WILDE and SMITH - [2010] WASAT 9

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: WILDE and SMITH [2010] WASAT 9

MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER)

HEARD: 30 NOVEMBER AND 1 3 DECEMBER 2009

DELIVERED : 29 JANUARY 2010

FILE NO/S: CC 825 of 2007
CC 704 of 2008

BETWEEN: ANNE MARIA WILDE
Applicant
AND
BARRY SMITH
LYNN SMITH
Respondents

Catchwords:

Commercial tenancy Hearing of separate issues relating to liability Whether landlord validly terminated lease and, if not, whether tenant accepted repudiation and entitled to damages Whether landlord in default of obligation to carry out structural repairs What constitutes a structural repair Whether landlord liable to repay outgoings Whether landlord entitled to recover arrear rental and outgoings to date of termination and damages

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 12A(1aa)
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 12, s 16, s 16(1)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 403
State Administrative Tribunal Act 2004 (WA), s 9, s 77(2)

Result:

Applicant's claim successful to a limited extent and otherwise dismissed
Counterclaim by respondents upheld - quantum of claim to be determined at subsequent hearing

Category: B

Representation:

Counsel:

Applicant: Mr H Christie
Respondents : Mr JCW Skinner

Solicitors:

Applicant: Mr H Christie
Respondents : Jackson McDonald

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

Adami v Lincoln Grange Management [1998] 1 EGLR 58
Advance Fitness Corp Pty Ltd v Bondi Diggers Memorial and Sporting Club Ltd [1999] NSWSC 264
Carbure Pty Ltd v Brile Pty Ltd [2002] VSC 272
Casey & Anor v Aldous BC9400885 SCSA (unreported, decision dated 20 December 1994)
Cleverdon v Townsend (1894) 16 ALT 69
Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 456
Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1958] 2 All ER 551; [1958] 1 WLR 845
Gregg v Goodall (1895) 17 ALT 231
Justelle Nominees Pty Ltd v Martin [3] [2009] WASC 264
McCarrick v Liverpool Corporation [1947] AC 219
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Wilde and Smith [2008] WASAT 310

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In consolidated proceedings, the Tribunal determined a claim made by the applicant, as tenant of a retail shop, against the respondents, as landlord, and a counterclaim by the landlord against the tenant. By consent, the hearing dealt only with the merits of the respective claims with the quantum to be determined as a separate issue at a later hearing.
Whether or not the respondents had validly terminated the lease, or had repudiated it, turned partially on whether or not the respondents had failed to meet their obligations under the lease to carry out structural repairs. The Tribunal determined that, in the context of the lease, 'structural repairs' referred to repair of the structural elements of the building which had to resist actions to which the building might be reasonably…

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.

Keep reading for free

Create a free CaseChat account to read WILDE and SMITH and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] WASAT 9
Decision Date: 29 JANUARY 2010

CaseChat Overview and Summary

In the matter of Wilde and Smith, the parties were Ms Wilde, the landlord, and Mr and Mrs Smith, the tenants. The dispute centred on the validity of the lease termination, the landlord's obligations regarding structural repairs, and the recovery of rental arrears and damages. The case was heard in the Supreme Court. The primary issues before the court were whether the landlord validly terminated the lease, whether the landlord breached the covenant to repair, and if the landlord was liable to repay outgoings. The court also had to determine whether the landlord was entitled to recover arrear rental and outgoings to the date of termination, as well as damages.

The court examined the evidence of various notices given by the tenants to the landlord regarding defects. The notices included a letter dated 25 July 2005, an undated note sent on 19 September 2006, and other correspondence. The tenants argued that these notices constituted sufficient communication of defects requiring repair, which would place the landlord on enquiry. However, the court found that none of the notices identified defects that were structural in nature, as required by the authorities. The court also noted that the tenants did not provide sufficient evidence to establish the cause of the fire in the electrical power board, which was attributed to water ingress by the tenants. Therefore, the court concluded that the notices did not constitute valid notice of defects requiring repair.

Based on the court's findings, it was determined that the landlord did not breach the covenant to repair, as there was no valid notice of defects requiring repair. Consequently, the landlord was not liable to repay outgoings. The court also held that the landlord was entitled to recover arrear rental and outgoings to the date of termination, as well as damages. The court found that the landlord had not validly terminated the lease and that the tenants had not accepted the landlord's repudiation. Therefore, the landlord was entitled to the outstanding rental and outgoings.

The final orders of the court included the recovery of arrear rental and outgoings by the landlord, as well as damages. The court did not find the landlord liable for structural repairs, as there was no valid notice of defects requiring repair. The decision emphasised the importance of proper notice and evidence in establishing breaches of lease obligations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The authorities establish that a landlord is not in breach of a covenant to repair unless notice of a defect requiring repair is given: McCarrick v Liverpool Corporation [1947] AC 219; Casey & Anor v Aldous BC9400885 SCSA (unreported, decision dated 20 December 1994). As submitted for Mr and Mrs Smith, what is required is for the landlords to have information as to the existence of the defect such as would put the landlord on enquiry as to whether repairs are required: Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 370. The pleadings identified only one written notice, being a letter dated 25 July 2005 (RB11). Counsel for Ms Wilde also relied on:i)evidence establishing that the letter of 25 July 2005 was resent on 28 November 2005 (RB12);ii)an undated note which Ms Wilde testified was sent on 19 September 2006 (RB41);iii)a letter dated 21 March 2007; andiv)a letter dated 7 May 2007. Mrs Smith also referred in her evidence, at [80] of her written statement, to a handwritten note which was dated 24 December 2005 (RB15). Various unspecified oral communications were relied upon. As previously indicated, we shall address all the alleged forms of notice to ensure that we have dealt with the substantial merits of the matter. To avoid unnecessary repetition, we incorporate the letter by reference. In our view, excluding for the present, a reference to a crack in the archway in Shop 82, none of the matters raised are structural in nature, and were not identified by Mr Wallis in his report as being structural defects. On the approach taken in the Justelle case, the electrical or plumbing complaints might have potential to be as a result of a structural failure. Ms Wilde attributed the fire in the electrical power board to water ingress from the allegedly leaking roof. Mrs Smith said that it was caused by too many power leads being taken from it. Neither had personal knowledge and, in both cases, their source was allegedly from the electrician who carried out the repairs. No evidence was given by the electrician and, in the circumstances, we can make no finding as to the cause of the fire. In any event, the letter advises that the power board caught fire, but has been repaired without any reference being made to the cause attributed by Ms Wilde. It cannot therefore constitute any notice of a defect requiring repair by Mr and Mrs Smith. There was also no evidence of any general structural failure which might have affected the plumbing. In relation to the crack in the arch, Mrs Smith testified that a builder engaged by her and husband inspected the crack and advised that it was only a surface crack. She thought the builder was Mr Gary McNamara, but his evidence makes no reference to inspecting this crack, although he referred to other inspections and work undertaken by him. In any event, Mrs Smith testified that she informed Ms Wilde that they would fill the crack when Ms Wilde came to paint that part of the interior of the premises, which suggests it was likely that it was communicated to Ms Wilde that advice had been received that the crack was not structural.