Cardwell Muddies v Swann [1996] RSLT 10

___________________________________________________________________________ [1996] RSLT 10 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute No 41 of 1996 J M DEARDEN & C J KEMPISTER (T/A CARDWELL MUDDIES) - Claimant -and- P L AND L R SWANN - Respondents DECISION Given on 12 September, 1996 in Brisbane _____________________________________________________________________________ -- 1 of 5 -- _ -- 2 of 5 -- Dearden-v-Swann 3 Decision This matter was resolved by agreement between the parties, except for the question of rates payable by the claimant tenants to the respondent landlords. The lease between the parties contains the following relevant provisions:- "2.2That the lessor will pay all local authority and water and sewerage rates and land tax whatsoever to be charged upon and payable in respect of the land on which the demised premises are situated, except to the extent that the same are payable by the lessee hereunder... 3.13.1.5 In addition to the annual rental payable, the lessee shall pay an amount equal to any increases in local authority rates over and above those levied in respect to the demised premises for the half year ended 20 June 1993..." In the course of negotiations, correspondence passed between the parties. By letter dated 17 November 1993, Messrs Pohlmann and Mangano, the tenants, as follows: "With respect to clauses 2.2 and 3.13.1.5, our clients understand from negotiations with your client that your client will pay the local authority rates for the first 12 months, and that our clients would pay the rates thereafter." This is in conflict with the clauses of the lease to which we have referred. The lease being the later document and executed by all the parties, must prevail in the absence of proof that it does not set out the agreement between the parties. We have been asked to resolve this matter without entering into evidence and must therefore accept that the terms of the lease bind the parties. By letter dated 3 November 1995, Mr Paul Hudson, the landlord's then solicitor, wrote to Messrs Spina Kyle and Roati, the solicitors then acting for the respondents, in a letter which contained the following:- "Further, on 25 September 1995, my clients wrote to yours regarding their liability for rates. Referring to clause 1.13.1.5 of the lease, I advise that the rates and fire service levies for the relevant period were:- 1.1.93 to 30.6.93 - $712.05 1.7.93 to 31.12.93 - $1190.28 1.1.94 to 30.6.94 - $1258.78 1.7.94 - 31.12.94 - $1346.86 1.1.95 - 30.6.95 - $1346.26 1.7.95 - 31.12.95 - $1946.26 You will see that by subtracting the later figures from the base figure, that your client is liable to my client in the sum of $3527.91. -- 3 of 5 -- Dearden-v-Swann 4 Decision I understand that your client has paid mine $256.04 towards same, leaving an outstanding amount of $3,271.87." The final figure is arrived at by adding the rates for the five periods, 1.7.93 to 31.12.95, and deducting five times $712.05. By letter dated 27 November 1995, Messrs Spina Kyle and Roati replied to Mrs Hudson, the relevant portion of their letter being: "We have now made our own investigations with the Cardwell Shire Council which reveal that the rates are as follows:- 92/93 93/94 94/95 95/96 General Rate Charge 906.30 1555.48 1711.02 2734.84 Water Charge 506.00 632.50 632.50 650.00 Garbarge Charge nil 149.50 243.00 285.00 Total 1410.30 2337.48 2586.52 3670.84 ======= ======= ======== ======= It is quite clear that Clause 3.13.1.5 relates only to the option period, therefore our client is liable for excess Local Authjority Rates only from the lst of December 1994. For the period 1st of December 1994 to the 30th of June 1995 excess rates are calculated as follows:- $2586.52 - $1412.30 x 7 12 = $684.96 For the period 1st July 1995 to the 31st of December 1995 excess rates are calculated as folflows: - $3670.84 - $1412.30 x 6 12 = $1129.27 Our client's total liability pursuant to Clause 3.13.1.5 from the lst of December 1994 to the 30th of December 1995 would be $1814.23. Our clients have paid the sum of $256.04 leaving an outstanding amount of $1558.19." The difference between the parties is minor. It arises, as far as we can see, between the base rate of $1412.30 as stated by the tenant, and $1424.10, as claimed by the landlord. This is something which we cannot resolve on the material before us. -- 4 of 5 -- Dearden-v-Swann 5 Decision We are uncertain on the material before us as to what we are asked to decide. The matter was only mentioned briefly and no notes were taken. We therefore require further definition of the dispute before we can resolve it. As the amount concerned is small, we suggest that it be left to the solicitors to compromise or settle. If this is not possible, it will be necessary for the parties to submit further material to us. --------------------- Loewenthal J Chairman. -- 5 of 5 --