psychology;

   3)The matter was set down for a directions hearing since the application did not adequately address the requirements of sub‑section 13(7b) of the CTRSA Act;

   4)The directions hearing took place on 13 September 2023 during which the tenant and landlord were in attendance;

   5)The tenant explained to me why she is of the view that the application meets the requirements of sub-section 13(7b) of the CTRSA Act. The landlord did not object to the application; and

   6)The tenant explained that she seeks a shorter term lease since this is a new venture for her; it suits her business requirements; she had given careful consideration to the shorter lease and also discussed it with her husband; there was no need to seek legal advice because it is a relatively simple matter and she understands the implications of the shorter lease; her capital investment is minimal; and in light of all circumstances the shorter lease is in her best interest.  She also reiterated that she lodged the application at her free will.

Consideration

1. I am satisfied that the application meets the requirements of sub‑section 13(7b) of the CTRSA Act. I find so for the following reasons:

2. Firstly, the tenant appeared in her personal capacity and explained in detail why she is fully aware of the implications of the shorter term and why she is satisfied that it is in her best interests.

3. Secondly, whilst there is no obligation on the tenant to seek legal advice, I nevertheless asked the tenant whether she had sought advice and I am satisfied that she is fully aware of the implications of the shorter term of the lease; that she had given due consideration to it; that it fits the nature of her business; and that she seeks the approval at her own free will.

4. Thirdly, the tenant explained to my satisfaction why the circumstances of the case warrant the granting of the application since this is a new venture for her; the capital outlay is minimal; and she has formed the view that a 3 year tenancy best protects her interests.

5. I therefore find that the application meets the requirements of sub section 13(7b) of the CTRSA Act.

Orders

The Tribunal orders:

1.On the application in respect of the retail shop lease between the parties relating to Shop NCG201, Northcourt Karrinyup - Neurodiversity Haven Psychology, it is ordered that clause 2 (item 6) that provides for the lease to be for a period of 3 years, is approved for inclusion in the lease.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR B DEVILLIERS, MEMBER

14 SEPTEMBER 2023