Wy Properties Pty Ltd v O3 Capital Pty Ltd
[2015] WASC 268 (S)
•2 OCTOBER 2015
WY PROPERTIES PTY LTD -v- O3 CAPITAL PTY LTD [2015] WASC 268 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 268 (S) | |
| Case No: | GDA:6/2014 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 2/10/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | No award of pre-judgment interest | ||
| A | |||
| PDF Version |
| Parties: | WY PROPERTIES PTY LTD O3 CAPITAL PTY LTD |
Catchwords: | Interest Pre-judgment interest Powers of court on appeal Appeal from State Administrative Tribunal Commercial Tenancy (Retail Shops) Agreeements Act 1985 (WA) Powers of State Administrative Tribunal Statutory construction No jurisdiction to award pre-judgment interest |
Legislation: | Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) State Adminitrative Tribunal Act 2004 (WA), s 105 Supreme Court Act 1935 (WA), s 32 |
Case References: | Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125 Morrison and Keycord Pty Ltd [2013] WASAT 174 Rambal v The Griffin Coal Mining Co Pty Ltd [2015] WASCA 197 Wy Properties Pty Ltd and O3 Capital Pty Ltd [2014] WASAT 69 Wy Properties Pty Ltd v O3 Capital Pty Ltd [2015] WASC 268 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
O3 CAPITAL PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR T CAREY (MEMBER)
Citation : WY PROPERTIES PTY LTD and O3 CAPITAL PTY LTD [2014] WASAT 69
File No : CC 558 of 2013
Catchwords:
Interest - Pre-judgment interest - Powers of court on appeal - Appeal from State Administrative Tribunal - Commercial Tenancy (Retail Shops) Agreeements Act 1985 (WA) - Powers of State Administrative Tribunal - Statutory construction - No jurisdiction to award pre-judgment interest
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)
State Adminitrative Tribunal Act 2004 (WA), s 105
Supreme Court Act 1935 (WA), s 32
Result:
No award of pre-judgment interest
Category: A
Representation:
Counsel:
Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
Appellant : Mills Oakley Lawyers
Respondent : Solomon Brothers
Case(s) referred to in judgment(s):
Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125
Morrison and Keycord Pty Ltd [2013] WASAT 174
Rambal v The Griffin Coal Mining Co Pty Ltd [2015] WASCA 197
Wy Properties Pty Ltd and O3 Capital Pty Ltd [2014] WASAT 69
Wy Properties Pty Ltd v O3 Capital Pty Ltd [2015] WASC 268
1 KENNETH MARTIN J: In these supplementary reasons I am now dealing, under par 4(a) of my orders of 7 August 2015, with the application by the applicant for interest, on the amount of $191,734.34 from 3 July 2012.
2 The application arises as a consequence of my primary reasons in Wy Properties Pty Ltd v O3 Capital Pty Ltd [2015] WASC 268, ultimately allowing that appeal.
3 The parties have agreed I should determine on the papers the issue of what is, substantively, a claim for pre-judgment interest.
4 For reasons that follow, I have determined that neither this court, nor the State Administrative Tribunal (SAT), may award pre-judgment interest in the prevailing circumstances.
Power to award pre-judgment interest
5 An appeal from a decision of SAT to this court is a creature of statute, governed by express legislative provisions. This court's powers in dealing with an appeal from SAT are found in s 105(9) of the State Administrative Tribunal Act 2004 (WA) ('SAT Act'):
(9) The court dealing with the appeal may -
(a) affirm, vary, or set aside the decision of the Tribunal; or
(b) make any decision that the Tribunal could have made in the proceeding; or
(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
7 In this case, the matter before SAT was under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) ('CTRSA Act'). However, looking in that quarter, I again detect no express power to award interest, pre-judgment or otherwise, from the CTRSA Act. Needless to say, the parties have not referred me to any relevant provision from those sources suggesting such a power as regards interest.
8 A further question arises as to whether the concluding words of s 105(9), 'any order the court [ie, this court] considers appropriate', are to be read as constrained by the underlying nature of the proposed appeal to this court (concerning CTRSA Act provisions), or are to be read more widely, to deliver power to this court, to award pre-judgment interest to a successful applicant. However, a capacity to award interest on a monetary entitlement only at the level of the appeal outcome, rather than interest being able to be awarded at first instance, would seem a curious end position.
The underlying dispute
9 The underlying dispute before SAT focused upon a false or misleading disclosure statement given to a tenant by a landlord.
10 The elements of that claim under the CTRSA Act (and the relief available) are found in s 6, in which s 6(1) is relevant for present purposes. It provides:
6. Disclosure statement, tenant's rights if not given by landlord etc.
(1) Where a retail shop lease is entered into and the tenant has not, at least 7 days before the entering into of the lease, been given a disclosure statement in accordance with subsection (4) or the disclosure statement given is incomplete or contains false or misleading information, the tenant may, in addition to exercising any other right, do either or both of the following -
(a) [terminate the lease within the first six months];
(b) apply in writing to the Tribunal for an order that the landlord pay compensation to the tenant in respect of pecuniary loss suffered by the tenant as a result of -
(i) the omission of the landlord to give a disclosure statement in accordance with subsection (4); or
(ii) the giving of an incomplete disclosure statement by the landlord; or
(iii) the giving of false or misleading information by the landlord in the disclosure statement.
(emphasis added)
12 SAT also concluded here, that the conduct of the respondent was unconscionable: see Wy Properties Pty Ltd and O3 Capital Pty Ltd [2014] WASAT 69, [64]. Unconscionable conduct is dealt with under Part IIA of the CTRSA Act.
13 SAT's powers as regards addressing scenarios of unconscionable conduct, are found in s 15F of the CTRSA Act:
15F. SAT's powers as to unconscionable conduct
(1) A landlord or tenant, or former landlord or tenant, under a retail shop lease or former retail shop lease who suffers, or is likely to suffer, loss or damage because of unconscionable conduct of another person that contravenes section 15C or 15D may apply in writing to the Tribunal for an order that the other person pay compensation in respect of the loss or damage, or for other appropriate relief.
(2) [time limit]
(3) Without limiting section 26, in proceedings in relation to an unconscionable conduct application, the Tribunal may make any one or more of the following orders that it considers appropriate -
(a) an order that a party to the proceedings pay money to a specified person, whether by way of debt, damages or restitution, or refund any money paid by a specified person;
(b) [negative declarations]
(4) The Tribunal may make any ancillary orders that it considers necessary for the purpose of enabling an order under this section to have full effect.
(5) [power to impose conditions on orders]
(6) [power to make interim orders]
(7) [definition of 'specified'; not relevant]
(emphasis added)
14 Key references under s 15F(1) are to 'compensation', 'loss or damage' or 'other appropriate relief'. See also s 15F(3)(a). Again, there is no express mention of a power for SAT to award interest, pre-judgment or otherwise.
15 Section 16 of the CTRSA Act says that a party to a retail shop lease under that Act may refer any question arising under the lease to SAT.
16 Finally, in this legislative arena, s 26 of the CTRSA Act provides some general and non-exhaustive powers to SAT to render orders. It provides:
26. SAT's powers to make orders
(1) Without limiting any power to make an order that is conferred by the State Administrative Tribunal Act 2004 but subject to this Act the Tribunal may make -
(a) an order that requires a party to any matter before it to pay money to a person specified in the order; or (emphasis added)
(b) an order for a party to any matter before it to do, or refrain from doing, anything specified in the order; or
(c) an order dismissing any matter before it.
(1a) The power in subsection (1)(b) includes power for the Tribunal to order the parties to enter into an agreement varying a retail shop lease as specified in the order where the Tribunal has found that the tenant under the lease was before entering into the lease misled by the landlord as to the meaning or effect of a term or condition of the lease.
(1aa) The Tribunal may, where it considers it appropriate to do so to resolve the matter concerned, make an order terminating a retail shop lease.
(2) [certificates about alternative dispute resolution]
(3) [time limits may be fixed]
(4) The Tribunal may allow any equitable claim or defence, and give any equitable remedy, in a matter before it that the Supreme Court may allow or give.
17 SAT is also afforded power to issue ancillary orders. Section 73(1) of the SAT Act, says:
73. Condition and ancillary orders and directions
(1) A power of the Tribunal to make an order or give a direction (the primary power) includes the power to make the order subject to conditions and the power to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power.
Interest awarded out of this court
18 As to the present issue of this court's appellate jurisdiction to award pre-judgment interest on an appeal from SAT, the applicant by written submissions of 21 August 2015, only invokes in aid s 32 of the Supreme Court Act 1935 (WA) to that end. This well-used provision reads:
32. Pre-judgment interest, Court may order
(1) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.
(2) This section does not -
(a) authorise the giving of interest upon interest; or
(aa) [not relevant]
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or
(c) [not relevant]
(2a) [not relevant]
19 But the attempted invocation of s 32 by the applicant poses two key questions. The first is whether this appeal from SAT can be correctly viewed as being in the nature of 'proceedings', for the recovery of 'money' within s 32(1). The second question is whether the judgment sum is a 'debt' under s 32(2)(b) on which interest may otherwise be payable, by virtue of some provision in the underlying lease agreement of the parties (or otherwise), regardless of whether the applicant has actually sought to recover pre-judgment interest on that basis.
20 By its brief submissions on the application for pre-judgment interest, the applicant cites the 'Red Book', a reference to Civil Procedure in Western Australia, at [1185.1]. The commentary at that section addresses general principles. It is sufficient for present purposes to note that an award of pre-judgment interest under s 32 is ultimately discretionary.
21 I was not directed by the applicant to any specific case authority supporting the award of pre-judgment interest, being made in an appeal taken to this court from a decision of SAT, involving provisions of the CTRSA Act or the SAT Act.
22 The respondent by its written submissions did not directly take issue with the submission that s 32 provides the jurisdiction to award pre-judgment interest. It mainly argues against a grant of interest on discretionary grounds, principally on the basis that the applicant was never deprived of the use of funds notwithstanding my decision and has instead received a windfall without suffering any loss at all. But what I am troubled by is an issue of jurisdiction to render the award of pre-judgment interest. I must confront that issue, even if the parties do not.
23 Otherwise, the respondent simply repeats by its written submissions, in effect, the same basic error of principle as regards its receipt of and then its wholly unsupportable holding of that rent, which error caused it to lead the SAT off the track and, ultimately, to lose the appeal. The respondent's inability to confront that basic error does not assist me on the antecedent issue as to the jurisdiction of either SAT, or this court on an appeal from SAT, to render an award of pre-judgment interest on the money sum awarded to the applicant in this court as the outcome of the appeal in its favour.
24 The applicant by submissions in reply offers no further submissions addressing the power to award interest.
25 Unassisted by the parties' submissions, I have not been able to identify by independent research any decision of this court, on appeal from SAT in a CTRSA Act matter, or from within the SAT itself upon a CTRSA Act application, under which pre-judgment interest has been awarded.
26 In Morrison and Keycord Pty Ltd[2013] WASAT 174, [76] it appears that costs and interest on a sum claimed, were sought. But as the application was unsuccessful, in the sense that no amount was assessed as outstanding, the issue of pre-judgment interest was not addressed. Reference was made to a presumption in s 87(1) of the SAT Act that each party should bear its own costs in proceedings before SAT. That, however, does not address the issue of the jurisdiction to award pre-judgment interest.
Disposition
27 Four further sub-questions arise from the preceding discussion, namely:
(a) Did SAT have power to award pre-judgment interest in rendering a decision on the application?
(b) If so, does this court therefore have the power to award interest under s 105(9)(b) of the SAT Act in the sense of that being a decision which SAT could make?
(c) In any event may interest be awarded as an order that this court considers appropriate, under the concluding words of s 105(9) of the SAT Act?
(d) Does this proceeding, being an application for review of a decision of SAT by exercising statutory appeal rights under s 105(1) of the SAT Act, otherwise enliven the jurisdiction of the court to award interest under s 32 of the Supreme Court Act?
28 For the reasons that follow, each question should be answered in the negative.
Questions (a) and (b): SAT's power to award interest in these CTRSA Act applications
29 I do not consider that pre-judgment interest can form part of the pecuniary loss, or loss or damage, actually suffered by this applicant, in the sense used by s 6(1)(b) and s 15F(1) of the CTRSA Act. The loss suffered by the applicant is the wasted payments of rent, which would not otherwise have been made, had the respondent complied with the CTRSA Act (see further the primary reasons in Wy Properties Pty Ltd v O3 Capital Pty Ltd[2015] WASC 268).
30 No evidence was adduced before SAT of a further pecuniary loss suffered by the applicant, by reason of not having had an earlier use of these rent payment funds - or possibly demonstrated conversely, were there lost gains the applicant otherwise would have made, by having an earlier use of these rent funds, had they not been paid over as rental payments. Had proper evidence as to some alternate profitable use of the rent funds been led, then some further specific pecuniary loss or damage might then have been proven, under orthodox principles: see Hungerfords v Walker[1989] HCA 8; (1989) 171 CLR 125, 145 - 146 (Mason CJ & Wilson J). But there was no such evidence led before SAT. The provisions otherwise cannot be read as a generic conferral of the power to award a monetary sum such as interest on a discretionary basis, upon the making of a compensatory order for an amount of assessed pecuniary loss or damage.
31 Nor does the text of s 26 of the CTRSA Act, particularly s 26(1), use sufficiently clear terminology, on my view, to confer a power upon SAT to render an award of interest on a standalone basis. That provision looks to clarify the form that orders may take. The text of s 26 certainly does not go as far as to confer a power to issue an unlimited variety of monetary orders, such as might include the award of interest.
32 SAT's ancillary relief power under s 73 of the SAT Act is also not sufficiently wide to support the making of a standalone award of interest, in my view.
33 It follows that an award of interest could not have formed part of the underlying decision issued by SAT, had the applicant succeeded at that level.
34 Accordingly, s 105(9)(b) cannot correlatively confer the power upon this court to award interest whilst determining the appeal.
35 Parliament, of course, is always at liberty to amend the CTRSA Act or SAT Act, were it to consider that the express power to award pre-judgment interest should be conferred upon SAT, as it did, in effect, for the Supreme Court, in re-enacting s 32 of the Supreme Court Act in 1982 (see Supreme Court Amendment Act (No. 2) 1982 (WA)), to achieve that objective in clear terms. Currently, that has not been done for SAT.
Question (c): Other orders that the court considers appropriate
36 On my assessment, the concluding words of s 105(9) of the SAT Act, 'may make any order the court considers appropriate', do not convey a sufficiently clear legislative intent to confer power upon this court to issue an order for the award of pre-judgment interest on a standalone basis, as the outcome of an appeal from SAT.
37 Despite ostensibly wide language, it seems clear that such orders must be confined by the underlying environment from which a dispute has developed, then risen to an appellate level. As I observed earlier, it would be a curious outcome if the appellate jurisdiction could award interest but not the primary jurisdiction.
38 On my view, clearer language, such as that seen deployed under s 32 of the Supreme Court Act, would be required to confer the jurisdiction to award interest on a standalone basis, as an appellate outcome.
Question (d): Pre-judgment interest via s 32?
39 A claim for pre-judgment interest on this basis must also fail.
40 I am not satisfied the present appeal from a decision by SAT in the context of that Tribunal's decision upon a CTRSA Act application can constitute 'proceedings' for the 'recovery of money', within the meaning of s 32.
41 This appeal is effectively an exercise of a statutory appeal right. It is not a general civil proceeding grounded upon a cause of action commenced out of the jurisdiction of the court.
42 The legislative scheme for the application to SAT and a limited right of appeal by leave to this court is seen to be thorough, including as to the powers afforded this court, in determining an appeal.
43 Whilst s 32 may have been applicable, had an action been commenced out of this court by the applicant seeking the successful recovery of the claimed rental amounts, that was never this case. The present proceedings were something different - an appeal from SAT, by leave. In my view, s 32 of the Supreme Court Act is not engaged in these circumstances.
44 The incidental issue is whether the judgment sum is a debt and whether interest is otherwise payable as of right on that debt. But not all judgment sums are a 'debt', as understood by s 32, given that the distinct phrase 'sum for which judgment is given' is employed in the same section.
45 Furthermore, the parties have not pointed to any contractual right to interest under the lease agreement (or otherwise) on 'overpaid' sums. The lease agreement was not included in the appeal book prepared by the applicant, on the agreement of the parties. But the court holds a copy of the lease agreement by reason of the exhibits from SAT being made available. Nevertheless, the issue of a right to interest arising from the terms of the lease was not addressed in the submissions concerning this application for pre-judgment interest.
46 My brief review of the lease agreement has not revealed any such interest right for the applicant. I note that cl 6.4 of the lease agreement only addresses the lessee's (ie, the applicant's) obligations to pay interest in certain circumstances, while a damages clause, cl 23.6, does not address the question of interest at all.
47 On this basis, I conclude that the applicant did not otherwise have a right to pre-judgment interest on the judgment amount, at least under the terms of the lease, for the purpose of s 32(2)(b) of the Supreme Court Act.
Conclusion
48 In the end, I conclude that there is no basis to award pre-judgment interest, as claimed by the applicant on this appeal, and its claims in that respect are dismissed, effective upon the publication of these reasons.
49 Needless to say, this conclusion says nothing about a distinctly different entitlement of the applicant to seek payment of post-judgment interest, by application of s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA), as from 7 August 2015: see generally as to s 8, Rambal v The Griffin Coal Mining Co Pty Ltd[2015] WASCA 197, [89] - [97] (Buss JA, Newnes & Murphy JJA agreeing).
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