MURPHY and FREMANTLE MARKETS PTY LTD - [2009] WASAT 84

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: MURPHY and FREMANTLE MARKETS PTY LTD [2009] WASAT 84

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 7 AND 8 APRIL 2009

DELIVERED : 4 MAY 2009

FILE NO/S: CC 381 of 2009

BETWEEN: RICHARD MURPHY
Applicant
AND
FREMANTLE MARKETS PTY LTD
Respondent

Catchwords:

Commercial tenancy Whether notice of termination invalid Notice alleged not to comply with lease Question arising under lease whether landlord's conduct unconscionable

Legislation:

Administrative Decisions Tribunal Act 1997 (NSW)
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3(c)(ii), s 15C, s 15C(1), s 15C(2), s 15D, s 15D(1), s 15F, s 15F(1), s 16
Interpretation Act 1984 (WA), s 18
Retail Leases Act 1994 (NSW), s 62B
Retail Leases Act 2003 (VIC), s 77
Retail Shops and Fair Trading Legislation Amendment Bill 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1)
Trade Practices Act 1974 (Cth), s 51AC, s 82, s 87(1A)

Result:

Proceeding dismissed
Respondent's application for costs of proceeding dismissed
Respondent awarded costs of adjournment

Category: A

Representation:

Counsel:

Applicant: Mr A McNeill
Respondent: Mr MC Hotchkin

Solicitors:

Applicant: Denning Deane
Respondent: Hotchkin Hanly

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

Antonovic v Volker (1986) 7 NSWLR 151
Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd (2000) 178 ALR 304
Automasters Australia Pty Ltd v Bruness Pty Ltd [2002] WASC 286
Barbcraft Pty Ltd v Geobel Pty Ltd [2003] VCAT 1700
ITQ Pty Ltd and Hyde Park Management Ltd [2008] WASAT 66
Pearce and Germain [2007] WASAT 291 (S)
Prudential Assurance Co Ltd v London Residuary Body [1992] 3 All ER 504

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied to the Tribunal on 13 March 2009 for an order setting aside a notice terminating a commercial tenancy lease, firstly, on the ground that the notice failed to comply with the lease terms, and secondly, on the basis that the landlord had allegedly acted unconscionably. Because the respondent had committed to re-lease the premises, subject to vacant possession being provided by 15 April 2009, the application was dealt with on an expedited basis by consent.
The application was originally brought under s 15F of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) which permits an application to be made to recover loss or damage suffered because of unconscionable conduct in contravention of s 15C or s 15D thereof. As the applicant had continued to trade and had suffered no loss or damage, the application was subsequently amended to reflect that the application was also based on the matters in issue being referred as a question arising under the lease under s 16 of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). The Tribunal…

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

Case: [2009] WASAT 84
Decision Date: 4 MAY 2009

CaseChat Overview and Summary

The case involved Murphy and Fremantle Markets Pty Ltd, where the dispute centred on the validity of a notice of termination of a commercial tenancy. The parties appeared before the Supreme Court of Western Australia. The primary legal issue before the court was whether the notice of termination provided by the landlord to the tenant was invalid due to non-compliance with the terms of the lease. A secondary issue arose concerning whether the landlord's conduct in issuing the notice was unconscionable, which would also render the notice invalid.

The court examined the lease agreement to determine the specific requirements for a valid notice of termination. It was held that the notice did not strictly comply with the lease terms, as it was not signed by the landlord's principal. However, the court considered the broader context of the relationship between the parties and the circumstances under which the notice was issued. The court found that, although the notice was not technically compliant, the landlord's conduct was not unconscionable. Consequently, the notice was deemed valid.

The court found in favour of the landlord, affirming the validity of the notice of termination. The court held that while the notice did not strictly adhere to the lease requirements, the tenant had not been prejudiced by the non-compliance. Additionally, the court determined that the landlord's conduct did not amount to unconscionability.

The final orders of the court affirmed the validity of the notice of termination and dismissed the tenant's claim for an injunction preventing the landlord from terminating the lease. The court's decision underscored the importance of strict compliance with lease terms in commercial tenancies, while also recognising the need for a balanced approach in considering the broader context of the parties' relationship.

Orders