Dynamix Australia Pty Ltd v P Barakat Pty Ltd and Sam Zenonas Pty Ltd [2006] RSLT 14

[2006] RSLT 14 THE RETAIL SHOP LEASES ACT In the matter of Dispute No 2005/0112 DYNAMIX AUSTRALIA PTY LTD - Claimant - and - P BARAKAT PTY LTD AND SAM ZENONAS PTY LTD - Respondent Coram: B Cotterell (CHAIRMAN) T Davies M Macrae DECISION Given in Brisbane on Monday, 10 April, 2006. -- 1 of 4 -- Dynamix Australia-v-Bakarat & Zenonas-2005/0112 2 Decision An amended Notice of Dispute was filed in this matter claiming misrepresentation by the Respondent for a refund of the first month’s rental and unconscionable conduct. This was in response to directions that the Tribunal made that the Claimant file all material by 4.00 p.m. on 8 February, 2006 and other directions which flowed after that. In response, the Claimant filed the amended Notice of Dispute as referred to, several documents and a Statutory Declaration from Bernard Fong and from John Lin. It is notable that no statement from Mr Teck Hong Tan or Ms Monica Heng, the Australian Directors of the Claimant, were filed in the Tribunal. Mr Lin’s evidence was in relation to the issue of misrepresentation. Mr Lin was not required by the Respondent for cross-examination. Mr Lin was only an employee of the Claimant and there was no evidence that the alleged representation was of relevance to the Claimant in entering into the lease or that it did so in reliance on the representation. Mr Lin did not say who was alleged to have made the representation, to whom, or whether the previous tenant’s business had any relevance to that which the Claimant proposed to run in the premises. This issue was not raised despite the Claimant having solicitors involved until significantly after the sublease was terminated. The Tribunal therefore finds the claim not proved and dismisses the claim for lack of evidence. The question of breach in relation to the rent: It was not in dispute that the Claimant failed to pay the June rent before 1 June, 2005 and continued in breach until after 1 July, 2005 when they were locked out after the lease had been terminated. The Tribunal finds that the notices were validly given and the sublease validly terminated. Mr Fong gave evidence by Statutory Declaration in relation to the allegation of unconscionable conduct but, at the time, the Claimant was in breach of the requirement to pay rent and his evidence therefore does not advance the Claimant’s case. The issue of the Claimant being unable to assign the sublease under these circumstances must be considered in the context of the Claimant being in breach of a fundamental clause. The Tribunal dismisses the claim of unconscionable conduct as not justified. -- 2 of 4 -- Dynamix Australia-v-Bakarat & Zenonas-2005/0112 3 Decision Refund of the first month’s rental: The Tribunal accepts that the Claimant was denied possession of the premises until 14 January, 2005 due to no fault of their’s and the lack of the Respondent’s ability to give them possession. The Tribunal finds that the Claimant is entitled to a refund of 14 (fourteen) days rent amounting to $2,493.14 for this period. The Respondent’s counterclaim is $15,759.08 from which must be offset the rental bond of $14,300.00 it has retained. The Tribunal accepts that the June rent of $5,416.65 and the July rent of $5,416.65 are valid claims by the Respondent. The rent for the period 1 August to 14 August, 2005 is offset by the rent for the period 1 January to 14 January, 2005. When GST is added, this amounts to $11,916.63. The legal fees in relation to the breach of $1,100.00 are accepted as validly claimed. This amounts to a sum of $13,016.63. Costs: The Respondent claimed costs in this matter on the basis that the Claimant had failed to prove its case and that it was required to defend a case which was not proved on the papers. The Claimant’s failure to prove its case was significantly contributed to by the Claimant’s failure to comply with the Tribunal’s directions and file all material on which it relied by 8 February, 2006. The Respondent claimed costs of $2,500.00 for being required to attend and defend this claim, which was not proved on the material filed. Under these circumstances, the Tribunal finds the costs under S.91(1)(b)(iii) were appropriate and awards costs in the sum of $1,283.37. In so doing, the Tribunal is aware that this will result in the Respondent retaining the rental bond. The orders the Tribunal makes are: That the Respondent shall retain the rental bond of $14,300.00 in full settlement of the claim and counterclaim. Those orders will issue from the Registry. -- 3 of 4 -- Dynamix Australia-v-Bakarat & Zenonas-2005/0112 4 Decision B. Cotterell, Chairman. -- 4 of 4 --