Deighton v Weekes [2001] RSLT 18

1 [2001] RSLT 18 THE RETAIL SHOP LEASES ACT In the matter of Dispute 80/00 MR STEPHEN DEIGHTON (CAMIROTRONICS) Claimant - and - MR A WEEKES (PLANCASTLE PTY LTD) - Respondent DECISION Given in Brisbane on 6 February 2001. -- 1 of 4 -- 2 -- 2 of 4 -- Deighton-v-Weekes 3 Decision The claimant is a tenant is a shopping centre known as the Camira Shopping Village. Parking is provided for the customers of this Centre in a parking lot which forms part of the common area of the Centre. In late 1997 or 1998, the asphalt or bitumen surface had collapsed and the respondent had made several attempts, at substantial cost, of repairing the surface. These attempts were unsuccessful. The original surface had been a thin layer of asphalt or bitumen placed over the earth. This appears from photographs which have been produced. The respondent replaced the surface with a reinforced concrete slab. This had the effect of distributing the load and preventing the sub-surface being overladen and collapsing. There has been a dispute whether the sub-surface collapsed because of heavy rain over a short period or because of heavy traffic. In our opinion it is not necessary to investigate this question. The dispute arises because the claimant as tenant has been called upon to contribute to the cost of the new concrete slab under his duty to contribute towards outgoings of the shopping centre. The operating expenses to which the claimant is obliged to contribute are defined in the lease, of which we have been provided an extract. “Operating Expenses of the Centre” are defined to mean: The total cost of all outgoings, costs and expenses of the lessor now or hereafter properly and reasonably assessed, charged or chargeable, paid or payable, incurred upon or in respect of the Centre, or upon the lessor in relation there in the conduct, management and maintenance of the Centre on the use and occupation of same as a high class shopping and commercial centre, and in particular without in any way limiting the generality of the foregoing, shall include: - ………. (e) All costs of repairs, maintenance, renovations and replacement of the Centre or pertaining thereto, other than work of a structural nature or work the responsibility of any tenant or occupant of the Centre. Section 7 of the Retail Shop Leases Act excludes from outgoings to which a tenant may be obliged to contribute expenditure of a capital nature. The question is whether the costs of work to the surface of the parking area falls within the category of repairs, maintenance, renovations and replacements, or whether it is work of a capital or structural nature. The Tribunal Members have considered the meaning of certain words. These include: - “Maintain”, which the Tribunal interprets in the context of a lease as to keep in good order and condition; -- 3 of 4 -- Deighton-v-Weekes 4 Decision “Repair”, which the Tribunal interprets as to restore to good order or condition; “Structure”, as being something which is built or constructed; “Structural” has meaning of that which is of or pertaining to the structure of a building, as distinct from its decoration or fittings. By late 1998, as shown in various photographs, the asphalt or bitumen surface had become substantially broken up. We accept that this was due to the failure of the earth or material below it. Attempts at repair, that is, to restore it to something like its original condition, had failed, and in our opinion were bound to continue failing. The provision of a concrete slab containing reinforcing is the provision of a structure. We have come to the conclusion that it goes beyond restoring the old surface to a satisfactory condition. We have therefore come to the conclusion that the costs of the new slab are costs of a capital nature, being structural in its scope. We therefore make the finding that the costs of this work cannot be claimed as outgoings against the claimant. P V Loewenthal, Chairman. -- 4 of 4 --