Anzolin v Commonwealth Bank Officers Superannuation Co Pty Ltd [1996] RSLT 22

___________________________________________________________________________ [1996] QRSLT 22 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute No 81 of 1996 CONNIE ANZOLIN - Claimant -and- COMMONWEALTH BANK OFFICERS SUPERANNUATION CORPORATION PTY LIMITED - Respondent WRITTEN DECISION (Pursuant to Directions Hearing on 27 November 1996) Given on 1 December, 1996 in Brisbane -- 1 of 5 -- Anzolin-v-C'wealth Bnk Sup. 2 Decision This dispute has come before the Tribunal through a Notice of Dispute filed by the Claimant in the Registry on 18 August 1996. The dispute went to mediation, was referred by the Mediator to the Chief Executive, and by the Chief Executive to the Tribunal. The details of the dispute as set out in the annexure to the Dispute Notices disclose various matters in respect of which the claimant is dissatisfied. At a Directions Hearing held on 28 October 1996, the Tribunal made an order, Order No. 2, which reads: "That the claimant's claim be restricted to failure to maintain the premises." On the same date, the Tribunal ordered, by its Order No. 3, that the Claimant file and deliver copies of all material on which she relies by Monday 11 November 1996. The Tribunal went on to order that:- "The material delivered shall: (a) contain statements of all witnesses on which the Claimant relies; (b) set out the exact terms of the order which the Tribunal is asked to make; (c) if monetary compensation is sought, the material shall set out the amount sought, the basis on which it is claimed, and details as to how the amount claimed is calculated. It will usually contain profit and loss statements and records. (Failure to set out the particulars referred to above may result in the claim being dismissed.)" By additional orders made on the same date, times for further interlocutory steps were appointed and the date for hearing was fixed at Wednesday and Thursday, 11 and 12 December, 1996. A further Directions Hearing on 13 November 1996, called at the request of the Claimant, the dates for compliance by the Claimant with the Order No. 3 above was postponed till 25 November 1996. The other appointed dates were vacated. The time was extended, against objections taken by the respondent, to enable the applicant to file and serve material which complies with Order No. 3 referred to above. A further Directions Hearing was called for 27 November 1996 for the purpose of deciding whether the material filed by the Claimant by 27 November did or did not satisfy the Order. On the further Directions Hearing on 27 November 1996, the respondent submitted that the material filed and served did not comply with Order No. 3 made on 28 October 1996, as set out above. Those submissions appear on pages 3 and 4 of the transcript of the proceedings. Further, the respondent complained -- 2 of 5 -- Anzolin-v-C'wealth Bnk Sup. 3 Decision of the fact that the material delivered to it did not contain profit and loss statements or certain photographs mentioned in the applicant's statement. At that stage, the Chairman presiding at the hearing had not seen the material filed by the Claimant. The Directions Hearing was, therefore, adjourned on the basis that after the Chairman had perused the material the Tribunal would give a written decision as to whether or not it satisfied Order No. 3. The Claimant had filed in the Registry on 22 November 1996 (that is, before the extended date) a statement by herself dated 14 November 1996, with some supporting material. On 25 November she filed further material in the form of certain profit and loss statements. The Claimant had filed with the Notice of Dispute certain copies of financial reports purporting to show how the takings in her business fluctuated between the year ended 30 June 1987 and the year ended 30 June 1996. To satisfy paragraph (b) of the Order No. 3 made on 28 October, the material delivered by the Claimant must "set out the exact terms of the order which the Tribunal is asked to make." The Respondent submits that the material does not satisfy that paragraph. In her "Clarification of Aspects of Basis of Claim" filed in the Registry on 8 October 1996, the Claimant states specifically: "I seek compensation from the Owner for the maximum amount allowable, that is, $200,000, under the jurisdiction of the Tribunal." The previous claim had been for $423,540, calculated in accordance with the financial reports attached to the Dispute Notice. The basis of that claim, as stated in the annexure to the Dispute Notice, is "failure on the part of the Owner to main a shopping facility which meets the standards required by the community," and competes with other shopping centres in the region. There is no new statement of the exact terms of the order sought appearing in the Claimant's statement of 14 November 1996 filed on 22 November 1996. The Claimant does seek monetary compensation. Therefore, the material filed and delivered, if it is to comply with paragraph (c) of Order No. 3, must set out the amount sought, the basis on which it is claimed, and details as to how the amount claimed is calculated. In this instance, profit and loss statement and records, too, are essential. Some profit and loss statements have been filed. The Respondent submits, in essence, that the material filed and delivered does not satisfy that paragraph, in that it does not relate to "failure to maintain the premises." By the first order made at the Directions Hearing held on 28 October 1996, the Claimant's claim was restricted to "failure to maintain the premises." That which gives rise to a claim for compensation on the part of a tenant under the Retail Shop Leases Act 1984 is a failure by a Landlord to perform a responsibility imposed by the lease to clean, maintain or repaint a building or part of a building or, in the case of a retail shop in a retail shopping centre, any building -- 3 of 5 -- Anzolin-v-C'wealth Bnk Sup. 4 Decision in the centre or common area. A similar provision appears in the now current Retail Shop Leases Act 1994. The material filed and delivered by the Claimant ranges far beyond a complaint concerning neglect "to maintain" as that term is used in the Statute. None of the material filed by the Claimant claimed an amount of compensation based on a relevant failure to maintain. It does not set out the basis on which the claim for compensation is made, restricted to failure to maintain the premises. It does not set out detailed calculations of the amount claimed in respect of injury suffered by the claimant because of the neglect or failure to "maintain the premises" even if that term is expanded to include the whole of the Centre. The Claimant does refer, in her statement of 14 November 1996, at the foot of page 3 and the top of page 4, to "the sparse look of the mall", and to huge pot- holes in the carpark, dead or retarded looking trees, and to rusty signposts, damaged unworking illuminated signs, faded exterior paintwork, a leaking roof every wet season, a defective air-conditioning unit, and a sloping carpark which customers hate. If the Landlord was responsible for rectifying those alleged defects and failed to do so, and if the Claimant could show injury (in a legal sense) suffered by reason of that failure, she could make a claim for compensation. But the material filed and delivered by the Claimant so far clearly has no relation to such a claim. That is clear from the summary of the Claimant's complaints contained on page 5 of her statement. Further, no copy of the lease has been filed. The Tribunal cannot be aware of whether or not the Landlord had a responsibility under the lease to carry out maintenance. Further, by reason of the fact that the claim for $200,000 must relate to the Claimant's complaints referred to on page 5 of her statement, the claim for $200,000 cannot relate to "failure to maintain the premises" in accordance with the order. It follows that the request for $200,000 compensation is not, in the circumstances, a statement of the exact terms of the order sought from the Tribunal as required by Order 3(b) of 28 October 1996. The supporting material does not relate to any claimed "failure to maintain the premises." Indeed, the Claimant's own statement and the supporting material filed make it clear that the real complaint is the Respondent's failure to keep up with the shopping centre known as "Canelands". Indeed, the whole thrust of the Claimant's complaint is that the Respondent failed to maintain a competitive position with Canelands. It is to that fact that the Claimant attributes her loss. The Claimant does not suggest that she was induced to enter into the second lease by any misrepresentations or false statement or representation made by the Respondent or any person acting under the authority of the Respondent. She does complain that she was not forewarned about the Respondent's intentions concerning redevelopment before she signed the second lease, but on reading -- 4 of 5 -- Anzolin-v-C'wealth Bnk Sup. 5 Decision her material it is plain that that failure is not relied upon, and in any event, it has no relation to "failure to maintain the premises." If it appeared on the material that the Claimant had a reasonable prospect of establishing a claim based upon s.15(1)(b) of the Retail Shop Leases Act 1984, which deals with compensation for injury suffered by a tenant and attributable to the tenant's entering into a lease or a renewal thereof as a result of a false or misleading statement or misrepresentation made by the Landlord or any person acting under the Landlord's authority, the Tribunal might be persuaded to allow an amendment to the dispute, but it is clear from the facts stated in the Claimant's own statement that she was not persuaded by any relevant false or misleading statement or misrepresentation. The Claimant has been given ample opportunity to file and deliver material complying with Order No.3 made by the Tribunal at the Directions Hearing on 28 October 1996. She has not filed or delivered such material. The Respondent could not know, from the material filed and delivered, what case it had to answer. Under the circumstances, the Tribunal extends the time for compliance by the Claimant with Order 3 above to Thursday 23rd January 1997. If the said Order has not been complied with by 4.30 p.m. on that date, the Tribunal will approve an application to dismiss the Claimant's claim. A Couper, Chairman. -- 5 of 5 --