MORRISON and KEYCORD PTY LTD - [2013] WASAT 174

MORRISON and KEYCORD PTY LTD [2013] WASAT 174

Last Update: 29/10/2013

MORRISON and KEYCORD PTY LTD [2013] WASAT 174
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 174
Act:	COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
Case No:	CC:1994/2012	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS L WARD (MEMBER)	Delivered:	24/10/2013
No of Pages:	18	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	REBECCA ANNE MORRISON KEYCORD PTY LTD
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
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
Case References:	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
Orders:	On the application determined on the documents by Member Lisa Ward, it is on 24 October 2013 ordered that: 1. The application is dismissed.
Summary:	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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MORRISON and KEYCORD PTY LTD [2013] WASAT 174
Case: [2013] WASAT 174
Decision Date

CaseChat Overview and Summary

The State Administrative Tribunal of Western Australia was called upon to decide a dispute between Rebecca Anne Morrison, the tenant, and Keycord Pty Ltd, the landlord, over the cost of repairs to an air conditioner and the door of a retail shop. The Tribunal found that it did not have jurisdiction to consider which party was responsible for the costs of replacing the external rear door because a certificate under s 25C of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) had not been issued. The Tribunal also found that the tenant 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. The Tribunal found that the tenant was 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. The application was dismissed.

Orders