Clarkson v The Hitman Transport Pty Ltd [2009] RSLT 5

[2009] RSLT 5 RETAIL SHOP LEASE TRIBUNAL In the matter of Dispute No. 2009/0014 KERRY CLARKSON Claimant - and - THE HITMAN TRANSPORT PTY LTD Respondent BEFORE: Ken F Watson (Chair) Don McBryde Sandra Kairl Appearances: Ms Clarkson appeared for herself Mr S Baldwin, Solicitor, for the Respondent DECISION -- 1 of 5 -- Decision 2009/0014 2 Given on the 23 rd day of September 2009 -- 2 of 5 -- Decision 2009/0014 3 Reasons for Decision On 12 February 2009 the Claimant filed a notice of dispute against the Respondent claiming relief under the Retail Shop Leases Act 1994 (Qld) pursuant to section 43 of that Act (“the Act”). Which claim was later amended to add a claim pursuant to section 46A of the Act with respect to unconscionable conduct. We can deal with the claim for unconscionable conduct first. The definition of Lessee contained in the dictionary set out in the Schedule to the Act says in part:- “(b) for Part 6, Division 7, includes – (ii) Sub-lessee or franchisee entitled to occupy the retail shop under the lease or with the Lessor’s consent.” There is no doubt that the Claimant occupied the retail shop in this case with the Lessor’s consent. Having regard to the specific inclusion in the definition of Division 7 of Part 6 (which deals with the implied provisions for compensation) in our opinion this calls for an application of the Latin maxim expressio unius est exclusio alterius. In other words in our opinion the express reference to that Division and only that Division displays an intention on the part of the Legislature not to include sub-lessees with respect to other provisions of the Act such as the unconscionable conduct provisions. Accordingly we are of the opinion that the Tribunal does not have jurisdiction to deal with the Claimant’s claim for unconscionable conduct (she admittedly being a sub-lessee) and that part of her claim must be dismissed. False and Misleading Conduct Accordingly there remains the Claimant’s claim under section 43 of the Act. The Claimant alleges that the Respondent’s representative Anthony Vella made specific representations prior to the Claimant entering into her sublease with the Respondent that the menu of meals that could be provided from the shop the subject of the sublease could be expanded to include the sale of kebabs and breakfasts. At the particular time the Respondent was operating a pizza shop -- 3 of 5 -- Decision 2009/0014 4 under the name Wog Boys Pizza and which use its lease was confined to a pizza shop. It would appear that the Respondent was also selling at the time it operated the shop other items which would not normally be associated with a pizza shop, namely a Kebab like product made up of souvlaki called a Wog Wrap and a hot dog like item known as a Wog Dog. Although no complaint had been made to the Landlord with respect to the sale of the Wog Wrap or the Wog Dogs by the Respondent they could hardly be associated with the sale of pizza. The use set out in the sublease entered into by the Claimant was a pizza shop. Having regard to the statutory declaration of the Claimant contained in the bundle of documents which is exhibit 1, the statement of Andrew Clarkson in exhibit 3, the letter of Rick Thomas which is exhibit 4 and the statement of Stephen Clarkson which is exhibit 5 and the cross examination of the various witnesses who gave evidence on behalf of the Claimant we are satisfied that those representations were made by Mr Vella. In so finding we reject Mr Vella’s testimony to the contrary and record that we did not find him a credible witness. We instance the unsatisfactory way that he dealt with the discrepancy between the handwritten menu and the letter of 4 March 2009 (see the transcript of his evidence at pages 28 and following) and his evidence as to the absence of Mr Rick Thomas (see page 39 of the transcript) which we don’t accept. We are satisfied that it is more likely than not that Mr Vella would have made such representations because he no doubt felt confident that the Landlord would not raise objections to the expansion of the menu items contemplated by the Claimant. Unfortunately that confidence was misplaced and the Landlord refused to consent to an expansion of items beyond what was allowed to be sold from a pizza shop. Accordingly we are of the opinion that the representations relied on by the Claimant were false and misleading and the Claimant entered into the sublease based on those misrepresentations. -- 4 of 5 -- Decision 2009/0014 5 Loss The next question to ascertain is whether or not the Claimant has sustained a loss because of the false and misleading statements or representations. According to exhibit 5 the Claimant purchased the business of the pizza shop through a transfer of a boat, trailer and equipment worth $30,000.00. The value of those items was not disputed by the Respondent. No doubt the claimant expected to recoup that amount from the sale of the expanded items from the pizza shop. However because of the restricted use contained in the sublease the sale of those items was not able to be made by the Claimant. Having regard to exhibit 6 we are of the opinion that the sale of those expanded items could have realised a net profit approximating the value of the boat, trailer and equipment. In our opinion the inability to realise that net profit which would have equated to the value of the boat, trailer and equipment meant that the value of the boat trailer equipment was lost to the Claimant. That was a real loss suffered by the Claimant which requires reasonable compensation to be paid by the Respondent. We are mindful of the profit set out in exhibit 2 but are of the opinion that that would barely cover the work put in by the Claimant and her husband. Accordingly the Tribunal is of the opinion that the Respondent should pay to the Claimant the sum of $30,000.00 within 14 days of the release of this decision and the Tribunal so orders. Should either party wish to make a claim for costs then they should notify the registry within 14 days of the release of this decision of any such application. The parties are respectfully referred to the provisions of section 91 and 91A of the Act. K.F. WATSON Chairman -- 5 of 5 --