BYKOWSKI and TEBRON PTY LTD - [2005] WASAT 178

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: BYKOWSKI and TEBRON PTY LTD [2005] WASAT 178

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 18 APRIL 2005

DELIVERED : 18 JULY 2005

FILE NO/S: CT 1247 of 2004

BETWEEN: DAREK BYKOWSKI AND SARAH BYKOWSKI
Applicants
AND
TEBRON PTY LTD
Respondent

Catchwords:

Landlord and tenant Commercial Tenancy (Retail Shops) Agreements Act 1985 Assignment of lease or new lease Management fees

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1995 (WA), s 8, s 12(1f), s 12(f)

Commercial Tenancy (Retail Shops) Agreements Amendment Act 1998 (WA)
Property Law Act 1969 (WA), s 33(1), s 34, s 34(i), s 34(i)(c), s 34(2)
State Administrative Tribunal Act 2004 (WA), s 7, s 167

State Administrative Tribunal Regulations 2004 (WA)

Result:

Application successful in part

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr M Solomon

Solicitors:

Applicants: Self-represented
Respondent: Gadens Lawyers

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

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; 64 ALR 481.
Milroy v Lord (1862) 4 De G F & J 264
Parker & Parker v Ledsham & anor [1988] WAR 32
Walsh v Lonsdale (1882) 21 Ch D 9.

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Application

In their application dated 14 October 2004, the applicants posed the following question arising under a retail shop lease:
"Can the Lessor charge retail tenants for 'Management and Administration' in the variable outgoings? Can the tenants be reimbursed if Management and Administration fees were incorrectly charged?"

Jurisdiction

The matter was originally filed with the Commercial Tribunal of Western Australia as it was then on 14 October 2004.
On 1 January 2005, the State Administrative Tribunal ("the Tribunal") commenced pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA) ("the SAT Act"). By virtue of s 167 of the SAT Act, this matter was transferred to the Tribunal.
On 18 April 2005, the application was heard and final written submissions were received from the applicants on 13 May 2005 and from the respondent on 17 May 2005.

Facts

The respondent is the owner of the Osborne Park Shopping Centre and the landlord of Shop 2 pursuant to a lease ("original lease") entered into in 1987 between the landlord, Messrs AV and E Gianotti, and the original tenants, Messrs MJ and KE McMahon ("original tenants").
The original lease provided for an initial term from 1 July 1986 to 30 June 1991 with an option for a further term from 1 July 1991 to 30 June 1996.
The original tenants exercised the option for the further term and assigned their interest to new tenants, PA and EM Ellis ("second tenants") by deed of extension and assignment dated 11 March 1993.
By deed dated 2 August 1996, the second tenants assigned their interest to MJ and KE McMahon and PW and S McKrill ("third tenants") by…

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.

Continue reading BYKOWSKI and TEBRON PTY LTD

Details

AGLC: BYKOWSKI and TEBRON PTY LTD [2005] WASAT 178
Case: [2005] WASAT 178
Decision Date: 18 JULY 2005

CaseChat Overview and Summary

The parties involved in the case were Bykowski, the tenant, and Tebron Pty Ltd, the landlord. The dispute revolved around the assignment of a lease and the imposition of management fees under the Commercial Tenancy (Retail Shops) Agreements Act 1985. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether Tebron Pty Ltd could lawfully impose management fees on Bykowski in the absence of a provision in the lease, and whether a new lease was required to be entered into following the assignment of the lease by Bykowski. The court was tasked with determining the validity of the management fees and the necessity of a new lease agreement.

The court found that Tebron Pty Ltd had not explicitly included a provision for management fees in the lease agreement, and thus, could not unilaterally impose such fees on Bykowski. The court emphasised that any fees must be clearly outlined in the lease terms to be enforceable. Additionally, the court held that the assignment of the lease did not necessitate the creation of a new lease agreement, provided that the terms of the original lease remained unchanged and were acceptable to both parties. The court's decision underscored the importance of clear contractual terms and the necessity of a new lease only when there are material changes to the original agreement.

The final orders of the court mandated that Tebron Pty Ltd could not impose management fees on Bykowski without a clear provision in the lease agreement. Additionally, the court confirmed that a new lease was not required following the assignment, so long as the original lease terms were upheld.

Orders