Bannerglow Pty Ltd t/a Off the Rack Boutique v Wheldon [1995] RSLT 10

___________________________________________________________________________ [1995] QRSLT 10 RETAIL SHOP LEASES ACT In the matter of Dispute No 30 of 1995 BANNERGLOW PTY LIMITED (T/A "OFF THE RACK" BOUTIQUE) - Claimant -and- DAVID WHELDON - Respondent DECISION Given on 9 November 1995 in Brisbane _____________________________________________________________________________ _ -- 1 of 4 -- Bannerglow-v-Wheldon 2 Decision This is a claim by the tenants of the Logan Village Shopping Centre against the landlord. The claim as advanced before the Tribunal bears little resemblance to that set out in the original Notice of Dispute. However, it appeared that the amount involved was relatively small, the issues not complicated, and delay was not required by any of the parties. For this reason, the Chairman allowed the dispute first raised at the hearing to proceed, on the understanding that if the Respondent required any time to consider new material, he would be allowed such time. The Chairman indicated that all necessary amendments to the Notice of Dispute would be allowed. The claim relates to a business called "Off the Rack," being a ladies' dress shop. The actual business was conducted by a Director, Mrs Brown, and her daughter. The claim proceeds on the basis of three types of relief sought by the claimant. These are: (a) Termination or cancellation of the lease; (b) compensation for loss of trade due to the respondent's failure to properly maintain the shopping centre; and (c) compensation for loss of stock. The evidence before us indicates that the shopping centre is of such a size that the employment of a manager becomes impractical. Outlays are already excessive for a shopping centre of its size, due to the need to bring in water and pump out sewerage. The respondent made periodic visits to the shopping centre, but was not a visitor on a regular basis. Various cleaners were employed to maintain the shopping centre. The evidence before us, which we accept, is that there was a gradual deterioration in the standard of maintenance for approximately 18 months ending at the end of July, 1995. In August, 1995, a new cleaner was employed, and matters have improved substantially since then. Photographic and other evidence before us indicates that cleaning was not of a satisfactory standard. Cobwebs were allowed to collect, rubbish bins were only emptied after they had been filled to overflowing, lines on parking areas were eroded with time, and plants in the parking area were not properly attended to. Further, with regard to maintenance, the toilets were not kept properly cleaned. Lavatory seats which were destroyed were not replaced, and toilet paper was not provided. This applied to the toilets available to the public. We appreciate that there were particular difficulties with regard to this shopping centre. As indicated, its size made it uneconomical to employ a manager. Its position was such that the toilets in the shopping centre were the only toilets available to the public in the area and were undoubtedly misused by members of the public who were not shoppers in the centre. As is common in shopping centres, residents in the neighbourhood used the rubbish bins in the centre for their own rubbish. A further complaint with regard to failure to maintain relates to rat infestation. The wall behind that occupied by the claimant and their new neighbours was a -- 2 of 4 -- Bannerglow-v-Wheldon 3 Decision Besser brick wall with no proper rat guards being installed. The source of the rat infestation appears to have been a greengrocer. On the rat infestation being brought to the knowledge of the respondent, he arranged that remedial action be taken. This apparently involved the laying of poison baits and the blocking of access to the rats by the installation of wire mesh where required. The result was to get rid of the rats, but at least some of them died in the cavity of the Besser brick wall and commenced to rot. The rot permeated the claimant premises. Clothing items kept against the wall are alleged by the claimant to have become contaminated with the rotten stink which could not be removed, even by dry- cleaning, and which resulted in them destroying these items. Mr Wheldon has contended that he is not liable for the loss of this clothing, as he was not aware of the rat infestation until after the damage was done, and then took immediate steps to remedy it. The Chairman has ruled that the duty to maintain is a duty regardless of knowledge. A landlord cannot keep away from the leased premises or close his eyes and claim that he was not liable. Maintenance has a positive aspect and imposes positive duties. The Chairman has contrasted s.15(1)(a)(vi) of the Retail Shop Leases Act 1984 with subs.(v) of the same subsection. The latter subsection makes provision for rectification of break down of plant or equipment, which cannot be anticipated, and in which case the duty is only to take practicable steps to rectify. With regard to the claim for termination or cancellation of the lease, the Chairman has ruled that, in law, no case has been made out. The premises are still being occupied for the purpose for which they were leased, and are satisfactory for that purpose. The Chairman has directed the other Members of the Tribunal in terms of his ruling on the law. With regard to the claim for compensation for failure to maintain, other than the rat infestation which would not have been known to the public, the Tribunal has taken the view that, although there has been a failure to maintain, no loss has been proved by the claimant. All the evidence before us indicates that the remaining shops in the shopping centre were unaffected by this failure to maintain, and their trading figures have not decreased. The reason for the decrease in the claimant's trading figures remains unexplained. Possible explanations are that the business conducted by the claimant is unsuitable to the area in which it's been conducted, or the establishment of other shops dealing in the same lines of business. With regard to the claim for the destruction of contaminated clothing, the Tribunal has reached the conclusion that Mr and Mrs Brown, as well as their daughter, are truthful witnesses. We accept that the clothing was contaminated, that reasonable steps were taken to make the clothing reusable, and these failed. We further accept that the clothing was destroyed and the sum claimed, namely, $760.55, is a reasonable amount for its value. In conclusion, we award the claimant the sum of $760.55 against the respondent and direct that this sum be paid forthwith. -- 3 of 4 -- Bannerglow-v-Wheldon 4 Decision --------------------- (Chairman - 23.10.1995) -- 4 of 4 --