CK Fei Pty Ltd v Boman Properties Pty Ltd [2009] RSLT 3

[2009] RSLT 3 RETAIL SHOP LEASE TRIBUNAL In the matter of Dispute No. 2009/0008 CK FEI PTY LTD atf THE CHAN FAMILY TRUST, CENTARIS PTY LTD atf the LUNA FAMILY TRUST Claimant - and - BOMAN PROPERTIES PTY LTD as Trustee under Instrument No 707288828 Respondent Before:- Barry Cotterell (Chairperson) Appearances: Claimant: Mr Eric Chan . DECISION Given in Brisbane on 30 th day of June 2009 -- 1 of 3 -- Decision Dispute 2009/0008 2 This application arises from a lease of retail shop premises where the Claimant says it paid the Respondent the sum of $4,321.14 including GST by way of a security bond. They sold the business and the lease was transferred to the new business owner with the consent of both the Respondent and the mortgagee. The Claimant says they then sought refund of the security deposit without success. This application was filed on 28 January 2009. The Respondents have not participated in any of the dispute settlement processes in the Tribunal and have failed to file any material. However, the Tribunal is satisfied that a lessee’s security was payable under clause 11 of the lease between the parties which was executed by the parties on 26 October 2006 and commenced on 6 November 2006. The Tribunal is also satisfied that the Claimant paid the Respondent the sum of $4,321.14 by bank cheque number 135106 dated 26 October 2006. The Tribunal is satisfied that the Respondent’s consent to the transfer of the lease occurred in August 2008 according to an email from Edward Howard, the Respondent’s Asset Manager, to the Claimant on that day. The Mortgagee’s Consent was then obtained in the week ending 22 November 2008. From Mr Howard’s emails to the Claimants it is clear that the Respondent was working towards refunding the security deposit and on 13 August 2008 Mr Howard requested the Claimant’s advice as to how the funds should be deposited, that is, if the amount was to be equally split between the Claimants. -- 2 of 3 -- Decision Dispute 2009/0008 3 However, the Tribunal is satisfied that despite there being no legal impediment to the refund occurring after the week ending 22 November 2008, the refund has not occurred. Therefore, the Tribunal finds that the sum of $4,321.14 was payable on 22 November 2008 and has not been paid. The Tribunal adopts the interest rate of 10% applicable in the Supreme Court to debts and orders that the Respondent pay interest in the sum of $261.66 to today making a total of $4,582.80 due today. In addition, the Tribunal orders that the Respondent pay the Claimants interest at the rate of 10% being $1.25 per day from today until the amount is paid in full. B. COTTERELL Chair -- 3 of 3 --