Allen v Craydex Pty Ltd [1999] RSLT 20

1 [1999] RSLT 20 THE RETAIL SHOP LEASES ACT In the matter of Dispute 75/1998 JULIE MARGARET ALLEN (T/A FRESH FISH CAFE) - Claimant - and - CRAYDEX PTY LIMITED - Respondent DECISION Given in Brisbane on 7 April, 1999. -- 1 of 4 -- Allen –v- Craydex 2 Decision The respondent Craydex Pty Ltd has applied to the Tribunal to dismiss the claim on the basis that the claimant has failed to comply with various orders made at directions hearing concerning the filing and delivery of material and statements upon which the claimant relies, and failure to comply generally with orders made at directions hearings on 26 November 1998 and 14 January 1999. The respondent seeks, in the alternative, further orders as set out in a certain letter dated 8 February 1999, written on behalf of the respondent by its representative Tom Allsop. The respondent’s applications came before the Tribunal at a directions hearing on 11 February 1999, but at that time the respondent had not served a copy of its letter of 8 February on the claimant. On that occasion I made an order for service of a copy of the letter on the claimant, and for the claimant to reply by 25 February 1999. The claimant filed and served a reply in the form of a letter dated 24 February 1999, addressed to the Registrar of the Retail Shop Leases Registry. The respondent was not satisfied with that reply. By a letter 25 February 1999, again addressed to the Registrar, the respondent again requested that the claim be dismissed. The material filed in the Registry on behalf of the claimant, although perhaps lacking in precision, contains some information in support of a claim for compensation pursuant to the covenant implied into the Retail Shop Lease by s.15.1(b) of the Retail Shop Leases Act 1984, or s.43.(2) of the Retail Shop Leases Act 1994, whichever is appropriate. The material sets out the alleged false or misleading statement or misrepresentation upon which, the claimant states, she accepted the assignment of the lease of the retail shop. It contains reference to a contract of sale and purchase under which the claimant purchased the business carried on in the retail shop, which purchase led inevitably to acceptance by the claimant of the vendor’s interest in the sub-lease of the premises in which the business was conducted. The material sets out some particulars of alleged losses. On the claimant’s response to the respondent’s letter applying to strike out the claim, or for further particulars, I am satisfied that the claimant’s failure to comply with the orders made is not deliberate defiance of those orders, but is rather due to her failure to comprehend what is required. On the other hand, the respondent cannot be required to answer the claim if it is not properly defined. The respondent should not be put to the expense of repeated directions hearings. The issue to be dealt with now is whether the material filed and served on behalf of the claimant discloses sufficient particulars to enable the respondent to reply to the claim for compensation. -- 2 of 4 -- Allen –v- Craydex 3 Decision The material filed discloses without any doubt the alleged misrepresentation, namely, the representation set out in the respondent’s letter of 12 June 1997 to the claimant. Questions of fact arise in relation to that letter comprising at least: (a) Are the statements contained in that letter false or misleading, or do they amount to a misrepresentation; (b) Did the claimant accept the assignment of the retail shop lease on the basis of the letter; and (c) Was the claimant justified in assuming, on the strength of the statements contained in the letter, that the lease would be renewed on such a basis and for such a term as to warrant her entry into the contract to purchase the business? But while those matters can be dealt with on the material presently on the file, other relevant matters can not. For example, the copies of contracts filed on behalf of the claimant cannot be admitted into evidence because they are not apparently photocopies of stamped contracts, with the result that s.4A of The Stamp Act 1894 (as amended) prevents them from being taken into account as evidence, even by the Tribunal. The claimant may be able to produce a stamped copy of her contract to purchase, but it seems apparent that the other contracts would not have been stamped. If the claimant is to prove the price she paid and the terms of her contract to purchase, she must file in the Registry a stamped copy of the contract. If that were done, the material filed by the claimant would not in itself be sufficient to make it possible to calculate the amount of any compensation to which the claimant might be entitled. There is no apparent basis for the projected profit and loss statement, and it is to be noted that there appears at the foot of the statement the usual sentence that the information is to be read in conjunction with an attached disclaimer. I do not have the disclaimer before me. On the material on file, it cannot be said that the price paid by the claimant for the business is the amount of loss sustained by reason of acceptance of an assignment of the sub-lease on the basis of any misrepresentation. The material shows that for a time the claimant traded profitably. There is additional material to show that the head lessor bought from the claimant some of the chattels purchased by her in conjunction with the business. The material filed hints at a further loss, namely, the loss of an opportunity to apply capital to purchase some other business with security of tenure, but there is not sufficient detail to enable any claim along that line to be determined. I referred above to an issue arising out of a letter of 12 June 1997, namely, whether the claimant was reasonably entitled to rely upon its contents in deciding to purchase the business conducted in the sub-leased retail shop. The respondent has made the point that the claimant’s solicitor’s records bear on this point. The claimant has not produced any part of those records. Having regard to the fundamental importance of that letter, and of the claimant’s alleged reliance upon it, the absence of any material from the claimant’s solicitor’s file in that regard is unsatisfactory. Overall, I am satisfied that the claimant has not filed sufficient material to enable the Tribunal to determine her claim, even in the absence of any evidence on behalf of the respondent. In short, I am satisfied that the claimant has, for -- 3 of 4 -- Allen –v- Craydex 4 Decision whatever reason, failed to comply with the orders made at the directions hearings, to such an extent that her claim, as presently stated, cannot be determined by the Tribunal. Further, I am satisfied that the claimant has had ample time within which to comply with the Tribunal’s orders, and that to make a further order and grant further time would be ineffective, and, indeed, unjust to the respondent. I am satisfied that the claimant’s failure to comply with orders made by the Tribunal has put the respondent in a position where it cannot respond to the claim. For the reasons set out above, I order that the claim be dismissed because of the claimant’s failure to comply with orders made by the Tribunal at directions hearings on 14 January 1999 and 11 February 1999, such failure resulting in there being no intelligible claim before the Tribunal. A W Couper, Chairman. -- 4 of 4 --