Creswell v Blinco [2000] RSLT 9

1 [2000] RSLT 9 THE RETAIL SHOP LEASES ACT In the matter of Dispute 84/1999 VERONICA GWEN CRESWELL - Claimant - and - BARBARA JOY BLINCO - Respondent DECISION (on Jurisdiction) Given in Brisbane on 15 December, 2000. -- 1 of 4 -- Creswell-v-Blinco 2 Decision (re Jurisdiction) This is a decision on the jurisdiction of the Tribunal. It is given by me as Chairman and is not the decision of the full Tribunal, as the material on which I rely is common ground or undisputed. This matter came before a full Tribunal consisting of myself as Chairman and two Lay Members in Mackay. The material filed in the Registry prior to the hearing did not include the documents referred to as the “lease agreement.” It appears that there is other litigation between the claimant and the respondent before the District Court and a copy of this document had been filed in those proceedings. For some reason, the parties assumed that the Tribunal would have material filed in the District Court before it. I first saw the lease agreement when it was tendered to the Tribunal. I raised the question of whether it was valid as a lease between the parties at the hearing. I pointed out that for a lease to be binding, it must contain four certain things. These are: 1. The name or descriptions of the parties; 2. The description of the leased premises; 3. The rental payable; and 4. The period of the lease and its commencement date. Evidence was heard by the Tribunal in Mackay, and at the conclusion, on my suggestion, the parties agreed to submit written heads of argument. There was some delay in these heads of argument being submitted, but they were received by the Tribunal in due course. They dealt only in passing with the validity of the lease. In terms of the Tribunal’s usual procedure and following on discussion with the Tribunal Members, I prepared a draft decision on the merits and this was circulated to the two other Members of the Tribunal. However, I had reservations with respect to the validity of the lease agreement, particularly in the light of the submission by the claimant’s legal adviser that the lease was definite in that the starting date was either the date appearing on the lease agreement or the date from which rental was first payable. This submission appeared to me to stress an uncertainty which had been troubling me, and as a result I caused a letter to be written to the legal advisers of both parties requesting further submissions in this regard. There were then further substantial delays, but in due course submissions were received. Further delay was caused by the fact that soon after the submissions were received, I became unavailable to consider the matter. From the submissions and the authorities cited, I have reached the conclusion that the law to be applied is as follows: 1. Certainty is required as to the term of the lease and its starting date. The starting date is certain if it appears from the lease agreement by itself or by the happening of an event referred to in the lease -- 2 of 4 -- Creswell-v-Blinco 3 Decision (re Jurisdiction) agreement such as, for example, a provision that the lease would commence when building work is approved by the relevant authorities. 2. The Tribunal seeks to find in favour of validity instead of invalidity; and 3. Each matter must be decided on its own facts. The document referred to as “lease agreement” and signed by the parties is dated 24th July 1998. A copy is attached to this decision. It provides in so far as the term is concerned, the following: 1. This lease is for a period of four years with an option at the end of this period to renew the lease for a further four years with terms and conditions to be renegotiated. 2. The weekly rental shall be $150.00 per week, and will commence on 30 th July, 1998. Rental shall be paid in advance on a weekly basis. Counsel for the claimant in his first submission stated that the lease was certain as the commencement date was the date of the agreement or the date from which rental became first payable. A further possibility is that the lease commenced on the date on which the lessee entered into possession of the premises. This gets some support on the literal reading of s.11 of the Retail Shop Leases Act. That section reads: Application of Act – when lease entered into. 11. A retail shop lease is entered into on whichever is the earlier of the following dates – (a) the date the lease becomes binding on the lessor and lessee; (b) the date the lessee entered into possession of the leased shop. I have come to the conclusion that this section is only designed to cover the interim period between the time the lessee first enters into possession of the premises and when the lease commences in terms of its provisions. Experience has shown that there is frequently a lengthy period between possession being given to a lessee and the date of commencement of the lease as specified in the lease. Such period is usually taken up by shop-fitting and the like. Section 11 makes the Act applicable to this period, including giving the Tribunal jurisdiction to deal with disputes which arise during that period. Having said that s.11 is irrelevant does not mean that the date of possession is excluded as a date of commencement of lease. Provisions frequently occur in leases where possession is given on a date specified in the lease, following by a rent-free period. I have come to the conclusion that the lease agreement does not specify the date of commencement of the lease with sufficient certainty to satisfy the legal requirements for a valid lease. Three possible dates are open on this -- 3 of 4 -- Creswell-v-Blinco 4 Decision (re Jurisdiction) document, and although the time between them is small, it might in some circumstances be vital. I have come to the conclusion that the so-called lease agreement is not a valid agreement for lease. As the jurisdiction of this Tribunal depends on the existence of a lease, I rule that the Tribunal has no jurisdiction to determine this matter. I add, for the assistance of the parties, two further statements. This decision is a decision for the purposes of this Tribunal only and may well be in no way binding on any other Tribunal or Court. A draft decision on the merits has been prepared and could quickly be settled by the whole Tribunal, but I have decided that this draft decision should not be published. It is a decision given, on my findings, without jurisdiction and may wrongly discourage or encourage one or other of the parties to take such further steps or proceedings as she may consider otherwise appropriate. P V Loewenthal, Chairman. -- 4 of 4 --