Formstar Holdings Pty Ltd and Top Notch Roofing Pty Ltd
[2007] WASAT 208
•21 AUGUST 2007
FORMSTAR HOLDINGS PTY LTD and TOP NOTCH ROOFING PTY LTD [2007] WASAT 208
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 208 | |
| COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA) | |||
| Case No: | CC:2080/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (MEMBER) | 21/08/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed upon the basis that the Tribunal lacks jurisdiction to entertain the application | ||
| B | |||
| PDF Version |
| Parties: | FORMSTAR HOLDINGS PTY LTD TOP NOTCH ROOFING PTY LTD |
Catchwords: | Leases and tenancies Commercial tenancy Agreement to lease Whether a regulated commercial tenancy under the Commercial Tenancy (Retail Shops) Act 1985 (WA) "retail shop" Whether an automotive service workshop is a "retail shop" Goods (parts) consumed when labour applied in servicing function 57% of profit derived from the sale of such parts Whether analogous to an hotel which could be a "retail shop" Whether premises used "wholly or predominantly" for carrying on a business involving the sale of goods by retail Held to be wholly or predominantly a business for the supply of services by retail Tribunal lacked jurisdiction under Act Words and phrases: "retail shop"; "wholly or predominantly"; "wholly or mainly" |
Legislation: | Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 6, s 16(1), s 26(1)(b), s 27(5) Commercial Tenancy (Retail Shops) Regulations 1985 (WA), reg 3A State Administrative Tribunal Act 2004 (WA), s 91 |
Case References: | Blunt & Anor and Pal & Anor [2007] WASAT 194 Hope v Bathurst City Council [No 2] (1986) 61 LGRA 392 Lauven Pty Ltd & Anor v Venus Adult Shops Pty Ltd & Ors [2006] NSWADT 359 McClelland v Goulburn City Council (1976) 35 LGRA 1 R v Radio Authority; Ex parte Bull [1997] 2 All ER 561 Sharp v O'Driscoll (Unreported, Supreme Court of Western Australia, Full Court, 34/96, Library No 97011A-C, 21 March 1997, [BC9700941]) South Veterinary Group Pty Ltd and Sharpe & Anor [2006] WASAT 222 |
Orders | 1. The application is dismissed upon the basis that the Tribunal lacks jurisdiction to entertain the application.,2. Preliminary question answered accordingly. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA) CITATION : FORMSTAR HOLDINGS PTY LTD and TOP NOTCH ROOFING PTY LTD [2007] WASAT 208 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 AUGUST 2007 FILE NO/S : CC 2080 of 2006 BETWEEN : FORMSTAR HOLDINGS PTY LTD
- Applicant
AND
TOP NOTCH ROOFING PTY LTD
Respondent
Catchwords:
Leases and tenancies - Commercial tenancy - Agreement to lease - Whether a regulated commercial tenancy under the Commercial Tenancy (Retail Shops) Act 1985 (WA) - "retail shop" - Whether an automotive service workshop is a "retail shop" - Goods (parts) consumed when labour applied in servicing function - 57% of profit derived from the sale of such parts - Whether analogous to an hotel which could be a "retail shop" - Whether premises used "wholly or predominantly" for carrying on a business involving the sale of goods by retail - Held to be wholly or predominantly a business for the supply of services by retail - Tribunal lacked jurisdiction under Act - Words and phrases: "retail shop"; "wholly or predominantly"; "wholly or mainly"
(Page 2)
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 6, s 16(1), s 26(1)(b), s 27(5)
Commercial Tenancy (Retail Shops) Regulations 1985 (WA), reg 3A
State Administrative Tribunal Act 2004 (WA), s 91
Result:
The application is dismissed upon the basis that the Tribunal lacks jurisdiction to entertain the application
Category: B
Representation:
Counsel:
Applicant : Mr B Wheatley
Respondent : Mr E Scarff
Solicitors:
Applicant : Nicholson Clement
Respondent : Clement & Co Lawyers
Case(s) referred to in decision(s):
Blunt & Anor and Pal & Anor [2007] WASAT 194
Hope v Bathurst City Council [No 2] (1986) 61 LGRA 392
Lauven Pty Ltd & Anor v Venus Adult Shops Pty Ltd & Ors [2006] NSWADT 359
McClelland v Goulburn City Council (1976) 35 LGRA 1
R v Radio Authority; Ex parte Bull [1997] 2 All ER 561
Sharp v O'Driscoll (Unreported, Supreme Court of Western Australia, Full Court, 34/96, Library No 97011A-C, 21 March 1997, [BC9700941])
South Veterinary Group Pty Ltd and Sharpe & Anor [2006] WASAT 222
(Page 3)
Summary of Tribunal's decision
1 The question before the Tribunal was whether a motor vehicle repair and maintenance workshop run by Formstar, which had a majority of its sales figure derived from "parts", was a "retail shop" within the meaning of the Commercial Tenancy (Retail Shops) Agreements Act 1985.
2 If so, the Tribunal had jurisdiction in a dispute between the lessor (Top Notch) and the lessee (Formstar).
3 The facts in the matter were not in dispute. There was nothing on the face of the workshop (or its current lease) to suggest that it had any relevant retail element. It was engaged in a service business. Goods were consumed in the service offered. Yet, the Supreme Court had, in another case, determined that a Western Australian hotel could be a "retail shop" in certain circumstances.
4 The Tribunal reviewed the law in this area and concluded that the task of the Tribunal was to discover the "true" nature (or characterisation) of the business in question. Regard had to be had to, amongst other things, the most conspicuous or effective portion of the use to which the premises were put.
5 Here, the Tribunal concluded that it was a business wholly or predominantly comprising the supply of services by retail, and not goods.
6 The application was thus dismissed.
Background to the proceeding
7 In this proceeding the applicant, Formstar Holdings Pty Ltd (Formstar), is the lessee and the respondent, Top Notch Roofing Pty Ltd (Top Notch), is the lessor of premises described as Unit 3, Lot 33 Galbraith Loop, Erskine (Mandurah). At those premises, Formstar operates an automotive repair and maintenance business.
8 On 22 December 2006, Formstar, by their solicitors, sought the following relief in this Tribunal against Top Notch under the Commercial Tenancy (Retail Shops) Agreements Act1985 (WA), (CT Act):
"1. Pending determination of the issues in paragraphs 2 and 3 below, the Owners, Top Notch Roofing Pty Ltd, and their agents Kevin Green & Associates be prevented from
- proceeding with action pursuant to a notice of default dated 12 December 2006.
- 2. A declaration that the lease between the parties is a retail shop lease.
3. A declaration that the Owner and their agents are not entitled to enforce payment of the amount of $7,162.44 claimed pursuant to the notice of default referred to in paragraphs [sic] 1 above."
9 The Tribunal may grant declaratory relief under s 91 of the State Administrative Tribunal Act 2004 (WA) "concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding", but such power is exercisable "only by a judicial member of the Tribunal". In contrast, the CT Act, in s 27(5), refers to an "order, direction or determination of the Tribunal". The Tribunal is not currently constituted by a "judicial member", but that matter may be put aside for the moment until the initial question of jurisdiction (see further below) is resolved.
10 The grounds upon which the orders were sought were as follows:
"1. There was no disclosure statements provided [under s 6 of the CT Act].
2. The notice does not allow the tenant to identify which outstanding amounts are rental and which are outgoings.
3. Outgoings appear to have been charged contrary to s 12 of the Act [dealing with contributions to the lessor's expenses].
4. Outgoings have been charged without an estimate of the outgoings as required by s 12 of the Act."
11 The applicant seeks to invoke s 16(1) of the CT Act which, in its current form (which is materially the same as at the date of the filing of the application) provides, so far as is relevant, as follows:
"16. Reference of questions to State Administrative Tribunal
(1) … [A] party to a retail shop lease may refer to the Tribunal any question between the parties which
- he believes to be a question arising under the lease and the Tribunal shall -
(a) determine whether or not the question referred to the Tribunal is a question arising under the lease; and
(b) if it is such a question, hear the question with a view to achieving a solution acceptable to the parties to the lease."
12 An interim application for a "stay" of any action by the lessor was sought by Formstar on 27 December 2006: see s 26(1)(b) of the CT Act, which authorises the Tribunal to make an order "for a party to proceedings before it to do, or refrain from doing, anything specified in the order". Cf: s 15F(6) of the CT Act, now in force, which expressly empowers the Tribunal to make an "interim order … pending final determination of an unconscionable conduct application, if the Tribunal considers it appropriate to do so".
13 On that day (27 December 2007), the agents of the lessor agreed, voluntarily, not to take any further action adverse to the lessee before 28 February 2007. This "undertaking", as it was characterised by the applicant, was accepted by the applicant on 27 December 2007.
14 Originally, the Tribunal had proposed to hear the application on 29 December 2006. The matter came on for directions in the Tribunal on 18 January 2007, where both parties were legally represented, and a preliminary issue was identified as going to the Tribunal's jurisdiction. (That issue is, in a sense, foreshadowed in par 2 of the relief sought by the applicant – see above.) The applicant was given liberty to apply to renew its application for interim relief should that be necessary, but no such application has been made.
15 That preliminary issue, to be determined upon the documents, is: does the Tribunal lack jurisdiction to deal with the application upon the basis that Formstar and Top Notch are not parties to a "retail shop lease" within the meaning of the CT Act?
16 Section 3 of the CT Act provides, so far as is relevant, the following definitions (emphasis added):
" 'retail shop' means –
- (a) any premises situated in a retail shopping centre that are used wholly or predominantly for the carrying on of a business; and
(b) any premises not situated in a retail shopping centre that are used wholly or predominantly for the carrying on of –
(i) a business involving the sale of goods by retail; or
(ii) a specified business,
but does not include premises used wholly or partly for the carrying on of a business involving the retail sale of petrol or diesel to be used to propel vehicles on public roads, other than premises used for that purpose by a tenant under a lease from a landlord who is not a party to a franchise agreement within the meaning of that expression in the Petroleum Retail Marketing Franchise Act 1980 of the Parliament of the Commonwealth;
- 'retail shop lease' means a lease that provides for the occupation of a retail shop other than where –
(a) the total retail floor area to which that lease applies (including, in the case of a building with 2 or more floor levels, the area of every floor level or part thereof to which that lease applies) exceeds 1 000 square metres; or
(b) the lease is held by a corporation (within the meaning of the Corporations Act2001 of the Commonwealth) that would not be eligible to be incorporated as a proprietary company, or that is held by a subsidiary of such a corporation;
'retail shopping centre' means a cluster of premises –
(a) 5 or more of which are used wholly or predominantly for the carrying on of –
(i) a business involving the sale of goods by retail; or
- (ii) a specified business;
and
- (b) all of which –
(i) have, or upon being leased would have, a common head lessor; or
(ii) comprise lots on a single strata plan under the Strata Titles Act 1985,
whether the premises are in a single storey building or a multi-level building;
- 'specified business' means a business of a kind prescribed by the regulations to be a specified business; … "
17 A "specified business" is defined or specified under reg3A of the Commercial Tenancy (Retail Shops) Agreements Regulations 1985 (WA) as any of the following businesses:
"(a) drycleaning;
(b) hairdressing;
(c) beauty therapy;
(d) shoe repair;
(e) sale or rental of video tapes."
18 In Sharp v O'Driscoll (Unreported, Supreme Court of Western Australia, Full Court, 34/96, Library No 97011A-C, 21 March 1997, [BC9700941]) Malcolm CJ said ([BC9700941] at 8):
"It is noteworthy that the businesses which have been specified by regulation for the purpose of the definitions of 'retail shop' and 'retail shopping centre' are drycleaning, hairdressing, beauty therapy, shoe repair and sale or rental of video tapes … This reinforces the view that a business wholly or predominantly comprising the supply of services by retail is not a 'retail shop' within the meaning of the Act."
19 The issue for determination arises because the applicant alleges, and the respondent denies, that it occupies the premises as a relevantly defined
(Page 8)
- retail shop, namely a shop which is "not situated in a retail shopping centre" but is so in relation to premises which are "used wholly or predominantly" for the carrying on of "a business involving the sale of goods by retail".
20 The essential issue is whether an automotive repair and maintenance service business that also "sells" spare parts and related items (some or most of which items are, it appears, consumables used in the course of its service business) is nevertheless a retail shop within the meaning of the CT Act.
21 The parties filed and exchanged various written submissions in the matter; the last communication between the Tribunal and the parties in relation to those submissions (seeking confirmation that the Tribunal had indeed received the last of these exchanges, and therefore had received all relevant documents) was on 1 June 2007.
The lease agreement
22 The contract to lease is a REIWA standard form headed (emphasis added): "Contract To Lease/Commercial/Industrial Premises By Offer And Acceptance (Other Than Retail Premises)". No formal lease document to give effect to the contract, as contemplated by cl 24 of the contract, appears to have yet come into existence. Nevertheless, it is not in doubt that such an agreement is a lease within the meaning of the wide definition of that term in the CT Act: see s 3 referring to a "lease" as meaning "any lease, licence, or agreement, whether in writing or not …".
23 The contract was between the agent of the respondent and the applicant as trustee for what appears to be an incorporated family trust. The leased area is shown as 535.45 square metres "including mezzanines". The term of the proposed lease is expressed to run from 1 December 2004 to 30 November 2009.
24 The description ("nature of") of the proposed business the subject of the lease is "Automotive Maintenance and Repairs" (cl 11). One of the special conditions mentioned in cl 29 is the need to obtain "Council approval" to operate the nominated business. This appears to be a reference to the need to obtain planning approval from the City of Mandurah in respect of the proposed use of the land. Presumably such approval was sought, but the form of that permission (that is, what particular land use approval was applied for) has not been produced by either party. This matter is raised by the respondent, and discussed further below.
(Page 9)
The evidence supplied by the parties
25 It is common ground or not disputed that:
1) The total area leased by the applicant is 535.45 square metres. (Accordingly, the total area under the lease does not exceed 1000 square metres.)
2) The applicant occupies the premises under lease from the respondent and carries on a business under the name "Mandurah Vehicle Fleet Services".
3) The applicant's business is not one of the businesses specified under s 3 of the CT Act.
4) The applicant's business is not conducted in a "retail shopping centre" within the meaning of the CT Act.
26 The applicant's case, put simply, is that some retail selling takes place from or in the applicant's premises. In fact it is said to be significant. Thus, the sale of goods by retail accounts for about 57% of the applicant's relevant income by reference to the descriptor "parts" income (as opposed to income from "labour"), which appears in certain statements of profit and loss for the past three years, and produced by the applicant from its records.
27 Hence, so the applicant alleges, the sale of such motor vehicle spares, parts and other consumables means that the applicant meets the relevant test for a retail shop lease, namely that it is by or through its lease engaged predominantly in the carrying on of a business involving the sale of goods by way of retail.
28 The respondent firstly draws attention to both the form of the agreement to lease and to the specific and agreed purposes of occupation, namely automotive repairs and maintenance. Thus, it is said, no disclosure statement was given to the applicant as it was not considered that the premises were a retail shop. Next, the respondent alleges that:
"The zoning of the premises is Industrial under the City of Mandurah Town Planning Scheme. The City of Mandurah does not allow retail shops in areas zoned Industrial unless the products sold are manufactured or produced on site."
29 The respondent has produced various photographs of the premises. These photographs appear to show (as is alleged) an "office area which
(Page 10)
- shows the office with no goods for display". The photographs also show a major sign listing the following services offered:
"Full Vehicle Service"; "Full Engine Tuneups"; "Carbon Cleaning"; "1/2 Year Petrol Bill"; "Air-Con Service"; "Wheel Alignments"; "Auto Electric Repairs"; "Vehicle [Logbook] Servicing".
"The [p]remises substantially comprise a workshop for repairs (6 bays) and maintenance of the vehicles and a small office. Nowhere in the office are there goods displayed for retail sales, nor are there goods displayed for retail sales in the workshop."
31 Mr Peter Dixon, the property manager, says:
"There are no off the street retail sales to my knowledge that occur on the [p]remises. What occurs is the maintenance and service of motor vehicles which includes the supply of parts which are delivered from offsite on a regular basis which is consistent with most motor vehicle repair shops."
32 Mr Dixon suggests that "[i]f this premises is a retail shop" then businesses such as panel beaters, spray painters, auto electricians and the like would all become "retail shops".
33 Finally, the respondent submits that a service business operated by way of the supply of labour and "parts from a third party as a part of the service and labor [sic]" is "clearly distinct" from a business that wholly or predominantly carries on the business "of the sale of food and merchandise and with waiting services by retail" that have been classified as a retail shop.
34 The applicant essentially does not dispute any of the underlying factual substratum of the respondent's case, only the characterisation of the premises by reference to such material.
The relevant law
35 In Lauven Pty Ltd & Anor v Venus Adult Shops Pty Ltd & Ors [2006] NSWADT 359, the NSW Tribunal recently said (at [16]):
(Page 11)
- "In [Wood v Bergman (2003) ANZ ConvR 624; (2003) NSW ConvR ¶56-061; [2003] NSWADT 82] at [16] and [17], Deputy President Chesterman cited with approval the observations of Judicial Member Malloy, in [Randi Wixs Pty Ltd v Pokana Pty Ltd [2002] NSWADT 205] about the meaning of 'predominantly' in s 3 of the [corresponding NSW Act]. His Honour said the following in this regard:
'In Randi Wixs Pty Ltd v Pokana Pty Ltd [2002] NSWADT 205 at [12], Mr Malloy, Judicial Member, made the following observations about the meaning of "predominantly" in s 3 of the Act:
" 'Predominantly' is defined in the Australian Oxford Dictionary (1999) as 'being the strongest or main element'. It is not helpful in my view to analyse that by way of some percentage, even if it was possible so to analyse. Obviously, it must be more than 50% but in order to predominate, it seems to me that the use must be 'the most conspicuous or effective' portion of the use to which the premises are put."
I find these observations helpful, noting that nothing said by Barrett J. in Moweno [see Moweno Pty Ltd v Stratis Promotions Pty Ltd [2004] ANZ ConvR 230; [2003] NSWCA 376 at first instance] detracts from their authority. In addition, the definition of "predominant" in the Macquarie Concise Dictionary was cited on behalf of the lessor. This includes the following phrases:
"1. To be the stronger or leading element; preponderant; prevail ...
4. To be more noticeable or imposing than something else." ' "
"The test is objective. It is not enough to bring the premises under the Act for the landlord to have promoted them as retail premises or as part of a shopping centre or to have served a
(Page 12)
- prospective tenant with a disclosure statement in compliance with a supposed obligation under the Act.
The status of the premises depends on the intention of the parties as expressed in the user covenant in the lease, or failing that any implied provision as to user. If, by agreement between the parties the use has changed, it will be the new use which determines their situation. Where the terms of the user covenant are clear the investigation of the de facto use of the premises is not of major significance.
The predominant use is the most conspicuous or effective portion of the use to which the premises are to be, or are in fact, put. The question is one of degree and no one factor is conclusive. Although the use must exceed 50% it is not a matter of mathematics. The predominant use of premises leased for use as 'a petrol station and shop for the sale of grocery items and automotive parts and accessories' in which most of the profit was in fact generated by sales of grocery, was held, largely because it presented itself as a service station, to predominantly be used as a service station and thus not retail premises [citing Wood v Bergman (2003) ANZ ConvR 624; (2003) NSW ConvR ¶56-061; [2003] NSWADT 82]. On the other hand an hotel, in which over half the area was occupied by the bedrooms but the bar and bottle trade earned over 90% of the turnover, was predominantly engaged in the retail sale of goods [citing Sharp v O'Driscoll (Unreported, Supreme Court of Western Australia, Full Court, 34/96, Library No 97011A-C, 21 March 1997, [BC9700941])]."
37 Of Sharp v O'Driscoll, this Tribunal has observed (in South Veterinary Group Pty Ltd and Sharpe & Anor [2006] WASAT 222 at [19]; further proceedings: [2007] WASAT 46):
"[The Court there] considered the question of what is meant by 'retail shop' and premises 'used wholly or predominantly for the carrying out of a business involving the sale of goods by retail'. The Court took into account submissions regarding the income derived from other activities than retail and the volume of retail sales, the nature of the business, and the floor space used for the generation of income in order to determine what is meant by the word 'predominantly'. The Court concluded 'somewhat reluctantly' that a hotel, tavern or restaurant with a floor space
(Page 13)
- of less than 1000 square meters [sic] does constitute a retail shop to which the [CT Act] applies … This case illustrates how complex it can be to determine whether a specific activity falls within the ambit of the Act. Where on face value a hotel or restaurant would not be regarded as a retail shop, the Court nevertheless found that it can constitute a retail shop."
38 The Tribunal then went on to find (at [20], emphasis added) that,
"… an arguable case has been madefor purposes of the interim application that the lease should be treated as a retail shopping lease under the [CT Act]. The preliminary figures provided by the applicant show that, according to his calculations, at least 70% of income is derived from the selling of goods rather than the selling of services. Although the respondents questioned the reliability of the figures and the accuracy in the way in which the percentages have been allocated between goods and services, I am satisfied that the applicant has done what he needs to do in light of the urgent circumstances that gave rise to the application. This provides to the Tribunal an arguable case …"
39 This Tribunal also applied Sharp v O' Driscoll in Blunt & Anor and Pal & Anor[2007] WASAT 194 where it was observed, at [34], that Malcolm CJ had stated ([BC9700941] at 21):
"In the end, the question is one of characterisation. [The] test is to determine the true nature of the business carried on at the premises."
40 A broadly similar approach to the cases discussed above has been taken with respect to an analogous phrase "wholly or mainly". Thus, in McClelland v Goulburn City Council (1976) 35 LGRA 1, Rath J said (at 8, emphasis added):
"The word 'wholly' in the dictionary I have referred to is given the meanings of 'completely, to the full extent' and also 'exclusively, solely, only'. The word 'mainly' has the meanings of 'for the most part; chiefly, principally'. Thus the expression 'wholly or mainly' could mean either 'solely or chiefly' thus relating to the use of the land; or 'wholly or in the most part', thus referring to the amount of the land that is used. In my view the expression 'wholly or mainly' is not used in the definition with either of these meanings exclusively, and the expression is
(Page 14)
- wide enough for the emphasis in some eases to be on the extent of the land used, and in others on the extent or intensity of the use. If this is so, the appellants' grazing activities do not fall within the denotation of 'parcel ... wholly or mainly used' merely because 9 acres are devoted to that use and only 1 acre to the residential use. As at [the relevant date] the residential use was the dominant use of the parcel, and it is immaterial that that use might not have extended to all the land, or even the greater part of it. This was the view adopted by Pike J in Mason v Young Municipal Council [(1935) 12 LGR (NSW) 111] where he held that the main user of the land was residential, though about two-thirds of it was leased to a vegetable grower … Taking into consideration the residential use alone, I consider it to be the main use; and this view is supported further if the activities consistent only with proposed subdivision, or probably related to proposed subdivision, are also weighed against the grazing activities, even if, contrary to my view those activities are a business or industry."
41 See alsoHope v Bathurst City Council [No 2] (1986) 61 LGRA 392 at 396.
42 In R v Radio Authority; Ex parte Bull [1997] 2 All ER 561 Lord Woolf MR said (at 570):
"'Wholly or mainly' is a phrase the meaning of which is not free from ambiguity. Clearly it requires a proportion which is more than half. But how much more? 51% or 99% and anything between are candidates … In view of [the restriction under the statute under consideration] the ambiguous words 'wholly or mainly' should be construed restrictively. … This corresponds with the Shorter Oxford English Dictionary meaning of 'mainly' as being 'For the most part; chiefly, principally'. Certainly a body [affected by the restriction] to fall within the provision must be at least midway between the two percentages I have identified ie more than 75%."
43 See also the comments of Aldous LJ in the same case (at 575):
"The words 'wholly or mainly' are words of degree. They are not coterminous in meaning. A person who is wholly to blame will bear a greater burden of fault than a person who is mainly to blame. They are, however, ordinary English words and the
(Page 15)
- question whether something is 'wholly or mainly' is of its nature one which is a jury type question."
Conclusions and findings
44 Here, as a question of objective fact the Tribunal is satisfied that the predominant (and "true") use of the subject premises is for the servicing of motor vehicles. It is a business wholly or predominantly comprising the supply of services by retail. That is the "most conspicuous or effective portion of the use to which the premises are put".
45 This is consistent with the lease agreement itself, the advertising of the business and the main use of the premises, having particular regard to its layout, design and patronage. Retail sales, to the extent that they can be so characterised at all, are at best an incident - more accurately, a consequence - of the service function offered by the applicant. The use of consumables in the service provided here is not analogous to liquor and similar retail sales.
46 The subject premises are not wholly or predominantly used for the carrying on of a business involving the sale of goods by retail. Thus, the Tribunal lacks jurisdiction to determine the application.
47 For these reasons the application must be dismissed as incompetent.
Orders
1. The application is dismissed upon the basis that the Tribunal lacks jurisdiction to entertain the application.
2. Preliminary question answered accordingly.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
4
7
3