Briridge Pty Ltd t/as Civic Video Springfield v Carter Hall Holdings Pty Ltd [2013] QCAT 473

CITATION: Briridge Pty Ltd t/as Civic Video Springfield v Carter Hall Holdings Pty Ltd [2013] QCAT 473 PARTIES: Briridge Pty Ltd t/as Civic Video Springfield (Applicant) V Carter Hall Holdings Pty Ltd (Respondent) APPLICATION NUMBER: RSL042-13 MATTER TYPE: Retail shop leases matters HEARING DATE: 4 September 2013 HEARD AT: Brisbane DECISION OF: Mr Richard Oliver, Senior Member DELIVERED ON: 4 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for an injunction refused CATCHWORDS: Injunction – where dispute about compensation unrelated to current rent and outgoings – where applicant seeks to set off any award of compensation against current monies payable to the lessor – where no serious issue to be tried. APPEARANCES and REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Carter Hall Holdings Pty Ltd is the centre manager for a shopping centre at Springfield Fair. Briridge Pty Ltd is a tenant of shop 18 at the shopping centre. -- 1 of 3 -- 2 [2] On 17 April 2013 Briridge filed an application for an Order to Resolve a Retail Tenancy Dispute in the Tribunal. The dispute, according to the application, relates to “advertising and loss of income due to changes to the centre made by the landlord” without the knowledge and the consent of the tenant. Details of what is sought by the applicant is set out in the application and generally relate to loss of income and excess expenses. It is unnecessary to particularise it further for the purposes of this application. [3] Because of this dispute Briridge has withheld payment of rent and outgoings in the sum of $58,045.27. As a result of the withholding of payment Carter Hall issued a form 7 Notice to Remedy Breach of Covenant which was dated 15 August 2013. The Notice to Remedy Breach expires at 5pm on 2 September 2013. If the Notice is not complied with the lessor can re-enter possession of the premises. [4] Because of that, Briridge has filed an application, essentially for an injunction, to prevent Carter Hall from proceeding on the Notice to Remedy Breach until the determination of the substantive application filed on 17 April 2013. To be precise, the amount claimed includes the rent, outgoings, a promotion levy, after hours trading cost and GST. [5] Clause 3.4 of the lease provides that the tenant must make payments under the lease without set off, counter claim, withholding or deduction. I have not been provided with a copy of the lease but I accept the contention that clause 3.4 of the lease makes such a provision and rely on the letter from Minter Ellison, Lawyers, of 21 August 2013 to the applicant. [6] The claim for compensation set out in the application is quite distinct from the amounts claimed under the Notice to Remedy Breach. In submissions forwarded to the Tribunal, the applicant says that the Tribunal should restrain Carter Hall from acting on the Notice to Remedy Breach for a number of reasons, and they include: a representative of the respondent, Josh Brown, lied in earlier proceedings about what he knew in respect of the issues raised by the applicant in the application; there is an allegation that money has been lost from car parking reductions and restrictions which, presumably impact on the applicants business; and Carter Hall has been particularly evasive in respect of the issues raised by the applicant and that the matters of concern to the applicant should be subject to an audit which will take place within a month or so. It submits therefore that no action should be taken on the Notice of Remedy Breach until this occurs. [7] The purpose, it seems to me, of the substantive application is to set off any claim for compensation or adjustment that might be awarded to the applicant against the rent and outgoings currently owing to the lessor, and presumably that will be payable in the future. -- 2 of 3 -- 3 [8] The Tribunal will only grant an injunction in certain circumstances. Firstly, it must be satisfied that there is a serious issue to be tried, and secondly that the balance of convenience favours the granting of an injunction. There is also discretion involved. [9] I accept the submissions of Carter Hall that the relief sought in the substantive application is unrelated to the rental and outgoings that are payable under the lease. The applicant has an ongoing obligation to pay rent under the lease and the lease specifically provides that the lessee is not able to offset claims for compensation. [10] I also agree that the balance of convenience does not weigh in favour of the tenant in this situation. The claim for compensation will be determined by the Tribunal in due course however, in the meantime, Briridge must continue to pay rent and outgoings as it has agreed to do under the lease. Furthermore, the contentions raised by Briridge in the application date back for some years and there is no cogent explanation as to why the matter was not pursued before this even though there was an earlier application about the same matters in proceeding number RSL006-11. [11] I also take into account that the amounts currently claimed by Carter Hall under the lease are not disputed. [12] In summary there is no serious issue to be tried about the rental owing or the current outgoings payable in accordance with the terms of the lease particularly in the last three months and secondly, I am of the opinion that the balance of convenience in the circumstances favours the lessor and not the tenant. Therefore, the application for the injunction is refused. -- 3 of 3 --