IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178

1 IMCC Group (Australia) Pty Ltd ('the Landlord') leases a property at Laverton to CB Cold Storage Pty Ltd ('the Tenant'). The Tenant operates a cool storage business using freezer warehouses and related facilities that are built on the property. The Tenant's customers (usually companies involved in the food industry) pay it fees to store their dairy products, small goods, seafood and the like. The Tenant's customers range from large primary production enterprises to very small owner operated businesses and include producers, manufacturers, distributors, importers and exporters. The Tenant also provides ancillary services to its customers such as loading and unloading pallets into the warehouses and arranging the transportation of products to and from the warehouses.

2 The Tenant brought a proceeding in the Victorian Civil and Administrative Tribunal ('the Tribunal') seeking to recover money that it had paid to the Landlord. The basis of the claim was that the moneys were not payable because the leased premises are 'retail premises' under the Retail Leases Act 2003. As a first step, a preliminary question was posed for determination by the Tribunal - "Are the subject premises retail premises under the Retail Leases Act 2003?" In this case, the answer to the question turns on whether the tenanted property is used for the 'retail provision of services.' The Tribunal held that they were not and therefore determined that the preliminary question should be answered 'No'.[1] The Tenant appealed. A judge of the Trial Division allowed the appeal, finding that the premises were used for the retail provision of services and were 'retail premises'.[2] The Landlord seeks leave to appeal from that decision.

3 For the reasons which follow, we would grant leave to appeal. We would dismiss the appeal. In summary, the phrase 'retail provision of services' has long been interpreted by reference (at least in part) to an ultimate consumer test; that is, are the services used by the person to whom they are sold or are the services passed on by the purchaser in an unaltered state to some third person? No distinction has been drawn between commercial and non-commercial users of the service. The Court should be slow to depart from the interpretation of the phrase given to it by the Court over many years. It would only be appropriate to do so if the interpretation was clearly wrong; but that is not the case. Moreover, the legislature has made amendments to the legislation, but has not made any change to the phrase 'retail provision of services.' Consequently, and while not conclusive, the Court may presume that the legislature adopted the interpretation consistently given to the phrase by the Court in the past.

4 Other relevant considerations that inform whether the service is 'retail' in nature include the type of service that is provided and whether it is generally available to any person for a fee.

5 Here, there is nothing in the nature of the services provided that would exclude them from being considered retail services. The services were used by the Tenant's customers who paid a fee. Any person may purchase the services if the fee is paid. The Tenant's customers do not pass on the services to anyone else. They are the ultimate consumers of the Tenant's services.

6 We will now expand on these reasons for our conclusion that the appeal should be dismissed.

The lease, the premises and the Tenant's business

7 The lease began on 1 September 2012 and has an initial 10 year term. Under cl 4(a)(i) of the lease, the Tenant covenanted that it would:

Not use or permit to be used the Demised Premises or any part thereof for any purpose other than as set out in item 11 of the reference schedule or for any residential purpose whether temporarily or permanent or as retail Premises (as defined in the Retail Tenancies Reform Act 1998) nor permit or suffer any storage space forming part of the Demised Premises to be used for any purpose other than storage.

8 The use of the premises is specified in item 11 of the reference schedule as "Cold and cool storage warehouse and transport facility".

9 The parties accepted that the reference to the Retail Tenancies Reform Act 1998 in cl 4(a)(i) could be taken, for present purposes, to be a reference to the Retail Leases Act 2003, and that the relevant effect of this part of the use covenant is simply to constrain the permitted use to that specified in item 11 of the reference schedule. It is not determinative of whether the premises are retail premises under the Retail Leases Act.

10 As mentioned, there are two large freezer warehouses built on the leased property. Inside the warehouses are rows of shelving racks which extend up to the ceilings. Bulk quantities of boxed goods are stored on the shelves.

11 In addition to the freezer warehouses, there is a chiller, forklift charging area, plant room and a ramp down to the loading dock area which the refrigerated semitrailers use to access the dock. The parking area is big enough to accommodate five refrigerated semitrailers. The semitrailers back down the ramp to the loading and unloading area and a forklift either takes the foodstuffs that already sit on pallets from the semitrailer into one of the two freezer rooms or takes a pallet from one of the freezer rooms and loads it on to a semitrailer.

12 At the front of the buildings there is an office. The door has a sign painted on it reading 'Administration Office' and the words 'Laverton COLD STORAGE' appear on the parapet above the door and an adjacent window. There are some car parking bays in front of the building. The office is open during business hours and is staffed by a receptionist. Several sales representatives work in the office. As noted above, the Tenant's customers are usually companies. However, anyone willing to pay the fees can store their goods with the Tenant. Members of the public are entitled to, and do, walk into the office off the street. It is common for customers and prospective customers to come into the office to discuss their needs and the services offered by the Tenant. Prospective customers can take a guided tour of the warehouses.

13 The Tenant has provided its cool storage services to hundreds of customers. At the time of the hearing before the Tribunal, the Tenant had about 20 customers storing products in the warehouses. As noted above, the Tenant's customers are usually companies involved in the food industry, including producers, manufacturers, distributors, importers and exporters. They range from large primary production enterprises to very small owner operated businesses. The items commonly stored by customers are food products such as dairy products, small goods and seafood.

14 Section 4 of the Retail Leases Act provides a definition of 'retail premises'. So far as relevant, s 4(1) provides:

(1) In this Act, retail premises means premises, not including any area intended for use as a residence, that under the terms of the lease relating to the premises are used, or are to be used, wholly or predominantly for -

(a) the sale or hire of goods by retail or the retail provision of services;

15 The only controversy between the parties is whether the leased property is used for 'the retail provision of services.' That phrase is not defined. Its meaning has been considered, however, in a number of cases.

16 In 536 Swanston Street Pty Ltd v Harbrut Pty Ltd[3] Kaye J had cause to consider the meaning of that phrase in predecessor legislation.[4] 'Retail premises' was defined to include 'the retail provision of services.'[5] The leased property in question was used as a restaurant, cabaret and discotheque which were open to the public on payment of an admission fee. Food and drink were available for purchase. Kaye J held that the leased property was used for the retail provision of services. It was 'available to members of the public for the purposes of having their food and drink requirements supplied and services of discotheque entertainment provided to them.'[6]

17 Wellington v Norwich Union Life Insurance Society Ltd[7] concerned a leased property from which a patent attorney practice operated. Again, one of the issues before the Court was whether the services offered by the tenant fell within the phrase 'retail provision of services.' Nathan J stated:

The essential feature of retailing, is to my mind, the provision of an item or service to the ultimate consumer for fee or reward. The end user may be a member of the public, but not necessarily so. In support of this conclusion, I call in aid not only commonsense but the Macquarie Australian Dictionary which defines retail as being a sale to an ultimate consumer, usually in small quantities. When the verb is used in the transitive form, it is to sell directly to the consumer.[8]

18 Nathan J held that the leased property was used for the 'retail provision of services.' His Honour found that the patent attorneys provided advice to the ultimate consumer or end user of it. He noted that the advice may be used by the recipient as the basis for further decisions but it 'comes in a form which cannot be amended.'[9] The patent attorneys' leased premises were therefore used for the retail provision of services.[10]

19 Next is FP Shine (Vic) Pty Ltd v Gothic Lodge Pty Ltd.[11] This case involved leased property used to operate a caravan park. Again the question was whether the property fell within the definition of 'retail premises' which turned in part on whether the property was used for the 'retail provision of services.' Ashley J (as his Honour then was) held that it did. Having referred to 536 Swanston Street, he stated:

In the present situation the business involving the retail provision of services is the provision of serviced caravan sites with necessary ancillaries of kiosk, amenities block and recreation room. It has a retail characteristic, being provision of services to members of the public wishing to avail themselves of the services in return for payment of money. It is no less retail provision of services because they are provided by way of site hire. No doubt, by analogy, the admission to the discotheque in 536 Swanston Street was only for some limited period.[12]

20 In Stringer v Gilandos Pty Ltd,[13] Croft J considered whether serviced apartments owned by the plaintiffs in the Bright Chalet resort complex were retail premises. The plaintiffs leased their apartments to the defendant, who was the operator of the resort. Other units in the resort and the amenities (including the restaurant, swimming pool and tennis court) were owned by the resort operator. The resort operator rented out the plaintiffs' apartments (as well as other apartments) to members of the public for a fee. Croft J held that the plaintiffs' apartments were used for the carrying on of a business involving the sale or hire of goods by retail or the retail provision of services.[14] His Honour concluded that the hiring out of rooms or units for fee or reward to members of the public clearly constitutes the provision of retail services.[15] In reaching this conclusion, Croft J referred to Wellington and described the ultimate consumer test as the touchstone of retailing.[16]

21 More recently, in Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd,[17] Croft J considered the current definition of 'retail premises' in the Retail Leases Act. The leased property was used for a function and conference centre with a café offering food and drinks. Having referred to some of the authorities, his Honour observed that they indicated strong support for the 'ultimate consumer' test as the touchstone of retailing. Croft J did however note that this was subject to the proper characterisation of the 'service' that is being provided.[18] In the case before him, the premises were open to the public, in the sense that any member of the public could book the conference or function facilities for payment of a fee. It did not matter, in his Honour's opinion, that the premises 'may not be "open" for the provision of services during usual ordinary business hours, such as apply to ordinary retail shops or restaurants and bars.'[19] The tenant used the premises to provide a conference centre with an ancillary café to another person or organisation for the purposes of conducting a conference or function. Croft J found that the people attending the conference or function did so for the purpose of education, training, general edification or enjoyment.[20] In this way, the conference attendees received a service both different in nature and extent from that provided to the conference organiser who hired the conference centre.[21] Consequently, his Honour held that the function provider (as the hirer of the function centre) is the ultimate consumer of the services provided by the tenant at the premises.[22] Croft J held that the leased premises were used for the provision of retail services. Again Croft J referred to the ultimate consumer test as the touchstone of retailing.[23]

22 Finally, in Global Tiger Logistic Pty Ltd v Chapel Street Trust,[24] the Tribunal found that premises which were let as an office and warehouse from which a logistic services business was operated were retail premises. The logistic services business essentially consisted of shipping/transport and storage/warehousing. Having referred to Wellington, the Tribunal held that the provision of logistic services is a retail activity as it is a sale of services to an ultimate consumer.[25]

23 What can be seen from the authorities is that the concept of the 'retail provision of services' in the Retail Leases Act and its predecessor legislation is that it involves close consideration of the service that is offered, whether a fee is paid, whether it is a service that is generally available to anyone who is willing to pay the fee and whether the persons who use the service are the 'ultimate consumer'. On one view, to talk of an ultimate consumer of services may appear strained. Most services that are purchased are not susceptible to being passed on to a third person. This may be contrasted with a sale of goods where the difference between wholesale and retail is easily discernible. Nevertheless, the authorities that apply an ultimate consumer test as one indicia of the retail provision of services, are of long standing.

24 The phrase 'retail provision of services' has remained constant in the legislation. It appeared in the Retail Tenancies Act 1986. It was retained when that legislation was repealed and replaced by the Retail Tenancies Reform Act 1998. It appears in the current legislation. Re-enactment of a legislative provision in the same terms after it has been the subject of judicial consideration may not indicate that Parliament intended the provision to have the meaning ascribed to it by a court.[26] But here, when enacting the Retail Leases Act (which replaced the Retail Tenancies Reform Act) the Parliament altered the definition of 'retail premises' to remove the restriction that once applied to exclude premises where the floor size exceeded 1000m² but it did not remove or alter the phrase 'retail provision of services'. Taking that into account and given the pivotal role that the term 'retail premises' plays in the legislation and the attention that its definition (which incorporates the phrase 'retail provision of services') has attracted over many years, the legislature may be taken to have adopted its judicially settled meaning.[27]

25 This conclusion is more easily reached when account is taken of the fact that the legislature has made amendments to the definition of 'retail premises' in the current legislation (Retail Leases Act), but again has not made any change to the phrase 'retail provision of services' which appears in the definition. In this regard, the definition of 'retail premises' was amended in 2005 to include the words 'not including any area intended for use as a residence.'[28] But the definition was not amended to alter the phrase 'retail provision of services.'[29] Moreover, the 2005 amendments also gave the Minister power to determine that certain kinds of premises be excluded as retail premises.[30] The Minister has subsequently made a number of such determinations including in respect of premises leased by a barrister from Barristers' Chambers Limited.[31] The Minister has not made any determination that would exclude from the definition of retail premises the kind of premises that are the subject of this case.

26 Finally, for many years, tenants and landlords have been able to proceed on the assumption that whether premises are retail premises will be affected by whether the ultimate consumer test is satisfied.

27 In the circumstances, the Court should exercise caution before discarding the interpretation that has been applied for so many years.[32] A change in interpretation may be warranted if the earlier meaning given to the section were clearly wrong. But we are not persuaded that it is. Consequently, and while not conclusive, we would approach the task by presuming that the legislature adopted the interpretation consistently given to the phrase by the Court in the past.

28 The Tribunal observed that the phrase 'retail provision of services' is not defined in the Retail Leases Act and stated that the words have no special meaning such that they bear their ordinary meaning as commonly understood.[33] The Tribunal referred to three dictionary definitions of 'retail':

The word retail is defined in the Macquarie Dictionary as:

"n. 1. the sale of commodities to household or ultimate consumers, usually in small quantities (opposed to wholesale), adj. 2. Pertaining to, connected with, or engaged on sale at retail"

In the concise Oxford dictionary it is defined as:

"sale of goods in small quantities at a time and usually not for resale"

In the Collins Dictionary and Thesaurus it is defined as:

"n. 1. The sale of goods individually or in small quantities to consumers".[34]

29 The Tribunal observed that courts and tribunals have considered that provision of services to the ultimate consumer and whether the services are open to the public provide a valuable guide as to whether the services are 'retail services'.[35] The Tribunal held that the word 'consumer' as used in the cases:

means the person who uses the goods or services to satisfy his own personal needs rather than for some business or other purpose. The other characteristic is that the supply in each instance is usually in small quantities for use or consumption by the person to whom they are directly supplied.

That accords with the way ...the word "retail" is used in normal speech. As was pointed out in some of the cases, it is possible for a company or business to be involved in a retail supply of goods or services. For example, a company officer might purchase stationary at a local newsagency and that would be a retail supply. However if the company acquired a large quantity of stationery for on-supply to various purchasers in smaller quantities, that would generally be regarded as a wholesale supply.[36]

30 The Tribunal then turned to consider the meaning of 'retail' in the context of services:

The situation is more difficult to categorise in regard to services where one cannot talk about retail or wholesale quantities. Nevertheless, most people would have no difficulty in categorising a particular supply of services as retail if such were the case.

For example, if a mining company, wishing to sell coal to a power station in India, dispatched a large shipment of coal by rail to a port, the rail operator would be providing a service of transport to the mining company but that service would not generally be regarded, in normal parlance, as being provided on a retail basis. Similarly, when the coal is loaded onto a ship by the Port authority, that again is a service rendered to the mining company but again, that would not generally be regarded as being provided on a retail basis. The same can be said of the services provided by the shipowner. In each case, the service that is provided is a necessary step in a supply chain of a commodity to a commercial customer, being the power station in India, and neither the mining company nor the customer can be regarded as an "ultimate consumer" or "a member of the public" in the sense in which those words appear to have been used in the authorities referred to. One does not get to an "ultimate consumer" or a "member of the public" until the coal is burnt to produce electricity which is then supplied to the power company's customers in India.[37]

31 The Tribunal concluded that 'retail' must have some work to do in the phrase 'retail services'.[38] The Tribunal found that the premises were not 'retail premises' under the Retail Leases Act:

In the present case the use is that of cold and cool storage warehouse and transport facility, involving the receipt, storage and trans-shipment of goods for producers, manufacturers, distributors, importers and exporters. The customers to which the Tenant provides these services range from large primary production enterprises to very small owner operated businesses. Mr Clarke submitted that there was nothing about the provision of these services that would give it a retail character and I think that is right. That is not the ordinary meaning of "retail". The Tenant's services to those customers cannot sensibly be regarded as being a retail supply of services. Indeed, such an interpretation would give the word "retail" in the section no meaning at all.[39]

32 The judge held that the Tribunal made two errors of law. The judge identified that the first was contained in the following passage from the Tribunal's reasons:

In all of these cases the goods or services are rendered to persons variously described as members of the public or the ultimate consumer. The term "consumer" ... in the sense in which it has been used in the cases I think... means the person who uses the goods or services to satisfy his own personal needs rather than for some business or other purpose. The other characteristic is that the supply in each instance is usually in small quantities for use or consumption by the person to whom they are directly supplied.[40]

33 Having analysed the authorities, the judge stated that they did not support the Tribunal's conclusion that a person who uses a service for a business or a purpose other than for personal needs cannot be a 'consumer.'[41]

34 The judge observed that the proper approach was to precisely identify and characterize the 'service' that is being provided at the premises.[42] He stated:

I am of the opinion that the Tribunal erred in holding that customers that used a tenant's service for a business purpose are not ultimate consumers of the service. The service was, in conformity with the permitted use provisions of the Lease, to which reference has been made, provided to those persons - whether corporations or individuals - at the Premises and in terms of that particular service "ultimately consumed" by those persons as and when the goods stored at the Premises were removed. In my view, the Defendant's submissions that these circumstances did not involve "consumption" of the services provided by the Plaintiff at the Premises should not be accepted; both on the basis of the authorities already considered and the clear analogy in this context in the use of the word "consumption", with "use" or other synonyms which might be thought appropriate with respect to the provision of services. Moreover, as the services were "consumed" at the Premises, there was nothing for the recipients of these services to "resupply".[43]

35 The judge then addressed the argument that on his analysis, the word 'retail' with respect to 'services' had little work to do. He reasoned:

Finally, it should be observed that it does not follow that this analysis, on the basis of the provisions of the Act and the authorities, is at odds with general principles of statutory interpretation because it may leave the word "retail" with respect to "services" in s 4(1) of the Act with little work - or little active work - to do. That it may be difficult to contemplate circumstances where the provision of services would be other than "retail" is no basis for an interpretation of these provisions of the Act at odds with the considerations discussed in these reasons and in the authorities which, in my view, indicate strongly the applicability of the "ultimate consumer" test with respect to the provision of "services"; where the nature of such services is precisely analysed. Additionally, this is consistent with the principles of statutory interpretation that words used in legislation are presumed to be used consistently. Though this presumption is rebuttable, there seems little doubt that the word "retail" as used in s 4(1) of the Act is intended to bear the same meaning with respect to both goods and services.

Concluding this discussion reference should be made to submissions on the part of the Defendant which would apply a different approach to the interpretation of the word "retail" with respect to services in s 4(1) of the Act on the basis, broadly speaking, that this would give the word "retail" a meaning - work to do - with respect to the provision of "services". The approach advanced would consider how the premises were used by "invitees" - the tenant's customers or service users - and on this basis, it appears, characterise the services as "retail" or not depending on whether the "invitee" was a wholesaler or, put another way, whether the services are "domestic or are they business". It follows the Defendant submits, that the "ultimate consumer" test has no application to services. The problem with these submissions and this advocating a different approach to the meaning of the word "retail" with respect to services is that there is no basis for it in the language of s 4(1) of the Act. Rather, the language of these provisions requires, in my view, a consistent approach with respect to the meaning of "retail" as applied to both goods and services; a position which is also consistent with the general presumption that words in a statute are used consistently. This different approach is also inconsistent with both authorities, a number of which have been considered in detail, and also the language of these provisions of the Act. For these reasons I reject these submissions and, in particular, reaffirm the "ultimate consumer" test with respect to both goods and services.[44]

36 The second error of law identified by the judge was that the Tribunal had failed to hold that the Tenant's customers were the 'ultimate consumers' of the service it provided.[45] In the judge's opinion:

If the Tribunal had correctly found that the Plaintiff's customers were the ultimate consumers of the Plaintiff's service, it would also have found that the Premises were "retail premises" within the meaning of the Act because:

(a) the Tribunal was satisfied of all other matters necessary to support a conclusion that the Premises were "retail premises"; and

(b) the Tribunal made no other findings that could support a conclusion that the Premises were not "retail premises".[46]

37 The judge allowed the appeal and ordered that the preliminary issue 'Are the subject premises retail premises under the Retail Leases Act 2003?' be determined 'Yes'.

Did the judge properly apply s 4(1) of the Retail Leases Act?

38 The Landlord's ground of appeal and overall submission is that the judge did not properly apply s 4(1) of the Retail Leases Act to the undisputed facts. It submits that the Tenant conducted a commercial operation from the premises, that they are commercial premises and that the lease was a commercial lease and not a lease of retail premises.

39 The Landlord submits that the judge held that the phrase 'retail provision of services' in s 4(1) has acquired a special meaning, namely the application of the 'ultimate consumer test'. The Landlord contends that the judge's reasoning was that the Tenant's services were not re-supplied so that its customers were the 'ultimate consumers' with the consequence that the 'ultimate consumer' test was satisfied making the premises 'retail premises'. Here it says that there was no consumption by the Tenant's customers of the goods that were stored at the premises and certainly no ultimate consumption. No individual uses the premises for storage. For example, the Landlord says that it is not as though a member of the public could buy a frozen turkey for Christmas, store it in the Tenant's warehouse, take it back later, thaw it and cook it for Christmas. Rather, the Landlord contends, the premises are used for business purposes which is inconsistent with retail use; there is no consumer involved.

40 The Landlord says that part of the judge's reasoning was that the nature of the services and the circumstances of their supply are irrelevant to the proper characterisation of the services supplied by the Tenant. But, it contends, they are very relevant and an 'ultimate consumer' test does not determine whether there has been a 'retail provision of services.' Its argument proceeds that if an 'ultimate consumer' test alone sufficed, all services would be 'retail' services because by their nature services cannot be re-supplied. In short, according to the Landlord, use of the word 'retail' by the legislature would be redundant.

41 The Landlord submits that the judge failed to refer to all of the relevant facts as found by the Tribunal with the result that he impermissibly re-opened the findings of the Tribunal. In this regard, it submits that while the judge referred to the Tribunal's findings that (1) the permitted and actual use of the premises was for a cold and cool storage warehouse and transport facility; (2) the premises were open to the public; and (3) that the Tenant's customers ranged from large primary production enterprises to very small owner operated businesses, the judge did not refer to other relevant findings. It contends that it is important to take into account the size of the premises, the significant rental under the lease, that the number of people who can use the services is limited because a large truck is needed to transport the goods to and from the warehouses, the nature of the goods stored at the premises and that there are large quantities of them. In respect of this last point, the Landlord submits that the storage of the goods is part of a supply chain - after the goods leave the premises they will be thawed, then cooked and then eaten by someone other than the Tenant's customers. In short, in the Landlord's submission, the services are not for personal use.

42 The Landlord also contends that the judge wrongly found that the Tribunal had proceeded on the proposition that the authorities exclude from the meaning of 'consumer' a person who uses a service for a business or a purpose other than for personal needs.[47] In the Landlord's submission, the Tribunal did not posit a distinction between business and non-business as a critical, or determinative, distinction to be drawn in deciding whether there was a 'retail provision of services.' The Landlord contends that the Tribunal did not decide that the Tenant's customers were not 'ultimate consumers' of the services provided by it because they used them for a business purpose. Rather, it says that the Tribunal correctly applied the statutory words to the undisputed facts before it.

43 In the Landlord's submission, the judge was concerned (when he should not have been) with the effect of the Tribunal's conclusion; that is that it would significantly restrict the number of tenants who would be protected under the legislation. It observes that here, the Tenant is seeking to use the legislation as a sword (that is, to recover amounts paid under the lease) rather than as a shield. The Landlord submits that the decision of the judge creates commercial uncertainty whereas the Tribunal's decision does not. There is nothing in these submissions. The judge simply made a comment in passing as to the likely effect of the Tribunal's decision. It was not determinative of the issue before the judge. Rather, as will be seen from what follows, the judge properly construed the legislative provision in accordance with the authorities and applied it to the facts as found by the Tribunal.

44 As noted above, the phrase 'retail provision of services' has long been interpreted by reference (at least in part) to an ultimate consumer test; that is, are the services used by the person to whom they are sold or are the services passed on by the purchaser in an unaltered state to some third person? No distinction has been drawn between commercial and non-commercial users of the service. The Landlord wishes to restrict the 'consumer' to the consumer who purchases goods or services for personal use. But that is not the sense in which the authorities have used the word 'consumer.' They have used it in a broader sense to mean a person who uses the service. As the judge identified, that is not the approach that the Tribunal took. Contrary to the Landlord's contention, the judge applied the authorities that have consistently endorsed as a relevant consideration whether the user of the service is the ultimate consumer.

45 The Landlord's focus on what happens to the goods that are stored after they leave the premises is not relevant in this case. That may have been relevant if the question was whether there was a sale of goods by retail. But it is not. It is not a question of consumption of the goods. Rather, the focus must be on the service that is provided by the Tenant.

46 We reject the Landlord's submission that the judge approached the task on the basis that an ultimate consumer test alone suffices to determine whether there has been a retail provision of services. The judge looked at other matters, including whether the services are generally available to any person for a fee. Ashley J referred to the provision of services to 'members of the public' in FP Shine.[48] In Fitzroy Dental,[49] Croft J looked at whether the services were 'open to the public.' On analysis, it seems to usthat their Honours were concerned with whether there were restrictions on access to the service and who could use it. They were not concerned with the characteristics of the user (for example, whether the user was an individual or a business). Both judges relied on Wellington.[50] In that case, Nathan J made it clear that the user may, but need not, be a member of the public.[51]

47 Here, even if one assumes that there may be a limited number of people who use the service (because they need to use large trucks to transport the goods to be stored) that would not matter. In any event, the Tenant does provide transport facilities if required on payment of an extra fee. In short, the Tenant does not impose any relevant restrictions on access. Anyone can use the service and the Tenant's office is open during business hours to customers and prospective customers alike.

48 Of course, in each case it is necessary to consider the exact service that is supplied. Contrary to the submission of the Landlord, that is what the judge did. He identified the services as cold and cool storage services with the adjunct of a transport facility.[52] The judge observed that the services were in line with the permitted use identified in the lease.[53] Here, there is nothing in the nature of the service provided that would exclude it as a retail service. A service offering storage of cold and frozen goods is one which might be used by a wide variety of persons or businesses. The quantity of the goods stored and the size of the buildings do not alter the analysis. Indeed, as mentioned above, the legislature removed the size restriction that had once excluded premises of more than 1000m² as retail premises. So far as the Landlord's reliance on the amount of the rental is concerned, the legislature has seen fit to exclude as 'retail premises' premises in respect of which the occupancy costs (which include rental) exceed a prescribed amount. The occupancy costs in this case fall below that amount.

49 The Landlord's submission that the judge did not take into account all of the facts as found by the Tribunal must be rejected. The judge focussed on the most important facts that were relevant to the issues before him. He then noted that no other finding made by the Tribunal could support a conclusion that the premises were not 'retail premises' under the Retail Leases Act.[54] It was not necessary for the judge to set out all of those other findings.

50 In summary, the services were used by the Tenant's customers who paid a fee. Any person could purchase the services if the fee was paid. The Tenant's business was open during normal business hours. The Tenant's customers have not passed on the services to anyone else. They were the ultimate consumers of the Tenant's services. In isolation, none of these features would suffice to constitute the premises as retail premises. Conversely, the absence of one or more of them, would not necessarily result in a finding that the premises were not retail premises. However, in the circumstances of this case, when all of those features are taken together, the conclusion must be that the premises are retail premises.

51 The judge correctly identified that the Tribunal had made errors of law. His Honour then correctly applied the legislation (as interpreted in a long line of authorities) to the facts as found by the Tribunal. The application for leave to appeal should be granted but we would dismiss the appeal.

[1] CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd [2016] VCAT 1866 ('Tribunal Reasons').

[2] CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd [2017] VSC 23 ('Appeal Reasons').

[3] (1988) V ConvR 54-323 ('536 Swanston Street').

[4] Retail Tenancies Act 1986.

[6] 536 Swanston Street (1988) V ConvR 54-323 64,088.

[7] [1991] VicRp 27; [1991] 1 VR 333 ('Wellington').

[10] See also, Hitech Pathology Pty Ltd v Bankberg Pty Ltd (1999) V ConvR 58-536 in which the Tribunal held that premises from which a pathology business operated were premises which were used to provide retail services.

[11] [1994] VicRp 11; [1994] 1 VR 194 ('FP Shine').

[13] [2012] VSC 361.

[17] [2013] VSC 344 ('Fitzroy Dental').

[24] Unreported, Victorian Civil and Administrative Tribunal (24 October 2012) (Member L Rowland).

[26] R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 388 (Dixon CJ), Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52, 75 [63] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[27] Electrolux Home Products v Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309, 324-325 [8] (Gleeson CJ).

[28] See the current definition set out in [14] above.

[29] Other amendments were also made in 2005 to the definition of 'retail premises' in addition to the amendment to include the words 'not including any area intended for use as a residence'.

[30] Retail Leases Act ss 4(2)(f), 5(1)(c).

[31] Victoria, Victorian Government Gazette, No S 99, Tuesday 27 April 2004, 1.

[32] Platz v Osborne [1943] HCA 39; (1943) 68 CLR 133, 145-146

[35] Tribunal Reasons [59], [61] referring to 536 Swanston Street (1988) V ConvR 54-323, Fitzroy Dental [2013] VSC 344, Wellington [1991] VicRp 27; [1991] 1 VR 333 and FP Shine [1994] VicRp 11; [1994] 1 VR 194.

[43] Appeal Reasons [31] (citations omitted).

[44] Appeal Reasons [32]-[33] (citations omitted).

[47] See [33] above.

[48] [1994] VicRp 11; [1994] 1 VR 194.

[49] [2013] VSC 344.

[50] [1991] VicRp 27; [1991] 1 VR 333.

[51] Wellington [1991] VicRp 27; [1991] 1 VR 333, 336. See [17] above.

[54] Appeal Reasons [37]. See also Appeal Reasons [36] set out at [36] above.