Anquota Pty Ltd v Australiana Aspect Pty Ltd [1999] RSLT 24

Anquota-v-Australiana 1 23.4.1999 [1999] RSLT 24 THE RETAIL SHOP LEASES ACT -- O R D E R S -- Given in Brisbane on Friday, 23 April, 1999. Dispute 86/1998 ANQUOTA PTY LIMITED (T/A PALM COVE RESORT SHOPPE & GLEN’S UNIQUE BOUTIQUE) - Claimant - and - AUSTRALIANA ASPECT PTY LTD - Respondent THE CHAIRMAN: The order I make is: By an order made at a Directions Hearing on 15 December 1998, I did in fact make two orders: 1. That the lessor must comply in full with its obligations under s.37 of the Retail Shop Leases Act 1994 by Tuesday, 2 February, 1999. 2. No contributions to outgoings are to be demanded by the lessor or paid by the lessee until the Tribunal is satisfied that the lessor has complied with its obligation under s.37 of the Act. The earlier Directions Hearing was then adjourned and has been now set down for today, 23 April, 1999. Material filed in the Registry shows that an audited statement to 31 August, 1998, and an estimate to 31 August, 1999, have been prepared. I have accepted an undertaking given by Mr Sutherland on behalf of the lessor to transmit copies of those documents today by fax to the claimant Anquota Pty Limited. Therefore, I propose to cancel the second order referred to above about contributions. In cancelling that order, I do not make any finding as to whether the amounts of money claimed as outgoings represent the lessor’s reasonable expenses directly attributable to the items referred to in s.7(1) of the Act, or are recoverable by the lessor from the lessee. In particular, I have not yet attempted to define or determine whether so much of the Body Corporate’s levies as relate to the shortfall in the 1996/97 year is recoverable, but I am assured by Mr Sutherland that the outgoings claimed on behalf of his company do -- 1 of 2 -- Anquota-v-Australiana 2 23.4.1999 not take into account any part of the shortfall of $40,667.05. Further, I make no finding as to whether the provisions for payment of outgoings as defined in the lease appearing in clause 4.1 are or are not contrary to s.24 of the Act. In the result, I now order: 1. That if the claimant wishes to contend that all or any part of the sums claimed as outgoings are not recoverable in terms of the Act, the claimant must file in the Registry and deliver to the respondent by 10 May 1999 a written claim to that effect, such claim to set out in full the facts and circumstances on which the claimant relies. 2. That Order 2 of 15 December 1998 be cancelled on and from 11 May 1999, if no claim is filed and served in accordance with Order 1 made today. 3. That this Directions Hearing be adjourned to the Registry to be brought on again on seven days notice at the request of either party. A W Couper, Chairman. -- 2 of 2 --