VAN DER FELTZ and RISPOLI

Case [2021] WASAT 84


JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: COMMERCIAL TENANCIES (COVID-19 RESPONSE) ACT 2020 (WA)

CITATION:   VAN DER FELTZ and RISPOLI [2021] WASAT 84

MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT

MS C BARTON, MEMBER

HEARD:   26 FEBRUARY 2021

DELIVERED          :   15 JUNE 2021

FILE NO/S:   CC 1216 of 2020

BETWEEN:   RIC VAN DER FELTZ

First Applicant

STEPHAN MATTHAUS

Second Applicant

AND

ROSA RISPOLI

Respondent


Catchwords:

Retail shops - Commercial tenancies - COVID-19 response - Small commercial lease - Code of conduct dispute - Application for rent relief - Emergency period - Eligible tenant - Jobkeeper - Decline in turnover - Tenant's turnover derived from rent ­ Rental shortfall subsequently paid by sub­tenant ­ Sufficient and accurate information - Onerous demands for information - Exercise of discretion

Legislation:

Commercial Tenancies (COVID-19 Response) Act 2020 (WA), s 3, s 14, s 16(1), s 16(2), s 16(3), s 16(4), s 17(2), s 17(2)(c), s 17(4), s 18, s 19, s 19(1)
Commercial Tenancies (COVID-19 Response) Amendment Regulations 2020 (WA)
Commercial Tenancies (COVID-19 Response) Amendment Regulations 2021 (WA)
Commercial Tenancies (COVID-19 Response) Regulations 2020 (WA), Sch 1, cl 1, cl 2, cl 2(1)(a), cl 2(1)(a)(iii), cl 2(1)(b)(ii), cl 2(1A), cl 4, cl 5(1), cl5(2), reg 2B
Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules (No. 2) 2020 (Cth)
Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth), s 6, s 7, s 8, s 8(7), cl 5
State Administrative Tribunal Act 2004 (WA), s 9, s 87(1), s 87(2), s 87(3)

Result:

The application is allowed in part
No order as to costs

Category:    B

Representation:

Counsel:

First Applicant : In Person
Second Applicant : In Person
Respondent : Mr AM Houghton

Solicitors:

First Applicant : N/A
Second Applicant : N/A
Respondent : Arns & Associates

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

Chew and Director General of the Department of Education and Training [2006] WASAT 248; (2006) 44 SR(WA) 174

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

Quah & Anor and AMP Life Limited [2005] WASAT 169

Re Cooper and Boroondara CC [2001] VCAT 2429

Smart v Prisoner Review Board (WA) [2012] WASC 48

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 21

Mohammadi v Bethune [2018] WASCA 98

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

Quah & Anor and AMP Life Limited [2005] WASAT 169

Re Cooper and Boroondara CC [2001] VCAT 2429

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. Mr Ric van der Feltz and Mr Stephen Matthaus (applicants) are joint lessees of premises at 42 King Edward Road, Osborne Park (premises).  The applicants entered into a lease with Ms Rosa Rispoli (respondent/landlord

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AGLC
VAN DER FELTZ and RISPOLI [2021] WASAT 84
Case
[2021] WASAT 84
Decision Date

CaseChat Overview and Summary

Van der Feltz and Rispoli brought a matter before the Industrial Relations Commission of Western Australia, seeking to determine the interpretation of the COVID Response Act and the COVID Response Code. The primary issue was the meaning of the phrase "sufficient and accurate information" in the context of the Code, particularly regarding the information required to evidence a reduction in turnover of a business for the purposes of the COVID Response Act.

The court considered the modern approach to statutory construction, which is purposive and contextual. The starting point for interpreting the Code is the statutory text, including its purpose and context. The court noted that the terms "sufficient" and "accurate" are not defined in the COVID Response Act or the Code. Therefore, it was necessary to consider their ordinary meaning and the context in which they are used, with regard to the purpose of the COVID Response Act and the Code. The court referenced the Macquarie Dictionary Online for the definitions of these terms, which indicated that "sufficient" means enough or adequate and "accurate" means exactly conforming to truth or free from error or defect.

In interpreting the statutory purpose, the court considered that it must be discerned from what the legislation says, as distinct from assumptions about the desired or desirable reach or operation of the provisions. The court also noted that the purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure, and, where appropriate, reference to extrinsic materials. The court found that the example in cl 4 of the Code provides information that may evidence a reduction in turnover but does not state whether that information is considered "sufficient and accurate" for the purposes of cl 5(2) of the Code.

The court concluded that the terms "sufficient" and "accurate" must be interpreted in the context of the purpose of the COVID Response Act and the Code. The court did not provide a definitive answer to the meaning of these terms but highlighted the importance of considering the context and purpose of the legislation when interpreting the statutory text. The court's decision provides guidance for future cases involving the interpretation of the COVID Response Act and the Code.

Orders

Orders of the court

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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

The modern approach to statutory construction in Western Australia was summarised by Buss JA in Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211 at [160]:The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision[.] Accordingly, the starting point in relation to the construction of cl 5(2) of the Code and, specifically, the meaning of the expression 'sufficient and accurate information' is consideration of the text of the provision, in its statutory context, including the statute's purpose or object. The provision must be construed so that it is consistent with the language and purpose of all the provisions of the statute: Mohammadi v Bethune [2018] WASCA 98 at [32]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. In City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 at [66], the Western Australian Court of Appeal referred to the following passage from Mohammadi: … The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of the provisions. Because the terms 'sufficient' and 'accurate' are not defined in the COVID Response Act or Code, it is necessary for the Tribunal to consider both their ordinary meaning and the context in which they are used having regard to the purpose of the COVID Response Act and the Code. The Macquarie Dictionary Online (as at 26 May 2021) defines 'sufficient' to mean:adjective 1. that suffices; enough or adequate: sufficient proof; sufficient protection. The Macquarie Dictionary Online (as at 26 May 2021) defines 'accurate' as:adjective 1. exactly conforming to truth, to a standard or rule, or to a model; free from error or defect: an accurate account of the incident.2. showing precision; meticulous: an accurate typist. Relevantly, cl 4 of the Code provides, by way of an example, the type of information that may evidence a reduction in turnover. The examples include information generated from an accounting system or business activity statements submitted to the Australian Taxation Office. It does not, however, state whether that information is considered 'sufficient and accurate' for the purposes of cl 5(2) of the Code. The example in cl 4 of the Code provides:Information evidencing a reduction in turnover of a business might include information relating to turnover generated from an accounting system or business activity statement submitted to the Australian Taxation Office.