Alan Wood and Jane Wood v Yvonne Clark [1998] RSLT 24

[1998] RSLT 24 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute No.80 of 1998 ALAN WOOD and JANE WOOD - Claimants - and - YVONNE ELIZABETH CLARK - Respondent DECISION Given on 29 October, 1998, in Brisbane -- 1 of 3 -- Wood-v-Clark Decision - Page 2 This Dispute was commenced by a Notice of Dispute filed by the claimants as lessors on 13 August 1998. A mediation conference held on 7 September 1998 did not produce a solution. The Dispute came before me on a Directions Hearing on 30 September 1998. On that occasion, I adjourned the Directions Hearing to enable the respondent to make, file and serve written submissions as to why the lessee should not be required to pay 50% of the total rates on the allotment. The respondent's written submissions were received on 2 October 1998. In this Dispute, the claimant lessors claim that the respondent lessee is obliged to pay certain outgoings, and has not done so. During the directions hearing, it became clear that the only matter in dispute was the amount of the lessee's contribution to local authority rates. In her submission No. 3, the lessee refers to clause 1(d) of the lease, and sets out sub-paragraph (i) of that clause. Because it is necessary to have regard to the whole of clause 1(d), I set it out hereunder. It reads as follows:- "(d)In addition to the rental hereinbefore reserved, the lessee will pay to the lessor upon demand during each yearly period of the said sum (sic) on (sic) any extension or renewal thereof 50% of all the lessors' reasonable expenses directly attributable to the operation, maintenance and repair of the building in which the demised premises are situate as hereinafter set out. (i)All rates and/or service charges, Fire Brigade levy charges, taxes (excluding income taxes payable by the lessor and State Government Land Tax) charges and assessments, duties, levies, impositions and fees at any time or from time to time payable to any government or semi-government or other competent authority in respect of the building erected on the land or on the land on which the building is erected; (ii)Insurance premiums and other charges (including stamp duties) for insurance of the building of which the demised premises form part with extended cover for vandalism, malicious damage, earthquake, flood water damage, fusion and mechanical breakdown in broad cover form with repair and replacement terms." -- 2 of 3 -- Wood-v-Clark Decision - Page 3 The respondent submits that the expression "the land on which the building is erected" means only that part of Lot 1 on RP73732 in the County of Stanley Parish of Tingalpa, which has a total area of about 2071 square metres, upon which the building occupied by the respondent lessee actually stands. The floor area of the shop appears to be about 206 square metres. Item 2 in the Form 7 Version 2, which describes the land affected by the lease, shows that the land is Lot 1 on RP73732 referred to above. Item 5 in the same document shows that the description of the premises being leased is: - "Part of the building erected on the said land as delineated in black on the attached sketch." From that, there can be no doubt that the expression "the land on which the building is erected" refers to Lot 1 on RP73732. It is the rate assessed against that land by the local authority of which the respondent lessee is obliged to pay 50%. The respondent lessee argues for apportionment of the rate on an area basis. There is no such provision in the lease. The fact that the leased shop is not the only structure on the land is recognised by the requirement for payment of 50% of outgoings, rather than all the outgoings. The respondent lessee's submissions to the contrary are rejected. I hold, as a matter of law, on the facts put before me by the respondent lessee in her submission, that the lessee's contribution to rates pursuant to the provisions of the lease must be 50% of the rates and charges levied by the local authority on the whole of the land being Lot 1 on RP73732 in the County of Stanley Parish of Tingalpa. Further, I hold that, on its proper interpretation, paragraph 1(d) of the instrument of lease requires the lessee to pay to the lessor 50% of the expenses described in that paragraph applicable to the whole of the said land and the whole of the building thereon. A W Couper, Chairman. -- 3 of 3 --