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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Woody Point Newsagency Pty Ltd v Strydom  QCAT 285
WOODY POINT NEWSAGENCY PTY LTD as trustee for Zhan Family trust t/a WOODY POINT NEWS
Retail Shop Lease
24 August 2019
13 August 2019
Dr J R Forbes, Member, Mr D McBryde and Ms Natalie Myatt, Members
RETAIL SHOP LEASE – OUTGOINGS – RENOVATIONS – RENT CHARGED SUBSEQUENT TO END OF LEASE – where outgoings according to lease allegedly waived – whether waiver legally effective – whether consideration for alleged waiver – whether waiver occurred – where claim for damage caused by prior tenant – whether tenant liable for rent after premises vacated
Property Law Act 1974 (Qld) s 59
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 60
Retail Shop Leases Act 1994 (Qld) (RSLA) ss 17, 48(1)
Australian Cooperative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267
Bank of Australasia v Palmer  AC 540
Higgins v Statewide Developments Pty Ltd  NSWSC 183
L G Thorne Pty Ltd v Thomas Borthwick & Sons (Australasia) Ltd (1955) 56 SR (NSW) 81
Morris v Barron 1918] AC 359
Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221
Applicant: Mr J Zhan
Respondent: Ms Y Strydom
REASONS FOR DECISION
- From February 2011 until September 2018 James Zhan, on behalf of the Applicant (`Zhan’), carried on business as a newsagent at 60A King Street, Woody Point, Queensland (`the premises’). There Zhan was a tenant of the Respondent Yvonne Strydom (`Strydom’).
- Initially Zhan leased the premises from 28 February 2011 to 27 February 2014 (`the first lease’). Pursuant to an option to renew, Zhan remained in occupation of the premises from 28 February 2014 to 27 February 2017 (`the second lease’). He then held over as a monthly tenant until 10 September 2018.
- The first lease provided inter alia:
Before any Accounting Period the Landlord may give the tenant an estimate of the amount which must be paid to the landlord under clause 5.1 for that Accounting Period. The tenant must pay the estimated amount by equal periodic payments during that Accounting Period when the Annual Rent is due. Any deficiency or excess will be adjusted at the end of the Accounting Period.
- However, as a concession to Zhan, Strydom allowed him to postpone payment of outgoings until the end of the first lease. By that time Zhan’s indebtedness on that account amounted to $4,297.32 (including $47.32 GST), of which Strydom now requires payment in full. Strydom has other claims, which will be considered below.
- So far as quantum of the outgoings is concerned, Strydom’s calculations are verified by a chartered accountant, Ms M J van Scherpenseel, whose evidence we accept.
- However, Zhan challenges Strydom’s entitlement to the outgoing, alleging that when the second lease was negotiated, Strydom waived that claim.
- On that issue the onus of proof is upon Zhan. His task is not alleviated by the fact that the first lease document is manifestly intended to contain the entire agreement between the parties. But he seeks to vary or set aside a term of that agreement by oral evidence of a discussion with the landlord. Prima facie, at least, that plea conflicts with what is known as the `parol evidence’ rule. According to that principle, extrinsic (`outside’) evidence is not admissible to vary or contradict a wholly written agreement. Earlier indications that an oral agreement may amend a written agreement are at odds with later statutory provisions in the Law of Property Act 1974 (Qld).
- But be that as it may, we are not satisfied that it is more probable than not that the alleged oral waiver occurred. Generally both parties impressed as honest witnesses, doing their best to recollect events of importance to them. Mr Zhan showed a good understanding of English, but it is not his native language; it seems quite possible that he misunderstood some part of his numerous conversations with Strydom. Again, wishful thinking may have supervened when a demand for payment of outgoings was so long postponed.
- Strydom firmly maintained that the outgoings remained payable, and given her insistence on other, smaller claims (see below) it is improbable that she abandoned a claim in excess of four thousand dollars. To his credit, Mr Zhan admitted that he had no document or diary note to support his version, and that no third person was present when the outgoings claim was allegedly forgiven.
- We reject Zhan’s application for declaratory or other relief that would exempt him from paying the outgoings in question. We find that he is liable to pay Strydom $4,297.32 on that account.
Legal Expenses Refundable
- Zhan has a second claim, namely for a refund of $660 charged and paid for Strydom’s legal expenses in connection with the second lease. We allow this claim. The Retail Shop Leases Act 1994 (Qld) expressly states that a lessee under a retail shop lease is not liable to pay any amount for the lessor’s legal or other expenses in relation to ... preparing, renewing or extending the lease. Terms or agreements contrary to the Act are void.
Lessor’s other claims
- Strydom, too, has additional claims. She seeks compensation or damages for repairing or `upgrading’ the premises after Zhan’s removal of fittings on departure. She refers particularly, but not exclusively to damaged or missing floor tiles. In our view these and other defects are matters between her and the previous tenant. Zhan took over the business as a `going concern’ and he was not responsible for alterations or damage that preceded his arrival, and which may not have been apparent until the fittings were removed. They were then revealed, but not caused, by such removal. At one point in her evidence Strydom let slip the term `upgrading’. That was not the task of the departing lessee.
- Further, Strydom claims two months’ rent ($1810.37) due to Zhan’s delay in symbolically returning the keys. This is claim without merit. If she did not know how to contact Zhan and demand a return of the keys, she could readily have acquired replacements, if, indeed, she did not already have a set of her own. Zhan’s liability to pay rent ended when he vacated the shop on 10 September 2018. That was the date of `final rental’ as Strydom recognised in her letter to Zhan on 30 September 2018. We disallow this claim.
- For similar reasons we also disallow the claim that Zhan is liable for rent while tradesmen were renovating or `upgrading’ the premises in anticipation of a new tenant. Not to put too fine a point on it, these were modest premises which, during Zhan’s tenure, proved incapable of keeping out rain.
- In the result, Zhan is liable to pay Strydom outgoings of $4,297.32, less $660 for legal fees unlawfully collected – a net amount of $3,637.32. No additional payments are recoverable from the Applicant.
- The Applicant must pay the Respondent $3,637.32 within 21 days of service of this order upon him.
- No order as to costs.
 As defined in clause 24 on page 7 of the first lease.
 First lease page 10 clause 27, page 12 Clause 5.1.
 First lease page 12 Clause 5.2.
 As defined in the first lease page 4 Item 2.1.1.
 Bank of Australasia v Palmer  AC 540; Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221; L G Thorne Pty Ltd v Thomas Borthwick & Sons (Australasia) Ltd (1955) 56 SR (NSW) 81; Australian Cooperative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267.
 Morris v Barron 1918] AC 359.
 See Higgins v Statewide Developments Pty Ltd  NSWSC 183, citing legislation that, in this respect, closely resembles s 59 of the Property Law Act 1974 (Qld).
 Letter Strydom to Zhan 30 August 2018.
 This form of relief, traditionally reserved to superior courts, is available in the Tribunal: QCAT Act s 60.
 Retail Shop Leases Act 1994 (Qld) (RSLA) s 48(1).
 RLSA s 17.
- Published Case Name:
Woody Point Newsagency Pty Ltd as trustee for Zhan Family trust t/a Woody Point News v Yvonne Strydom
- Shortened Case Name:
Woody Point Newsagency Pty Ltd v Strydom
 QCAT 285
Member Forbes, Member McBryde, Member Myatt
24 Aug 2019