Cribb v Olholm Developments Pty Ltd [1999] RSLT 10

1 [1999] RSLT 10 THE RETAIL SHOP LEASES ACT In the matter of Dispute 33/99 STUART JOHN CRIBB & KATHRYN MARY CRIBB - Claimants - and - OLHOLM DEVELOPMENTS PTY LIMITED - Respondent DECISION Given on 26 July, 1999 In Brisbane -- 1 of 6 -- Cribb-v-Olholm Decision-2 This dispute came before a full Tribunal for the first time on Monday, 28 June, 1999. The claimants represented themselves. The respondent was represented by K J McGhee of counsel, with the consent of the claimants. After hearing the claimants’ evidence, Mr McGhee, for the respondent, submitted that the Tribunal did not have jurisdiction to hear and deal with the dispute. The submission rested on three bases, with which the Tribunal will deal separately in these reasons. The hearing was adjourned to Tuesday, 29 June, 1999 at the site of the premises, Shop 142 at “Village Square” at Hope Island, to enable the Tribunal and the respondent’s representatives to inspect the premises and the market in which the premises are situated. The inspection was carried out and the parties were given time until the close of business on Friday, 2 July, 1999 to make further submissions. The respondent restated its previous submissions in writing. The claimants made certain written submissions. The Tribunal deals with the submission in the order in which they were made. RESPONDENT’ S SUBMISSION NO. 1: That on the evidence presented to the Tribunal by the claimants on 28 June, 1999 and on the matters observed during the inspection, the claimants are not lessees under a Retail Shop Lease because, although the premises are a retail shop, a lease of those premises is not a Retail Shop Lease. The basis of that contention is the definition of the term “Retail Shop Lease” appearing in Section 5 of the Retail Shop Leases Act 1994 (“The Act”) which excludes from the ambit of that term, inter alia, “Premises in a Theme or Amusement Park” and “Premises at a Flea Market, including an Arts and Crafts Market”. The submission goes on that a “Retail Tenancy Dispute” is defined in the Act to mean “Any dispute under or about a Retail Shop Lease or about the use or occupation of a leased shop under a Retail Shop Lease”; and therefore, the Tribunal’s jurisdiction to deal with Retail Tenancy Disputes has no application. Obviously, the matter for determination in relation to that submission is whether or not the subject premises are “Premises in a theme or Amusement Park” or “Premises at a Flea Market, including an Arts and Crafts Market”. The third edition of the Macquarie Dictionary contains a definition of the term “Theme Park”, which it defines as “An Amusement Park which has a particular theme as the basis for its design, as Convict Settlement, Space Travel, etc.”. On the same page of the same work, the term “theme” is defined and given five different meanings. The only possibly relevant one of those meanings is “A subject of discourse, discussion, meditation, or composition; a topic”. The term “theme” is expanded in the third edition of the Shorter Oxford English Dictionary, but the expanded meaning adds nothing for present purposes. -- 2 of 6 -- Cribb-v-Olholm Decision-3 The term “amusement” is defined in the second edition of the Oxford English Reference Dictionary. Of the several meanings given, the relevant one for present purposes is “Something that amuses, especially a pleasant diversion, game or pastime”. While there may be some entertainment provided by musicians, and while it appears that there may be, or may have been intended to be, a carousel within the complex, it is clear that “Village Square” was always intended to be, and is now, far more than an Amusement Park, as it is also clear that there was never any single theme upon which Village Square relied. Turning now to the interpretation of the expression “Premises at a Flea Market, including an Arts and Crafts Market”, one notes among the “Goods or Services for Businesses Prescribed as Retail Businesses” in the schedule to the Retail Shop Leases Regulation 1994 “Artworks or crafts and allied equipment or supplies”. But the business conducted in and from the subject premises, Shop 142, is not such a business. It is more like the “take-away food business” or the “restaurant, cafeteria, coffee lounge or other eating place services” referred to in the schedule to the regulation. The lease of the business premises is a Retail Shop Lease unless it comprises “Premises at a Flea Market, including an Arts and Crafts Market”. The term “Flea Market” is defined in the Budget Macquarie Dictionary as “A market where usually second-hand or cheap articles are sold”. “Village Square” does not fit that description. Further, in common speech, the term “Flea Market” implies a market operating from time to time, rather than continuously, with the stall-holders having no enduring tenancy rights but only licenses to occupy which the controller of the market may withdraw. That is not, and apparently was never intended to be, the case at “Village Square”. “Village Square” is not a “Flea Market” within the meaning of that term in the Act. In the context in which it appears in Section 5 of the Act, the term “An Arts and Crafts Market” has a similar connotation – the idea of what might be called spasmodic trading with occasional market days, but no continuous market. The inclusion of the two terms “Flea Market” and “Arts and Crafts Market” in one sub- section of the meaning of “Retail Shop Lease” satisfies the Tribunal that a lease of premises in an Arts and Crafts Market will not be affected by the exclusion unless the Arts and Crafts Market is itself within the commonly accepted meaning of “Flea Market”. It is to be noted throughout that “Flea Market” and “Arts and Crafts Market” are nowhere defined in the Act or Regulations. Further, there is no similar exclusion in the previous legislation, the Retail Shop Leases Act 1984. In the “explanatory notes” published concerning the Retail Shop Leases Bill 1994, reference is made to the definition of terms used in the Bill. The relevant reference is as follows: A. ”Retail Shop Lease” is defined to exclude large retail sites of more than 1000 square metres operated by public corporations. This continues the existing Act’s focus on small retail lessees. To avoid circumvention of the Bill, the definition of “Lease” has been broadened to include licenses to occupy -- 3 of 6 -- Cribb-v-Olholm Decision-4 premises to operate as a retail shop. However, premises at Theme or Amusement Parks or Flea Markets and temporary stalls at Agricultural or Trade Shows or Carnivals, Festivals or Cultural Events have been specifically excluded”. There is no mention there of an “Arts and Crafts Market”. The endnotes show that Section 13 of the Bill was amended in committee. That section has no reference to definitions. The Tribunal is satisfied that the legislative intention was to exclude from the ambit of the Act, premises occupied and utilised from time to time on various occasions but not continuously, where those premises were of the nature of Flea Markets or were, for example, tents at a sideshow at an exhibition. There is yet a further basis for holding that “Village Square” is not within the excluded types of market. “Village Square” was designed to contain, and, as the inspection showed, does contain shops which do not sell arts and crafts. The subject premises comprise one such shop. Others include a coffee shop, a bar and grill, and a substantial restaurant. Summarising, the Tribunal is satisfied that the subject premises occupied by the claimant do not fall within the exclusions contained in the definition of the term “Retail Shop Lease”. RESPONDENT’S SECOND SUBMISSION Occupation of the premises at issue in the dispute is under either a periodic tenancy or a tenancy at will. The respondent referred to Section 42 of the Retail Shop Leases Act 1994, Section 129 of the Property Law Act 1994 (sic) and the High Court’s Decision in Chan –v- Cresdon (1989) 168 C.L.R. Section 42 of the Act does not divest a tribunal of jurisdiction where the tenancy of a retail shop is a periodic tenancy or a tenancy at will. The definition of the term “lease” in Section 5 of the Act specifically includes a right of occupancy for a term or by way of a periodic tenancy or tenancy at will. The effect of Section 42 of the Act is to exclude from a periodic tenancy or a tenancy at will the implied covenants set out in Section 43 of the Act. That exclusion does not deprive a tribunal of jurisdiction. But a tenant under a periodic tenancy or tenancy at will cannot found a claim for compensation as if the covenants contained in Section 43, including that covenant referred to in Section 43(2)(a), appeared in the conditions of the tenancy. Attachment 17 (C) to the statement of Stuart Cribb, being part of Exhibit 1, contains a Disclosure Statement as required by Section 22 of the Act in respect of a proposed lease from a lessor called Companee Pty Ltd to a lessee Aussie Shaved Ice Pty Ltd for a period of one year, with two optional extensions each of three years, of Shop 138 (C) at “Village Square”. While it appears from the evidence that lot 142 (C) was substituted for lot 138 (C), there is nothing to -- 4 of 6 -- Cribb-v-Olholm Decision-5 indicate that the term of the lease was in any way affected by that change. Whether or not the lease referred to was reduced to writing and signed on behalf of the lessor remains a moot point on the evidence, which shows that in spite of every attempt being made by the claimants to obtain a copy of their lease, they have met with no response in that regard. That being so, the tribunal refuses to hold that there is no written lease. Be that as it may, there is clearly, on the evidence, a part performed parol lease of the premises occupied by the claimants. Section 6 of the Property Law Act 1974 provides expressly that nothing in Sections 10 to 12 and 59 affects the law relating to part performance. Sections 10 to 12 deal with requirements for writing. Section 59 relates to contracts for the sale of land. Thus, part performance of a parol lease overrides the restrictive sections in the Property Law Act. The case of Chan –v- Cresdon Pty Ltd., [1989] C.L.R. 242 does not deal with this particular issue. The court held there that although the agreement for lease gave rise to certain common law terms, it would be specifically enforced by a court exercising equitable jurisdiction and therefore amounted to a lease in equity between the parties to it, on the same terms and conditions as appeared in the unregistered instrument of lease; but that did not make the equitable lease “the Lease” referred to in the relevant document of guarantee. There is nothing in Chan to upset the doctrine of part performance. (Incidentally, Chan was followed by the Queensland Court of Appeal in Ashton –v- Hunt [1999] 1 Qd R 571, but with apparent reluctance.) The Tribunal holds that as between the claimants and the lessor, the claimants’ tenancy is neither a periodic tenancy nor a tenancy at will, but rather is a tenancy between those parties for one year at least. It must be understood that that ruling is not a ruling concerning the relationship of the claimants, on the one hand, and the respondent, Olholm Pty Ltd., on the other. That is an issue yet to be resolved. RESPONDENT’S THIRD SUBMISSION The respondent, Olholm Pty Ltd., since 11 February, 1999, due to the Supreme Court orders of White J, no longer is permitted by law to be a party to this or similar proceedings without the leave of the court. By an order made on 11 February, 1999, amended on 10 March, 1999, the Supreme Court appointed Ian Richard Hall and Peter James Hedge “joint and several receivers and managers of all the property whatsoever (both real and personal, wherever situated and whether existing or after acquired), of the first defendant or any other person, held under the Joint Venture Agreement between the parties to the proceedings before the Supreme Court known as the “Village Square Joint Venture Agreement”. That property included a substantial part, or indeed the whole of the land comprised in “Village Square”. It appears that the -- 5 of 6 -- Cribb-v-Olholm Decision-6 order and the amending order were made under Order 58 of the Supreme Court Rules for the interim preservation of the property pending resolution of a dispute between the Joint Venturers. Similarly, the Joint Venturers are not deprived of their full power to deal with any and all property other than that vested by the Court in the receivers. The Chairman has noted the authorities cited on behalf of the respondent in support of this submission, but has held that neither is relevant. The case of Swaby –v- Dickson (1833) 58 E.R. 475 is nowhere referred to in the annotations to Rule 58 (although it is noted in the text book cited). The receivers in the present dispute are not “company receivers and administrators”, and their function is quite different from the function of company receivers and administrators. SUMMARY For the reasons set out above, the Tribunal holds that it has jurisdiction to hear this Retail Tenancy Dispute No. 33 of 1999. But it remains for the claimants to establish their claims, if they can, and to show, again if they can, a right to compensation against an identified lessor in respect of a specific claim and for a specific amount. The entitlement to compensation, the identify of a lessor, the basis of a claim for compensation, and the amount of compensation, if any, all remain to be established. A Couper Chairman -- 6 of 6 --