MILLENNIUM SPORTS PTY LTD and VINCIULLO HOLDINGS PTY LTD
[2021] WASAT 109
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: COMMERCIAL TENANCIES (COVID-19 RESPONSE) ACT 2020 (WA)
CITATION: MILLENNIUM SPORTS PTY LTD and VINCIULLO HOLDINGS PTY LTD [2021] WASAT 109
MEMBER: MS R PETRUCCI, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS (FINAL WRITTEN SUBMISSIONS FILED ON 31 MAY 2021)
DELIVERED : 23 AUGUST 2021
FILE NO/S: CC 460 of 2021
BETWEEN: MILLENNIUM SPORTS PTY LTD
Applicant
AND
VINCIULLO HOLDINGS PTY LTD
Respondent
Catchwords:
Preliminary issue - Application under s 16(1) of Commercial Tenancies (COVID19 Response) Act 2020 (WA) - Whether there is a dispute - Whether tenant can seek rent relief after lease expired - Whether Tribunal has jurisdiction to determine matter - Statutory interpretation - Reg 3 of the Commercial Tenancies (COVID-19 Response) Regulations 2020 (WA) - Section 5(1) of the adopted code of conduct (Sch 1 of the Commercial Tenancies (COVID-19 Response) Regulations 2020 (WA))
Legislation:
Commercial Tenancies (COVID-19 Response) Act 2020 (WA), s 3, s 14, s 16, s 16(1), s 16(2), s 16(3), s 16(4)(b), s 19, Pt 5
Commercial Tenancies (COVID-19 Response) Regulations 2020 (WA), s 5(1), Sch 1, reg 3, reg 3(3), reg 3(3)(c), reg 3(5), reg 4, Sch 1, cl 3(5), cl 5, cl 5(1)
Interpretation Act 1984 (WA), s 18
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Preliminary issue determined
Application successful
Category: B
Representation:
Counsel:
| Applicant | : | Mr S R Sirett |
| Respondent | : | Mr A Atkinson |
Solicitors:
| Applicant | : | Thomson Geer |
| Respondent | : | CGL Legal |
Case(s) referred to in decision(s):
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51
Vatilla Pty Ltd and Citygate Properties Pty Ltd [2012] WASAT 213
Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 25 March 2021, Millennium Sports Pty Ltd (applicant) applied to the Tribunal under s 16(1) of the Commercial Tenancies (COVID-19 Response) Act 2020 (WA) (Covid Response Act).
Section 16(1) of the Covid Response Act provides that a party to a 'dispute' may apply to the Tribunal to have the dispute determined by the Tribunal.
The applicant seeks rent relief from Vinciullo Holdings (WA) Pty Ltd (respondent) in respect of payment of rent under the lease dated 1 July 2008 and any extension or variation to that lease between the respondent, as landlord, and the applicant, as tenant, (Lease) for the premises situated at 9 (Lot 255) Irvine Drive, Malaga, and being more particularly described as Lot 255 on Diagram 69539, being the whole of the land comprised in Certificate of Title Volume 1726 Folio 230 (Premises).
Counsel for the applicant submits that the preliminary question or issue to be determined by the Tribunal, is whether, for the purposes of constituting a 'dispute' for determination by the Tribunal, a former lessee can rely on the Covid Response Act and the Commercial Tenancies (COVID-19 Response) Regulations 2020 (WA) (Covid Regulations) to dispute the landlord's claim for rent after expiry of the Lease, but before the end of the 'emergency period'.[1] [2]
[1] Applicant's Submissions dated 18 May 2021 at para 4.
[2] Section 3 of the Covid Response Act defines the emergency period as beginning on 30 March 2020 and ending on 28 March 2021.
Put slightly differently, counsel for the respondent submits the preliminary question or issue for determination, is whether there is a 'dispute' that is capable of being referred to the Tribunal pursuant to s 16 of the Covid Response Act.[3]
[3] Respondent's Submissions dated 11 May 2021 at para 1.
In order for the Tribunal to be able to proceed to determine the substantive issue concerning rent relief under the Lease, I must first be satisfied that the Tribunal has jurisdiction to determine the matter under the Covid Response Act. This was set out in the order of the Tribunal made on 21 April 2021 as follows (preliminary issue):
… Does the Tribunal have jurisdiction to deal with this matter? [.]
Pursuant to the same order, the Tribunal ordered that the preliminary issue be determined entirely on the documents filed with Tribunal (s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). The Tribunal had the benefit of receiving written submissions from counsel for the applicant and counsel for the respondent.
Counsel for the applicant submits that the applicant was an 'eligible tenant' during the 'emergency period' and the relevant limitation on initiating a request for rent relief and for vindicating the applicant's entitlement is the ending of the emergency period or such period for which an extension was given to and therefore the answer to the preliminary issues is 'yes'.[4]
[4] Applicant's Submissions dated 18 May 2021 at para 19.
Counsel for the respondent submits that no valid request for rent relief was made and for that reason and having regard to the definition of 'dispute' there cannot be a dispute that may be referred to the Tribunal under s 16 of the Covid Response Act and therefore the answer to the preliminary issue is 'no'.[5]
[5] Respondent's Submissions dated 11 May 2021 at para 15.
For the reasons which follow, I conclude that the answer to the preliminary issue is 'yes'. That is, the Tribunal does have jurisdiction to determine this matter.
Material facts
The following facts are agreed. They are uncontroversial. I make the following findings of fact which are relevant to determining the preliminary issue:
a)The applicant and respondent entered into the Lease on 1 July 2008 with a term of 10 years (expiring on 30 June 2018).
b)The approved use of the Premises under the Lease is for the operation of an indoor volleyball sporting activity (Business).
c)The Lease was extended by a Deed of Variation and Extension dated 18 June 2018 with a term of two years (expiring on 30 June 2020).
d)The Lease expired on 30 June 2020.
e)On 11 March 2021, the applicant sought rent relief from the respondent under the Covid Response Act and Covid Regulations.
f)On 25 March 2021, the Small Business Development Corporation issued certificate M20210122-T-1(C) to the parties under s 19 of the Covid Response Act in respect of a 'Code of Conduct dispute - rent relief'.
g)During the period 30 March 2020 to 30 June 2020 the applicant was a tenant under a small commercial lease.
The applicant submits that the following further facts are relevant to this matter:
a)On 18 June 2019 the applicant entered into the sale of the Business to Paramount Sports Australia Pty Ltd (sub-tenant).
b)On or about 1 September 2019 the sub-tenant commenced operating the Business.
c)Despite the applicant's request, the respondent refused to assign the Lease to the sub-tenant.
d)The sub-tenant, with the consent of the applicant paid the rent directly to the respondent in discharge of its obligations under the sub-lease and in the same amount as the applicant's rent under the Lease.
e)During the period 30 March 2020 to 30 June 2020:
(i)the applicant had a turnover of less than $50 million; and
(ii)the applicant qualified for jobkeeper and satisfied the decline in turnover as provided in Sch 1 to the Covid Regulations (Code).
In my view nothing turns of the applicant's further facts (see above at [12]) for the purpose of determining the preliminary issue. I have therefore not made any findings about the applicant's further facts.
I now turn to consider whether the Tribunal has jurisdiction to deal with this matter (see above at [6] for the preliminary issue).
Does the Tribunal have jurisdiction to deal with this matter?
On 11 March 2021, the applicant sought rent relief from the respondent under the Lease pursuant to the Covid Response Act and Covid Regulations. The applicant made the claim for relief before the end of the emergency period but after the Lease had expired on 30 June 2020.
It is useful to start by setting out the relevant principles of statutory construction.
Principles of statutory construction
Counsel for the respondent referred the Tribunal to Vatilla Pty Ltd and Citygate Properties Pty Ltd [2012] WASAT 213 at [27] for a summary of relevant principles of statutory construction as follows:
…
•The starting point for the construction of a statute is a consideration of the text itself.
•The words of the statute must be interpreted having regard to their context and the legislative purpose.
•Under s 18 of the Interpretation Act 1984 (WA) (Interpretation Act), a construction that would promote the purpose underlying the statute (whether expressly stated or not) is to be preferred to a construction which would not promote that purpose. However, the section is not directed to a construction which better achieves the purpose of an Act, but rather, it assists when there is a choice between a construction that would promote the underlying purpose and one which would not.
•A provision in a statute must be construed consistently with the language and purpose of all the provisions of the statute.
•Section 19 of the Interpretation Act identifies extrinsic material which may be considered to confirm the meaning of a provision in a statute or to determine the meaning where there is ambiguity or obscurity in its ordinary meaning. Such material includes any explanatory memorandum relating to the Bill and the second reading speech. However, that material must not be substituted for the text of the statute.
The High Court has on many occasions stated that in interpreting legislation the starting point for analysis is the text of the legislation (see for example, Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1). Further, the High Court has made it clear that the overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the statutory provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381. Finally, in deriving meaning from the text, so as to fulfil the purpose of Parliament, the High Court has stated that it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. Specifically, it requires an examination at the very least the sentence, often the paragraph, and preferably the immediately surrounding provisions (if not a wider review of the entire statutory context) to identify the meaning of the words in the context in which they are used: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at [396] - [397], quoting R v Brown [1996] 1 AC 543 at [561]; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1, at [36] and [109]; and SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51, at [91] and [88].
In determining the preliminary issue, I will apply the above principles of statutory construction.
Summary of the parties' position
The applicant's position may be summarised as follows:
1)The reference to 'tenant' may be construed in one of two ways:
a)a tenant under an existing qualifying lease; or
b)a person who was a tenant under a qualifying lease at any time during the emergency period.
2)The second construction of 'tenant' above is to be preferred, that is a person who was a tenant under a qualifying lease at any time during the emergency period. This is supported, by reference to the term 'eligible tenant' which is expressly defined by reference to the relevant period, being the emergency period, and the requirement is that the tenant be an eligible tenant during that period, not necessarily when the rent relief is requested (although the relief must be requested by the end of the emergency period (as extended)).
3)The applicant was an eligible tenant during the emergency period (from 30 March 2020 up to 30 June 2020 when the Lease expired) and that the relevant limitation on initiating a request for rent relief and for vindicating the applicant's entitlement is the ending of emergency period (as extended).
4)Regulation 3(5) of the Covid Regulations and 5(1) of the Code[6] supports the view that the intention of the Covid Response Act and Covid Regulations is to preserve the rights that have accrued during the emergency period to the extent to which the tenant was in financial distress and not to tie or confine those rights to a continuing tenancy.
5)The language of the Covid Response Act and the Covid Regulations is prospective. That means, the word 'is' (for example in reg 3 of the Covid Regulations) is to be construed as qualifying the accrual of rights under the legislation at a particular point in time within the emergency period and not as a continuing requirement. Similarly, the word 'tenant' is to be construed as a tenant during the emergency period. The consequence of this construction is that in order to make a claim for rent relief, the tenant must be an eligible tenant during the emergency period and must seek relief during the emergency period.
6)The arbitrary stripping of rights to rent relief by reference to the expiry of the Lease within the emergency period would yield an absurb and unjust result for tenants who suffer the same existential threats to their livelihoods (not necessarily by continuing at the leased premises) as those who had requested rent relief before their lease had expired and who initiated the relief dispute process within the lease term, even though their lease expired shortly afterwards. Such a result would be arbitrary and unjust and does not address the mischief or the purpose of the Covid Response Act or the Covid Regulations.
[6] Sch 1 to the Covid Regulations.
The respondent's position may be summarised as follows:
1)The use of the word 'is' in reg 3(3) of the Covid Regulations makes it clear that the Code applies to a current lease and persons who are the current landlords and the current tenants.
2)On 11 March 2021 when the applicant made its request for rent relief the Code did not apply because:
a)there was no 'small commercial lease' (as it had ended over eight months earlier);
b)the applicant was not a tenant under a small commercial lease; and
c)the respondent was not a landlord under a relevant small commercial lease.
3)If the Code did not apply on 11 March 2021, then there could not be any request for rent relief under cl 5 of the Code and further there is no 'dispute' in relation to the Code that could arise, which is a necessary prerequisite to referring a matter to the Tribunal under s 16 of the Covid Response Act.
4)The proper construction of 'tenant' in reg 3(5) of the Covid Regulations is that the tenant ceases to be an 'eligible tenant' but continues to be a tenant. That regulation does not refer to a situation where an eligible tenant ceases to be an eligible tenant because it ceases to be a tenant. Therefore, a tenant who ceases to be a tenant cannot make a claim even if that former tenant was an eligible tenant at the relevant time. Parliament did not see fit to expand the operation of reg 3(5) of the Covid Regulations to preserve rights of a former tenant (who was an eligible tenant at the relevant time) as well as an existing tenant (who was an eligible tenant at the relevant time).
5)The Notes to cl 5(1) of the Code makes it clear that:
a)but for reg 3(5) of the Covid Regulations, a tenant who ceases to be an eligible tenant (but who was an eligible tenant at the relevant time) cannot request rent relief within 60 days from 28 March 2021; and
b)Section 18 of the Interpretation Act 1984 (WA) is of no import. Once the tenant ceases to be an eligible tenant, the right to seek rent relief is lost (and it is only preserved by reg 3(5) of the Covid Regulations).
6)The term 'dispute' in the Covid Response Act is to a dispute 'between the parties to a lease'. The Lease expired on 30 June 2020 and therefore there cannot be 'dispute' between parties to the Lease on 11 March 2021 when the application for rent relief was made by the applicant.
Application of the principles of statutory construction
In the applicant's application to the Tribunal, which was made after the Lease had expired on 30 June 2020 but before the end of the emergency period, the applicant seeks to have a dispute concerning rent relief in relation to the Lease determined by the Tribunal. In support of the application, counsel for the applicant postulated:[7]
… A person who was a tenant during the emergency period and who suffers financial hardship in respect of a small commercial lease, may seek rent relief from their landlord, and if the landlord declines to grant relief, may then seek determination of the resulting dispute by initiating the dispute resolution process within the emergency period (as extended)[.]
(original emphasis)
[7] Applicant's Submissions dated 18 May 2021 at para 17.
Counsel for the respondent submits the applicant's postulation (as set out above) is advanced without reference to the legislation and in any event no valid request for rent relief was made by the applicant and for that reason and having regard to the definition of 'dispute' there cannot be a dispute that can be referred to Tribunal under s 16 of the Covid Response Act for determination.[8] [9]
[8] Respondent's Submissions dated 31 May 2021 at para 13.
[9] Respondent's Submissions dated 11 May 2021 at para 15.
While counsel for the respondent correctly sets out the relevant principles of statutory construction (see above at [17]), in my view, the proper construction of the relevant provisions of the Covid Response Act and the Covid Regulations to determine the preliminary issue is that put by counsel for the applicant. My reasoning is as follows.
It is useful to first set out the relevant provisions of the Covid Response Act and the Covid Regulations.
Reg 3 of the Covid Regulations provides:
3.Adopted code of conduct (s.13)
(1)In this regulation -
relevant small commercial lease means a small commercial lease where the tenant is an eligible tenant in relation to the small commercial lease.
(2)For the purposes of section 13(2) of the Act, the code of conduct set out in Schedule 1 is adopted.
(3)The adopted code of conduct applies to the following -
(a)a small commercial lease that is a relevant small commercial lease;
(b)a person who is a landlord under a relevant small commercial lease;
(c)a person who is a tenant under a relevant small commercial lease.
(4)The following persons must comply with the adopted code of conduct -
(a)a person who is a landlord under a relevant small commercial lease;
(b)a person who is a tenant under a relevant small commercial lease.
(5)If a tenant under a small commercial lease ceases to be an eligible tenant in relation to the small commercial lease, subregulations (3) and (4) and the adopted code of conduct continue to apply to matters relating to the period during which the tenant was an eligible tenant in relation to the small commercial lease as if the tenant were still an eligible tenant in relation to the small commercial lease.
The terms 'landlord', 'lease', 'small commercial lease', 'tenant' are defined in s 3 of the Covid Response Act as follows:
landlord-
(a)means the person who, under a lease, grants the tenant the right to occupy the land or premises that are the subject of the lease; and
(b)includes a personal representative, successor or assignee of a landlord;
lease-
(a)means any lease, sub-lease, licence or other agreement under which a person grants a right to another person to occupy land or premises -
(i)whether or not the right is a right of exclusive occupation; and
(ii)whether the lease, sub-lease, licence or agreement is made orally or in writing
but
…
small commercial lease means-
…
(b)a lease where the tenant owns or operates a small business and uses the land or premises that are the subject of the lease for the purpose of carrying on that business; or
…
tenant means the person, who under a lease, is entitled to occupy the land or premises that are the subject of the lease.
The terms 'dispute' and 'party' are defined in s 14 of the Covid Response Act as follows:
dispute-
(a)means a dispute between the parties to a lease, or 1 or more parties to a lease and a person who has given a guarantee in respect of the lease, that arises out of, or in relation to, the operation of this Act; and
(b)includes-
(i)a code of conduct dispute; and
(ii)a financial hardship dispute;
party, in relation to a lease, means the landlord or the tenant under the lease[.]
Reg 3 of the Covid Regulations
Counsel for the respondent submits that the use of the word 'is' in reg 3(3) of the Covid Regulations makes it clear that the Code applies to a current lease and persons who are the current landlord and current tenant.[10] Further, counsel for the respondent submits that as the applicant made its application for rent relief on 11 March 2021, even though it was made before the end of the emergency period, it was made at a time when there was no lease as the Lease had expired on 30 June 2020. The consequence, according to counsel for the respondent, is that no application for rent relief could be made under cl 5 of the Code and that no dispute in relation to the Code could arise (which is a necessary prerequisite to referring a matter to the Tribunal under s 16 of the Covid Response Act).[11]
[10] Ibid at para 5.
[11] Ibid at para 6.
Further, counsel for the respondent submits that reg 3(5) of the Covid Regulations, properly construed, refers to a tenant that ceases to be an 'eligible tenant' but continues to be a tenant and that it does not refer to a situation where an eligible tenant ceases to be an eligible tenant because it ceases to be a tenant.[12] Counsel for the respondent submits that Parliament did not see fit to expand the operation of reg 3(5) to preserve the rights of a former tenant (who was an eligible tenant at the relevant time) as well as an existing tenant (who was an eligible tenant at the relevant time).[13] [14]
[12] Ibid at para 8.
[13] Respondent's Submissions dated 18 May 2021 at para 13.
[14] Respondent's Submissions in reply dated 31 May 2021 at para 14.
Counsel for the applicant submits that the language of the Covid Response Act and Covid Regulations is expressed prospectively so that the word 'is' in reg 3(3) of the Covid Regulations should be construed as qualifying the accrual of rights under that legislation at a particular point of time within the emergency period and not as a continuing requirement.[15]
[15] Applicant's Submissions dated 18 May 2021 at para 21.
The long title of the Covid Response Act is an Act to respond to the impact of the COVID-19 pandemic on certain commercial leases, and for related purposes. The context of the legislation is the COVID-19 pandemic.[16]
[16] In Western Australia, on 15 March 2020, Hon Francis Logan, Minister for Emergency Services, declared a State of Emergency in Western Australia with effect from 12am, 16 March 2020, due to the pandemic caused by COVID-19. The declaration was enabled through s 56 of the Emergency Management Act 2005 (WA). Subsequently, on 16 March 2020, Hon Roger Cook, Minister for Health, declared a Public Health State of Emergency, effective 12am 17 March 2020. The declaration was made under s 167 of the Public Health Act 2016 (WA).
In reg 3(3) of the Covid Regulations, the verb 'is' is used, which when used with 'he', 'she', 'it' and with singular nouns it is a form of the present tense of 'be'. A singular noun is a noun that refers to one person, place, or thing. Singular nouns always use singular verbs such as 'is' or 'was'. For example, in reg 3(3)(c) a singular noun 'a person' is used as is the verb 'is' which indicates the present tense of 'be'. In my view it was not necessary for that regulation to also use the verb 'was', being the past tense of 'be', as reg 3(5) of the Covid Regulations includes the tenant who was an eligible tenant (see below at [35]).
To give effect to the purpose of Parliament as expressed in the text of the Covid Response Act and Covid Regulations, being a range of measures for urgent relief of certain commercial tenants in response to the COVID19 pandemic, in my view, the word 'is' in reg 3(3) of the Covid Regulations is to be construed as qualifying the accrual of rights under the Covid Response Act and the Covid Regulations at a particular point in time within the emergency period and not as a continuing requirement. This is supported, in my view, by the word 'tenant' in reg 3(3) of the Covid Regulations, which properly construed means the tenant during the emergency period. The consequence of this construction is that in order to make a claim for rent relief, the applicant must be an eligible tenant during the emergency period and not necessarily when the relief is sought (although the relief must be sought during the emergency period (as extended)).
In my view, reg 3(5) of the Covid Regulations, properly construed, means that reg 3 and reg 4 of the Covid Regulations and the Code continue to apply for the period that the tenant was an eligible tenant in relation to the small commercial lease even though the tenant has ceased to be an eligible tenant. This is the case before the Tribunal. Here, the Lease expired on 30 June 2020 and therefore the applicant can no longer be an eligible tenant under that Lease as it expired on 30 June 2020. However, by application of reg 3(5) of the Covid Regulations the applicant is taken to be an eligible tenant during the period the applicant was an eligible tenant (which is up to 30 June 2020 when the Lease expired).
I agree with counsel for the applicant's submission that cl 3(5) of the Covid Regulations and cl 5(1) of the Code, supports the view that the intention of the Covid Response Act and Covid Regulations is to preserve the rights that have accrued during the emergency period to the extent to which the tenant was in financial distress and not to tie or confine those rights to a continuing tenancy.[17] Further, note 2 to cl 5(1) of the Code referred to by counsel for the respondent clearly provides that cl 5(1) does not prevent the tenant from making a request for rent relief so long as the request relates to a period during which the tenant was an eligible tenant in relation to the small commercial lease.
Dispute
[17] Applicant's Submissions dated 18 May 2021 at para 20.
Counsel for the respondent submits that as the Lease expired on 30 June 2020 and therefore cannot be a 'dispute' on 11 March 2021 between the parties concerning that Lease.
The term 'lease' is defined in s 3 of the Covid Response Act and is set out above at [27]. The definition of 'lease' has the word any before it. The use of the word 'any' is a determiner to refer to one or some of a thing or number of things, no matter how much or how many.
In deriving the meaning of the use of the word any before the word 'lease' in the legislative context of the Covid Response Act so as to fulfil the purpose of Parliament that the Covid Response Act is to respond to the impact of the COVID-19 pandemic of certain commercial leases, in my view, means one lease or a number of leases and that nothing in the definition of 'lease' in s 3 of the Covid Response Act limits the reference of any lease to a lease which is ongoing (or had not expired) during the emergency period (as extended) or when the application for rent relief was made.
The term 'dispute' is defined in s 14 of the Covid Response Act and is set out above at [28]. The definition of 'dispute' has the word a before the word 'dispute'. The use of the word 'a' is a determiner to refer to someone or something for the first time in the text. In my view, nothing in the definition of 'dispute' limits a dispute to one in which the tenant is a current eligible tenant at the time of the dispute.
Applications to have a 'dispute' determined by the Tribunal are subject to the requirements of s 16 of the Covid Response Act. Part 5 of the Covid Response Act is headed 'Resolution of disputes'. In Pt 5 of the Covid Response Act, terms used are defined in s 14 (such as 'party' and 'dispute' which are set out above at [28]. What is required to make an application is set out in s 16 as follows:
16. Applications to Tribunal
(1)A party to a dispute may apply to the Tribunal to have the dispute determined by the Tribunal.
(2)The application must be made during the emergency period unless the Commissioner has issued a certificate under section 19 in respect of the dispute.
(3)Subsection (4) applies if the lease to which the dispute relates -
(a)is a small commercial lease; or
(b)the landlord under the lease owns or operates a small business and the lease is granted in the course of that business.
(4)An application in respect of the dispute cannot be made to the Tribunal under subsection (1) unless -
(a)none of the parties to the dispute has made a request to the Commissioner under section 18 in respect of the dispute and the parties agree that the application can be made; or
(b)the Commissioner has issued a certificate under section 19 in respect of the dispute.
(5)Subsection (4) does not apply to a dispute that is of a class prescribed by regulations for the purposes of this subsection.
(6)A copy of an application under subsection (1) that is required to be given under the State Administrative Tribunal Act 2004 section 45(1) must be given in the manner and time (if any) prescribed by regulations for the purposes of this subsection.
(7)Nothing in this section prevents a person making a request to the Commissioner under section 18.
It is common ground that the application was made to the Tribunal on 25 March 2021. That date is within the emergency period and therefore I find the application was made to the Tribunal within the time period required by s 16(2) of the Covid Response Act.[18]
[18] Section 16(2) of the Covid Response Act provides that 'the application must be made during the emergency period unless the Commissioner has issued a certificate under s 19 of the same Act in respect of the dispute'.
The Small Business Commissioner issued, pursuant to s 19 of the Covid Response Act, a Certificate to the parties for them to proceed to the Tribunal on 25 March 2021 in respect of a 'code of conduct dispute - rent relief'. I find this meets the requirements of s 16(4)(b) of the Covid Response Act.
The final requirement for making an application to the Tribunal is set out in s 16(3) of the Covid Response Act which requires the 'dispute' to relate to:
…
a)a small commercial lease; or
b)the landlord under the lease owns or operates a small business and the lease is granted in the course of that business.
Counsel for the respondent submits that a tenant who ceases to be a tenant cannot make a claim for rent relief under a lease even if that former tenant was an eligible tenant at the relevant time.[19] Counsel for the applicant submits that a person who was a tenant under a qualifying lease at any time during the emergency period may make an application to the Tribunal under s 16 of the Covid Response Act.
[19] Respondent's Submissions dated 18 May 2021 at para 12.
In my view, s 16 of the Covid Response Act, properly construed, enables a tenant who was an eligible tenant under the relevant small commercial lease to make a claim for rent relief under that lease at any time during the emergency period. This is supported, by reference to the term 'eligible tenant' which, in my view, properly construed is by reference to the relevant period, being the emergency period (as extended), and the requirement that the tenant be an eligible tenant during that period, and not necessarily when the rent relief is requested provided that the request is made before the end of the emergency period (as extended).
Conclusion
For the foregoing reasons, in my view, the preliminary issue is to be answered 'yes'. That is, the Tribunal does have jurisdiction to deal with the application made under s 16(1) of the Covid Response Act. I will therefore make the following orders.
Orders
The Tribunal orders:
1.The Tribunal has determined, as a preliminary issue, that it does have jurisdiction to deal with the application under s 16(1) of the Commercial Tenancies (COVID-19 Response) Act 2020 (WA).
2.The proceeding is adjourned to a directions hearing on 12 October 2021 at 3 pm at 565 Hay Street, Perth, Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
23 AUGUST 2021
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