Flyer Services Pty Ltd and Marshall - [2013] WASAT 188

FLYER SERVICES PTY LTD and MARSHALL [2013] WASAT 188

Last Update: 25/11/2013

FLYER SERVICES PTY LTD and MARSHALL [2013] WASAT 188
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 188
Act:	COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
Case No:	CC:774/2013	Heard:	18 OCTOBER 2013
Coram:	MR T CAREY (MEMBER)	Delivered:	20/11/2013
No of Pages:	28	Judgment Part:	1 of 1
Result:	Questions arising under lease answered Matter adjourned for further directions
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	FLYER SERVICES PTY LTD COLIN MARSHALL MARY JEANETTE MARSHALL COBALT NOMINEES PTY LTD RUTH MARGARET BARRETT GEORGE EDWARD BERNARD BARRETT SANDRA MARJORY GATTI WILLIAM KIMBERLEY ROUTLEDGE PULLINGTON INVESTMENTS PTY LTD GWENYTH BAILEY DAVID VENTRESS WEDDERBURN JOHN WESLEY BUTLER NORA MAY McWHINNEY JOHN WILLIAM CALDOW RODD KENNETH BUDGE CAROLYN JAN GUIDA JACQUELYN KAYE BOYLE
Catchwords:	Landlord and tenant Retail shop Determination of disagreement as to rent payable as result of rent review Whether rent review effective given lease permitted landlord only to initiate which did not occur Whether landlord obliged to initiate rent review Whether landlord estopped from denying rent review effective
Legislation:	Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 11, s 16
Case References:	Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd [2008] WASCA 119 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Coghlan & Anor v S H Lock (Australia) Ltd (1985) 4 NSWLR 158 Commonwealth of Australia v Verwayen [1990] 170 CLR 394 Commonwealth v GIO Compulsory Third Party Insurance Limited (Unreported, 22 July 1997) ConStan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1985) 160 CLR 226 K Lokumal & Sons (London) Ltd v Lotte Shipping Co Pte Ltd, the 'August Leonhardt' [1985] 2 Lloyd's Rep 28(CA) Moratic Pty Ltd v Lawrence James Gordon and Anor [2007] NSWSC 5 Myers & Ors v Pioneer Concrete (Vic) Pty Ltd [1997] ANZ CONVR 331
Orders:	On the application heard on 18 October 2013 by Member Tim Carey, it is on 20 November 2013 ordered that: 1. The Tribunal's answers to the questions referred to it are: (a) Question: Pursuant to the lease between the applicant as lessee and the respondents as lessor (Lease), are the respondents obligated to issue a Rent Review Notice in respect of each CMR Review Date? Answer: Yes. (b) Question: Are the respondents estopped from denying that there has been a review of the rent payable under the Lease as from 1 July 2012 in the events which have occurred since that date? Answer: Yes. 2. The proceeding is adjourned to a directions hearing at 9.30 am on 27 November 2013.
Summary:	In response to the applicant's referral of a disputed question as to the rent payable as a result of a market rent review, and some time into the proceedings, the respondents challenged the Tribunal's jurisdiction on the basis that no valid rent review was commenced. This was because the…

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 Flyer Services Pty Ltd and Marshall

Details

AGLC: FLYER SERVICES PTY LTD and MARSHALL [2013] WASAT 188
Case: [2013] WASAT 188
Decision Date: 20 NOVEMBER 2013

CaseChat Overview and Summary

Flyer Services Pty Ltd and Marshall were involved in a dispute concerning the amount of rent payable under a lease for a retail shop. The issue arose from a disagreement about whether a rent review had been correctly applied. The matter was heard in the Supreme Court of New South Wales. The primary concern was whether the rent review was valid given that the lease stipulated that only the landlord could initiate such a review, which had not occurred. Another issue was whether the landlord was obligated to initiate the rent review, and whether the landlord was estopped from denying that the rent review was effective.

The court considered whether the landlord was required to initiate the rent review and whether they were precluded from denying its effectiveness. It examined the terms of the lease and whether they imposed an obligation on the landlord to initiate the review. The court also considered whether the landlord's conduct could estop them from denying the validity of the rent review. In reaching its decision, the court carefully analysed the lease provisions and the principles of estoppel. It concluded that the lease did not impose an obligation on the landlord to initiate the rent review, but the landlord's conduct might estop them from denying the review's validity.

The court answered the questions arising under the lease and adjourned the matter for further directions. This outcome allows the parties to prepare for the next steps in the proceedings, which may include further evidence and argument on the issues identified. The decision provides clarity on the obligations of the landlord under the lease and the potential application of estoppel in this context.

Orders

Orders of the court

Questions arising under lease answered

Matter adjourned for further directions

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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