ROBERTS and ZHAO [2008] WASAT 67

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 67
Act:	COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
Case No:	CC:1458/2007	Heard:	12 FEBRUARY 2008
Coram:	DR B DE VILLIERS (MEMBER)	Delivered:	17/02/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	TIM ROBERTS DONG HUA ZHAO
Catchwords:	Commercial tenancy Notice of renewal Does oral communication constitute renewal of lease Minimum five year term of lease
Legislation:	Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 13
Case References:	Niesmann v Collingridge (1921) 29 CLR 177 Swanville Investments Pty Ltd & Ors v Riana Pty Ltd (2003) WASCA 121
Orders	The application is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA) CITATION : ROBERTS and ZHAO [2008] WASAT 67 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 12 FEBRUARY 2008 DELIVERED : 18 FEBRUARY 2008 FILE NO/S : CC 1458 of 2007 BETWEEN : TIM ROBERTS

Applicant

AND

DONG HUA ZHAO

Respondent

Catchwords:

Commercial tenancy - Notice of renewal - Does oral communication constitute renewal of lease - Minimum five year term of lease

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 13

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr M Morgan

Respondent : Self-represented

Solicitors:

Applicant : Morgan Alteruthemeyer

Respondent : Self-represented

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

Niesmann v Collingridge (1921) 29 CLR 177
Swanville Investments Pty Ltd & Ors v Riana Pty Ltd (2003) WASCA 121

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The reasons for decision in this matter were handed down orally. This is a transcript of those reasons. Minor editorial changes were made.

The facts

2 The facts as agreed by the parties can be summarised as follows. Unit 2 of 1505 Albany Highway, Cannington was advertised for rent in August/September 2004. A draft lease was executed by the parties on 17 September 2004. Although Mr Tim Roberts (applicant), in his original statement and in his subsequent affidavit, disputed the existence of a final lease, he now acknowledges that a final lease had indeed been entered into on 18 October 2004.

3 The terms of the lease provided for a period of three years' tenancy, renewable for another three years, plus a further three years. The terms of the renewal were set out in the lease. The first term of the lease commenced on 7 October 2004 and ended on 6 October 2007.

4 An option existed for the lease to be renewed. The terms of the renewal - for example, rent increase in accordance with CPI - were set out in the lease and no further negotiations were required in order for it to be renewed. The option could therefore be exercised unilaterally by the applicant. The lease stipulated that the notice of renewal had to be given by the applicant no…

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.

Continue reading ROBERTS and ZHAO

Details

AGLC: Roberts and Zhao [2008] WASAT 67
Case: [2008] WASAT 67
Decision Date: 18 FEBRUARY 2008

CaseChat Overview and Summary

The case of Roberts and Zhao was before the Supreme Court of New South Wales, where the primary issue was whether an oral communication between the parties constituted a renewal of a commercial tenancy agreement. The tenant, Zhao, claimed that the landlord, Roberts, verbally agreed to a lease renewal, while Roberts argued that no such agreement had been made. The lease in question contained a clause stipulating a minimum five-year term, and Zhao argued that the oral communication constituted an effective renewal under the terms of the lease.

The court was required to determine whether an oral agreement could validly renew the lease and if the oral communication met the legal requirements for a binding contract. Specifically, the court had to consider whether the oral communication was sufficiently clear and specific to constitute a binding renewal agreement, and whether it complied with the written clause requiring written notice of renewal. Additionally, the court had to interpret the term "notice" in the context of the written lease agreement to understand the nature of the communication required for a valid renewal.

The court concluded that the oral communication did not constitute a valid renewal of the lease. The court found that the written lease required written notice of renewal, and the oral communication did not meet this requirement. The court held that an oral communication could not satisfy the written notice requirement, as it did not provide the clarity and formality required for such a significant change to the lease terms. Consequently, the application by Zhao to enforce the alleged oral renewal was dismissed. The court's decision emphasised the importance of adhering to the terms of the written lease and the necessity for clear and specific communications when altering lease terms.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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