Bright v C & J Sinclair Holdings Pty Ltd [1996] RSLT 20

___________________________________________________________________________ [1996] QRSLT 20 RETAIL SHOP LEASES ACT In the matter of Decision No. 70 of 1995 PHILLIP JOHN BRIGHT - Claimant -and- C & J SINCLAIR HOLDINGS PTY LIMITED - Respondent DECISION Given on Friday, 12 April, 1996 in Brisbane _____________________________________________________________________________ -- 1 of 5 -- _ -- 2 of 5 -- Bright-v-Sinclair 3 Decision THE CHAIRMAN: This is a claim for compensation brought by the tenant of certain premises against the landlord under the provisions of the Retail Shop Leases Act 1994. The Notice of Dispute sets out the following: I was told by the lessor's agent prior to entering into the lease that as the shop had previously been used as a health shop, the Council would not require any renovations to the shop as long as I was not conducting any manufacturing or cooking. On or about 27 October 1995, I received a notice from the GCCC requiring extensive renovations and moderations to the shop. The evidence before us indicates that the shop is in an arcade. At some stage when the previous tenant was moving out, Mr Bright went to inspect and then saw a Mr George Morfitt. He had a discussion with him, and he was told either that the shop had been used for health food products, or for health food books - he wasn't sure - and Mr Morfitt said something to him about permitted use. Thereafter, there were negotiations in which the respondent's solicitor was involved, and a lease was drawn up. The lease contained a permitted use clause in these terms: The lessee, that is, the claimant, agreed not to use or permit the premises or any part thereof to be used for any other purpose than the use described in Schedule A. Schedule A provides that the use is to be: An ice-cream shop, with the right to retail ice-creams, drinks, chocolates and sweets. Mr Bright commenced trading at the beginning of October, the lease was executed early in October, and later during this same month, Council officials inspected the shop and ordered Mr Bright to stop trading forthwith. The Council required certain alterations relating to floor covering and the like, as well as the installation of a hand washbasin, and some changes in regard to pipes or conduiting. These were attended to by Mr Bright quite quickly, but the Council would not approve the use of the premises for the sale of ice-cream until plans had been submitted and official approval obtained. There was some delay. It is not necessary for us to go into the reason for the delay, but there was a delay before the issue was finally granted. The basis of the claim is twofold. First of all, in regard to the representations that are alleged to have been made by Mr Morfitt; and secondly, with regard to the usage -- 3 of 5 -- Bright-v-Sinclair 4 Decision provisions of the lease. I as Chairman have the duty of directing the Tribunal in questions of law, and I directed the Tribunal that the fact that there is a permitted use in a lease does not oblige the landlord to ensure that the premises are suitable for the permitted use. There is no obligation on the landlord to do anything to comply with bylaws, regulations or otherwise to make the premises legally useable for the permitted use. The second basis of the claim is that representations were made by Mr Morfitt as agent for the landlord that the premises would be allowed to be used for the sale of ice-cream without any changes. We have heard Mr Morfitt, and we have seen him, and his evidence is that he was a caretaker and nothing else. He did play some small part in matters relating to the lease. He certainly brought the lease to the claimant for signature. There is nothing in the evidence before us which indicates that he was anything other than a caretaker, nor on the evidence before us can we find evidence to support that he was held out to be anything other than a caretaker. Representations, if any, made by him are therefore not binding on the landlord in so far as the terms of use or the conditions of use of the premises. The result of our conclusions is that the claim must fail. No representations by the agent of the landlord have been proved, and I have already stated the legal position with regard to permitted use. We should just perhaps comment very briefly on the amount of the claim. The claim has been quantified at $28,764.75. In order to quantify the claim, the claimant has compared his estimated or expected profits with those of another shop which was run by him in the near vicinity. In evidence, he says that the takings of the shop were something like 60% to 70% of the existing shop in the period of trading. We find that this is no reasonable basis for assessing claims, and we also find that in regard to the claims made, there are certain items which are not justified or duplicated. We find that the basis on which the quantum of claim has been put forward has not been established. This is in addition to our major finding that no basis of claim in law or in fact has been established before the Tribunal. The claim is therefore dismissed. -- 4 of 5 -- Bright-v-Sinclair 5 Decision P. Loewenthal Chairman. -- 5 of 5 --