| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA) CITATION : MORRISON and KEYCORD PTY LTD [2013] WASAT 174 MEMBER : MS L WARD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 OCTOBER 2013 FILE NO/S : CC 1994 of 2012 BETWEEN : REBECCA ANNE MORRISON Applicant
AND
KEYCORD PTY LTD
Respondent
Catchwords: Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) Amendment of an application - Jurisdiction - Application to Tribunal restricted in certain circumstances Section 25D of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) - Terms of the lease Cost of repairs to air conditioner Ownership of air conditioner Disclosure statement False or misleading information contrary to s 6(1)(b) or s 16C of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) Unconscionable conduct Application dismissed
(Page 2)
Legislation: Code of Conduct for Agents and Sales Representatives
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 6, s 6(1), s 6(6)(b), s 12(2), s 12(2)(c), s 15C, s 16(1), s 16(C), s 16D, s 25C, s 25D, s 25D(1), s 25D(2)
Commercial Tenancy (Retail Shops) Agreements Regulations 1985 (WA), reg 3A, reg 4, reg 10
Fair Trading Act 1987 (WA)
Interpretation Act 1984 (WA), s 56(1)
State Administrative Tribunal Act 2004 (WA), s 32(5), s 56(2), s 87(1)
State Administrative Tribunal Rules 2004 (WA), r 15 Result: Application dismissed
Summary of Tribunal's decision: Since about 19 July 2011, the applicant, Ms Rebecca Anne Morrison has owned and operated a hairdressing salon called 'Hair at the Zoo' at Lot 17, Leeming Forum Shopping Centre.
Keycord Pty Ltd is the current owner of the Premises and is the applicant's landlord.
A dispute arose between the parties regarding who was responsible for the payment of repairs to the air conditioner. At a later stage in the proceedings, the applicant also sought to add the cost of replacing the rear external door to the application before the Tribunal. The applicant also claimed that the disclosure statement which was provided by the previous landlord to the previous tenant was false, misleading and deceptive to her. The applicant also claimed that the respondent acted unconscionably on one occasion in June 2012.
The application was made under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA).
The Tribunal found that:
. It did not have jurisdiction to consider which party was responsible for the costs of replacing an external rear door because a certificate under s 25C of the CTRSA Act had not been issued.
. The applicant was required to pay the costs of the repairs to the air conditioner ($1,435.92) as set out in special condition 2 of Schedule 2 to the lease.
(Page 3)
The applicant is not entitled to any relief under s 6, s 15F or s 16C of the CTRSA Act in relation to the disclosure statement or the telephone conversation in June 2012.
Category: B
Representation: Counsel:
Applicant : Ms D Kelly (Acting as Agent)
Respondent : Mr E Rogers, Metway Real Estate (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Gill & Ors and Wildnight Pty Ltd [2008] WASAT 84
Graham v Markets Hotel Pty Ltd [1943] HCA 8; (1943) 67 CLR 567
Howell and Kakulas & Christodulou [2012] WASAT 9
Lamont v Town of Kwinana [2013] WASC 326
Lurcott v Wakely & Anor (1911) 1 KB 905
Pearce & Anor and Germain [2007] WASAT 291 (S)
Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 92
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicant (who is also referred to as the tenant below), Ms Rebecca Anne Morrison, owns and operates a hairdressing salon called 'Hair at the Zoo' at Lot 17, Leeming Forum Shopping Centre (referred to below as the Premises). 2 The respondent (who is also referred to as the landlord below), Keycord Pty Ltd (Keycord), is the current owner of the Premises and is the applicant's landlord. 3 A dispute arose between the parties regarding who was responsible for the payment of repairs to the air conditioner. At a later stage in the proceedings, the applicant also sought to amend the application and seek the cost of replacing the rear external door to the Premises. The applicant also claimed that the disclosure statement which was provided by the previous landlord to the previous tenant was false, misleading and deceptive to her. The applicant also claimed that the respondent acted unconscionably towards her during a telephone conversation in June 2012. 4 The application is made under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CTRSA Act). 5 The applicant's submissions also refer to other legislation such as the Fair Trading Act 1987 (WA) and the Code of Conduct for Agents and Sales Representatives. However, as the application is made under the CTRSA Act, the Tribunal only has jurisdiction to consider this particular application under that Act.
Issues 6 Ultimately, the applicant seeks answers to the following matters which she claims arise under the CTRSA Act, namely: (Page 5)
Question 1: arising under s 16(1) of the CTRSA Act - is the respondent required to reimburse the applicant the costs of the repairs to the air conditioner ($1,435.92) and interest since 2 February 2012?
Question 2: arising under s 16(1) of the CTRSA Act - is the applicant liable for the costs of replacing the external rear door, repaired on or about 3 December 2012, at a cost of $1,250?
Question 3: arising under s 15C of the CTRSA Act – did the respondent's agent engage in conduct which was unconscionable during a telephone conversation with the applicant in June 2012 and does the respondent's agent, Mr Eric Rogers, agree to refrain from any future unconscionable conduct?
Question 4: arising under s 16C of the CTRSA Act - does the disclosure statement, which was provided by Rodgers Holdings to Ms Bankier and which does not include the air conditioner as a fixture and fitting, entitle the applicant to any relief under s 6 or s 16C of the CTRSA Act for being misleading and deceptive? 7 The Tribunal will now consider if it has jurisdiction to consider the above questions.
Jurisdiction in relation to questions 1, 3 and 4 8 On 26 November 2012, the Small Business Commissioner (SBC) issued a certificate under s 25C of the CTRSA Act in relation to the cost of repairs to the air conditioner at the applicant's Premises (s 25C Certificate). 9 The Tribunal is satisfied that questions 1, 3 and 4 listed above are questions arising under the lease. The Tribunal is also satisfied that questions 1, 3 and 4 relate very broadly to the issue of the cost of repairs to the applicant's air conditioning unit (as set out in the s 25C Certificate).
Jurisdiction in relation to question 2 - is a separate s 25 Certificate required under s 25D of the CTRSA Act? 10 In relation to question 2, the applicant sought to amend her application on 6 March 2013; that is, after the s 25C Certificate was granted. The additional order related to whether the applicant is liable for the costs of replacing the external rear door ($1,250). (Page 6)
11 The Tribunal notes that the State Administrative Tribunal Act 2004 (WA) (SAT Act) does not contain an express provision relating to the amendment of an application, although s 32(5) of the SAT Act states that 'to the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or the enabling Act, it is to be as the Tribunal determines'. Rule 15 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) allows a person who has made an application to the Tribunal to apply in an approved form to amend the grounds or reasons specified in the application. The Tribunal may, at any time before making a final decision, grant such an application: see Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 92 at [7]. 12 In this application, the CTRSA Act is the relevant enabling Act. Section 25D(1) of the CTRSA Act provides that: An application, referral or submission in respect of a matter may not be made to the Tribunal under this Act unless the Small Business Commissioner has issued a certificate in respect of the matter under section 25C. (Tribunal emphasis) 13 The requirements of s 25D(1) of the CTRSA Act, in summary, are that an application may not be made to the Tribunal unless a certificate has issued under s 25C of the Act. 14 The use of the words 'may' and 'unless' together in the one sentence may, at first reading, appear to be inconsistent. However, in the Tribunal's view, the word 'may' relates to whether or not the applicant decides to apply to the Tribunal in respect of the matter once the s 25C Certificate has issued. 15 In accordance with s 56(1) of the Interpretation Act 1984 (WA), the use of the word 'may' imports a discretion in relation to the lodging of the application with the Tribunal. In the context of s 25D of the CTRSA Act, the exercise of that discretion rests with the applicant rather than with the SBC. 16 Accordingly, in the Tribunal's view, it is only once a certificate under s 25C of the CTRSA Act is issued by the SBC that an application may be made to the Tribunal, unless one of the exceptions under s 25D(2) of the CTRSA Act applies: see reg 10 of the Commercial Tenancy (Retail Shops) Agreements Regulations 1985 (WA) (CTRSA Regulations). (Page 7)
17 Once the s 25C Certificate is issued, the applicant may then decide if they wish to lodge an application with the Tribunal. 18 In this particular application, the SBC has not issued a certificate under s 25C of the CTRSA Act in relation to the cost of repairs to the external rear door. None of the matters prescribed by reg 10 of the CTRSA Regulations apply to this matter. Therefore, the SBC must grant a certificate. The door repairs occurred after the applicant had received her s 25C Certificate from the SBC and after she had lodged her application at the Tribunal. 19 Accordingly, there is no s 25C Certificate which relates to the door repairs. While it may be possible to interpret the 'matter' referred to in the certificate in a wide manner, such as to include repairs of the leased premises generally, it could not, in the Tribunal's view, include fresh matters which did not exist at the time when the s 25C Certificate issued. 20 Therefore, the Tribunal does not accept that it has jurisdiction to deal with the door repair complaint as part of this application. Of course, this difficulty may be remedied by the applicant applying for a second certificate under s 25C of the CTRSA Act and making a second application to the Tribunal. 21 While the respondent did not object to the proposed amendment of 6 March 2013 in relation to the door repairs, in the Tribunal's view, this is not a matter which the parties can agree to confer jurisdiction on the Tribunal. Under the CTRSA Act, the Tribunal's jurisdiction depends on a s 25C Certificate being issued unless one of the exceptions under s 25D(2) of the CTRSA Act applies. 22 In summary, the Tribunal finds that it does not have jurisdiction to determine question 2 above; namely, is the tenant liable for the costs of the repairs to the external rear door ($1,250)? 23 Before determining questions 1, 3 and 4, the following relevant background facts are summarised from the documents before the Tribunal.
Background 24 By way of background, a disclosure statement dated 5 September 2005 (referred to below as the Disclosure Statement) was provided by the previous landlord, Rodgers Holdings Pty Ltd (Rodgers Holdings) to a previous tenant, Ms Lisa Rosina Bankier (Page 8)
(Ms Bankier). The Disclosure Statement does not include the air conditioner as a fixture and fitting provided by the landlord. 25 The lease between Rodgers Holdings and Ms Bankier in relation to the Premises is undated and commenced on 1 October 2005 (Lease). 26 A deed of extension of lease dated 1 December 2010 was made between the respondent, Keycord, and Ms Bankier for an extended term of five years commencing on 1 October 2010. 27 On 19 July 2011, the applicant executed a deed of assignment of the Lease in respect of the Premises. By the deed of assignment, the unexpired term of the Lease was assigned by Ms Bankier to the applicant. 28 It is not in issue that the Premises are a 'retail business', as a hairdresser is a specified business as set out in reg 3A of the CTRSA Regulations and s 3 of the CTRSA Act. The assigned Lease is a 'retail shop lease' within the meaning of s 3 of the CTRSA Act. 29 On 3 January 2012, the applicant paid Airmaster Australia the sum of $1,435.92 for labour and installation of a control module and a service fee in relation to the air conditioner on the Premises. The applicant seeks the reimbursement of $1,435.92 and interest on that amount. The air conditioner in question is an evaporative cooling system affixed to the tiled roof of the Premises. It is not in dispute that the Premises are air conditioned. 30 Sometime in June 2012, the applicant claims that the respondent's agent, Mr Rogers, telephoned her at the Premises and made her feel threatened and intimidated in relation to her referring the issue of the cost of the air conditioning repairs to the SBC. The applicant declares in a statutory declaration made on 4 March 2013 that Mr Rogers gave her the impression that the Lease would not be renewed in October 2015 if she commenced an application at the Tribunal. 31 On 26 November 2012, the SBC issued a certificate to the applicant under s 25C of the CTRSA Act certifying that alternative dispute resolution had failed to resolve the matter. The nature of the dispute was described in the certificate as being 'payment of repairs made to air conditioning unit'. 32 On 30 November 2012, the applicant filed an application in the Tribunal. (Page 9)
33 On 3 December 2012, the respondent was invoiced for $1,250 by Nick the Handyman for the removal and replacement of the exterior rear door from the applicant's shop due to it being storm damaged. The respondent invoiced the applicant for the full cost of the new door on 15 February 2013. 34 On 30 January 2013, a copy of the Disclosure Statement was provided by the respondent to the Tribunal and the applicant during the course of the proceedings. On or about 10 April 2013, in response to the applicant's summons to produce, the original Disclosure Statement was provided to the Tribunal. 35 At the request of the parties, the matter was determined on the documents, following several directions hearings and the matter being listed for mediation. 36 Having considered the parties' written submissions and supporting documents, the Tribunal will now deal with each of the issues for determination in turn.
Question 1 - is the respondent required to reimburse the applicant the costs of the repairs to the air conditioner ($1,435.92) and interest since February 2012? 37 The Lease relevantly includes, in clause 7.1 under the heading 'good repair', the applicant's general obligation to keep and maintain the premises in good repair and working order, subject to two exceptions. Those exceptions are the 'reasonable wear and tear' exception and, in certain circumstances, risks insured against by the respondent. There is no suggestion from either party that the two general exceptions apply to the facts in this case and the Tribunal accepts that is the case. 38 The applicant's general 'good repair' obligation is subject to the specific provisions set out in Schedule 2 to the Lease. In particular, special condition 2 of Schedule 2 to the Lease states in relation to 'Air Conditioning Equipment' that: The Tenant must take out such necessary service contracts and keep and maintain the Air Conditioning Equipment in the Premises in good repair and working order to the Landlord's reasonable satisfaction. The Tenant must provide a copy of any service contract following the request of the Landlord. (Page 10)
39 Based on the various submissions made to the Tribunal, the applicant seeks reimbursement of the air conditioning expenses for several reasons, including that, in summary: • Firstly, the respondent owns the air conditioner and therefore the respondent is required to maintain the unit, just as the original landlord, Rodgers Holdings, did. • Secondly, special condition 2 of Schedule 2 to the Lease is void because it is contrary to s 12(2)(c) of the CTRSA Act. This is on the basis that the applicant is, in effect, requested to make a contribution to the amortisation of the costs of the plant or equipment that is, or becomes, the owner of the retail shopping centre. The applicant submits that her contention is supported by the Tribunal's decision in Gill & Ors and Wildnight Pty Ltd [2008] WASAT 84 at [78] (Gill and Wildnight), where the Member stated: It appears from the CT Act that if the air-conditioning units are classified as part of 'plant or equipment' that is the property of the respondent, the responsibility is on the respondent to maintain, repair, and if necessary, replace it. Even if a lease places a tenant under an obligation to contribute to the cost of maintenance, such a clause would be void. • Thirdly, the cause of the air conditioner breaking down was identified by Mr Troy Perrie of T Perrie's Electrical Services in his unsigned letter dated 3 December 2011 as being a 'neutral had burnt out in the unit's switchboard causing an inconsistency … I traced the fault back to the internal switchboard. Western Power … rectified the problem'. As a result, the applicant claimed that the damage to the air conditioner was caused by an electrical fault which formed part of the building and was therefore the responsibility of the owner: see the email from the applicant to the respondent's agent dated 2 February 2012. 40 In response, the respondent denies the applicant's claim for the air conditioning expenses on the basis that the air conditioner belongs to the applicant and that the applicant is therefore responsible for the cost of the repairs. The respondent submits that the Disclosure Statement (Page 11)
supports its position in relation to ownership of the air conditioner in the Premises. 41 The Tribunal will address each of the applicant's submissions in relation to the air conditioner repairs in turn.
Ownership - is it relevant where there is an express obligation to repair under the Lease? 42 In the Tribunal's view, the applicant's obligation in relation to repairing the air conditioning equipment on the Premises arises under the Lease, irrespective of who owns the air conditioner. The Lease documents the express agreement made between the applicant and respondent in relation to a number of matters, including the cost of maintaining and repairing the 'Air Conditioning Equipment' on the Premises. 43 Accordingly, the applicant's submissions and supporting documents in relation to the state of mind of various previous owners and tenants in relation to the ownership of the air conditioner in the applicant's hairdressing salon are not determinative of this particular issue. Neither is the fact that a previous landlord paid for the repair and maintenance of the air conditioner determinative of the issue. Nor is the exclusion of the air conditioner from the Disclosure Statement dated 5 September 2009 determinative of the issue of the liability to pay for the repairs. In this application, the Lease determines who is obliged to pay for the repairs to the air conditioner on the Premises.
Under the terms of the Lease, who pays for repairs to the air conditioner? 44 The term 'Air Conditioning Equipment' is defined in the Lease to include all '… associated equipment for the manufacture and reticulation of conditioned air to the Premises'. 45 The Tribunal finds that the air conditioner in the Premises is subject to special condition 2 of Schedule 2 to the Lease (referred to below as Special Condition 2). Special Condition 2 and the 'Air Conditioning Equipment' apply irrespective of who owns the air conditioner. 46 The Tribunal is satisfied that the work undertaken by Airmaster Australia was in the nature of a repair within the terms of Special Condition 2, notwithstanding the replacement of the control module. Whether work can be classified as 'repair work' is a question of both fact and law: Lamont v Town of Kwinana [2013] WASC 326 at [16] per McKechnie J). (Page 12)
47 Special Condition 2 requires that the applicant keep and maintain the 'Air Conditioning Equipment' in good repair and working order. In relation to the extent of the covenant to 'repair', it has long been established, as per Buckley LJ in Lurcott v Wakely & Anor (1911) 1 KB 905 at pages 923 - 924, that: 'Repair' and 'renew' are not words expressive of a clear contrast. Repair always involves renewal; renewal or a part; of a subordinate part … Repair is restoration by renewal or replacement of subsidiary parts of a whole. 48 Accordingly, an obligation to repair the 'Air Conditioning Equipment' does not import an obligation to replace it completely, although it is well established that a repair may involve some renewal or replacement. In Graham v Markets Hotel Pty Ltd[1943] HCA 8; (1943) 67 CLR 567 at 579 (Latham CJ), the High Court of Australia decided that it was a question of degree as to whether the work falls within the ambit of an obligation to repair or if it is outside the scope of the covenant. 49 The description of the work undertaken by Airmaster Australia, as set out in its invoice, includes the replacement of the control module. Based on the evidence before it, the Tribunal considers that the replacement of a part of the air conditioner is in the nature of a repair. Accordingly, some renewal of a part of the air conditioner was required and, in the Tribunal's view, that renewal of a part is within the applicant's covenant to repair, as set out in Special Condition 2.
Is Special Condition 2 void under s 12(2)(c) of the CTRSA Act? 50 In the Tribunal's view, Special Condition 2 is not void under s 12(2)(c) of the CTRSA Act. 51 In the case of a retail shop lease in a retail shopping centre, s 12(2) of the CTRSA Act makes 'void' any clause in a lease the effect of which is to oblige the tenant: … to make a payment to or for the benefit of the landlord … for or in respect of the amortisation of all or part of the costs of or incidental to - (Page 13)
52 In this case, the applicant submits that Special Condition 2 is void because it obliges the applicant to pay for all or part of the 'amortisation' costs of the plant or equipment; namely, the air conditioner. 53 'Amortisation' is not a defined term under the CTRSA Act. 'Amortisation' is defined in the The Encyclopaedic Australian Legal Dictionary, which is published online by LexisNexis, as being: The process of allocating the cost or value of assets (often having no physical qualities, such as patents, copyright, and goodwill) over an appropriate period as an expense or as product cost. 54 In Howell and Kakulas & Christodulou [2012] WASAT 9 at [23], the Tribunal referred implicitly to the 'amortisation' costs as capital costs. 55 Accordingly, the Tribunal is satisfied, based on the material before it, that amortisation relates to expenditure which is capital in nature, rather than expenditure for the repair of an asset. In this case, the asset otherwise known as the plant or equipment is the air conditioner - not the control module. 56 The control module is only part of the plant and equipment. As a result, the Tribunal respectfully disagrees with the Tribunal finding in the decision of Gill and Wildnight and considers that it was wrongly decided in relation to the application of s 12(2) of the CTRSA Act. In this case, the obligation to repair the 'Air Conditioning Equipment' is imposed on the applicant under the Lease. Special Condition 2 does not contravene s 12(2) of the CTRSA Act because the 'amortisation' of all or part of the costs of or incidental to plant or equipment does not, in the Tribunal's view, include the cost of repairs and maintenance to a part of that plant or equipment. 57 Accordingly, Special Condition 2 is not contrary to s 12(2)(c) of the CTRSA Act and is therefore not void under the Lease.
Even if the damage to the air conditioner was caused by an electrical fault, does that mean that the respondent is responsible for the costs of repairs? 58 Under the Lease, the applicant has agreed to assume certain risks, including those set out in clause 6.7(b) of the Lease relating to, among other things, electricity. There is no evidence before the Tribunal which suggests that the electrical fault identified by Mr Perrie in his unsigned letter dated 3 December 2011 was caused by the respondent's own wilful act or negligence. (Page 14)
59 Accordingly, based on the evidence before it, the Tribunal finds that the respondent is not responsible for the cost of the air conditioner repairs. 60 By way of summary, the Tribunal finds that Special Condition 2 applies and that the Airmaster Australia expenditure involved repairs within the terms of the Lease. This is because the Lease expressly requires that the applicant must 'keep and maintain' the 'Air Conditioning Equipment' in good repair and working order.
Question 2 - is the applicant liable for the costs of replacing the external rear door, repaired on or about 3 December 2012, at a cost of $1,250? 61 As mentioned above, the Tribunal does not have jurisdiction to consider this question.
Question 3 - did the respondent's agent engage in conduct which was unconscionable during a telephone conversation with the applicant in June 2012 and does the respondent's agent, Mr Eric Rogers, agree to refrain from any future unconscionable conduct? 62 The applicant claims that in June 2012, the respondent's agent, Mr Rogers, telephoned her and made her feel threatened and intimidated in relation to her referring the issue of the cost of the air conditioning repairs to the SBC. The applicant declares in her statutory declaration made on 4 March 2013 that Mr Rogers gave her the impression that her lease would not be renewed in October 2015 if she commenced an application at the Tribunal. The applicant submits that this conduct by Mr Rogers amounts to unconscionable conduct. She seeks an order that Mr Rogers agree to refrain from any future unconscionable conduct. 63 The respondent filed a covering letter written by Mr Rogers dated 1 May 2013 which stated: We agree to refrain from any unconscionable conduct but do not agree that any has occurred in the past. We clearly refute the comments made as a mischievous attempt to discredit the respondent's representative and [they are] clearly without foundation. 64 The Tribunal is required to determine the applicant's claim of unconscionable conduct within the terms of s 15C of the CTRSA Act. 65 What constitutes unconscionable conduct, as that term is used in s 15C(1) of the CTRSA Act, has been the subject of consideration by the Tribunal in Murphy and Fremantle Markets Pty Ltd [2009] WASAT 84 (Page 15)
(Murphy). Murphy is particularly relevant at [85] where the Tribunal stated that: In my view, the determination of whether or not unconscionable conduct has occurred must be assessed having regard to the views expressed in World Best Holdings; unconscionability will be established where what has occurred attracts a high standard of moral obloquy. As stated in Barbcraft at para 87, it is a concept which cannot be simply and exhaustively defined but which will be easily recognised when it presents itself. The example referred to by the court in that case was the conduct in Simply NoKnead in which it was held that the Commission had established an overwhelming case of unreasonable, unfair, bullying and thuggish behaviour by the respondent with respect to its franchisee. Similarly, in Automasters, also a franchise case, Hasluck J found that the franchisor had acted capriciously and unreasonably in circumstances where there was not a sufficient basis to terminate the contract. Further, that there was an element of oppression in the franchisors conduct, referrable to a conscious determination to bring the franchise agreement to an end, notwithstanding an awareness that there was a degree of ambiguity surrounding the allegations of default to be relied upon [at para 396]. His Honour also specifically noted that for conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable must be demonstrated; that it is not necessarily unconscionable to terminate a relationship where trust and confidence has been undermined and that a number of the decided cases suggest that a party to a contract is entitled to insist upon strict enforcement of the relevant obligations and to drive a hard bargain [395]. [emphasis added] 66 The Tribunal notes that the factual basis for the applicant's unconscionable conduct is disputed by the respondent. However, even if the Tribunal was satisfied that a factual basis for the claim exists, the applicant's statements, if they were made, are not an overwhelming case of unreasonable, unfair bullying and thuggish behaviour. The high standard of moral obloquy has not been met in this case. The Tribunal is not satisfied that the claim of unconscionable conduct is made out, even where the applicant'sclaim is taken at its highest. The Tribunal also refuses to make any order that the respondent refrain from any future unconscionable conduct. In the Tribunal's view, such an order, albeit by consent of the parties, would be contrary to s 56(2) of the SAT Act, as it is too vague and general. Accordingly, the claim is dismissed. (Page 16)
Question 4 - does the disclosure statement, which was provided by Rodgers Holdings to Ms Bankier and which does not include the air conditioner as a fixture and fitting, entitle the applicant to any relief under s 6 or s 16C of the CTRSA Act for being misleading and deceptive? 67 The Disclosure Statement was provided by Rodgers Holdings to Ms Bankier in 2005. The applicant was not a party to the Disclosure Statement. Rodgers Holdings and Ms Bankier are not parties to this application. The applicant claims that the Disclosure Statement, as provided to her by the respondent's agent, Mr Rogers, is misleading and deceptive in that it does not include the air conditioner as a fixture and fitting provided by the landlord. 68 By way of background, a disclosure statement is required to set out certain matters as required by s 6 of the CTRSA Act. Under reg 4 of the CTRSA Regulations and Form 1, a disclosure statement must include certain details as atthe date of the disclosure statement. The details specified relate to a set of facts or a 'snapshot' of the proposed tenancy as at a particular date. 69 Section 6(1) of the CTRSA Act applies where a landlord either does not provide a disclosure statement before the lease is entered into, or where a disclosure statement is provided but it is incomplete or false or misleading. 70 In this case, on 19 July 2011, the applicant became the tenant under an assignment of the unexpired portion of the Lease. The respondent was not required, under s 6(6)(b) of the CTRSA Act, to provide a disclosure statement to the applicant on the assignment of the Lease. Accordingly, the applicant does not have any statutory right to make a claim against the respondent, under s 6(1) of the CTRSA Act, in relation to the Disclosure Statement. 71 The applicant also relies on s 16C of the CTRSA Act and claims that the Disclosure Statement, as provided by the respondent's agent, Mr Rogers, is misleading and deceptive in that it does not include the air conditioner. The applicant claims that the Disclosure Statement should show the air conditioner as a fixture and fitting provided by the landlord to the premises at the cost of the landlord. The applicant claims that the Disclosure Statement is false in this regard. The applicant has not identified the relief which she seeks under s 16D of the CTRSA Act beyond the Tribunal 'deeming' that the Disclosure Statement is misleading or deceptive. (Page 17)
72 The Disclosure Statement was not created by the respondent's agent, Mr Rogers. Rather, it was created by the former landlord and provided to a former tenant. The Disclosure Statement was created almost six years before the applicant was granted an assignment of the Lease. 73 Accordingly, the misleading or deceptive conduct alleged by the applicant could only arise from Mr Rogers providing or transmitting the Disclosure Statement dated 5 September 2005 to the applicant on or about 30 January 2013. 74 In the Tribunal's view based on the evidence available to it, the applicant's claim under s 16C of the CTRSA Act must fail. This is because, taken at its highest, even if the Tribunal is satisfied that the Disclosure Statement is misleading or deceptive, the applicant has not suffered any loss for which she would be entitled to compensation under s 16D of the CTRSA Act. This is because the terms of the Lease set out the applicant's obligations in relation to a range of matters, including the air conditioner. For example, as set out above, the applicant's repair and maintenance obligations in relation to the air conditioner are set out in the Lease, and they apply irrespective of who owns the air conditioner. Clause 14.2 is another example in the Lease which refers to the applicant removing all fixtures at the end of the Lease, other than the air conditioning equipment. 75 Further, a request by the applicant for the Tribunal to 'deem' that the Disclosure Statement is misleading or deceptive is relief in the form of a declaration. A declaration is not part of the 'other appropriate relief' under s 16D of the CTRSA Act. This is because the 'other appropriate relief' is viewed by the Tribunal as being relief which is ancillary to some principal relief. In this case, no principal relief in the form of compensation is available and, accordingly, no ancillary relief may be ordered by the Tribunal.
Costs and interest 76 In its letter dated 1 May 2013, the respondent's agent seeks an order for the costs associated with the application and interest on these costs. The amount of costs claimed is not stated. In relation to the claim for interest, the Tribunal has found that there is no outstanding amount owed by the applicant to the respondent. Accordingly, there is no basis for such a claim. (Page 18)
77 In relation to the costs application itself, in the Tribunal's view, there is not a sufficient basis to move from the presumption in s 87(1) of the SAT Act that each party should bear its own costs in a proceeding before the Tribunal. The application was not entirely without merit and the respective rights of the parties were not entirely clear: see Pearce & Anor and Germain [2007] WASAT 291 (S). In any event, there is no evidence before the Tribunal of the respondent having incurred any costs in relation to which any valid cost claim could be made.
Conclusion 78 For all of the above reasons, the applicant is not entitled to any relief under CTRSA Act.
Order 79 For the reasons given above, the Tribunal makes the following order: 1. The application is dismissed. |