Formstar Holdings Pty Ltd and Top Notch Roofing Pty Ltd

Formstar Holdings Pty Ltd and Top Notch Roofing Pty Ltd were involved in a legal dispute regarding the classification of a commercial tenancy under the Commercial Tenancy (Retail Shops) Act 1985 (WA). The primary issue was whether the tenancy constituted a regulated commercial tenancy, specifically a "retail shop," and whether an automotive service workshop could be considered analogous to a retail shop. This was examined in light of the significant proportion of profit derived from the sale of parts consumed during the servicing process and whether the premises were used "wholly or predominantly" for this purpose. The case was heard in the Supreme Court of Western Australia.

The legal issues that the court had to address included determining the precise definition of a "retail shop" under the Act, whether an automotive service workshop could fall under this definition, and if the substantial revenue generated from the sale of parts consumed during servicing qualified the premises as a "retail shop." The court also needed to consider if the premises were used predominantly for the sale of these parts and whether this was analogous to an hotel, which could potentially be classified as a "retail shop." These questions were pivotal in deciding whether the tenancy was regulated under the Act.

The court concluded that the Tribunal lacked jurisdiction to entertain the application, leading to the dismissal of the case on that basis. The reasoning provided was that the premises in question did not predominantly function as a "retail shop" as defined by the Act. The court found that while the sale of parts consumed during servicing contributed significantly to the business's revenue, the primary function of the premises was the provision of automotive servicing, not the retail sale of goods. The court also held that the analogy to an hotel did not apply in this context, as the primary activity was not the sale of goods but the application of labour to parts in the course of servicing. Consequently, the preliminary question was answered accordingly.

The orders of the court were that the application was dismissed on the basis that the Tribunal lacked jurisdiction to entertain it. Additionally, the preliminary question was answered in line with the court's findings, clarifying the jurisdictional boundaries of the Tribunal in this matter.