DAMARO PTY LTD and HYDROX NOMINEES PTY LTD
[2020] WASAT 7
•9 JANUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION: DAMARO PTY LTD and HYDROX NOMINEES PTY LTD [2020] WASAT 7
MEMBER: MS D QUINLAN, MEMBER
MR S WILLEY, MEMBER
HEARD: 4 NOVEMBER 2019
DELIVERED : 9 JANUARY 2020
FILE NO/S: CC 1082 of 2019
BETWEEN: DAMARO PTY LTD
Applicant
AND
HYDROX NOMINEES PTY LTD
Respondent
Catchwords:
Retail shop - Questions arising under a lease - Café - Whether lease grants tenant exclusivity to operate café in retail shopping centre - Whether landlord granted tenant exclusivity - Whether landlord can lease any part of centre to another café - Whether landlord made representations regarding exclusivity - Whether misleading and deceptive conduct
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 11(5), s 16, s 16C, s 16D, s 16D(1), s 16(1), s 16(1)(a), s 16(1)(b), s 16(2), s 25C, s 26
Result:
Matters dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr R Borberly (Director) |
| Respondent | : | Mr C Slater and Mr M Reid |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Jackson McDonald |
Case(s) referred to in decision(s):
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Goldbreak Holdings Pty Ltd and Lendlease Real Estate Investments Ltd [2018] WASAT 51
Grainger v Williams [2009] WASCA 60
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357
Morton Seed & Grain Pty Ltd v Phillbourne Manufacturing Pty Ltd [2018] WASC 386
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268; (2008) 38 WAR 350
Watson v Foxman & Ors (1995) 49 NSWLR 315
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings arise in the Tribunal pursuant to an application made under s 16(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (the Retail Shops Act) by Damaro Pty Ltd (applicant or tenant) referring a question arising under a retail shop lease where the tenant is the tenant operating a café under the café franchise 'Caffissimo'. The landlord is Hydrox Nominees Pty Ltd (respondent or landlord).
At a directions hearing in the Tribunal on 17 September 2019, the Tribunal amended the tenant's application to include an application in the alternative under s 16D of the Retail Shops Act alleging that the landlord had engaged in misleading and deceptive conduct.
The landlord is the registered proprietor of an estate in fee simple described as Lot 806 on Deposited Plan 71347, being the whole of the land comprised in Certificate of Title Volume 2790 Folio 976 (the land). The land is located at Lot 806 Joondalup Drive, Joondalup and is also known as 'The Quadrangle' which comprises a standalone main building and various smaller buildings as well as car parking areas. The Quadrangle includes a number of retail shops in a retail shopping centre as defined under the Retail Shops Act.
On 14 March 2014 the tenant and the landlord entered into a retail shop lease (lease) where the landlord agreed to lease to the tenant the retail shop premises identified as 'Tenancy 5B' (premises) for a term of five years with two options to renew for a further term of five years. The lease was later dated 10 June 2016 providing for a commencement date of 23 April 2014 and an expiry date of 22 April 2021: see Exhibit 10.
Issues arising for determination
Section 16(1)(a) of the Retail Shops Act provides that the Tribunal must first determine whether or not the question referred by the tenant is a question arising under the lease. If the Tribunal finds that the question referred by the tenant is a question arising under the lease, s 16(1)(b) of the Retail Shops Act provides that the Tribunal must hear and determine the question.
The tenant submits that the issue to be determined is whether the tenant holds any form of exclusivity to operate a café within the retail shopping centre or main building arising from the lease negotiations and representations made by the landlord and/or its agent.
Section 16(1)(a) of the Retail Shops Act provides that the Tribunal shall determine whether the question referred is a question arising under the lease. The Tribunal finds that s 16 of the Retail Shops Act provides the Tribunal, where the parties are in dispute as to the meaning of the terms of the lease, with a specific power to interpret the terms of the lease and thereby resolve that dispute. The Tribunal's power in s 16 is quite different to the Tribunal's jurisdiction arising under s 16C and s 16D of the Retail Shops Act which relates to misleading and deceptive conduct in connection with the lease and is much broader in its potential scope.
The Tribunal finds that the question, as referred by the tenant, is too broad in scope as presently worded as it includes matters outside interpretation of the lease. The tenant's form of the referred question conflates a question arising under the lease under s 16 of the Retail Shops Act with the issues arising as to allegations of misleading and deceptive conduct under s 16C of the Retail Shops Act. However, the Tribunal does find that a question arises as to whether the lease grants the tenant any form of exclusivity to operate a café within the retail shopping centre. The Tribunal will now proceed to determine that question under s 16(1)(b) of the Retail Shops Act.
The issue for the Tribunal to determine in these proceedings under s 16C and s 16D of the Retail Shops Act as to whether the landlord has engaged in misleading and deceptive conduct in connection with the lease can be divided into a number of sub-issues to be determined as follows:
(a)whether the landlord or its agent made any form of representation to the tenant that it would have exclusivity to operate a café at the retail shopping centre;
(b)if representations were made, whether those representations were misleading and deceptive; and
(c)if representations were made that were misleading and deceptive, did the tenant rely on those representations.
If the Tribunal is satisfied that the landlord did engage in misleading and deceptive conduct for the purposes of each of these three sub‑issues, the fourth sub‑issue for the Tribunal to determine is whether the tenant has suffered loss and damage due to the misleading and deceptive conduct of the landlord and make an order for compensation. The tenant alleged it had suffered, or will suffer, loss or damage due to the landlord granting a retail shop lease to another café in the main building of the retail shopping centre. However, the tenant did not provide any evidence of such loss or damage in the evidence it presented to the Tribunal.
It became apparent to the Tribunal during the course of the final hearing on 6 November 2019 that the new café tenant was still in the fit‑out phase and had not yet opened. Therefore, the tenant at this point in time could not establish any actual loss or damage due to its claim of losing a right of exclusivity as the only café in the retail shopping centre. However, s 16D(1) of the Retail Shops Act also allows an application to be made where a party is likely to suffer loss or damage. The Tribunal agreed to proceed with making a determination of the first three sub‑issues identified above. If the tenant is successful in relation to those three sub‑issues then the Tribunal will reconvene to provide the tenant with the opportunity to present evidence of loss and damage that it has suffered, or is likely to suffer.
The Retail Shops Act
Section 16 of the Retail Shops Act provides (subject to s 11(5) in relation to the rent payable) that a party to a retail shop lease may refer to the Tribunal any question between the parties which they believe to be a question arising under the lease. Section 16(1)(a) of the Retail Shops Act then provides that 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. Section 16(2) of the Retail Shops Act provides that the matter for determination referred to in s 16 (1)(a) may be determined by the Tribunal in such manner as it thinks fit, subject to each party being given an opportunity to make a written submission.
Section 16C of the Retail Shops Act provides that a party to a retail shop lease must not, in connection with the lease, engage in conduct that is misleading or deceptive to another party to the lease or that is likely to mislead or deceive another party to the lease.
Section 16D of the Retail Shops Act provides for an application to be made to the Tribunal as follows:
(1)A party, or former party, under a retail shop lease or former retail shop lease who suffers, or is likely to suffer, loss or damage because of misleading or deceptive conduct of another party or former party to the lease may apply in writing to the Tribunal for an order that the other party, or former party, pay compensation in respect of the loss or damage, or for other appropriate relief.
(2)A misleading or deceptive conduct application is required to be lodged within 6 years after the alleged misleading or deceptive conduct occurred.
(3)Without limiting section 26, in proceedings in relation to a misleading or deceptive conduct application, the Tribunal may make any one or more of the following orders that it considers appropriate ‑
(a)an order that a party to the proceedings pay money to a specified person, whether by way of debt, damages or restitution, or refund any money paid by a specified person;
(b)an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings.
(4)The Tribunal may make any ancillary orders that it considers necessary for the purpose of enabling an order under this section to have full effect.
(5)The Tribunal may impose any conditions that it considers appropriate when making an order under this section.
(6)The Tribunal may make an interim order under this section pending final determination of a misleading or deceptive conduct application, if the Tribunal considers it appropriate to do so.
Section 26 of the Retail Shops Act provides the Tribunal with the discretionary powers to make orders as follows:
(1)Without limiting any power to make an order that is conferred by the State Administrative Tribunal Act 2004 but subject to this Act the Tribunal may make ‑
(a)an order that requires a party to any matter before it to pay money to a person specified in the order; or
(b)an order for a party to any matter before it to do, or refrain from doing, anything specified in the order; or
(c)an order dismissing any matter before it.
(1a)The power in subsection (1)(b) includes power for the Tribunal to order the parties to enter into an agreement varying a retail shop lease as specified in the order where the Tribunal has found that the tenant under the lease was before entering into the lease misled by the landlord as to the meaning or effect of a term or condition of the lease.
(1aa)The Tribunal may, where it considers it appropriate to do so to resolve the matter concerned, make an order terminating a retail shop lease.
(2)In considering whether to make an order under the State Administrative Tribunal Act 2004 section 87(2) in a proceeding, the Tribunal may have regard to a certificate issued under section 25C that relates to the proceeding.
(3)An order of the Tribunal requiring anything to be done or discontinued may fix the time within which that thing is to be done or discontinued, as the case may be.
(4)The Tribunal may allow any equitable claim or defence, and give any equitable remedy, in a matter before it that the Supreme Court may allow or give.
The legal authorities
In Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268; (2008) 38 WAR 350 his Honour Buss JA summarised the proper approach to construction of written contracts (in that instance a lease) at [84] ‑ [86] as follows:
The general principles to be applied in the construction of written contracts are set out in the judgment of Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99:
It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', to use the words from earlier authority cited in Locke v. Dunlop ((1888) 39 Ch. D. 387, at p. 393), which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case [2008] WASCA 268 ((1880) 16 Ch. D. 681, at p. 686). Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co. Ltd. v. Arcos Ltd ((1932) 147 L.T. 503, at p. 514), that the court should construe commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not, in my opinion, be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v. Australian Chilling and Freezing Co. Ltd ((1968) 118 CLR 429, at p. 437)) (109 - 110).
The construction of a written contract involves ascertaining what a reasonable person would have understood the parties to mean. Consideration should ordinarily be given not only to the language of the document, but also to the surrounding circumstances known to the parties, and the apparent purpose and object of the transaction. See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, where Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas ((2004) 218 CLR 451), has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461 - 462 [22]) [40].
Also see Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 [11]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22]; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 82 ALJR 419 [8], [53]; Jumbo King Ltd v Faithful Properties Ltd [1999] 3 HKLRD 757, 773 - 774.
The preponderance of Australian authority supports the proposition that post-contractual conduct is not admissible in determining what a contract means, as distinct from determining whether it was formed. See Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 [26] (Heydon JA). Also see County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 [161]; Bowesco Pty Ltd (receiver and manager appointed) v Zohar [2007] FCAFC 1; (2007) 156 FCR 129 [79].
The above principles have recently been reaffirmed by the High Court in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 per French CJ, Hayne, Crennan, Kiefel and Gageler JJ at [35] as follows:
… this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption 'that the parties … intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'.
(footnotes omitted)
The test of whether conduct is misleading or deceptive is an objective one. Conduct is misleading or deceptive, or is likely to mislead or deceive, if it has a tendency to lead a reasonable person in the position of the recipient of the information into error. Proof of an intention to mislead or deceive is not required. Even if the person making the representation is found to have acted honestly, the representation may still be found to be objectively misleading: Goldbreak Holdings Pty Ltd and Lendlease Real Estate Investments Ltd [2018] WASAT 51 at [102].
In Morton Seed & Grain Pty Ltd v Phillbourne Manufacturing Pty Ltd [2018] WASC 386 at [546] – [547], Pritchard J stated as follows:
Whether particular conduct is misleading or deceptive is a question of fact that is to be objectively determined. In determining whether a contravention of s 18 has occurred, the task of the Court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the Court must determine for itself.
Often that will involve two steps: first, making findings of fact about what was said and whether any pleaded representation is established; secondly, determining whether the proven representations (or other conduct) are misleading or deceptive.
To determine whether particular conduct is misleading and deceptive the Tribunal must undertake a close analysis of all of the circumstances and consider the character of the particular conduct in question, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known: see Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [91] and Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [37].
In the context of evaluating the evidence as to whether misleading and deceptive conduct has occurred, in particular where the evidence is derived from conversations and relies on the interpretation of subtle nuances of language and the fallibility of memory, Watson v Foxman& Ors (1995) 49 NSWLR 315 (Watson v Foxman) at 318 ‑ 319 found:
Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as 'misleading') within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
In Parkdale Custom Built Furniture Pty Ltd v Puxu PtyLtd (1982) 149 CLR 191 at 199 and 209, the High Court found that legislation to protect against misleading or deceptive conduct is not designed to protect people who failed to take reasonable care to protect their own interests.
Under s 16C of the Retail Shops Act, the tenant must also establish, in reliance on the conduct complained of, that the tenant acted in a particular way that caused it to suffer loss or damage: Grainger v Williams [2009] WASCA 60 at [93]:
In any claim for damages for misleading and deceptive conduct, the first step in the process of assessment must be the identification of the conduct or events which were induced or caused by the misleading and deceptive conduct established by the evidence. In this case, the conduct which was induced by the clearing representation that was found to be misleading and deceptive was entry into the various transactions relating to Kensey Park. The Williamses became aware of the falsity of the clearing representation by mid-August 1998, and relied upon that conduct to terminate the transaction for the acquisition of Location 1658. That meant that the leases terminated on 18 December 1998, as they well knew. The termination of the leases on 18 December 1998 was confirmed by the legal advice which they received on the previous day. The transactions which were induced by the misleading and deceptive conduct had come to an end on 18 December 1998. Further, the Williamses had been aware of the facts which rendered the conduct of the Graingers misleading and deceptive since August 1998. They therefore had almost four months within which to take the steps necessary to vacate Kensey Park when the leases expired.
Terms of the lease
The terms of the lease that are relevant to determining the question arising under the lease are as follows.
Clause 1 of the lease defines the 'Centre' as follows:
(a)the Land and any other land which the Landlord uses with the Land for a bulky goods retail centre, a parking area or other undertaking related to a bulky goods retail or a parking area; and
(b)all improvements (other than the Tenant's Property) on the Land and the other land or which the Landlord intends to construct on the Land and the other land.
Clause 15.9 of the lease provides that:
The Tenant acknowledges that the Landlord may:
(a)enforce its rights against the Tenant whether or not the Landlord enforces its rights against other tenants or occupiers of the Centre; and
(b)lease or licence any part of the Centre for a business which competes with the Tenant's Business.
Clause 28.12 of the lease contains the 'entire agreement' clause which provides at sub-clauses (a) and (b) that:
(a)The contents of this lease, any agreement for lease and any Disclosure Statement cover and comprise the whole of the agreement between the parties in respect of their subject matter.
(b)The Tenant agrees that in entering into this lease the Tenant has not relied on any promise, representation, warranty or undertaking given by or on behalf of the Landlord in respect of the Premises or the Centre which is not contained in this lease, any agreement for lease or any disclosure statement provided to the Tenant pursuant to the Retail Legislation.
Background facts
Many of the relevant background facts are not in dispute between the parties. Where there is a dispute, for instance in relation to what occurred at the meeting on 7 March 2014, the Tribunal will consider the conflicting evidence presented by the parties and make factual findings later in these reasons.
On or about July/August 2013 the landlord's agent approached the tenant inviting it to consider moving its café premises from Lakeside Joondalup Shopping Centre. Preliminary negotiations were commenced in August 2013. At this time, apart from Tenancy 5B, the retail shopping centre was fully leased and operational.
On 17 September 2013, the landlord's agent emailed the tenant attaching an expression of interest document (EOI) with the heading 'Masters Development Tenancy 5A, 806 Joondalup Drive Joondalup'. At this time, and at the time of entering into the lease, Masters Home Improvement Australia Pty Ltd (Masters) was the anchor tenant at the retail shopping centre. Mr John Young the development manager from Masters was part of the lease negotiation process on behalf of Masters as the anchor tenant. It is apparent from the documents provided to the Tribunal that the landlord's agent took direction from Mr Young during the lease negotiations.
The Tribunal notes that the EOI referred to 'Tenancy 5A' however it was 'Tenancy 5B' that was ultimately the subject of the lease. The email mentioned Mr Young: see page 31 of the tenant's bundle of documents (TB). The EOI was provided electronically in 'Word' format that allowed the tenant to amend it. The EOI was to set out indicative terms that the landlord would consider as an offer to lease. The document expressly stated that the EOI was non-binding on the parties.
By emails on 20, 23 and 24 September 2013, the landlord's agent followed up the tenant requesting a completed copy of the EOI be signed and returned: see pages 32, 33 and 36 of the TB.
On or about 23 September 2013, the tenant received another EOI from the landlord's agent (the 23 September 2013 EOI). On 24 September 2013 the tenant signed the 23 September 2013 EOI. Not long afterwards, Mr Young reviewed the 23 September EOI and made handwritten amendments. The 23 September 2013 EOI contains no reference to exclusivity: see pages 4 ‑ 6 and 7 ‑ 9 of the TB.
On 1 October 2013 the landlord's agent emailed the tenant and summarised the amendments by Mr Young on the 23 September 2013 EOI: see page 37 of the TB.
On 8 October 2013, the tenant and the landlord's agent exchanged a number of emails regarding a number of the tenant's questions. The tenant understood that the Masters' stores in the eastern states included 'McCafé' food outlets operating within the Masters' stores. The tenant stated '[w]e require assurances from the developer that there is not a café or similar within Masters and that a café will not be part any future development of the site': see page 47 of the TB.
On 8 October 2013 the landlord's agent emailed the tenant with Mr Young's responses in red text to the tenant's questions. The copy of the email exchanges provided in evidence to the Tribunal did not contain red text, however it was agreed between the parties that the response of Mr Young to the McCafé question was the following text:
No McCafé will be in store. We maybe [sic] able to agree to no McCafé in Masters store, but cannot give exclusivity to the rest of the development (as tenants are allowed to sublease etc).
(see page 47 of the TB)
On 15 November 2013, the landlord's agent emailed the tenant to follow up and asked if 'we can put some terms into another EOI document?': see page 59 of the TB.
On 18 November 2013, the landlord's agent emailed another EOI document to the tenant requesting it to complete the highlighted areas and return: see page 60 of the TB. The blank EOI dated 31 October 2013 is the document that was emailed to the tenant on 18 November 2013: see page 13 of the TB and Exhibit 11.
Later in the evening on 18 November 2013 the tenant emailed the landlord's agent informing him that the EOI had been submitted to the Caffissimo master franchisor for approval: see page 61 of the TB.
The evidence at the hearing was not entirely clear, or agreed, as to which party produced the filled in EOI dated 31 October 2013 although it was agreed that the date of the document is approximately 18 November 2013 (18 November 2013 EOI): see pages 10 ‑ 12 of the TB and Exhibit 11. The proposed rent relief period in clause 4 and the exclusivity in clause 5 in the 18 November EOI are favourable to the tenant. Clause 5 of the 18 November 2013 EOI stated as follows:
5.Exclusivity Clause – Masters will not operate or permit to operate a café within or attached to the building and will provide exclusive café rights within the bounds of the Masters Development (fundraising sausage sizzle excluded to the arrangement that fund raising exclusively provides sausage sizzle and canned drinks only). Not to allow coffee vans, ice cream vans or other food carts to operate within the Masters Development.
The Tribunal is unaware of any documentary evidence as to whether the landlord expressed a view at this time regarding the 18 November 2013 EOI, and clause 5 in particular.
On 21 November 2013, the tenant emailed the landlord's agent attaching an EOI (which was not provided to the Tribunal) and indicating the only remaining question was the name of the company to be the lessee: see page 64 of the TB.
On 25 November 2013, the landlord's agent emailed the tenant stating that he considered that the proposed lengthy rent relief period would be too high for Mr Young of Masters and he highly doubted it would be accepted. The landlord's agent asked the tenant whether it wished to reconsider the proposal before the EOI was to be presented to Mr Young. The tenant answered that the EOI should be presented as is and that every time the tenant made a query Mr Young kept offering further rent free periods in lieu: see page 63 of the TB.
On 11 December 2013, the landlord's agent emailed the tenant an update advising that Masters were presently considering the tenant's EOI and another party's EOI. The agent was hoping to get feedback the next day. As soon as the agent had any information he was to let the tenant know: see page 65 of the TB 65 and also Exhibits 12 and 13 regarding discussions with another party.
On 19 December 2013, the tenant emailed the landlord's agent an EOI completed by the Caffissimo master franchisor and also with every clause initialled by Mr R Borbely the director of the tenant (19 December 2013 EOI). The 19 December 2013 EOI included three months' rent relief in clause 4 and did not include any clause as to exclusivity: see pages 16 ‑ 18 and 66 of the TB
On 10 January 2014 the landlord's agent emailed the tenant indicating he was preparing a disclosure statement and Mr Young was preparing the draft lease both of which would go to the tenant for review: see page 77 of the TB.
On or about 15 January 2014, the landlord's agent provided the tenant with the disclosure statement. The disclosure statement included:
(a)at part 2.2 that the lease will not provide the tenant with exclusivity in relation to the permitted use defined in part 2.1 as '[c]afé selling assorted hot and cold beverages, cakes sandwiches and the like'; and
(b)at part 31.1 in relation to any representations made by the landlord or its agent 'N/A'.
(see page 3 of the landlord's bundle of documents)
On 27 January 2014, the tenant emailed the landlord's agent indicating he had a few matters to clarify before the formal lease documents could be prepared. The landlord's agent asked for the matters to be put in an email: see page 84 of the TB.
On 29 January 2014 the tenant sent a lengthy email to the landlord's agent setting out matters that it said required clarification relevantly as follows:
(a)In relation to the disclosure statement at item 2.2:
We accept we cannot get exclusivity due to tenant mix, and the fact that Masters sells cold drinks and has fund raising sausage sizzles, however there was a reference that Masters would not be granting permission for a McCafé (or similar) in the centre, albeit not being able to control other tenants activities – Can we have some further assurance that this is still the case.
(b)In relation to the disclosure statement at item 31.1:
A number of representations have been made by the [Landlord] and representatives relating to the carrying on of the business, including that a McCafé will not be offered in the complex, that a café will not open within Masters, the alfresco area can be used for trade. We accept that the [Landlord] has no control over other tenants who may provide some refreshments within the tenancy, however we would like some assurance that another café will not be opened in the complex (exclusively) – not withstanding [sic] there may be from time to time sausage sizzles and cooking demonstrations etc.
(c)In relation to the draft lease at page 20, clause 15.9(b):
… representations have been made to the contrary - we require further assurance that a McCafé or similar competitor will not be offered a lease in the centre.
(see pages 86 ‑ 90 of the TB)
On 3 February 2014 the landlord's agent emailed the tenant informing the tenant that the lease queries had been forwarded to the solicitor and also responding in red text to the tenant's queries regarding the disclosure statement: see page 85 of the TB. The copy of the email exchanges provided in evidence to the Tribunal did not contain red text, however it was agreed between the parties that the responses were the following text:
(a)In relation to the disclosure statement at item 2.2:
This will have to be discussed with John[.]
(b)In relation to the disclosure statement at item 31.1:
I have never mentioned a McCafe being opened so unsure where this has come from but will speak to John to get clarification on this matter.
(see pages 86-90 of the TB)
On 7 March 2014 the tenant (with Ms Deborah Wheatley, Mr Borbely's partner who assists with running the tenant's business) met with the landlord's agent and Mr Young to discuss amongst other things the draft lease (7 March 2014 meeting). According to the tenant, the questions raised in the tenant's email of 29 January 2014 were discussed, clarified and resolved to a satisfactory position for the tenant to continue with lease negotiations and finalisation. According to the landlord no representations were made that the tenant would have exclusivity at the retail shopping centre including in relation to the main building. What occurred at the 7 March 2014 meeting is a matter of contention between the parties. The Tribunal will consider the evidence presented regarding 7 March 2014 meeting and make factual findings later in these reasons.
As noted above, it is agreed that on 14 March 2014 the tenant entered into the lease with the landlord for Tenancy 5B. The lease was later dated 10 June 2016 providing for a commencement date of 23 April 2014 and would expire on 22 April 2021 (with an option for a further term of five years). The landlord submitted that clause 15.9(b) of the lease contradicts the tenant's submission as to exclusivity. The Tribunal will consider the question arising under the lease and make findings later in these reasons.
On 17 March 2014, the amended lease documents were sent to the tenant. As part of that email chain, Mr Young commented to the landlord's agent as follows:
Please see attached marked up changes to the Caffissimo lease.
Can you please forward this to Rob for his approval, and also send through the licensed area plan to include in the Lease.
As discussed our standard lease does go above the Retail Tenancies Act, as some of our tenants fall outside the RTA, however as Rob correctly pointed out we cannot contract out of the RTA, but we leave the provisions in for admin purposes across a number of the tenancies. However as agreed we have made changes to this lease.
(see pages 117-118 of the TB)
On 26 March 2014, a draft agreement for lease and a draft lease was sent to the tenant for review: see page 122 of the TB. The draft lease included clause 15.9 which provided that the landlord may lease or licence any part of the retail shopping centre for a business which competes with the tenant's business.
On 27 March 2014, the tenant (via Ms Wheatley) emailed the landlord's agent requesting two amendments unrelated to these proceedings and otherwise indicating that it was approved by the tenant: see page 121 of the TB. That email was later copied to Mr Borbely when Mr Young asked where to send the final lease and about a date for the handover: see page 119 of the TB.
By way of an example as to the differing views held by the parties regarding the claimed exclusivity, the Tribunal notes the following documents provided by the tenant and paragraphs of the tenant's statement of issues, facts and contentions (TSIFAC). On 18 October 2016, the tenant emailed the landlord's agent as follows:
I wish to report a breach in the terms of my lease.
This breach occurred on Saturday the 14th October 2017.
There is an exclusivity clause in our lease that no food operators will operate within the Masters complex, with the exception of fundraising BBQ. The fundraising BBQ must only sell 'sausage sizzle' and canned drinks.
On the date above the fundraising BBQ was selling, and permitted to sell, bacon and egg rolls. On this day we sell considerably less bacon and egg product that impacted on our trade.
Please advise the owner accordingly and prevent any further breaches.
(see page 127 of the TB)
On 19 October 2016, the landlord's agent emailed the tenant stating that the lease had been searched and a clause located which stated there was no exclusivity of use granted to the tenant. The landlord's agent asked the tenant to point out the clause which it believed the landlord is in breach: see page 127 of the TB.
On 28 October 2016, the tenant emailed the landlord's agent suggesting that the agent 'check the EOI form 2013, during the lease negotiation stage - John Young and Jack Bennett were involved in this. Please inform me when you have found this document.' The landlord's agent replied later that day stating that the document was an expression of interest and they have no records of it: see page 126 of the TB.
In December 2016, the anchor tenant Masters exited the retail shopping centre as part of the closure of the Masters' business: see para 22 of the TSIFAC.
On 19 July 2017, a 'For Lease' sign (sign) was erected at the retail shopping centre seeking expressions of interest for future tenants and included wording to the effect of including a second café at the retail shopping centre: see para 23 of the TSIFAC.
In February 2018, the tenant contacted the landlord's agent to discuss the sign and informed the landlord's agent of the tenant's pre‑lease negotiations which meant another café was not allowed in the former Masters' building of the retail shopping centre: see para 24 of the TSIFAC.
During April and May 2018, the tenant completed an EOI and provided it to the landlord's agent as the tenant wished to move its café inside the former Masters' building of the retail shopping centre. The tenant did not receive an EOI or any further communication from the landlord's agent in this regard: see paras 25 ‑ 28 of the TSIFAC.
On 7 May 2018 the Small Business Development Corporation issued a certificate under s 25C of the Retail Shops Act stating that alternative dispute resolution had failed to resolve the dispute between the parties.
On 23 July 2019, the tenant filed an application in the Tribunal.
Tenant's case
The tenant relied on the TSIFAC dated August 2019, the TB, the written and oral evidence of Mr Borbely and Ms Wheatley as well as the oral submissions made by Mr Borbely at the final hearing. The tenant also submitted some additional exhibits concerning negotiations that the landlord's agent and Mr Young had with another potential tenant.
The tenant seeks orders in its favour as well as compensation. The tenant's submissions in these proceedings can be summarised as follows:
(a)The 18 November 2013 EOI (which included the proposed rent relief clause 4 and exclusivity clause 5) was presented to the tenant by Mr Young: see para 14 of the TSIFAC.
(b)The tenant, as a direct result of the representations made by Mr Young in the 18 November EOI, agreed to enter into the lease. The tenant would not have entered into the lease without this 'exclusivity assurance' as it was the opinion of the tenant and the Caffissimo master franchisor that the retail shopping centre was not of a sufficient size to support more than one café: see para 21 of the TSIFAC.
(c)The 7 March 2014 meeting discussed, clarified and resolved the tenant's issues raised in the email of 29 January 2014 to a satisfactory position where the tenant continued with lease negotiations and finalisation. Some issues remained after the 7 March 2014 meeting and are mentioned in the emails: see paras 19 and 20 of the TSIFAC and the witness statements of Mr Borbely at paras 44 ‑ 49 and Ms Wheatley at paras 58 ‑ 64 which are in almost identical terms.
(d)At no time during the pre-lease and lease negotiations did the landlord or its agents refuse the tenant's request for exclusivity: see para 50 of the TSIFAC.
(e)The tenant seeks that the Tribunal make a ruling as to whether the representations made by the landlord or its agents amount to an agreement (both verbal and written) for limited exclusivity (limited by the proposed clause 5 in the 18 November 2013 EOI) to operate a café within the retail shopping centre: see paras 54 and 56 of the TSIFAC.
(f)Should the representations not be held to amount to exclusivity, the tenant seeks that the Tribunal determine whether the landlord has been misleading or deceptive with the tenant during the pre-lease negotiations: see para 55 of the TSIFAC.
(g)The tenant seeks an order that the landlord cannot allow another café (including food carts and coffee carts) to operate within the former Masters' building of the retail shopping centre.
Landlord's case
The landlord relies on its responsive statement of issues, facts and contentions, the landlord's bundle of documents provided to the Tribunal to complement the TB, the written and oral evidence of Mr Young as well as written and oral submissions made by counsel.
The landlord contends that the matters under s 16 and 16D of the Retail Shops Act should be dismissed. In support of that contention, the landlord's submissions can be summarised as follows:
(a)The tenant commenced negotiations after all the tenancies were occupied and trading at the retail shopping centre. At that time there were no similar or competing businesses, nor apparently any prospect for such. This context of practical exclusivity is relevant to assessing the tenant's assertions that exclusivity was important.
(b)There are significant differences between the documentary evidence about the requested exclusivity and the exclusivity as articulated by the tenant in these proceedings.
(c)According to the EOI's and emails, exclusivity has a varied expression:
a.On 8 October 2013 the exclusivity sought by email was '[w]e require assurances from the developer that there is not a café or similar within Masters and that a café will not be part [of] any future development of the site': The response by email was '[n]o McCafé will be in store. We maybe [sic] able to agree to no McCafé in [the] Masters' store, but cannot give exclusivity to the rest of the development (as tenants are allowed to sublease etc)': see page 43 of the TB.
b.The unsigned 18 November 2013 EOI says:
5.Exclusivity Clause – Masters will not operate or permit to operate a café within or attached to the building and will provide exclusive café rights within the bounds of the Masters Development (fundraising sausage sizzle excluded to the arrangement that fund raising exclusively provides sausage sizzle and canned drinks only). Not to allow coffee vans, ice cream vans or other food carts to operate within the Masters Development.
(see page 11 of the TB)
c.The 29 January 2014 email concedes at item 2.2:
We accept we cannot get exclusivity due to tenant mix, and the fact Masters sells cold drinks and has fund raising sausage sizzles, however there was a reference that Masters would not be granting permission for a McCafé (or similar) in the centre, albeit not being able to control other tenants activities ‑ can we have some further assurance that this is still the case.
The response by email was '[t]his will have to de discussed with John': see page 86 of the TB.
d.Finally, the 7 March 2014 meeting concluded without a record of the discussion which is consistent with the meeting not requiring any significant change to the then proposed documentation.
(d)According to the TSIFAC, the extent of any apparent exclusivity varies and changes: see paras 42 – 43, 46 ‑ 48, 54 and 56 of the TSIFAC.
(e)The tenant's case and evidence is inconsistent internally and inconsistent with the grant of any exclusivity. The memory of the tenant's witnesses is unreliable for the reasons stated in Watson v Foxman at 318 ‑ 319.
(f)All of the witnesses gave their evidence over five years after the events and alleged representations at an important meeting for which there are no notes or contemporaneous documents. It is a considerable period since the lease commenced. The assessment of this evidence ought to be approached cautiously.
(g)The landlord's case is consistent. All along the way the landlord said exclusivity could not and would not be granted. At its highest the idea only ever related to no present plans for a McCafé within the Masters' store. The suggested provenance of the 18 November 2013 EOI as originating from the landlord should be discounted. Mr Young was clear that the leases for the other stores allowed for sub-leasing and some could be expected to provide food as a compliment to their business. There was no exclusivity and this was reflected in the clear terms of clause 15.9(b) of the lease. Clause 15.9(b) appeared before the tenant identified items for clarification in the email on 29 January 2014 and survived the meeting on 7 March 2014 to discuss and resolve those items.
(h)In relation to the claim of misleading and deceptive conduct, after a close analysis of the circumstances, the appropriate findings are that:
a.the landlord did not make representations during negotiation of the lease that upon taking a lease of the premises there was exclusivity for a café business within the retail shopping centre or at the main building or Masters' store; and
b.the tenant did not enter the lease because of any exclusivity understanding.
Findings regarding witnesses and facts in dispute
Before the Tribunal makes findings regarding the question arising under the lease as well as the sub-issues to be determined as to whether the landlord has engaged in misleading and deceptive conduct in connection with the lease, the Tribunal will make relevant findings concerning the witnesses and the pertinent facts in dispute.
As to the three witnesses, Mr Borbely, Ms Wheatley and Mr Young, the Tribunal finds that none of them are wholly reliable witnesses as to what occurred at the meeting on 7 March 2014. All three witnesses had difficulty recalling matters when they gave their oral evidence. The Tribunal finds that we place less weight on the recollections of the three witnesses and more weight on the documentary evidence to draw final conclusions or inferences, in these proceedings. This is not to say that we discount all of the evidence of the three witnesses.
Apart from our own specific findings below in relation to what really occurred at the 7 March 2014 meeting, to the extent of any other inconsistencies between the evidence of Mr Borbely, Ms Wheatley and Mr Young, the Tribunal finds that we prefer the evidence of Mr Young over that of Mr Borbely and Ms Wheatley. However there is one exception. It will become apparent in the Tribunal's specific findings in relation to the 7 March 2014 meeting below that the Tribunal does not accept Mr Young's evidence that coffee carts were discussed at the meeting. In this particular instance, the Tribunal prefers the evidence of Mr Borbely and Ms Wheatley: see ts 48, 71 and 91 – 92, 4 November 2019.
Further, to the extent of any inconsistencies between the oral evidence of Mr Borbely and Ms Wheatley, the Tribunal prefers the evidence of Ms Wheatley as it became apparent to the Tribunal in their oral evidence that Ms Wheatley was more involved in the preparation of the tenant's emails that were sent to the landlord (in particular, the 29 January 2014 email) and had a better overall recollection of events than Mr Borbely.
Mr Young's evidence is internally consistent, logical and most importantly in the circumstances of this matter where the Tribunal gives more weight to the documentary evidence, accords with the documentary evidence of events. Mr Young's evidence is also consistent with the Tribunal's findings below in relation to the 18 November 2013 EOI. Mr Young's evidence is also logical and plausible in that his authority to negotiate the terms of a lease on behalf of the landlord did not extend to granting an exclusivity clause. Mr Young stated that he would need to seek further approval from the landlord for an exclusivity clause and that in his experience tenants who requested exclusivity were always informed that it would not be a term of any lease they entered into that another lease could not be granted to a competing business: see ts 81 – 82, 4 November 2019 and witness statement at paras 21 ‑ 22.
Mr Borbely and Ms Wheatley have almost identical witness statements as to what occurred at the 7 March 2014 meeting: see the witness statements of Mr Borbely at paras 39 ‑ 49 and Ms Wheatley at paras 54 ‑ 64. It is unusual for witnesses to have such identical recollections and this undermines the weight the Tribunal attaches to their evidence as independent recollections of events. As to be expected, under cross‑examination in their oral evidence, the evidence of Mr Borbely and Ms Wheatley was not in entirely identical terms. These discrepancies undermine their reliability as witnesses of fact. However, this is not a matter of any adverse credibility findings being made by the Tribunal in relation to Mr Borbely and Ms Wheatley. The Tribunal finds that the recollections of Mr Borbely and Ms Wheatley are genuinely held, however we also find that their recollections are subconsciously influenced by self-interest and this adversely influences their accurate perception of events: see Watson v Foxman at 318 ‑ 319.
The Tribunal finds that we can draw an inference that the tenant is the one who proposed the exclusivity clause 5 in the 18 November 2013 EOI and not Mr Young as suggested by the tenant in these proceedings. This is because, upon consideration of all of the evidence, and in particular:
(a)it was the tenant who requested exclusivity on a number of occasions and the proposed rent free period was extremely favourable to the tenant (also see the tenant's concession to this effect at ts 34, 4 November 2019); and
(b)the proposed clauses 4 and 5 were inconsistent with Mr Young's approach to the negotiations as displayed across the documentary evidence,
the Tribunal finds the only reasonable inference to draw is that the tenant prepared the 18 November 2013 EOI and presented it to the landlord's agent on or about 18 November 2013 for consideration.
In relation to the meeting of 7 March 2014, the Tribunal makes the following specific factual findings as to what occurred:
(a)Following the tenant's email of 29 January 2014 seeking clarification regarding a number of matters including the draft lease and the reply by the landlord's agent on 3 February 2014, the 7 March 2014 meeting occurred.
(b)Attending the 7 March 2014 meeting were the tenant, Mr Borbely (and with Ms Wheatley), as well as the landlord's agent Mr Jack Bennett and Mr Young.
(c)The questions raised in the tenant's email of 29 January 2014 were discussed, clarified and resolved to a satisfactory position for the tenant to continue with lease negotiations and finalisation.
(d)The tenant was reassured by the landlord's agent and Mr Young on a practical basis that Caffissimo would the last tenancy to be occupied, there were no other cafés in the retail shopping centre; and Masters did not currently plan to put a McCafé at this Masters' site. The tenant was also told again that the landlord, so far as food and drink was concerned, could not control sub-leasing by other tenants and that from time to time cooking demonstrations and fundraising sausage sizzles would occur.
(e)No representations were made, or agreement reached, that the tenant would have exclusivity at the retail shopping centre including in relation to the main building.
(f)The matters discussed, relevant to an agreement of exclusivity and any representations as to exclusivity, did not alter the proposed terms of the lease.
Question arising under the lease - Does the tenant have a right to exclusivity under the lease
The question arising under the lease asks the Tribunal to determine, whether the lease grants the tenant any form of exclusivity to operate a café within the retail shopping centre.
The tenant submitted that at no time during the pre-lease and lease negotiations did the landlord or its agent refuse the tenant's request for exclusivity. The Tribunal finds neither was exclusivity positively agreed by the landlord or its agent at any point in the pre-lease negotiations. The comment from Mr Young that no McCafé would be in the Masters' store in the email of 8 October 2013 does not constitute a positive agreement to exclusivity. Moreover, the opposite of exclusivity was ultimately agreed by the parties in clause 15.9(b) of the lease.
It is apparent to the Tribunal that the tenant is under the genuinely held, but mistaken, belief that an agreement was reached as to exclusivity by virtue of clause 5 of the 18 November 2013 EOI and the 7 March 2014 meeting that is wholly contrary to clause 15.9(b) of the subsequently executed lease. The EOI and the discussions at the 7 March 2014 meeting are part of pre-lease negotiations in which parties propose terms that may or may not eventuate into an agreed clause of a lease. The lease is the agreement between the parties, not the pre-lease negotiations. Whilst the pre-lease negotiations may assist the interpretation of the terms of the lease by giving context to the intentions of the parties, they do not assist when there are terms of the lease, such as clause 15.9(b), which expressly contradict those pre‑lease negotiations.
Further, whatever was said by the landlord's agent or Mr Young, in the email of 29 January 2014 and at the 7 March 2014 meeting, is of no assistance to the Tribunal in interpreting the unambiguous and express words of clause 15.9(b) of the lease.
In taking an objective approach to the interpretation of the common intention of the parties (and not the tenant's subjective intention, nor the tenant's request for agreement), the Tribunal finds that the tenant does not have any form of exclusivity in running a café at the retail shopping centre under the terms of the lease. The lease expressly provides the opposite of exclusivity in clause 15.9(b) of the lease where the tenant acknowledges that the landlord may lease or licence any part of the retail shopping centre for a business which competes with the tenant's business.
Therefore, in answer to the question arising under the lease, the Tribunal finds that the tenant has no form of exclusivity to operate a café at the retail shopping centre, whether it be in the former Masters' building or elsewhere in the retail shopping centre.
Whether landlord engaged in misleading and deceptive conduct
Whether any form of representations were made regarding exclusivity
The Tribunal must determine whether the landlord or its agent made any form of representation to the tenant that it would have exclusivity to operate a café at the centre.
The Tribunal has found that at the 7 March 2014 meeting the tenant was reassured by the landlord's agent and Mr Young on a practical basis that the Caffissimo would the last tenancy to be occupied, there were no other cafés in the retail shopping centre and Masters did not currently plan to put a McCafé at this Masters' site. The tenant was also told again that the landlord, so far as food and drink was concerned, could not control sub-leasing by other tenants and that from time to time cooking demonstrations and fundraising sausage sizzles would occur.
The Tribunal finds that this practical reassurance by the landlord's agent and Mr Young as to the known and accepted surrounding circumstances of the tenant deciding whether to enter into the lease does not, and cannot, amount to a representation.
We find that the email of 17 March 2014 is not referencing a representation having been made as to exclusivity (or an agreement reached): see pages 122 ‑ 125 of the TB.
The Tribunal also finds no representations as to exclusivity were made by the landlord's agents at any stage in the negotiations. The Tribunal finds that on a number of occasions the tenant sought the landlord's agreement to exclusivity but such agreement was never reached and representations, within the meaning of s 16C of the Retails Shops Act, were never made by the landlord or the landlord's agent (including Mr Young).
Whether those representations were misleading and deceptive
The Tribunal has found that no relevant representations as to exclusivity were made. However, if the Tribunal is incorrect in this regard, we find that what was stated by the landlord's agent (including Mr Young) was factually accurate and not misleading or deceptive.
Did the tenant rely on those representations
The tenant submits that it relied on the assurances given. The Tribunal has found that the practical reassurances given by the landlord's agent (including Mr Young) were statements of fact, were not representations and were not misleading and deceptive. Therefore, the fact that the tenant relied on such practical reassurances is irrelevant to a determination by the Tribunal under s 16C and s 16D of the Retail Shops Act.
Conclusion
In conclusion, the Tribunal finds as follows:
(a)In answer to the question arising under the lease, the Tribunal finds that the tenant has no form of exclusivity to operate a café at the retail shopping centre, whether it be in the former Masters' building or elsewhere in the retail shopping centre.
(b)The landlord has not engaged in any conduct in connection with the lease that is misleading or deceptive to the tenant or that is likely to mislead or deceive the tenant.
In accordance with these reasons and the exercise of the Tribunal's discretion pursuant to s 26(1) of the Retail Shops Act, the Tribunal finds that the appropriate order we consider now needs to be made is to dismiss these two matters brought by the tenant under s 16 and s 16D of the Retail Shops Act.
Orders
Accordingly, we order as follows:
1.Pursuant to s 26(1)(c) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), the matters are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
9 JANUARY 2020
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