Flyer Services Pty Ltd and Marshall

Case [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…

Continue reading Flyer Services Pty Ltd and Marshall

Sign in free to access the full text

Details
AGLC
FLYER SERVICES PTY LTD and MARSHALL [2013] WASAT 188
Case
[2013] WASAT 188
Decision Date

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.