Burrob Pty Ltd v Sunshelf No. 56 Pty Ltd [1996] RSLT 7

[1996] RSLT 7 RETAIL SHOP LEASES ACT 1994 ORDER OF THE RETAIL SHOP LEASE TRIBUNAL TO: Burrob Pty Ltd Sunshelf No. 56 Pty Limited c/o A Tobin c/o John Price Primrose C C Rudkin Corrs Chambers Westgarth Solicitors Solicitors PO Box 413 PO Box 8180 SOUTHPORT Q 4215 GOLD COAST MAIL CENTRE A 4217 TAKE NOTICE that the Retail Shop Lease Tribunal having heard a Reference of Dispute No. 32/95 in connection with premises located at: Shop No. 6 Brickworks Homemaker Centre 107 Ferry Road SOUTHPORT. Q. 4215. HEREBY ORDERS that, by consent of the parties: - 1. The parties agree to an independent audit to be conducted by Coopers and Lybrand, Gold Coast and the amount determined by Coopers and Lybrand as the outgoings for 1994 and 1995 financial years will be accepted by the parties as the actual outgoings for those 2 years. The decision will be final and binding upon the parties. 2. On completion of audit, Coopers and Lybrand will calculate any necessary adjustments to determine the outgoings properly payable by the tenant in the 1994 and 1995 financial years and will advise the tenant and landlord of the amount payable by the tenant to the landlord (or vice versa). Such adjustment shall be payable within 14 days of the advice being provided by Coopers and Lybrand. 3. The audit will be conducted independently by the auditor and neither party shall be entitled to make submissions without being requested by the auditor to do so. 4. Despite Clause 3, the tenant shall be entitled to submit a list of 20 specific invoices that it requires the auditor to consider in detail. If the auditor is satisfied that 5 -- 1 of 2 -- or more of the charges contained in the list of 20 invoices are not properly recoverable as outgoings, the tenant shall be entitled to submit details of further invoices to the auditor for detailed consideration. 5. The auditor shall solely be responsible for determining the extent and nature of the enquiries it wishes to make and shall not be bound to take directions from either party. 6. The auditor shall be entitled to include in the recoverable outgoings any item of expenditure not previously claimed by the landlord and which is properly a recoverable outgoings under the lease. 7(a) If the outgoings (in total) for the 1994 and 1995 financial years as audited by Coopers and Lybrand are less than 95% of the amount previously certified by BDO Nelson Parkhill for 1994 and 1995 financial years (in total), the landlord shall pay the costs of Coopers and Lybrand. 7(b) If such total outgoings exceed 95% of the BDO audit figure, the tenant shall pay the costs of audit. 8. The tenant shall not bring any further claims in respect of the 1994 and 1995 financial year outgoings before the Tribunal. 9. The tenant shall pay within 60 days outgoings for the current financial year in accordance with the terms of the lease, which outgoings have been suspended from payment as a result of the order of the Tribunal on 28 February 1996 together with interest thereon at the rate provided under the lease form the date hereof to the date of payment provided no interest shall be payable if the outgoings are paid within 30 days of the date hereof. Dated at this Third day of July 1996 (Sgd) Chairman Retail Shop Lease Tribunal. -- 2 of 2 --