Practice note - Another application of the “ultimate consumer” test

His Honour Judge Macnamara in the County Court of Victoria recently handed down a decision that considers and applies the controversial “ultimate consumer” test under s 4 of the RLA 2003.

For some background, see my earlier blog post here.

In the recent case of Access Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC 1563, his Honour considered whether a lease was a lease of retail premises in circumstances where:

1. the lease contained an acknowledgement by the parties that the RLA 2003 did not apply; and
2. the tenant was in the business of manufacturing and installing custom gates. Most of the tenant’s work (by dollar value) involved the supply of gates to builders, not to the owner of the land on which the gate was eventually installed.

In summary his Honour concluded that:

1. the acknowledgement that the RLA 2003 did not apply was of no effect because of s 94 of the RLA 2003;
2. the product that was supplied by the tenant was similar in nature to the product sold or supplied by a builder and, on the basis of English authority, cannot properly be construed on the supply of ‘goods’. As a result, the tenant’s product was properly characterised as the supply of ‘services’;
3. the provision of those services was an ‘input’ into the builders businesses and was, accordingly, consumed by the builders; and
4. as a result, the ‘ultimate consumer’ from Fitzroy Dental and CB Cold Storagewas applied and the lease was found to be a lease of retail premises.

Without deciding the matter, his Honour left open the possibility that the analysis may have been different if the supply was of goods, not services.

Readers are referred to paragraphs [128] and following of the decision for further reading.

This decision is significant, as it suggests that premises occupied by the tenants in the building trades may be considered retail premises under the RLA 2003.

Original post can be found here on Sam Hopper's BLOG - https://samhopperbarrister.com/2017/11/02/another-application-of-the-ultimate-consumer-test/