Barnes v Wysdale Pty Ltd [1993] RSLT 1

[1993] QRSLT 1 RETAIL SHOP LEASES ACT 1984 In the matter of Dispute No.42 of 1992 THOMAS CAMPBELL BARNES - Tenant - and - WYSDALE PTY LTD - Landlord Coram: P Loewenthal (CHAIRMAN) Mr J Kruger (Member) Mr G Somerville (Member) DECISION Given in Brisbane on 17 May, 1993 This matter came before the Chairman for a ruling on the law in relation to -- 1 of 5 -- Decision - Page 2 jurisdiction. The Notice instituting Reference of Dispute (referred to as "The Notice") sets out the claim in two sheets annexed hereto marked "A". This matter went to mediation on the basis of the notice. The tenant has filed a Statement of Claim which, to some extent, seeks to extend the basis of the claim. The Act requires steps to be followed. A claim must go before the Mediator before it can be determined by the Tribunal. The Tribunal may look at the notice in a broad manner, but will not determine an issue not before the Mediator in terms of the notice. I accept that paragraph 2.3 and paragraph 4 of the notice Annexure "A' do not define any dispute and are not matters on which the Mediator could have mediated. They are therefore not capable of being determined by the Tribunal. The jurisdiction of the Tribunal is defined by Section 36 of the Act. The Tribunal has on numerous occasions ruled that Section 36 gives jurisdiction to investigate and determine any dispute referred by a Mediator which - (a)arises out of or relates to the provisions of Part 2 or Part 3, or (2)concerns the liability of any person to pay moneys or to recover moneys in connection with a Retail Shop Lease. The Tribunal powers are defined by Section 40 which authorises it to make orders requiring a party to perform or discontinue any action particularised by it. This must be read subject to Section 36. The order must relate to a dispute under Part 2 or Part 3. The notice in Clause 1.1 refers to rent. From the material supplied, it appears that the lease has two conflicting provisions relating to rent review. Rent has been reviewed under the provision more favourable to the respondent landlord. It has been demanded and paid under this provision. The claimant states that it should only have paid a lesser amount under the conflicting provision and seeks a refund. The objection to jurisdiction is based on Section 36(2) which reads:- (2)The jurisdiction of a Tribunal conferred by subsection (1) does not extend to a dispute as to - (a)arrears of rent or the amount of rent payable under a Retail Shop -- 2 of 5 -- Decision - Page 3 Lease or the amount of landlord's outgoings referred to in Section 12; (b)a matter of dispute if the application of this Act to the matter is excluded by Section 5A. The claimant says that its claim is not within the exception of this subsection. It argues:- (a)The word "payable" in Section 36(2)(a) relates to payment in the future and not to payment already made. (B)The claim is for money paid and received and is not a claim for rent. I have considered both of these points and do not accept them. To limit "payable" to the future tense would give it an artificial and restricted meaning. The words in the Act are "a dispute as to ................ the amount of rent payable." Although the claim is couched as a money claim, it is in fact a dispute as to the amount of rent. The Tribunal is requested to investigate this dispute, which it has no jurisdiction to do. The claims under subclauses 2 and 3 of the notice on their face appear to be claims relating to the amount of the landlord's outgoings. The orders sought can only be made by investigating the amount of the landlord's outgoings. I note in the Statement of Claim which I have dealt with previously, there is a claim for audited accounts presumably under Section 12(1)(THE CHAIRMAN:) of the Act. Had such a claim appeared in the notice and proceeded to mediation, it may well be that the Tribunal could have made the order sought. I rule that these proceedings are not properly before the Tribunal and I dismiss the application. P LOEWENTHAL CHAIRMAN -- 3 of 5 -- Decision - Page 4 ANNEXURE A Item 6 - Items of Dispute. 1.Rent .1The rent has been reviewed in February 1990, August 1991 and February 1992. Under Clause 3.07(a) and Item 10, First Schedule. The rent should only have been reviewed in February 1990 and February 1992. The next rent review should be February 1994 if the option to renew the lease is exercised by the lessees. 2.Operating Expenses .1Clause 3.03 requires the lessee to pay his proportion of operating expenses. The proportion of operating expenses is specified in Item 14 of the First Schedule. Wysdale Pty Limited have not applied this proportion to the operating expenses in their charges and claims to and against the lessees. .2Clause 3.03 requires Wysdale Pty limited to account for operating expenses for the accounting period as defined in Clause 1.02 and Item 8 of the First Schedule. Wysdale Pty Limited have not accounted to the lessees in terms of the lease another accounting period having been applied. .3Investigation to date of some public records has revealed that certain charges claimed as operating expenses are in fact overstated. We now question the veracity of the operating expenses provided over the years 1989 to the current period. investigation is continuing and formal advice of charges levied is being obtained. .4The lease defines operating expenses in Clause 1.02.11 and further defines services in Clause 1.02.13. Wysdale Pty limited have claimed and charged as operating expenses items not included in these definitions. -- 4 of 5 -- Decision - Page 5 3.Alleged Breaches of Retail Shop Leases Act. .1We request (without conceding in any way any claims set forth above) under the Retail Shop Leases Act further and better particulars of the following operating expenses claimed in the years specified. Operating Expense Item Year(s) Insurance 1989 Repairs & Maintenance - General 1990 and 1992 Security 1990 and 1992 Cleaning 1989, 1990, 1991, 1992 and 1993 Gardening 1989, 1990, and 1991 Management Fees 1989, 1990, 1991, 1992 and 1993 4.Other Matters .1There are many matters relating to the general management of the centre including vacancies, competitive trading, promotion, cleaning, rendering of accounts, repairs and maintenance, fire protection and signage. We have sought meetings with the Manager previously to discuss these matters. The Manager either has refused to meet and discuss these matters or has ignored the request. -- 5 of 5 --