Anderson v Chias Pty Ltd [2003] RSLT 13

[2003] RSLT 13 THE RETAIL SHOP LEASES ACT In the matter of Dispute 87/02 SANDRA YVONNE ANDERSON - Claimant - and - CHIAS PTY LTD - Respondent Coram: A Forbes (Chairman) T Davies (Lessor’s Representative) I Kerr (Lessee’s Representative) DECISION Given in Brisbane on 4 August 2003 -- 1 of 14 -- Anderson-v-Chias 22.07.03 Decision 2 The question is whether the respondent landlord, Chias Pty Ltd [“Chias”] is liable to compensate the claimant tenant, Ms Anderson for loss and damage alleged to be caused by:- a) Chias’ default in not handing over the leased shop for trading on the date specified in Chias’s disclosure statement: s 43(2) (b); b) Chias’ delay in providing toilets as required to enable the Tenant to obtain a liquor licence; c) Disruption of trade by Chias’ poor management of works carried out in the vicinity of the leased premised after commencement of the lease. Ms Anderson claims $455,000 compensation but abandons so much of the excess as is beyond the jurisdiction of the Tribunal. She has amended her claim to seek further orders that she be released from the lease and “be able to sell the business [she] owns”. However the tribunal has no jurisdiction to make those additional orders. Ms Anderson, was represented by counsel at the hearing but represented herself at several earlier directions hearings. Mr Miller who appeared for Chias is a director of, and shareholder in, that company and a former solicitor. He appears to be Chias’ general manage and was the principal witness for the respondent. The subject premises are in a large city building, known as McWhirters. Originally a department store, latterly an indoor market, the building is now being redeveloped as residential apartments with the ground and first floors refashioned as retail tenancies. The premises have a street frontage to a busy city outlet. THE TENANT’S CLAIM SUMMARISED Ms Anderson claims that: • She originally intended to operate a take-away food outlet, but then, encouraged by Chias’ agent, took a lease of a larger area in McWhirters than was first offered, and committed herself to a larger operation, namely, a steakhouse style restaurant where she planned to serve liquor; • She held a reasonable belief that Chias would make the premises available on the date promised in the disclosure statement [15 November 2001] or in the lease, and that it would provide toilet facilities appropriate to her use of the premises and the liquor licensing authority, in time for the opening of the business. Relying on this she proceeded to plan and expend her borrowed funds; -- 2 of 14 -- Anderson-v-Chias 04.08.03 Decision 3 • The premises were not made available until 6 months after the time nominated and the toilets were not fully installed until several months after trade commenced. By the time the toilets were in place she could not afford to seek a licence nor to stock the business with liquor; • Because of this delay, Ms Anderson was unable to generate income for almost six months while her funds were tied up and debts mounted. Her health suffered from her business anxieties; • The business was not viable simply as a take-away outlet and she could not attract customers to a steakhouse that could not offer its patrons liquor service; • In consequence of Chias’ delay in complying with its responsibilities under the lease she was obliged to close the business after 12 months of trading and sell her fixtures and fittings at a loss. THE TENANT’S CASE – DELAY/FAILURE TO DELIVER PREMISES Ms Anderson says that:- a) She had preliminary discussions with Chias’ agent in about July 2001. No agreement was reached at that time but negotiations resumed in August/September when the said agent urged her to take a larger space (126 sq m) that that originally offered, to set up the premises as a restaurant and to obtain a liquor licence. b) Ms Anderson sent details of her financial status to Chias’s agent in a Retailer Application Form of 5 August 2001. There, the proposed business was described as a “Mediterranean Influenced Take Away/Fast Food Outlet”. She stated she was borrowing $100,000 to establish the business1 , secured upon residential premises, namely, her home. c) Early in the next month Chias’ project manager sent Ms Anderson a fit out manual and a floor plan 2 . Her letter of intention to lease describes the permitted use as “Retail of General Take Away and Coffee” and seeks [i] a 5 year lease at a rent of $63,000 pa; [ii] a three month rent free period; [iii] Chias to provide exhaust, ceiling and shopfront; and [iv] a commencement date of October 2001 “or as advised by Chias”. Ms Anderson was keen to commence business in time for the Christmas holiday trade. d) Mr Miller concedes that Chias accepted the Tenant’s offer “in principle”. 1 Annexure D to statement of Michael Miller 2 Exhibit 40:Ms Anderson’s Letter of Intention to Lease to Chias’s agent bears an imprinted fax date of 27/09/02 -- 3 of 14 -- Anderson-v-Chias 04.08.03 Decision 4 e) Chias’ Disclosure Statement of 10 October 20013 nominates a commencement date of 15 November 2001, and, while it acknowledges that it is redeveloping the centre, it represents that, “the works in the area around the Premises will be completed by the Commencement Date”. f) The parties signed an agreement to lease4 and the lease itself5 on 5 November 2001. Relevant terms are:- • A 5 year lease of shop T2 at a rent of $63,000per annum plus GST; • A handover date of 5 November 2001; • Commencement date 5 December 2001; • A rent-free period for the first three months; and • Chias’ works include the supply and installation of a shopfront and toilets on Level 1 of the building These dates were never achieved. g) The Tenant proceeded to engage tradesmen. A designer/licensed builder (Mark Andrew), was retained to plan a fitout. He inspected the premises on 10 October and again on 28 November and on both occasions found a lack of progress in Chias’ preparations for handover. Mounds of rubbish littered the site and a wide and 3m deep hole was in the middle of the floor, a relic of Council sewerage works. Mr Miller conceded in evidence that the site was then a “moonscape”. The designer inspected again on two further occasions, 30 January and 16 February 2002, and found the hole filled in roughly and the condition of the premises still unfit for the Tenant’s fitout works. h) The premises had not reached lock-up stage by December 2001. 6 Chias had taken no steps to order the installation of a shopfront. Some of the tradespeople consequently had to be sent away. Mr Miller eventually authorised Ms Anderson to order the shopfront. She did so and paid for it in part. She forwarded the invoice to Mr Miller but it was not paid by Chias until 24 May 2002 after the shopfitter began a Magistrates Court action against Ms Anderson. i) Somewhat surprisingly in these circumstances the assistant to Chias’s project manager was urging the Tenant on January 10 2002 to hurry up with the shopfront installation.7 3 Exhibit 20 4 Exhibit 18 5 Exhibit 19 6 No keys were handed to Ms Anderson until mid April 2003 7 Letter John Tyrell to Sandra Anderson -- 4 of 14 -- Anderson-v-Chias 04.08.03 Decision 5 j) Ms Anderson says that she was never able to secure any firm assurance from Chias’ project management team or from Mr Miller, as to when the premises would be handed over to her. Nor, apparently, was she formally notified of the extent of any delay. The constant answer to her many queries was: “We don’t know.” Ms Anderson’s documents indicate that by Christmas 2001 she had outlaid up to $77,000 in preparation for trading. k) By February 2002 with no income from the business, tradespeople waiting to be paid, equipment and fittings purchased but unable to be used and still without any assurance from Chias as to when the premises would be handed over, Ms Anderson was extremely concerned. She had to sell her house to meet financial obligations. l) Eventually Ms Anderson was able to arrange a meeting with Mr Miller, some of his operatives and her solicitor on-site on 22 January 2002 and again a few days later, to discuss matters of concern. There followed several more meetings in February and March 2002.8 At the February meeting Mr Miller promised to install a second toilet to facilitate the liquor licence application, to fix the floor and finish the internal walls. For her part Ms Anderson was to obtain a bank guarantee, securing the payment of two months rent. m) At one of the meetings Chias offered and the Tenant accepted a further three months rent-free to compensate for the delay in handover to that date. A new lease was to be drafted, but that was never done. n) By mid April 2002 Chias’ works, especially in relation to the ceiling were still unfinished. That prevented Ms Anderson’s completion of her fitout. The premises were still to be formally handed over. Mr Miller admits as much.9 They were eventually handed over in late April and on 12 May 2002 Ms Anderson commenced trading as Frango’s Steak Grill and Cosmos Takeaway. o) Ms Anderson operated the business herself until December 2002. Then she left the cook in charge until she ceased trading at the end of April 2003. She has removed her fixtures and equipment and sold some of them at auction at considerable loss. Chias has not accepted a termination of the lease. p) Ms Anderson has prepared a summary of her capital payments relating to the business. She has dissected these into payments that she claims are attributable to the takeaway service on the one hand and to the restaurant on the other. It appears to show that she spent some $73,000 on the former operation and $123,000 on the latter. As well, she has debts of about $40,000 said to relate to the business and owes $20,000 in interest to her financier. 8 28 February and 19 March 2002 9 Statement Michael John Miller 19.2.03, paragraph 43 -- 5 of 14 -- Anderson-v-Chias 04.08.03 Decision 6 q) An accountant, Mr Henzell, prepared a projected budget for Ms Anderson in December 2001 which predicted weekly sales of $15,000 for the combined operations and a pre-tax profit of $2,600, on the assumption that a liquor licence would be obtained.10 Actual figures for the three quarters June, September and December 2002 show sales at considerable variance to those projected, and quarterly losses of $1,499, $3,379, and $4,128 respectively.11 DELAY – THE LANDLORD’S RESPONSE r) Chias denies that smaller premises were ever discussed and asserts that Ms Anderson’s solicitor initiated the matter of a liquor licence. s) Mr Miller claims that Ms Anderson contributed to the delay by failing on occasions to co-ordinate tradespeople. He points to Ms Anderson’s various invoices, which, he says, establish that she had been able to do quite an amount of preparatory work before any formal handover, so as to be hardly affected by the delay. t) Mr Miller concedes that there was a delay in handover of the premises, due to six month’s delay by the subcontractors. He maintains, however, that in March 2002 the parties agreed “compensation” in the form of an extra 3 months’ rent–free, and deferred the commencement date of the lease until 11 May 2002 and the bank guarantee until later in that year. He says these terms were in full and final satisfaction of outstanding issues between them. u) The 6-month rent-free period expired in November 2002 and Mr Miller says that by November Ms Anderson had still not provided the bank guarantee. She paid one electricity account of $1,716.50 but other outgoings were in arrears. Chias offered her some further concessions including a further six months’ rent rebate of 50%. Ms Anderson did not respond to this offer, nor did she object to this evidence at the hearing. v) Chias has now revoked the agreed rent abatement and applied interest at 18% to the arrears.12 The parties are agreed that, on the assumption that the tenant was in breach of the lease when she closed the business, the outstanding amount owing under the lease is $96,475. Mr Miller stated that Chias intends to sue Ms Anderson for the arrears in another forum. 10 Exhibit 8 11 Exhibit 10 12 See Exhibit 35 -- 6 of 14 -- Anderson-v-Chias 04.08.03 Decision 7 THE LIQUOR LICENCE AND REQUIREMENT FOR TOILET FACILITIES Ms Anderson says that: w) Chias covenanted to install an unspecified number of toilets in its lessor disclosure statement, and in the agreement to lease. She says that as her intention to operate licensed premises is explicitly stated in the documents, it follows that Chias had accepted the obligation to provide facilities in number and location as required to satisfy the liquor licensing authority. x) In December 2001 Ms Anderson filed an application for a licence with the Department of Tourism for Frango’s Steak Grill stating that she planned to serve 30 customers inside the premises and 20 in the Mall area. The building certifier [Mr Everlyn] advised her that the Liquor Act required separate male and female toilets in the vicinity of the restaurant. On 26 February 2002 he advised further that Chias’s toilet proposals were inconvenient for patrons and insisted that some be installed on the same floor as Ms Anderson’s shop.13 Without certification she could not commence trading. Ms Anderson says that she communicated the requirements to Mr Miller before Christmas 2001. Mr Miller suggested that the Tenant and patrons use toilets on the floor above. y) At the 26 February meeting Mr Miller eventually promised to install the required second toilet. The first toilet was installed in late June 2002 while the second was not in place until November 2002 according to the Tenant, or late September 2002, according to Mr Miller. z) The Tenant says that the significance of the liquor licence to her business is that: [i] The rule of thumb for a licensed food outlet in the Fortitude Valley area is that liquor sales account for up to 50% of the customer’s bill;14 [ii] The business was not viable without a licence. aa) Ms Anderson did not persist with her licence application. She says that by the time the required number of toilets was in place, she could not afford to pay the licence fee nor buy liquor stocks. She says that in those months she lost customers because she could not offer them a drink with their steaks. LANDLORD’S RESPONSE TO THE LIQUOR LICENCE CLAIM 13 Letter Everlyn to Tenant 26.2.02 14Statutory Declaration of Chi Fun Wong 21.1.03 and letter accountant B Henzell to Tenant 22.1.03 -- 7 of 14 -- Anderson-v-Chias 04.08.03 Decision 8 bb) Mr Miller maintains that at no time did the parties discuss Ms Anderson taking smaller premises, and none was offered. He says that: • The change in use of the premises from takeaway to restaurant was at the instigation of the tenant. • Having elected to operate the business as licensed premises, it was the tenant’s responsibility to prosecute her application for a licence by doing all that was required. She has not mitigated her losses. • The tenant could have sought advice from a consultant and obtained a conditional licence subject to completion of the building work. • Since these proceedings began he has consulted a licensing consultant, Mr Brad Irwin who advises that the 1992 Regulations, which governed licence applications made prior to late 2002, did not require evidence of compliance with the applicable building code. • Chias’ delay in installing the toilets did not delay or preclude the tenant from obtaining a licence. TENANT’S CLAIM RE DISRUPTION TO BUSINESS cc) Ms Anderson claims that after she had opened for business the gas supply was cut off on several for hours at a time and that she was unable to cook, and had to throw away stocks of food. She says that she observed the escape of raw sewage in the loading dock area adjacent to her restaurant on several occasions and that its odour was evident inside the restaurant and lingered for several weeks. Ms Anderson says that continuing construction in adjoining premises disrupted her trade for several weeks after she opened. dd) Other tenants of the building including a Mr Nick Criticos, confirm some of the continuing problems. LANDLORD’S RESPONSE TO DISRUPTION OF BUSINESS CLAIM ee) Mr Miller states that Chias allowed Ms Anderson several extra rent-free days as compensation and that on all occasions when a complaint was made known to him he took timely steps to remedy it. -- 8 of 14 -- Anderson-v-Chias 04.08.03 Decision 9 FINDINGS ON LIABILITY A DELAY ff) On 10 October 2001 Chias represented in its disclosure statement that its works would be completed by the commencement of the lease:15 November 2001. That date was deferred by three weeks to 5 December 2001 in the lease. Covenants underscoring the importance of Chias adhering to the commencement date are found in clauses 3 and 4 of the agreement to lease as follows: • Clause 4: Chias must bring its works to practical completion by the commencement date; • Clause 3: A termination of the agreement is triggered if the lessor is unable to handover the premises on the completion date and offers alternative premises on similar terms, which offer the tenant rejects. In this event the lease is terminated without further liability to either party; • The landlord is obliged to give the tenant notice of any likely delay, but is excused from loss caused by deferral of the completion date. This term is overridden by section 20 of the Retail Shop Leases Act 1994, [“the Act”]. gg) The Act was extensively amended in 1994 in a regulatory response to the perceived imbalance in market power of lessors and small retail lessees,15 inter alia with the insertion of Part 5 - Preliminary Disclosures About Leases. Section 22 requires the lessor to provide the lessee with a disclosure statement and a draft of the lease at least 7 days before a prospective lessee enters the lease. In default, the lessee may terminate the lease and seek compensation. The duty to disclose was imposed on both parties and increased by further amendments made in 2000 for reasons expressed thus: “ Increasing the level of pre-lease information that must be exchanged between parties to the lease will also serve to actively address the potential threat of action under the ‘unconscionable provisions’ (new division 8A) based on a lack of evidence of disclosure to a weaker party. This risk provides very clear reasons for those in a leasing relationship to disclose all relevant information that directly assists the other party’s decision making processes.” 16 hh) The prospective lessee has a right to all information relevant to his or her decision to enter the retail industry and must be given this information a reasonable time before being required to execute a 15 Explanatory notes to Retail Shop Leases Bill 1994, page 1. 16 Retail Shop Leases Amendment Bill 2000 – Explanatory notes page 8-9 -- 9 of 14 -- Anderson-v-Chias 04.08.03 Decision 10 lease. The legislative scheme has more than a passing resemblance to the ‘cooling off period’ in other regulatory legislation. ii) We find that when she signed the Lease Ms Anderson reasonably believed in Chias’ representation that it would hand over the premises to her in time for her business to open by Christmas 2001, and decided to enter the lease, and made her plans, on this basis. Chias gave the Tenant no warning of delay at any time. Instead we find that Ms Anderson experienced great difficulty in obtaining any audience with Mr Miller or a firm commitment to a handover date that would allow her to plan an orderly fitout. None of Chias’ senior management team could, or would, respond to her reasonable and increasingly anxious requests. She finally gained Mr Miller’s attention by bringing her solicitor to meetings with him in January, February and March 2001. jj) Ms Anderson applied substantial funds to set up the business only to find that she was delayed by more than five months. She was unable to obtain occupancy, her funds were tied up and not generating income, and interest at financier’s rates was accumulating on the loan. She became, understandably, depressed and her health suffered. We find that she was severely disadvantaged by the delay for which Chias was responsible. kk) Mr Miller faintly submitted that an element in the delays experienced by Ms Anderson was failure by her to marshal tradespeople in orderly fashion. We reject this proposition, made without evidence, and in the face of an admitted failure of Chias to attend to its allotted task of ordering the installation of the shopfront. ll) So too, we reject the suggestion that the parties negotiated a new lease which absolves Chias of any further liability to Ms Anderson. There is no evidence to satisfy us that a true accord and satisfaction resulted from discussions between the parties in which Ms Anderson forfeited her right to approach this tribunal. mm) Chias was in a far superior position to that of its incoming tenant in establishing a date when its premises would be fit for retail trading. Mr Miller, somewhat insouciantly we consider, referred to the condition of the premises when the lease was executed, as a “moonscape”, and yet Chias bound Ms Anderson to the lease when it could not reasonably have believed that it could deliver the premises on time and when it was reasonably foreseeable that a small retailer would be adversely affected. It is difficult to avoid the conclusion that there were grave defects in the planning and management of the refurbishment of the premises. nn) Section 43 (2) (b) of the Act, allows an award of reasonable compensation for a landlord’s failure to make leased premises available to the tenant on the date specified in its disclosure statement. -- 10 of 14 -- Anderson-v-Chias 04.08.03 Decision 11 That seems to us to be ample recognition of the serious consequences likely to occur to a small retail business, bound to a lease but prevented from trading on the promised date. oo) We find that Chias is responsible for the default of itself and/or its contractors, and that Ms Anderson has suffered loss and damage directly attributable to the five to six month delay. B THE LIQUOR LICENCE AND TOILET FACILITIES: pp) We are not persuaded that any representation by Chias, relied on by Ms Anderson, led her to extend her plan from a Mediterranean style takeaway to that of a licensed steakhouse. There is no reference to any area smaller than 126 sq m in her Retailer Application Form of 5 August 2001. She had already had a preliminary investigation of her application by the liquor licensing authority as early as 2 August 2001.17 We note the letter of her solicitor to Chias’ solicitor of 31 October 2001, in which she declares her intention to serve alcohol and seeks permission to set up footpath dining in the adjacent mall area. qq) Ms Anderson requested that Chias provide what she had been advised were the toilet requirements for a licensed restaurant. She made her needs known to Mr Miller on several occasions. It seems that he also accepted that separate male and female facilities were needed near to the restaurant and that Chias had an obligation to provide them on time. Her own chronology, suggests that the more accurate date is February 2002. We find that the precise date is irrelevant. Mr Miller, as the representative of such a large-scale developer, should have been well aware of statutory requirements. Mr Miller now suggests, relying on Mr Irwin’s letter18 that Ms Anderson might have applied for a provisional liquor licence. We have heard no evidence suggesting that he told Ms Anderson this, and we note his concession that a provisional licence would not have permitted the sale of liquor. Mr Miller’s justification of Chias’ inaction seems to rely on ex post facto reasoning. rr) Mr Miller has attached a further letter of Mr Irwin to his submissions. Ms Anderson objects to the tribunal admitting this. We have already referred to this letter. While the tribunal “may inform itself of any matter in the way it considers appropriate”19 , in the circumstances of our finding on this aspect of the tenant’s claim, we place little reliance on the contents of the letter. ss) Ms Anderson maintains that the success of her business depended on gaining a licence to sell liquor, yet she did not proceed with her application. She says that she had run out of funds and worry had 17 Letter Brisbane City Council 2 August 2001 18 To which reference is made at [aa] above 19 Section 72 (2) (b) -- 11 of 14 -- Anderson-v-Chias 04.08.03 Decision 12 affected her health by the time the facilities eventually were completed. While we accept the truth of her statement on this point, we find her explanation of her inaction less than satisfactory: It seems to be common knowledge that such licences take several months to obtain. A reasonable course of action would have been for Ms Anderson to apply for a licence well ahead of the anticipated date of trading. tt) We are unable to conclude that Chias’ tardiness in installing toilets was the effective cause of the failure of Ms Anderson’s business, but we find that its failure to respond to the tenant’s reasonable request is another example of deficient management. C THE POST MAY 2002 DISRUPTIONS TO THE BUSINESS uu) Chias gave Ms Anderson several extra rent-free days referrable to these matters, but in any event we are not satisfied that Chias failed to take reasonable steps to rectify the defects. QUANTUM OF COMPENSATION vv) Ms Anderson claims compensation of $459,000 and suggests that the arrears of rent to the date of the hearing, agreed at $96,475.21 be set off against this amount, or $363,449.79 with the amount in excess of the tribunal’s jurisdiction abandoned ie $250,000.20 In a separate calculation Ms Anderson claims $305,500. ww) Chias submits that no compensation is payable. xx) Both parties obtained reports from forensic accountants. Neither report gave us much assistance. Mr Haley, for the tenant fairly conceded that he had not had access to any primary source material. His report relies on figures for expected turnover, which the business might have generated with a liquor licence, compared to actual turnover, and makes assumptions concerning trading and capital losses. yy) Mr McDonald, accountant for Chias, simply pointed out the defects, as he saw them, in his colleague’s report and offered no suggestions of his own on the measure of compensation, if any. zz) We are not satisfied that either Mr Haley’s assumptions or Mr Henzell’s projected budget are soundly based. We informed the parties, that the tribunal members are acquainted with the subject premises and the location of the tenant’s shop within them. We invited submissions on this point. The shop is just round the corner from the Brunswick Street Mall in Fortitude Valley and the busy traffic thoroughfare of Wickham 20 Page 14 of the tenant’s submissions -- 12 of 14 -- Anderson-v-Chias 04.08.03 Decision 13 Street passes its door. Its location is significantly less favourable than that of the businesses facing the Mall. aaa) The actual trading figures drawn from Ms Anderson’s records show losses for each of the last three quarters of the year 2002. They relate to both take-away and restaurant operations, but do not show what proportion of the turnover is attributed to each. Even if we accepted and applied the supposed rule of thumb that a liquor licence would generate a 40-50% increase in gross restaurant takings, we are unable to be satisfied that the business would have run at a profit even then. bbb) As we have not concluded that Chias was responsible for the ultimate failure of Frango’s Steakhouse, the capital losses of the business are of no assistance in determining compensation. ccc) How then should we approach our task? It has been stated on several occasions by other members of this tribunal that reasonable compensation is not synonymous with damages in tort 21 ddd) Chias was prepared to offer rent abatement of $45,537 to Ms Anderson over the twelve months when she operated the business, in part, to remedy its default. It has now withdrawn this concession. We are of the view that this sum is quite inadequate compensation and that it ignores the very real cost to the Ms Anderson. We have in mind the cost to her of capital tied up during the period of the delay, her inability to use her capital or gain income for the period of the delay, consequent increases to her of the cost of borrowed funds, and detriment to her health and wellbeing caused by anxiety directly referrable to poor management by Chias. We have given very careful thought to appropriate compensation in these circumstances. Doing the best we can, we find that Chias should pay Ms Anderson $85,000 as reasonable compensation for its failure to make the subject premises available to her on the date specified its disclosure statement. SETTING OFF ARREARS OF RENT eee) At the end of the hearing we invited the parties to deal in their written submissions with the question whether the tribunal has jurisdiction to set off a tenant’s arrears of rent in an agreed sum, against any award of compensation. Counsel for the tenant submits that although section 109 denies jurisdiction to the tribunal to hear a dispute where the amount of arrears of rent is in issue, the power is available when the arrears are an agreed sum, and that this tribunal should exercise its 21 Dispute A/00 at page 13. We note this decision and an apparently inconsistent decision K/98 cited in submissions by the tenant’s counsel. See also the observations of tribunal Chairman Carter QC in Wendy Jordan v Eskbay & Anor, dispute 14/1999 -- 13 of 14 -- Anderson-v-Chias 04.08.03 Decision 14 discretion to set off the sum of $96,475.22 Mr Miller for Chias made no contrary submission. ff) Counsel referred us to a dispute identified as B/00 in which the tribunal was persuaded to set off agreed arrears and ordered the landlord to execute a deed releasing the tenant from liability for them. It appears that the chairman was not referred to a decision in the Supreme Court on appeal from a tribunal three years earlier. In Leda Holdings Pty Ltd v Vasilakis Holdings Pty Ltd (1997) Q Conv R 54-489, Dowsett J briefly considered the point: “[It was said that] as the tribunal had no jurisdiction to order the payment of arrears of rent, it followed that the tribunal had no jurisdiction to allow such a set off against an award of compensation. I am not sure that this proposition is correct in law…” ggg) Nevertheless His Honour agreed with the chairman’s ruling that there was no power to “re-write the agreement between the parties…nor to cancel an agreement or contract” and, à fortiori, no power to absolve a tenant from payment of rent after it ceased to trade. hhh) In the absence of clear authority that we have jurisdiction to set-off rent owing [even where the amount is agreed] against an award of compensation, we decline to take that course. Accordingly we will simply order payment of compensation by Chias, leaving any action for recovery of arrears of rent to another court or tribunal [or to negotiation between the parties] if such action be necessary. IT IS ORDEREDTHAT: The respondent pay to Ms Sandra Anderson as reasonable compensation, the sum of eighty-five thousand dollars [$85,000] within 28 days of this order. A Forbes, Chairman. -- 14 of 14 --