Khayat Investments Pty Ltd v Winston Holdings Pty Ltd - [2011] WASCA 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KHAYAT INVESTMENTS PTY LTD -v- WINSTON HOLDINGS PTY LTD [2011] WASCA 106

CORAM: NEWNES JA

HEARD: 14 APRIL 2011

DELIVERED : 14 APRIL 2011

PUBLISHED : 21 APRIL 2011

FILE NO/S: CACV 142 of 2010

BETWEEN: KHAYAT INVESTMENTS PTY LTD
Appellant
AND
WINSTON HOLDINGS PTY LTD
AYOMAN PTY LTD
Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ALLANSON J
Citation  :KHAYAT INVESTMENTS PTY LTD -v- WINSTON HOLDINGS PTY LTD [No 2] [2010] WASC 374
File No  :GDA 19 of 2010

Catchwords:

Practice and procedure - Application for stay of proceedings in State Administrative Tribunal pending determination of appeal on jurisdictional issue - Relevant principles - Stay granted

Legislation:

State Administrative Tribunal Act 2004 (WA), s 106

Result:

Stay granted

Category: B

Representation:

Counsel:

Appellant: Mr T C Young
Respondents : Mr M W Fatharly

Solicitors:

Appellant: Birman & Ride
Respondents : Kott Gunning

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

Chief Executive Officer, Department of Child Protection v 'C' [2007] WASCA 172
Chief Executive Officer, Department of Child Protection v 'S' [2007] WASCA 230
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Khayat Investments Pty Ltd v Winston Holdings Pty Ltd & Ayoman Pty Ltd [2010] WASC 270
Khayat Investments Pty Ltd v Winston Holdings Pty Ltd [No 2] [2010] WASC 374

NEWNES JA: This is an application by the appellant for an order that proceedings between the appellant and the respondents in the State Administrative Tribunal (the tribunal) in case CC 1374 of 2009 be stayed pursuant to s 106 of the State Administrative Tribunal Act 2004 (WA) pending the determination of the appeal in this court. On 14 April 2011, I ordered that the proceedings be so stayed. I said I would provide reasons for my decision. These are the reasons.
The appellant and the respondents are parties to a retail shop lease governed by the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA).
In September 2009, the respondents applied for leave of the tribunal to refer to the tribunal the question of the rent payable under the lease on a rent review for the period from 7 April 2008. The tribunal did not immediately decide whether to grant leave, but proceeded to mediation. In October 2009 the tribunal made orders, by agreement of the parties, that a specified valuer 'shall resolve the rent payable'. Following those orders, the valuer made a determination of rent payable.
The parties did not, however, accept that the valuer had satisfactorily determined the rent and the respondents continued the proceedings in the tribunal. The appellant subsequently objected, contending that the tribunal had no jurisdiction in the matter following the determination of the valuer. The question for the tribunal was whether it had jurisdiction to determine the question of rent after the valuer had made a determination. On 14 September 2010, the tribunal held that it did have jurisdiction. The appellant sought leave to appeal to a judge of the General Division of this court against that decision, pursuant to s 105(1) of the State Administrative Tribunal Act. Pending the determination of the appeal, it applied for an order staying the proceedings in the tribunal. On 6 October 2010, that stay was granted by Corboy J: Khayat Investments Pty Ltd v Winston Holdings Pty Ltd & Ayoman Pty Ltd [2010] WASC 270. The application for leave to appeal and the appeal came on for hearing on 4 November 2010 before Allanson J. On 13 December 2010, his Honour granted leave to appeal but dismissed the appeal: Khayat Investments Pty Ltd v Winston Holdings Pty Ltd [No 2] [2010] WASC 374. The appellant now appeals against that decision.
The present state of the appeal is that it is ready for hearing and the parties have been advised that it is expected to be heard in July or August of this year. The hearing is likely to take less than half a day.
The proceedings in the tribunal are not so far advanced. I was informed from the bar table that a directions hearing has been fixed for 12 May 2011 at which it is expected directions will be given for, at least, the filing of the expert evidence of the appellant (the respondent in the tribunal) and for the experts to confer. The hearing of the matter is expected to take two days. It includes a cross‑claim by the appellant of unconscionable conduct which, it appears to be common ground, substantially overlaps with the valuation issue. There is no clear indication when the hearing would take place in the ordinary course of events. No doubt that would be dependant both on the completion of the outstanding interlocutory matters and the state of the tribunal's lists.
The appellant says that unless the proceedings in the tribunal are stayed the parties will be put to substantial cost and inconvenience in preparing for and possibly participating in a hearing in the tribunal of a matter which may subsequently be found to be outside the tribunal's jurisdiction.
The respondent says that the appeal is without merit and any stay will cause prejudice to the respondent by leading to further delay in a matter which has already been greatly delayed. The rent review at the heart of the proceedings in the tribunal was to take place as at 7 April 2008. The rent has not been reviewed to bring it to the market rate as at that date and the appellant continues to occupy the premises at the old rental rate. The respondent says that significant costs have already been incurred in the tribunal proceedings. It is in the interests of the parties to have the rent issue resolved promptly at the risk of some further unnecessary expense being incurred if the appeal succeeds, rather than wait until the appeal is determined, in which case, if the appeal is unsuccessful, the issue of the rent is unlikely to be resolved before at least early 2012.
The parties agreed that the principles to be applied in determining whether a stay should be granted under s 106 of the State Administrative Tribunal Act are those set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. That accords with the decisions of this court in Chief Executive Officer, Department of Child Protection v 'C' [2007] WASCA 172 and Chief Executive Officer, Department of Child Protection v 'S' [2007] WASCA 230, where those principles were applied to an application for a stay under s 106. It is unnecessary to repeat the principles. I would simply note that while they provide guidance in the exercise of the discretion they are not inflexible or necessarily exhaustive. And in that context I would respectfully adopt the observation of Pullin JA in Department of Child Protection v 'S' at [6] that while the question of whether an appeal will be rendered nugatory is particularly important where the judgment concerns money or property, it may be of little or no relevance in a case (such as this) where there is no money to be paid or property to be transferred. As Corboy J pointed out in his decision on the earlier stay application, at [28], the true effect of refusing a stay may not be captured where an administrative decision is involved if the inquiry is framed in terms of the destruction of the subject‑matter of the decision.
I do not propose to embark upon a detailed consideration of the merits of the appeal. That is not ordinarily an appropriate course to take on an application of this nature and I do not consider it necessary in this case. It is sufficient to say that I am satisfied for present purposes that the appellant has reasonable prospects of success.
It is true that in the absence of a stay the appeal will not be rendered nugatory in the sense that the appeal would cease to serve any practical purpose. Nor would the conduct of the appeal itself be adversely affected. But it is the case that if the tribunal proceedings precede the determination of the appeal and the appeal succeeds, the parties will have been put to substantial unnecessary cost, and no doubt inconvenience. It would also mean that the tribunal will have wasted significant resources that could have been used for the benefit of others waiting to be heard before it.
It is a further significant factor that the appeal is expected to be heard within three to four months. That is relevant in weighing up, on the one hand, the prejudice to the respondent in having the rental issue remain unresolved for an additional period of time and, on the other, the risk that significant costs and resources will be wasted if a stay is not granted. Different considerations might have come into play if the delay was likely to be very substantial. But in the circumstances, the fact that the appeal will be heard within the relatively near future adds weight to the case for a stay.
In my view, taking into account all of the relevant circumstances it is appropriate that the proceedings in the tribunal be stayed pending the determination of the appeal. I accordingly made an order for such a stay.