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Stringer v Gilandos Pty Ltd

Stringer v Gilandos Pty Ltd

Case [2012] VSC 361 23 August 2012

Contract Formation

Breach of Contract

Unconscionable Conduct

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. SCI 2011 5079

WENDY STRINGER (And others according to the attached schedule)	Plaintiffs
v
GILANDOS PTY LTD (ACN 006 448 380)	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2012
DATE OF JUDGMENT:	23 August 2012
CASE MAY BE CITED AS:	Wendy Stringer & Ors v Gilandos Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 361

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LANDLORD AND TENANT – Whether retail premises lease – Meaning of “retail premises” – Whether premises used as motel or serviced apartments – Whether premises used as “retailed premises” – Whether the tenant also an agent of the landlords – Whether the agency exception – Retail Tenancies Act 1986 ss 3(1) and 4, Retail Tenancies Reform Act 1998 ss 3(1) and 4, Retail Leases Act 2003 (Vic) ss 3 and 4

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Cameron	BM Legal
For the Defendant	Dr A. P. Trichardt	Michael Flemming & Associates

HIS HONOUR:

Introduction

This is a matter concerning leases of units forming part of an apartment/resort complex located in Bright, Victoria and near the snow ski fields of Falls Creek and Mt Hotham. The parties have agreed that there are preliminary questions relating to jurisdiction which need to be determined before the matter can appropriately progress. The critical issue currently in this proceeding is whether the leases are “retail premises leases” for the purposes of the Retail Tenancies Act 1986[1] (“the 1986 Act”); the Retail Tenancies Reform Act 1998[2] (“the 1998 Act”); or the Retail Leases Act 2003[3] (“the 2003 Act”) (collectively, “the Acts”).
[1]No. 106 of 1986
[2]No. 14 of 1998
[3]No. 4 of 2003

In considering the preliminary questions,[4] I have been assisted by:
[4]The preliminary questions are set out below, see paragraph 27.

(a) the parties’ joint statement of agreed facts dated 30 May 2012 (“the Statement of Agreed Facts”);[5]

(b) the further affidavit of Mr Michael Francis O’Sullivan sworn 16 May 2012 (“the Second O’Sullivan Affidavit”); and

(c) the parties’ written outline of submissions[6] and oral submissions.

[5]I was informed by the parties that this is effectively an adaptation of the affidavit of Mr Michael Francis O’Sullivan sworn 19 October 2011; see Transcript, page 54.

[6]The Plaintiffs’ Outline of Submissions received 25 July 2012 (“Plaintiffs’ Outline of Submissions”) and the Defendant’s Outline of Submissions received 24 July 2012 (an amended version was then received on 25 July 2012) (“Defendant’s Outline of Submissions”).

At the hearing of the preliminary questions, the parties agreed that the Statement of Agreed Facts and the Second O’Sullivan Affidavit included all the factual background necessary for the determination of the preliminary questions.[7]
[7]Transcript, pages 53-4.

Background

The premises the subject of this proceeding is situated at 113 Delaney Avenue, Bright, which are currently operated as part of an apartment/resort complex known as “The Bright Chalet” (“the TBC”). Gilandos Pty Ltd (“the Defendant”) is a company…

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 Stringer v Gilandos Pty Ltd

Details

AGLC: Stringer v Gilandos Pty Ltd [2012] VSC 361
Case: [2012] VSC 361
Decision Date: 23 August 2012

CaseChat Overview and Summary

In the case of Stringer v Gilandos Pty Ltd, the plaintiff, Mr. Stringer, sought to enforce a lease agreement with the defendant, Gilandos Pty Ltd, for retail premises. The central dispute was whether the premises in question were used for retail purposes, as defined by the relevant statutes, or if they were instead used as motel or serviced apartments. The matter was heard in the County Court of Victoria. The court was required to interpret the meaning of "retail premises" under the Retail Tenancies Act 1986, the Retail Tenancies Reform Act 1998, and the Retail Leases Act 2003 (Vic). The primary issue was whether the premises in question were used for the purpose of retailing goods or services, or if they were being used in a manner that fell outside the definition of "retail premises." Additionally, the court needed to determine if the tenant acted as an agent for the landlord, which would invoke an exception under the statutes.

The court examined the nature of the premises and the activities carried out there to ascertain whether they constituted retail premises. The evidence presented showed that the premises were used as motel or serviced apartments, rather than for the sale of goods or services in a retail context. The court noted that the definition of "retail premises" was critical in determining the applicability of the statutes. Furthermore, the court addressed the question of whether the tenant acted as an agent for the landlord, which could exempt the premises from the retail tenancies legislation. The court concluded that the premises did not meet the definition of "retail premises" as they were used for accommodation services, not for retailing goods or services. Additionally, there was no evidence to suggest that the tenant acted as an agent for the landlord.

The court found in favour of the defendant, Gilandos Pty Ltd. It held that the premises were not used for retail purposes and therefore were not subject to the provisions of the Retail Tenancies Act 1986, the Retail Tenancies Reform Act 1998, or the Retail Leases Act 2003 (Vic). Consequently, the plaintiff's claim was dismissed.

Orders