I was in court a few weeks ago expecting to argue why a particular lease was a “retail shop lease”, as defined in the Commercial Tenancy (Retail Shops) Agreements Act, but the Magistrate said it was too complicated for a 3 hour appointment and set it down for another mediation , and a 3 day trial if the matter is not resolved.
You would think that this would be straight forward, but the issue is being hotly contested.
My client’s case is that:
- the premises were predominantly used for the sale of goods; and
- predominantly, those sales were sales by retail, which falls within the definition in the Act.
The problem arises because:
- My clients, the lessees, provided various retail services, as well as selling goods by retail;
- the services part of their business also operated from the premises;
- the services part of the business accounted for most of their income;
- however, none of the services were provided at the premises, and so we say they are not relevant;
- the enemy is arguing that a NSW case applies which states that actual use is not relevant;
- but the NSW legislation is quite different and the WA cases confirm that actual use is all important.
For help commercial lease disputes, please contact Michael Paterson & Associates.