HENG -v- LEVISON & ANOR [2006] WASCA 67

Reported Decision:	(2006) 32 WAR 195
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 67
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:119/2005	Heard:	15 FEBRUARY 2006
Coram:	STEYTLER P MCLURE JA BUSS JA	Delivered:	26/04/06
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
PDF Version

Parties:	LIM HING HENG CONEL ALLAN LEVISON CYNTHIA GAYE LEVISON
Catchwords:	Retail lease Contribution by tenant to landlord's expenses Construction of Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) s 12(1)(a)(i) Meaning of "determine" Whether sufficient for retail lease to specify that whole of reasonably incurred fees paid by landlord to managing agent are recoverable
Legislation:	Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 12(1) Commercial Tribunal Act 1984 (WA), s 20 Retail Shop Leases Act 1984 (Qld), s 12 Retail Leases Act 1994 (NSW), s 22
Case References:	Heng v Levison [2005] WADC 157 Re CRJ Pty Ltd [1996] 2 Qd R 147 Wanice Pty Ltd v Bocove Pty Ltd (RLD) [2003] NSWADTAP 24 Ong v Tang, unreported; DCt of WA; Library No D980331; 1 December 1998 Skiwing Pty Ltd v Trust Company of Australia Ltd [2005] NSWADTAP 10

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HENG -v- LEVISON & ANOR [2006] WASCA 67 CORAM : STEYTLER P

MCLURE JA

BUSS JA

HEARD : 15 FEBRUARY 2006 DELIVERED : 26 APRIL 2006 FILE NO/S : CACV 119 of 2005 BETWEEN : LIM HING HENG

Appellant

AND

CONEL ALLAN LEVISON

CYNTHIA GAYE LEVISON

Respondents

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GROVES DCJ

Citation : HENG -v- CONEL ALLAN LEVISON AND CYNTHIA GAYE LEVISON [2005] WADC 157

File No : APP 90 of 2004

(Page 2)

Catchwords:

Retail lease - Contribution by tenant to landlord's expenses - Construction of Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) s 12(1)(a)(i) - Meaning of "determine" - Whether sufficient for retail lease to specify that whole of reasonably incurred fees paid by landlord to managing agent are recoverable

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 12(1)

Commercial Tribunal Act 1984 (WA), s 20
Retail Shop Leases Act 1984 (Qld), s 12
Retail Leases Act 1994 (NSW), s 22

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant : Mr C L Zelestis QC & Mr M N Solomon

Respondents : Mr S G Scott

Solicitors:

Appellant : Gadens Lawyers

Respondents : Stables Scott

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

Heng v Levison [2005] WADC 157
Re CRJ Pty Ltd [1996] 2 Qd R 147
Wanice Pty Ltd v Bocove Pty Ltd (RLD) [2003] NSWADTAP 24

(Page 3)

Case(s) also cited:

Ong v Tang, unreported; DCt of WA; Library No D980331; 1 December 1998
Skiwing Pty Ltd v Trust Company of Australia Ltd [2005] NSWADTAP 10

(Page 4)

1 STEYTLER P: This appeal raises a question of construction concerning the application of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] WASCA 67
Decision Date: 26 APRIL 2006

CaseChat Overview and Summary

Heng was the landlord of a shopping centre in which Levison operated a retail shop. Levison's lease provided that he would contribute to the landlord's expenses in accordance with the Retail Shops Act. The lease also provided that all fees reasonably incurred by the landlord in connection with the property were recoverable by the landlord from Levison. The landlord sued Levison for unpaid expenses. Levison argued that he was not liable for certain expenses because they were not "reasonably incurred" and because the lease did not specify that fees paid to the landlord's managing agent were recoverable. The primary judge found for Levison. The landlord appealed to the Court of Appeal.
The court had to decide whether the lease sufficiently specified that fees paid by the landlord to the managing agent were recoverable by the landlord from Levison. The court also had to decide whether Levison was liable for expenses that he did not consider to be "reasonably incurred".

The court held that the lease did sufficiently specify that fees paid by the landlord to the managing agent were recoverable. The court found that the phrase "reasonably incurred fees" was broad enough to include fees paid to the landlord's managing agent. The court found that the lease did not require the landlord to demonstrate that the fees were "reasonably incurred" for the purpose of recovering those fees from Levison. The court also found that Levison was liable for expenses that he did not consider to be "reasonably incurred" because the lease did not require the landlord to demonstrate that the fees were "reasonably incurred" for the purpose of recovering those fees from Levison.

The appeal was allowed. The primary judge's decision was set aside and the matter was remitted to the primary judge to enter a judgment for the landlord in relation to the unpaid expenses.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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