LIU and SCENTRE SHOPPING CENTRE MANAGEMENT PTY LTD

[2023] WASAT 71

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   LIU and SCENTRE SHOPPING CENTRE MANAGEMENT PTY LTD [2023] WASAT 71

MEMBER:   MR K BALES, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   15 AUGUST 2023

FILE NO/S:   CC 827 of 2023

BETWEEN:   BIN LIU

Applicant

AND

SCENTRE SHOPPING CENTRE MANAGEMENT PTY LTD

Respondent

Catchwords:

Commercial tenancy - Retail shop lease - Surrender by tenant under s 13(7b) of the right to renew the term of the lease granted by s 13(1) - No power to approve the length of the term of a lease - Evidence required of independently fully informed understanding by tenant of rights - Evidence required of commercial benefit to tenant arising from the surrender of rights

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 13(1), s 13(7b), s 13(7b)(a)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

The Application

1. On 7 June 2023 the Applicant as tenant, or prospective tenant, of Boost Site 8, Garden City Shopping Centre (Premises) lodged an application in respect of a retail shop lease between the parties relating to the Premises under s 13(7b) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (the Act) for an Order that an option of renewal does not arise under 13(1) in the following terms:

   [T]here is development coming up within the shopping centre, therefore I am here to apply to wa[i]ve the 6 months vacant request.

2. On 14 June 2023 the Tribunal made the following Order:

   The Applicant is to file by 4 pm on 4 July 2023 a certificate from a practicing solicitor confirming; (a) That the solicitor practices in the area of commercial and retail property tenancies; (b) That the solicitor has reviewed the documentation relating to the application, including evidence of any proposed redevelopment of the premises; (c) That the solicitor has personally explained to the Applicant the legal rights of the Applicant under the Commercial Tenancy (Retail Shops) Agreements Act 1985; and (d) That the Applicant appeared to understand that explanation, and was willing to forego the statutory right to renew the term of the retail shop lease.

3. On 28 June 2023 the following Certificate was filed by interstate Solicitors for the Applicant:

   …

   Certificate

   RE: MATTER NUMBER: CC 827 /2023

   I, William Wang, Solicitor of JB Solicitors hereby confirm the following:

   1.I practice in the area of commercial and retail property tenancies;

   2.I review the documentation relating to the application, including evidence of any proposed redevelopment of the premises;

   3.That I have explained to the applicant by the name of Bin Liu (Eddie) the legal rights of the Applicant under the Commercial Tenancy (Retail Shops) Agreement Act 1985;

   4.That the Applicant appeared to understand the explanation of William Wang, and was willing to forego the statutory right to renew the term of the retail shop lease.

4. On 12 July 2023 the Tribunal made the following Order:

   The Applicant is to file by 4 pm on 1 August 2023 a copy of all evidence in the possession of the Applicant relating to the development within the Shopping Centre upon which the Applicant relies in support of the application.

5. On 8 August 2023 the Solicitors for the Applicant filed a link to a published announcement from the City of Melville dated 10 February 2023 welcoming the grant of a Development Approval for the expansion of the Shopping Centre, and a link to a published announcement from the State Government of Western Australia dated 10 February 2023, similarly welcoming the grant of the Development Approval.  Neither announcement gave any relevant detail of the approved expansion, whether physical or temporal.

The statutory provision

1. Section 13(7b) relevantly provides:

   (7b)The Tribunal may, on application in writing by a tenant or prospective tenant, order that an option of renewal does not arise under subsection (1), if it is satisfied that —

   (a)the application was made by the tenant or prospective tenant of his own free will; and

   (b)the circumstances of the case warrant the granting of the application.

The grounds

1. It is apparent from the application that the Applicant wishes to take a lease of the Premises for a term less than the period of five years referred to in s 13(1) of the Act. No evidence of the actual proposed term is included in the application. It is also apparent that the Applicant mistakenly believes that the Act imposes a mandatory minimum term of years in respect of a retail shop lease which applies unless the tenant obtains the approval of the Tribunal to the grant of a shorter term of years.

2. Further, the Applicant seeks to rely as a sole ground for the application, on broad-brush announcements by public authorities that the Shopping Centre owner has obtained a Development Approval for the proposed expansion of the Shopping Centre.  No evidence has been included in the application as to details attaching to the Development Approval, whether as to the physical nature of the proposed works, or to the proposed timing of the proposed works.

3. No evidence has been given as to any commercial benefit accruing to the Applicant as a result of the surrender of the statutory rights to renew the term of the lease under s 13(1) of the Act.

Conclusion

1. I am satisfied that the Act does not provide for the Tribunal to approve the length of the term of a lease, whether shorter or longer than the term referred to in s 13(1) of the Act.

2. I am not satisfied that the Applicant made the application with an independently fully informed understanding of the statutory provisions relating to leases of retail shops, and therefore I am satisfied that the application does not comply with the requirement under s 13(7b)(a) of the Act of being made of the Applicant's own free will.

3. I am not satisfied that the broad-brush announcements by public authorities relating to the grant of a Development Approval for the expansion of the Shopping Centre without evidence of any proposed physical details of the works to be undertaken, or of any proposed timing of the proposed works are relevant or sufficient evidence for the making of the Order requested.

4. I am not satisfied that the circumstances of the case warrant the granting of the application.

Orders

The Tribunal orders:

1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR K Bales, SESSIONAL MEMBER

15 AUGUST 2023