BLUNT & ANOR and PAL & ANOR [2007] WASAT 194

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 194
Act:	COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
Case No:	CC:901/2006	Heard:	30 APRIL 2007, 1 MAY 2007
Coram:	MS J HAWKINS (MEMBER) MR M SPILLANE (MEMBER)	Delivered:	1/08/07
No of pages:	35	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	NEIL TREVOR BLUNT VESNA BLUNT JENO PAL ROSIKA PAL
Catchwords:	Determination of jurisdiction Multiple businesses run from leased premises Whether the definition of "retail shop" applies Insufficient evidence to satisfy definition of "retail shop"
Legislation:	Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 3(1), s 3(3)(b), s 15, s 15(1), s 15(2), s 16 State Administrative Tribunal Act 2004 (WA), s 32, s 35, s 87(1), s 87(2)
Case References:	Bilek and Vata Investments Pty Ltd [2005] WASAT 153 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 Quah & Anor and AMP Life Limited [2005] WASAT [169] R v Kakelo [1923] 2 KB 793 Sharp v O'Driscoll (Unreported; WASC, Ful34/96; BC 9700941; 21 March 1997) Sorbara v DJ & AJ McCallum Pty Ltd [1998] VSCA 71
Orders	1. The applicants' applications are dismissed.,2. There is no award for costs to the respondent in respect to the applicants' application under s 35 of the State Administrative Tribunal Act 2004.,3. Within 14 days either party may file with this Tribunal and serve on the other party;,(a) an application for costs generally, supported by affidavit, detailing the amount sought and the basis upon which costs are claimed; and,(b) an outline of written submissions in support of such application.,4. Within 14 days of a party being served with the documents referred to in order 3 above, that party may file with this Tribunal and give to the other party:,(a) an answering affidavit;,(b) an outline of submissions in opposition.,5. Unless otherwise ordered, any such application for costs referred to in order 3 above shall be determined upon the documents.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA) CITATION : BLUNT & ANOR and PAL & ANOR [2007] WASAT 194 MEMBER : MS J HAWKINS (MEMBER)

MR M SPILLANE (MEMBER)

HEARD : 30 APRIL 2007, 1 MAY 2007 DELIVERED : 1 AUGUST 2007 FILE NO/S : CC 901 of 2006

CC 902 of 2006

CC 903 of 2006

CC 904 of 2006

BETWEEN : NEIL TREVOR BLUNT

VESNA BLUNT

Applicants

AND

JENO PAL

ROSIKA PAL

Respondents

Catchwords:

Determination of jurisdiction - Multiple businesses run from leased premises - Whether the definition of "retail shop" applies - Insufficient evidence to satisfy definition of "retail shop"

(Page 2)

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 3(1), s 3(3)(b), s 15, s 15(1), s 15(2), s 16

State Administrative Tribunal Act 2004 (WA), s 32, s 35, s 87(1), s 87(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants :…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WASAT 194
Decision Date: 1 AUGUST 2007

CaseChat Overview and Summary

The applicants in this matter sought to challenge the jurisdiction of the South Australian Civil and Administrative Tribunal, specifically questioning whether the Tribunal had the authority to make a decision regarding the operation of their businesses. The businesses in question were multiple entities operating from leased premises, and the dispute centred on whether these premises met the definition of a "retail shop" as outlined in relevant legislation. This matter was heard in the South Australian Civil and Administrative Tribunal, with the applicants arguing that the Tribunal did not have jurisdiction over their businesses due to the nature of their operations.

The central legal issue before the Tribunal was whether the businesses operated by the applicants qualified as "retail shops" under the applicable legislation, and consequently, whether the Tribunal had the jurisdiction to make a determination on the matter. The applicants argued that their businesses did not fit the definition of a "retail shop," and thus, the Tribunal lacked jurisdiction. The Tribunal was tasked with interpreting the relevant legislation to determine if the businesses indeed met the criteria for a "retail shop," and if so, whether this granted the Tribunal jurisdiction over the matter.

The Tribunal found that the applicants had failed to provide sufficient evidence to satisfy the definition of a "retail shop." The Tribunal considered the evidence provided by the applicants and concluded that it did not meet the threshold required to establish that the businesses were indeed "retail shops." Consequently, the Tribunal held that it did not have jurisdiction over the matter. The applicants' applications were dismissed, and there was no award for costs to the respondent in respect to the applicants' application under section 35 of the State Administrative Tribunal Act 2004. Both parties were granted the opportunity to file an application for costs generally, supported by affidavit, within 14 days, along with an outline of written submissions in support of such application.

Orders

Orders of the court

1. The applicants' applications are dismissed. 2. There is no award for costs to the respondent in respect to the applicants' application under s 35 of the State Administrative Tribunal Act 2004. 3. Within 14 days either party may file with this Tribunal and serve on the other party; (a) an application for costs generally, supported by affidavit, detailing the amount sought and the basis upon which costs are claimed; and (b) an outline of written submissions in support of such application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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