I was up rather late recently correcting errors in a spreadsheet that my client had sent me after 6.30pm and which I had not seen until 10.00pm. One of my associates was off to the Magistrates Court the following morning to try to settle the matter, so it was rather urgent.
It was over 2,000 lines in length and the client had wrongly attributed some sales as retail sales when in fact they were sales to other businesses, and hence wholesale sales.
Despite the errors, over 80% of the sales were retail sales and about 90% of the premises was used for the sale of goods, though my clients also provided services away from the premises.
The result is that the premises were a retail shop for the purpose of the Commercial Tenancy (Retails Shops) Agreements Act 1985, and the landlord was in breach. In particular, we say that the landlord failed to provide annual estimates of the outgoings, and due to a recent WA Supreme Court of Appeal case, Trimat Holdings Pty Ltd -v- Investment Club Pty Ltd [2020] WASCA 63, and the subsequent District Court case, Trimat Holdings Pty Ltd -V- Investment Club Pty Ltd [No 2] [2021] WADC 26, which decided a few other issues, we say that the landlord is not entitled to recover unpaid outgoings for a three year period, and we can recover outgoings which were paid after the associated debts had been extinguished.
Note that the District Court decision is now the subject of an appeal.
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