Edwards T/A Sublime Body Spa v Longton (No 3) [2005] RSLT 8

[2005] RSLT 8 THE RETAIL SHOP LEASES ACT In the matter of Dispute 48/05 KRISTEN ELIZABETH EDWARDS (T/A SUBLIME BODY SPA) - Claimant and COLIN LONGTON (AS POWER OF ATTORNEY FOR MARY JANE JOYCE LONGTON) - Respondent DECISION ON JURISDICTION Coram: Mrs Anne Forbes Mr Trevor Davies Mr Malcolm Macrae Given in Brisbane on Tuesday 30 August 2005. -- 1 of 5 -- Edwards-v-Longton Decision on Jurisdiction 2 Ms Kristen Edwards was the Claimant in Dispute 30/04, determined after a contested hearing in January 2005, and a subsequent hearing at which costs were awarded for pursuing a frivolous or vexatious claim. After the Respondent landlord filed material in support of the costs application, but before it was heard, the Claimant lodged the present Notice (No 48/05) on 21 April 2005, alleging that the Respondent misrepresented the fitness of the subject premises. The premises and the lease specified in the current dispute are identical to those involved in Dispute 30/04. In the current matter the Claimant alleges that the Respondent: 1. misrepresented that the subject premises were retail premises when they were zoned only for commercial use; 2. made misrepresentations about fit-out items to be provided by the Respondent; 3. failed to register the lease; 4. improperly deposited bond moneys in the Respondent’s own bank account instead of a trust account; and 5. failed to produce her agent’s power of attorney to the Claimant’s bank as required. At a directions hearing on 14 June 2005 the Claimant’s representative (namely her mother Mrs Wendy Edwards) was directed to file material to show a prima facie causal connection between loss allegedly suffered by the Claimant and the above allegations, particularly Nos 1, 3, 4 and 5. The Chairman then carefully explained the absolute necessity of proving such a connection. A second directions hearing was held, by which time the Claimant had filed only - • photocopy of a business card advertising Mr Colin Longton as a real estate agent; • copy of an advertisement offering for lease commercial and retail space in the building where the subject premises are situated; • a Disclosure Statement issued by the Respondent on 29 October 2003; • a letter dated 23 March 2005 from Gold Coast City Council, noting the maximum total floor space allocated for “shop” purposes in the premises at the time when the lease was executed; -- 2 of 5 -- Edwards-v-Longton Decision on Jurisdiction 3 • photocopy of a letter dated 19 December 2003 from Gold Coast City Council to the developer of the premises on the same subject; and • a letter from one Lynette Farrelly, who apparently conducted a business similar to the Claimant’s, stating that in 2003 she (Farrelly) was informed that the subject premises were not approved for retail operations. DIRECTIONS HEARING 4 AUGUST 2005 At a further directions hearing on 4 August 2005 Mrs Edwards again appeared for the Claimant. She was invited to make further submissions in support of the new application. Mr Geddes, for the Respondent, spoke briefly to his written submissions. The hearing lasted approximately 90 minutes; most of that time was occupied by the submissions of Mrs Edwards. On or about 8 August 2005 Mrs Edwards (for the Claimant) delivered a document purporting to amend the Notice of Dispute 48/05. The amending document repeats the claim that the Respondent “caus[ed] the lessee to enter into a lease as a result of false and misleading statements and misrepresentation of premise…to be retail shop space” and adds a claim that the Respondent’s conduct was unconscionable within the meaning of that term in the Retail Shop Leases Act 1994. It is apparent that the Claimant is attempting, in the present proceedings, to revisit the subject matter of Dispute No 30/04, particularly by means of allegation No 2, above, which replicates issues about air-conditioning that were heard and determined in Dispute 30/04. Therefore allegation No 2 is res judicata. In other words, it is legally a dead issue, the Claimant is estopped from raising it again, and it is an abuse of process to do so. We turn now to allegations (1), (3), (4) and (5). Allegation (1) - which is repeated in the recently lodged amending document - claims a misrepresentation as to use of the premises for retail purposes. On the available evidence the Tribunal is unable to conclude that a beauty salon – the business formerly conducted by the Claimant - was a non-conforming use when the lease was entered into. The letter from the local authority is equivocal. Besides, the lease clearly states in Clause 1(a)(9)(b) that the lessor gives no warranty as to fitness for the lessee’s purposes. A prudent intending lessee has a responsibility to make his or her own inquiries in that regard. The Claimant was legally represented during negotiations for the lease. MISSING NEXUS: ALLEGATIONS 1, 3, 4 AND 5 AND the CLAIM OF UNCONSCIONABLE CONDUCT Section 43 of the Retail Shop Leases Act 1994 makes a Respondent landlord liable to compensate a Claimant lessee: -- 3 of 5 -- Edwards-v-Longton Decision on Jurisdiction 4 “for loss or damage suffered by the lessee because – (a) the lessee entered the lease … on the basis of a false or misleading statement or misrepresentation made by the lessor…” (emphasis added) It follows that the onus is upon a Claimant to show prima facie (and ultimately to the satisfaction of the Tribunal) that any loss or damage was caused by the matters complained of in one or more of allegations (1), (3), (4) and (5), above, and the allegation of unconscionable conduct. Despite our several invitations to do so, no such prima facie case has been shown, and accordingly, as a matter of law, the claim must fail. The Claimant’s position is not improved by the fact that, in Dispute 30/04, she alleged and gave sworn evidence to the effect that the failure of her business was directly and solely caused by inadequate air-conditioning. In so far as these proceedings attempt to re-litigate matters already adjudicated they are a manifest abuse of process. In so far as they fail to disclose a prima facie case they must be dismissed on that ground. No application for costs has been made. IT IS ORDERED THAT: Dispute No 48/05 be dismissed. ADDENDUM On 22 August 2005 – after these reasons had been prepared - the Claimant, through Mrs Edwards, delivered to the Registry a further two pages of handwritten notes with several photocopies attached, namely: • An advertisement for a tanning studio; • A letter from Minter Ellison, Lawyers to Laurence Wilson and Associates, Solicitors of 28 October 2003 advising that the survey plan of the premises sold to the Respondent had been registered at the relevant department; • A letter of McLaughlins, Solicitors to Lawrence Wilson and Associates of 6 November 2003 conveying the Claimant’s expression of interest in leasing the subject premises; • A letter from McLaughlins, Solicitors to Lawrence Wilson and Associates of 18 November 2003 enclosing the Claimant’s disclosure statement, legal advice certificate, and the signed agreement to lease and the lease; -- 4 of 5 -- Edwards-v-Longton Decision on Jurisdiction 5 • A letter from McLaughlins to the Claimant of 19 November 2003 confirming the dispatch to the Respondent’s solicitors of these documents; • The lease executed on 7 November 2003; • The agreement to lease; • A letter of McLaughlins to the Claimant of 25 November 2003 confirming that they had carried out her instructions and enclosing their memorandum of costs; • A letter of 30 October 2003 from FPD Savills, the letting agent, setting out the terms of the lease offered. On 29 August 2005 Mrs Edwards delivered to the Registry further handwritten notes. We have carefully considered all this additional material. In the two handwritten pages first referred to above, the Claimant repeats the allegations in paragraphs (1) and (2) on the second page of these reasons and adds the assertion that the Respondent terminated her lease after discovering that the subject premises were zoned for commercial rather than retail use. The rest of the handwritten pages contain assertions that are either quite obscure, or which were raised and disposed of in Dispute No 30/04. The evidence in Dispute No 30/04 left us amply satisfied that the Respondent lawfully terminated the lease after the Claimant ceased to occupy or to trade from the subject premises and when the rent was significantly in arrears. Neither the additional documents nor the Claimant’s new assertions provide any reason for departing from our conclusion that she has not shown any relevant connection between any loss suffered by the Claimant and the alleged causes of any such loss. The Tribunal considers that it has allowed all possible latitude to the Claimant, notwithstanding numerous adjournments at her request, and the fact that her late assertions are markedly inconsistent with the manner in which her case was conducted at the hearing. No useful purpose would be served by allowing these proceedings to be re-agitated, and it would not be in the interests of justice to do so. Accordingly the order for dismissal is confirmed. Anne Forbes Chairman -- 5 of 5 --