Biggar v Yu Feng Pty Ltd [1995] RSLT 13

____________________________________________________________________ [1995] QRSLT 13 RETAIL SHOP LEASES ACT In the matter of Dispute No. 38 of 1995 JAMES ALEXANDER AND JULIE MARGARET BIGGAR - Claimants -and- YU FENG PTY LIMITED - Respondent DECISION Given on 24 November 1995 in Brisbane ____________________________________________________________________ -- 1 of 4 -- Biggar-v-Yu Feng 2 Decision This is a claim for compensation brought by the tenants against the landlord of a shopping centre under the provisions of s. 15(1)(a)(iii) of the Retail Shop Leases Act of 1984. That subsection provides that: The landlord is liable to pay to the tenant reasonable compensation for injury suffered by the tenant if the landlord takes action that substantially alters access by customers to a retail shop, or alters the flow of potential customers past that retail shop. The claimants have traded as Tootsies Shoes in the Big Top Shopping Centre at Maroochydore for the past ten years. During that time, they have been successful traders. The basis of their claim is that the anchor tenant, Franklins, was relocated from its earlier position to a new and larger store in a different position in the shopping centre. Franklins was previously located close to the "Bookworld" or western entrance of the shopping mall, which mall runs the full length of the centre. This western entrance was the major entrance used by shoppers coming to the centre. Being close to this entrance, shoppers who came to shop at Franklins only had to walk a short way up the mall before turning left into Franklins. They were able to leave the shopping centre in the same way. If they followed this path, they did not come near the claimants' shop, but were able to catch glimpses of it in the gaps between other shops, and in one case through a shop itself. Franklins has now been relocated on the main mall, approximately half way up the mall, and on the southern side. The effect of this is that customers or potential customers of the claimants' business are brought closer to their business if their sole purpose in visiting the shopping centre was to do their grocery shopping at Franklins. The claimants allege that the effect of moving Franklins is to create a main track used by customers to the centre, who now enter the western entrance and depart through the eastern entrance, without having their attention drawn to the claimants' windows or shop. Pedestrian counts still indicate that the main entrance for shoppers is the western entrance. The claimants limit their claim from November, 1994, to July, 1995. -- 2 of 4 -- Biggar-v-Yu Feng 3 Decision The claimants formerly had another shop in a shopping centre known as "The Sands." The Sands Shopping Centre underwent major redevelopment and expansion, becoming a regional shopping centre. The claimants gave up their shop in this centre when rentals were greatly increased. The Sands Centre has been renamed the Sunshine Plaza, and is the major shopping centre for Maroochydore. It has been classified as a regional shopping centre. The Sunshine Plaza opened in the third week of November 1994. Pedestrian counts for the Big Top Shopping Centre indicate a substantial drop off of the number of customers from about the time of the opening of the Sunshine Plaza. This drop off continued well into 1995, and was only in the process of being reversed towards the middle of 1995. We have considered the material placed before us by the claimants. They have presented their material in a most competent manner, and generally have presented their case very well. We have examined the various plans and photographs made available to us. We formed an extremely good impression of both claimants, and accept that they are competent traders. An indication of their competence is that they had anticipated changes in the Big Top Shopping Centre well before the Sunshine Plaza was opened. In anticipation of this change, they had arranged to stock better quality and higher priced goods. The claimants' business fell off in late 1994. It is now starting to show signs of recovery. The correlation between pedestrian counts in the Big Top Centre and the claimants' business turnover is evident to us. It has been suggested that some of the decline in the claimants' business may have been due to the upgrade in quality of goods sold. If this was a factor at all, then it was a minor factor, as they continued to stock lower quality, cheaper and everyday goods for general trade. We have examined the maps and photographs and take the view that grocery or supermarket shoppers coming to Franklins and having to come closer to the claimants' business would have as good a view of the claimants' business as before the alteration in traffic flow. Minor change in sight lines has not, in our opinion, been a cause of falling off of the claimants' business. The shopping mall -- 3 of 4 -- Biggar-v-Yu Feng 4 Decision is not a large mall, and distances are relatively small. Having to look a few feet further would not, in our opinion, have caused more than the possibility of a decline in trade. It is not a probability on which we can act. We have come to the conclusion that the decline in the claimants' trade is probably due to the opening of the Sunshine Plaza Centre, and the consequent decline in pedestrian traffic at the Big Top Centre as well, to some undefined extent, competing trade from two shops in the new Centre. We have therefore come to the conclusion that the claimants must fail in their claim. This is in spite of the Tribunal being impressed by the claimants as extremely competent and honest people. ............................ -- 4 of 4 --