Comino v Boulevard Investments Pty Ltd & PA Holdings Pty Ltd [1995] RSLT 15

___________________________________________________________________________ [1995] QRSLT 15 RETAIL SHOP LEASES ACT In the matter of Dispute No 48 of 1995 GEORGE COMINO - Claimant -and- BOULEVARD INVESTMENTS PTY LTD & P A (HOLDINGS) PTY LTD - Respondents DECISION Given on 5 December 1995 in Brisbane _____________________________________________________________________________ _ -- 1 of 4 -- Comino-v-Boulevard/PA 2 Decision The claimant seeks compensation for loss alleged to have been suffered by misrepresentations made by a Mr Brooker, the Manager of the relevant shopping centre, and the agent of the respondents. The allegation has two legs, namely: 1. That he (the claimant) was to be given "exclusivity of coffee shop and food/cafe" or, in other words, that he was assured that there were to be no other coffee or food outlets in the centre. 2. That he was told that the customer count for the centre was 36,000 people per week, and that this figure is incorrect. With regard to the first of the bases, namely, the question of exclusivity, the matter depends for decision on deciding between the conflicting statements of the claimant and Mr Brooker. With regard to the credibility of Mr Comino, we have examined the quantum of his claim in some detail. The major part of his claim is in respect of $90,000, being the costs of fitting out the shop. With regard to this claim, he has produced a quotation from a business known as Food Concepts Australia Pty Limited, which has a Mt Gravatt, Queensland, address on its letterhead. Although purporting to be a registered company, the invoice produced does not contain a company number and Mr Comino has conceded that the owner, a Mr Dennis, has been in New Zealand for some time. Correspondence from Mr Dennis is on plain letterheads. No detailed invoices are available from him, and the only reference to payment is in a letter dated 12 December, in which he states: "Thank you for the final payment, a total of $90,000." From the same letter, it appears that payment was made before the fit out of the shop was completed. The Members of the Tribunal asked Mr Comino about the cost of shop fitting and payment at some length. Mr Comino told the Tribunal that he had kept money in two tissue boxes in his home, and the payment of $90,000 was made in cash. He appreciated the need for records to claim -- 2 of 4 -- Comino-v-Boulevard/PA 3 Decision depreciation, but received no receipts. He was most vague as to when payment was made, except for producing bank transfer records showing that he had sent a total of $1200 to Mrs Dennis in Christchurch. He told us that he had got in touch with Mr Dennis in New Zealand in order to have his shop fitted out due to some prior knowledge or recommendation. The suggestion that he would have to go to New Zealand to get a shopfitter seems to us to be a bit unusual. This must be coupled with his statement that he is not sure where Mr Dennis is at the moment, although he might possibly be able to establish his whereabouts by getting in touch with his wife. Added to this is the fact that no statement had been produced from Mr Dennis. We regard Mr Comino's evidence with regard to the $90,000, being the cost of the shop fitout, and his evidence with regard to the payment of this sum as being highly improbable; and as such, we reject it. This reflects on the whole question of credibility of Mr Comino. Against him there are other criticisms. At an early stage of the proceedings, he told us he had only limited business experience, but it appeared that he had previously been the person behind a company called World Trade & Finance Pty Limited. Although this company had ceased to trade and had probably been de-registered, he produced a card in its name to Mr Brooker. In a credit statement for the purposes of lease, he stated that he was the owner of a residential unit; whereas it subsequently appeared that he was only the tenant. Telephone accounts produced by him show that he had also traded as Lease & Development Finance. In all, Mr Comino did not make a good impression on the Tribunal, and we feel that very little weight can be given to his testimony. Mr Brooker gave evidence supported by diary notes. We have misgivings about his diary notes. It seems to us that it is more than mere chance that his diary notes cover the very points in issue in detail, whereas his normal practice is to keep only limited diary notes, except in special circumstances. We are left with the position that we have conflicting evidence between Mr Comino and Mr Brooker in regard to the exclusivity provisions, and are forced -- 3 of 4 -- Comino-v-Boulevard/PA 4 Decision into the reluctant position where we have to decide on the question of onus of proof. The onus clearly being on Mr Comino, we have to decide and do decide that we must find on the onus of proof alone, and find against Mr Comino. With regard to the pedestrian figures, we have only a very vague statement from Mr Comino that the number of pedestrians is substantially less than the figure given by Mr Brooker. Mr Brooker has persisted in his figure of approximately 36,000 people per week, and states that this figure was maintained and is still maintained with only minor variations. He is supported by records, a copy of which was sought by the Tribunal and faxed to it. With regard to this question, we must also find that Mr Comino has failed. We therefore come to the conclusion that the claim must be dismissed and we so order. -- 4 of 4 --