Allen v Swadlincote Pty Ltd [1995] RSLT 16

[1995] QRSLT 16 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute No.49 of 1995 DENISE LORRAINE ALLEN & ANNASTACIA ALLEN - Claimants - and - SWADLINCOTE PTY LIMITED - Respondent DECISION Given on 6 December, 1995, in Brisbane -- 1 of 3 -- Allen-v-Swadlincote. Decision - Page 2 I now proceed to deliver the findings of fact without giving reasons. These will be provided when and if sought by the parties, but will probably not be before March next year. 1(A)(i) With respect to the opening of the door directly into Coles supermarket, we find that this was contrary to information given to the claimant before the lease was entered into, and substantially affected the flow of customers past the claimant's shop. In round figures, some 600 persons per day who would have used the main entrance now go directly to Coles. Of these, a little over 20% would have been diverted into the mall. A small proportion would have become customers of Cee Dees, the claimant, spending something like $18.22c per customer. We believe that the claimants are entitled to be compensated for this loss of trade for the whole of the period of the lease, as the direct door has been open and will continue to be open. We have allowed for past interest and capitalisation, and we affix the amount of compensation under this head for the whole five year period at $10,000. 1(1)(ii) The opening of the Kwik Park has not in our opinion affected pedestrian flow past the claimants. 1(B) The placement of the Tick Tock Kiosk had no material effect on pedestrian flow. 1(C) The placement of the rubbish bins and seats in the mall passing the claimants' business did not materially affect pedestrian flow. 1(D) We find with respect the passageway past the toilets and telephones, referred to "the fire passageway": (i) That this was never intended to be and the claimants were entitled to expect that this passageway would not be an alternative route to the main mall for pedestrians. (ii) A substantial number of people use the passage as an alternative route, that is, between 10% and 14% of the total number who use the mail mall. (iii) About one half of the people who use this fire passageway would use the main mall if the fire passageway was not open but kept closed. (iv) At this stage use patterns have developed and it is unlikely that the passage can be permanently closed to pedestrians, bearing in mind that it has to be kept open at least from one direction for fire purposes. This fire door has been open since 21 November 1994, when the -- 2 of 3 -- Allen-v-Swadlincote. Decision - Page 3 second stage opened. (v) An estimate of the number of pedestrians who use the fire passageway is 13,000 per day. Six hundred and fifty would have used the main mall. Of these, allowing for customers going to Cee Dees in any event, we find about .6% would be customers of Cee Dees, that is, something like four customers per day, at $18.22 per customer. Taking 30% gross profit, this shows a loss of $21.86 per day. We use this as our basis for calculation. We allow the loss from 22 November 1994 to the end of the period of the lease, that is, 27 February 1999. We make allowance for past interest, future capitalisation, and fix the compensation at $32,000. 2. We do not find that the allegation of a representation with respect to parking proved: nor do we find any compensatable loss. 3. With regard to the allegation that the respondent represented, that marketing would be handled by experts, we accept that marketing is in fact handles by experts. 4. The claimants allege that Mr Josephson represented to the claimants that the increase in turnover in the new premises, compared with that conducted by the claimants in the premises in which they previously conducted their business, would justify the increase in the new premises. We do not find that subsequent misrepresentation was made, or that it induced the claimant to enter into the lease. 5. The claimants allege that they were told that a Brashs or Chandlers store would be placed in Stage 2 of the development, but not a store substantially specialising in recorded music. In fact, a Vox store which, according to the claimants, specialises in recorded music, was placed in Stage 2. We do not accept that this store has caused any substantial decrease in the claimants' business, as opposed to what would have been caused by a Brashs or Chandlers store. In the final result, we find for the claimant only on the two matters on which we fixed a figure, and we order the respondent to pay to the claimant the sum of $42,000. P V Loewenthal, Chairman. -- 3 of 3 --