Evans v Angelos [2001] RSLT 9

[2001] RSLT 9 THE RETAIL SHOP LEASES ACT In the matter of Dispute 47/2001 GAYE ISABELLA EVANS - Claimant - and - NIKITA ANGELOS - Respondent DECISION Given in Brisbane on 21 September, 2001 -- 1 of 4 -- Evans-v-Angelos 2 Decision These proceedings were commenced by Notice of Dispute filed in the Registry on 30 April, 2001. The Notice of Dispute raises several matters. These are:- 1. That the respondent has failed to pay $1,000.00, being the amount agreed to be paid in terms of a settlement of previous proceedings. 2. That the lessor's refusal to honour contract affected the lessee's ability to trade profitable and that she had to close for trading on 1 November, 1999. 3. That on 8 November, 1999, the lessee received a Notice to Remedy Breach of Covenant and given 14 days to comply. The lessee planned to re-open on or before 14 days, but was prevented from doing so by the lessor who, without notice, locked out the lessee on 17 November, 1999 and refused re-entry, effectively terminating the lease. These complaints, or some of them, were repeated in a document filed in the Registry by the claimant. The language is far from clear and the various complaints are muddled, but the same general gist of complaints is repeated. The claimant seeks orders: 1. That the lease be cancelled retrospectively to 17 November, 1999 or that the lessee should be held not liable for rent after that date. 2. Payment of portion of rent paid by the lessee in that the lessor refused to complete the construction of the shopping centre described in the lease agreement, denied the best choice of wording on the pylon sign and denied the lessee adequate lighting for the first three months of trading, supplied inadequate second-hand air conditioning, misrepresented the parking facility and lied about 'Opening Extravaganza' and accessibility of toilets. Under this heading, the claimant seeks payment of $8,280.00, being one- half of the rent paid. 3. The claimant seeks reimbursement of all legal costs incurred by her while 'being intimidated by the lessor' after 17 November, 1999 as well as all costs involved seeking an assignee and costs involved in assignment of the lease. Various incidental matters are mentioned. The lessee assigned the lease to a third party in March, 2001. This probably terminated the lease between the claimant and the respondent. Earlier proceedings were taken by the claimant against the respondent in this Tribunal. A Notice of Dispute was filed on 23 March, 1999 and raised several matters. These are:- 1. That the air conditioner supplied was second-hand and too small for the premises. 2. That the pylon sign or her sign on the pylon was not in accordance with her wishes. 3. That the premises were of a different area to that stated in the lease. -- 2 of 4 -- Evans-v-Angelos 3 Decision 4. That the lighting supplied was not as stated or agreed to between the parties. 5. That there had been a sewerage blockage in the public toilets which caused flooding which took days to dry out and remove the smell. 6. That she paid rent for 3 December, 1998, but was unable to start trading till 15 December of that year. 7. That no Gala Opening was put on, notwithstanding the lessor's promise. It will be seen that a substantial number of the complaints raised in the present Notice of Dispute were raised previously. Documents were produced before us, indicating that there had been a settlement of the previous dispute and that the claimant had agreed to accept the settlement sum of $1,000.00 less approximately $196.00 which was set off against the lessor's claims against her. Documentary evidence signed by the claimant proves categorically that the claimant had agreed to accept $804.00 (approx.) in settlement of her claim under earlier Notice of Dispute. The respondent stated that he had sent her a cheque for this amount and she denied receipt. A photostat copy of the cheque contained an endorsement of the cheque to the respondent's estate agent, signed by the claimant. The accounts kept by the estate agent and advised from time to time to the claimant showed that the cheque had then been received by him, negotiated and the proceeds credited to the claimant's rental account. We see no grounds for setting aside or ignoring the settlement of the early proceedings. As far as we are concerned, that settlement amounted to a compromise of all matters then outstanding between the parties. The claimant's claim, based on so-called 'unconscionable conduct' relates to matters arising at the beginning of the lease and have therefore been compromised. We pass to the events of November, 1999. On 1 November, 1999, the claimant ceased trading in the demised premises. On 8 November, 1999, the respondent, through his solicitor, caused a Form 7 under the Property Law Act to be served on the claimant, giving Notice to Remedy Breach of Covenant. This related to:- (a) Payment of arrears of rent and outlays, and (b) Claimant to re-open the business as required under the lease. On 15 November, Mr Probert, the claimant's agent and her present husband, telephoned Mr Durie, of the respondent's solicitors, stating that he and the claimant would make every effort to rectify rent arrears and make a commitment to pay the rent on time in future until a new tenant is found. However, they were unable to continue trading as they had suffered losses and their resources were exhausted. Mr Durie, according to a subsequent letter to the respondent, told Mr Probert that he should return the keys to the respondent's agent. This conversation was largely confirmed by a letter sent by Mr Probert to Mr Durie and dated 15 November, 1999. -- 3 of 4 -- Evans-v-Angelos 4 Decision Mr Durie advised the respondent of the conversation by fax on 16 November. He suggested that once the keys were returned, the respondent should take steps to immediately secure the premises. When premises are not being used for trading and contain items of value, for example, fixtures and fittings, we take the view that it was only reasonable for the respondent to take steps to secure the premises. He did so by having the locks changed. The Notice to Remedy Breach of Contract gave the claimant 14 days from 8 November, 1999 to remedy breaches. The claimant paid most of the arrears of rental and outlays, leaving a balance of approximately $80.00. The claimant was therefore still in breach of her contractual duties. She had listed the business for sale and her agent advised that he had a prospective purchaser. Her solicitor advised her to re-open the business and she attempted to do so before 22 November, that is before the expiry of the date for remedying the breach. She found that she was unable to obtain access to the premises. She had not advised the respondent of her intention to re-open the business and he must have believed at that stage, that is when he caused the locks to be changed, that the claimant had no further intention of going back to the business, particularly in the light of her advice that she was unable to continue trading and it was financially impossible for her to do so. The claimant now seeks compensation on the basis that she had until 22 November, 1999, that is before the time specified in the Notice to Remedy the breach had expired, to enter into the premises and that she was kept out by the respondent's actions. This must be looked at in the light of the circumstances referred to above. The respondent had been advised that she was not going to re-open the business and he had taken reasonable steps to secure his property. He was not told that the claimant had changed her plans and wished to recommence trading, nor was there any immediate request when she could not enter the premises for the respondent to re-open them. We take the view that, by holding out by expressed words through her agent that she did not intend re-opening the premises and doing nothing to indicate that she had changed her plans, she cannot now be heard to say that she was misled in any way or prejudiced by the respondent's actions. Any claim based on this ground must fail. The claimant has sought an order from the Tribunal cancelling the lease from November, 1999. This is based on the respondent's having changed the locks. The Tribunal has no power to cancel a lease between the parties. Only a party can do so. The claimant continued to make efforts to sell the business and continued with these efforts until the business was finally sold. There is nothing to indicate that she cancelled the lease until the final stage when a new tenant had been found and took over her obligations under the lease. The claims are dismissed. P V Loewenthal, Chairman. -- 4 of 4 --