Beamond & Anor t/a Mission Entertainment v Top Investments Pty Ltd [2015] QCAT 254

CITATION: Beamond & Anor t/a Mission Entertainment v Top Investments Pty Ltd [2015] QCAT 254 PARTIES: Adrian Peter Beamond & Deborah Marie Smith trading as Mission Entertainment (Applicant) v Top Investments Pty Ltd (Respondent) APPLICATION NUMBER: RSL073-14 MATTER TYPE: Retail shop leases matters HEARING DATE: 1 June 2015 HEARD AT: Townsville DECISION OF: Member Carey Member Judge Member McBryde DELIVERED ON: 19 June 2015 DELIVERED AT: Townsville ORDERS MADE: 1. The Applicant pay the Respondent the sum of $15,840.00. 2. No order as to costs. CATCHWORDS: Retail shop leases matters - leasing dispute non-payment of rent APPEARANCES and REPRESENTATION (if any): APPLICANT: Self RESPONDENT: Self REASONS FOR DECISION [1] The Applicant claims to have suffered loss as a consequence of the Respondent’s failure to comply with the Retail Shop Leases Act and compensation as a consequence of those breaches. [2] The orders sought by the Applicant are: -- 1 of 4 -- 2 a) That any rental the Applicant paid during their occupation be deemed the full quantum payable to the Respondent; b) That the Respondent’s counter-application dated 27 November 2014 be dismissed; c) That the Respondent is responsible for any legal fees or other expenses it incurred before, during or after the Applicant’s occupation; d) The Respondent be ordered to pay compensation within 21 days to the Applicant in the sum of $31,000.00 for damages, loss and consequential loss suffered over the forced closure of the Applicant’s business. [3] The Respondent’s counter-application dated 27 November 2014 seeks the following orders: a) That the Application for compensation be dismissed; b) Repayment by the Applicant of the outstanding rent in the sum of $15,840.00; c) Repayment by the Applicant of all related legal fees in the sum of $2,625.55; d) Repayment by the Applicant of interest on overdue rent in the sum of $942.97; e) Cleaning for the rented premises by the Applicant following termination of lease, $752.40; f) Claim for recovery of uncharged rent, $3,226.59; g) Claim for recovery of charge for common lawn service, $220.00 h) Total sum claimed = $23,607.51. [4] The matters not in dispute are: a) The Applicant contacted the Respondent seeking to lease the premises which had not had a tenant for 4 years and had withstood the fury of Cyclone Yasi. b) A lease was never completely finally executed by the Applicant and the Respondent. c) Some terms of the incomplete lease are in dispute, but fundamentally the Applicant agreed to pay $440.00 per week for an initial 3 month tenancy. -- 2 of 4 -- 3 d) When that 3 months expired some further negotiations occurred but in any event no lease was executed. The Applicant remained in possession of the premises for approximately another 12 months. e) The Tribunal finds that this constitutes a month-to-month tenancy that does not attract the operation of the Retail Shop Leases Act (‘RSLA’) (see section 21 of the RSLA). [5] The Applicant has the burden of proving its claim to the civil standard on the balance of probability. The civil standard is not applied as a mathematical or scientific exercise, but as a reasonable search for the truth in the circumstances of each particular case1. As Dickson J (as His Honour then was) explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361- 2 “When the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence of existence before it can be found... Reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequence of the fact or facts to be proved.” [6] It is also important to keep in mind in cases like these the standard test for weighing and applying the evidence is not one of mathematical or scientific exercise, but based on a reasonable search for the truth in the circumstances of each particular case2. [7] As a consequence, Section 43 of the RSLA is of no assistance to the Applicant and the claim for compensation must fail. In any event, there was no evidence put before the Tribunal to substantiate the amount claimed to the standard necessary. The Respondent’s Cross-Application [8] It is not in dispute that the Applicant was late paying rent on some occasions, then reduced the rent under what had become a month-to- month agreement to $330 per week from the agreed $440 per week. This was a unilateral reduction that was not agreed to by the Respondent. [9] The Respondent terminated this monthly agreement, in the Tribunal’s view lawfully, due to non-payment of that rent. The Applicant states that the rent was reduced as “a form of abatement” because the roof of the premises leaked, the lights did not work properly and the Applicant was misled over the size of the tenancy and its utility. [10] There is much email traffic during the relevant period between the Applicant and the Respondent. What is clear is that the Applicant agreed to occupy the premises “as is”. Upon discovering the roof leaked some complaint was made, but that diminished over time, with the result that the Respondent did nothing to repair the leak, because of the lack of information about the 1 TNT Management Pty Ltd v Brooks 1979 53 ALJR 267. 2 TNT Management Pty Ltd v Brooks 1979 53 ALJR 267. -- 3 of 4 -- 4 extent of it. In any event, the Applicant was aware that the roof leaked before they took possession. [11] The Tribunal is satisfied that the payment of rent should not be “abated” as the Applicant states. [12] The Applicant is liable to pay the outstanding rent under the terms of the monthly agreement in the sum of $15,840.00. [13] As for the other items in the Respondent’s counter-application, they can be dealt with as follows: a) Legal fees. 3 amounts in the sum of $2,625.55 were put forward as fees incurred by the Respondent. These are not allowed. There is no evidence to show that legal fees were incurred such as to warrant that they be paid by the Applicant. One of the tax invoices was said to be for preparation for the QCAT hearing. Section 102 of the QCAT Act provides that each party should bear its own costs. These legal fees are not allowed. b) Repayment of interest on overdue rent in the sum of $942.97. This is disallowed. There is no provision in the agreement terms which have been put before the Tribunal that allows for payment of interest. c) Cleaning. Following forfeiture of the agreement in the sum of $752.40. This is disallowed. The premises were not in a happy state at the beginning of the tenancy and it would not be reasonable to order cleaning costs upon termination of the agreement. d) Uncharged rent. The Tribunal has found this is a month-to-month tenancy. Rent was payable on a monthly basis and the Respondent is now unable to now go back and claim for recovery of uncharged rent on the basis of incorrectly invoicing the Applicant. e) Common lawn service. This is not allowed. It does not appear to have been a fundamental term of the agreement between the parties. -- 4 of 4 --