Arise Joondalup Pty Ltd v Loveday Corp Pty Ltd
[2016] WASC 286
•9 SEPTEMBER 2016
ARISE JOONDALUP PTY LTD -v- LOVEDAY CORP PTY LTD [2016] WASC 286
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 286 | |
| Case No: | GDA:13/2015 | 17 FEBRUARY 2016 | |
| Coram: | LE MIERE J | 9/09/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARISE JOONDALUP PTY LTD LOVEDAY CORP PTY LTD DANIEL LOVEDAY CRISTY LOVEDAY |
Catchwords: | Commercial tenancy Repudiation of lease Repudiation of surrender of lease Meaning of question arising under the lease Tribunal's jurisdiction Whether there was finding of estoppel |
Legislation: | Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 10, s 16, s 25C, s 27 State Administrative Tribunal Act 2004 (WA), s 105 |
Case References: | Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 Electricity Generation Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Kumar v Dunning [1989] QB Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 Secretary to the Department of Premier and Cabinet v Hulls (1999) VSCA 117; [1999] 3 VR 331 Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1988) 166 CLR 245 Yeoman Credit Ltd v Latter [1961] 1 WLR 828 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
LOVEDAY CORP PTY LTD
First Respondent
DANIEL LOVEDAY
Second Respondent
CRISTY LOVEDAY
Third Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR D AITKEN (MEMBER)
Citation : ARISE JOONDALUP PTY LTD and LOVEDAY CORP PTY LTD [2015] WASAT 92
File No : CC 1142 of 2014
Catchwords:
Commercial tenancy - Repudiation of lease - Repudiation of surrender of lease - Meaning of question arising under the lease - Tribunal's jurisdiction - Whether there was finding of estoppel
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 10, s 16, s 25C, s 27
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr I R Freeman
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
Appellant : Lavan Legal
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Electricity Generation Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Kumar v Dunning [1989] QB
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990
Secretary to the Department of Premier and Cabinet v Hulls (1999) VSCA 117; [1999] 3 VR 331
Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1988) 166 CLR 245
Yeoman Credit Ltd v Latter [1961] 1 WLR 828
- LE MIERE J:
Summary
1 The facts of this matter are set out in the summary of the Tribunal's decision. I have reproduced them with minor changes as follows. Arise Joondalup Pty Ltd (the appellant) as landlord and Loveday Corp Pty Ltd (the first respondent) entered into a 10 year retail shop lease for the purposes of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CTRSA Act). The lease document included a guarantee and indemnity by the second and third respondent (the Lovedays) in favour of the applicant. Within five months the appellant entered a surrender of lease with the first respondent. The surrender of lease contained an indemnity (the indemnity) by the Lovedays in favour of the appellant. The surrender of lease contained two 'conditions precedent'. The first condition was that the applicant must enter into a lease with a new tenant within 12 months of the execution of the surrender of lease. The second condition was that the first respondent must pay the applicant's costs in relation to the preparation of the surrender of lease, re-leasing the premises and making good and altering the premises for the new tenant, and also pay any shortfall in the rent payable by the new tenant and that paid under the first respondent's lease.
2 The appellant entered into a lease with a new tenant and advised the first respondent of the surrender date and that the 'surrender fee' was a total of $21,268.50. Prior to the surrender date the respondents, being the first respondent and the Lovedays, commenced proceeding CC 591 of 2014 in the Tribunal seeking 'relief from the lease in its entirety'. That proceeding was dismissed due to the failure of the respondents to provide a certificate from the Small Business Commissioner under s 25C of the CTRSA Act. The appellant then gave a 'notice of termination' to the first respondent and retook possession of the premises.
3 The appellant subsequently commenced this proceeding, referring a number of questions to the Tribunal under s 16(1) of the CTRSA Act regarding both the lease and the surrender of lease. The appellant contended that as both of the 'conditions precedent' had not been fulfilled the surrender of lease did not take effect, the first respondent had repudiated the lease, the appellant had terminated the lease for that repudiation and the appellant was entitled to damages from the first respondent as tenant and from the Lovedays as guarantors for that repudiation. In the alternative, the appellant contended that if it was not entitled to damages for termination of the lease for repudiation by the first respondent then it was entitled to damages from the first respondent as tenant and from the Lovedays as indemnifiers for repudiation of the surrender of lease by the first respondent.
4 In the course of determining the referred questions the Tribunal decided:
i. The first 'condition precedent' was a condition precedent to the formation of the surrender of lease and it had been fulfilled by the appellant entering into a lease with a new tenant, which brought the surrender of lease into existence.
ii. The second 'condition precedent' was a condition of performance, not a condition precedent to the formation of the surrender of lease.
iii. The lease had been surrendered before the respondents commenced proceeding CC 591 of 2014 and therefore that was not a repudiation of the lease and the issue of damages for repudiation of the lease did not arise.
iv. The commencement of proceeding CC 591 of 2014 by the respondents was a repudiation of the surrender of lease because it evinced an intention to no longer be bound by the surrender of lease. The appellant terminated the surrender of lease for that repudiation by giving the 'notice of termination' to the first respondent and retaking possession of the premises.
v. The appellant's claim for damages against the first respondent for repudiation of the surrender of lease was 'a question arising under the lease' for the purposes of s 16(1) of the CTRSA Act and the appellant was entitled to 'loss-of-bargain' damages from the first respondent in the amount of the 'surrender fee' of $21,268.50.
vi. The appellant's claim for damages against the Lovedays, under the indemnity included in the surrender of lease document, for the repudiation of the surrender of lease was not 'a question arising under the lease' on the proper construction of s 16(1) of the CTRSA Act. Therefore the Tribunal does not have jurisdiction to determine that matter.
5 The Tribunal ordered the first respondent to pay the amount of $21,268.50 to the appellant.
Grounds of appeal
6 The appellant argues on six grounds that the SAT erred in law in that the Tribunal found that:
i. The first respondents did not repudiate the lease whereas the tribunal should have found that the First Respondent repudiated the lease.
ii. The appellant was not entitled to claim damages in relation to the repudiation of the lease and not just in relation to the repudiation of the surrender of lease whereas the tribunal found that the appellant was only entitled to damages against the first respondent for the repudiation of the surrender of the lease.
iii. The appellant was not entitled to damages from the first respondent assessed in terms of the certificate it issued under clause 101.10 of the lease whereas the tribunal should have found that the appellant was so entitled to damages.
iv. A dispute concerning the appellant and the Lovedays, who had given an indemnity under a surrender of lease document, was not a question arising under the lease on the proper construction of the Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA) whereas the tribunal should have found it was a question arising under the lease.
v. It did not have jurisdiction to determine the dispute between the appellant and the respondents under the surrender indemnity whereas the tribunal should have found that it had jurisdiction.
vi. The appellant was estopped from pursuing its claims in a court of relevant jurisdiction whereas if the tribunal lacked jurisdiction the tribunal should not have found such an estoppel.
First respondent in liquidation
7 The first respondent went into liquidation and the appellant therefore has decided not to proceed with its action against the first respondent (ts 3). However, the appellant proceeds with its action against the Lovedays in this matter.
Leave to appeal
8 An appeal from a decision of the State Administrative Tribunal is governed by the State Administrative Tribunal Act 2004 (WA). First, a party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal: s 105(1). Secondly, the appeal can only be brought on a question of law: s 105(2).
9 Martin CJ (with whom Newnes and Murphy JJA agreed) in Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 discussed when leave should be granted on an appeal from a decision of the State Administrative Tribunal:
It is now well established that leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave, and that there are no rigid or exhaustive guidelines governing the grant of leave [27].
10 His Honour noted that in deciding this question the observations of Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls (1999) VSCA 117; [1999] 3 VR 331 are generally applied:
When leave is sought to appeal ... it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible [16].
11 For the reasons below I find that leave to appeal will be refused on all grounds and the appeal will be dismissed.
Ground 1
12 Ground 1 is that the SAT erred in law when it found that the first respondent did not repudiate the lease, whereas the Tribunal should have found the appellant repudiated the lease. The appellants argue that the Tribunal erred by finding that upon the Surrender of Lease coming into existence on 22 April 2014 it was not possible for the lease to be repudiated after that date. The appellant argues that the surrender never came into effect because the conditions precedent were not satisfied. Contingent on this ground succeeding is a finding that the Tribunal erred when it decided that special condition 1.1.2 was not a condition precedent to formation of the Surrender of Lease.
13 The Surrender of Lease contained the following special conditions in sch 1:
Item 8: Special Conditions
1. Conditions precedent
1.1 The Tenant agrees that this Surrender of Lease is condition [sic] on:
1.1.1 the Landlord entering into a new lease with an alternative tenant for the Premises, on terms acceptable to the Landlord (acting reasonably) within 12 months form the date of execution of this document; and
1.1.2 the Tenant paying to the Landlord all of the Landlord's costs in relation to the Surrender of Lease, including but not limited to:
(a) the Landlord's legal costs;
(b) the costs of re-leasing the Premises inclusive of any leasing agents fees (including any incentives provided to the alternative tenant relating to the Premises);
(c) any shortfall in the rent payable by the replacement tenant under the new lease and that payable by the Tenant under the Lease for the remainder of the term of the Lease; and
(d) any costs incurred by the Landlord as a result of the Tenant's failure to carry out its make good requirements pursuant to the Lease or costs incurred in altering the Premises to make them suitable for a replacement tenant.
1.3 The Tenant provides its authority to the Landlord to complete this document by inserting the Surrender Date in the Schedule.
15 The Tribunal rejected the appellants argument that cl 1.1.2 of sch 1 was a condition precedent, finding instead that it was a condition of performance. If the Surrender of Lease was brought into existence the lease agreement ended. As Repudiation seeks to bring a contract or lease to an end, if surrender by agreement has occurred, no question of a later repudiation of the lease can arise.
16 The appellant submits that this was an error and that on a proper construction of the Surrender, it did not become operative if the 'conditions precedent' were not satisfied. The appellant's submissions do not challenge the finding that the condition precedent in sch 1 cl 1.1.1 was satisfied. This ground of appeal therefore turns on whether the Tribunal erred in finding that sch 1 cl 1.1.2 was not a condition precedent to formation of the Surrender of the Lease. The appellant made no substantive submissions as to why the court should allow this ground of appeal or how the Tribunal's decision manifests error.
17 The principles of construction of contracts apply to leases. The assessment to be undertaken is an objective examination of the provisions based on the text, context and purpose of the agreement: see Electricity Generation Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990.
18 The Tribunal came to that conclusion that sch 1 of cl 1.1.2 was a condition precedent to performance and not to contract for the following reasons:
… in the Tribunal's opinion, special condition 1.1.2 was not a condition precedent to the formation of the surrender of lease. Instead, it was a condition of performance. Special condition 1.2 does not state that if Loveday Corp does not pay the amount specified in special condition 1.1.2 then the surrender of lease will have no effect. Instead special condition 1.3 authorises Arise Joondalup to insert the surrender date in item 4 of the schedule of the surrender of lease and clause 4.1 of the surrender of lease provides that before 5 pm on the surrender date Loveday Corp must do certain things, including vacating the premises (leaving them in the condition required by the lease) and paying the amount specified in special condition 1.1.2. Clearly the intent was that a binding surrender of lease was to come into existence upon Arise Joondalup entering into a lease with a new tenant within 12 months of the surrender of lease being signed. If that occurred then the surrender date could be decided by Arise Joondalup, presumably to tie in with the commencement of the new tenancy, and as a condition of performance, Loveday Corp was required to do various things by that date, including vacating the premises and paying the amount specified in special condition 1.1.2 to Arise Joondalup [61].'
19 Special condition 1.2 was construed by the Tribunal as saying that the Surrender of Lease would have no effect and the terms of the lease would remain on foot if the following were not satisfied:
a) The landlord enters into a replacement lease;
b) which terms were acceptable to it; and
c) in accordance with special condition 1.1, within 12 months from the execution of the document.
20 The Tribunal noted that special condition 1.3 gave the appellant the right to insert the surrender date in item 4 of the schedule of the Surrender of Lease and also noted cl 4.1 of the Surrender of Lease which states before 5.00 pm of the Surrender Date, the Tenant must do each of the following:
… 4.1.4 pay the Landlord all costs payable pursuant to special condition 1.l.2 of this Lease; …
21 The Tribunal reasoned that the Surrender of Lease would become operational upon special condition 1.1.1 being satisfied at which time the appellant could decide a Surrender Date and, as a condition of performance, the respondent was required to do certain things which included paying the costs payable pursuant to special condition 1.1.2. In the absence of any submissions as to why this reasoning is erroneous, it is not apparent why I should find that the Tribunal erred. The express mention of special condition 1.1.1 and the absence of any mention of cl 1.1.2 in special condition 1.2 indicates that only special condition 1.1.1 was a condition precedent to the Surrender of Lease becoming operational. Further, the express mention of the performance of special condition 1.1.2 in cl 4.1.4 of the Surrender of Lease supports the conclusion that special condition 1.1.2 was a condition precedent to performance as opposed to formation. An alternative finding would render cl 4.1.4 otiose and special condition 1.2 either superfluous or inaccurately narrow.
22 A proper construction of the special conditions is that, as a result of special condition 1.2, special condition 1.1.1 was a condition precedent to formation of the Surrender of Lease and special condition 1.1.2 was a condition precedent to performance. Therefore, the Tribunal's decision that upon special condition 1.1.1 being performed the Surrender of Lease came to be was correct. As the Surrender of Lease came to be, the lease was terminated and there is no room for a later repudiation of the lease notwithstanding the Tribunal's finding that the Surrender of the Lease was later repudiated. Leave to appeal on ground 1 will be refused.
Ground 2
23 Ground 2 is that the SAT erred in law when it found that the appellant was not entitled to claim damages in relation to the repudiation of the lease and not just in relation the repudiation of the Surrender of Lease whereas the Tribunal found that the appellant was only entitled to damages against the first respondent for the repudiation of the Surrender of the Lease.
24 I have already found that there was no possibility of the appellant repudiating the lease. In those circumstances leave to appeal will be refused on ground 2 of the appeal.
Ground 3
25 Ground 3 is that the SAT erred in law when it found that the appellant was not entitled to damages from the first respondent assessed in terms of the certificate it issued under cl 10.10 of the lease whereas the Tribunal should have found that the appellant was so entitled to damages.
26 I have already found that there was no possibility of the appellant repudiating the lease. In those circumstances leave to appeal will be refused on ground 3 of the appeal.
Ground 4
27 Ground 4 is that the SAT erred in law when it found that a dispute concerning the appellant and the Lovedays, who had given an indemnity under a surrender of lease document, was not a question arising under the lease on the proper construction of the CTRSA Act whereas the Tribunal should have found it was a question arising under the lease.
28 The appellants raised this ground of appeal and argued if the previous grounds of appeal succeeded then the Tribunal should have found that the claim against the respondents in respect of repudiation of the lease was a question under the lease. This argument falls away as the grounds 1 to 3 have not succeeded. In the alternative, the appellant argued that the Tribunal erred in finding that the dispute about whether the appellant was entitled to claim damages against the Lovedays in relation to the repudiation of the surrender of lease was not a question arising under the lease.
29 Section 16 of the CTRSA Act allows a party to a lease to refer a question to the SAT. A party to a retail shop lease may refer to the Tribunal any question between the parties which he believes to be a question arising under the lease and the Tribunal shall determine whether or not the question referred to the Tribunal is a question arising under the lease; and if it is such a question, hear and determine it.
30 Section 3(3) of the CTRSA Act explains that a reference in the Act to a question arising under a retail shop lease includes a reference to:
(a) a question whether or not a lease exists or has existed, including a question as to forfeiture; or
(b) a question whether or not a lease is or was a retail shop lease; or
(c) a question arising - (i) in relation to any communication, including a disclosure statement under section 6, between the parties to the retail shop lease, prior to their entry into the retail shop lease, which communication was material to the terms and conditions of the retail shop lease; or (ii) in relation to the retail shop lease under a provision of this Act; or
(d) a matter that is in dispute between the landlord and the tenant under section 12 in relation to - (i) operating expenses of the landlord under the retail shop lease generally; or (ii) an allocation made under section 12(1)(b) of the proportion of those operating expenses; or (iii) a determination of the relevant proportion for the purposes of section 12; or
(e) any other matter that is in dispute between the landlord and the tenant in connection with the retail shop lease, whether or not that matter is dealt with by the provisions of the retail shop lease.
31 Section 3(3)(a)-(d) relate directly to a retail shop lease. However, the Tribunal found that question between the landlord and tenant under the surrender of lease would constitute a question arising under the lease because s 3(3)(e) includes any other matter that is in dispute between the landlord and the tenant in connection with the retail shop lease, whether or not that matter is dealt with by the provisions of the retail shop lease. The Tribunal found a dispute with an indemnifier of the landlord and the landlord in relation to the surrender of lease did not come within that definition.
32 The task of a court in the process of statutory construction was summarised by French CJ, Hayne, Crennan, Bell and Gageler JJ in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
33 Section 3(3)(a)-(d) cannot be read as including a question of a dispute relating to an indemnity given under a surrender of lease as a question arising under a retail shop lease. However, a question arising under a retail shop lease includes any other matter that is in dispute between the landlord and the tenant in connection with the retail shop lease, whether or not that matter is dealt with by the provisions of the retail shop lease: CTRSA Act s 3(3)(e). The appellant submits that the Tribunal was correct that disputes arising under the Surrender of Lease relate to the lease, however the appellant argued therefore the Tribunal had jurisdiction to hear the matter. The appellant argues that s 3(3)(e) of the CTRSA Act should be read widely to include a question arising under an indemnity to a surrender of lease between a landlord and indemnifier.
34 This argument ignores the plain language of s 3(3)(e) which acts as a catch all provision for any other matter that is in dispute between a landlord and tenant. The appellant relied on the decision of Kumar v Dunning [1989] QB in which it was held that the covenant by a surety guaranteeing performance of covenants by a tenant which touch and concern the land, itself touches and concerns the land and is enforceable by an assignee of the reversion. That decision provides no support for an argument that the words in s 3(3)(e) of the CTRSA Act that a matter in 'dispute between the landlord and tenant' should be read to include a matter in dispute between the landlord and indemnifier. An indemnity is a promise by the promisor that he will keep the promisee harmless against loss as a result of entering into a transaction with a third party: Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1988) 166 CLR 245, 254 [3], Mason CJ (Deane, Dawson and Toohey JJ agreeing) citing Yeoman Credit Ltd v Latter [1961] 1 WLR 828, 830 - 831 (Sir Nicholas Browne-Wilkinson VC). The words of the Act do not support an argument that a reference to 'tenant' in s 3(3)(e) should be understood as referring to a non-tenant indemnifier.
35 The appellant notes that the Tribunal erred when the member stated that the CTRSA Act is entirely silent about guarantors, indemnifiers and any other third party covenantors in respect of the obligations of a tenant under a retail shop lease. Section 10 of the Act refers to assignors, guarantors of the tenant and guarantors of the assignor. Guarantor is defined in s10(5) of the CTRSA Act as a person who has guaranteed the performance by a tenant of the tenant's obligations under a retail shop lease or a person who has indemnified a landlord against any loss the landlord may incur as a result of the failure by a tenant to comply with those obligations. The relevant parts of the section are s 10(3) and s 10(4). Section 10(3) voids any provision in a retail shop lease which has the effect of allowing the landlord to withhold consent to an assignment of the lease by a tenant unless the tenant or a guarantor of the tenant agrees to pay any moneys that are payable under the lease by the person to whom it is proposed to assign the lease. Section 10(4) voids any provision in a retail shop lease which has the effect of allowing the landlord or person claiming through the landlord to recover from the assignor or from a guarantor of the assignor, any moneys that are payable under the lease by the tenant to whom the lease has been assigned. That section does not provide support for reading a reference to a dispute between a landlord and tenant to include a dispute between a landlord and non-tenant indemnifier.
36 The appellant has failed to advance any meaningful argument as to how the Tribunal erred. Leave to appeal on ground 4 of the appeal will be refused.
Ground 5
37 Ground 5 is that the SAT erred in law when it found that it did not have jurisdiction to determine the dispute between the appellant and the respondents under the surrender indemnity whereas the Tribunal should have found that it had jurisdiction.
38 The Tribunal held that the dispute between Arise Joondalup and the Lovedays under the surrender indemnity is not a question arising under the lease on the proper construction of s 16(1) of the CTRSA Act. For that reason the Tribunal does not have jurisdiction to determine the matter. If this ground of appeal is a separate ground alleging that in spite of the above finding that the Tribunal did have jurisdiction, no argument has been advanced as to why that is the case. Leave to appeal on ground 5 of the appeal will be refused.
Ground 6
39 Ground 6 is that the SAT erred in law when it found that the appellant was estopped from pursuing its claims in a court of relevant jurisdiction whereas if the Tribunal lacked jurisdiction the Tribunal should not have found such an estoppel. The Tribunal made no orders estopping the appellant from bringing an action. The words of the Tribunal that the appellant complains of are as follows:
The Arise closing submissions raise a point about the risk of inconsistent findings if the liability of Loveday Corp as tenant under the surrender of lease and the liability of the Lovedays as indemnifiers under the surrender indemnity are resolved separately. With regard to that, the Tribunal notes that it is not given exclusive jurisdiction to deal with questions arising under a retail shop lease. Under s 27 of the CTRSA Act a landlord has the ability in a situation such as this to seek to have both of those claims determined by a court. However, it has not chosen to do that and now that the final hearing has been completed, it is not appropriate for that course of action to now be taken in respect of the claims by Arise Joondalup against Loveday Corp and the Lovedays in this matter [110] - [111].
40 The words of the Tribunal are that it is not appropriate for both the claims to now be determined in a court. As one claim has been determined, s 27 of the CTRSA would not allow the action against Loveday Corporation to be heard again. The Tribunal did not decide that the appellants were or would be estopped from bringing the claim against the Lovedays in a court of relevant jurisdiction. It is not necessary or appropriate to consider whether the appellant's would be estopped from bringing such a proceeding. That would be a matter for a court if and when Arise takes that course. In any event this ground does not affect the decision of the Tribunal. Leave to appeal on ground 6 of the appeal will be refused and the appeal will be dismissed.
Appeal dismissed
41 The appellant has failed to show that that it is in the interests of justice that there be a grant of leave on any of the argued grounds. Nor have they shown that there are any arguable grounds of appeal. Leave is refused on all grounds and the appeal will be dismissed.
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