Partnership Matthaus Van Der Feltz v Swami - [2023] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PARTNERSHIP MATTHAUS - VAN DER FELTZ -v- SWAMI [2023] WADC 74
CORAM:   EGAN DCJ
HEARD:   20 JULY 2022
DELIVERED          :   18 JULY 2023
FILE NO/S:   APP 14 of 2022
BETWEEN:   PARTNERSHIP MATTHAUS - VAN DER FELTZ
Appellant
AND
VARUNA SWAMI
First Respondent
FRANK TZAVELLAS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WARD
File Number            :   PER/GCLM/11573/2020

Catchwords:

Appeal - Magistrates Court - Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(1), s 40(3) - Full and final settlement - Proper construction - Turns on own facts

Legislation:

Nil

Result:

Appeal commenced within time
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr C S Williams
First Respondent	:	Mr J S Burton
Second Respondent	:	Mr J S Burton

Solicitors:

Appellant	:	Solomon Brothers
First Respondent	:	Cullen Macleod Lawyers
Second Respondent	:	Cullen Macleod Lawyers

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

Avopiling (WA) Pty Ltd v Central Systems Pty Ltd [2015] WASC 82
Balcomb v Brownlee [2015] NSWSC 361
Defendi v Chartstar Pty Ltd t/as Coletti Refrigeration and Air Conditioning [2011] WADC 42
Frigger v Murfett Legal Pty Ltd [No 2] [2017] WADC 7
Grossetti v Grossetti [2011] WADC 78
Hendersen v Hendersen (1843) 3 Hare 100; (1843) 67 ER 313
Jingalong Pty Ltd v Todd [2015] NSWCA 7
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1
Murphy v Yolanda Nominees Pty Ltd (Unreported, VSC, 11681 of 1991, 13 March 1992)
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Ray Mullins & Sons Pty Ltd v Skycorp Investments Pty Ltd [2011] WASCA 49
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Tuma Holdings Pty Ltd v Silverbay Enterprises Pty Ltd [2011] WADC 181
Wilson v Westpac Banking Corporation [2011] WADC 13

EGAN DCJ:

Overview

This is an appeal pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MC (CP) Act) against an order made by Magistrate Ward of the Magistrates Court of Western Australia (Magistrates Court) on 8 February 2022 in proceedings GCLM 11573 of 2020 (Appeal).
The Appeal is by way of rehearing, and to succeed the appellant (Appellant) must demonstrate error on the part of the learned magistrate: see Frigger v Murfett Legal Pty Ltd [No 2] [2017] WADC 7 [9] ‑ [15] (Bowden J).
Two grounds of appeal are raised by the Appellant in the Appeal, however a preliminary issue arises concerning whether the Appeal was commenced in time.
For the reasons set out below, I find that:
(a)the Appeal was commenced in time;
(b)Ground 2 of the Appeal fails;
(c)in light of (b), above, there is no need to consider Ground 1 of the Appeal; and
(d)as a result, the Appeal is dismissed.
I will consider the issue of whether the Appeal was commenced in time in the first instance. Thereafter, I will discuss the background to the Appeal, after which I will turn to consider the second ground of appeal.

Time to appeal

As stated above, a preliminary issue arises in the Appeal concerning whether it was commenced in time.
Section 40(3) of the MC (CP) Act provides, in effect, that an appeal cannot be commenced more than 21 days after the date of judgment, unless the court gives leave to do so.
An issue arises as to when the date of judgment occurred.
The Appellant submits that the date of judgment was the date when the learned magistrate made final orders on 8 February 2022 following the parties filing competing minutes after the hearing.
Conversely, the respondents (Respondents) submit that the date of judgment was 23 December 2021, being the date when the learned magistrate both delivered her verbal reasons, and made orders which provided, relevantly, at Order 1, that 'the Application lodged by [the respondents] on 9 August 2021 is granted in part'. The Respondents submit that it is the verbal reasons upon which the Appellant relies to demonstrate the errors of law upon which the Appellant appeals, and it is appropriate that the date of judgment be the date when the reasons were given.
The appeal notice was filed on 25 February 2022 which was, of course, more than 21 days from 23 December 2021; however, it was 17 days from the learned magistrate's orders dated 8 February 2022. It follows that should the Appellant's position be preferred then the Appeal is within time, however if the Respondents' position is preferred, then the Respondents argue that the Appeal is out of time and should be dismissed.
In the event of a finding that the Appeal is out of time, then the Appellant submits that the court should grant an extension of time within which the Appeal should be commenced (although no specific power is relied upon by the Appellant granting that power to the court), whereas the Respondents submit that the court has no discretion to extend the time to commence an appeal, and as such the Appeal should again be dismissed.
In the circumstances, and in order to determine the issue, it is necessary to consider that which occurred before the learned magistrate on 23 December 2021. In this regard, as is apparent from the transcript of the proceedings before the learned magistrate, immediately prior to the making of Order 1 (which, as I have said, is the order replied upon by the Respondents) an exchange took place between her Honour and the parties' representatives concerning the precise detail of the order (and the orders in general). This is that exchange:
HER HONOUR: One potential order is that the application lodged by the defendants on 9 August 2021 is granted in part. Order 2, summary judgment is given against the claimant in relation to part of the claim, namely, the breach of lease aspects of the amended statement of claim and, in particular, paragraphs 2 to 4, 17 to 20. And I will hear the parties in relation to which aspects need to be struck out. And I will also hear the parties in relation to costs.
BURTON, MR: Thank you, your Honour. This is Mr Burton speaking.
HER HONOUR: Yes, Mr Burton. I appreciate you may or may not be in the office at the moment - as to whether you - I
HER HONOUR: want to give you time to submit draft orders or - I'm not sure - - -
BURTON, MR: I think it might be more appropriate to consider - I am in the office but obviously just having heard quite detailed reasons for you and having to consider the various paragraphs of the pleading, I would perhaps seek that we have the ability to put on a proposed minute of orders by a date in January next year. And I would propose that date be 17 January if that allows enough time for my friend to do the same.
HER HONOUR: Yes. So by 17 January, parties to confer …
BURTON, MR: Yes. With a view to putting on an agreed minute. Alternatively, to submit competing minutes - - -
HER HONOUR: Yes.
BURTON, MR: - - - which would be heard on the papers.
HER HONOUR: Mr Williams.
WILLIAMS, MR: I couldn't quibble with that course, your Honour. In circumstances where there is a partial summary judgment, there is going to need to be some care in formulation of the orders and perhaps referencing them to specific paragraphs of the current iteration of the pleadings. It's appropriate that it be done with a degree of care and not on the hop this afternoon.
HER HONOUR: Yes.
WILLIAMS, MR: And my friend's proposed timeframe is sensible so far as we see it.
HER HONOUR: So by 17 January 2022, both parties to confer with respect to proposed orders in relation to the application of 9 August 2021. To provide said orders by that date or each parties' respective orders. Is that appropriate. So the first order will be:
(1)The application lodged by the defendants on 9 August 2021 is granted in part.
And then:
(2)By 17 January, both parties to confer with respect to proposed orders in relation to the application to provide the consent orders by the 17th or the parties' respective orders.
The parties subsequently filed competing minutes concerning the precise detail of Order 1 (albeit not within the time specified by the learned magistrate, however nothing turns on that issue) resulting in the learned magistrate making orders on 8 February 2020 in the following terms:
1.Pursuant to section 18(1) and 18(5) of the Magistrates Court (Civil Proceedings) Act 2004 judgment is given in favour of the Defendants against the claim made by the Claimant in respect of the amended Statement of Claim lodged 28 June 2021 (ASOC):
1.1paragraph 3.3 of the 'summary of facts relevant to the claim' section;
1.2paragraph 3.6 of the 'summary of facts relevant to the claim' section;
1.3paragraph 4 of the 'summary of facts relevant to the claim' section;
1.4paragraph 17 of the 'summary of facts relevant to the claim' section;
1.5paragraph 18 of the 'summary of facts relevant to the claim' section;
1.6the word 18 in paragraph 28 of the 'summary of facts relevant to the claim' section;
1.7paragraph 1 of the 'basic contentions of the party' section; and
1.8paragraph 1 of the 'remedy or relief claimed' section;
2.The paragraphs of the ASOC referred to in paragraph 1 above be and hereby are struck out.
3.The balance of the Defendant's Application is dismissed.
4.The Claimant is to pay 60% of the Defendant's costs of the Application, fixed in the sum of $2,017.00 ($1,800.00 item (10)(a) plus court costs $217.00).
In support of the Appellant's submission that the learned magistrate made final orders on 8 February 2022 following the parties filing competing minutes after the hearing, the Appellant relies on the decision of Ray Mullins & Sons Pty Ltd v Skycorp Investments Pty Ltd [2011] WASCA 49 (Ray Mullins & Sons) as authority for the proposition that the time allowed for commencing an appeal is calculated from the date on which the orders appealed against were made, not from when the reasons were provided.
In Ray Mullins & Sons, an issue arose concerning whether an extension of time was required to commence the appeal. This is because after the trial, the trial judge published reasons for his decision 'on an interim basis' and left it to the parties to provide to the court a minute of orders giving effect to the decision. Orders were not in fact made until some (significant) time later. In his decision, Buss JA (with whom Newnes JA & Murphy JA agreed) stated as follows:
I am satisfied that the [appellant] does not require an extension of time. Although the trial judge published his reasons on 31 October 2006, orders were not made until 9 September 2009. The notice of appeal was filed and served on 16 September 2009. The time allowed for commencing an appeal (being 21 days) is calculated from the date on which the orders appealed against were made.
Whilst the Appellant did not submit that Order 1 made on 23 December 2021 was an interim order, it did submit that the orders were not final until 8 February 2022, and that it is those orders which are the subject of the Appeal.
As I have already stated, the Respondents submit not only that it is the verbal reasons of the learned magistrate (coupled with Order 1 of 23 December 2021) which, in effect, constitutes the date of judgment, but also that the court does not have the power to extend time to commence an appeal beyond the 21‑day appeal period set out and contained in the MC (CP) Act.
The Respondents' second submission is of course relevant in the event of a finding that the date of judgment is in fact 23 December 2021. In this regard, the Respondents rely upon the decision of Tuma Holdings Pty Ltd v Silverbay Enterprises Pty Ltd [2011] WADC 181 (Tuma Holdings) which is a decision of this court (and as such not binding upon me) concerning whether this court has the power to extend timeframes within which to appeal a decision from the Magistrates Court. In that case Sweeney DCJ stated as follows:
3The appellant also filed a chamber summons dated 30 March 2011 seeking an extension of time within which to appeal. Stavrianou DCJ drew the parties' attention to the decision of Scott DCJ in Grossetti v Grossetti [2011] WADC 78, (Grossetti) in which his Honour held there was no power for this court to extend time within which to appeal from the Magistrates Court.  It is submitted in written submissions that the decision is binding upon me.  It is not binding upon me in fact, being a decision of a single judge of this court.
4There are two conflicting lines of decisions in this area. The first decision that I am aware of was a decision of Keen DCJ in Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80, in which his Honour decided there was power to extend time in which to appeal from a decision from the Magistrates Court. The next decision was my own in McKeon v Knapton [2009] WADC 170, in which I respectfully declined to follow the decision in Wise.
5My decision was not followed by Eaton DCJ in Lau v Chua [2009] WADC 172. Since then however it has been followed by Braddock DCJ in Wilson v Westpac Banking Corporation [2011] WADC 13 (Wilson) and by Wager DCJ in Defendi v Chartstar Pty Ltd [2011] WADC 42 (Defendi) and further decisions by her Honour.  Grossetti v Grossetti, the decision of Scott DCJ, is another decision consistent with that view.
6So apart from certain dicta which I will return to, I was unlikely to disagree with Scott DCJ's decision, given the view I had taken in McKeon v Knapton.  And my view remains the same, notwithstanding recent amendments to the District Court Rules 2005.
7Section 40 Magistrates Court (Civil Proceedings) Act 2004 confers the right of appeal against a judgment of the Magistrates Court on this Court.  It provides:
40. Appeal from Magistrates Court to District Court
(1)A party to a case that is not a minor case may appeal to the District Court against -
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
…
(3)The appeal must -
(a)be commenced within 21 days after the date of judgment; and
(b)be conducted in accordance with rules of court made by the District Court
8The appeal must therefore be conducted according to the District Court Rules.  Its commencement however is dictated by the Act.
9At the time I decided McKeon v Knapton, r 51(4) of the District Court Rules provided:
(4)A notice of appeal must be filed and served within 21 days after the date of the appealable decision.
10In that decision I gave detailed reasons as to why I concluded that the time limit prescribed by s 40 Magistrates Court (Civil Proceedings) Act was mandatory and why O 3 r 5 of the Rules of the Supreme Court 1971, which empowers the court to extend the period within which a person is required by 'these Rules, or by any judgment, order, or direction, to do any act in any proceedings', did not give power to extend time.
11At [24] and [25] I stated:
The flaw in the argument, however, and this really is the nub of the matter, is that the mandatory 21 days time limit prescribed by the Magistrates Court (Civil Proceedings) Act is not just a period within which a person is required or authorised by the Rules of the Supreme Court, or for that matter the District Court Rules by incorporation, or by any judgment, order, or direction, to do any act in any proceedings.  It is the time limit set in the primary legislation creating the right of appeal. Order 3 does not empower the court to extend a period within which a person is required by an Act to do something. And the Act requires the appellant to commence proceedings within 21 days.
If the appeal is a nullity, having been filed out of time, there are no proceedings.  The Magistrates Court (Civil Proceedings) Act provides only that the appeal is to be conducted in accordance with rules of court.  The District Court rule providing the manner in which the appeal may be commenced does not take precedence over the empowering section itself which provides the right of appeal.  Nor does it in fact give power to extend the time.
12My view on that has not changed. I do not accept the submission made to me during this hearing that 'direction' in O 3 r 5 encompasses a time limit set by a statute.
13If the Act creating the right of appeal is silent as to when that appeal must be commenced, then the time limit is that set by the rules of court.  But if the enabling Act has set a mandatory time limit, then the rules of court as to the commencement of the appeal have no work to do and cannot supersede the Act.
It is against all the foregoing that I am left to decide whether the date of judgment for the purposes of s 40(3) of the MC (CP) Act is 23 December 2021 or, alternatively, 8 February 2022.
In this regard the Appellant's position is to be clearly preferred.
Order 1 of the orders made by the learned magistrate on 23 December 2021 do not provide any certainty as to what part or parts of the Defendants' (Respondents') Application was or were being granted, and so the Appellant would not have been in a position to consider what part or parts could or should be the subject of an appeal; rather, that detail could only become known as from the date when the learned magistrate made (final) orders on 8 February 2022. Absent such orders or, alternatively, sufficiently clear orders which detail the ultimate outcome of the hearing, in this case I do not consider a reasoned decision sufficient to constitute a judgment for the purposes of determining when time should run on the commencement of an appeal. This is not only consistent with the decision in Ray Mullins & Sons, but also, given the facts of this case, (particularly the form of the orders made by the learned magistrate on 8 February 2022) constitutes both a common sense and pragmatic approach to what should occur given the delay in the provision of the learned magistrate's orders.
It follows that I find that for the purposes of s 40(3) of the MC (CP) Act, the date of judgment is 8 February 2022, and, as such, I am satisfied that the Appeal was commenced within time.
Given my above finding, it is not necessary for me to consider whether I have the power to extend the time for appeal. Nonetheless, I take this opportunity to respectfully agree with Sweeney DCJ in Tuma Holding and, by extension, Braddock DCJ in Wilson v Westpac Banking Corporation [2011] WADC 13, Wager DCJ (as her Honour then was) in Defendi v Chartstar Pty Ltd t/as Coletti Refrigeration and Air Conditioning [2011] WADC 42 and Scott DCJ in Grossetti v Grossetti [2011] WADC 78, for the reasons set out and contained within that part of Sweeney DCJ's judgment reproduced at [19] above.
I would add that in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 [37], Brennan CJ stated:
A provision which directs the manner of the exercise of a power is quite different from the provision which prescribes an act or the occurrence of an event as a condition of the power - that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event that occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied. A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity.
The use of the word 'must' in s 40(3)(a) of the MC (CP) Act is, in my view, language of a mandatory or imperative nature, or alternatively, is suggestive of a mandatory or imperative nature, which is not displaced by the context of either the section or the other provisions of the legislation. As such, I do not consider that the court has a discretion to extend the period within which to apply beyond the period specified in the section.

Background

I turn then to the substance of the Appeal, and set out below the relevant background.
On or about 20 August 2013, the Respondents purchased a coffee drive‑through business (Business) from the Appellant for a sum of money, the amount of which is not material for present purposes. The Business was fully operational at the time of the purchase, and it operated from premises located at the corner of 3 Guthrie Street and 42 King Street in Osborne Park (Premises).
The Appellant was the sublessor of the Premises, and it entered into a sublease with the Respondents (Lease) pursuant to which the Respondents agreed to pay to the Appellant the total amount of rent, electricity and water, by equal successive weekly payments on the first day of every week.
The Lease was dated 14 August 2013, and the initial term was for a period of 2 years and 8 months expiring on 20 April 2016, although there was a 5‑year option to renew expiring on 30 April 2021. There was no issue between the parties that at all material times the Respondents were sublessees under the Lease.
On 30 March 2020, the 'emergency period' as defined in s 3 of the Commercial Tenancies (COVID‑19 Response) Act 2020 (WA) (COVID Act) commenced.
The COVID Act introduced a range of measures to provide for urgent relief for commercial tenants in response to the COVID‑19 pandemic. Amongst other things, the COVID Act provided a prohibition on landlords progressing proceedings against a tenant of a small commercial lease for a breach that occurred after the COVID‑19 restrictions were implemented.
By s 13 of the COVID Act, a head of power was created for the regulations of the COVID Act to adopt a code of conduct (based on the National Cabinet Mandatory Code of Conduct) relating to commercial leasing principles during the COVID‑19 pandemic. In broad terms, the code of conduct required landlords and tenants to negotiate in good faith and agree to measures for the provision of rent relief during the COVID‑19 pandemic.

By s 15 of the COVID Act, where a dispute arose between the landlord and the tenant, either party could apply to the State Administrative Tribunal (SAT) to determine the matter. That section further provides, in effect, that any application to SAT must be made during the emergency period which was defined (by virtue of s 3) to mean 'the period beginning on 30 March 2020 and ending on the day to be prescribed by regulation', and 'if a day is not prescribed, the last day of the emergency period is to be before 29 September 2020'.
On or about 28 February 2020, and because of a reduction in trade caused by the COVID‑19 pandemic, the Respondents ceased making the weekly payments to the Appellant, and withheld half of the amount payable each week. Notwithstanding the Respondents' assertions that the trade of the Business had been negatively affected by the COVID‑19 pandemic, the Appellant believed that the Business continued to do well.
In or around April 2020, the parties negotiated toward the possible grant of rent relief to the Respondents, however no agreement was reached.
On 7 September 2020, the parties each, independently, made applications to SAT.
The Appellant's application was SAT proceedings CC 1103 of 2020 (the Appellant's SAT Application), whilst the Respondents' application was SAT proceedings CC 1104 of 2020 (the Respondents' SAT Application).
By the Appellant's SAT Application, the Appellant set out what decision(s) it wanted SAT to make; namely, termination of the lease, payment of rent arrears, utility charges and all other outstanding amounts; and orders that the Respondents' breaches were not a result of financial hardship.
The Appellant's SAT Application did not specify the amount that the Appellant was claiming for rent arrears, utility charges and other outstanding amounts.
By the Respondents' SAT Application, the Respondents set out what decision(s) they wanted SAT to make, including, but not limited to: rent relief during the COVID‑19 pandemic, a 2‑year extension to pay any amount deferred, and to get some money back from the Appellant as a consequence of loss of business during the COVID‑19 pandemic due to a downturn in business.
The Respondents' SAT Application did not specify how much rent relief was being sought or how much money was being sought back from the Appellant.
On 1 September 2020, both the Appellant's SAT Application and the Respondents' SAT Application were the subject of a directions hearing before (the late) Senior Member Eddy of SAT.
The parties were unrepresented at the hearing, and after some discussion with them (which I will return to in further detail in due course) Senior Member Eddy ordered that they participate in a compulsory mediation.
On 30 September 2020, the compulsory mediation took place before Member De Villiers of SAT, and again, the parties were unrepresented.
At the conclusion of the mediation both the Appellant's SAT Application and the Respondents' SAT Application were settled, and consent orders were drawn up in the following terms:
In the matters of CC 1104 2020 and CC 1103 2020, the parties consent on 30 September 2020 to the following orders being made by the Tribunal in full and final settlement of the proceedings:
1.The lease the subject of the proceeding is terminated by agreement at 4 pm on 9 October 2020.
2.The tenant shall give vacant possession of the premises the subject of the lease and hand over the keys for all locks by not later than 4 pm on 9 October 2020.
3.The tenant undertakes not to remove any plant or equipment from the premises and not cause any damage to the premises to ensure that the business remains fully operational as a going concern.
4.The landlord shall pay to the tenant the amount of $21,000 in full and final settlement of the proceeding in regard to any claim or action the tenant may have under the lease or otherwise for rent relief; return of bond or any other payment for early termination of the lease. The amount shall be paid in two instalments namely: $10,000 shall be paid by not later than 4 pm on 16 October 2020 and $11,000 shall be paid by not later than 4 pm on 30 October 2020.

(emphasis added)

Both the Appellant and the Respondents signed those consent orders on 30 September 2020.
On 1 October 2020, SAT made orders in terms of the consent orders which had been signed by the parties on 30 September 2020 (SAT Orders).
Given that the SAT Orders were made in exactly the same terms as the signed consent orders, a reference in this judgment to the SAT Orders should also be taken as a reference to the signed consent orders, and I note that no distinction between the two was raised by either party at the Appeal.
A number of things can be said about the SAT Orders:
(a)First and foremost, they expressly state, in the chapeau, that they relate to both the Appellant's SAT Application (being CC 1104 220) and the Respondents' SAT Application (being CC 1103 2020);
(b)Secondly, they also expressly state, again in the chapeau, that the parties were consenting to orders in 'full and final settlement' of both the Appellant's SAT Application (being CC 1104 220) and the Respondents' SAT Application (being CC 1103 2020);
(c)Thirdly, they do not contain any express demur, qualification, reservation, or exception to what is captured by the settlement; that is to say, there is no express carve out for any head of claim, aspect, or part of either the Appellant's SAT Application or the Respondents' SAT Application;
(d)Fourthly, the Appellant, by Orders 1 and 2, had secured both a termination of the lease and vacant possession of the Premises by a particular date, in addition to obtaining an undertaking from the Respondents (by virtue of Order 3) that the Respondents would not remove any plant or equipment from the premises or cause any damage to the Premises; and
(e)Lastly, by Order 4, the Respondents had secured agreement from the Appellant that the Appellant would pay a sum of money ($21,000) to the Respondents in regard to any claim or action which the Respondents might have against the Appellant.
It is notable that by the SAT Orders, each of the Appellant and the Respondents had secured some, but not all, of that which they were seeking as part of their respective SAT applications.
It is also notable that the SAT Orders were made, by consent, in circumstances where the Appellant had made its position very clear to Senior Member Eddy on 1 September 2020 that it did not consider that the mediation would succeed.
Given both the history of these proceedings and what is in issue in the Appeal, and leaving aside that which is stated expressly in the chapeau, it is notable that Order 4 itself does not expressly state that the payment of the sum of money by the Appellant to the Respondents was in full and final settlement of any claim which both the Appellant and the Respondents might have under the terms of the Lease; rather, as I have stated in [50(e)], above, and as is set out in Order 4 itself, it is for any claim or action which the Respondents have under the Lease. I will return to this issue in due course when discussing Ground 2 of the Appeal.
In any event, matters did not go smoothly thereafter as there were issues between the parties concerning plant and equipment and the business name.
On or about 10 October 2020 - which was 10 days after the mediation took place and the SAT Orders were made by consent, and one day after the Respondents were to deliver vacant possession of the Premises to the Appellant - the Appellant forwarded to the Respondents a Letter of Demand which stated, relevantly, as follows:
We refer to our invoice number 141 dated 27 April 2020 for rent and utility charges.
We received your part payments towards invoice 141 for a total of $13857.44 out of $35,541.21 owed for 23 weeks since 1 May 2020. This leaves $21,683.77 outstanding on this invoice.
We will begin legal action against you without further notice unless we receive full payment before 30 October 2020.
On 28 October 2020, the Respondents commenced proceedings in the Magistrates Court to, in effect, enforce Order 4 of the SAT Orders, as the Appellant had not made payment to the Respondents as contemplated by that order.
Sometime later, on or about 2 December 2020, the Appellant commenced proceedings in the Magistrates Court claiming, amongst other things, an amount of money for the non‑payment of rent and utilities (which is the $21,683.77 referred to in the Letter of Demand referred to in [55], above). In an affidavit sworn 3 December 2020 by Mr Van Der Feltz of the Appellant, some context is provided as to why each of the parties commenced proceedings in the Magistrates Court. Relevantly, the affidavit states as follows:
3.[The Respondents] failed to comply with the State Administrative Tribunal orders made on 30 September 2020 in matters CC 1103 [of 2020 sic] and CC 1104 of 2020.
4.The [Respondents] breached the orders; They removed the plant and equipment, caused damage, left no consumables, nothing to make or sell coffee with and even took the batteries from the aircon remote.
5.[The Respondents] left a lot of rubbish and everything was filthy.
6.It was impossible to operate the [Business].
7.[The Respondents] did not 'ensure that the [Business] remains fully operational as a going concern' as ordered but despite their failures to comply with the orders still claim the settlement amount.
8.[The Respondents] continue to use the business name Café au Lait.
9.[The Appellant] emailed [the Respondents] on 10 October 2020 the day after handover about their failure to comply and that [the Appellant] would not be paying would not be paying the $21,000.00.
10.[The Appellant] also sent [the Respondents] another letter of demand for rent and utility charges in the amount of $21,683.77 outstanding on our invoice 141.
The Appellant's Amended Statement of General Procedure Claim dated 28 June 2021, filed in the Magistrates Court proceedings, provided detail of the Appellant's claim in the Magistrates Court. Relevantly, it stated as follows:
1.The claimant is a partnership between Ric van der Platz and Stephan Matthus (ABN 67 378 080 769).
2.The claimant, as sub-lessor and the defendants as sublessees, entered into a sublease ('the Lease') of the [Premises].
3.The Lease contained, inter alia, express terms which on their proper construction were to the following effect:
…
3.3the defendants were to pay to the claimant the rent, electricity and water charges per annum by equal successive weekly payments in advance on the first day of every week (clause 3.1).
In addition, the Appellant alleged further that:
[O]n or about 20 April 2020, the [Respondents] unilaterally began to withhold 50% of the rent and utilities of the rent and utilities payable under the Lease, and in so doing failed to pay to the [Appellant] the following moneys that were payable to the claimants pursuant to the Lease.
The Appellant then set out a table of the weekly rent due for each week in the period 24 April 2020 through to 9 October 2020. For each of those weeks that table sets out the amount of unpaid rent due, the unpaid utility charges, the unpaid GST, and the total amount unpaid. The total amounts unpaid for each week were then totalled and expressed to be $25,546.88.
The Appellant's Amended Statement of General Procedure Claim then alleged that by reason of the matters pleaded therein, and in breach of the terms of the Lease, the Respondents failed to pay the Appellant the rent and utilities due and payable under the Lease.
Finally, the Appellant alleged that, by reason of that breach, the Respondents were indebted to the Appellant in the amount of $25,546.88. The Appellant also advanced other heads of claim within its Amended Statement of General Procedure Claim but they are immaterial for present purposes.
In an Amended Statement of Defence to the General Procedure Claim dated 8 July 2021, the Respondents denied that they had breached the Lease as alleged by the Appellant, and pleaded that the parties had consented to orders disposing of both the Appellant's SAT Application and the Respondents' SAT Application, and that by the principles of res judicata and issue estoppel, the Appellant was estopped from arguing those matters again in the Magistrates Court, and estopped from claiming the $25,546.88 for the rent and utilities as alleged.
The learned magistrate, in her decision dated 23 December 2021, stated, relevantly, as follows:
The SAT orders were final orders in full and final settlement of the proceedings, that is, the whole of the SAT proceedings and identical parties were involved in the SAT proceedings as in this court. I also accept that even if the [Appellant] were able to litigate the rent arrears in this court (indistinct) estoppel arises as these matters were capable of resolution in SAT as a financial hardship dispute, that is, when the landlord was not satisfied that the [Respondents] had suffered financial hardship such that they were entitled to waive rental or a deferral for some part or all of the emergency period.
I find that the SAT proceedings were fully and finally settled by way of the SAT orders dated 30 September 2020. And by the operation of the principles of issue estoppel and res judicata, the [Appellant] cannot re‑argue these matters in the Magistrates Court and I also refer to the case that the [Respondents] took me to [Helmers] v Como [2014] WASC 394.
Relevantly, the learned magistrate then granted summary judgment in favour of the Respondents in relation to the Appellant's claim under the Lease for the non‑payment of rent and utilities.
The Appellant, not happy with the learned magistrate's decision, appealed that decision.

Grounds of appeal generally

The Appellant relies on two grounds of appeal. It is convenient to deal with each of them in turn.

Ground 1

Ground 1 alleges that the learned magistrate fell into error by conflating the absence of the exercise by SAT of a power to require payment by a tenant of rent during the emergency period with a final determination of the landlord's entitlement to payment of such rent.

Ground 2

Ground 2 alleges that the learned magistrate erred in finding that the SAT Orders finally determined the Appellant's claim for arrears of rent and outgoings (which, for the sake of convenience, I will collectively refer to as Rent Arrears).
There is no dispute between the parties that the Rent Arrears are the very same arrears of rent and outgoings (or a portion of it) that the Appellant was claiming in the Appellant's SAT Application.
At the hearing, counsel for the Appellant conceded, appropriately in my view, that if Ground 2 failed there was no need for the court to 'delve into' or consider Ground 1. This is because if the SAT Orders captured the Appellant's claim for Rent Arrears, then that is the end of the matter.
On that basis it is convenient that I deal with Ground 2 in the first instance, and in doing so I will set out the parties' respective positions.

Ground 2

The Appellant's submissions

In support of this ground, the Appellant submits that the SAT Orders need to be construed in accordance with the provisions of both the COVID Act and the Commercial Tenancies (COVID‑19 Response) Regulations 2020 (WA), and that by virtue of s 17 of the COVID Act, SAT could refuse to make an order for payment of rent for one of two reasons: first, a determination that no rent was then payable; or secondly, a determination that the Appellant ought not to recover the rent until the conclusion of the 'emergency period'.
The Appellant submits further that as the SAT Orders were made with the consent of the parties following agreement reached during the course of compulsory mediation (and were not the subject of any reasons given by the SAT), the only source to which regard can be had to construe the orders is the SAT Orders themselves. The Appellant adds that the SAT Orders are to be construed in light of the context in which they were made.
The Appellant then submits that:
(a)Order 1 of the SAT Orders provided for the early termination of the Lease, whilst Order 4 provided for the payment by the Appellant to the Respondents of a sum of money;
(b)Order 4 of the SAT Orders is expressed to be in full and final settlement of the proceedings in regard to any claim which the Respondents have under the lease or otherwise for rent relief and the like;
(c)Order 4 of the SAT Orders did not recite that the amount payable by the Appellant to the Respondents was a net amount derived by taking claims or actions the Respondents might have and deducting that amount from claims for rent, utilities and the like which the Appellant might have; rather, Order 4 expressly stated that the payment of monies was provided for settlement of claims or actions that 'the [Respondents] may have' (noting that there is no reference to the Appellant's claims); and
(d)In those circumstances, 'the SAT Orders cannot be construed as determining the entitlement of the [Appellant] to pursue a claim [against the Respondents] for [Rent Arrears] after the emergency period had ended'.
The Appellant's submission, therefore, effectively proceeds on the basis that, properly construed, the Appellant's claim for Rent Arrears was not captured by the SAT Orders.
In its submissions, little attention is paid by the Appellant to either the work done by the expression 'full and final settlement' in the chapeau to the SAT Orders, or for that matter to the surrounding circumstances, notwithstanding the submission that the SAT Orders need to be construed in light of the context in which they were made. Nonetheless, both of these matters are important considerations in the context of the Appeal and I will return to each of them in due course.

The Respondents' submissions

The Respondents submit, first, that there was no express or implied excision by SAT of the Appellant's claim for Rent Arrears; and secondly, that the Appellant's claim for Rent Arrears was captured by the SAT Orders by reason of the fact that they were in 'full and final settlement' of both of the Appellant's SAT Application and the Respondents' SAT Application.
As far as the first of the Respondents' submissions is concerned, I note for completeness that, in the Appeal, the Appellant did not contend that the claim for Rent Arrears was expressly or impliedly excised from the SAT Orders, although of course, that was an argument which was advanced by the Appellant before the learned magistrate. Nonetheless, the clear thrust of the Respondents' second submission was that the SAT Orders, and the signed consent orders before them, properly construed, clearly captured all claims the Appellant had against the Respondents, that included the Appellant's claim for Rent Arrears.
Finally, the Respondents further submitted that SAT had jurisdiction to settle both the Appellant's SAT Application and the Respondents' SAT Application in their totality. As this submission was conceded by the Appellant at the hearing of the Appeal, I will accept it as correct and proceed accordingly.
Against this background, I turn to consider whether, on a proper construction, the SAT Orders captured the Appellant's claim for Rent Arrears.
In performing this task, I have had regard to the decision in Jingalong Pty Ltd v Todd [2015] NSWCA 7 (Jingalong) where, relevantly, the court was called upon to consider whether a settlement agreement constituted a binding and enforceable contract. In that case, Sackville AJA (with whom Meagher JA & Leeming JA agreed) stated at [69] as follows:
Each agreement must be construed in accordance with accepted principles of construction: see Scaffidi v Perpetual Trustees Victoria Ltd at [27]. These principles are well established. They require the court to assess the intention of the parties objectively, having regard to the language they have used, the surrounding circumstances known to the parties and the objects the agreement is intended to secure: Taylor v Johnson [1983] HCA 5; 151 CLR 422 at 428 (Mason ACJ, Murphy and Deane JJ); Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] per curiam; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40]-[41] per curiam; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA3; 234 CLR 151 at [8] (Gleeson CJ).
In light of the above, and in order to determine whether the Appellant's claim for Rent Arrears was captured by the terms of the SAT Orders, I will consider:
(a)first, the language used in the SAT Orders;
(b)secondly, the circumstances surrounding the making of the SAT Orders; and
(c)thirdly, the objects the SAT Orders intended to secure.

The language used

As noted above, the chapeau to the SAT Orders expressly provide that the parties consent to the SAT Orders 'in full and final settlement of the proceedings', and those proceedings are expressly stated to be both the Appellant's SAT Application and the Respondents' SAT Application.
Neither the Appellant nor the Respondents addressed the meaning of 'full and final settlement' in either their written or oral submissions. It is both convenient and appropriate that I do so now.
At the outset, I note that Foskett D, Foskett on Compromise (9^th ed, 2019) [5-22] observes that:

It is important to emphasise also that reference to cases in which the court has reached a particular conclusion in relation to a particular word or phrase will be of limited assistance in other cases. In this area, in particular authorities must be read in they context of their particular facts. That being said, certain phrases, hallowed by long and frequent usage, are likely to receive substantially the same response by way of construction in most compromises in which they appear. An obvious example would be the well‑established formulae 'in full and final settlement of all claims [C] has or may have arising from the accident'.

Notwithstanding that cases must be viewed in context of their particular facts, a useful case is that of Murphy v Yolanda Nominees Pty Ltd (Unreported, VSC, 11681 of 1991, 13 March 1992) (Nathan J) (Murphy v Yolanda). In that case, the plaintiffs issued proceedings against the defendant arising from an alleged breach of contract. The proceedings were adjourned as the defendant was not ready to proceed, and the magistrate ordered the defendant pay to the plaintiffs the sum of $700 costs. The litigation proceeded to a hearing at which time the parties had entered negotiations. A consent order was made by the learned magistrate in words stating the 'Defendant … pay to the plaintiff the sum of $4,500 in full and final settlement'. A dispute then arose surrounding whether the payment of $4,500 in full and final settlement disentitled the plaintiffs to the unpaid $700 in costs ordered previously. In his decision, Nathan J considered the meaning of full and final settlement, and at [2] stated as follows:
In my view, the conjunction 'and' is operative and to be given full force and effect. The word is 'full' which in my view means 'complete' or 'total'. 'Final' means 'together with', or 'in addition to' the 'completeness' covered by the word 'full'. 'Final' carries with it the notion of a conclusion, a bringing to an end of the litigation between the parties. When the question is asked, 'What is the settlement in "full and final settlement" of?', the answer must be given, 'Of the claim and all litigious issue which have previously arisen between the parties'. It supersedes any outstanding Court Orders already pronounced. The parties can be presumed, in their negotiating process, to have had the entire range of issues in dispute before them. Accordingly, in that context, a settlement when ultimately pronounced to be in 'full and final settlement', it must be assumed, in my view, as a matter of compelling logic, to it be the final and complete dispatch of all the issues then outstanding. It necessarily encompasses and embraces prior Court Orders in whichever direction they may have been pronounced'.
(emphasis added)
His Honour then moved on to consider at [3] the view which an ordinary bystander might have, stating:
What would the ordinary bystander say of a settlement of a claim which recited the terms 'in full and final'. It is a commonplace to say there could not be more absolute terms. It would be difficult to conceive of English words less equivocal than 'full and final'. In my view, it is not open to one of the parties to a contract to appear after its conclusion and say, 'I forgot about this', or 'I didn't give enough weight to that', or as has been pronounced by the High Court, it is not open to a party to say, 'I really didn't intend to enter into contractual arrangements because I had this secret reservation in my mind at the time'. The subjective view of the parties is not persuasive. Therefore, whether the [plaintiff] … forgot or failed to give due deference to the existence of the previous order is immaterial.
…
It has been necessary to pronounce this judgment with some degree of vigour as the words 'full and final settlement' have not been judicially considered in the context of upholding a Court Order disposing of litigation between the parties.
(Emphasis added)
His Honour also observed that floodgates would be opened if orders pronounced prior to a 'full and final settlement' each had a separate life and continued beyond the full and final settlement. Such a view was seen by his Honour to be unsatisfactory, and in light of public policy and common sense, the term 'in full and final settlement' should be given unimpeded force.
The phrase 'full and final settlement' was also considered in Balcomb v Brownlee [2015] NSWSC 361, which was a case involving the settlement of proceedings commenced under the Succession Act2006 (NSW). The proceedings were settled by an exchange of correspondence between the respective parties' solicitors where the expression 'full and final settlement' was used. A dispute then arose as to whether, by the terms of the settlement, the claim under the Succession Act was completely exhausted. In his decision, Slattery J observed at [46] that:
the phrase 'full and final settlement' meant that a settlement would exhaust the claim completely and conclude the litigation between the parties.
His Honour went on to make some observations about the settlement agreement in that case, stating at [49] as follows:
In light of the agreement's purpose of giving full and final settlement, the agreement cannot be construed as obliging the plaintiff merely to discontinue the proceedings or to effect a dismissal by the parties' consent, as the plaintiff contends. Neither of those outcomes would achieve the requisite finality and fullness of settlement that the parties' agreement demands. They did not have to use the term 'full and final settlement of the claim'. But they did. An obligation on the plaintiff to discontinue the proceedings would not preclude him from enlivening the proceedings at a later date.
A further case is Avopiling (WA) Pty Ltd v Central Systems Pty Ltd [2015] WASC 82, where Allanson J was called upon to consider whether, in the context of a dispute which had been settled 'in full and final settlement', an enforceable agreement was formed, and if so, whether it included the settlement of a foreshadowed counterclaim by the defendant. Relevantly, his Honour stated as follows under the heading 'in full and final settlement':
39The offer made on behalf of [the defendant] and accepted on behalf of [the plaintiff] was stated to be in full and final settlement. The court should have regard to the context known to both parties to understand what a reasonable person in the position of the parties would understand what a reasonable person in the position of the parties would understand they were intending to fully and finally settle.
40The use of words of settlement must, in context, have been a reference to the existing dispute. That dispute had reached the stage of the issue of proceedings. To identify what was intended to be settled, the first thing to consider is the writ.
Returning then to the subject Appeal, and to adopt that which Slattery J said in Balcomb v Brownlee, the Appellant and Respondents did not have to use the term 'full and final settlement' within the SAT Orders, but they did.
Moreover, I take a moment to observe what language is not used by the parties in the SAT Orders.
In this regard, it is not at all unusual for a party to seek to qualify, exclude, or 'carve out' from any settlement agreement particular claims which exist, or might exist, or alternatively, for a party to seek to qualify their position, or reserve their rights, in some way. In circumstances where that occurs, the parties agree to the use of appropriate language which makes it clear that certain aspects of a particular claim or claims, or, alternatively, a potential claim or claims, is or are not captured by the settlement or compromise.
In this case, no attempt was made by the parties to qualify, exclude or carve out from the SAT Orders any claims which the Appellant might have for Rent Arrears. If the parties had an appetite to do that, then it could have been easily achieved in the drafting exercise, including by incorporating, for example, one or more, or a combination of the following: expressly stating that the Appellant's claim for Rent Arrears was excluded; and/or by not referring to the Appellant's SAT Application in the chapeau; and/or by not expressly stating that the SAT Orders were in 'full and final settlement' of the parties respective proceedings. Of course, these are simple examples, but they serve to illustrate how uncomplicated the task would have been, even to unrepresented parties.

The surrounding circumstances

I turn then to the surrounding circumstances.
The importance of surrounding circumstances cannot be underestimated as not infrequently an analysis of the appropriate materials, in this case the SAT Orders, will disclose that parties to a settlement, by necessary implication, compromised certain matters of dispute but not others. And of course, Ground 2 of the Appeal is grounded on such an argument.
The surrounding circumstances reveal that a component of the Appellant's claims in the Appellant's SAT Application comprised a claim for Rent Arrears, and the Appellant was exposed to the Respondents' claims in the Respondents' SAT Application for rent relief and return on monies paid to the Appellant. In addition, as I have noted above, the Appellant was seeking termination of the Lease, whilst the Respondents were seeking an extension of the Lease.
When the matters went before Senior Member Eddy on 1 September 2020, at the outset she stated that '… we are here on matter CC1103 of 2020, Van Der Feltz & Anor v Swami & Anor, and CC1104 of 2020 which is Swami & Anor v Van Der Feltz & Anor' (emphasis added) (being, respectively, the Appellant's SAT Application and the Respondents' SAT Application): see SAT ts 2.
It follows that it was made very clear by the Senior Member that both applications were being considered, and that both applications were ordered to be the subject of compulsory mediation. It is also very clear from the transcript that both parties were given an opportunity to raise any issues they considered necessary.
Relevantly, and in this regard, during the course of the directions hearing, the Senior Member raised the issue of mediation with the parties and inquired of them whether they would be prepared to agree to participate in mediation, indicating that if they did not agree then the matters would be referred to compulsory mediation.
Whilst the Respondents were agreeable to mediation taking place, the Appellant was not, and so after some discussion with the parties, (and Mr Van Der Feltz of the Appellant in particular) the Senior Member referred the matter to compulsory mediation on 30 September 2020. In doing so, the Senior Member made some comments about mediation in the following terms (some of which are in response to submissions made by one or other of the parties, but Mr Van Der Feltz of the Appellant in particular) (see SAT ts 25 - ts 26):
EDDY MS: … in my view the SAT process requires us to at least give an opportunity to see if we can resolve it and/or if we can narrow the issues, so I do accept that you are not promising to negotiate.
You [which, based on the transcript, is a clear reference to Mr Van der Feltz] are not offering good faith willing to move your position, so you're very clear about that and that's the right thing to do, that you don't believe it can be resolved and you're not willing to go to mediation. All of that I'm putting on record. So you haven't promised anything that you won't give, but a compulsory conference is a power I've got to force you to the process because I have faith that we can at least clear the air a little …
VAN DER FELTZ, MR: Okay
EDDY MS: … because if we go to hearing with all of these things in the state that it's in when I looked at your file at least, I'm not sure either party's position is going to come to that well because I was quite confused about a lot of things. Now, it might just be that it's not presented yet ready for a hearing, but I just do think a mediation might just crystalise things, if nothing else. Not - a chaired conferral, not a mediation. So I accept that you - that was me given my reasons …
VAN DER FELTZ, MR: Yes.
EDDY MS: … and I've made it clear that you have not promised anything. You've been very clear on your position. You don't think its going to be resolved and nonetheless I have listed it ….
The following further comments were also made by the Senior Member in exchange with Mr Van Der Feltz (see SAT ts 27 - ts 28):
EDDY MS: To the extent that you've explained to me about breaches that you perceive under the lease that are not COVID related, you may wish, and it's entirely a matter for you, to make a separate application under - is this a commercial tenancies retail agreements lease or not?
VAN DER FELTZ, MR: Yes, on the commercial tenancies ….
EDDY MS: Because you might want to say if it is ask a section 16 question under a lease about whether they're complying with the use clause, whether they're - et cetera, et cetera because those things won't necessarily be resolved in a COVID‑19. Now, I'm saying that not because I'm saying that that's right or that he would [be] successful. It's my requirement to say to either of you if there's a procedural step that would allow you to ventilate something that you say, then - and if it can't be done under this one I'm required to say.
…
EDDY MS: So, all I want you to know, Mr Van Der Feltz, is to the extent that those matters are larger than the COVID, we might be able to include them in a mediation, but given your position about mediation we may not, and if you want us to deal with them - I mean, you may wish to go to other venues. You're fully alive of what you can do, but if you wish us to deal with them we've got some authority under section 16 of the Commercial Tenancy (Retail Shops) Agreements Act if it's that type, and if you want that matter to be heard together with your COVID‑19 because you want them to be bundled up, then you could make that application and just ask that it be listed together with this one.
And it may be - well, I think I'm going to give you a chaired conferral relatively quickly, but then you will come back to a direction hearing because it sounds like you're probably not going to resolve, but hopefully we might get some sort of clarity out of that …
…
Furthermore, following further exchanges with the parties, the Senior Member stated as follows (see SAT ts 34 and ts 35):
EDDY MS: Right. So, as I say, it's a compulsive conference. I said to Mr Van Der Feltz that I understood he wasn't in good faith offering, so don't expect that he will change his position necessarily. If he does that's great. If he doesn't and we can crystalise some things, that's great too. If you don't resolve we will come back probably the following week, if not the same week, for another directions hearing like this, and at that point what I will be talking through is, 'Well, how do we get ready to go to hearing? How can we get a hearing as quickly as we can? What do you need to do to have your evidence or your side, what do you want to file?', that sort of thing?
…
EDDY MS: The reason why our mediations are quite successful is because the mediator is likely to talk to you both in private session and is likely to tell you both what they think are your risks, whether you - if you can't reach a mediated outcome the risks that you face in the hearing process. So that is something that happens and it's an independent person saying those things. …
Based on the transcript generally and the Senior Member's comments, it is clear that:
(a)the Appellant was not only reluctant, but unwilling to engage in mediation;
(b)the parties were, nevertheless, ordered to participate;
(c)the parties' respective cases were somewhat confused and not ready to proceed to hearing;
(d)nevertheless, the Senior Member considered that, at the very least, a mediation might assist to crystallise the various issues;
(e)the Respondents were agreeable to a mediation taking place;
(f)the Appellant was unwilling to participate in any mediation voluntarily, and was of the view that any mediation would fail; and
(g)that if the Appellant wanted to advance claims not captured within the proceedings as they then stood, then that was a matter for the Appellant, but regardless, there existed a possibility that those matters could be discussed and resolved as part of any mediation.

Notwithstanding the Appellant's view that any mediation would fail, the parties attended the mediation as ordered, and ultimately agreed to consent orders and the SAT Orders, which, as I have discussed above, were expressed to be in full and final settlement of both the Appellant's SAT Application and the Respondents' SAT Application.
True it is, as counsel for the Appellant submits, that Order 4 of the SAT Orders:
(a)only expressly provides for payment to the Respondents for any claim they have under the Lease or otherwise for rent relief and the like; and
(b)do not recite that the amount payable by the Appellant to the Respondents was a net amount derived by taking claims or actions the Respondents might have, and deducting that amount from claims for rent, utilities and the like which the Appellant might have.
However, I do not consider that either of things could reasonably lead to the view that on a proper construction of the SAT Orders, the Appellant's claim for Rent Arrears was not captured by the SAT Orders.
The SAT Orders were not drafted with the assistance of legal counsel for either party. Given that both parties were self‑represented at the mediation, the SAT Orders were, at best, drafted with the assistance of Member De Villiers (who conducted the mediation), and indeed the orders may even have been drafted without his assistance.
It is not uncommon for imperfect or inelegant language to be utilised in settlement agreements (at mediation or otherwise) between unrepresented parties. Likewise, it is not uncommon for unrepresented parties to adopt a broadbrush approach to settlement, and not descend into the minutae of their respective claims when setting out what is agreed. The presence of language and/or a formulae which describes that one party's claim is being offset against the other party's claim in order to produce a net result (or in this case a net financial payment by the Appellant to the Respondents) would be, I would suggest, unusual.
Indeed, the need for such language and/or a formulae is overcome by using the expression 'in full and final settlement' which, as I have set out above, is a phrase described in Foskett on Compromise as being 'hallowed by long and frequent usage'.
Moreover, and in any event, it is clear from the SAT Orders that certain of that which each of the parties were seeking to achieve by way of outcome in their respective proceedings, was in fact achieved; that is:
(a)by Orders 1 and 2, the Appellant secured termination of the Lease and vacant possession of the Premises; and
(b)by Order 4, the Respondents were to be paid $21,000 (noting that they were seeking money back from loss of business during COVID‑19).
It is equally clear from the terms of the SAT Orders that neither the Appellant nor the Respondent comprehensively achieved that which they were seeking in their respective SAT applications. Specifically, the Appellant did not achieve a payment for Rent Arrears, utility charges and other amounts, or an order that the Respondents' alleged breaches were not as a result of financial hardship; and the Respondents did not achieve, at the least, an extension of the term of the Lease. In addition, it is possible that the Respondents did not achieve the full amount that they were seeking by way of both rent relief and return of monies from the Appellant, however given those amounts were not quantified in the Respondents' SAT Claims it is unclear.
It is not the least bit unusual for one or other, or both, parties to proceedings to compromise or resolve their dispute on terms less favourable than that claimed in the proceedings. Indeed, it is commonplace. It occurs for a multitude of reasons, not only in order to achieve finality of outcome, commercial or otherwise, but also to obviate the need for further litigation, expense, and delay. That in turn allows the parties to move beyond the dispute and focus upon the future, rather than investing sometimes considerable time and expense in litigating the past.
It is of course notable that in the Appellant's SAT Application the Appellant was claiming an amounts for Rent Arrears, utilities and the like, and that in the Respondents' SAT Application they were seeking the recovery of monies from the Appellant for rent relief and return of monies.
Despite this, the Appellant seeks to argue for a construction of the SAT Orders that would see the Appellant paying $21,000 to the Respondents, only to have to commence fresh proceedings to recover $25,546.88.
I find it incomprehensible that a party such as the Appellant would act in that way as it would not only expose, in this case, the Appellant, to the financial risk associated with the Respondents not paying (or being unable to pay), but also the legal risk that the SAT Orders would be construed (as they were by the learned magistrate) to cover the claims for Rent Arrears being advanced by the Appellant. That legal risk would also extend to an adverse costs order. Moreover, not insignificant time and cost would be expended in the process.

The objects of the SAT Orders

That, therefore, brings me to the objects of the SAT Orders.
As far as these are concerned, it is notable that the purpose of any compromise or settlement agreement is to put an end to the dispute or disputes between the parties, subject of course to the express terms of any such agreement.
As I have already observed, proceedings are commonly settled on a basis that involves a party receiving something that is different from that claimed by him or her in the proceeding, and that is done for a multitude of reasons.
I consider that the object of the SAT Orders was, or must have been, to fully and finally resolve the subject matter of not only the Respondents' SAT Application, but also the Appellant's SAT Application (which would necessarily include the Appellant's claim for Rent Arrears) and thereby to enable the parties to move on without being engaged in further dispute concerning matters captured by their respective SAT applications. Indeed, to embrace the words of Nathan J in Murphy v Yolanda, it must be assumed, in my view, as a matter of compelling logic, that by entering into a full and final settlement of their respective SAT applications, the parties took the compromise to be a final and complete dispatch of all the issues set out within them.
In addition, I take a moment to consider what the ordinary bystander might say of a compromise by the parties which was expressed in writing to be 'in full and final settlement' of their respective SAT applications in circumstances where the written compromise does not contain any reservation or any exception of any aspect of either party's claim.
In my view, the bystander would conclude that the parties' respective applications were settled once and for all, and that there was no ability on the part of either to re‑litigate any aspect of either the Appellant's SAT Application or the Respondents' SAT Application.
I certainly do not consider that an ordinary bystander would consider that the absence of any reference in Order 4 (or the SAT Orders in general) to the Appellant's claim for Rent Arrears would mean that the Appellant could later pursue the Respondents for those claims in separate fresh proceedings.
If the objects were anything other than that which I have set out, then in my view the parties would have included a provision within the SAT Orders, even if clumsily or inelegantly expressed.

Conclusion as to Ground 2

In my view therefore, when one considers the relevant authorities, the language used in the SAT Orders (in particular, but not limited to, that which appears in the chapeau), the surrounding circumstances, and the objects that the parties were seeking to achieve, the Appellant's construction of the SAT Orders is beyond strained.
Now, issues of estoppel were not raised in the context of the Appeal, as the focus of the parties was on the proper construction of the SAT Orders. In those circumstances it is unnecessary to embark on any discussion concerning estoppel in any detail, however for reasons which will become clear, a very brief discussion is useful in light of the issues raised by Ground 1 of the Appeal.
Three forms of estoppel have been recognised by the common law of Australia, the first being 'cause of action estoppel', the second, 'issue estoppel', and the third 'Anshun Estoppel' (although this third form is sometimes referred to as the 'extended principle' in Hendersen v Hendersen (1843) 3 Hare 100; (1843) 67 ER 313): see Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 [22] (French CJ & Bell, Gageler, & Keane JJ).
Anshun estoppel is an extension of the first two forms of estoppel and it,
operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of the first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.
(footnotes omitted)
(see again Tomlinson v Ramsey Food Processing Pty Ltd [22] (French CJ & Bell, Gageler, & Keane JJ).
The foundation of Anshun estoppel principle lies in two aspects of public policy: the need for there to be an end to the dispute or disputes between the parties; and the desirability of the parties being held to their bargains.
When considering the extended rule in Hendersen v Hendersen, Lord Millett in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 [59] stated that the principle:
… is necessary to protect the integrity of the settlement and to prevent the defendant from being misled into believing that he was achieving a complete settlement of the matter in dispute when an unsuspected part remained outstanding.
In the context of this Appeal, I consider that the Appellant is seeking to attack the integrity of the settlement as reflected by the SAT Orders.
To uphold Ground 1 of the Appeal would not only constitute a tearing down of the integrity of the settlement achieved by the parties as reflected in the SAT Orders, but it would also permit the misleading of the Respondents into believing that a complete settlement of all matters captured by the Appellant's SAT Proceedings, were fully and finally settled.
Given all the above, I therefore find that upon a proper construction of the SAT Orders, the Appellant's claims for Rent Arrears formed part of the parties' settlement of their respective SAT applications as captured by the SAT Orders.
In the circumstances, I do not consider that the learned magistrate erred in finding that the SAT Orders finally determined the Appellant's claim for Rent Arrears.
It follows that Ground 2 of the Appeal fails.

Ground 1

Given my above finding as to Ground 2 of the Appeal, and in light of the concession made by counsel for the Appellant as discussed at [71] above, it is unnecessary for me to consider Ground 1 of the Appeal.

The result of the Appeal

For the reasons given, I:
(a)find the Appeal was commenced within time;
(b)dismiss Ground 2 of the Appeal;
(c)note that there is no need to consider Ground 1 of the Appeal; and
(d)otherwise dismiss the Appeal.
I will hear the parties on the issue of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Associate to the Judge
18 JULY 2023