Bui v Albert Chung Pty Ltd [2007] RSLT 18

[2007] RSLT 18 RETAIL SHOP LEASE TRIBUNAL In the matter of Dispute No 2007/0065 RICHARD BUI - Claimant - and - ALBERT CHUNG PTY LTD - Respondent Coram: KF Watson (Chair) D McBryde N Judge Appearances: Claimant: CJ Fitzpatrick of Counsel instructed by MCA Lawyers Respondent: MT Brady of Counsel instructed by Wallace Davies Solicitors DECISION Given in Brisbane on Thursday, 1 November 2007 -- 1 of 6 -- 2 -- 2 of 6 -- 2 The issues 1. In this matter the Claimant, Mr Bui, is seeking, in part, a declaration that the Respondent has breached the exclusive use provision under clause 84.1 of the lease between himself and the lessor. 1 2. By consent of the parties, a preliminary issue was sought to be determined by the Tribunal as presently constituted which principally involved the proper construction of clause 84.1 of the relevant lease with the subsidiary question being whether, in the circumstances, the lessor had committed a breach of that clause. It was conceded by counsel for the lessor that if the question of the construction of the clause was determined in favour of the lessee then the fact that the lessor was in breach would follow as a natural consequence. The facts 3. The Claimant operates a restaurant/takeaway where meals can be consumed on the premises on the outdoor patio or placed in containers and taken away. 2 In June 2003, the Claimant and the Respondent entered into a lease, the commencement date of which is stated as 1 July 2003. 3 That lease contained the following special condition:- “Notwithstanding any other term of the lease:- 84.1 Provided that the Lessee is not in default of its obligations under this lease then, the Lessee shall have the exclusive right to operate a Chinese, Thai and Malaysian food restaurant from the premises. As long as the Lessee is the lessee of the premises, the Lessor will not allow any other premises in the Building to be used for the operation of a Chinese, Thai or Malaysian food restaurant.” 4. From on or about 1 June 2007, the Respondent allowed a shop (described in the proceedings as Shop 10) to be used by R & N Place Pty Ltd and entered into a lease to that effect. 4 The use of the premises 1 This claim is set out in the sworn statement of Mr Bui filed 4 September 2007 (paragraph 14). 2 Sworn statement of the Claimant filed 4 September 2007 [11]. 3 See exhibit marked “RB-1” to the sworn statement of the Claimant filed 4 September 2007. 4 See attachment “CKC-4” to the affidavit of Chun Kau Chung filed 26 September 2007. -- 3 of 6 -- 3 is described as a “Noodle takeaway business”. Thus the question is whether by entering into that lease and allowing Shop 10 to be used by R & N Place Pty Ltd for the purposes of a takeaway noodle business is the Respondent in breach of clause 84.1 of the lease between the Claimant and the Respondent? Principally this concerns the question as to whether the business operated by R & N Place Pty Ltd may properly be called a “restaurant” as the term is used in clause 84.1. Two preliminary matters 5. In construing words and phrases, lawyers tend to rely upon three sources, namely dictionaries and other standard works, case precedent and their own knowledge and experience. In Neal v Department of Transport,5 Sheppard J said as follows:- “If they are ordinary English words their meaning may only be ascertained by reference to dictionaries and other standard works.” 6. In Bendixen v Coleman, Scott, and Croft, 6 Latham CJ said: “The Court takes judicial notice of the meaning of ordinary words, and evidence is not admissible to expound their meaning, though the court, in addition to using its own knowledge, may refer to standard authors and authoritative dictionaries in order to obtain assistance in interpretation.” (emphasis mine) 7. I doubt that Sheppard J was meaning to be so restrictive but in any case, in my view, the opinion of Latham CJ should be followed. 8. Another pertinent question is whether the question of construction here is a question of fact or a question of law. If it be a question of fact then it would be a decision for a majority of the Tribunal as per Section 74(1) of the Retail Shop Leases Act 1994, whereas a question of law pursuant to subsection (2) of that section must be decided by myself. Having regard to what the High Court of Australia said in Collector of Customs v Agfa- Gevaert Ltd,7 and my view that the construction involves the whole of 5 (1980) 29 ALR 350 at 362. 6 (1943) 68 CLR 401 at 415. 7 (1996) 186 CLR 389 at 396-397. -- 4 of 6 -- 4 clause 84.1 which takes its place within the lease document then in my opinion, this is simply not just a question of fact but involves a question of law. Therefore I regard the decision in this matter as being a decision for myself alone. The construction of clause 84.1 9. It is to be noted that the use provision in the lease between the Claimant and the Respondent refers to the permitted use as being “Asian restaurant/takeaway with BYO Liquor Licence”. The draftsperson of this lease has employed a solidus between restaurant and takeaway in this phrase. This is an unfortunate drafting practice which leaves the function that it is meant to play unclear. At the Bar, the consensus of counsel appearing for the parties appear to be that the solidus was a substitute for “and”. I agree that the solidus performs a conjunctive function and not a disjunctive function but I am of the opinion that “with” would be a more suitable word substitution in this instance. 10. Counsel for the Claimant in this case refers to the word “restaurant” as used in clause 84.1 and adopts the Oxford English Dictionary, 2nd Edition, definition and says that Shop 10 can be described as an establishment where refreshments or meals may be obtained. He also refers to what Justice Young in the Supreme Court of New South Wales said in Coombs v Bahama Palm Trading Pty Ltd.8 In that case, at BC 9101573 at 8, his Honour said as follows:- “Although it may be a legitimate criticism of reliance on some of those decisions that they depended on the particular wording of the local statutes, the cases here and in Canada and America seem to show that it is the provision of food for consumption that is the essential nature of a restaurant business and the matter as to whether the bulk of the good is consumed on or off the premises is merely incidental. It may be that if no food at all is consumed on the premises and people take their purchases away, then the shop may be a delicatessen rather than a restaurant, but it is not necessary to deal with either of those problems in the present case. 8 (unreported – 6013 of 1990 – 11 September 1991 – BC 9101573). -- 5 of 6 -- 5 In case the defendants get the wrong impression when reading the last few sentences, I should note that in my present view it would not matter over much if they removed the 7 bar stools currently situated in the Mixed Business.” 11. In my opinion, this is the highest that the Australian cases go in support of the Claimant’s position. I have read the Canadian and American authorities referred to by both counsel for the Claimant and the Respondent and agree with the observation of Justice Young in the Coombs decision that many of them are difficult to apply because of the particular wording in the statutes that the cases were concerned. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. 9 Here, and reading the lease as a whole, I am of the opinion that a reasonable person would not describe Shop 10 which sells food on a takeaway basis only as a restaurant. 12. In my opinion, there would need to be some facility for some food to be consumed on the premises of Shop 10 for it to qualify as a restaurant within the meaning of that word as used in clause 84.1 of the subject lease. 13. Thus, in my opinion, the Respondent is not in breach of clause 84.1 of the lease and the declaration sought by the Claimant should be refused. Accordingly, the claim is dismissed and the Tribunal so orders. 14. The question of costs is reserved and if any party wishes to make an application for costs then they can contact the Registry. 15. I am authorised to say that the other members of the Tribunal concur in these reasons and this decision. K.F. WATSON Chair 9 See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179. -- 6 of 6 --