Wilde and Smith - [2008] WASAT 310

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: WILDE and SMITH [2008] WASAT 310

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 5 SEPTEMBER 2008

DELIVERED : 30 DECEMBER 2008

FILE NO/S: CC 825 of 2007

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

Catchwords:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) Application to strike out particular claims under s 47(1) and s 48 of the State Administrative Tribunal Act 2004 (WA) Claims reliant on implications of terms relating to fitness for purpose and repair obligation

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 12(1)(a), s 12(3)
State Administrative Tribunal Act 2004 (WA), s 9, s 47, s 47(1), s 48

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr AJ Aristei
Respondents : Mr JCW Skinner

Solicitors:

Applicant: Lawton Gillon
Respondents : Jackson McDonald

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

Advance Fitness Corp Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20
Carbure Pty Ltd v Brile Pty Ltd [2002] VSC 272
Casey v Aldous (1994) 63 SASR 347
City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146
Codelfa Constructions v State Rail Authority of New South Wales (1982) 149 CLR 337
Edler v Auerbach [1950] 1 KB 359
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Hill v Harris [1965] 2 QB 601
Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381
Liverpool City Council v Irwin (1976) QB 319
Progressive Mailing House Pty Ltd v Tabarli Pty Ltd (1985) 157 CLR 17

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In this matter, the Tribunal dealt with an application by the respondent under s 47 and s 48 of the State Administrative Tribunal Act 2004 (WA) to strike out allegations made in proceedings for the implication of terms as being necessary in order to give business efficacy to the lease and in particular the business to be operated at the leased premises.
The Tribunal accepted that legal authority established that the mere letting of premises does not give rise to any implied term that the premises are fit for any particular purpose and that a landlord has an obligation to put the demised premises into repair at the commencement of the tenancy or to keep the premises in a state of repair during the continuance of the tenancy.
However, the Tribunal held that there is a distinction between an implied term necessary to give business efficacy as a question of fact to a particular contract as alleged in these proceedings and an implied term which is a legal incident of a particular class of contract. The Tribunal noted that, following Progressive Mailing House Pty Ltd v Tabarli Pty Ltd

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.

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Details

Case: [2008] WASAT 310
Decision Date: 30 DECEMBER 2008

CaseChat Overview and Summary

Wilde and Smith involved a dispute between the parties over a commercial tenancy agreement for a retail shop. The respondent, who was the tenant, brought proceedings against the landlord, the appellant, seeking relief in relation to alleged breaches of the tenancy agreement. The case was heard by the Western Australian State Administrative Tribunal. The central issue before the tribunal was whether the respondent's claims, which included allegations of breaches of implied terms relating to fitness for purpose and repair obligations, should be struck out under sections 47(1) and 48 of the State Administrative Tribunal Act 2004 (WA).

The tribunal considered whether the respondent's claims were based on valid grounds under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). The appellant argued that the respondent's claims should be dismissed as they were not substantiated by the terms of the agreement and were therefore frivolous. The respondent contended that the claims were legitimate and should proceed to trial. The tribunal examined the nature of the respondent's claims and determined that they were not without merit and did not constitute an abuse of process. The respondent's claims were found to be potentially valid under the relevant legislation, and thus the tribunal dismissed the appellant's application to strike out the claims.

As a result, the tribunal ordered that the respondent's application to strike out the claims be dismissed. The matter was then listed for a further directions hearing to be held on 29 January 2009, at a time to be notified to the parties. This hearing was intended to assess the most appropriate way to advance the proceedings and to ensure that the case proceeded in an efficient and effective manner.

Orders

Orders of the court

1. The respondent's strike out application is dismissed. 2. The matter is to be listed for a further directions hearing on 29 January 2009 at a time to be notified to the parties to assess the most appropriate way to advance the proceedings.

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

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