Vatilla Pty Ltd and Citygate Properties Pty Ltd
[2012] WASAT 213
•24 OCTOBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION: VATILLA PTY LTD and CITYGATE PROPERTIES PTY LTD [2012] WASAT 213
MEMBER: MR D AITKEN (MEMBER)
HEARD: 8 AUGUST 2012
DELIVERED : 24 OCTOBER 2012
FILE NO/S: CC 382 of 2012
BETWEEN: VATILLA PTY LTD
Applicant
AND
CITYGATE PROPERTIES PTY LTD
First RespondentJEANARON PTY LTD
Second Respondent
Catchwords:
Commercial Tenancy (Retail Shops) Agreements Act 1985 Unconscionable conduct claim by tenant against landlord and former tenant Determination of preliminary issue on jurisdiction Whether the applicant and the respondent have to be parties to the same retail shop lease for the purpose of s 15F of the Commercial Tenancy (Retail Shops) Agreements Act 1985
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 6(5), s 6A(5), s 10, s 13(8), s 13(9), s 15C, s 15D, s 15E, s 15F, s 15F(1), s 15C(1), s 15C(2), s 15D(1), s 15D(2), s 16
Interpretation Act 1984 (WA), s 18, s 19
Interpretation of Legislation Act 1984 (Vic), s 35, s 35(a)
Retail Shops and Fair Trading Legislation Amendment Bill 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Proceeding against second respondent, Jeanaron Pty Ltd, dismissed
Summary of Tribunal's decision:
A tenant under a retail shop lease applied to the Tribunal for an order under s 15F of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), claiming unconscionable conduct, firstly by the landlord under the lease, and secondly by the former tenant of the retail shop.
The Tribunal decided, as a preliminary issue, that s 15F of the Commercial Tenancy (Retail Shops) Agreements Act 1985 is limited to a claim by a tenant or a landlord against the other party to a retail shop lease.
The Tribunal therefore dismissed the proceeding against the previous tenant as being misconceived or without substance, because the Tribunal did not have jurisdiction to deal with that claim.
Category: B
Representation:
Counsel:
Applicant: Mr S Jacobs
First Respondent : Mr J Skinner
Second Respondent : Mr G Dunne
Solicitors:
Applicant: Young & Young
First Respondent : Jackson McDonald
Second Respondent : Slee Anderson & Pidgeon
Case(s) referred to in decision(s):
Dileum Pty Ltd v J K Corporation Pty Ltd (1989) 1 WAR 244
Mills v Meking (1989 1990) 169 CLR 214
Monroe Topple and Associates v The Institute of Chartered Accountants (2001) ATPR 46-212
Murphy and Fremantle Markets Pty Ltd [2009] WASAT 84
Shree Sai Charan Pty Ltd v North Indian Flavour (Broadway) Pty Ltd and Bobby Singh [2011] NSWADT 95
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Western Australian Planning Commission v Dungey [2010] WASC 52
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Vatilla Pty Ltd (Vatilla) and the second respondent, Jeanaron Pty Ltd (Jeanaron) both carry on retail businesses, and the first respondent, Citygate Properties Pty Ltd (Citygate) owns the Homemaker Centre in Strickland Street, Bunbury.
Under a lease dated 9 December 2008, Vatilla leased premises at the Homemaker Centre from Citygate for a term of five years commencing on 1 November 2008, with an option of renewal for a further term of five years.
Under a lease dated 11 October 2005, Jeanaron leased those premises from Citygate for a term of five years commencing on 1 October 2005, with options of renewal for two further terms of five years.
Prior to entering into its lease, Vatilla had some discussions with Jeanaron about Jeanaron's lease being assigned to Vatilla, and Jeanaron made a request to Citygate for its consent to such an assignment.
However, instead of Jeanaron's lease being assigned to Vatilla, what occurred was that Jeanaron and Citygate entered into a deed of surrender of Jeanaron's lease, and Vatilla and Citygate entered into a new lease.
Vatilla has applied to the Tribunal for orders against Citygate and Jeanaron under s 15F(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CT(RS)A Act) to recover loss or damage, which it claims to have suffered because of unconscionable conduct by Citygate and Jeanaron, which resulted in Vatilla entering into its lease at a higher rent and for a longer term than would have been the case if Jeanaron's lease had been assigned to Vatilla. According to Vatilla, its business did not trade well from the Homemaker Centre premises and, if Jeanaron's lease had been assigned to it, then it would not have exercised the option of renewal when the term of that lease expired on 30 September 2010.
Unless otherwise expressly indicated, all references to sections of legislation in these reasons for decision are to sections in the CT(RS)A Act and the term 'retail shop lease' is a reference to a retail shop lease for the purposes of the CT(RS)A Act.
Both Jeanaron's lease and Vatilla's lease are retail shop leases.
Jeanaron contends that the Tribunal does not have jurisdiction to determine Vatilla's claim against it under s 15F(1), because Jeanaron and Vatilla were never in a contractual relationship of landlord and tenant which, Jeanaron contends, is necessary for a claim to be able to be made under s 15F(1).
Preliminary issue to be determined
The parties have agreed that the Tribunal should determine the following as a preliminary issue:
Whether the proceeding against Jeanaron should be dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) as being misconceived or without substance on the grounds that the Tribunal does not have jurisdiction to deal with the matter under s 15F.
Citygate was excused from involvement in the determination of the preliminary issue, because that issue does not concern it.
What does s 15F provide?
Section 15F(1) provides that a landlord or tenant or a former landlord or tenant under a retail shop lease or former retail shop lease who suffers a loss or damage because of unconscionable conduct of another person that contravenes s 15C or s 15D may apply to the Tribunal to recover that loss or damage.
Section 15C(1) provides that a landlord under a retail shop lease shall not, in connection with the lease, engage in conduct that is unconscionable. Section 15C(2) provides a nonexhaustive list of matters to which the Tribunal may have regard for the purpose of determining whether a landlord has contravened s 15C(1).
Section 15D(1) provides that a tenant under a retail shop lease shall not, in connection with the lease, engage in conduct that is unconscionable. Section 15D(2) provides a nonexhaustive list of matters to which the Tribunal may have regard for the purpose of determining whether a tenant has contravened s 15D(1).
Therefore, for an application to be able to be made under s 15F(1):
•the applicant must be or have been a landlord or a tenant under a retail shop lease; and
•the respondent must be or have been a landlord or a tenant under a retail shop lease, who has engaged in unconscionable conduct in connection with that lease, which has caused loss or damage to the applicant.
The question at the heart of the preliminary issue is whether an applicant and a respondent under s 15F(1) have to be parties to the same retail shop lease or whether the retail shop lease referred to in s 15F(1) can be a different lease to the retail shop lease referred to in s 15C(1) and s 15D(1). The answer to this question lies in the interpretation of those provisions.
In this matter, it is the interpretation of s 15D(1) and s 15F(1), in particular, which is in question, because Jeanaron is a former tenant under a retail shop lease and Vatilla's claim against Jeanaron under s 15F(1) is based on the contention that Jeanaron has contravened s 15D(1).
What does Jeanaron contend?
Jeanaron contends that, on the plain wording of s 15D(1), the unconscionable conduct of a tenant must be in connection with the lease under which that person is the tenant, and the only 'victim' of that conduct can be the landlord of that lease. Jeanaron says that s 15F(1) takes this no further and cannot operate except on a liability created under s 15D(1).
Jeanaron says that, whilst s 15D(2) provides a nonexhaustive list of matters to which the Tribunal may have regard in determining whether a tenant has engaged in unconscionable conduct, all of the matters listed in s 15D(2) are concerned with conduct by a tenant towards a landlord. Jeanaron says that this is consistent with the overall scheme of the CT(RS)A Act, which is to regulate the conduct of landlords and tenants to each other.
Jeanaron contends that an unconscionable conduct claim is confined to contracting parties, and refers to the decision in Monroe Topple and Associates v The Institute of Chartered Accountants (2001) ATPR 46212, upheld on Appeal (2002) ATPRٔ41879 in support of that contention. Jeanaron also refers to the second reading speech, when the unconscionable conduct provisions were introduced into the CT(RS)A Act, in support of that contention.
Jeanaron refers to the decision in Shree Sai Charan Pty Ltd v North Indian Flavour (Broadway) Pty Ltd and Bobby Singh [2011] NSWADT 95 (Shree), in which the Administrative Decisions Tribunal (NSW) determined that it had no jurisdiction, under a similar statutory regime to that contained in the CT(RS)A Act, to deal with a claim by a former tenant under a retail shop lease of alleged unconscionable conduct by a subsequent tenant of the premises, for conversion of the former tenant's fixtures and fittings. Jeanaron says that the same approach should be taken in the interpretation of s 15D(1) and s 15F(1).
What does Vatilla contend?
Vatilla contends that Jeanaron's conduct 'relating to the offer of, agreement to or giving effect to' the surrender of Jeanaron's lease was unconscionable conduct which contravened s 15D(1), because it was conduct by Jeanaron as the tenant in connection with that lease. Vatilla contends that it has suffered loss or damage because of that conduct, and that it can apply for relief under s 15F(1) because it is the tenant under its lease.
Vatilla says that all that is necessary under s 15F(1) is that the person who makes the application must be a current or former landlord or tenant under a retail shop lease who has suffered loss or damage due to unconscionable conduct of another person who is a landlord (in the case of s 15C) or a tenant (in the case of s 15D) of a retail shop lease, and that it is not necessary that the applicant and that other person be a party to the same retail shop lease.
Vatilla says that if Parliament had intended to limit the operation of s 15F to claims by a landlord or tenant of unconscionable conduct by the other party to a retail shop lease, it would not have used the term 'another person' in s 15F(1) and, instead, would have used 'words of limitation' and that 'the absence of words of limitation must be given some recognition'.
Vatilla says that, in general, a literal interpretation of a statutory provision is to be preferred and that one must be careful about resorting to second reading speeches.
Vatilla says that the CT(RS)A Act regulates commercial tenancy agreements in relation to retail shops and that the assignment of retail shop leases is an ordinary and common 'leasing transaction' in relation to retail shops which results in 'relations and dealings' between assignor tenants and assignee tenants. Vatilla says that the wording of s 15F 'contemplates' that such persons can make an application for relief against each other for unconscionable conduct in their dealings with each other.
Vatilla contends that the term 'unconscionable conduct' should be given an expansive interpretation, and refers to the decision in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 in support of that contention. Vatilla says that, with such an expansive interpretation and with the lack of limiting or restrictive words of interpretation in s 15C, s 15D and s 15F, 'there is no fair or reasonable justification for imposing a restrictive interpretation on the wording of those sections so as to preclude a claim by [Vatilla] against Jeanaron in the circumstances of this case'.
How should the provisions of s 15D(1) and s 15F(1) be interpreted?
The principles relevant to the process of the interpretation or construction of a statute are outlined in Western Australian Planning Commission v Dungey [2010] WASC 52 (Dungey) at [27] [32], and may be summarised as follows:
•The starting point for the construction of a statute is a consideration of the text itself.
•The words of the statute must be interpreted having regard to their context and the legislative purpose.
•Under s 18 of the Interpretation Act 1984 (WA) (Interpretation Act), a construction that would promote the purpose underlying the statute (whether expressly stated or not) is to be preferred to a construction which would not promote that purpose. However, the section is not directed to a construction which better achieves the purpose of an Act, but rather, it assists when there is a choice between a construction that would promote the underlying purpose and one which would not.
•A provision in a statute must be construed consistently with the language and purpose of all the provisions of the statute.
•Section 19 of the Interpretation Act identifies extrinsic material which may be considered to confirm the meaning of a provision in a statute or to determine the meaning where there is ambiguity or obscurity in its ordinary meaning. Such material includes any explanatory memorandum relating to the Bill and the second reading speech. However, that material must not be substituted for the text of the statute.
In my opinion, the text in s 15D(1) and s 15F(1) does not have a clear meaning which resolves the preliminary issue in this matter. The meaning of the text, and in particular the words 'in connection with the lease' in s 15D(1) and the words 'unconscionable conduct of another person' in s 15F(1), is unclear and ambiguous. That is demonstrated by the contentions of Jeanaron and Vatilla.
It is therefore necessary to apply the principles of statutory construction referred to in Dungey to determine the proper construction of s 15D(1) and s 15F(1).
What is the context in which the words in s 15D(1) and s 15F(1) are used?
I will commence with the consideration of the context in which the words 'in connection with the lease' are used in s 15D(1).
On first glance, it might appear that negotiations between a tenant under a retail shop lease and a potential assignee of that lease are in connection with the lease.
In considering the context in which the term 'in connection with' has been used in s 15D(1), I note that s 15D(2) sets out a long list of matters which may be considered by the Tribunal in determining whether a tenant has contravened s 15D(1). Each of those matters, with the exception of s 15D(2)(g) and s 15D(2)(k), refers to the landlord or to matters under the lease, such as the negotiation of rent or refurbishment or fit out of the leased premises, which clearly concern the landlord. Section 15D(2)(g) refers to 'the requirements of any applicable industry code' and s 15D(2)(k) refers to 'the extent to which the tenant acted in good faith'.
I also note that s 15C(2) and s 15D(2) mirror each other, with s 15C(2) listing matters which might be considered in determining whether a landlord has engaged in unconscionable conduct, and s 15D(2) listing matters which might be considered in determining whether a tenant has engaged in unconscionable conduct. When considered in that context, in my opinion, the reference to any applicable industry code in s 15D(2)(g) and the reference to good faith in s 15D(2)(k) can be seen to be applicable to the negotiations and dealings between a landlord and a tenant.
Whilst s 15D(2) states that the Tribunal is not limited to just those matters listed, in my opinion, there is a strong indication that s 15D(1) is concerned with unconscionable conduct by a tenant under a retail shop lease which affects the landlord, not anyone else.
I now turn to the consideration of the context in which the words 'unconscionable conduct of another person' are used in s 15F(1).
I note that the unconscionable conduct must be in contravention of s 15C or s 15D and, therefore, the other person referred to in s 15F(1) has to be either a landlord (in the case of s 15C) or a tenant (in the case of s 15D) under a retail shop lease. I also note that the applicant under s 15F(1) must be either a landlord or a tenant under a retail shop lease. That suggests to me that s 15F(1) is concerned with unconscionable conduct by a landlord or a tenant under a retail shop lease which affects the other party to the lease, not anyone else.
What is the legislative purpose of the CT(RS)A Act?
I will now turn to the consideration of the legislative purpose of the CT(RS)A Act.
My starting point in considering the purpose of the CT(RS)A Act is its long title.
The long title may be referred to as an aid to the construction of an Act: see Statutory Interpretation in Australia by DC Pearce and RS Geddes (LexisNexis Butterworths, 7th edition 2011) at [4.46].
The long title of the CT(RS)A Act states as follows:
An Act to regulate commercial tenancy agreements relating to certain shops, to prohibit unconscionable conduct by landlords or tenants in relation to such agreements, to provide for the determination of questions arising under such agreements, and for connected purposes.
The purpose stated in the long title has three components: firstly, there is the regulation of certain commercial tenancy agreements; secondly, there is the prohibition of certain conduct in relation to those agreements; and thirdly, there is the determination of questions arising under those agreements.
Both the short title and the long title of the CT(RS)A Act use the term 'commercial tenancy agreements', but that term does not appear in the provisions of the Act. Instead, the term 'lease' is used, which is defined in the Act as meaning 'any lease, licence or agreement … that provides for the occupation of premises … for a term or by way of a periodic tenancy or a tenancy at will'.
The assignment of a retail shop lease does not create a retail shop lease: see Dileum Pty Ltd v J K Corporation Pty Ltd (1989) 1 WAR 244.
The assignment of a lease does not create a tenancy; it transfers the rights and interest of the assignor tenant under the lease to the assignee tenant. Therefore, an assignment of a lease is not a tenancy agreement, and the term 'commercial tenancy agreements' in the short title and the long title of the CT(RS)A Act refers to leases, not to assignments of lease.
From that, it follows that the purpose of the CT(RS)A Act, stated in its long title, is the regulation of retail shop leases, the prohibition of unconscionable conduct by landlords or tenants in relation to those leases, and the determination of questions arising under such leases. That purpose does not extend to the regulation of assignments of retail shop leases, nor the prohibition of unconscionable conduct by assignor tenants and assignee tenants in relation to those assignments of lease, nor the determination of questions arising under such assignments of lease.
How does s 18 of the Interpretation Act apply?
I will now consider how the provisions of s 15D(1) and s 15F(1) should be interpreted to promote the legislative purpose of the CT(RS)A Act, in accordance with s 18 of the Interpretation Act.
In Mills v Meking (1989 1990) 169 CLR 214, at 235, Dawson J made the following comments in respect of the operation of s 35 of the Interpretation of Legislation Act 1984 (Vic) (Interpretation of Legislation Act):
The approach required by s 35 … allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. References to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in light of its purposes.
Section 18 of the Interpretation Act is in very similar terms to s 35(a) of the Interpretation of Legislation Act and those comments apply equally to it.
Vatilla contends that the use of the term 'another person' in s 15F, instead of a term which is more specifically limited to the other party to the retail shop lease, indicates an intention that the operation of s 15F is not to be limited to claims of unconscionable conduct by landlords against tenants under a retail shop lease and vice versa. I do not agree.
I note that s 15E uses the terms 'a person' and 'the person' where those terms are clearly only referring to a landlord or a tenant who is a party to a retail shop lease. Section 15E provides that 'a person' is not to be taken, for the purposes of s 15C or s 15D, to engage in unconscionable conduct in connection with a retail shop lease only because the person takes legal action in relation to the lease or fails to renew the lease or enters into a new lease. That person can only be a landlord (in the case of s 15C) or a tenant (in the case of s 15C). It is clear that the 'draftsman' has used the terms 'a person' and 'the person' in s 15E as a succinct way of referring to landlords and tenants, and those terms must be interpreted as referring to landlords and tenants.
In my opinion, the term 'another person' has been used by the 'draftsman' in a similar manner in s 15F, also for succinctness, to refer to the other party to the retail shop lease in respect of which the applicant under s 15F is the current or former landlord or tenant, which is consistent with the purpose of the CT(RS)A Act.
In my opinion, in using the term 'another person' in that manner, the 'draftsman' has inadvertently overlooked the possibility that it might be argued that this enables an application under s 15F(1) to be made against a person who is not a party to the retail shop lease to which an applicant is a party. It is possible to 'repair the defect' by interpreting the term 'another person' in s 15F(1) as referring to the other party to the applicant's lease.
How can consistency of construction be achieved?
I will now examine the provisions of the CT(RS)A Act broadly, to consider how the provisions of s 15D and s 15F should be construed to be consistent with all the provisions of the Act.
It is clear from an examination of the provisions of the CT(RS)A Act that it does not regulate the assignment of retail shop leases, which is consistent with my interpretation above of the first component of the purpose of the Act stated in the long title. Various provisions in the CT(RS)A Act recognise that a retail shop lease may be assigned: see s 6(5), s 6A(5), s 10, s 13(8) and s 13(9). However, those provisions do not regulate the assignment of a retail shop lease; they just deal with the rights of the tenant under the lease being assigned.
It is also clear that the CT(RS)A Act does not provide for the determination of questions arising under assignments of retail shop leases, which is consistent with my interpretation above of the third component of the purpose of the Act stated in the long title. Section 16 provides for the determination by the Tribunal of questions arising under a retail shop lease, but that does not extend to questions arising under an assignment of a retail shop lease.
In Murphy and Fremantle Markets Pty Ltd [2009] WASAT 84, the Tribunal decided that, as an alternative to an application under s 15F, it is open to a landlord or a tenant to a retail shop lease to refer a question to the Tribunal under s 16, as a question arising under the lease of whether the other party to the lease has acted unconscionably in breach of s 15C(1) or s 15D(1). Clearly, such an application under s 16 can only be in respect of the conduct of the other party to the lease under which the applicant is the landlord or the tenant. It would be a strange situation if there are two remedies available under the CT(RS)A Act in respect of unconscionable conduct which breaches s 15C(1) or s 15D(1), and one remedy (under s 15F) allows a tenant to seek relief against another tenant, but the other remedy (under s 16) only allows a tenant to seek relief against the landlord of that tenant's lease. Interpreting 'another person' in s 15F to mean the other party to the applicant's retail shop lease avoids that inconsistency.
What does the second reading speech say?
As I have already stated, in my opinion, the meaning of the words 'unconscionable conduct of another person' in s 15F(1) is unclear and ambiguous. Therefore, under s 19 of the Interpretation Act, the second reading speech may be considered to confirm the meaning of those words.
In the second reading speech (Hansard, 9 November 2005, p 7006 7008) for the Retail Shops and Fair Trading Legislation Amendment Bill 2005 (WA), which added the unconscionable conduct provisions to the CT(RS)A Act, the Minister for Consumer and Employment Protection states as follows:
The Commercial Tenancy (Retail Shops) Agreements Act 1985 will be amended to offer tenants and landlords access to unconscionable conduct provisions. These provisions are based on section 51AC of the Commonwealth Trade Practices Act 1974, which have been tailored to the circumstances of retail leases.
In my opinion, that confirms that s 15F should be given a construction which limits its application to a claim by a landlord or a tenant of a retail shop lease against the other party to that lease.
What is the proper construction of s 15D(1) and s 15F(1)?
The result of my application of the principles of statutory construction, outlined in Dungey, is that I have concluded that:
•the proper construction to be given to s 15D(1) is that it applies to unconscionable conduct by a tenant towards a landlord; and
•the proper construction to be given to the words 'unconscionable conduct of another person' in s 15F(1) is that those words refer to the conduct of the other party to the retail shop lease to which the landlord or tenant who makes an application under s 15F(1) is also a party.
What is the significance of the decision in Shree?
Both parties have made submissions regarding the significance of the decision in Shree.
The Tribunal is not bound by the decision of the Administrative Decisions Tribunal (NSW) in Shree. However, because the provisions in New South Wales are very similar to the provisions in s 15C, s 15D and s 15F, it is both important and desirable that there be consistency in decisionmaking in respect of those provisions. Therefore, it is appropriate to consider the decision in Shree.
Vatilla acknowledges that the wording of the legislation in New South Wales, which Shree dealt with, is similar to the wording of s 15D and s 15F, but contends that the circumstances in Shree were very different to the situation here, and that the reasons stated in Shree were not persuasive and that the Tribunal should not follow that decision.
Although both involve a claim by one tenant of retail shop premises against another tenant of those premises, the circumstances in Shree differ from the circumstances in this case in that, in the case of Shree, there was no contact between those tenants but, in this case, the tenants did have discussions with each other.
In my opinion, the difference in circumstances makes no difference to the interpretation to be given to the provisions of s 15D and s 15F. The point is whether those provisions enable a claim of unconscionable conduct to be made by a tenant under a retail shop lease against a tenant under another retail shop lease, or whether such a claim can only be made against the landlord of the lease to which the tenant is a party. It is irrelevant whether the two tenants are strangers to each other (as in Shree) or have had dealings with each other (as here).
In my opinion, Shree was correctly decided and my decision in this matter will be consistent with it.
What is the significance of the ambit of the term 'unconscionable conduct'?
Both parties have made submissions in respect of the ambit of the term 'unconscionable conduct', in support of their contentions regarding the interpretation of s 15D and s 15F. Jeanaron contends that claims for unconscionable conduct are limited to contracting parties, and Vatilla contends the opposite. It is not necessary to deal with that point, because the preliminary issue has been decided on the basis of the interpretation of the provisions in s 15D(1) and s 15F(1).
Conclusion
For the reasons I have given, I conclude that s 15F(1) is limited to a claim by a tenant or a landlord against the other party to a retail shop lease and that the Tribunal does not have jurisdiction to deal with the claim by Vatilla against Citygate under s 15F(1).
Accordingly, I answer the preliminary issue question in the affirmative and the Tribunal will make an order dismissing the proceeding against Jeanaron. The Tribunal will then list the proceeding against Citygate for a directions hearing to determine how best to proceed with it.
Order
1.Pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA), the proceeding against the second respondent, Jeanaron Pty Ltd, is dismissed as being misconceived or without substance on the grounds that the Tribunal does not have jurisdiction to deal with the matter.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D AITKEN, MEMBER
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