JASHAN TECHNOLOGY PTY LTD and PHOENIX PROPERTIES INTERNATIONAL PTY LTD - [2020] WASAT 43

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION:   JASHAN TECHNOLOGY PTY LTD and PHOENIX PROPERTIES INTERNATIONAL PTY LTD [2020] WASAT 43
MEMBER:   MS D QUINLAN, MEMBER
MS KY LOH, MEMBER

HEARD:   10 AND 11 FEBRUARY 2020
DELIVERED          :   1 MAY 2020
FILE NO/S:   CC 719 of 2019
BETWEEN:   JASHAN TECHNOLOGY PTY LTD
First Applicant
VINOD PARIHAR
Second Applicant
AND
PHOENIX PROPERTIES INTERNATIONAL PTY LTD
Respondent

Catchwords:

Retail shops - Whether unconscionable conduct - Whether misleading and deceptive conduct - Whether representations made by landlord - Whether alleged representations relied upon - Loss and damage - Referable operating expenses - Electricity consumption onpeak/offpeak

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3(1), s 12, s 12(1)(b), s 12(1e), s 12(1e)(a), s 12(1)(e)(b), s 12(3), s 15C, s 15F(1), s 16(1), s 16C, s 16D(1)
Competition and Consumer Act 2010 (Cth), Sch 2
Fair Trading Act 2010 (WA)
Trade Practices Act 1974 (Cth), s 4(2)(a), s 4(2)(b), s 4(2)(c), s 52

Result:

Final orders pending

Category: B

Representation:

Counsel:

First Applicant	:	C Williams & G Zagari
Second Applicant	:	C Williams & G Zagari
Respondent	:	H Jackson SC & L Hager

Solicitors:

First Applicant	:	Solomon Brothers
Second Applicant	:	Solomon Brothers
Respondent	:	Hager Grubb & Partners Lawyers

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

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2; (2000) 96 FCR 491
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640
Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 368 ALR 1
Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132
Barton v Croner Trading Pty Ltd (1984) 3 FCR 95
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Commonwealth Bank of Australia (No 2) [2016] WASCA 223
Fraser v NRMA Holdings Ltd (1995) 55 FCR
Head and Zimmermann Investments Pty Ltd [2010] WASAT 95
Henjo Investments v Collins Marrickville (No 1) (1988) 39 FCR 546
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357
Murphy and Fremantle Markets Pty Ltd [2009] WASAT 84
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal pursuant to an application made on 16 May 2019 under s 16(1) of the Commercial Tenancy (RetailShops) Agreements Act 1985 (WA) (the Retail Shops Act). The application was made by Jashan Technology Pty Ltd (the tenant or first applicant) and Mr Vinod Parihar (the second applicant) referring questions arising under two retail shop leases to which both applicants are parties with Phoenix Properties International Pty Ltd (the landlord or respondent).
On 25 September 2019 the application was amended to also allege that the landlord had engaged in unconscionable conduct and/or misleading or deceptive conduct contrary to s 16D(1) and s 15F(1) of the Retail Shops Act.
Mr Vinod Parihar is the sole director of the tenant. The tenant has one shareholder which is Jashan Group Pty Ltd as trustee for the Jashan Family Trust, whose sole director is Mrs Santosh Parihar, the wife of Mr Parihar. Mr and Mrs Parihar are also guarantors under the two retail shop leases.
The landlord is the owner of premises at No 150 St Georges Terrace, Perth, which comprise an office tower and three retail tenancies, including a café and bar. The first applicant became a tenant of the café premises (known as 'The Deck') and bar premises (known as 'The Grand') by deeds of assignment, variation and transfer having effect from 14 October 2015 (the two leases). The third retail tenancy is over a restaurant building that was previously occupied by a Japanese restaurant.
Following a re-survey of The Deck undertaken on 5 May 2019 (the 2019 survey) by the applicants as part of these proceedings, it became apparent that the lease area of The Deck had not been properly reflected in the tenant's share of operating expenses previously charged by the landlord. The landlord concedes that any overpayment by the tenant in relation to The Deck may require a portion to be repaid, subject to a number of other matters still to be resolved by the Tribunal (or between the parties).
The tenant also claims that certain classes of operating expenses for The Deck and The Grand should not have been charged by the landlord at all as they were not 'referable' to those two premises under s 12(1e) of the Retail Shops Act.
The tenant also contests the method by which electricity consumption has been charged under clause 2.8 of the two leases, which does not reflect the actual off-peak and on-peak times (and therefore rates) at which those premises consume electricity.
The applicants seek orders from the Tribunal to the following effect:
1)to set aside or terminate the lease in respect of The Deck or, alternatively, for orders restraining the enforcement of the obligation to pay the full amount of rent or for damages, compensation or restitution; and/or
2)orders for payment of monies in excess of what should have been charged (if at all, in some cases) in respect of the operating expenses; and/or
3)in respect of electricity consumption charges, counsel for the applicants in oral closing submitted that his clients continue to claim an amount as quantified in Schedule 5 to the applicants' Statement of Issues, Facts and Contentions (on at least a 'not-less-than' basis), although accepts that if the applicants' evidence on the quantum of restitution is not accepted, the applicants will fail on recouping historical overpayments (but still press for the Tribunal to make a finding on the construction of clause 2.8 of the two leases as submitted by the applicants).
In the course of the hearing, the issue was properly raised as to whether the original surveyed area of The Grand could be relied upon as accurate. The resolution of this issue will have an impact on whether:
1)the Tribunal can reach a final position as to whether (and to what extent) operating expenses have been charged in excess of The Deck's relevant proportion; and
2)whether further proceedings would need to be commenced by the applicants to include a claim for operating expenses charged in excess of The Grand's 'relevant proportion'.
In oral closing, counsel for the landlord submitted (with which counsel for the applicants did not disagree) that the Tribunal may make ancillary orders regarding undertaking a re-survey of The Grand and the former Japanese restaurant site, unless the parties are able to agree beforehand to the undertaking of a re-survey.

Background facts

Many of the relevant background facts are not in dispute between the parties. Where there is a relevant factual dispute, the Tribunal will consider the conflicting evidence presented by the parties and make factual findings.
On or around August 2011, the landlord entered into two lease agreements with St George's Tavern Pty Ltd as tenant and Adrian and Ilia Gastevski as guarantors in respect of The Deck (the Deck lease) and The Grand (the Grand lease).
In 2015, Mr Parihar searched for an established hospitality business for the tenant to purchase, and The Deck and The Grand fell within a group of businesses under his consideration.
On or about 30 April 2015 Mr Parihar submitted an expression of interest to business brokers, GMO Business Valuations (GMO), seeking further information about The Deck and The Grand. On or by that date GMO also provided Mr Parihar with information about various other hospitality businesses. GMO also provided Mr Parihar with a report on The Deck and The Grand (GMO Report), as well as a bundle of documents including a copy of the Deck lease and the Grand lease, and the 2014/2015 Budget Expenses.
Before putting in the offer to purchase The Deck and The Grand businesses, Mr Parihar personally visited and observed the leased area of The Deck.
The tenant entered into an agreement for the purchase of The Deck and The Grand businesses on 9 June 2015. The conditions of the agreement relevantly included a cooling off period for due diligence (within 28 days of provision of financial information), assignment of the existing leases, a 'subject to finance' condition for the required finance to be approved by 15 July 2015, and approval of the landlord to build/establish an alfresco area.
On 23 July 2015, the tenant applied to assign the Deck lease and the Grand lease, attaching its business plan to the applications. The business plan noted the area of The Deck as '170m²' and '(Alfresco 116m² + Café 54m²) Approx'. The application for assignment of the Deck lease stated the area of The Deck as being approximately 167m², which Mr Parihar stated in evidence was pre-filled.
On 5 August 2015, Mr Craig Dawson, a senior director of Knight Frank, the managing agent for No 150 St Georges Terrace, sent an email to Mr Renzo Deleo of GMO about Mr Dawson's meeting with Mr Parihar on 3 August 2015. Mr Dawson conveyed the landlord's interest in consenting to an assignment of the two leases, subject to additional guarantees being provided and upon receipt of the approvals Mr Parihar had advised had been given (namely finance approval for the purchase, the bank guarantee and the construction of the proposed alfresco area).
Further emails were exchanged initially only as between Mr Deleo and Mr Parihar, and as between Mr Deleo and Mr Dawson, until 14 August 2015 when Mr Dawson sent an email to both Mr Deleo and Mr Parihar outlining the landlord's various proposals for further bank guarantees. Upon Mr Parihar accepting one of the proposals by email dated 17 August 2015, Mr Dawson indicated the landlord's approval to the application for assignment of the leases on 19 August 2015 and requested payment equating to one month's gross rent plus GST for both premises.
On 2 September 2015, Mr Parihar requested a breakdown of that payment. Later that same day Mr Dawson provided the breakdown as between The Grand and The Deck (which included one month's outgoings recovery amount) (the Dawson email).
The parties then entered into deeds of assignment, variation and transfer of both leases, with Mr and Mrs Parihar assuming the guarantor obligations under the Deck lease and the Grand lease as well as additional guarantor obligations. The assignment and new guarantee arrangements came into effect on 14 October 2015.
There exists an internal inconsistency in the Deck lease as to the leased area of The Deck. Item 1 of Schedule 1 of the Deck lease describes the premises as 'being the area set out on the plan annexed in Sch 5 of this Lease and having an area of 54m² plus an alfresco area of 116m² (in total 170m²)'. The plan attached to Schedule 5 however described the lease area of the 'Bar Café' by reference to its gross lettable area comprising ground area of 39m² and timber deck of 115.77m², totalling 154.77m².
In Mr Parihar's statement dated 15 May 2019 filed with the original application to the Tribunal, he stated that outgoings had been apportioned based on a lettable area of 166m², that being more than the actual lettable area available of 154.77m². Mr Parihar stated that he only became aware of these issues of discrepancy 'during hearing of matter 1929/2018 before the Tribunal on 25th to 26th Feb 2019'.
Until that point, no one had identified any discrepancy in the area of The Deck as described in Item 1 and shown in Schedule 5 of the Deck lease.
The 2019 survey of The Deck lettable area indicated a ground area of 38.6m² and timber deck of 116.3m², with a total lettable area of 154.9m².
By email dated 8 March 2019, Mr Parihar brought the issue of discrepancy between the recorded areas of 170m² (under Item 1 of Schedule 1 of the Deck lease) and 154.77m² (under Schedule 5 of the Deck lease) to the attention of the senior property manager at Knight Frank, Mr Alexander Meneghello.
Mr Meneghello gave evidence that outgoings for The Deck had been calculated on the basis that its lettable area was 166.8m². Mr Meneghello stated that Knight Frank had relied on this figure provided by former managing agents CBRE, assuming that CBRE had conducted its own survey and that the survey was correct. Mr Meneghello located in the landlord's records a leasable area survey of the three retail premises dated 12 May 2011 (the 2011 survey). The 2011 survey showed the gross lettable area of The Deck as comprising an alfresco area of 116.3m² and a 'vacant' area of 50.5m² being a total of 166.8m².
The Tribunal notes that the applicants do not submit that the discrepancy between representations that the area of The Deck was 167m² as opposed to 170m² amounts to unconscionable, or misleading or deceptive, conduct. In Mr Parihar's witness statement, he stated that he had first been aware of the description of the area of The Deck area as 167m² when he received the pre-filled application for assignment of lease, but did not think there was any inconsistency as the other information in the GMO Report indicated the area of 170m² was approximate and he saw 'little difference between 167m² and 170m²'.
The parties accept as a matter of fact that the area of The Deck is 154.9m². The applicants accept in opening submissions that there is a very small differential between the area identified in the 2019 survey and Schedule 5 of the Deck lease of 154.77m²(which is the figure the applicants had relied upon as the true area of The Deck when commencing these proceedings and in their Statement of Issues, Facts and Contentions dated 10 October 2019). The Tribunal concurs that given the very small differential, for all intents and purposes, Schedule 5 of the Deck lease is relevant to the issues to be determined in these proceedings and the finding of fact as to the true area of The Deck.
Finally, the Tribunal notes that no evidence was brought to its attention that the tenant had made a request to the landlord for a reduction in rent payable under the Deck lease prior to commencing these proceedings in the Tribunal.

Issues for determination

The issues to be determined by the Tribunal in these proceedings are:
1)Whether the landlord has engaged in conduct which was unconscionable contrary to s 15C of the Retail Shops Act.
2)Whether the landlord has engaged in conduct which was, or was likely to be, misleading or deceptive, contrary to s 16C of the Retail Shops Act.
3)If the answer to issues 1 and/or 2 are in the affirmative, did the tenant suffer or is likely to suffer loss or damage under s 15F(1) and/or did the applicant(s) suffer or is (are) likely to suffer loss or damage under s 16D(1) of the Retail Shops Act.
4)In respect of the claims relating to operating expenses, the questions arising are:
a)Is the tenant liable to contribute towards certain classes of operating expenses that are not specifically referable to The Deck and/or The Grand under s 12(1e)(a) of the Retail Shops Act?
b)Has the landlord charged the tenant for operating expenses in excess of The Deck's relevant proportion under s 12(1e)(b) of the Retail Shops Act?
5)Has the landlord charged for electricity consumption in excess of that payable under clause 2.8 of the two leases?
It is common ground between the parties, and the Tribunal so finds, that the Deck lease and the Grand lease are both 'retail shop leases' as defined under the Retail Shops Act. The parties also agree, and the Tribunal so finds, that the questions identified above in Issues 4 and 5 arise for determination by the Tribunal under s 16(1) of the Retail Shops Act.

Issue 1: Unconscionable conduct

Legal principles

Section 15C(1) of the Retail Shops Act provides that a landlord shall not, in connection with the lease, engage in conduct that is, in all of the circumstances, unconscionable.
Section 15C(2) of the Retail Shops Act then sets out a nonexhaustive list of matters which the Tribunal may have regard to in determining whether a landlord has contravened s 15C(1). Such factors include the relative strengths of the bargaining positions of the landlord and tenant (s 15C(2)(a)), and whether, as a result of the landlord's conduct, the tenant was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the landlord (s 15C(2)(b)).
The concept of unconscionability is grounded in equity which has, as its fundamental tenet, intervention in circumstances where it is not consistent with equity or good conscience for a stronger party to enforce, or retain the benefit of, a dealing with a person under a special disability or disadvantage: Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at 461, 467 and 474.
However, it has been held that a statutory prohibition against unconscionable conduct is not confined to the equitable doctrine of unconscionability: see Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2; (2000) 96 FCR 491 (Berbatis) at [24] and Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132 (National Exchange Pty Ltd) at [30].
This broader concept of unconscionable conduct has been accepted by the Tribunal as applying to the Retail Shops Act: Murphy and Fremantle Markets Pty Ltd [2009] WASAT 84 at [78]-[85] as cited in Head and Zimmermann Investments Pty Ltd [2010] WASAT 95(Head and Zimmermann).
In Head and Zimmermann at [37], the Tribunal found that to establish unconscionable conduct under s 15C(1) of the Retail Shops Act requires:
… 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.
The term 'unconscionable' must be understood as bearing its ordinary meaning: Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 368 ALR 1 (Kobelt) at [14]. That being something done not in good conscience (Kobelt at [14], National Exchange Pty Ltd at [33]) and which is irreconcilable with what is right or reasonable (Berbatis at [13], Serventy v Commonwealth Bank of Australia(No 2) [2016] WASCA 223 at [23]).
Whether the taking advantage of any special disadvantage is required to establish statutory unconscionability is unclear, with the High Court recently divided on this issue in Kobelt. For reasons explored below, it is not necessary to resolve the differing approaches in Kobelt in this case.

Consideration

The applicants allege that the landlord has engaged in unconscionable conduct as follows:
1)The landlord made representations that the lease area of The Deck was 170m² through:
a)Item 1 of Schedule 1 of the Deck lease;
b)the Dawson email (from which the applicants derived the area of 166m² to be ascribed to The Deck); and
c)the landlord's silence in response to receipt of the tenant's Business Plan and the application for the assignment of the Deck lease;
2)The tenant and/or Mr Parihar believed the area of The Deck to be 170m²;
3)The applicants were induced and relied upon the representations to execute the assignments of the Deck lease and the Grand lease;
4)But for the representations the applicants would not have executed the assignments or would only have executed the assignments if the rent payable under the Deck lease was reduced (nor, as further expanded in Mr Parihar's witness statement, would Mr Parihar have the tenant proceed to purchase the businesses);
5)Having been made aware of the discrepancy in the reported areas of The Deck, the landlord insists that the tenant pays the full rent under the Deck lease.

The Tribunal notes that whilst the allegations of unconscionable conduct are made on behalf of both applicants, relief under s 15F(1) of the Retail Shops Act can only be sought by the tenant.
The landlord disputes that it made the representations (or that the representations had the effect as contended by the applicants). In any event, the landlord submitted it has not engaged in unconscionable conduct by being unaware of the true lease area of the Deck lease until very recently. Further, the landlord has acted promptly, reasonably and responded appropriately once advised of the true lease area.
The landlord further denies that the tenant has made a request for rent relief, and, in any event, to insist upon the terms of the Deck lease being honoured is not unconscionable.
Having considered the conduct of the landlord in its totality, the Tribunal is not satisfied that the landlord has engaged in conduct that is, in all the circumstances, unconscionable contrary to s 15C of the Retail Shops Act.
The Tribunal finds, until very recently, that there has been an honest, but mistaken belief, by the landlord that the lease area of The Deck was 166.8m². Further, until the applicants became aware of the discrepancy in late February 2019, the applicants were also labouring under the same mistaken belief.
Mr Parihar first brought this issue to the landlord's attention in the email to Mr Meneghello on 8 March 2019. Following receipt of the 2019 survey Mr Meneghello updated the landlord's records so that all calculations of outgoings were based on the area of The Deck being 154.9m² as indicated in the 2019 survey.
The Tribunal finds, prior to about February 2019 (during the course of Tribunal proceedings CC 1929/2018 between the parties), that both the landlord and the applicants had failed to realise there was an internal inconsistency in the Deck lease between Item 1 of Schedule 1 (170m²) and Schedule 5 (154.77m²). To add to the confusion, outgoings for The Deck until the 2019 survey (which established the lettable area was actually 154.9m²), had been calculated and charged on the basis that the lettable area was 166.8m². With both parties labouring under a mistaken belief (or possibly a number of mistaken beliefs), it is difficult (if not impossible) for the Tribunal to conclude it could be found that there have been any acts against good conscience and, specifically, that there has been a disparity in the relative strengths of each party's bargaining position or understanding of documents relating to the Deck lease.
Viewed in this context, the Tribunal finds in all of the circumstances that the representations said to have been made by the landlord simply cannot reach the requisite bar of moral disapprobation for unconscionable conduct to be established under s 15C of the Retail Shops Act.
Further, the Tribunal finds that no case can be established against the landlord for 'insisting' (or exercising its legal right to require) the tenant pay the full rent under the Deck lease where the tenant has not first made a request for a reduction in rent.
Even if a refusal to reduce rent can be said to be implied from the landlord's continued enforcement of its rights under the lease, the applicants' submission - that it is unconscionable to refuse to vary rent which was fixed on the assumption of a certain area of the premises - is based on an assumption on which there is simply no supporting basis or evidence. It is equally open to assume that the rent was expressed as an absolute sum not pegged to the lease area and, if so, there is no element of unconscionability to insist on payment of full rent. However, the Tribunal expressly makes no finding in this regard.

Issue 2: Misleading and deceptive conduct

Legal principles

Section 16C of the Retail Shops Act provides that a party to a lease must not, in connection with such lease, engage in conduct that is misleading or deceptive, or that is likely to mislead or deceive, another party to the lease.
The preponderance of the authorities dealing with the concept of 'misleading or deceptive conduct' arises in consumer protection legislation such as the Trade Practices Act 1974 (Cth) (TPA) and the Fair Trading Act 2010 (WA), now s 18 of the Australian Consumer Law, Sch 2 to the Competition and Consumer Act 2010 (Cth).
The High Court has found that conduct is misleading or deceptive, or likely to mislead or deceive, if it has a tendency to lead into error: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 (Puxu) at [191], [198]-[199], Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 at [15]. That is to say there must be a sufficient causal link between the conduct and error on the part of persons exposed to it: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [39].
In determining whether conduct is misleading or deceptive, it is necessary to examine the relevant course of conduct as a whole, and in light of the relevant surrounding facts and circumstances: Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [102]. It is not necessary that the conduct conveys express or implied representations although it will be involved in most cases: see Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [32], [103], [108] and [179] and Henjo Investments v Collins Marrickville(No 1) (1988) 39 FCR 546 at [555].
It has long been established that contravention of s 52 of the TPA does not require an intent to mislead or deceive and even though a corporation acts honestly and reasonably, it may nonetheless engage in conduct that is misleading or deceptive or is likely to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at [228] (per Stephen J, Jacobs J agreeing), [234] (per Murphy J); Puxu at 197; Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at [666]. Thus, s 52 of the TPA may be breached by non-disclosure even if a corporation through its directors and officers did not have knowledge of the undisclosed facts: Fraser v NRMA Holdings Ltd (1995) 55 FCR 452.
There have, however, been cases which have relied on the 'exclusionary construction' of the definitions of 'conduct' under the TPA to exclude unintentional non-disclosure[1].
[1] C Lockhart, The Law of Misleading or Deceptive Conduct (5^th ed, 2019) at paras 5.2-5.3.
Under s 4(2)(a) and (b) of the TPA, 'conduct' was defined as 'doing or refusing to do any act'. The term 'refusing to do an act' was in turn defined under s 4(2)(c) to relevantly include 'refraining (otherwise than inadvertently) from doing that act', which has been construed as requiring a deliberate omission: Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 489; Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 per McLure P at [43]-[67].
In the Tribunal's view, given that the term 'conduct' within the meaning of s 16C of the Retail Shops Act is not defined, there is less scope for the 'exclusionary construction' of that term to apply in proceedings under the Retail Shops Act.

Consideration

The factual circumstances relied upon by the applicants to constitute misleading or deceptive conduct engaged in by the landlord are the same as that for their claim of unconscionable conduct set out above, however excluding the landlord's requirement that full rent be paid.
For the reasons set out below, the Tribunal is not persuaded that the conduct of the landlord, taken as a whole and in all of the circumstances, was misleading or deceptive or likely to mislead or deceive either applicant.
Firstly, as to the representation said to have been made by the landlord in Item 1 of Schedule 1, there was an internal inconsistency in the Deck lease as to the description of the lease area of The Deck already identified above at the time the lease was executed (with such inconsistency carrying over into the assigned lease). The Tribunal cannot find that Item 1 of Schedule 1 of the Deck lease, when the lease is read as a whole, amounts to a representation that The Deck had a lease area of 170m².
Even if the Tribunal is wrong in its characterisation of Item 1 of Schedule 1 of the Deck lease, it is clear that it does not constitute a representation by the landlord to either applicant, as the Deck lease was provided to the applicants by GMO (which the documents reveal, and the applicants accept, was acting as agents for St George's Tavern Pty Ltd, not the landlord). The Tribunal finds that the authority relied upon by the applicants of Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 is not analogous and does not assist the applicants' case.
Secondly, the Tribunal finds that there is nothing in the Dawson email which purports to indicate the area of The Deck so as to be capable of leading either applicant into error as to the lease area of The Deck.
Mr Parihar states that he effectively derived the area of The Deck by comparing his outgoings rate per m² (adopting an area for The Deck of 166m²) against the 2014/2015 Expenses Budget outgoings rate per m². Mr Parihar found the latter rate of $123.65/ m² to be an approximation of his calculated rate of $123.54/ m². However, the derivation of the area of 166m² required knowledge of the budgeted outgoings rate per m², which input had not been provided in that email (nor in any other correspondence with Knight Frank or the landlord).
As found above, the Tribunal finds that the parties were labouring under a common, but mistaken, belief as to the lease (and lettable) area of The Deck for the purpose of charging outgoings. The Tribunal finds that the common mistaken belief was that the lease (and lettable) area was 166.8m² as per the outgoings charged up until the 2019 survey rather than the 170m² as per Item 1 of Schedule 1 or 154.77m² as per Schedule 5 of the Deck lease.
In any event, when applying Mr Parihar's calculation methodology to the outgoings historic lettable area of 166.8m², it reveals an outgoings rate of $122.95/ m², not $123.65/ m². The Dawson email makes no representation as to the lease area of The Deck.
Thirdly, the Tribunal finds that the landlord's silence does not constitute conduct engaged in by the landlord that is, or is likely to be, misleading or deceptive. Both parties were labouring under the same common mistake about the correct area of The Deck. Prior to 2019, the applicants were in an equal position of bargaining power and competence to identify the discrepancy as to the correct lease area of The Deck as the landlord.
Further, the Tribunal finds that the mistaken statements on which the landlord was said to have remained silent appear in documents prepared for the purpose of supporting an application for the assignment of an existing lease, where it would be reasonable not to expect a head landlord to heavily scrutinise details that have already been long settled in the existing lease (such as lease areas).

Issue 3: Causal loss or damage

Having found that the landlord has not engaged in unconscionable conduct, or misleading or deceptive conduct, it is not necessary to determine the issue of loss or damage suffered by the applicants. However, in light of the landlord's submissions contesting loss or damage, the Tribunal makes the following observations about causal loss or damage.
Under s 15F(1) and s 16D(1) of the Retail Shops Act, a tenant (relevantly in the case of s 15F(1)) or a party under a retail shop lease (in the case of s 16D(1)) who suffers, or is likely to suffer, loss or damage because of unconscionable conduct by the landlord (relevantly in the case of s 15F(1)) or misleading or deceptive conduct by another party (in the case of s 16D(1)) may apply for an order that the other party pay compensation in respect of the loss or damage, or for other appropriate relief.
The applicants submitted that they relied upon the representations in executing the assignments of the leases and that but for those representations would not have executed those assignments (or would only have executed the assignments if the rent payable under the Deck lease was reduced).
Mr Parihar gave evidence that he prepared some ratio calculations of rent payable to sales/turnover (income) for The Grand and The Deck businesses as well as for three other established hospitality businesses for which the tenant had considered purchasing and in respect of which GMO had provided information. Mr Parihar had also procured some benchmark ratios between rent and total income for public hotels, and also prepared a spreadsheet on 13 May 2015 of The Grand and The Deck businesses, showing the ratio between the rent and outgoings item, and total income.
Mr Parihar concluded that the rent to income ratios for The Grand and The Deck businesses were high, indicating that the rent payable under the leases were quite high, and that there was material risk involved in buying those businesses.
Mr Parihar attested that he also carried out cashflow projection calculations when deciding whether the tenant should purchase The Grand and The Deck businesses, the conclusions of which are included in the business plan dated 23 July 2015.
Mr Parihar stated that after receiving the Dawson email on 2 September 2015, he then carried out calculations and comparisons on a calculator (which he did not write down at the time) in relation to the rent per m² of each of The Grand and The Deck businesses, as well as the other three businesses. He concluded that the high rate of rent per m² in relation to The Grand and The Deck businesses indicated that, again, there was a material level of risk involved in buying these businesses. Mr Parihar stated had he known the true area of The Deck and the true ratio of rent per m² (which would have been even higher), he would not have decided to have the tenant proceed with the purchase of the businesses.
On Mr Parihar's own evidence, no ratio analysis of the size of The Grand or The Deck comparative to its rent or income was prepared before 2 September 2015. As such, the Tribunal finds no reliance could have been placed on the alleged representations made before that date in executing the assignments of the two leases or proceeding with the sales agreement.
Further, by 2 September 2015, the Tribunal finds that the conditions of the sale agreement had been substantively satisfied such that there would have been no logical reason to carry out any further income analysis for the businesses about which the tenant had already been committed to buy.
When pressed during cross-examination, Mr Parihar could not specify what conditions of the sale agreement remained outstanding by the time he received the Dawson email. Mr Parihar gave evidence which contradicted the documentary evidence (for example, he thought that the subject to finance condition had not yet been satisfied). In closing submissions, counsel for the applicants conceded that all conditions under the sale agreement had 'run their course' save for the condition for the assignments of the lease, which counsel submitted was only satisfied upon execution of the assignments.
By Mr Parihar's own admission in his evidence, the applications for assignment of leases were approved 'in principle' by 17 August 2015, and the Tribunal finds that by that date the tenant would have considered itself bound by the sale agreement.
Therefore, the Tribunal does not accept that either of the applicants relied upon the Dawson email in executing the assignment of the Deck lease or proceeding with the sales agreement. This is contradicted by evidence which the applicants have themselves presented and is inherently implausible in the timeline of events. On this point, the Tribunal finds Mr Parihar lacks reliability and credibility in his evidence.

Issue 4(a): Were charges for operating expenses greater than their relevant proportions?

Section 12 of the Retail Shops Act sets out the manner and extent to which a landlord can charge a tenant for contributions toward operating expenses under a retail shop lease.
In particular, in respect of a retail shop which forms part of a group of premises, s 12(1e) caps such contribution to operating expenses that are 'referable' to the shop (but not 'specifically referable' to any particular premises), and then only to the 'relevant proportion'.
The terms of s 12(1e) provide that:
A tenant under a retail shop lease in respect of a retail shop in a group of premises -
(a)is not liable to contribute towards an operating expense of the landlord that is not specifically referable to any particular premises in the group of premises unless the shop is one of the premises to which the operating expenses is referable; and
(b)is not liable to contribute an amount in excess of an amount calculated by multiplying the total amount of that operating expense by the proportion that the lettable area of the shop bears to the total lettable area of all of the premises in the group of premises to which the operating expense is referable, without the approval of the Tribunal.
The concept of proportionate contribution formulated in s 12(1e)(b) conforms with the term 'relevant proportion' in s 12(1)(b), which is defined in s 12(3) to mean:
… in relation to a retail shop that is part of a group of premises, means the proportion that the lettable area of the retail shop bears to the total lettable area of the group of premises at the commencement of the accounting year[.]
The tenant accepts that all of the premises comprising the building at No 150 St Georges Terrace (including the office tower) is 'a group of premises' for the purposes of s 12 of the Retail Shops Act. No 150 St Georges Terrace falls within the s 3(1) definition of 'group of premises' as there are more than two premises (at least one of which is a retail shop) that are adjacent or form a cluster, and on Mr Meneghello's evidence, the landlord is the common head lessor who has allocated outgoings 'referable' to the whole property proportionately across premises according to their lettable area, including The Deck and The Grand.
The term 'operating expenses' is defined in s 12(3) (under part (a) of the definition) to mean, in relation to a landlord, expenses of the landlord in operating, repairing or maintaining 'a building of which a retail shop the subject of a retail shop lease to which the landlord is a party forms the whole or a part'.
The term 'referable' is defined under s 12(3) to mean, in relation to an operating expense for a retail shop, 'the retail shop enjoys or shares the benefit resulting from the operating expense'.
The phrase 'specifically referable' is not defined. The Macquarie Dictionary Online (as at 1 May 2020) defines 'specific' relevantly as:
1. having a special application, bearing or reference; specifying, explicit, or definite: specific mention … 3. peculiar or proper to something, as qualities, characteristics, effects, etc. 4. of a special or particular kind.
The Tribunal interprets that phrase 'specifically referable', in relation to operating expenses, to mean the premises enjoys the benefit resulting from the operating expense which is peculiar to that particular premises.
The terms 'enjoy', 'share' and 'benefit' are not defined in the Retail Shops Act, and should be interpreted according to their ordinary meaning and within the context of their use in the Retail Shops Act.
'Enjoy' is relevantly defined in the Macquarie Dictionary Online (as at 1 May 2020) as '2. to have and use with satisfaction; have the benefit of'.
'Share' is relevantly defined in the Macquarie Dictionary Online (as at 1 May 2020) as '4. to use, participate in, enjoy, etc., jointly … 5. (sometimes followed by in) to have a share or part; take part'.
'Benefit' is relevantly defined in the Macquarie Dictionary Online (as at 1 May 2020) as '2. anything that is for the good of a person or thing … 5. a beneficial outcome …'.

We agree and adopt the explanation of s 12(1e) of the Retail Shops Act as set out by counsel for the landlord at para 78 of his written closing submissions as follows:
… the subsection allows a landlord to recover from Tenant A an operating expense that is referable to one or more tenancies within a group that includes Premises A. That is, if Premises A is a member of a 'group of premises' that includes Premises B, Premises C and Premises D then s 12(1)(e) [sic] provides that the landlord may recover a proportionate expense from Tenant A if the expense is referable to either the group as a whole or more than one of the members of the group. It is only if the expense is referable only to one of the members that other members are not liable for a proportionate share.
On the issue of 'relevant proportion', the landlord concedes that there has been an error in the calculation of relevant proportion, as Knight Frank has historically based The Deck's allocation of operating expenses on a lettable area of 166.8m².
Acceptance of the true lettable area of The Deck will have an effect on both the numerator value (lettable area of The Deck) and denominator value (total lettable area of No 150 St Georges Terrace) in calculating the 'relevant proportion' for The Deck, and also the denominator value for calculating the 'relevant proportion' for all the other premises in the group, including The Grand.
The parties agree that, subject to a re-survey of The Grand, orders can be made to give effect to any repayment of any sum representing any amount overpaid after adjustments to the relevant proportion of operating expenses for The Deck and The Grand due to the decrease in the lettable area of The Deck (and any change to the lettable area of The Grand).

Issue 4(b): Were certain operating expenses referable to The Deck and/or The Grand?

The tenant contends that expenses charged as outgoings for electricity, fire protection, gardening, repairs and maintenance, security, telephone services and air conditioning are not 'referable' to The Deck or The Grand. The tenant does not dispute that these expenses are otherwise capable of falling within the definition of 'operating expenses'.

Electricity

Mr Meneghello attests that the electricity operating expense (which does not include the electricity consumption charges) consists solely of costs incurred by the landlord in having the building's submeters read, including the sub-meter for The Deck and The Grand. The tenant did not seriously challenge Mr Meneghello's evidence, nor the conclusion that this expense is referable to The Deck and The Grand.
The Tribunal finds that the tenant is liable to contribute towards the electricity expense, which is a referable operating expense to both The Deck and The Grand and is not contrary to s 12(1e) of the Retail Shops Act.

Fire protection

Mr Meneghello gave uncontested evidence that the fire protection operating expense consists of costs incurred by the landlord in having, amongst other things, the building's fire panel connected to a monitoring service and the costs of fire training. Under cross-examination Mr Meneghello stated that there is a fire system integrated throughout No 150 St Georges Terrace (which includes the three retail tenancies) comprising the sprinkler system, hydrants, fire extinguishers, hose reels, smoke detectors, thermal detectors, fire indicator panel, fire hydrant booster, alarms, speakers, and electrical warning system. Mr Meneghello stated that this expense also covers an annual connection fee to the Department of Fire and Emergency Services. Mr Meneghello stated that if there was a fire in the office tower, one would hear the alarm in The Grand and The Deck, and vice versa.
Mr Parihar gave evidence that the tenant does not have its own fire panel, however the tenant does have its own fire evacuation plans as well as fire and emergency training for staff.
Whilst the tenant disputes that The Deck and The Grand derive any benefit from having occupants of the building trained in appropriate fire response, it seems clear that the benefit of this operating expense specifically includes maintenance of an alarm system to which The Deck and The Grand clearly derive a benefit.
Therefore, the Tribunal finds that the tenant is liable to contribute towards the fire protection expense, which is a referable operating expense to both The Deck and The Grand and is not contrary to s 12(1e) of the Retail Shops Act.

Gardening

Mr Parihar gave evidence that The Deck and The Grand do not derive any benefit from maintenance of the Central Park garden, as the outlook from within The Grand and The Deck is at the 'Central Park' office building. Mr Parihar eventually conceded in part that from the back of The Deck, there is a triangle area which overlooks the Central Park garden. Mr Parihar did not agree that the Central Park garden area attracts patrons to walk through to The Deck as in his view, early morning traffic is for coffees which tends to be restricted to cafes within each office building.
Mr Meneghello was of the view that the three retail premises took the largest benefit of the Central Park garden as it was adjacent to them.
The Tribunal found Mr Parihar gave evasive and self-serving evidence on this topic, evidence which stretched the imagination and seriously undermined his credibility.
Whilst accepting that The Grand (and part of The Deck) do not have a clear aspect to the Central Park garden, the Tribunal considers that the Central Park garden not only forms part of the general amenity of the group of premises, but in particular for the retail shop premises which sit adjacent to the Central Park garden. Therefore we find that all the premises within No 150 St Georges Terrace enjoy or share the benefit of the Central Park garden.
Therefore, the Tribunal finds that the tenant is liable to contribute towards the maintenance of the Central Park garden, which is a referable operating expense to both The Deck and The Grand and is not contrary to s 12(1e) of the Retail Shops Act.

Repairs and maintenance

Mr Meneghello gave evidence that the repairs and maintenance operating expense included electrical and plumbing expenses to the common areas and 'base building' of No 150 St Georges Terrace.
The tenant submitted that it would only be a referable expense if the tenant had actual benefit of the service provided, not some indirect downstream benefit that may or may not happen as a consequence. For example, counsel for the applicants submitted that there was a highly indirect and speculative benefit to the tenant of The Deck and The Grand that by changing a lightbulb in the office tower it would create a potential pool of people from the office tower who might patronise The Deck and The Grand.
The Tribunal finds that the nature of these operating expenses is such that the tenant of The Deck and The Grand, just as any other tenant within No 150 St Georges Terrace, can avail themselves and therefore benefit from the landlord's obligation to repair or maintain common areas or 'base building' (including where they are proximate to The Grand and The Deck). That neither retail shop actually required any such repairs or maintenance in any particular financial year is beside the point. It suffices that a particular retail shop had a contingent benefit from that operating expense in the sense that the landlord was required in the course of a financial year to repair or maintain the common areas (or base building) such as to benefit the retail shop.
In the case of The Deck and The Grand, this is confirmed by the evidence of Mr Meneghello that the landlord had been obliged to repair a damaged tile outside these premises, which expense would have formed part of the pool of repairs and maintenance expense towards which the other premises in the group were obliged to contribute. Thus, in applying the logic in the example provided by the tenant's counsel of the expense of changing a lightbulb within the offices tower, the relevant benefit is not that which relates to having a serviceable office from which the pool of patrons can be drawn for the benefit of the retail businesses, but rather that it is a contingent benefit available to all premises for repairs and maintenance to be conducted proximate to their premises.
In addition, the Tribunal finds that a retail shop would enjoy or share the benefit of having the commons areas within the group of premises being well-maintained and structurally sound, whether as a matter of aesthetics, property value or as a matter of structural integrity.
Mr Meneghello identified an alternate methodology adopted for the financial year 2018/2019 for charging repairs and maintenance expenses to The Deck and The Grand, which is to identify those repairs and maintenance works which relate only to The Deck and The Grand. Arguably, this takes this operating expense outside the scope of s 12(1e) of the Retail Shops Act as it becomes a 'specifically referable' expense. In the Tribunal's view, it is open to the landlord to take either approach to the charge for repairs and maintenance operating expenses. We find that this change in approach for the financial year 2018/2019 does not impugn the appropriateness of the approach taken previously.
Therefore, the Tribunal finds that the tenant is liable to contribute towards the repairs and maintenance expense, which is a referable operating expense to both The Deck and The Grand and is not contrary to s 12(1e) of the Retail Shops Act.

Security

Mr Meneghello stated that the security operating expense includes the cost of patrolling the perimeter of No 150 St Georges Terrace twice a night, which areas include the external ground floor perimeter and areas occupied by the tenant's leased storage area and cool room. The tenant conceded in closing submission that Mr Meneghello's evidence would establish this as a referable expense.
The Tribunal finds that the tenant is liable to contribute towards the security expense, which is a referable operating expense to both The Deck and The Grand and is not contrary to s 12(1e) of the Retail Shops Act.

Telephone services

Mr Meneghello stated that the telephone services operating expense consists solely of costs associated with the installation and maintenance of active phone lines required for the elevators at No 150 St Georges Terrace, including the elevator located adjacent to The Grand and The Deck. The tenant has not seriously challenged Mr Meneghello's evidence, nor the conclusion that this expense is referable to The Deck and The Grand.
The Tribunal finds that the tenant is liable to contribute towards the telephone expense, which is a referable operating expense to both The Deck and The Grand and is not contrary to s 12(1e) of the Retail Shops Act.

Air conditioning

The landlord concedes that there was no air-conditioning cost for the 2018/2019 financial year (the only year in respect of which The Grand and The Deck were charged) and have agreed to credit that amount back to the tenant. In the circumstances the tenant did not press for a finding on whether the air conditioning operating expense was a referable expense.

Issue 5: Were the charges for electricity in accordance with clause 2.8 of the Deck lease and the Grand lease?

Clause 2.8 of the two leases provides that the tenant 'must pay the charges for all Services that are used on or supplied to the Premises, including water, gas, electricity and telecommunications'. 'Services' is defined in clause 19.1 of each lease to mean 'every service that is available for use in, or provided in respect of, the Premises. It includes air conditioning and every service that enables access to the Premises for people or goods'. Under clause 2.1 of each lease, the tenant 'must, at its cost, install separate meters in the Premises for the measurement of the Services'.
The primary issue of contention between the parties about the charges raised under clause 2.8 of the two leases for the use or supply of electricity to The Grand and The Deck is that the tenant submits such charges must be those actually used or supplied to The Grand and The Deck, which must take into account the different rates applicable to these premises' actual onpeak and off-peak usage. The landlord contends that it has charged the tenant for what is actually charged by the provider by applying the proportionate consumption for these premises as measured by their sub-meters against the landlord's actual electricity charge from Alinta.
The landlord called Mr Bevan Tyler as an expert witness. Mr Bevan Tyler is a National Australian Built Environment Rating System (NABERS) Accredited Assessor. The NABERS system is an initiative by the government of Australia to measure and compare the energy and water use (environmental performance) of Australian buildings and tenancies, with a key activity in assessing any buildings rating being the establishment of the correctly metered and apportioned use of energy and water as it relates to both the base building and tenant usage.
Mr Tyler gave evidence that the meter infrastructure currently installed and associated with The Grand and The Deck are only capable of recording whole of time energy use, and does not provide a method of determining accurate onpeak and off-peak energy consumption. On-peak times are defined within the Western Australian Energy market as 8.00 am to 10.00 pm on weekdays, including public holidays, and offpeak times are defined as all other times.
Mr Tyler explained that in order to accurately record the onpeak and offpeak energy consumption for The Grand and The Deck it would be necessary to install an interval capable meter, or otherwise apply data logging technologies to ascertain an accurate record for a sample in time.
The landlord submits that there is no evidence of the tenant's actual offpeak and on-peak consumption.
The tenant has relied on a methodology created by Mr Parihar that the tenant's off-peak/on-peak consumption is split 60%/40% respectively. Mr Parihar's calculations assume that The Deck and The Grand consume electricity 24 hours a day 7 days a week. In contrast, admittedly also on a hypothetical basis, Mr Tyler estimated, based on advertised operating hours, an off-peak/on-peak split of 24%/76% for The Grand (and a predominantly on-peak heavy split for The Deck given its operating hours are limited to week days). There does appear to be some fallacy in this otherwise speculative exercise in attributing the same weight of usage of electricity during operating hours as to nonoperating hours. However, in the end, it is not necessary for the Tribunal to resolve this controversy for the following reasons.
The difficulty with the tenant's interpretation of clause 2.8 of the two leases is that the only criteria upon which electricity usage/supply can be measured, for the purpose of clause 2.8, is via the sub-meters that are currently installed. As these sub-meters are not capable of determining accurate on-peak and off-peak consumption, there is simply no way to give true efficacy to the application of clause 2.8 other than the method by which the landlord is currently charging for electricity consumption.
The Tribunal notes that the landlord's method of charging electricity consumption to The Deck and The Grand allows for some discount for off-peak usage by No 150 St Georges Terrace as a whole. There is simply no present accurate way to account for the tenant's actual offpeak/onpeak consumption. In the absence of any other method, the Tribunal finds that it is appropriate for the landlord to continue to charge electricity consumption under clause 2.8 as it has done so in the past.
The Tribunal does not accept that Mr Parihar's method of estimating the tenant's on-peak and off-peak usage is objectively verifiable, given the clearly divergent view on the assumptions that Mr Tyler has himself adopted. Further, apart from the issue of Mr Parihar's lack of expertise to express the opinions he does, the Tribunal has its own misgivings about the veracity of Mr Parihar's methodology.
These findings by the Tribunal do not preclude a change in the method of charging electricity under clause 2.8 of the two leases if more accurate methods could be adopted, such as that suggested by Mr Tyler by the installation of interval capable meters. The choice, and cost, to install such meters is clearly a matter for the tenant under the terms of clause 2.1 of the two leases.
Therefore, the Tribunal finds that the landlord has not charged the tenant sums for electricity usage or supply in excess of those payable under clause 2.8 of the Deck lease and the Grand lease.

Conclusion

Accordingly, the Tribunal concludes and finds as follows:
1)The landlord has not engaged in the alleged unconscionable conduct, or misleading or deceptive conduct, in contravention of s 15C or s 16C of the Retail Shops Act respectively;
2)If the Tribunal is incorrect in relation to (1), in any event the applicants did not rely on the alleged conduct by the landlord in executing the assignment of the Deck lease or proceeding with the sales agreement and, further, has not suffered, and is unlikely to suffer, any loss or damage under s 15F(1) and s 16D(1) of the Retail Shops Act respectively;
3)The tenant has been charged, and has paid, operating expenses which do not reflect The Deck's relevant proportion, however, any final orders for repayment will need to be set-off against any adjustments to The Grand's relevant proportion of the operating expenses (upon re-survey);
4)The tenant is liable to contribute towards the landlord's operating expenses for electricity, fire protection, gardening, repairs and maintenance, security and telephone services, which were referable to The Deck and The Grand and not contrary to s 12(1e) of the Retail Shops Act; and
5)The landlord has not charged the tenant for electricity usage or supply in excess of those payable under clause 2.8 of the Deck lease and the Grand lease.

Orders

As agreed at the conclusion of the hearing, due to the need for either a re-survey of The Grand or an agreement reached between the parties, we will allow the parties to confer in relation to any final orders and order that:
1.On or before 15 May 2020, the parties are to provide either a minute of proposed final orders by consent or advise the Tribunal that a directions hearing (with attendance by telephone) is required.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
1 MAY 2020