WIRRALEE PTY LTD and CAFFEY
[2012] WASAT 102
•11 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION: WIRRALEE PTY LTD and CAFFEY [2012] WASAT 102
MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)
HEARD: 15 MARCH 2012
DELIVERED : 11 MAY 2012
FILE NO/S: CC 318 of 2012
BETWEEN: WIRRALEE PTY LTD
Applicant
AND
ROSE ANGELA CAFFEY
Respondent
Catchwords:
Referral for mediation
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 11(5)
State Administrative Tribunal Act 2004 (WA), s 9, s 54(1), 54(3)
Result:
Application referred to mediation
Category: B
Representation:
Counsel:
Applicant: Mr Smith
Respondent: Mr Caffey (Acting as Agent)
Solicitors:
Applicant: GV Lawyers
Respondent: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
At the initial directions hearing of the application, the applicant's counsel indicated a willingness to attend mediation.
Mediation was not opposed by the respondent. Upon enquiry of the parties by the Tribunal during the course of the directions hearing, the Tribunal concluded that the matter should be referred to mediation. The Tribunal considered that, in the circumstances as disclosed to the Tribunal by the parties during the course of the initial directions hearing, referral of the matter to mediation by the Tribunal was likely to meet the Tribunal's main objectives as identified in s 9 of the State Administrative Tribunal Act 2004 (WA). Following mediation, the application was withdrawn with the leave of the Tribunal.
The application
On 29 February 2012, the applicant, Wirralee Pty Ltd, filed an application in the Tribunal and served the same upon the respondent, Ms Rose Angela Caffey, shortly thereafter.
The applicant applied to the Tribunal pursuant to s 11(5) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CTRSA Act) for the following orders:
1)The rent payable from the rent review of 27 February 2010 be determined to be $94,750 plus GST.
2)The lessee do pay arrears on the basis that the rent payable was reviewed at 27 February 2010.
The application arose out of a dispute between the parties concerning the review of the rent, which was payable to the applicant by the respondent pursuant to a lease. The lease was undated but was said to operate from 1 July 1999 signed by the parties to these proceedings.
It was not in dispute that the lease is a retail shop lease for the purposes of the CTRSA Act.
The directions hearing on 15 March 2012
The application was listed for an initial directions hearing on 15 March 2012. The respondent asserted that the parties' respective valuers had agreed upon a reviewed rent in 2011 and that the applicant had failed to honour that agreement. The applicant's counsel asserted that there was no reviewed rent agreed between the parties' valuers, although they had conferred.
It became apparent, during the course of the initial directions hearing, that the parties (and their respective valuers and surveyors) may have been in dispute about the area that was to be valued for the purposes of assessing the reviewed rent, and may also have been in dispute about the correct market rate to be attributed to each metre of the area to be valued for the purposes of assessing the reviewed rent.
The Tribunal says that the parties 'may' have been in dispute about these two issues simply because, during the course of the initial directions hearing, it became apparent to the Tribunal that the parties themselves had not clearly communicated whether they were $11,000 per annum apart, or less than $2,000 per annum apart.
Each of the parties had engaged and consulted licensed surveyors and licensed valuers. The applicant had briefed a firm of solicitors to represent it, and the respondent indicated that she would also engage solicitors if the matter had proceeded. Clearly, the parties had expended money so as to engage the respective experts, and would be required to expend further sums to retain and brief those experts should the matter not be resolved without a determination by the Tribunal.
Consideration
The Tribunal's main objectives are identified in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and they are as follows:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
The Tribunal was mindful that the disputed annual sum could have been less than $2,000, but as much as $11,000.
The Tribunal was of the view that the parties had not clearly identified the monetary value of the dispute.
The Tribunal was mindful that:
a)The parties had been involved in protracted negotiations since February 2010 and had engaged licensed valuers to undertake a review of the rent, which review had failed to achieve an agreement on the rent to be paid.
b)The parties would likely incur considerable expenses briefing and engaging expert witnesses (licensed surveyors and licensed valuers), and solicitors and counsel to attend a compulsory conference of their respective witnesses and/or a hearing of the merits of the dispute.
c)The parties' commitment, in terms of time and money, to the resolution of the dispute between them by way of a compulsory conference or a hearing of the dispute might be disproportional to the monetary value of the dispute.
d)It was quite possible that the dispute between the parties in monetary terms might be relatively small (that is, less than $2,000 per annum).
e)The parties had not satisfied the Tribunal that they were each aware of the other's position on the facts, and that they were in a position to identify to the Tribunal the substantive issues between them.
During the course of the directions hearing on 15 March 2012, the applicant's counsel indicated a willingness to attend a mediation conducted by the Tribunal. The prospect of mediation was not opposed by the respondent.
Section 54(1) of the SAT Act confers on the Tribunal, during an initial directions hearing or at any other stage of a proceeding, a discretion to refer the matter for mediation within the Tribunal. Section 54(3) of the SAT Act provides that the consent of the parties is not necessary in order for the Tribunal to refer a matter for mediation. In this matter, the applicant indicated a willingness, which was not opposed.
The Tribunal considered mediation to be an appropriate next step in the dispute resolution process because:
a)The parties did not seem to have a clear understanding of the opposing party's respective position concerning the area of the demised premises to which the rent review applied and market rates per metre.
b)Mediation would, in all likelihood, enable the parties to appreciate the substantive merits of their own position as well as the opposition's position.
c)Mediation would be an appropriate, cost effective and speedy means and forum that the parties could participate in so as to indentify, at the very least, exactly what facts and issues were in dispute.
d)Mediation would be the next best step to be explored by the parties to facilitate an actual resolution of the whole dispute once the components were clearly identified.
e)The alternative orders requiring the parties to each file a statement of issues, facts and contentions and supporting documents would impose significant costs in terms of legal fees and lost time in the operation of their respective businesses, and would not, in all probability, result in a speedy resolution of the dispute.
Although orders requiring each party to file a statement of issues, facts and contentions, along with documents in support of their respective positions, might result in the identification of the real issues between the parties, in the circumstances, it might be a more costly means of ascertaining the real issues than if the parties were referred to mediation.
Further, the Tribunal was mindful of the fact that the Tribunal conducts a number of mediations, particularly in matters arising for consideration under the CTRSA Act, which matters are successfully resolved at, or shortly following, mediation.
Conclusion
The Tribunal decided to refer the application for mediation, in the absence of any clear opposition or basis for any opposition, because the action was in accordance with the main objectives of the Tribunal, and would provide the parties with the fastest and most cost effective forum to resolve the dispute.
It should be noted that the parties did attend mediation in the Tribunal on 16 April 2012 and the following order was made by the Tribunal:
The following orders are made in mediation before Member De Villiers on 16 April 2012 by consent of the parties as full and final settlement of the application:
1.Leave is granted for the application to be withdrawn.
2.The application is withdrawn.
Order
For these reasons referred to above, the Tribunal made the following order:
1.The application is listed for mediation on 16 April 2012 at 2 pm for a maximum period of three hours.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS NATASHA OWEN-CONWAY, MEMBER
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