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[2008] WASAT 66
procedural. Tribunal held it has jurisdiction to entertain the application and make the sought declarations if established; proceedings adjourned to a further directions hearing on 4 April 2008 (see [44]-[45]).
The Tribunal held it had jurisdiction to hear ITQ's claim that the landlord's conduct was unconscionable and to make declarations about the parties' rights under the Shop 7 lease. The Tribunal rejected the landlord's argument that any declaration would 'create' a new leasehold estate and so be beyond the Tribunal's power; instead, a declaration records the Tribunal's finding and any leasehold interest derives from the parties' contract or conduct. The proceedings were adjourned for further directions.
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2,014 words · generated 04/07/2026
ITQ Pty Ltd (the tenant) and Hyde Park Management Ltd (the landlord) disputed whether ITQ validly exercised an option to extend its lease of Shop 7, The Mezz, Mt Hawthorn. The practical background is: ITQ agreed to relocate from Shop 5 to Shop 7 at the landlord's request, executed the Shop 7 lease (commencing 14 September 2006) which contained an option to extend the term exercisable by written notice not less than three months and not more than six months before expiry, giving an option window between 13 January and 13 April 2007 (see [11]-[12]).
4 cited instruments linked from this judgment.
The landlord delayed returning an executed copy of the lease to ITQ until 23 August 2007 and, during the option window, informed ITQ's lawyers it was awaiting an application to the State Administrative Tribunal (SAT) for approval of certain terms, leaving only three days in the option period (see [13]-[14]). ITQ lodged a SAT application on 29 June 2007; orders were made 11 July 2007 and notified on 13 July 2007, the day the initial lease term expired (see [14]). ITQ later served a notice of exercise of the option on 20 September 2007; Hyde Park refused to extend the lease, asserting strict compliance with the option period was not met, and offered a new lease only on substantially increased terms (see [15]).
ITQ then sought declaratory relief from the Tribunal, alleging Hyde Park's conduct was unconscionable, that Hyde Park waived strict compliance or was estopped from relying on it, and that ITQ should be treated as if it had validly exercised the option (see [22]-[26]). Hyde Park responded that the Tribunal lacked jurisdiction to grant such declarations because any declaration would, in effect, create a new leasehold estate, a power, it said, which belongs to courts of equitable jurisdiction (see [27]-[30]).
A preliminary issue was directed for decision: would a declaration in the terms sought create a leasehold estate and, if so, did the Tribunal have jurisdiction to make it? The Tribunal (Judge J Chaney, Deputy President) determined that it did have jurisdiction and that a declaration would not itself create a leasehold estate. Proceedings were adjourned to a further directions hearing (see [5]-[6], [40], [44]-[45]).
The Tribunal's reasoning is statutory and structural. Its approach proceeded in three steps.
Scope of statutory jurisdiction. The Tribunal examined the CTRSA Act. Section 3(3) defines what is a "question arising under a retail shop lease", expressly including whether a lease exists, matters arising in relation to communications between the parties, and "any other matter ... in connection with the retail shop lease" (see [31]). Section 16 permits referral of questions believed to arise under the lease, while Part IIA (ss 15C, 15D, 15F) creates statutory prohibitions against unconscionable conduct and enables applications for loss or damage (see [16]-[18]). Section 26 and s 15F(3) describe the remedial powers available to the Tribunal, including ordering payments, declaring amounts not due, requiring parties to do or refrain from acts, and ordering parties to enter into agreements varying a lease in specified circumstances (see [18]-[19]). The Tribunal concluded that the matters ITQ raised, misrepresentations, unconscionable conduct, waiver and estoppel claims, fall within the matters the CTRSA Act contemplates and thus fall within the Tribunal's jurisdiction (see [31]-[34]).
Power to make declarations. The SAT Act s 91 permits a judicial member to make declarations concerning any matter in a proceeding, where the Tribunal otherwise has power to make orders in the matter (see [21], [35]-[36]). The Tribunal reasoned that s 91 is exercisable only where the Tribunal has jurisdiction to make orders in the matter but that nothing prevents use of s 91 to make declarations merely because the declaration may have effects similar to equitable relief (see [35]-[37]).
Declarations vs creation of proprietary rights. The respondent's core contention was that any declaration placing ITQ in the position it would have been in had it properly exercised the option would in substance create a new leasehold estate, an equitable act, and therefore lie beyond the Tribunal. The Tribunal rejected that view. It held that a declaration does not itself create a leasehold interest; instead, the legal consequences (including whether an extended term arises) flow from the underlying lease and the parties' conduct. A declaration merely records the Tribunal's finding about legal consequence; it does not create the substantive estate (see [40]). Related equitable concerns were considered: the Tribunal accepted that it has no general inherent equitable jurisdiction (as in Pearce and Germain [2006] WASAT 305) but held that the lack of inherent equitable jurisdiction does not prevent the Tribunal from making statutory declarations or orders where the enabling legislation permits them (see [38]-[39]).
For these reasons the Tribunal found the proceedings were within jurisdiction and that the preliminary objection should be dismissed (see [44]-[45]).
Before this decision practitioners might have thought that because an option exercise results in a new leasehold estate, only a court exercising equitable jurisdiction could grant relief that effectively produced that estate, especially where relief resembles relief against forfeiture. Hyde Park relied on authorities dealing with the proprietary effect of options and renewals (for example Gerraty v McGavin and the other cases cited at [29]) to support that argument.
The Tribunal clarified the dividing line. It reaffirmed that it lacks inherent equitable jurisdiction (endorsing Pearce & Germain as correct, see [39]), but it held that statutory jurisdiction under the CTRSA Act combined with the declaratory power in s 91 of the SAT Act allows the Tribunal to make declarations about parties' rights and to grant statutory remedies in unconscionability cases. Crucially, the Tribunal emphasised that a declaration does not itself create proprietary interests; the existence of rights is a matter of finding as to the legal effect of the parties' conduct and agreements, which the Tribunal can determine (see [40]). Thus, after this decision, tribunals and practitioners should treat declaratory relief under the SAT Act and CTRSA Act as within the Tribunal's power where the matter falls within s 3(3) and remedies are available under ss 15F/26.
This decision therefore confirms that statutory tribunals can, within their enabling statutes, provide relief that remedies consequences of unconscionable conduct even if the relief has effects that, in substance, resemble equitable remedies, provided the source of power is statutory and the declaration or order records or enforces legal consequences rather than 'creating' proprietary estates by fiat (see [35]-[40]).
Passage: "Once it is open to the Tribunal to consider the matters referred to it ... the Tribunal has jurisdiction to grant any of the remedies specified in s 26 or s 15F(3) ... including s 91." (at [35])
Passage: "The making of a declaration by the Tribunal would not 'create a leasehold interest' ... That consequence flows from the conduct, not the Tribunal's declaration." (at [40])
Passage: "I consider that the decision [Pearce & Germain] is plainly correct. But I do not accept that the declarations sought amount, in substance and effect, to a grant of relief against forfeiture." (at [39])
Passage: "It seems to me unarguable that those are matters which are properly within the range of matters that can be referred to the Tribunal for determination." (at [34])
This decision will be engaged where:
A retail-shop tenant raises allegations of unconscionable conduct, misleading conduct, waiver, or estoppel against a landlord in connection with a retail shop lease, and seeks declaratory relief or remedies under the CTRSA Act (see [22]-[25], [31]-[34]).
The landlord argues that the relief sought would amount to creation of proprietary rights (for example extension or renewal of a lease) that could only be conferred by a court exercising equitable jurisdiction; the Tribunal must then determine whether the declaration would merely record the legal consequence of conduct or would improperly create a new estate (see [27]-[30], [40]).
Disputes where statutory remedies (monetary orders, orders for doing/refraining from acts, orders to vary a lease) under s 26 or s 15F are potentially available, and where declaratory relief would be a way to state the parties' rights without purporting to create property (see [18]-[19], [35]).
Practitioners should identify whether the dispute fits s 3(3)'s categories and whether the remedies sought are grounded in the CTRSA Act's statutory powers rather than in a claim for inherent equitable relief.
This deep dive is confined to the instant judgment as the primary source. The Tribunal itself relied on Pearce & Germain [2006] WASAT 305 as a prior Tribunal decision about lack of inherent equitable jurisdiction and approved it as correct (see [38]-[39]). The decision distinguishes statutory declaratory power from inherent equity, preserving the Tribunal's ability to make statutory orders. Users should check subsequent Tribunal and court decisions for how courts have addressed the line between declaratory/statutory relief and creation of proprietary rights; the present decision establishes a template for such reasoning: first establish statutory jurisdiction (s 16 / s 15F / s 26), then consider whether the declaration only records consequences of conduct rather than inventing an estate (see [35]-[40]).
Extension vs renewal distinction: The Tribunal noted a possible legal distinction between an option to "extend" and an option to "renew" a lease (citing Percival v Forster‑Tuncurry) but held it unnecessary to resolve that issue here (see [41]). Where a declaration might purport to effect a different legal mechanism (renewal versus extension), later authorities may need to address whether any practical difference affects tribunal jurisdiction.
Precise boundary between declaratory/statutory relief and creation of proprietary estates: The Tribunal's functional approach, that declarations record legal consequences and do not themselves create estates, is clear in principle (see [40]). But the boundary may be fact-sensitive. Future cases will need to determine when a tribunal's order effectively operates as the functional equivalent of creating an estate and whether statutory machinery suffices to authorise that effect.
Remedies to 'put the tenant in the position it would have been': The Tribunal observed that even without the specific declarations sought, s 26 and s 15F(3) may permit compensatory or ancillary orders (including requiring parties to enter into an agreement varying a lease) to achieve substantive justice (see [19], [42]). How those orders operate in practice to replicate the benefits of a valid option exercise, and their limits, remain to be tested on the evidence at a substantive hearing.
Interaction with other statutory regimes: The applicant abandoned reliance on s 51AC of the Trade Practices Act (see [24]). Where Commonwealth consumer-protection or unconscionability provisions are invoked alongside state retail-tenancy statutes, the interplay of remedies and jurisdictional bases may need further judicial clarification.
Practitioners should prepare for evidentiary presentation at substantive hearings showing causation and precise legal consequence of alleged unconscionable conduct, since the Tribunal emphasised that the precise terms of any declaration may depend on evidence and findings at the full hearing (see [42]).
CITATION : ITQ PTY LTD and HYDE PARK MANAGEMENT LTD [2008] WASAT 66
Commercial tenancy Claim for declarations concerning alleged unconscionable conduct Preliminary issue Whether effect of declarations would be to create a new lease Whether within jurisdiction
Trade Practices Act 1974 (Cth), s 51AC
1 ITQ Pty Ltd is the tenant of Shop 7, The Mezz, Mount Hawthorn. A dispute arose between ITQ and its landlord, Hyde Park Management Pty Ltd concerning an option to extend the lease after expiry of its initial term. The landlord contended that ITQ had failed to comply with the strict requirements governing the exercise of the option. The tenant contended that certain conduct on the part of the landlord was unconscionable and precluded Hyde Park from relying on the strict terms of the lease. It sought declarations to that effect from the Tribunal.
2 Hyde Park argued that the Tribunal had no jurisdiction to make the declarations sought, because the effect would be to create a new leasehold interest. That question was dealt with by the Tribunal as a preliminary issue.
3 The Tribunal examined the nature of matters that can be bought to it under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), and the remedies available in relation to those matters. It concluded that it could make declarations of the nature sought, and that any declarations would not "create" any new leasehold estate. It determined that the proceedings were within its jurisdiction.
4 The applicant, ITQ Pty Ltd (ITQ) is a tenant of Shop 7, The Mezz, 148 Scarborough Beach Road, Mount Hawthorn. The Mezz is a retail shopping centre as defined by the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CTRSA Act) and thus leases of retail shops within the centre are governed by the provisions of that Act. The owner of The Mezz is Hyde Park Management Ltd.
5 The nature of the tenancy under which ITQ currently occupies the premises is in dispute. As a consequence, ITQ commenced proceedings in the Tribunal in October 2007 seeking relief designed to resolve that dispute in its favour. At the initial directions hearings, Hyde Park asserted that the relief being sought by ITQ was not available within the Tribunal's jurisdiction. Upon that assertion being made, ITQ obtained the Tribunal's leave to lodge an amended application. The challenge to the Tribunal's jurisdiction was maintained, notwithstanding the amendment. At a directions hearing on 6 December 2007, Senior Member Raymond identified a preliminary issue for determination, and directed that the preliminary issue be determined before the matter otherwise proceeded. The preliminary issue was expressed to be:
Whether a declaration in the terms sought in par 1 of the orders sought would create a leasehold estate in Shop 7, The Mezz, 148 Scarborough Beach Road, Mount Hawthorn, which does not currently exist; and
If so, whether the Tribunal has jurisdiction to make such a declaration."
6 It is that issue to which these reasons are directed.
7 The determination of the preliminary issue turns upon questions of law. There was, therefore, no evidence received on the hearing of the preliminary issue. Rather, the argument proceeded against a background of facts asserted in the applicant's Statement of Issues, Facts and Contentions filed with the Tribunal. For the purposes of consideration of the preliminary issue, I have proceeded on the assumption that the background facts, as set out in that document, are established. According to the Statement of Issues, Facts and Contentions, the background facts are as follows.
8 Prior to occupying Shop 7, ITQ was a tenant of Shop 5 at The Mezz. The Shop 5 tenancy arose under a lease which had a term of four years ending on 4 May 2007, with a three year option to renew. The Shop 5 lease did not have a clause allowing the respondent to terminate the lease for the purpose of redevelopment of the shopping centre.
9 In or around August 2005, Hyde Park requested ITQ to move its tenancy to a different location in The Mezz, so that Hyde Park could commence redevelopment.
10 ITQ agreed to move to Shop 7 at The Mezz, notwithstanding that it had no obligation to do so. It agreed to move on the basis that Hyde Park paid for its new fit-out costs and relocation costs, and on condition that the new lease of Shop 7 was no more onerous than the lease on Shop 5.
11 Negotiations in respect of the lease of Shop 7 occupied seven or eight months during 2006, and on 30 November 2006, the applicant executed and returned to the respondent a lease of Shop 7, an agreement for lease, and a surrender of the lease of Shop 5. The new lease term commenced on 14 September 2006 and had an initial term of 10 months, expiring on 13 July 2007. Clause 2.3 of the lease is headed "Option to extend" and contained a grant by the landlord to the tenant of an option to extend the lease, initially for three years and two months, with a further option to extend for a further five years. The clause provided that the tenant may exercise the option to extend "if and only if" the tenant gave to the landlord written notice of its exercise of the option not less than three months and not more than six months prior to the expiration of the then current term.
12 Under the terms of the Shop 7 lease, the period for the exercise of the option to extend commenced on 13 January 2007 and expired on 13 April 2007.
13 Having sent the executed copy of the lease of Shop 7 and other documents to the landlord in November 2006, the applicant did not receive a copy of the lease executed by Hyde Park until, ultimately, 23 August 2007. On 10 April, 2007, Hyde Park informed ITQ's lawyers that Hyde Park was still waiting for ITQ to sign an application to the State Administrative Tribunal (SAT) for approval of certain terms to be included in the lease. Prior to that time, Hyde Park did not inform ITQ of the reason for the delay in returning the lease to the applicant. By 10 April 2007, there were only three days left within which to exercise the option to extend the term beyond 13 July 2007.
14 ITQ signed a SAT application and returned it to Hyde Park on 29 June 2007, and Hyde Park subsequently lodged the SAT application. Orders were made on that application on 11 July 2007. The letter communicating the decision was received by Hyde Park on 13 July 2007, the day that the initial term of the lease expired. It was over a month later, on 23 August 2007, that Hyde Park returned the executed lease to ITQ.
15 On 20 September 2007, ITQ's lawyers sent a notice of exercise of option to Hyde Park's agent. Apparently Mr Briers on behalf of Hyde Park had, some time earlier, suggested to Mr Percival on behalf of ITQ that ITQ "did not have a lease" because it had not exercised its option. On receipt of the purported exercise of the option, Hyde Park refused to extend the lease on the basis that the option had not been exercised within the time specified by the Shop 7 lease. Hyde Park offered to grant a new lease to ITQ but only on the basis of a very substantially increased amount for rent, outgoings and other expenses.
16 Section 16 of the CTRSA Act enables a party to a retail shop lease to refer to the Tribunal any question between the parties which "he believes to be a question arising under the lease". The Tribunal is then required to determine whether or not the question referred to it is a question arising under the lease, and to hear the question.
17 Part IIA of the CTRSA Act deals with unconscionable conduct. That part of the Act was introduced with effect from 11 May 2007, and applies only to conduct that occurred after date. Section 15C specifies that a landlord under a retail shop lease shall not, in connection with the lease, engage in conduct that is, in all the circumstances, unconscionable. Section 15D proscribes conduct of that nature by a tenant.
18 Section 15F enables a landlord or tenant who suffers loss or damage because of unconscionable conduct to recover that loss or damage by applying to the Tribunal. Sections 15F(3) to (6) provide:
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) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings.
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.
The Tribunal may impose any conditions that it considers appropriate when making an order under this section.The Tribunal may make an interim order under this section pending final determination of an unconscionable conduct application, if the Tribunal considers it appropriate to do so."
19 Section 26 specifies powers exercisable by the Tribunal in relation to applications bought under the Act. As is evident from the introductory words of s 15F(3), the orders which can be made under s 26 apply to unconscionable conduct as well as to any other proceedings concerning questions arising under a lease referred to the Tribunal under s 16. Section 26 provides:
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 proceedings before it to pay money to a person specified in the order;
(b) an order for a party to proceedings before it to do, or refrain from doing, anything specified in the order; or
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.
The Tribunal may, where it considers it appropriate to do so, make an order terminating a retail shop lease under section 6A.repealed]An order of the Tribunal requiring anything to be done or discontinued may fix the time within which that thing is to be done or discontinued, as the case may be."
20 From the introductory words of s 26, it can be seen that the remedies available under that section are in addition to remedies which are under the State Administrative Tribunal Act 2004 (WA) (SAT Act). That is consistent with s 16(1) of the SAT Act which stipulates that in exercising its original jurisdiction the Tribunal is to deal with a matter in accordance with both the SAT Act and the enabling Act, in this case the CTRSA Act.
The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.The Tribunal's power to make a declaration under subsection (1) is exercisable only by a judicial member.The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under the enabling Act to make a declaration.The Tribunal may at any time make any order necessary or desirable to give effect to a declaration made under subsection (1).A declaration made under subsection (1) is binding, according to its terms, on -
(b) such of them as are specified in the declaration,
22 The form of the application lodged by ITQ is an application under s 16(1) of the CTRSA Act. It identifies amongst the "questions arising under a retail shop lease" an issue as to whether or not Hyde Park's conduct was unconscionable. The applicant might well have used the form of application under s 15F(1) of the CTRSA Act rather than s 16(1). In substance, the application is brought under either or both of s 15F(1) and s 16. Nothing turns on that matter of form since the ultimate nature of the remedy claimed, being a declaration pursuant to s 91 of the SAT Act, is potentially available in either case.
23 The application identifies nine "questions between the parties arising under" the Shop 7 lease. They are as follows:
Whether the lease falls within the ambit of the Commercial Tenancies [sic] (Retail Shops) Agreement[s] Act 1985 [(WA)]?
24 Nothing in the materials before the Tribunal on the preliminary issue indicates any allegations of breaches of the lease by either party, and accordingly the question numbered 2 above does not appear to arise. Counsel for ITQ indicated at the hearing that it abandoned any reliance on s 51AC of the Trade Practices Act 1974 (Cth) in these proceedings.
25 The relief claimed by the applicant is in the following terms:
Declaration pursuant to s 91 of the State Administrative Tribunal Act [WA] that:
(a) the Respondent's reliance on the Applicant's failure to exercise its option strictly in accordance with clause 3.2 of the Lease was unconscionable;
(b) the Respondent is estopped from relying on the failure of the Applicant to give notice of the option strictly in accordance with clause 2.3 of the Lease as a ground for denying that the Applicant has exercised its option to review the Lease;
(c) the Respondent by conduct waived strict compliance with the requirements of clause 3.2 of the Lease; and
(d) the Applicant is entitled to be treated as if the Applicant had properly exercised its option to renew its Lease of Shop 7, The Mezz, 148 Scarborough Beach Road, Mt Hawthorn.
26 As counsel for the respondent pointed out, the use of the conjunctive "and" between subparagraphs (c) and (d) leads to some confusion as to the relationship between the subparagraphs of the application for relief. The construction suggested by the applicant, and upon which argument proceeded, was that the final subparagraph (d) should be treated as a declaration as to the conclusion which follows if the Tribunal were to make a declaration in terms of any one or more of subparagraphs (a), (b) or (c).
27 The ultimate contention by the respondent is that the application is fatally flawed because the Tribunal does not have the jurisdiction to make the declarations sought. In summary, it is said that the Tribunal lacks the jurisdiction because the effect which would flow from the making of any of the declarations would be to create a leasehold interest where none presently exists. It is asserted that the making of declarations having that effect is the preserve of courts exercising equitable jurisdiction, and that the Tribunal has no general inherent equitable jurisdiction.
28 It is said that a new tenancy would be created by the making of declarations, because "in the absence of the orders sought ... (ITQ) is 'holding over' at the premises on the terms of the expired lease pursuant to a monthly tenancy at will". The respondent argues that the orders sought endeavour to place the applicant in the same position as if it had properly exercised the option.
29 If the option had been exercised in accordance with the terms of the lease then, the respondent contends, the effect of the exercise of the option would be to constitute a new leasehold estate and a new lease for a further term - see Gerraty v McGavin [1914] HCA 23; (1914) 18 CLR 152 at 163 which has been applied in Kiami Pty Ltd v Peat Resources of Australia Pty Ltd [1999] WASC 92 at [9]; Mercantile Credits Ltd v Shell Co of Australia Ltd [1976] HCA 9; (1976) 9 ALR 39 per Gibbs J at 50; Newcrest Mining (WA) Ltd v Commonwealth (No 2) [1993] FCA 528; (1993) 119 ALR 423 at 500; and DB Rreef Funds Management Ltd v Commissioner of Taxation [2005] FCA 509; (2005) 218 ALR 144 at [12]. The proposition is put that, strict compliance with the notice requirements of the option to extend not having been met, no new leasehold interest was created at the expiry of the initial term for the Shop 7 lease, and the Tribunal now has no power to create a new leasehold interest.
30 On that basis, it is argued that the Tribunal lacks any jurisdiction to entertain the application as presently presented and that the application should thus be dismissed.
31 I have set out above what the applicant identifies as the questions arising under the lease which it refers to the Tribunal. What constitutes "a question arising under a retail shop lease" is dealt with in s 3(3) of the CTRSA Act. That subsection provides:
(3) A reference in this Act to a question arising under a retail shop lease includes a reference to -
(a) a question whether or not a lease exists or has existed;
(b) a question whether or not a lease is or was a retail shop lease;
(i) in relation to any communication, including a disclosure statement under section 6, between the parties to the retail shop lease, prior to their entry into the retail shop lease, which communication was material to the terms and conditions of the retail shop lease; or
(ii) in relation to the retail shop lease under a provision of this Act;
(d) a matter that is in dispute between the landlord and the tenant under section 12 in relation to -
(i) operating expenses of the landlord under the retail shop lease generally;
(ii) an allocation made under section 12(1)(b) of the proportion of those operating expenses; or
(iii) a determination of the relevant proportion for the purposes of section 12;
(e) any other matter that is in dispute between the landlord and the tenant in connection with the retail shop lease, whether or not that matter is dealt with by the provisions of the retail shop lease."
32 Section 3(3)(a) invites reference to the Tribunal of questions as to whether or not a lease exists. Section 3(3)(e) invites reference to a broad range of matters in dispute between the landlord and tenant, provided the dispute is "in connection with the retail shop lease". A dispute between a landlord and tenant as to whether or not the landlord has acted unconscionably in relation to the lease would appear squarely to fall within the category of matters that might be referred to the Tribunal under s 16. Even if such disputes are not said to be a question arising under the lease for the purpose of s 16, there is a separate entitlement to bring those matters to the Tribunal pursuant to s 15F(1).
33 The matters referred to in the paragraphs numbered 3, 5, 6 and 7 of the list of questions identified in ITQ's application can all be said to be aspects of Hyde Park's conduct which might provide a basis for a conclusion that its conduct was unconscionable.
34 It seems to me unarguable that those are matters which are properly within the range of matters that can be referred to the Tribunal for determination. The question is whether the remedy sought by the applicant is beyond the Tribunal's jurisdiction, and if so, whether the proceedings should be dismissed on that basis.
35 Once it is open to the Tribunal to consider the matters referred to it, either pursuant to its jurisdiction arising under s 16 or its jurisdiction arising under s 15F, it follows that the Tribunal has jurisdiction to grant any of the remedies specified in s 26 or s 15F(3) of the CTRSA Act, or under the SAT Act, including s 91.
36 It is correct, as the respondent submits, that s 91 is a statutory power which can only be exercised by the Tribunal "instead of any orders it could make, or in addition to any orders it makes" in the proceeding. The Tribunal must, therefore, have jurisdiction to deal with the matter, and make orders in relation to it, before it can utilise the power of s 91 to make a declaration. In other words, it is not open to a party to come to the Tribunal seeking a declaration under s 91 in respect of a matter which is not otherwise susceptible to the Tribunal's jurisdiction.
37 It does not, however, follow that the power to grant a declaration is not available where the effect of the declaration might be the same as the effect of the grant of some remedy available in a court exercising equitable jurisdiction.
38 The respondent's contention is that, if the declarations sought (or any of them) are granted, then the Tribunal will, in effect, be granting an equitable remedy. It is not entirely clear to me what equitable remedy is being referred to. The respondent, in its submissions, makes reference to the conclusion of the Tribunal, constituted by the Hon R Viol, supplementary Deputy President in Pearce and Germain [2006] WASAT 305 at [46] to [75] where the Tribunal reached the conclusion that it has no inherent equitable jurisdiction, and no power to grant relief against forfeiture in proceedings bought under the CTRSA Act. As I understand the respondent's contention, it is that the grant of the declarations sought in this case would be tantamount to a grant of relief against forfeiture.
39 The applicant did not contend that the Tribunal has jurisdiction in equity, and did not suggest that the decision in Pearce and Germain [2006] WASAT 305 is wrong. With respect, I consider that the decision is plainly correct. But I do not accept that the declarations sought amount, in substance and effect, to a grant of relief against forfeiture or any other equitable remedy. So long as the Tribunal has jurisdiction to make orders of some kind under the enabling legislation, the Tribunal (constituted by a judicial member) has jurisdiction to make a declaration "concerning any matter in a proceeding". That must include a declaration as to the relevant rights or obligations of the parties. The consequences which flow from the making of a declaration as to rights are not the touchstone of the jurisdiction to make the declaration.
40 The first aspect of the question identified as a preliminary issue was as to whether a declaration in the terms sought would create a leasehold estate which does not currently exist. In my view, the making of a declaration by the Tribunal would not "create a leasehold interest". The option to extend the lease is created by the Shop 7 lease. Whether the extended term contemplated by that lease is to be taken to have been granted may (if the applicant's case is made out) be a consequence of the parties' conduct in relation to the lease. That consequence flows from the conduct, not the Tribunal's declaration. A declaration simply records the Tribunal's finding in relation to the conduct and its consequences.
41 During the hearing I raised a question as to whether the authorities referred to above at [29] concerning the effect of the exercise of an option to renew a lease were applicable to the exercise of an option to extend the term of a lease. The Shop 7 lease is drawn in terms of extension rather than renewal. A distinction between the two appears to have been drawn by Santow J in Percival v Forster-Tuncurry and Districts Chamber of Commerce and Tourism Ltd [1997] NSWSC 383. In view of my conclusion that a declaration does not create rights and obligations, it is not necessary to consider further the question raised during argument.
42 I might add that the argument which has been ventilated on the hearing of the preliminary issue would, at least with the benefit of hindsight in the light of my conclusions, have been better dealt with at the hearing of the substantive matter. That is because it seems to me that the answer to the preliminary issue did not necessarily finally resolve the proceedings even if decided in favour of the respondent. That is because the application for relief was not confined to the declarations sought. The applicant also sought "other orders that the SAT may make with a view to achieving a solution acceptable to the parties of the lease". In the context of an allegation of unconscionable conduct, it is open to the Tribunal to make orders for payment of money or an order that a specified amount of money is not due. Orders analogous to an injunction can be granted under s 26 of the CTRSA Act. If unconscionable conduct on the part of the landlord were made out, it may well be possible to fashion compensatory orders with a view to putting the tenant in a position it would have been but for the unconscionable conduct. All of that may be possible, even if declarations were not made in the terms sought. Furthermore, the precise terms of any declaration that might be made may turn on the evidence adduced at, and findings made after, the hearing of the matter. The Tribunal's jurisdiction arises by virtue of the allegation of unconscionable conduct. It would be open to the Tribunal, if that allegation is made out, to grant a range of remedies which may not precisely match the remedies sought in the application.
43 Whether or not the applicant's case has any merit, and whether or not any of the conduct of the respondent can be categorised as unconscionable, are matters which are not before me for determination at this point in time. Given the range of outcomes which are properly open in the proceedings, it would have been preferable for the whole matter to have been dealt with at one hearing, rather than fragmenting it by the hearing of a separate preliminary issue.
44 For the reasons set out above, I am of the view that the Tribunal has jurisdiction to entertain the application and the matter should now be programmed for further hearing.
45 The proceedings are adjourned to a further directions hearing at 10.00 am on 4 April 2008.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
(1993) 119 ALR 423
(1914) 18 CLR 152
(1976) 9 ALR 39
(2005) 218 ALR 144
Tribunal held it has jurisdiction to entertain the application and make the sought declarations if established; proceedings adjourned to a further directions hearing on 4 April 2008 (see [44]-[45]).