Carlow v Olholm Developments Pty Ltd [1999] RSLT 16

1 [1999] RSLT 16 THE RETAIL SHOP LEASES ACT In the matter of Dispute 65/99 LYALL CLAUDE CARLOW - Claimants - and - OLHOLM DEVELOPMENTS PTY LIMITED - Respondent DECISION Given on 15 October, 1999 In Brisbane -- 1 of 7 -- Carlow-v-Olholm 2 Decision This dispute came before a full Tribunal for determination on Thursday and Friday, 23 and 24 September, 1999. In a unanimous decision, the Tribunal found and held that the evidence did not establish the existence of a lease from Olholm Developments Pty Ltd (the respondent) as lessor to Lyall Claude Carlow (the claimant) as lessee for a five year term, and, on that basis, held that the claim must be dismissed. On that occasion, the Tribunal informed the parties that reasons for the decision would be published in the near future. Those reasons are set out hereunder. The Tribunal had held that the claim was within its jurisdiction because the claimant had occupied a retail shop on a lot of which the respondent was the registered proprietor, thus giving rise to a retail shop lease. At the hearing, the complainant was represented by his wife, Barbara Lyn Carlow, and the respondent was represented by K J McGhee of Counsel, with the consent of the claimant. Evidence was called on behalf of the claimant by verification of the statements made by the claimant and filed in the Registry and by additional oral evidence in response to cross-examination. Evidence in the form of statutory declarations was produced by the respondent. The Tribunal points out at this stage, that without reference to the respondent’s material, the claimant’s material did not support the claim. The claimant’s notice of dispute filed on 25 June, 1999 had four elements which were stated by the claimant as follows:- “The Joint Venture parties have terminated my lease which I believed was valid at the time of signing. I went to great expense to set up a café and had one week to vacate the premises at another expense to me. I have tried unsuccessfully to renegotiate my rent based on misleading representation made by the developer, Lancet P/L (Wayne Price and Troy Price). -- 2 of 7 -- Carlow-v-Olholm 3 Decision I became a creditor when Village Square went into receivership. I put in writing (to the receivers) that my ‘reduced’ rent could come out of these monies but never received an answer. I want compensation for my 5 yr lease and set-up costs”. The claimant filed in response to the usual order made by the Tribunal for filing and service of material, a list of documents on which he relied and then went on to state that the orders sought were:- Confirmation that a lease existed between Lyall Carlow and Olholm Developments. Compensation for lease being terminated six (6) months into five (5) year lease; i.e. fitout, dismantling of fitout, moving and storage of equipment, loss of fitout destroyed in move. The total amount claimed was $89,000.00 of which some details were supplied. In context, the request for confirmation that a lease existed must be taken to have referred to a lease for a term of five years. The material filed by the claimant did not include any documentary evidence of a lease from the respondent to the claimant. The claimant did produce a copy of a document the “Agreement for Lease” undated, signed by the claimant but not signed or sealed on behalf of the alleged lessor. It is to be noted that the lessor named in that document is Lancet Pty Ltd A.C.N. 010889451, which is, of course, consistent with the second complaint set out in the claimant’s notice of dispute. The document, photocopied, obviously had never been stamped and therefore the photocopy could not be admitted into evidence for the purpose of establishing the existence of a lease; but even if it could have been admitted into -- 3 of 7 -- Carlow-v-Olholm 4 Decision evidence, it would not have assisted the claimant’s case against the respondent. The claimant referred to the schedule to the Community Management Statement in respect of the whole development known as “Village Square” which showed that lot 55, over which the claimant claimed a lease, was approved for use as a café, which is the use the claimant states he made. Then the claimant referred to a certain letter on the letterhead of Village Square Art & Craft Market, dated 5 November, 1998, addressed to Gold Coast City Council and purportedly signed by Geoff Olholm on behalf of Olholm Developments Pty Ltd., on behalf of “Village Square Art & Craft Market”. The letter reads:- “I hereby give my approval for Lyall Carlow to establish a café in lot 55 in unregistered plan at Village Square Art & Craft Market, at 2-4 Sickle Avenue, Boykambil, Hope Island”. . Mr McGhee submitted on behalf of the respondent that the signature on the letter bore no resemblance to the signature of Geoff Olholm appearing on his statutory declaration filed on behalf of the respondent. The difference between the signature on the letter and the signature on the declaration is quite striking. Although the Tribunal makes no finding on the point, the signature on the letter does bear some resemblance to the signature of a person (not a party to the dispute) appearing on a document filed on behalf of the respondent. But even were the signature on the letter of 5 November, 1998 that of Geoff Olholm, the letter would do nothing to establish the existence of a lease for five years made between the respondent as lessor and the claimant as lessee. The letter of consent, if it were indeed written on behalf of Olholm Developments Pty Ltd., would be no more than an owner’s consent to an application. It does not follow that the owner is the lessor. The claimant then referred to an advertisement published in the Weekend Bulletin Newspaper of December 19-20, 1998, but the Tribunal found that the -- 4 of 7 -- Carlow-v-Olholm 5 Decision advertisement had no evidentiary value in relation to the claim that Olholm Developments Pty Ltd had granted a lease to the claimant. The telephone numbers given in the advertisement were, as the claimant stated, first, the number of Village Square Art & Craft Market (for practical purposes Wayne Price or Troy Price) and second, the mobile telephone number of Wayne Price. The claimant stated in oral evidence that he had signed the document referred to above as Deed of Agreement for Lease which named Lancet Pty Ltd as the lessor, but on discovering that Olholm Developments Pty Ltd was the owner of the fee simple, he signed a new document in the form of the REIQ’s standard lease, naming that company as lessor. He said he gave that document to Troy Price to be sent to Geoff Olholm in Cairns to be signed and returned with the letter of consent to the establishment of a café on lot 55. The claimant was unable to produce any written evidence of the existence of the document to which he referred. Nowhere in the proceedings was any evidence adduced to show the existence of a stamped agreement for a lease, much less a stamped registrable lease, for a term of five years between the respondent as lessor and the claimant as lessee. Evidence was given on behalf of the claimant by Mr R J Balcke, who stated that Geoff Olholm, although resident in Cairns, did attend at “Village Square”, was aware of the existence of the café and referred to it as the “Flagship” of the development. He stopped short of saying that Olholm acknowledged that Olholm Developments Pty Ltd was the lessor. The rest of Mr Balcke’s evidence did nothing to establish the existence of a written lease between the claimant as lessee and the respondent as lessor. In short, no evidence was put before the Tribunal to show the existence of any written lease. -- 5 of 7 -- Carlow-v-Olholm 6 Decision Mr McGhee for the respondent argued that the absence of documentation was fatal to the claimant’s case. That claim was based on Sections 10, 11 and 12 of the Property Law Act 1974; but it overlooked Section 6 (d) which provides that nothing in those sections (or Section 59) affects the law relating to part performance. Therefore, the Tribunal considered whether the evidence supported the claim that there had been sufficient part performance of the terms of a fully agreed parol lease. Its conclusion was that there was no such evidence. Nevertheless, the claimant clearly had paid a considerable sum of money to fit out the premises. In response to a question from the Chairman, the claimant stated that he went ahead with his fitout and commenced carrying on his business in the belief that, when he signed the Deed of Agreement for Lease naming Lancet Pty Ltd and the form of lease naming Olholm Developments Pty Ltd., those documents became binding upon Lancet Pty Ltd and Olholm Developments Pty Ltd respectively; and that he claimed against the latter company because it was found to be the registered proprietor of the fee simple estate in lot 55. The Chairman holds, as a matter of law, that the claimant’s belief in that regard was ill-founded and inaccurate. The claimant, through Mrs Carlow, his agent, argued at some length that if there was no lease, Geoff Olholm ought to have told them so when he visited “Village Square”. That argument has no force in law. The claimant also stated that Geoff Olholm, on being asked by him the claimant, where the lease was, stated that the lease was with his, Olholm’s, solicitors for attention. Again, if that is in fact the case, it does not advance the claimant’s claim because it contains no evidence of the nature and content of the lease relied upon sufficient to support a claim based on part performance and, obviously, it is no evidence of the existence of any particular document. The only evidence of the submission of a document in the form of a lease to -- 6 of 7 -- Carlow-v-Olholm 7 Decision Olholm Developments Pty Ltd is the claimant’s statement that he delivered that document to Troy Price for forwarding to Olholm in Cairns. There is no proof whatever that Troy Price acted in accordance with his statement to the claimant. In a statutory declaration, Olholm denied that he had ever received any document relative to a lease of lot 55 in favour of the claimant for a term of five years, or indeed any document indicating any lease from Olholm Developments Pty Ltd to the claimant. While it is not necessary to rely upon that declaration for the purposes of the decision in this dispute, the Tribunal mentions its existence as simply additional support for the decision reached. For completeness, the claimant’s best position is that he had a tenancy at will, although the evidence is not conclusive in that it does not prove that the claimant occupied the premises with the respondent’s consent. A tenancy at will could not entitle the claimant to the relief he claimed. Further, the implied provisions for compensation, set out in Division 7 of Part 6 of the Retail Shop Leases Act 1994, do not apply to a tenancy at will. The Tribunal hereby confirms that the dispute is dismissed. A Couper Chairman -- 7 of 7 --