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CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd

CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd

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Case Copied 7 February 2017 41 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 4960

CB COLD STORAGE PTY LTD (ACN 005 031 265)	Plaintiff
v
IMCC GROUP (AUSTRALIA) PTY LTD (ACN 148 964 345)	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2017
DATE OF JUDGMENT:	7 February 2017
CASE MAY BE CITED AS:	CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 23

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LANDLORD AND TENANT – Whether retail premises leased – Lease of premises for cold and cool storage warehouse and transport facility – Whether the services provided at the premises are retail services for the purposes of the Retail Leases Act 2003 – “Ultimate consumer” test applied with respect to services – Scope of retail leases legislation as remedial or ameliorating legislation - 536 Swanston Street Pty Ltd v Habrut Pty Ltd (1998) V ConvR ¶54-323 – Wellington v Norwich Union Life Insurance Society Limited [1991] 1 VR 333 – FP Shine (Vic) Pty Ltd v Gothic Lodge Pty Ltd [1994] 1 VR 191 – Collector of Customs v Chemark Services Pty Ltd (1993) 42 FCR 585 – Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Hay QC with Ms Papaelia	Burke & Associates Lawyers Pty Ltd
For the Defendant	Mr G. Clarke QC with Mr P. Little	Sabelberg Morcos Lawyers

HIS HONOUR:

This proceeding has been brought pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). The Plaintiff, CB Cold Storage Pty Ltd, is seeking to appeal from an order of the Victorian Civil and Administrative Tribunal (“the Tribunal” or “VCAT”) constituted by Senior Member R. Walker made on 7 November 2016 bearing VCAT Reference No BP462/2016.

The Defendant, IMCC Group (Australia) Pty Ltd (“the Landlord”), is now the owner, the freehold reversioner, of a large refrigerated storage warehouse in North Laverton (“the Premise”). By a lease commencing on 1 September 2012 (“the Lease”), the Landlord’s predecessor in title, Iankev Pty Ltd, leased the Premises to the Plaintiff, CB Cold Storage Pty Ltd (“the Tenant”), for a period of ten years. On 30 October 2013, the Landlord became the owner, and hence the freehold reversioner, of the Premises.

The Tenant asserted in the proceedings before the Tribunal, and does so in this application for leave to appeal and any appeal, that the Premises are retail premises within the meaning of the Retail Leases Act 2003 (“the Act”). The Landlord denies that the Premises are retail premises for the purposes of this legislation, both in the proceedings before the Tribunal and in the present proceedings.

On 18 April 2016, the Tenant brought proceedings in VCAT seeking to recover various sums that it had paid to the Landlord on the ground that, because the Premises are, it asserted, retail premises, those moneys are not payable.…

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: [2017] VSC 23
Decision Date: 7 February 2017

CaseChat Overview and Summary

The dispute in CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd involved the interpretation of a lease for premises located at 536 Swanston Street, Melbourne. The respondent, IMCC Group (Australia) Pty Ltd, was the landlord of the property, while the appellant, CB Cold Storage Pty Ltd, was the tenant. The primary issue was whether the services provided by the appellant constituted "retail services" within the meaning of the Retail Leases Act 2003 (Vic). The case was heard in the Supreme Court of Victoria.

The court was required to determine whether the activities of CB Cold Storage, which involved cold and cool storage, as well as transport services, qualified as retail services. This required the court to consider the definition of "retail services" and apply the "ultimate consumer" test to ascertain whether the end users of the services were individual consumers. The court also needed to consider the scope of the Retail Leases Act and whether it was intended to provide remedies or improvements for tenants in situations where the services provided are not strictly retail in nature.

The court held that the activities of CB Cold Storage did not constitute retail services as defined under the Retail Leases Act. The court applied the "ultimate consumer" test and found that the services were provided to business customers rather than individual consumers. The court also considered the remedial and ameliorating nature of the Retail Leases Act, and concluded that it was not intended to apply to the type of services provided by the appellant. The court found that the lease was for the provision of industrial and commercial services, not retail services.

As a result, the Supreme Court of Victoria dismissed the appeal and upheld the decision of the County Court of Victoria. The court found that the lease in question was not a retail lease and that the Retail Leases Act did not apply to the appellant's activities. The final orders of the court were that the appeal be dismissed with costs.

Orders