Chicken Galley Pty Ltd v Linkwise (Australia) Pty Ltd [1992] RSLT 5

[1992] QRSLT 5 RETAIL SHOP LEASES ACT 1984-1991 In the matter of Dispute 12/1992 CHICKEN GALLEY PTY LTD TRADING AS THE GALLEY - Tenant - and – LINKWISE (AUSTRALIA) PTY LTD - Landlord DECISION Coram: P Loewenthal V ( Chairman Ms S Kairl Mr J Warman Given on 31 July, 1992, in Brisbane -- 1 of 4 -- Decision - Page 2 This is a claim for compensation brought under the provisions of the Retail Shop Leases Act by the tenant of a shop in a shopping complex. The tenant entered into a lease with the respondent's predecessor. There have been several changes of landlord since that time. The business carried on by the defendant is a restaurant and takeaway, or dine-in and takeaway food business, mainly dealing in chicken and spare ribs. We have evidence that the chicken presented is boutique chicken, that is, chicken of a particular type not available elsewhere, and all the indications before us are that the business is being conducted by the claimant in an efficient and imaginative manner. However, in order to succeed in this claim, more than efficiency is required. The claimant must show that he has a claim which falls into a category recognised under the provisions of the relevant Act. The shopping centre consists of a number of shops, some of which have external access, and others which can only be accessed from inside the shopping centre. We are mainly concerned with shops 3, 4 and 5, all of which have external access. One of these is a convenience store, so called, and milk bar. It also deals in takeaway food, and we have evidence that it has done so for some time. The other is a pizza shop which has only been going for a limited period. The third shop is that of the claimant, and that business has been in existence since August or September 1988. The lease contains a permissive use. The use permitted is chicken and associated foodstuffs, takeaway and restaurant. We have evidence that the landlord has not interpreted this strictly, but has allowed right from the beginning other foods to be sold, particularly spare ribs, and the evidence is that, so long as a permitted line does not interfere with the line of another business, the landlord will allow it. The lease also contains a restriction against the landlord. The restriction is in these terms: The lessor hereby covenants that it will not permit the conduct of any other specialised chicken takeaway or dine-in business of the type conducted by the lessee on the outside of the shopping centre for the term of this lease. The interpretation of this restriction is a matter of law for me as Chairman alone. However, it must be looked at in the light of the surrounding circumstances at the time which it was entered into, and the Tribunal finds that, at that time, there was -- 2 of 4 -- Decision - Page 3 a takeaway business conducted by the convenience store and milk bar adjacent to the premises being leased by the claimant. With this surrounding fact, I interpret this provision to mean that the lessor will not allow a specialised chicken takeaway or a specialised chicken dine-in business on the outside of the shopping centre for the term of the lease, and probably for any renewal as well. On this basis, the selling of takeaway food by the adjacent businesses, not being chicken speciality dishes, is not in breach of the terms of the lease by the landlord. Whether rotisserie chickens fall within specialised chicken dishes is not a matter which we have to decide, but it is possible that it does. I go no further. The claimant's main basis of claim has been the fact that other shops on the outside of the shopping centre sold takeaway foods and permitted, to a limited extent, some dining in. On my interpretation of the clause, this was allowed. They were not specialised chicken takeaways or specialised chicken dine-ins. Other points of claim have been made. These particularly relate to the fact that one of the neighbouring shops apparently traded for a short time without having complied with Council or Health bylaws in regard to the provision of equipment. I assume that there has been or that there is a provision in the leases between them and the lessor a covenant that they will not breach the bylaw. As a matter of law, I take the view that such a covenant is not put in for the benefit of other tenants, but entirely for the benefit of the landlord, giving him the right to take action if a tenant fails to comply with such covenant. In any event, the breaches were of limited magnitude and limited duration, and everything appears to have been put in order within a reasonably short time. On the law, I therefore find against the claimant, and on the facts we have difficulty in finding that non-compliance with a Health Bylaw for a limited time gave rise to any loss for which the claimant is entitled to be compensated. The only other matter which we really have to consider is an allegation of interference with access. We take the view that there probably has been some very limited interference with access over limited periods by the placing of signs or tables within normal routes of access. The interference was minimal. We have had no material placed before us to show that there has been any financial loss caused to the claimant. There is no possible basis before us on which we can calculate any such loss and therefore, we cannot make any award whatsoever. In the result, we must come to the conclusion, in spite of sympathy which we naturally feel for the claimant in these tough economic times, that we cannot -- 3 of 4 -- Decision - Page 4 make any award in favour of the claimant. The order which we make is that the claim is dismissed. I hope - and I'm expressing my personal view - that the fact that this claim has been brought and dismissed does not lead to antagonism between the landlord and the claimant, particularly when it comes to some discussion, possibly with regard to concessions being made to the claimant for renewal of the lease. P V Loewenthal, Chairman. Retail Shop Leases Tribunal -- 4 of 4 --