Head and Zimmermann Investments Pty Ltd - [2010] WASAT 95

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)

CITATION: HEAD and ZIMMERMANN INVESTMENTS PTY LTD [2010] WASAT 95

MEMBER: MR T CAREY (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 1 JULY 2010

FILE NO/S: CC 1868 of 2009

BETWEEN: BRIAN HEAD
Applicant
AND
ZIMMERMANN INVESTMENTS PTY LTD
Respondent

Catchwords:

Retail shop lease Claim that landlord engaged in unconscionable conduct Principles governing unconscionable conduct claim under Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) Application of principles to conduct relied upon

Legislation:

Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA), Pt IIA, s 15C, s 15C(1), s 15F, s 15F(1), s 16
State Administrative Tribunal Act 2004 (WA), s 55

Result:

Application unsuccessful
Question of whether respondent's conduct constituted unconscionable conduct answered in the negative

Category: B

Representation:

Counsel:

Applicant: Mr J Eastoe
Respondent: Mr M Levitan

Solicitors:

Applicant: Jonathan Eastoe, Solicitor
Respondent: Melvin Levitan

Case(s) referred to in decision(s):

Attorney General of New South Wales v World Best Holdings Ltd & Ors [2005] NSWCA 261
Australian Competition and Consumer Commission v Simply NoKnead (Franchising) Pty Ltd (2000) 178 ALR 304
Automasters Australia Pty Ltd v Bruness Pty Ltd [2002] WASC 286
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Head and Zimmermann Investments Pty Ltd [2009] WASAT 61
Head and Zimmermann Investments Pty Ltd [2009] WASAT 61 (S)
Head and Zimmermann Investments Pty Ltd [2010] WASAT 75
JA McBeath Nominees Pty Ltd v Jenkins Corporation Pty Ltd [1992] 2 Qd R 121
Murphy and Fremantle Markets Pty Ltd [2009] WASAT 84
World Best Holdings Ltd v Sarker [2010] NSWCA 24

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant claimed that the respondent had engaged in unconscionable conduct within the meaning of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) in its dealings as the applicant's landlord and sought a number of orders consequent upon the Tribunal making such a finding. Various matters were relied upon, such as the levying of charges in order to recoup rent increases foregone when the Tribunal struck down a rent review clause, insisting on being informed of flammable materials present at the leased premises and giving notice of termination when the information was not provided, and accepting a hearsay version of an altercation with another tenant which formed the basis of another termination threat. The applicant also invited the Tribunal to have regard to the respondent's conduct giving rise to earlier proceedings in the Tribunal.
The Tribunal considered the scope of unconscionable conduct in the relevant sense, having regard to other decisions of the Tribunal, the Supreme Court of Western Australia and courts in other jurisdictions where similar legislative provisions operate. In recognising that the statutory variant is broader than the equitable concept of unconscionable conduct, the Tribunal noted a number of descriptions appearing in the reported cases which it found useful in assessing the respondent's conduct the subject of complaint.
Although critical of some of the respondent's conduct, the Tribunal concluded that, individually and cumulatively, it did not meet the requirements for unconscionable conduct under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). It therefore answered a question referred to the Tribunal as to whether the conduct was unconscionable conduct in the negative, and dismissed the remainder of the application.

Background facts

This application is the latest in a series of matters with which the Tribunal has been required to deal, arising from the leasing by the applicant (Mr Head) from the respondent (Zimmermann Investments) of a small (a little over 8 square metres) lockup shop in the Astor Arcade, Mt Lawley (premises). I refer to the Tribunal's previous decisions in Head and Zimmermann Investments Pty Ltd [2009] WASAT 61 (invalid rent review decision), Head and Zimmermann Investments Pty Ltd [2009] WASAT 61 (S) (supplementary costs decision) and Head and Zimmermann Investments Pty Ltd [2010] WASAT 75 (mediation costs decision). Mr Head conducts a shoe repair and multiservice business at the premises.
In the invalid rent review decision, which was delivered on 8 April 2009, the rent review term in the original lease between the parties was determined to be invalid. Also, in the same decision, the Tribunal upheld the validity of two successive deeds of extension of the original lease. The second deed of extension provides for the lease of the premises by Mr Head until 30 September 2011.
The mediation costs decision followed the making of consent orders on 21 September 2009 at a mediation of proceeding CC 855 of 2009 in the Tribunal, which included the following terms:
1)That Zimmermann Investments execute a deed of rectification whereby any reference to the invalid rent review provision was removed from the lease.
2)That Mr Head release Zimmermann Investments from any claim for overpayment of rent arising from an assumption that the rent review clause was valid, which had or may have arisen up to a particular date.
3)An acknowledgment that Mr Head is entitled to have an airconditioning unit remain where currently installed, and provisions for its removal on termination of the lease and, in default of removal, for property to pass to Zimmermann Investments.
4)That Zimmermann Investments carry out certain repairs to the roof of the building housing the premises.
Unfortunately, the successful mediation of the matters mentioned did not represent the end of disputation between the parties in relation to Mr Head's occupation of the premises.
On 30 September 2009, Mr Head was handed a letter from Mr Zimmermann of Zimmermann Investments. The letter referred to a disturbance on 29 September 2009 between Mr Head and a person described as 'one of the contracted workers for Cantina 663', although the same letter later referred to the other person being a 'tenant'. Cantina 663 is the name of the business conducted from another tenancy in Astor Arcade. According to the letter, the tenant was upset, the argument was started by Mr Head, and this was the second time the same tenant had been confronted by him in such a manner.
The letter went on:
Please take this as a warning.
Should this happen again your lease will be cancelled immediately.
Mr Head's response was in the form of a letter from his solicitor to Zimmermann Investments dated 2 October 2009. This letter accused Mr Zimmermann of taking into account only one version of events, which he did not witness, and of being incapable of making a rational unbiased judgment where Mr Head was concerned; claimed that no legal basis existed for the threat that should the conduct complained of occur again, the lease would be cancelled immediately; and asserted that any unlawful or improper steps to terminate the lease would result in court proceedings.
On 12 October 2009, Mr Head was handed a letter from Zimmermann Investments, requesting that he:
… supply a list of all flammable materials such as glues, thinners, etc, which is [sic] used in your business as this is need [sic] for insurance purposes.
The letter requested a reply within seven days.
On 20 October 2009, Mr Head responded in the following terms:
Having been in possession of these premises in Astor Arcade since October 2000 and, having never previously received any request from you or your father of the kind set out in your letter of 12 October (which, as you know relates to flammable materials), I am somewhat bemused.
Am I to assume that this enquiry of yours has been initiated by your insurance company, as your letter seems to suggest? If so, I expect that your insurer will also have asked you to obtain the same information from the other tenants in Astor Arcade. Can you confirm whether that is correct?
Zimmermann Investments' response, in a letter dated 22 October 2009, was as follows:
As requested by my letter dated the 12th October you have not answered my question. I will give you a further 7 days to supply the information requested as it is a condition of your lease.
By letter dated 23 October 2009, to Zimmermann Investments, Mr Head requested that it identify the 'condition' of his lease requiring the supply of the information requested, and repeated and expanded upon the request for insurance information in his letter of 20 October 2009.
On 28 October 2009, Mr Head was served with a notice of default. The notice asserted that Mr Head was in breach of the lease 'by failing to inform the lessor of all flammable materials brought and/or maintained by you as the lessee on the leased premises and have failed to obtain the consent of the lessor as required by clause 4.08'. Clause 4.08 prohibits the lessee from keeping on the premises items which are flammable, dangerous or hazardous, without the written consent of the lessor, and provides that the lessee pay the amount of any increased insurance premium (by reason of the keeping of such materials on the premises) and that the lessee is responsible for any damage or loss arising from any action of the lessee having the effect of invalidating or avoiding any insurance policy.
The notice gave Mr Head 14 days' notice 'to rectify your breach', failing which the lease would be terminated and damages claimed for the balance of the term. Mr Head was also required, under another clause of the lease, to pay the costs of the default notice quantified at $650.
By letter dated 2 November 2009, Mr Head's solicitor wrote to Zimmermann Investments seeking withdrawal of the default notice. The five page letter included a denial that the lease contained any term obliging Mr Head to inform Zimmermann Investments of the presence of any materials on the premises. The letter also described Zimmermann Investments' complaint regarding Mr Head's installation of an air conditioner in the premises as '(a clear) act of retribution', given that all other tenancies in the arcade were air conditioned and that no complaint had been made against any other tenant. Reference was made to the unconscionable conduct provisions of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CT(RS)A Act), in particular s 15C. The letter required unconditional withdrawal of the default notice, failing which an application to the Tribunal would be made for a declaration that the conduct was unconscionable, and other orders.
On 3 November 2009, Mr Head was served with a further letter, headed 'Notice to Produce', requiring him and his wife as guarantor to produce all policies of insurance which, by clauses 4.03, 4.04 and 4.05 of the lease, Mr Head was required to take out, and receipts relating to payment of premiums on those policies. By letter dated 4 November 2009, Mr Head's solicitor asked whether similar requests had been made to other tenants in the Astor Arcade.
By letter dated 4 November 2009, Zimmermann Investments' solicitor informed Mr Head's solicitor that, on further consideration, Zimmermann Investments had instructed him to advise that the notice of default was withdrawn. The letter responded to a number of the matters raised in Mr Head's solicitor's letter of 2 November 2009, including the following claims:
1)Mr Head or his solicitor was aware that Mr Head's air conditioner was installed without Zimmermann Investments' written consent as required by the lease;
2)Zimmermann Investments was entitled to inquire and be informed of the existence of any inflammable materials on the premises;
3)Zimmermann Investments' simple request for that information did not invoke the unconscionable conduct provisions of the CT(RS)A Act.
On 25 November 2009, Zimmermann Investments wrote again to Mr Head in relation to two new subjects.
Under the heading 'Advertising', the letter raised the matter of Mr Head's advertising sign on the exterior wall of the Astor Arcade building. It referred to clause 6.07 of the lease, which provides for an entitlement to fix signs to the exterior walls subject to the written consent of the lessor having been obtained. The letter advised that a search of records had not been able to find any written consent and requested Mr Head provide a copy if he has one. The letter also stated that some of the people advertising on the wall pay a fee and some do not, and that, on review of Mr Head's lease, it had been decided to charge a fee for the sign at the rate of $100 per month, plus GST, commencing 1 December 2009.
Under the heading 'Car Park', the letter noted Mr Head's entitlement to the use of one parking bay in the parking area of the centre. It advised that, after reviewing the lease, Zimmermann Investments had decided to levy a monthly fee of $100 per month, plus GST, for the parking bay, commencing 1 November 2009.
Also on 25 November 2009, Zimmermann Investments' solicitor wrote to Mr Head's solicitor on the issue of inflammable materials. The letter required full disclosure of inflammable materials in Mr Head's possession on the premises, based 'on the term of the Lease and/or the implied terms of a duty of cooperation, a duty to act in good faith and a duty to act reasonably'. The letter advised that a breach of the implied terms would be a breach of the lease.
On 27 November 2009, Mr Head's solicitor wrote to Zimmermann Investments in response to its letter relating to advertising and car parking. The solicitor's letter noted that of the 13 advertising signs on the external wall of the arcade (or more precisely on the cinema wall in the vicinity of the arcade), seven belonged to 'Astor tenants' and the other six belonged to 'nonAstor businesses'. The letter requested confirmation that those advertisers who pay a fee for their signs are the 'nonAstor businesses', who are not tenants of Zimmermann Investments. The letter also asked whether the other 'Astor tenants' had been, or were proposed to be, charged for their signs. In relation to the car park issue, the letter asserted that it should be readily apparent that Zimmermann Investments had no right to levy a fee in respect of the parking bay in view of Mr Head's contractual entitlement to the bay, and requested whether any attempt or proposal to levy a similar fee had been made in the case of other 'Astor tenants'.
The response of Zimmermann Investments was in the form of a letter dated 1 December 2009 in the following terms:
ADVERTISING
The information requested in your letter is not relevant to Mr Head's Lease. Your client has not responded to our request for a copy of our written consent for the Sign. If no copy is provided within the next 7 days, we will assume that he does not have our written consent to display his Sign.
CAR PARK
Kindly let us know the basis upon which you claim that we do not have the [sic] 'a right to levy a fee in respect of the parking bay' in the common parking area. Your advice to Mr Head in the past has been wrong and we require more than what you say to change our decision.
In a letter dated 2 December 2009 to Zimmermann Investments, Mr Head's solicitor referred to that company, through its director, Mr Zimmermann, as being 'intent on conducting a campaign of harassment of my client'. The alleged harassment included: the making of vexatious requests concerning the presence of flammable materials, a matter which had not previously been raised in Mr Head's nine years as tenant, in circumstances where Mr Zimmermann knew of Mr Head's business and the sort of products used in that business; and the levying of fees for Mr Head's advertising sign and car parking bay, which, by inference from Zimmermann Investments' refusal to answer the questions relating to the point, had not been levied on other Astor Arcade tenants, and which, in the case of the car parking bay, was contrary to Mr Head's contractual entitlement to the bay at no additional cost. The letter claimed that Zimmermann Investments' conduct constitutes unconscionable conduct contrary to s 15C(1) of the CR(RS)A Act, and that an application under s 15F for recovery of loss and damage suffered as a result of that conduct was to be made.
On 2 December 2009, Mr Head's solicitor filed the current application.
As the applicant's written submissions dated 27 April 2010 make clear, the course of conduct which I have outlined above forms a significant part of Mr Head's claims of unconscionable conduct on the part of Zimmermann Investments, to which the findings of the Tribunal in the invalid rent review decision and the supplementary costs decision should be added. In addition, as has been formalised by amendment to his application, Mr Head also relies upon conduct which was the subject of proceeding CC 855 of 2009, which was resolved, save for the question of costs, at mediation. I will make reference to those findings and that conduct later in these reasons.

Application

The application filed 2 December 2009 expressed, as the order sought, four orders:
1.Pursuant to Section 15F of the Commercial Tenancy (Retail Shops) Agreements Act 1985 ('the Retail Shops Act') that the Respondent pay to the Applicant a sum, to be assessed by the Tribunal, as and by way of loss and damage suffered by the Applicant by reason of unconscionable conduct of the Respondent.
2.Pursuant to Section 26(1)(b) of the Retail Shops Act that the Respondent refrain from removing or causing the removal of the Applicant's advertising sign affixed to the rear wall of the Astor Cinema building.
3.Pursuant to Section 26(1)(b) of the Retail Shops Act that the Respondent refrain from doing, or causing to be done, any act which would or may prevent the use and enjoyment by the Applicant of the carparking bay to which he is entitled under the terms of the Applicant's lease of Shop 1, Astor Arcade, Beaufort Street, Mt Lawley.
4.That the Respondent pay the Applicant's costs of this application on an indemnity basis.
By an amendment to the application, for which leave was given on 24 February 2010, the following alternative order was added:
That a question between the parties which the Applicant believes to be a question arising under the Lease between the Applicant (as Lessee) and the Respondent (as Lessor) dated 20 November 2000 as extended by Deeds of Extensions dated 22 June 2004 and 11 August 2006 namely:
'That the conduct engaged in by or on behalf of the Respondent:
(a)which was the subject of Matter CC 855 of 2009; and
(b)which is the subject of this Matter CC 1868 of 2009.
constitutes conduct which amounts to unconscionable conduct contrary to Section 15C of the Commercial Tenancy (Retail Shops) Agreements Act 1985' -
be referred to the Tribunal to be dealt with in accordance with Section 16 of the Commercial Tenancy (Retail Shops) Agreements Act 1985.

Issue for determination

The primary issue for the Tribunal, to which Mr Head attached his entitlement to the relief sought, is whether the conduct of Zimmermann Investments in the various aspects relied upon by Mr Head amounts to unconscionable conduct for the purposes of s 15C of the CT(RS)A Act.

Legal framework

Section 15C of the CT(RS)A Act, which is contained within Pt IIA, which came into effect on 11 May 2007, provides, relevantly:
(1)A landlord under a retail shop lease shall not, in connection with the lease, engage in conduct that is, in all the circumstances, unconscionable.
(2)Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a landlord has contravened subsection (1), the Tribunal may have regard to
(a)the relative strengths of the bargaining positions of the landlord and tenant;
(b)whether, as a result of conduct engaged in by the landlord, the tenant was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the landlord;
(c)whether the tenant was able to understand any documents relating to the lease;
(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the tenant (or a person acting on behalf of the tenant) by the landlord or a person acting on behalf of the landlord in relation to the lease;
(e)the amount for which, and the circumstances under which, the tenant could have acquired an identical or equivalent lease from a person other than the landlord;
(f)the extent to which the landlord's conduct towards the tenant was consistent with the landlord's conduct in similar transactions between the landlord and other similar tenants;
(g)the requirements of any applicable industry code;
(h)the requirements of any other industry code, if the tenant acted on the reasonable belief that the landlord would comply with that code;
(i)the extent to which the landlord unreasonably failed to disclose to the tenant
(i)any intended conduct of the landlord that might affect the interests of the tenant; and
(ii)any risks to the tenant arising from the landlord's intended conduct that are risks that the landlord should have foreseen would not be apparent to the tenant;
(j)the extent to which the landlord was willing to negotiate the terms and conditions of any lease with the tenant;
(k)the extent to which the landlord acted in good faith;
(l)the extent to which the landlord was not reasonably willing to negotiate the rent under the lease;
(m)the extent to which the landlord unreasonably used information about the turnover of the tenant's or a previous tenant’s business to negotiate the rent; and
(n)the extent to which the landlord required the tenant to incur unreasonable refurbishment or fit out costs.
…

A tenant who suffers loss or damage because of unconscionable conduct of a landlord in contravention of s 15C may recover that loss or damage by applying in writing to the Tribunal: s 15F(1) of the CT(RS)A Act.
The concept of unconscionable conduct, as that term is used in s 15C(1) of the CT(RS)A Act was the subject of consideration by Senior Member Raymond in Murphy and Fremantle Markets Pty Ltd [2009] WASAT 84 (Murphy). It is convenient to reproduce [77] [85] of Murphy's case here:
Unconscionability is a well established equitable doctrine which has been applied by the courts for centuries. Yet the concept of unconscionable conduct is difficult to define and it has been said that it is 'better described than defined': Antonovic Volker (1986) 7 NSWLR 151 at 165. As discussed in the High Court decision in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at 72 and following:
The term 'unconscionable' is used as a description of various grounds of equitable intervention to refuse enforcement of or to set aside transactions which offend equity and good conscience. The term is used across a broad range of the equity jurisdiction.
…
It offers a standard determined by judicial decision making rather than a rule, albeit it may for the present be subject to limitation in its actual field of operation by the existence of specific doctrines (quoting from the decision by French J (as he then was) at first instance) [para 44].
The question is whether Parliament intended that unconscionable conduct be confined to that which was recognised in equity, or whether it has a broader application.
The second reading speech to which reference has already been made (Hansard, 9 November 2007, p 7007) in respect of the Retail Shops and Fair Trading Legislation Amendment Bill 2005 which provided for the insertion of the unconscionability provisions in the Retail Shops Act reflects that the provisions are based on s 51AC of the TP Act. In Automasters Australia Pty Ltd v Bruness Pty Ltd [2002] WASC 286 (Automasters), Hasluck J had cause to consider the meaning of 'unconscionable' as referred to in s 51AC of the TP Act. His Honour stated at 87:
It is noted in Millers Annotated Trade Practices Act 2002 (23 ed) that the meaning of the term 'unconscionable' in the shorter Oxford Dictionary is 'showing no regard for conscience; irreconcilable with what is right or reasonable.' The Macquarie Dictionary defines the term as follows: '1. Unreasonable excessive 2. Not in accordance with what is just or reasonable: unconscionable behaviour. 3. Not guided by conscience; unscrupulous.'
The Federal Court relied on the Shorter Oxford Dictionary's definition of 'unconscionable' in Qantas Airways Ltd v Cameron (1996) 66 FCR 246 and ACCC v CG Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491.
It is apparent, then, that because s 51AC is a relatively new provision, there is scant authority on the exact interpretation to be given to the term 'unconscionable' in the context of the relevant provision. It seems, however, that the section imports the common law concepts of unconscionability albeit beyond the usual bounds of the concept of equity. That is, s 51AC is not limited to the prohibition of Amadio type unconscionability. The wording of the section is clearly intended to prohibit broadly unconscionable conduct in the range of transactions to which it applies.
This wider meaning of 'unconscionable' conduct as referred to in s 51AC of the TP Act was also accepted in Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd (2000) 178 ALR 304 (Simply No-Knead) and Barbcraft Pty Ltd v Geobel Pty Ltd [2003] VCAT 1700 (3 November 2003) (Barbcraft).
These judicial interpretations of similar provisions to s 15C and s 15F of the Retail Shops Act, prior to amendment of the Retail Shops Act by the insertion of the unconscionable conduct provisions, are a strong indication that the unconscionable conduct is to be given the broader meaning referred to in those decisions: see the discussion in Statutory Interpretation in Australia, Pearce and Geddes, LexisNexis, Australia, 6th Ed at [1.8] and [3.43].
In Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261 (11 August 2005) (World Best Holdings) the Court of Appeal traced the basis upon which the Administrative Decisions Tribunal of New South Wales was given an unconscionable conduct jurisdiction as a result of amendments to both the Administrative Decisions Tribunal Act 1997 (NSW) and the Retail Leases Act 1994 (NSW). The amendments to this legislation were affected in 1998 and the provisions of s 62B of the Retail Leases Act 1994 (NSW) are identical to those set out in s 15C(2) of the Retail Shops Act, save that the latter includes s (l), (m) and (n) which are not to be found in the New South Wales legislation. The court outlined that the unconscionable conduct scheme found its origin in the TP Act which was amended by the introduction of s 51AC and was the model for s 62B of the Retail Leases Act 1994 (NSW). Further, that a statutory jurisdiction was given of a character that it appears is not necessarily confined by traditional equitable doctrines [at para 22]. The court went on to state:
It is recognised that as the unconscionable conduct provisions established through this bill are based on the Trade Practices Act their application is, to a certain extent, dependent on issues in relation to coverage within the ambit of the Commonwealth [quoting from the second reading speech].
The Minister expressly recognised that the difficult, indeed novel, issues that would arise under the new regime, applying as it was to do as a national benchmark, should be determined or adjudicated upon by a person with experience and qualifications of a higher order than appropriate in other retail tenancy claims. Furthermore, a national benchmark should lead to the same decision being made irrespective of the Court or Tribunal in which proceedings are brought. The Parliament was well aware that cases involving retail tenancy disputes can almost always be brought in the Federal Court as readily as in the Tribunal.
…
The matters to be considered under a retail tenancy claim, turning on the contract and well-established doctrine, were intended by Parliament to continue to have considerable scope. The Parliament was careful to ensure that the amorphous and ambiguous term, 'unconscionability', did not come to completely override the legal rights and obligations created by the lease relationship. Parliament did not intend that 'unconscionability' claims could be made so readily as to virtually take the place of retail tenancy claims. They needed to meet a high standard of moral obloquy.
The points made about a national benchmark and consistency in decision making are important. As mentioned, s 62B of the Retail Leases Act 1994 (NSW) is almost identical to s 15C of the Retail Shops Act. Section 77 of the Retail Leases Act 2003 (VIC) is in identical terms to s 15C(2) of the Retail Shops Act. The explanatory memorandum to the Retail Shops and Fair Trading Legislation Amendment Bill 2005 specifically states that s 15C replicates s 77 of the Retail Leases Act 1994 (NSW) with certain limited exceptions and variations and that s 77 of the Retail Leases Act 2003 (VIC) is based on s 51AC of the TP Act. The restraint to be applied in the application of an unconscionable conduct jurisdiction, evident in World Best Holdings, is also reflected in the decision of Deputy President Macnamara of the Victorian Civil and Administrative Tribunal in Barbcraft.
The second reading speech reflects that the amendments would assist small businesses to take appropriate action when they had been acted against in an unconscionable or harsh manner. Further, that the provisions would help reduce the balance and the potential for more powerful businesses to take unfair advantage of small business. There is, however, no reference in the legislation to harsh conduct. Under s 15C(2)(d), there is provision for the Tribunal to have regard to undue influence or pressure or unfair tactics. That reference is insufficient to convey any intent that unconscionable conduct under the Retail Shops Act is to have any wider meaning than under either s 77 of the Retail Leases Act 2003 (VIC), s 62B of the Retail Leases Act 1994 (NSW), or s 51AC of the TP Act, all of which permit regard to be had to any undue influence or pressure or unfair tactics used in determining whether or not unconscionable conduct has occurred.
In my view, the determination of whether or not unconscionable conduct has occurred must be assessed having regard to the views expressed in World Best Holdings; unconscionability will be established where what has occurred attracts a high standard of moral obloquy. As stated in Barbcraft at para 87, it is a concept which cannot be simply and exhaustively defined but which will be easily recognised when it presents itself. The example referred to by the court in that case was the conduct in Simply No-Knead in which it was held that the Commission had established an overwhelming case of unreasonable, unfair, bullying and thuggish behaviour by the respondent with respect to its franchisee. Similarly, in Automasters, also a franchise case, Hasluck J found that the franchisor had acted capriciously and unreasonably in circumstances where there was not a sufficient basis to terminate the contract. Further, that there was an element of oppression in the franchisors conduct, referrable to a conscious determination to bring the franchise agreement to an end, notwithstanding an awareness that there was a degree of ambiguity surrounding the allegations of default to be relied upon [at para 396]. His Honour also specifically noted that for conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable must be demonstrated; that it is not necessarily unconscionable to terminate a relationship where trust and confidence has been undermined and that a number of the decided cases suggest that a party to a contract is entitled to insist upon strict enforcement of the relevant obligations and to drive a hard bargain [395].
Although counsel for Mr Head described the decision in Murphy as 'undoubtedly correct' on the facts, he submitted that the decision can be questioned for its reliance upon Attorney General of New South Wales v World Best Holdings Ltd & Ors [2005] NSWCA 261 (World Best Holdings). In particular, the reference in World Best Holdings to the need to establish 'a high level of moral obloquy', cited with approval in Murphy, was doubted, on a number of bases. First, the New South Wales legislation required determination of unconscionable conduct matters by a judicial member of the Administrative Decisions Tribunal of New South Wales with Supreme Court or equivalent experience. This, it was argued, together with the fact that the jurisdiction 'is vested in the SAT and available to laypersons without legal representation' was an indication that the remedy was (contrary to what was said in World Best Holdings) intended to be readily available. Second, the 'high moral obloquy' threshold stated in World Best Holdings was inconsistent with comments of Deane J in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 478. Third, the threshold was inconsistent with the dictionary meaning of 'unconscionable conduct', as applied in a number of decisions of the Supreme Court of Western Australia and the Federal Court. Mr Head urged the Tribunal to have regard, in particular, to decisions involving fact situations where an accumulation of incidents formed the basis for an unconscionable conduct claim, of which Australian Competition andConsumer Commission v Simply NoKnead (Franchising) Pty Ltd (2000) 178 ALR 304 (Simply NoKnead) and World Best Holdings itself, are examples.
While the cases dealing with the type of statutory variant of unconscionable conduct appearing in s 15C of the CT(RS)A Act make plain that the statutory provisions represent an expansion from the traditional understanding of unconscionability, they are relatively consistent in requiring a standard of behaviour which, in all the circumstances, is well outside what might be expected in relations between parties to an arm's length commercial relationship and therefore unacceptable.
In the end, I have not found it necessary to determine whether the threshold of 'high moral obloquy' appearing in World Best Holdings is set too high. This is for two reasons. Mr Head contends that, even if the threshold is that high, it is met by the conduct of Zimmermann Investments of which he complains. Second, by the time these reasons were prepared, the latest in the series of cases involving World Best Holdings Ltd (as landlord) and Abdul Sarker (as tenant) was delivered - World Best Holdings Ltd v Sarker [2010] NSWCA 24 (World Best Holdings Ltd 2010). In a written submission to the Tribunal, which commented upon World Best Holdings 2010, counsel for Mr Head referred to a number of findings of the Court of Appeal supporting its conclusion that the ultimate finding of unconscionable conduct against the landlord in that case should stand. On a fair reading of Mr Head's submission, the applicant contends that sufficient parallels exist between World Best Holdings 2010 and the present case to justify a similar outcome. The findings to which reference was made are:
In particular, the Court of Appeal:
(a)upheld the Tribunal's finding that the landlord:-
'... employed a wide range of tactics to put pressure on [the tenant] either to abandon the Premises or to accept a restriction on his activities ... to which, according to a key finding of the Tribunal, he had not agreed in the course of negotiations with [the landlord] and which could not fairly be imposed on him after he had entered into possession and commenced trading.' (paragraph 88).
(b)appears to have upheld the finding that the landlord's conduct:-
'went beyond a level of robustness that might be expected in commercial dealings' ([87]), that it had been hostile, had impeded the tenant's ability to operate his business, and went 'well beyond looking to its legitimate selfinterest' (paragraph 90)
(c)found that the:-
'landlord's overall conduct, objectively viewed, which the Tribunal found was not undertaken in good faith ([254]), was calculated to wear down the tenant and exhaust his resources' (paragraph 91)
(d)found that there was:-
'nothing in the reasons of the Panel to indicate that, in upholding the Tribunal's findings of unconscionable conduct, they applied, or must have applied, a less rigorous standard than that identified by the Chief Justice' (paragraph 92)
The explanations provided in World Best Holdings 2010 have the advantage of identifying, with respect to both the landlord's motivation and the consequences for the tenant of the conduct complained of, the respects in which it fell outside the boundary which the unconscionable conduct provisions are designed to protect. They thus provide a useful reference point in my consideration of which side of the boundary Zimmermann Investment's conduct sits.

Conduct of Zimmermann Investments said to constitute unconscionable conduct

The applicant's written submissions dated 27 April 2010 refer to Zimmermann Investments' conduct as giving rise to liability pursuant to s 15C of the CT(RS)A Act by reference to the following characterisations of some of that conduct:
1)asserting legal rights which do not exist;
2)acting without regard to the limits of one's legal rights, powers and remedies; and
3)discrimination.
Although the three different characterisations depend in the main upon different acts or omissions, this is not entirely the case. Hence, Zimmermann Investments' acts in relation to the flammable materials, parking fee and advertising sign issues are referred to under both 'asserting legal rights which do not exist' and 'discrimination'.
I will attempt to summarise the essential points of each of the characterisations of Zimmermann Investments' conduct as unconscionable conduct.

Asserting legal rights which do not exist

•Although the lease allows Zimmermann Investments to require proof that required insurances are in place, it does not confer a power to interrogate Mr Head concerning the presence of flammable materials on the premises.
•Zimmermann Investments did interrogate the tenant on that subject, and subsequently issued a default notice on the basis that Mr Head did not supply the information sought.
•It was not unreasonable for Mr Head to refuse to respond to a request directed to establishing an insignificant breach of the lease.
•Zimmermann Investments' attempt to impose a fee in respect of Mr Head's use of a car parking bay was contrary to his contractual right to such a bay.
•Regarding the advertising sign issue, the lease provides that a sign is not to be affixed without the lessor's consent, which cannot be unreasonably withheld.
•Even if such consent had not previously been obtained, Mr Head could simply have sought Zimmermann Investments' consent (after the sign was removed) to display the sign, which would have to have been given.
•It is not possible, given such a right, to require payment of a fee in order to obtain a lessor's consent.

Acting without regard to the limits of one's legal rights, power and remedies

•The assertion by Zimmermann Investments that the increased return from Mr Head was the reason for charging for his advertising sign and parking bay amounts to a claim to be entitled to ignore its contractual promises.
•The charges sought to be imposed have, as their object, circumvention of the Tribunal's decision to invalidate the rent review clause in the lease.
•The suggestion of Zimmermann Investments that its concern is simply to recover increases in outgoings does not stand up when one considers that the car parking and advertising fees represent a 31% increase in rent and outgoings.
•The notice of default based on Mr Head's alleged failure to comply with the request concerning flammable materials was withdrawn, only after Mr Head incurred significant legal expense.
•The notice would never have been issued had proper advice been sought and obtained in the first instance.
•The conduct concerning the car parking bay and advertising sign breached Mr Head's right to quiet enjoyment of his lease.
•Mr Head relies upon other elements outside the concept of the breach of the covenant of quiet enjoyment, such as Zimmermann Investments' refusal to concede that Mr Head was entitled to options of renewal and to have his air conditioner in place.

Discrimination

•Zimmermann Investments' position that Mr Head's installation of an airconditioning unit without its consent altered after it was pointed out that other tenants in the same position had not been the subject of complaint.
•Zimmermann Investments recognised Mr Head's right to retain the airconditioning unit as part of the mediated terms of settlement.
•Zimmermann Investments avoided the issue of whether any request concerning flammable materials was made to any other tenant.
•The same observation applies to the proposals to charge for the car parking bay and the advertising sign.
•Mr Zimmermann's attitude to Mr Head was 'unreasoning' and 'biased', evident by his acceptance of second-hand versions of events to which he was not privy adverse to Mr Head, on the basis of which he was prepared to denigrate Mr Head.

Drawing from what was said by Hasluck J in Automasters Australia Pty Ltd v Bruness Pty Ltd [2002] WASC 286 (Automasters), the applicant submitted that Zimmermann Investments' conduct can be analysed as acting capriciously and unreasonably in circumstances where there was no sufficient basis to terminate the lease. The conduct was oppressive and referable to a conscious determination to bring the lease to an end without any proper consideration as to whether there was any legal basis for termination. As such, it was submitted, it fits squarely within the principle concerning lack of good faith enunciated by his Honour in Automasters.

Mr Head also equated the conduct with the franchisor's conduct in Simply NoKnead, which was described by Sundberg J as:
[an] accumulation of incidents [which] discloses an overwhelming case of unreasonable, unfair bullying and thuggish behaviour …
albeit disavowing that 'thuggish' conduct was a prerequisite to a finding of unconscionable conduct.
According to Mr Head's submissions, Zimmermann Investments' conduct did exhibit a sufficiently high degree of moral obloquy as to pass the World Best Holdings test. This was so because a campaign of harassment with little or no regard to the limit or extent of one's legal powers and little or no regard to a tenant's rights 'must surely amount to conduct involving high moral obloquy'.

Does the conduct relied upon constitute unconscionable conduct?

I refer first to conduct of Zimmermann Investments concerning the invalid rent review decision, supplementary costs decision and mediation costs decision.
In Mr Head's written submissions dated 14 January 2010, various aspects of Zimmermann Investments' positions taken in relation to the proceedings, culminating in the decisions mentioned, were relied upon. In particular, paragraphs 6.5 and 6.6 refer to findings made by me in the supplementary costs decision, which formed the basis of the costs order against Zimmermann Investments.
Paragraph 6.7 of the same submissions explained that a letter from Zimmermann Investments dated 25 May 2009, in which it was asserted that Mr Head had not obtained the landlord's permission to install an air conditioner, that Mr Head was in breach of his lease, and threatening removal of the air conditioner if Mr Head did not remove it within seven days, was the genesis for proceeding CC 855 of 2009.
As I have already said, Mr Head relies upon Zimmermann Investments' conduct relating to the earlier proceedings, and amended his application in order to make this explicit (although, curiously, the amendment to include a question arising under the lease referred to only CC 855 of 2009 and the current proceeding. I have assumed for the purposes of these reasons that reliance on the other decisions to which I have referred continues). Further, the written submissions dated 27 April 2010 contended that this was appropriate in view of the wide terms of s 15C of the CT(RS)A Act itself, and in particular its requirement that the conduct in question be assessed having regard to 'all the circumstances'. It is somewhat surprising, therefore, that the same submissions barely made mention of the earlier proceedings in their assessment of the various characterisations of Zimmermann Investments' conduct as unconscionable conduct, as can be seen from my summary of those characterisations above.
In any event, although I accept that conduct, the subject of existing findings in the Tribunal, may be relevant in assessing an overall course of conduct (Simply No-Knead is an example of a case where a party's conduct giving rise to earlier proceedings contributed to the finding of liability for unconscionable conduct), caution must be exercised before doing so. Zimmermann Investments has already been penalised for its conduct giving rise to the invalid rent review decision, and the argument it sought to raise, in opposing the ultimate outcome in that case, that the executed extensions of lease were invalid or unenforceable, both by reason of the substantive decision and costs decision against it. The significance which should, in my view, be attached to that conduct is that, upon the decisions and findings adverse to Zimmermann Investments, and absent any challenge to them, it was incumbent upon Zimmermann Investments not to act in a way to attempt to undermine them by other means. It is in this context that the actions taken to seek to impose fees not previously charged subsequent to the invalid rent review decision and supplementary costs decision attain significance.
I do not consider that proceeding CC 855of 2009 and the mediation costs decision can assist Mr Head in his unconscionable conduct claim, for the simple reason that proceeding CC 855 of 2009 represented Mr Head's response to what appears to be a clear breach of a term of the lease requiring the installation of any air conditioner to be with the landlord's consent. The fact of the breach, in the absence of any estoppel argument, would automatically disentitle reliance upon the equitable doctrine of unconscionable conduct as Mr Head would not be coming with clean hands. Whether such a prohibition applies in the case of the statutory context with which s 15C of the CT(RS)A Act is concerned may be problematic. However, this is not a case where discrimination by a landlord in his treatment of tenants applies, in my view. A landlord is fully entitled, absent any particular reason where its entitlement is compromised (for example, where an estoppel arises), to determine whether or not to enforce breaches of any lease of any tenant.
I am unable to accept the contention that Zimmermann Investments' ultimate acknowledgement that Mr Head was entitled to retain the airconditioning unit as part of the mediated settlement amounted to a concession that its initial demands were without merit. On my reading of the terms of the mediated settlement (beyond which I am prohibited to go by s 55 of the State Administrative Act 2004 (WA)) it simply represented one of a number of adjustments of the rights of the parties which, at least in that respect, amounted to a variation of the original rights of the parties.
I turn then to the remaining matters relied upon in the nature of 'an accumulation of incidents'. Those matters comprise: Zimmermann Investments' demand that the flammable materials being used on the premises be identified, and, when those requests were not met, a notice of termination of lease was served; Zimmermann Investments' claims for fees for the advertising sign and car parking bay previously enjoyed without fee; and the incident which occurred on 29 September 2009 giving rise to Zimmermann Investments' threat that the lease would be cancelled in the event of any repeat.
In my view, the conduct of both parties in relation to the flammable materials issue does them little credit. I am prepared to accept Mr Head's claims that no such demand regarding the presence of flammable materials, as was made of him, was made to any other tenant (to the extent that it may be necessary, I do, as urged by Mr Head, draw a Jones v Dunkel inference adverse to Zimmermann Investments from the failure on its side to respond to requests on behalf of Mr Head concerning whether the insurer had requested the information, and whether any similar requests had been made to other tenants); and that Mr Zimmermann was aware of the nature of materials which fell within the strict terms of cl 4.8 of the lease. However, the response to the request of Mr Head was to raise the queries regarding the insurer and requests of other tenants, without attempting to answer it. Human nature being what it is, it is difficult to imagine any response more likely to reignite the animosity between the parties. The question asked did not pose any oppressive demand on the respondent; to that extent, I agree with Zimmermann Investments' description of it as a 'simple request'. Further, the question did have some relevance to the requirements of cl 4.08 in relation to flammable, dangerous or hazardous materials being kept on the premises. It was not a topic in relation to which the landlord had no rights under the lease.
I also accept that Zimmermann Investments' refusal to respond to the requests made (in response to its demand), and its subsequent action in issuing a default notice, was heavyhanded, and the notice was probably legally unmeritorious. After receiving the lengthy letter from Mr Head's solicitor, which addressed a number of other matters, but included a denial that the lease contained any term requiring Mr Head to inform of the presence of such materials, the default notice was withdrawn.
Bearing in mind the types of matters which were found in World Best Holdings 2010 to justify a finding of unconscionable conduct, viewed in isolation, the episode concerning the flammable materials issue did not, in my view, signify such malevolence on the part of Zimmermann Investments, nor were the consequences of such magnitude for Mr Head, that it falls foul of the test for unconscionable conduct. That the life of the issue followed the course it did was attributable to both parties, and it would be unfair, and to employ an overly expansive interpretation of the unconscionability provisions, to ascribe liability under s 15C to the landlord's role in the argument.
I will deal with the fees sought to be imposed for the advertising sign and car parking bay, which I consider to be the high watermark of the unconscionable conduct case, together.
As matters currently stand, there is no determination, by this Tribunal or in any other forum, vindicating Mr Head's claims that the purported fees are illegal. At a directions hearing in this proceeding on 11 February 2010, I invited counsel for Mr Head to consider whether his client might consider an amendment to the application so that matter could be determined pursuant to s 16 of the CT(RS)A Act. No such amendment was sought. The claims for the fees, in circumstances where it is alleged that no contractual right to them exists, simply remain as part of the unconscionable conduct claim.
It is necessary, however, that I am persuaded, on the balance of probabilities, that neither of the purported fees is capable of justification. Otherwise, it is difficult to perceive how a claim for unconscionable conduct could be strengthened.
I do find the claim for a fee for Mr Head's car parking bay to be contrary to the terms of the lease. Specifically, it is contrary to special condition 1.4 under item 13 of the second schedule to the original lease, which states:
The lessee shall be entitled to the use of one (1) parking bay in the parking area of the Centre and shall pay a deposit of $60.00 for his electronic controller to the entrance of the parking area.
According to Zimmermann Investments' written submissions, the right to raise a fee for car parking arose under the following provision in cl 7.04 of the lease:
The lessor may from time to time make and prescribe Rules (not being inconsistent with the express rights of the Lessor under the Lease) which shall be reasonable for or in relation to:
…
(f)The imposition of fees against Persons using the common parking areas PROVIDED THAT in calculating the Centre Outgoings any fees so collected shall be credited against the cost of maintaining and operating such common parking areas and the policing and regulating of traffic therein.
…
Although I was without the benefit of submissions in relation to the contradiction apparent between cl 7.04 and special condition 1.4, I can see no reason why the specific entitlement to a parking bay in favour of Mr Head should give way to the lessor's general power to impose fees for common parking areas. Further, it is part of the case of unconscionable conduct that no other 'Astor tenant' has been charged with the fee, an inference which, again, I am prepared to draw on a Jones v Dunkel basis in light of Zimmermann Investments' failure to respond to a specific question about that matter.
The position in relation to the advertising sign is a little less clear. Clause 6.07 of the lease provides that a sign is not to be affixed or exhibited without the lessor's consent, which consent is not to be unreasonably withheld. It would appear that no consent for his advertising sign was ever obtained by Mr Head. However, as Mr Head submits, the consequence of this is that Zimmermann Investments would be entitled to issue a notice of default requiring that the sign be removed. Mr Head would then be able to seek the landlord's consent pursuant to cl 6.07 for the sign, which Zimmermann Investments would not be able to unreasonably withhold. A Queensland authority was cited for the proposition that Zimmermann Investments is not entitled to request a payment in order to obtain his consent (JA McBeath Nominees Pty Ltd v Jenkins Corporation Pty Ltd [1992] 2 Qd R 121 at 123).
I am again, for the purposes of this application, prepared to find that the landlord has established no right to charge a fee for an advertising sign. I also note that reliance is placed upon apparently discriminatory treatment of Mr Head regarding a decision to purportedly levy such a fee, as was the case with the car parking fee.
I find myself in agreement with a number of observations made on Mr Head's behalf concerning these fees. In particular, it seems clear that an object of imposing the fees was to ameliorate the consequences of the invalid rent review decision. That is, Zimmermann Investments saw the imposition of the fees as a way in which to claw back the anticipated rent increases which would no longer occur by reason of the invalid rent review decision (paragraph 20 of the respondent's submissions dated 29 January 2010 concedes as much). Further, the car parking and advertising fees, representing a 31% increase in rent and outgoings for the premises, is clearly outside what would be contemplated as a likely rent review outcome. But more significantly, as I find for the purposes of this matter, the lease simply gave rise to no right to raise them.
The way in which I characterise Zimmermann Investments' conduct in purporting to levy the car parking fee and advertising sign fee, for the first time, only against Mr Head, is that it has indulged in unjustifiable behaviour. The question I must determine, though, is whether it is sufficient for unconscionable conduct. Again, I look to the matters found to be significant in World Best Holdings 2010.
The first point to be made concerns the consequences for the tenant of the conduct. They are either that Mr Head pays the fees levied, and suffer the impact upon profitability that would have, or take action to invalidate them. I have already mentioned the form that action might have taken. The tactic (if that is what it was) was not one which, directly at least, placed pressure on the tenant to abandon his premises. Rather, it was an impost based on a dubious justification.
The other aspects of the World Best Holdings 2010 findings which may have resonance on the facts of this case include lack of good faith and acting in a way calculated to wear down the tenant and exhaust his resources, in the context of an alleged accumulation of incidents, or (to adopt another phrase of the applicant's) a 'campaign of harassment'. However, as has and will be seen in my assessment of the other matters relied upon, they do not, either individually or cumulatively, amount to conduct falling under the unconscionability provisions.
I turn to the incident which occurred on 29 September 2009 between Mr Head and the Cantina 663 tenant. I do not consider that the attitude adopted by Mr Zimmermann in relation to that incident assists the unconscionable conduct claim.
The emphasis which I have been urged to place upon this matter is that Mr Zimmermann was prepared to accept the version provided by the other tenant as to Mr Head's culpability for the incident, and to threaten serious consequences in the event of a repeat of such assumed conduct.
The incident, occurring some eight days after the mediated outcome of proceeding CC 855 of 2009, no doubt signalled continuation of the underlying animosity between the parties. The parties filed statements disclosing their different perspectives. Mr Head explained the argument in question related to works being conducted at Cantina 663 in order to comply with liquor licensing requirements which involved the closure of the common toilets in the arcade. Mr Head had not had any notice of the closure of the toilets and he asked how long they would be out of action. The response was 'aggressive' and a short argument ensued, according to Mr Head.
Mr Zimmermann's hearsay version was that Mr Head was the aggressor, and that this followed on from a previous incident of alleged abuse by Mr Head when the two men had a discussion about the arcade's opening time. He said that Mr Head should have followed 'proper procedure' by informing him (Zimmermann) of the problem concerning the toilets, so that he could take the necessary steps to rectify the dispute.
I have little doubt that there is blame to be attached to both parties in relation to this unnecessary incident. For the purposes of the current matter, although noting that the landlord's response relied upon information provided by a tenant with whom Mr Head had previously locked horns, and was replete with a threat which was never likely to be followed through, I do not feel sufficiently persuaded that the views expressed in Zimmermann Investments' letter of 30 September 2009 regarding a dispute over the locking of a common toilet are a matter with which the unconscionability provisions should be concerned.
For the reasons given, I consider that the worst of the conduct of Zimmermann Investments does not reach the level of conduct required for unconscionable conduct. Even when considered as an accumulation of incidents, there is, in my view, an insufficiency of unjustifiable conduct on the part of the landlord, and also an inadequacy of serious consequences for the tenant, to bring it within s 15C of the CT(RS)A Act. No threat to terminate the lease has been followed through to any substantive extent; to the contrary, the landlord accepted the tenant's argument that any such threat could not be justified. Some of the incidents lack the quality of malevolence required. Further, Mr Head's responses have, on a number of occasions, been inappropriate and contributed to the deterioration of relations between the parties.
Zimmermann Investments has taken a dislike to its tenant, and acted in a way which has not always done it credit. To that extent, it has not always conducted itself in a manner consistent with the actions of a good landlord. It needs to exercise caution in the future, lest its robust responses towards Mr Head go too far. However, for the reasons I have given, I have concluded that its conduct has not been unconscionable for the purposes of the applicable legislation.

Conclusion

Each of the orders sought in the original application depends upon a finding of unconscionable conduct against the respondent. The failure to obtain such a finding means that the application must to that extent be dismissed. There will also be an order giving a negative answer to the question referred to the Tribunal under s 16 of the CT(RS)A Act. Although there is no indication by Zimmermann Investments that it may, in the event that the application is unsuccessful, apply for a costs order, I am, in the unusual circumstances of this litigation, prepared to indicate that any such application would be doomed to fail, among other reasons, because sufficient of the complaints raised against it in this application have been established to justify bringing it.

Orders

The Tribunal orders that:
1.The application is dismissed.
2.The answer to the question referred to the Tribunal in the following substantive terms -
[Did] the conduct engaged in by or on behalf of the Respondent:
(a)which was the subject of Matter CC 855 of 2009; and
(b)which is the subject of this Matter CC 1868 of 2009.
[constitute] conduct which amounts to unconscionable conduct contrary to Section 15C of the Commercial Tenancy (Retail Shops) Agreements Act 1985?
is 'No'.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER