SINGH and PAFAX PTY LTD
[2022] WASAT 27
•12 APRIL 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENT ACT 1985 (WA)
CITATION: SINGH and PAFAX PTY LTD [2022] WASAT 27
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 12 APRIL 2022
FILE NO/S: CC 1714 of 2021
BETWEEN: AMRIT PAL SINGH
Applicant
AND
PAFAX PTY LTD
Respondent
Catchwords:
Preliminary issue - Jurisdiction - Correct enabling provision - Need for a s 25C certificate from Small Business Commissioner unless urgent relief sought
Legislation:
Commercial Tenancies (COVID-19 Response) Act 2020 (WA)
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3(1), s 3(3), s 6A, s 6A(1), s 6A(3), s 6A(4), s 16(1), s 25A, s 25C, s 25D, s 25D(2)
Commercial Tenancy (Retail Shops) Agreements Regulations 1985 (WA), reg 9, reg 10
Small Business Development Corporation Act 1983 (WA), s 15C, s 15E
State Administrative Tribunal Act 2004 (WA), s 13(1), s 47(2), s 60(2)
Result:
Preliminary issued determined
Application dismissed
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | MP Commercial Lawyers |
Case(s) referred to in decision(s):
Chen and Lease Equity Pty Ltd [2008] WASAT 248
Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Amrit Pal Singh is a director and partner of 'Indian Twist', a lessee of restaurant premises on Great Eastern Highway in Redcliffe leased from Pafax Pty Ltd (the lessor).
On 21 October 2021, the lessor locked the lessee out of the premises for failing to pay the rent.
The next day, Mr Singh applied for an order for possession of the premises under s 6A(3) of the Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA) (the Act).
Mr Singh later amended his orders sought to the following:
a)compensation for loss of business and reputation for locking the lessee out of the premises;
b)determination that plant and equipment that was sold to the lessee included the canopy and coolroom such that it was entitled to remove these items, or, alternatively, be refunded the amount it paid for plant and equipment; and
c)refund of the bond paid under the lease.
I answer the preliminary issue on whether the Tribunal has jurisdiction to deal with the application which commenced this proceeding in the negative.
The application has not been commenced under the correct enabling provision, which would have required the Small Business Commissioner to issue a certificate before the matter can be referred to the Tribunal.
Preliminary issue
The preliminary issue for determination on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is 'Does the Tribunal have jurisdiction to deal with the application which commenced this proceeding'?
In determining this issue, it is necessary to identify the correct enabling provision which enlivens my jurisdiction to deal with the orders sought by Mr Singh.
Background
Facts
The following relevant facts are agreed between the parties or are otherwise apparent from the face of non-contentious documents submitted by the parties.
The lease of the restaurant premises was made on 30 June 2015 between the lessor and 'Indian Twist'.
Indian Twist is a partnership, and Mr Singh is one half of that partnership.
Neither party disputes that the lease is a retail shop lease.
In the copy of the lease filed by the lessor, a copy of the Consumer Protection Tenant Guide - Form 4 for New Retail Shop Leases from 1 January 2013 (tenant guide) appears at the front of that copy.
By orders of the Tribunal dated 3 November 2020, the partners of the lessee were required to pay all outstanding rental monies owing for the period April 2020, May 2020, July 2020, August 2020, September 2020 and October 2020.
By Tribunal orders dated on 20 May 2021, the lessor was to waive, by way of rent relief under the Commercial Tenancies (COVID19 Response) Act 2020 (WA), 30% of the rent payable for November 2020 and December 2020.
By the 2021 orders, the proceeding relating to rent relief sought for:
a)the period up to 31 October 2020 was struck out by virtue of the 2020 orders; and
b)the period between January to March 2021 was withdrawn.
Following expiry of the term of the lease agreement on 14 June 2021, the lease was held over on a month-by-month tenancy.
On 21 October 2021, the lessor locked the lessee out of the premises.
Mr Singh's case
Mr Singh concedes only paying an amount of rent reduced by 30% for the periods July 2020, August 2020, September 2020, October 2020, November 2020 and December 2020, despite the terms of the 2020 and 2021 orders.
He argues that at the time the 2020 orders were made, the lessee's Business Activity Statements (BAS) were not ready, but acknowledges that the lessee's renewed claim for rent relief was struck out in the 2021 proceeding.
The lessor did not issue a notice of termination before it locked the doors to the premises.
While Mr Singh made the application to seek 'possession' of the premises on the day the lessor locked them out as he had functions booked that day and the following day, Mr Singh was subsequently unsuccessful in trading and so moved out of the premises.
Mr Singh amended his orders sought to seek a determination of the three issues referred to in [4] above.
Mr Singh does not dispute that a copy of the tenant guide was attached to the copy of the lease.
Lessor's case
The lessor contends that an application cannot be made under s 6A of the Act.
That provision deals with the failure to provide a tenant guide, which does not apply to this case.
The lessor also contends that as the lease was terminated on 21 October 2021, no referral can be made to the Tribunal under s 16(1) of the Act as a question arising under the lease, relying on Chen and Lease Equity Pty Ltd [2008] WASAT 248.
Legal framework
Tribunal jurisdiction
As an administrative tribunal, the Tribunal has only the jurisdiction which is conferred on it by the SAT Act, or any other Act which expressly confers jurisdiction upon it: Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 at [26].
The Tribunal only has jurisdiction over a matter if a provision of an enabling Act allows an application concerning the matter to be made to the Tribunal: s 13(1) of the SAT Act.
The Act
The long title to the Act relevantly provides that it is an Act to regulate commercial tenancy agreements relating to certain shops (that is, retail shops) and to provide for the determination of questions arising under such agreements.
In general terms, a 'retail shop' is any premises (where not in a retail shopping centre) that are used wholly or predominantly for the carrying on of a retail business: s 3(1) of the Act.
A 'retail business' is, in turn, relevantly defined as a business that wholly or predominantly involves the sale of goods by retail: s 3(1) of the Act.
A 'retail shop lease' is a lease that provides for the occupation of a retail shop: s 3(1) of the Act.
Part II of the Act sets out the requirements for the terms of retail shop leases.
In particular, s 6A(1) of the Act provides that a tenant guide must be incorporated into the retail shop lease, failing which a tenant may give written notice of termination of the lease and/or apply to the Tribunal for an order for the landlord to pay compensation for pecuniary loss suffered by the tenant.
The tenant guide shall be in the prescribed form and located in the prescribed position in the retail shop lease: s 6A(4) of the Act.
Section 16(1) of the Act provides that a party to a retail shop lease may refer to the Tribunal any question between the parties which it believes to be a question arising under the lease. The Tribunal shall determine whether or not the question is a question arising under the lease and if it is such a question, hear and determine it.
Under s 3(3) of the Act, a reference to 'a question arising under a retail shop lease' includes a reference to:
•a question whether or not a lease exists or has existed, including a question as to forfeiture (par (a)); or
•any other matter that is in dispute between the landlord and the tenant in connection with the retail shop lease, whether or not that matter is dealt with by the provisions of the retail shop lease (par (e)).
A person who can make an application, referral or submission to the Tribunal under the Act can request the Small Business Commissioner (Commissioner) to provide assistance to attempt to resolve the matter, or to undertake alternative dispute resolution in respect of the matter, under s 15C and s 15E of the Small Business Development Corporation Act 1983 (WA) respectively: s 25A of the Act.
Indeed, an application, referral or submission in respect of a matter may not be made to the Tribunal under the Act unless the Commissioner has issued a certificate in respect of the matter under s 25C of the Act: s 25D of the Act.
The Commissioner must issue a certificate under s 25C of the Act if:
a)requested to do so by a party; and
b)satisfied that the matter has failed, or is unlikely, to be resolved by alternative dispute resolution, or it would not be reasonable in the circumstances to commence an alternative dispute resolution proceeding in respect of the matter.
Prescribed matters may be exempt from the requirement to seek a s 25C certificate: s 25D(2) of the Act.
Commercial Tenancy (Retail Shops) Agreements Regulations 1985 (WA) (the Regulations)
Regulation 9 of the Regulations provides that the prescribed tenant guide is Form 4 of the Regulations, which must be located in the front of the retail shop lease to which it relates.
Regulation 10 of the Regulations prescribes matters which are exempt from the requirement to seek a s 25C certificate.
In particular, reg 10 of the Regulations prescribes that referrals of a question under s16(1) of the Act will be exempt only if urgent relief in the form of an order for a party to the lease to do, or refrain from doing, something which is sought in conjunction with the referral.
Consideration - Does the Tribunal have jurisdiction to determine the applicant's application?
While there is jurisdiction to deal with the lease as a retail shop lease, the application is misconceived as it is commenced under s 6A of the Act, which clearly does not apply as it is uncontested that a tenant guide was incorporated into the lease.
Instead, it appears from the orders sought in [4] that the relevant enabling provision is s 16(1) of the Act seeking a determination of a question or questions arising under the lease.
In such a case, Mr Singh will have to seek a s 25C certificate from the Commissioner before his application can be made to the Tribunal, unless he can demonstrate that the relief sought to compel the lessor to do or refrain from doing something is urgent in nature such as to exempt him from obtaining that s 25C certificate.
On the face of it, the urgent basis for the original application passed once Mr Singh withdrew his application for possession of the premises.
As noted by the lessor, given that the lease was entered into with the 'Indian Twist' partnership, both partners of the 'Indian Twist' partnership should be parties to any new application.
Finally, whilst not necessary to determine this point, I do not accept the lessor's contention that I do not have jurisdiction to deal with the lease as it was terminated on 21 October 2021.
There is a live question about the validity of the termination, including whether it could be validly terminated without a notice of termination or notice of breach of lease.
In the absence of the lessee accepting that the lease was validly terminated, the existence of the lease remains a 'question arising under a retail shop lease' for which I retain jurisdiction to determine, by virtue of s 3(3) and s 16(1) of the Act.
In light of my findings above, the application should be dismissed as misconceived under s 47(2) of the SAT Act, and I will accordingly make an order dismissing the proceeding.
Conclusion
For the reasons stated above, I find that there is no jurisdiction to determine Mr Singh's application, and will dismiss the application under s 47(2) of the SAT Act.
Orders
The Tribunal makes the following orders:
1.The preliminary question 'Does the Tribunal have jurisdiction to deal with the application which commenced this proceeding' is answered in the negative.
2.The applicant's application is dismissed as misconceived under s 47(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
12 APRIL 2022
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