Dilmar Pty Ltd v Beach Plaza Pty Ltd [1999] RSLT 3

[1999] RSLT 3 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute No. 7 of 1999 DILMAR PTY LTD (T/A BEACH PLAZA BRASSERIE RESTAURANT) - Claimant - and - BEACH PLAZA PTY LIMITED - Respondent Coram: P Loewenthal J (Chairman Mr A Cole (Member) DECISION on Tuesday, 28 September 1999 in Proserpine -- 1 of 2 -- Dilmar-v-Beach Plaza 2 Decision The claimant has not so far established any causal link between failure to maintain and his claim for loss of trade. The two witnesses whom the claimant wished to call do not, according to what the claimant has told the Tribunal, indicate any causal link between the failure to maintain the building and the loss of trade. On that basis, as a causal link is an essential part of this claim, my ruling is that those witnesses should not be allowed to be called, and I so rule. In regard to cross-examining Mr Parsons, exactly the same situation arises. The claimant might well prove that the building was not maintained or very badly maintained, but he does not establish a causal link and, on that basis, the claim for loss of trade must necessarily fail. On the basis already indicated to the claimant, and the respondent can indicate whether he disagrees with anything I say, in regard to the claim for fixed assets of $48,000 and trading stock on hand, the claimant’s claim is deficient in two aspects; one is the right to claim the value depends on the claimant having demanded the assets and not being given them. Secondly, the value is to be established as the present value of these fittings and not a book or depreciated value which might well have no relationship to the present value at all. With regard to amortised goodwill, this again is a bookkeeping entry and its amount or the liability to pay would depend entirely on the claimant having any remaining goodwill. It appears to me that on the lease, which was for a fixed period with an option to renew which was conditional, and the condition not having been satisfied, the claimant’s lease had come to an end and any question of claim for goodwill must fail. At this stage, again giving an opportunity of addressing further by both claimant and respondent, although I believe I’ve heard both fully on these aspects before, I intend ruling that there is no material on which a Tribunal properly directed can, in any way, find for you on this claim. I direct the other Members of the Tribunal that there is no case on which, properly directed, they could find for the claimant and, on this basis, the claim is dismissed. I dismiss the claim made by the respondent for the claimant to pay costs. Dated at Proserpine this TWENTY-EIGHTH day of SEPTEMBER 1999. Chairman Retail Shop Lease Tribunal. -- 2 of 2 --