A payment described as consideration for a share in plant and equipment in a food court lease may be characterised as key money under s 9(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) where the substance and reality of the transaction reveals it was a premium for the granting of the lease. The agreement for lease may be found to be a sham where the plant and equipment interest is unrealistic and the payment was described as an 'upfront payment' before any agreement was drafted. An appeal from the Commercial Tribunal to the District Court under s 20 of the Commercial Tribunal Act 1984 is by way of re-hearing, not hearing de novo, but the District Court has broad powers to review findings of fact and draw inferences.
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