WDS PROPERTY INVESTMENTS (WA) PTY LTD and KITTO CORPORATION PTY LTD

[2023] WASAT 14

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)

CITATION:   WDS PROPERTY INVESTMENTS (WA) PTY LTD and KITTO CORPORATION PTY LTD [2023] WASAT 14

MEMBER:   MR K BALES, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   22 FEBRUARY 2023

PUBLISHED           :   8 MARCH 2023

FILE NO/S:   CC 1726 of 2022

BETWEEN:   WDS PROPERTY INVESTMENTS (WA) PTY LTD

Applicant

AND

KITTO CORPORATION PTY LTD

Respondent

Catchwords:

Retail shop lease - Applicant's failure to comply with orders to provide documents in support of application - Dismissal of incomplete application on the grounds of want of prosecution

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 13(7)
State Administrative Tribunal Act 2004 (WA), s 46(3), s 60(2), s 78

Result:

Reasons for decision provided pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA)

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Paiker And Overmeire
Respondent	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was determined on the basis of the documents on 22 February 2023 pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The decision of the Tribunal was delivered to the parties by email on 22 February 2023. The following reasons comprise the reasons that were requested by the applicant and provided pursuant to the provisions of s 78 of the SAT Act).

The application

1. On 23 November 2022, WDS Property Investments (WA) Pty Ltd ACN 008 698 708 (applicant) lodged an application under s 13(7) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (Act) in respect of a retail shop lease between the parties relating to premises known as Unit 13A, 91 Dempster Street, Esperance for approval of clause 14.2 of the lease.

2. Section 13(7) of the Act provides:

   The Tribunal may, upon application made to it by the landlord notice of which has been given to the tenant, approve of the inclusion in a retail shop lease of a provision under which the landlord may determine the lease (other than under subsection (6)(a), (b) or (da)) before the day set out in subsection(6)(aa) or (ab), as is relevant, if it is satisfied that special circumstances exist by reason of which such approval ought to be given.  (Emphasis added)

3. On 30 November 2022 the Tribunal ordered:

   1.As required by s 13(7) of the Act, the applicant is to file by 4 pm on 20 December 2022 detailed submissions as to the special circumstances pursuant to which the Tribunal ought to grant the application.

   2.The applicant is to file by 4 pm on 20 December 2022 an acknowledgment by the respondent confirming receipt of a copy of the special circumstances filed in this matter, and stating whether the respondent wishes to be heard on any matter relating to the revised application.

4. On 28 December 2022 the Tribunal ordered:

   1.The Order of the Tribunal made on 30 November 2022 not having been complied with, the application is not complete.

   2.For the reason stated in paragraph 1, the application is dismissed unless the Order made on 30 November 2022 is complied with by 4 pm on 24 January 2023.

5. On 17 January 2023 the applicant filed a document titled 'Submissions'.  The document was not endorsed with, nor was the document accompanied by, any acknowledgment or statement by the respondent.

6. On 26 January 2023 the Tribunal ordered:

   1.On 30 November 2022 the Tribunal ordered that submissions be filed by the applicant in support of the application, with an acknowledgment of service from the respondent.  The applicant has not complied with the Order.

   2.For the reason stated in paragraph 1, the application is dismissed unless the Order of the Tribunal is complied with by 4 pm on 14 February 2023.

Order

1. On 22 February 2023, pursuant to the powers of the Tribunal granted by s 46(3) of the SAT Act, and on the grounds of want of prosecution, the Tribunal ordered:

   1.The Orders of the Tribunal made on 30 November 2022, 28 December 2022, and 26 January 2023, not having been complied with, the application is not complete.

   2.For the reason stated in paragraph 1, the application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR K Bales, SESSIONAL MEMBER

8 MARCH 2023