Eugene Choi v Mee Wah To [2011] QCAT 495

CITATION: Choi v To [2011] QCAT 495 PARTIES: Eugene Choi v Mee Wah To APPLICATION NUMBER: RSL047-10 MATTER TYPE: Retail shop leases matters HEARING DATE: 15, 16 September 2011 HEARD AT: Brisbane DECISION OF: Ms Anne Forbes, Presiding Member Ms Sandra Kairl, Member Ms Don McBryde, Member DELIVERED ON: 13 October 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] It is declared that by the lease instrument dated 28 September 2009 the Respondent leased to Ms Choi the premises therein described as having an area of 148 square metres, being the area delineated in the survey plan annexed to the lease. [2] It is further declared that Ms Choi is not liable to pay to Ms To the sums of $544.50 and $495 for legal fees claimed in tax invoice No 2709 from DB Realty to Eugene Choi dated 16 April 2010. [3] It is further declared that the Notice to Remedy Breach of Covenant dated 17 May 2010 issued by the Respondent to Ms Choi is invalid and does not entitle the Respondent to forfeit the lease. [4] The Respondent shall forthwith do all such things as are necessary to deliver up to the Applicant possession of all the 148 square metres demised by the lease dated 28 September 2009, more particularly described as Lot 5 on SP116032 County Stanley Parish Enoggera Title Reference 50335423 that part of the ground floor of the Building erected on the Land as more particularly shown on the plan annexed and hatched in black (“the demised area”). -- 1 of 17 -- 2 [5] The Respondent, her servants and agents are ordered not to interfere with the Applicant’s exclusive possession and quiet enjoyment of the whole of the demised area. [6] Within 28 days of the date of this order, the Respondent shall pay to the Applicant the sum of $10,000 by way of compensation for her failure to allow quiet possession of the whole of the demised area. [7] Within 28 days of the date of this order the Respondent shall repay to the Applicant the sum of $495 together with interest at the rate of 10% per annum from the date of the Respondent’s receipt of the said sum to the date of repayment thereof. CATCHWORDS: Where the Respondent leases retail premises to the Applicant – lease is registered – where demised premises are defined by a plan attached to the lease and hatched in black – where Respondent claims plan attached does not reflect area agreed to be leased – where Respondent alleges common mistake and seeks declaratory orders requiring Applicant to enable changes to the lease to be made – where the Applicant seeks declaratory orders inter alia confirming her title HELD: No operative mistake – alternatively, no evidence of fraud or any action or omission by Applicant led to any mistake – negligence of Respondent or her agents in instructing solicitors – claim by Respondent that she signed lease without reading and never meant to demise premises described therein – evidence not “clear and convincing” sufficient to disturb Land Titles Register Pacific Carriers Ltd v BNP Paribas Ltd (2004) 218 CLR 2007 Franklins Pty Ltd v Metcash Trading Ltd (2009) 264 ALR 15 Riverlate Properties Ltd v Paul [1975] Ch 133 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 JM Kelly (Project Builders) Pty Ltd v Toga Developments No 31 Pty Ltd (No 5) [2010] QSC 389 Anna Kramer & Anor v JW & MM Haylock Pty Ltd -- 2 of 17 -- 3 [2011] QCAT 296 Equity Doctrines & Remedies, Meagher, Gummow and Lehane APPEARANCES and REPRESENTATION (if any): APPLICANT: Eugene Choi represented by Mr D Favell of Counsel RESPONDENT: Mrs Mee Wah To represented by Mr D Chesterman of Counsel REASONS FOR DECISION [1] The Applicant, Ms Eugene Choi, operates a convenience store as tenant of premises in the small Lisson Grove Shopping Centre owned by the Respondent, Ms Me Wah To. A dispute has arisen over the precise area included in the relevant lease, which commenced on 1 October 2009. [2] On 25 May 2010 Ms Choi applied to this Tribunal seeking, inter alia, a declaration that the area on a survey plan annexed to the lease and marked “Lease A” represents the true extent of the leased premises. [3] Ms To then began Supreme Court proceedings, objecting to QCAT‟s jurisdiction in this case, and seeking rectification of the lease by designating a smaller demised area. That action was heard by Fryberg J, who held the claim was properly one for this Tribunal, according to section 94 of the Retail Shop Leases Act 1994 [“the RSL Act”], and that the relief sought by Ms To could be granted in this Tribunal, if it saw fit, by means of a declaratory order under section 83 of that Act. [4] The hearing in this Tribunal occupied two days and the parties were represented by counsel. The Tribunal conducted an inspection of the subject premises and environs on the second day. Orders Sought by Applicant and Respondent Respectively [5] The Applicant Ms Choi seeks: (a) a declaration that the lease comprises premises with an area of 148 square metres on the ground level of the building erected on land contained in Lot 5 on SP116032, as shown as Lease “A” on the survey plan (called herein Plan “A”), presently attached to the subject lease; (b) an injunction requiring the Respondent to deliver up the whole of those premises; (c) mesne profits or rent for that part of the premises not yet delivered up by Ms To, calculated from 1 October 2009 until delivery of the whole, at the rate of $26.22 per day; (d) interest on that sum at the rate of 10% per annum; -- 3 of 17 -- 4 (e) a declaration that Ms Choi is not liable to pay legal fees claimed by Ms To for issuing a Notice of Breach of Covenant under the Property Law Act 1974; (f) a refund by Ms To, with interest, of the said legal fees already paid by Ms Choi; (g) a declaration that there was no lawful basis for the Notice mentioned in “(e)”, above. [6] On her part the Respondent seeks: (a) a declaration that on the true construction of the lease, the demised premises are an area of 42 square metres described as “Existing Shop 4” (“Shop 4”) depicted in the survey plan of Hayes Survey Group dated 2 April 2010 and annexed to Ms To‟s Counter Application as Plan “B”; (b) a declaration that Ms Choi‟s interest under the lease erroneously includes all the area depicted as Lease „A” in Plan “A”; (c) An order that Ms Choi do all things necessary to rectify the registered lease by substituting Plan “B” for Plan “A”, or alternatively, that the lease be rescinded or set aside; (d) costs. Background [7] Ms Choi is the domestic and business partner of Jeong Yuen Moon [known as David]. Both are young South Korean nationals. In 2009 they were in Australia on temporary visas which would soon expire. At first David was in employment, but that ended in June 2009. To extend or renew their visas he and Choi needed paid work. In July 2009 they were introduced to Mr John Miu (known as John) the owner of several restaurants. John needed to liquidate some of his assets because of a recent marriage breakdown. He offered to sell David and Choi a convenience store and Chinese takeaway business owned by a family company, Miu‟s Pty Ltd (“the company”), in the Lisson Grove centre. On an afternoon in late July or early August 2009 they inspected the premises, accompanied by John. [8] At this point it is desirable to describe the location of the subject shop and the Miu family structure. The Lisson Grove Shopping Centre comprises four retail businesses in two buildings. Building One is a residence – a traditional “Queenslander” – above a small convenience store at ground level, and several discrete areas under the same roofline. [9] An architect‟s plan prepared in 20081 shows that the ground level of Building One includes the convenience store, described as “Existing Shop 4” (“Shop 4”) comprising 42 square metres, enclosed by areas respectively described as garage, residential Unit 1, laundry, shop extension, new store and new enclosed area. (From now on the last three named areas are called “the outside areas”.) Shop 4 is effectively an island, cut off from common areas of the shopping centre. 1 Exhibit 1. -- 4 of 17 -- 5 [10] Mrs To‟s husband is George Miu (George) and their son is the abovementioned “John”. Miu‟s Pty Ltd (of which John is sole director) owned the takeaway business and the convenience store. George was actively involved in both. George occasionally lived, or spent rest periods in Unit 1. George and Ms To lived in the house above (Unit 2). John purchased the convenience store business from his sister in 2005 and leased the store from Ms To, under an unwritten agreement. [11] Ms Choi speaks very little English, understands spoken English imperfectly, and in all matters connected with the lease depended on David, who is reasonably au fait with English. Mrs To speaks no English and George and John are her agents. At the hearing Choi and To (and to a less extent, David) were assisted by interpreters. Inspection of the Premises [12] John or George (or possibly both) showed Ms Choi and David the ground floor of Building One, when they (Choi and David) saw that stock and refrigerators were displayed or stored in Shop 4 and in the outside areas. Choi and David told John that Choi would buy the convenience store business and accept the lease offered. [13] A few days after the inspection Choi and David gave John $10,000 in part- payment for the business. At the same time John drew a rough sketch plan of two rectangular areas2. Beside the upper rectangle he noted the agreed purchase price, less $10,000, with the price of stock in trade to be added. The significance of this document is disputed. [14] Choi told John that she wanted a 5-year lease. John instructed solicitor Michael Reynolds to prepare a contract of sale of the business, and Reynolds, or John, instructed another solicitor, Gerard Batt, to prepare the lease. (Apparently Reynolds had previously acted for To, while Batt had acted for the company.) Reynolds forwarded a bundle of survey plans to Batt. Those plans3 included “Plan A” and other plans, dated 3 March 2008, of the leased or lettable areas in Lot 6 of the shopping centre, but did not include the architect‟s Plan “B”. [15] Mr Batt delegated preparation of the lease to a solicitor or clerk in his employ. The latter prepared a lessor disclosure statement and forwarded it to Choi on or about 14 September 2009. This document4 relevantly states that the area of the premises to be leased is 148 square metres, and that the tenant is to pay 51.57% of the outgoings of a lettable area of 287 square metres. No answer is made to a question in that document, namely: “[I]s it presently intended that refurbishment, redevelopment or extension works will be commenced during the term of the lease?” The Lease 2 Exhibit 2. 3 Attachment “GWB2” to affidavit of Gerard William Batt filed 24 August 2011. 4 Attachment “D” to the Application. -- 5 of 17 -- 6 [16] The lease5, respectively signed by the parties on 24 and 28 September 2009 for a term of five years, describes the premises demised as “That part of the ground level of the Building erected on the land as more particularly shown on the plan annexed and hatched in black.” The plan annexed is of Lease A. The agreed proportion of estimated outgoings is 51.57%. The “lettable area” is described as “that part of the Building the Landlord has leased or can lease at a commercial rental”. The garage and Unit 1 are not approved by the local authority as residential premises; it follows that those areas are available for commercial leasing. [17] The business-sale agreement was signed on 28 September 2009; at the same time the landlord signed the lease. The parties admit they did not pay close attention to the details generally, or to any plan attached to the lease in particular. Mr Batt registered the lease. (It may be asked why David was not a party to those agreements; the explanation may be that Choi paid the purchase price of the business by means of a loan from her family in Korea, while ostensibly David was to be her employee to secure a continuation of his visa.) [18] Choi and David began trading on 1 October 2009. Soon afterwards George offered them a lease of Unit 2, the residence above the shop. They accepted, and moved into the house on 1 November 2009. While To and George looked for a house elsewhere they moved into Unit 1. It was agreed that George would assist the newcomers in the shop for the time being. [19] Meanwhile John volunteered to introduce Ms Choi and David to a migration agent who could obtain the required visas. John told them that it would cost them $24,500, which they gave him in two amounts in December 20096. However, after discovering that the true cost of obtaining visas was less than half that amount, Ms Choi and David sued John for the balance in the Magistrates Court. In May 2011 John was ordered, by consent, to repay about $13,000, with interest. [20] The relationship between Choi and David on one side and the Mius on the other soon deteriorated further. George showed no inclination to move out of Unit 1, and was still there in March 2010. [21] Ms Choi requested a stamped copy of her lease; after some correspondence between the lawyers Mr Batt produced the document with the attached Lease A” in March 2010. Choi told George to vacate Unit 1 and instructed James Wright, solicitor, to take appropriate action. George eventually left in mid May 2010 but he has since refused to allow Choi access to Unit 1 or the Garage. [22] In May 2010 To‟s solicitor served Choi with a Notice to Remedy Breach, claiming costs paid by his client to John‟s estate agent in that regard. Choi paid approximately $495 in response to that demand, and now seeks to recover that amount as moneys unlawfully received. 5 Attachment “C” to the Application. 6 Exhibits 8 and 9. -- 6 of 17 -- 7 Evidence for the Applicant [23] Ms Choi says that in her initial talks with John, towards the end of July 2009, he offered to sell her several of his businesses, mentioning amounts in the vicinity of $1m. But by the time she and David first went to Lisson Grove, in August 2009, they had decided that they could afford only the convenience store, and told John as much. They agreed to buy the business for $168,000. [24] In the late afternoon of a day in early August 2009 John‟s father George, with John present, showed them round the property. At that time the shop, its stock and refrigerators extended to Shop 4 and to all of the outside areas on the ground floor of Building One. [25] On the same occasion they saw the laundry and so much of Unit 1 as was visible from the doorway. (Choi did not enter the unit for fear of George‟s dog.) John told them that his parents would move out soon, and in the meantime, could help them learn the business. George also said: “You are young; there are lots of things you can do to make money. You can store stock in the garage and put a small takeaway shop in the other area.” Referring to the rent of $650 per week John said: “It’s cheap for the amount of space you’re getting. More than twice…”. Choi denies that George disclosed an intention to re-develop part of the ground floor area. It was on that day that Choi told John that they would buy the business. [26] Later in August 2009 John asked Choi for a deposit on the purchase of the business and she paid him $10,000. At the same time John drew a rough map of the premises, noting the balance of the purchase price beside it7. According to Choi John then said “When my father moves out you can stay where he’s living. You’re paying for that area anyway so you can save money and pay me faster.” As Choi had not, at that stage, seen inside the garage or Unit 1 John drew a second rectangle, marking the garage area with the letter “G”. [27] To invoiced Choi for 100% of the outgoings of the ground floor until Choi reminded her that the lease stipulated 51.57%; the charge was then reduced. [28] Choi contends that her agreement with John, as agent for To, was for a lease of the entire ground level of Building One, as indicated in Plan “A”. She states that she would not have bought the business nor entered the lease if any smaller area had been assigned to her. She affirms that David dealt with Asahi Lawyers on her behalf. [29] Ms Choi says that neither she nor David used the garage, or Unit 1, after these proceedings began in May 2010. [30] David Moon says that in July 2009 he had 28 days to secure an extension of his visa. He and Choi were friends of John and John‟s partner Diane. They discussed the visa problem with John at his restaurant, and it was then that 7 Exhibit 2. -- 7 of 17 -- 8 John offered to sell them several of his businesses, including a convenience store and Chinese takeaway. He told them: “If you purchase the shop you can live in the residential area next to it, where my father lives. He will be moving out shortly.” [31] On their first visit to the shopping centre in August 2009 David and Choi inspected the whole of the ground floor level, other than the front two-thirds of Unit 1, which was obscured by a large wardrobe. John pointed to Unit 1 saying: “That’s the place I was talking about. You can stay here.” George interposed: “It’s not a good place to stay but you could stay there and look after the shop. I’m moving out … roughly one month.” [32] David, cross-examined, denied that George mentioned any re-development plans. He stressed that he and Choi would not have made either agreement if any such plan had been disclosed. [33] John said that they would be charged $650 per week for the premises, which was the amount he (John) was paying to his mother. [34] David saw that the business, its stock and chattels occupied Shop 4, and all the outside areas. Shop 4 had a glass door, but the other ground floor areas were fitted with roller shutters. According to David that is still the case. [35] David says that John assured them that they would be leasing an area larger than the takeaway shop next door, and that they could expand the shop itself by moving its front to the line of the roller doors. He also said: “This is cheap for the amount of space you are getting.” [36] The negotiated price for the business, $168,000 was to include $28,000 that was not to be disclosed in the Contract of Sale. According to David, John‟s explanation for the non-disclosure was that he (John) did not want his estranged wife to know the full amount paid for the business. [37] David affirms Choi‟s evidence about the creation and the significance (to her) of the rough sketch plan that is Exhibit 2. In the same conversation John responded to David‟s concern about undercover parking, reminding him that part of the area they were about to lease could be used as a garage, and sketching the garage area on Exhibit 2. David says that when George gave them the keys to the ground floor they included a key to the garage. However, it was broken when George was opening the roller door to display the garage. [38] David began to distrust the Miu family and the relationship deteriorated for several reasons: George‟s continuing presence in Unit 1; his interference in the shop, and the deception by John in connection with the visa transaction already mentioned. When David heard that George was talking about leasing the shop storage area, he reminded George that it was already subject to Choi‟s lease, and he and Choi demanded a true copy of the lease. Evidence for the Respondent -- 8 of 17 -- 9 [39] Ms To says that she does not read or speak English at all and that George and John are her agents in all her business dealings, including the subject lease. She was not personally involved in negotiations for the lease. She says that John was entitled to occupy Shop 4 under an unwritten lease and that he had an informal licence to use the outside areas for his stock, refrigerators and displays. The lease to Ms Choi was to be on the same terms as John‟s lease, but she meant to lease only Shop 4. She did not read or otherwise check the lease before she signed it, nor did she have it read or explained to her in her native language. [40] The rent stipulated in the lease was below the market rate for an area of 142 square metres. Choi paid the same rent as John, although she claimed much more space than John was allowed. [41] To says that she that in March 2008 she obtained a permit to extend the ground floor area of Building One8. The necessary survey plan9 was commissioned by John‟s former wife. John first showed it to her in March 2010. Until then she was not aware that it covered the entire ground floor. [42] George Miu says that when John ran the shop he (George) or Ms To assisted when John was busy. Neither the shop extension nor the new enclosed area was meant to be part of Choi‟s lease. George occasionally slept downstairs but intended to move. In a pre-lease discussion he told Choi and David that he planned to build new retail shops downstairs but would allow them to use the areas outside existing shop 4 on a temporary basis. He did not take them into the garage nor show them the area used for storage of personal effects. He did not read the lease or check the attached plan before the lease was executed. [43] John Miu states that he is the sole director of Miu‟s Pty Ltd. He purchased the convenience store from his sister in or about 2005. After Choi and David inspected the shop they had a number of conversations with George. The general terms of the lease were inserted in the sale contract, including the provision “exclusive use-convenience store only”, which was meant to refer to shop 4 only. Ms To allowed the tenant to use areas outside the shop for storage and display but they were never part of the lease. The company never used those areas, and the convenience store was confined to shop 4. He had no formal lease with Ms To. [44] He made it clear to Choi and David that they needed to speak to George about using the outside areas. He knew that To intended to re-develop Building One by increasing the number of shops from one to three, and he discussed this with David. [45] John affirms that he drew the two rectangles that appear on Exhibit 2 but maintains that the lower rectangle represents the Chinese takeaway shop, not the garage. 8 Attachment MWT 4 to affidavit Me Wah To file 16 August 2011. 9 Attachment GWB2 to Affidavit of Gerard William Batt filed 24 August 2011. -- 9 of 17 -- 10 [46] John instructed Mr Batt to prepare the lease to Choi, and told Batt that it was to include only shop 4, and not the other ground floor areas. He did not see To read the lease (or have it read to her) before she signed it. [47] Plan “A”, as attached to the lease, was prepared by his former wife in 2008. The relationship between Choi and the Mius deteriorated early in 2010 after David demanded a copy of the lease, and Ms Choi claimed rights to the entire ground level. [48] In 2010 To obtained development approval for the new enclosed area to become a new shop and for shop 4 to be expanded. [49] John denies all the statements attributed to him by David. [50] Gerard Batt, solicitor, says the instructions he received from Reynolds were to the effect that the lease was to occupy part of the ground floor. He did not deal with any of the Mius. Reynolds gave him a bundle of plans, including Plan “A”, which represented a lease including the whole of the ground floor. That Plan became the annexure to the lease10. [51] He delegated the actual preparation of the lessor‟s disclosure statement and the lease to a person no longer in his employ and now unavailable to testify. The disclosure statement records the following information:  Area of the shop –148 square metres;  Total lettable area of the centre 287sq m;  Type of business: convenience store;  Proportion of outgoings payable: 51.57%  (Question) Has the local authority approved plans for future alterations or additions to the centre – (Answer) No;  (Question) Is it presently intended that refurbishment, redevelopment or extension works will be commenced during the term of the lease? Question unanswered. [52] Cross-examined, Mr Batt stated that when he prepared lessor disclosure statements, he would not speculate or assume a response to a question on the form, without specific instructions on the point. He agreed that the question about development plans was “probably” left unanswered because he had no relevant instructions from the client. [53] The lease was drawn from information in the draft contract for sale of the convenience store business. [54] The affidavit of Michael Reynolds, solicitor, is brief in the extreme. He says that he acted for John in the sale of the business and that Ms To executed the lease in his office. Ms To did not read the lease before she signed it, and Reynolds does not suggest that anyone read or explained it to her in her 10 The bundle of plans: Attachment GWB2 Affidavit Gerard William Batt, consists of plans of the five leased areas in Buildings 1 and 2 of the shopping centre labelled A-E. The plan marked Lease A, comprising 148sq metres coincides exactly with Plan A attached to the lease. -- 10 of 17 -- 11 own language. Reynolds himself did not read the lease. He does not reveal any instructions he received about terms of the lease, or any instructions he passed on to Batt. Respondent’s Submissions [55] Counsel for Ms To submits that the facts point to a common mistake, and that the only area agreed to be leased was the 42 square metres of Shop 4. The annexed Plan “A” does not reflect the true agreement between the parties. It is the result of a mistake caused by haste to complete the transaction and a consequent error by To or her agents. [56] Other evidence, written and oral, and post-contractual conduct of the parties indicates their true intentions. In particular:  Choi and David could not have thought they were entitled to the entire ground floor as the area described as “new store” on the development plan (Exhibit 1) is concealed behind a fence;‟  Pre-contract, John told Choi and David about the development plans and advised them to consult Ms To about that aspect of the matter;  Ill feeling of Choi and David toward the Mius has coloured their evidence;  The disclosure statement is irrelevant because there is no evidence that Choi read it;  The expression “exclusive use” in the sales agreement indicates that the tenant was entitled to exclusive use of shop 4 only;  Neither Choi nor David demanded rent from George or asked him to leave before they saw the lease with Plan A annexed;  Choi is not entitled to rent for George‟s occupation of Unit 1, because he had Choi‟s permission. Applicant’s Submissions [57] The position is simply this: We have a registered instrument that records a demised area of 148 square metres and depicts the area concerned. Ms To bears a heavy onus to prove otherwise. Lease “A” on Survey Plan A is consistent with the Lessor‟s disclosure statement. The sale agreement is subject to the lease; if the lease falls, so does the sale. [58] Considered objectively, the evidence reveals no mistake in the parties‟ minds. Choi was given keys to all areas on the ground floor of Building One. The shop would be cut off as an “island” if To‟s version were accepted. It is undisputed that convenience store stock was stored in all outside areas when the premises were inspected before the lease was signed, and that is still the case. [59] The evidence of redevelopment plans should be viewed with scepticism, as neither John nor George appeared to know much about them. If they ever existed, To could not have prepared the necessary documents herself. [60] The evidence of the two solicitors for Ms To and John respectively, does not make clear who actually instructed them or what their instructions were. -- 11 of 17 -- 12 [61] Ms Choi seeks inter alia a declaration to dispel any doubt about her title to the whole of the ground floor. The Law [62] Ms To pleads common mistake and seeks rectification. The Tribunal has no jurisdiction to grant such relief. However, if the evidence warrants it, the Tribunal may grant a declaration that the true area of the lease is confined to Shop 4, or, alternatively, that the area demised is as described in the existing instrument. [63] The question is one of the “objective intention” of the parties, as revealed by the evidence11. The Tribunal must demand “clear and convincing proof” of an alleged common intention that is not reflected in the instrument as it stands12. [64] Here it is pertinent to consider:  What one party, by her (or her agent‟s) words and conduct would have led the other party to understand was offered as the subject of the lease;  The common intention insofar as it may be inferred from the parties‟ speech or writings during their pre-contractual dealings, in the light of what a reasonable person would understand from the language used;  What a reasonable person would apprehend from the terms of the lease;  The surrounding circumstances and the purpose of the transaction13. [65] A party seeking to overturn a document signed by him or her may not rely on the excuse: ”I did not read before I signed it” or on some other operative negligence. Absent fraud, such a party is bound by the terms of the document whether or not that party read the agreement or knew of its terms14. In Riverlate Properties Ltd v Paul [1975] Ch 13315 the parties executed a lease prepared by the solicitors for the lessor. Certain terms accorded with the intention of the lessee but not of the lessor. Russell LJ at 140 posed these questions: “Is the lessor entitled to rescission of the lease on the mere ground that it made a serious mistake in the drafting of the lease which it put forward and subsequently executed, when (a) the lessee did not share the mistake, (b) the lessee did not know that the document did not give effect to the plaintiff's intention, and (c) the mistake of the plaintiff was in no way attributable to anything said or done by the lessee? What is there in principle, or in authority binding on this court, which requires a person who has acquired the leasehold interest on terms on which he intended 11 Pacific Carriers Ltd v BNP Paribas Ltd (2004) 218 CLR 2007 at 451. 12 Franklins Pty Ltd v Metcash Trading Ltd (2009) 264 ALR 15 at [451]. 13 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]; JM Kelly (Project Builders) Pty Ltd v Toga Developments No 31 Pty Ltd (No5) [2010] QSC 389. 14 See Toll op cit and Anna Kramer & Anor v JW & MM Haylock Pty Ltd [2011] QCAT 296 per Member Favell. 15 Cited by the learned authors of Equity Doctrines & Remedies, Meagher, Gummow and Lehane, 2nd Edition at [1407]. -- 12 of 17 -- 13 to obtain it, and who thought when he obtained it that the lessor intended him to obtain it on those terms, either to lose the leasehold interest, or, if he wished to keep it, to submit to keep it only on the terms which the lessor meant to impose but did not? In point of principle we cannot find that this should be so. If reference be made to principles of equity, it operates on conscience. If conscience is clear at the time of the transaction, why should equity disrupt the transaction?” [66] It was held that such a mistake is no ground for rectification or for rescission in equity. Consideration [67] The lease and Plan “A” registered by Mr Batt for the lessor shows that the whole ground floor (148 square metres) is the area demised. The apportionment of outgoings in the lease and disclosure statement accords with the area stated in each document. There is no ambiguity on the face of the instrument. [68] Ms To‟s plea of common mistake requires the Tribunal to ascertain the intention of the parties, as objectively revealed in the evidence. [69] Each party questions the credit of the witnesses for the other. Evidence going to credit was admitted without objection on either side. [70] John Miu dispensed with an interpreter and demonstrated that he is quite at home with English, and the Australian idiom. He was extremely evasive under cross examination, alternately vague or captious in his answers, and gave the distinct impression that he did not intend to assist the Tribunal. Remarkably, he professed forgetfulness when asked whether he had been sued by Choi and David to recover the excess of $24,500 paid to him to facilitate the renewal of visas. Yet those proceedings ended in a consent judgment for the plaintiffs less than 4 months prior to the hearing in this Tribunal. John‟s eventual admission of those facts was obtained with some difficulty, after a reminder of the significance of the oath. In view of this occurrence, as well as the concealment of part of the price of the business, and John‟s dealings with the “visa money”, his credit is not enhanced. Where John Miu‟s evidence conflicts with that of Ms Choi and David, we distinctly prefer the latter. [71] For all practical purposes, To‟s agents in the subject dealings were George and more particularly John Miu, as Ms To readily conceded. Ms To presents as an elderly lady, without literacy in English, and with no apparent ability to engage architects, surveyors or solicitors. She was not an active participant in any relevant discussion with Choi or David. Indeed, when John was asked about his part in his parents‟ business affairs, he simply replied: “We are family”. John is clearly the more articulate and entrepreneurial member of the family and we find that that he, rather than George, was Ms To‟s alter ego in negotiating and concluding the lease. [72] Even before the initial inspection John told Choi and David that Unit 1 was available if they wanted it. According to David, whose version we accept, -- 13 of 17 -- 14 John pointed it out to them when they were inspecting the rear of the building. Neither John nor George suggested that there would be additional rent for the use of Unit 1 or the garage, or that a separate lease or licence would be needed for that purpose. [73] According to Ms Choi, whose evidence we accept on this point, the sketch plan (Exhibit 2) was drawn by John, after the first inspection. We are satisfied that Choi and David had already told John that they could only afford the convenience store. In those circumstances, we find it improbable that John would later make them a sketch of a part of the shopping centre in which they expressed no interest, namely the takeaway. Significantly, while John noted the price of the convenience shop on that sketch, he did not note a price for the takeaway. [74] The small size, and especially the “island” character of Shop 4 tend to discredit the lessor‟s story. During its own site inspection the Tribunal noted the diminutive area of the shop itself, and the fact that it cannot accommodate all the necessary refrigerators. We observed drink refrigerators, unpacked stock and a vending machine distributed in all the outside areas. Shop 4 would simply be inoperable without guaranteed access to the rest of the ground floor. [75] John claims to have told David (for Choi) that she would have to ask Ms To for a licence to use the outside areas. However, no such facility was ever offered, and apparently no one instructed Mr Batt to prepare such a document or to include a suitable term in the lease. [76] In the agreement for sale of the business, under the heading ”Buyer‟s Requirement for New Lease of Premises” there appears the special condition (Clause 25T(n)): “Exclusive use – Convenience store only.” We reject the interpretation, offered on behalf of Ms To, that the lease is confined to Shop 4. As we read the document, it confers a benefit rather than imposing a limitation. That is to say, it means that no other tenant would be permitted to operate a convenience store in what is, after all, quite a small shopping centre. Furthermore, this special condition does not appear in the lease. [77] The development plans relied on by the Respondent were said to have been prepared for John‟s ex-wife, and at all material times, the contents were unknown to Ms To. Cross-examined, George said that he knew nothing about a plan for an extension to the shop. John would only say that he had some social contact with the architect involved. [78] Exhibit 11 is an application to the local authority, dated 20 August 2007, to reconfigure Lots 5 and 6 by adding a floor area of 42.36 square metres to Shop 4 in Lot 5 and two additional parking bays in Lot 6. Exhibit 12 shows that the areas we have called “the outside areas” have a combined floor area of 43.85 square metres. It appears, then, that these areas were to be added to Shop 4. However, there is no evidence of approval being sought or given for additional and separate retail outlets. There is no support here for a claim that the lease must have been confined to Shop 4 because part of the ground floor was already earmarked for another business. When the -- 14 of 17 -- 15 lease was executed, the approval to extend Shop 4 had lain dormant for 18 months. [79] We find therefore that neither John nor George told Choi or David that there would be a re-development during Choi‟s tenancy. The unanswered question in the disclosure statement supports this finding. [80] We are unimpressed by the excuse that urgency to set up the lease led to the mistaken annexation of Plan A. It took the solicitors a month to produce the disclosure statement and a further two weeks to complete drafts of the lease and sale agreement, allowing the parties ample time to reconsider. [81] George gave Choi and David a bundle of keys; according to David, they fitted all downstairs doors, including the laundry and garage. George denies this, but for reasons of credit already detailed, we prefer David‟s evidence on this point to George‟s. Furthermore, we are satisfied that during the Tribunal‟s site inspection George, in the presence of the parties and the lawyers, said that David had a key to the garage. [82] We have observed that David has a fair command of English, and made only occasional use of an interpreter. The Respondent‟s counsel did not suggest that he mistook what Ms Choi was offered. We are satisfied that language difficulties did not lead to any operative mistake. [83] Did the solicitors for To misapprehend their instructions? John claims that he instructed Mr Batt, but the latter (released from client privilege) testified that he had no dealings with the Mius. We accept Mr Batt‟s evidence. [84] Annexed to Batt‟s affidavit is a bundle of correspondence between himself, Mr Reynolds, and solicitors who formerly acted for Choi. There is no reference in that material to any proposal to redevelop the ground floor. Nor is there a record of instructions to limit Choi‟s lease to part of the ground floor. Mr Batt states that he has no diary notes or other records relevant to this matter. It appears that Batt, on the basis of the plans supplied to him, correctly inferred that no such limitation applied. [85] For Ms To, some reliance was placed on the fact that Choi did not tell George to vacate Unit 1 until March 2010, some six months after she took possession. It was suggested that she did not assert a right to the entire ground floor until she saw a copy of the lease, and that she had no honest belief that she was entitled to that area. We reject this contention. Ms Choi impressed us as a quietly spoken and rather nervous young woman. Asked why she was slow to evict George she said: “I had no power.” We accept that this was her subjective belief. (Besides, she was initially grateful to John Miu for not insisting on prompt payment for money owed for stock.) When David was asked the same question he replied: ”I not want to make a disturbance”. [86] We accept that, with their right to stay in the country uncertain, and their considerable debts borrowed to obtain the business, they would have been hesitant to “rock the boat.” We find it more probable than not that the impetus for Choi‟s demand for a copy of the lease and then the insistence on -- 15 of 17 -- 16 its terms was a perception that John had cheated them in their quest for new visas. CONCLUSION [87] We find that the lease instrument was not vitiated by any operative mistake. If any mistake occurred, it was not induced by any conduct of Ms Choi or her agents, but was an unilateral error on the Respondent‟s part, due to her agents‟ gross negligence in failing to give proper instructions to her solicitors, and their subsequent failure to ensure that the lease was limited as they now say it should have been. [88] We are satisfied that there is no evidence of fraud on the lessee‟s part, and that the principles enunciated in Riverlate Properties Ltd v Paul, above, make it pointless for Ms To now to say: “What I have written, I never meant”. She has not established that the subject lease is ineffective to demise the entire ground floor to Ms Choi. We shall declare accordingly. Other Relief (a) Mesne profits Ms Choi seeks an order that Ms To pay mesne profits or rent for the period in which Unit 1 and the garage was, as we find, wrongly denied to them. She calculates rent at $26.22 per day and seeks interest on any amount awarded. Unit 1 is not approved for occupation as a residence. Ms Choi could not have obtained rent for it. Nor could she have sub-let any part of the ground floor without the consent of Ms To, consent, which was unlikely to be given by her, and arguably, at least, unlikely to be enforced by a court. We do not propose to make an award for loss of potential rent. However, Ms Choi was denied quiet enjoyment of the area to which she is entitled, and in consequence the development of her business was handicapped. We propose to award her compensation of $10,000 on that account. (b) Fees Paid by Choi to Respondent’s Solicitor Ms Choi paid this amount in the mistaken belief that she was liable for costs incurred by Ms To for issue and service of Notice of Breach of Covenant. We have found that there was no proper basis for that action. Accordingly, Ms Choi is entitled to a refund of $495 with interest at the rate of 10% from the date of receipt by the Respondent to the date of repayment. (Apparently the applicant has not actually paid another amount claimed on the same basis.) Orders [1] It is declared that by the lease instrument dated 28 September 2009 the Respondent leased to Ms Choi the premises therein described as having an area of 148 square metres, being the area delineated in the survey plan annexed to the lease. -- 16 of 17 -- 17 [2] It is further declared that Ms Choi is not liable to pay to Ms To the sums of $544.50 and $495 for legal fees claimed in tax invoice No 2709 from DB Realty to Eugene Choi dated 16 April 2010. [3] It is further declared that the Notice to Remedy Breach of Covenant dated 17 May 2010 issued by the Respondent to Ms Choi is invalid and does not entitle the Respondent to forfeit the lease. [4] The Respondent shall forthwith do all such things as are necessary to deliver up to the Applicant possession of all the 148 square metres demised by the lease dated 28 September 2009, more particularly described as Lot 5 on SP116032 County Stanley Parish Enoggera Title Reference 50335423 that part of the ground floor of the Building erected on the Land as more particularly shown on the plan annexed and hatched in black (“the demised area”). [5] The Respondent, her servants and agents are ordered not to interfere with the Applicant‟s exclusive possession and quiet enjoyment of the whole of the demised area. [6] Within 28 days of the date of this order, the Respondent shall pay to the Applicant the sum of $10,000 by way of compensation for her failure to allow quiet possession of the whole of the demised area. [7] Within 28 days of the date of this order the Respondent shall repay to the Applicant the sum of $495 together with interest at the rate of 10% per annum from the date of the Respondent‟s receipt of the said sum to the date of repayment thereof. -- 17 of 17 --