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1 cited instrument linked from this judgment.

The relevant legislation was the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), referred to in the reasons as the CTRSA Act. The Tribunal identified s 13(7) as a mechanism for approving a ground for termination outside the circumstances otherwise addressed in s 13(6). It also described the tenant’s statutory opportunity to obtain a lease term of up to five years as an important and valuable right, protected by restrictions on a landlord terminating before that period. The background discussion refers to s 13(6)(a)-(d) as the limited circumstances in which the statutory protection permits termination, and to s 13(7) as a route by which the Tribunal may approve a further ground.

The landlords sought approval for clause 5.2, but only when engaged by clauses 5.2.3, 5.2.4 and/or 5.2.5, and for clause 5.4.1. The application materials described clause 5.2.3 and 5.2.4 as covering events such as the tenant going into liquidation or bankruptcy, entering a composition arrangement, or having an administrator, trustee, receiver or liquidator appointed in relation to its affairs or assets. Clause 5.2.5 concerned the tenant abandoning or vacating the premises. Clause 5.4.1 concerned events including resumption or taking for a public purpose, a declaration that the premises were unfit or an order for demolition, and destruction or damage that substantially affected use or made rebuilding impracticable or undesirable in the landlord’s opinion.

The landlords’ stated reasons included concern that, if these events occurred, they might have to continue the lease despite a tenant’s inability to perform obligations, unoccupied premises, or substantial damage. For the damage provisions, they also argued that reinstatement could impose a significant burden. The Tribunal did not accept these stated reasons as establishing special circumstances. The critical question was not simply whether the events could give the landlord a contractual reason to terminate, or whether termination might be commercially useful. It was whether the statutory test for approval was met.

Why the court decided this way

The Tribunal’s reasoning has two related parts: the nature of a special circumstance and the need for the circumstance to be present or genuinely under consideration.

First, the Tribunal said the events identified in the application were not special circumstances as contemplated by s 13(7). It relied on Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47, explaining that a special circumstance must be “special” and that another remedy must not be available or suitable. It then assessed the proposed triggers in the context of the landlord-tenant relationship. The decision lists failure to pay rent, breach of a covenant, tenant liquidation, abandonment, resumption, destruction or damage, and other tenant default as examples of events that could be dealt with in the normal course of that relationship. The proposed triggers therefore did not become special merely because they could give rise to termination under the proposed wording.

This conclusion also reflects the statutory context set out in the reasons. The Tribunal described the tenant’s opportunity to a term of up to five years as an important and valuable right, and described s 13(7) approval as a departure from that protection. The decision treats approval as requiring a specific justification, rather than as a routine means of adding a broader range of termination rights to the lease.

Second, the Tribunal stated that the special circumstance for which approval is sought must exist. It referred to Synicast for the proposition that approval cannot be given in anticipation of an event that may occur sometime in the future. The decision adds that the circumstance must exist or be under serious consideration, and that evidence must be provided explaining why it is special. This was not a request to decide what the parties’ rights would be if a hypothetical event later happened. It was an application for advance statutory approval of provisions covering a range of possible events.

The resumption ground illustrates this requirement particularly clearly. The Tribunal observed that there was no actual proposal for resumption. It also said that it did not have power to approve the resumption clause on the basis put forward because resumption was not a special condition within s 13(7), being something that could be dealt with by other remedies available to the parties. The absence of an actual proposal was an additional, fact-specific reason the ground could not be approved in this application.

The tenant’s consent did not alter the result. The reasons record that consent, but then proceed to assess whether the statutory requirement was met. The dismissal shows that consent alone did not satisfy the Tribunal that the proposed grounds amounted to special circumstances.

Before and after state of the law

The judgment does not describe a change in legislation or announce that it is overruling an earlier rule. It applies the statutory framework in s 13 of the CTRSA Act and relies on the Tribunal’s recent decision in Synicast. The decision therefore should be read as an application of that framework to this particular application, rather than as a statement that the law changed on 4 July 2023.

Before the decision, as described in its background, s 13(6) restricted a landlord’s ability to determine a retail shop lease before the tenant had the statutory opportunity to obtain a term of up to five years. The Tribunal identified specified exceptions in s 13(6)(a)-(d), and noted that approval under s 13(7) is another route where the Tribunal approves a termination ground. The reasons stress that the five-year opportunity is valuable and that s 13(7) is a departure from it.

After this decision, the immediate result was that these applicants did not obtain approval for the specified clauses on the material presented. The decision’s practical guidance is that a proposed event is not enough simply because it may occur, could cause commercial difficulty, or could be written as a contractual termination trigger. The application must identify a circumstance that meets the special-circumstances threshold, establish that it exists or is under serious consideration, and provide evidence explaining why it is special. The decision also emphasises whether another remedy is available or suitable.

The judgment does not set out the full text or operation of every provision in s 13(6), nor does it determine the effect of clauses 5.2.1 or 5.2.2. The landlords’ application expressly distinguished those clauses, saying that rent default and breach of covenant fell within s 13(6)(a) and did not require approval under s 13(7). The Tribunal’s order was confined to clause 5.2 when engaged by clauses 5.2.3, 5.2.4 and/or 5.2.5, and clause 5.4.1. The decision should not be read as deciding the status of excluded or unchallenged clauses.

Key passages with plain-English translation

The Tribunal said: “The circumstances identified by the landlord may give rise to a termination of lease, but those are not ‘special circumstances’ as envisaged by s 13(7) of the CTRSA Act” (Facts and consideration, [6(a)]). In plain English, the fact that an event could be a reason to terminate under proposed lease wording does not itself meet the statutory test for Tribunal approval.

The Tribunal further explained that possible events such as liquidation, abandonment, resumption, destruction or damage were not special because they could be dealt with in the ordinary course of the landlord-tenant relationship ([6(a)]). That is a contextual assessment, not a finding that such events can never be significant in any case. The decision concerned the grounds and evidence in this application.

On timing, the Tribunal stated: “Approval by the Tribunal cannot be given in anticipation of an event that may occur sometime in the future” ([6(b)]). It went on to say that the circumstance must exist, or be under serious consideration, and evidence must be provided explaining why it is special. In plain English, a landlord cannot rely only on the possibility that a trigger may occur later. The application must be anchored to an existing or seriously contemplated circumstance and supported by evidence about its special nature.

On resumption, the Tribunal observed that “there is no actual proposal for resumption in this case” ([6(c)]). It also considered that resumption could be dealt with by other remedies. The plain-English point is that the application did not identify a current resumption proposal, and the Tribunal was not persuaded that the general possibility of resumption justified approval.

The background describes the tenant’s five-year opportunity as “an important and valuable right” (Background, [2]). That phrase explains why the Tribunal approached s 13(7) as a limited exception, rather than treating it as a general power to approve any commercially useful termination clause.

What fact patterns trigger this precedent

The decision is most directly relevant to applications seeking advance approval under s 13(7) for a list of possible early-termination events, where the application relies on the events’ potential to cause commercial inconvenience or loss but does not establish why they are exceptional. The examples considered included insolvency or external administration, abandonment or vacancy, resumption, damage or destruction, and other forms of tenant default.

It is also relevant where a landlord seeks Tribunal approval before a proposed event has happened. The decision’s stated approach is that the relevant circumstance must exist or be under serious consideration, with evidence explaining why it is special. A proposed clause that might apply if a future event occurs is not, by itself, evidence that a special circumstance currently exists.

The resumption reasoning is particularly tied to the facts: there was no actual proposal for resumption. The decision also refers to the availability of other remedies. These points may matter in applications involving a public taking or other external event, but this judgment does not determine every possible consequence of an actual resumption.

The decision is not a general finding on every insolvency, abandonment or damage scenario. Nor does it decide what a landlord or tenant may do after such an event occurs. Its formal order deals with whether the requested lease provisions should be approved under s 13(7) on the application before the Tribunal.

How later courts have treated it

The judgment itself refers to Synicast Pty Ltd and Showroom X Pty Ltd [2023] WASAT 47. It uses that decision to support the propositions that a special circumstance must be genuinely special, another remedy must not be available or suitable, and the circumstance must exist rather than be merely anticipated. The reasons refer to Synicast at [21] in discussing the statutory protection and at [27], [54] and [62] in discussing the Tribunal’s discretion; the special-circumstances and existence propositions are attributed to Synicast at [30].

The source text provided for this analysis contains no decisions that post-date Pinzone and no account of later judicial or Tribunal treatment. Accordingly, it is not possible from this judgment alone to say whether later courts or tribunals have followed, distinguished, or otherwise treated Pinzone. The decision does record that the landlords referred to earlier approval of similar wording, including Kalaui Pty Ltd v Subway Realty Pty Ltd, CC 1230/2010. That reference appears within the landlords’ application materials; the Tribunal’s reasons do not rely on it as a precedent in reaching the dismissal.

Still-open questions

The judgment does not explain what evidence would be sufficient to show that a circumstance is “special” in a different factual setting. It states the need for evidence and the requirement that a circumstance exist or be under serious consideration, but it does not provide a detailed evidentiary checklist or a quantitative threshold.

It also does not determine how the special-circumstances test would apply to an actual, advanced proposal for resumption, as opposed to the absence of any proposal in this case. The Tribunal’s reasoning combines the conclusion that resumption was not a special circumstance of the kind contemplated with the separate observation that no actual proposal existed. The decision does not resolve the treatment of every possible form or stage of public acquisition.

The judgment does not decide whether a particular clause would operate validly as a matter of contract if included without the requested approval, or what consequences would follow if one of the listed events occurred. Its order concerns the application for approval under s 13(7), not a dispute over an actual termination.

Finally, although the decision notes the tenant’s consent, it does not discuss whether consent has any weight in the statutory assessment beyond recording it as part of the circumstances. The result confirms that consent did not lead to approval here, but the judgment does not set out a general rule about the role of consent in other applications.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.