Salt Seafood Bar and Grill v Beach Plaza Pty Ltd
[2015] QCAT 230
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- Unreported Judgment
- Salt Seafood Bar and Grill v Beach Plaza Pty Ltd[2015] QCAT 230
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Salt Seafood Bar and Grill v Beach Plaza Pty Ltd[2015] QCAT 230
Salt Seafood Bar and Grill v Beach Plaza Pty Ltd[2015] QCAT 230
CITATION: | Blue Angel Investments Pty Ltd t/as Salt Seafood Bar and Grill v Beach Plaza Pty Ltd [2015] QCAT 230 |
PARTIES: | Blue Angel Investments Pty Ltd t/as Salt Seafood Bar and Grill (Applicant) |
v | |
Beach Plaza Pty Ltd (Respondent) |
APPLICATION NUMBER: | RSL020-15 |
MATTER TYPE: | Retail shop leases matters |
HEARING DATE: | 9 June 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Allen |
DELIVERED ON: | 9 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | RETAIL SHOP LEASE – APPLICATION FOR INTERIM ORDER – where dispute in regard to amounts payable under lease for outgoings or services – allegations of breach of covenant for quiet enjoyment – whether jurisdiction to make interim order – whether allegations of breach of covenant for quiet enjoyment require interim order. Retail Shop Leases Act 1994 (Qld) ss 28, 103 Queensland Civil and Administrative Tribunal Act 2009 Qld) s 58 Gosbell v Linehurst Pty Ltd [2015] QCAT 74 |
APPEARANCES:
APPLICANT: | Mr Wayne Aspland, director appeared for Blue Angel Investments Pty Ltd t/as Salt Seafood Bar and Grill |
RESPONDENT: | Mr Brian O'Rourke, director appeared for Beach Plaza Pty Ltd |
REASONS FOR DECISION
- [1]Blue Angel is the tenant of Shop 2, “Beach Plaza” at 6 The Esplanade, Airlie Beach with Beach Plaza as the lessor. The term of the lease was extended in 2014 and a specialist retail valuer appointed by the Chief Executive performed a market rent review[1]. Because of that, review Blue Angel now considers that some of the payments it has been making to Beach Plaza are not payable in accordance with the lease and it is seeking the Tribunals determination on that issue.
- [2]There are also other matters in dispute about alleged interference with quiet enjoyment, Beach Plaza not providing a deed of extension, deductions by Beach Plaza for legal costs without consent, unreasonably denying assignment of lease, refusing to apply credit from previous managing agent and refusing to conduit maintenance and professional cleaning.
- [3]Blue Angel has made application for the following interim orders:
- No further request for payments of rent, maintenance, variable outgoings such as rubbish removal etc. or other fees and charges until QCAT ruling scheduled for 24th August 2015.
- No further “Notices to Remedy” with threats of lock out until QCAT ruling finalized.
- No further bullying and intimidation by landlord to cease communication with our patrons and staff.
- To allow “Quiet Enjoyment” of our lease so we may operate our business effectively without disruption. We ask the landlord cease treating the “Common Dining Area” as his lounge room.
- [4]The grounds for the interim orders are given as;
- The QCAT valuer has clearly stated “Not Applicable” to these outgoings. We have been given “Notices to Remedy” and threatened with lock outs. An amount of $12,970.96 has been paid in variable outgoings. There is too much financial pressure paying for outgoings that are still in dispute;
- The landlord’s constant threats of furniture removal and subsequent removal of all dining tables in the “Common Dining Area” used by all tenants which forced Blue Angel to purchase new tables and again putting pressure on finances; and
- The landlord has lived on site in Shop 6 of the Plaza since 26 November 2014 and “unreasonably interferes” with our patrons and staff.
- [5]Beach Plaza has asked that the application for interim orders brought by Blue Angel be dismissed and that Blue Angel is to immediately pay to Beach Plaza all monies outstanding for rent and charges under the lease.
- [6]At the hearing of the interim application the parties confirmed that the rent and other charges for May and June were outstanding and that Blue Angel had prior to the market rental valuation paid certain amounts to Beach Plaza, which are now in dispute. Both parties allege that the other is acting in a way contrary to the quiet enjoyment of others whether it be the lessor acting contrary to Blue Angel’s quiet enjoyment or Beach Plaza alleging that Blue Angel is interfering with the quiet enjoyment of other tenants.
- [7]The matter is now before the Tribunal and the Tribunal will look closely at the behaviour of the parties during the course of determining the primary application.
- [8]The Tribunal may make an interim order to protect a party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the exercise of the Tribunal’s jurisdiction for the proceeding[2].
- [9]Acting Senior Member Howard said that ‘the issue is whether the applicant has a good arguable case, and if so, whether on the balance of convenience the order should be made. It is not for me to reach any final conclusions about the issues raised, as that will be a matter for the final hearing, if the matter is not resolved before that time.”[3]
- [10]Blue Angel was until the market rent review paying amounts to Beach Plaza, which it now says it is not obliged to pay due to the interpretation of the lease documents by the valuer, Mr Krause. Beach Plaza argues, “The market rent review was a review of rent and not determinative of outgoings. The lessee is not being asked to pay a greater amount of charges than it previously was and which was received by Beach Plaza and used to defray its costs”.
- [11]The payment of rent and outgoings are fundamental terms of any lease and the Tribunal’s jurisdiction about them is limited. That is the Tribunal has jurisdiction to determine procedure for the determination of rent payable under a retail shop lease and the basis upon which the lessor’s outgoings are payable[4]. The Tribunal may only deal with arrears of rent if there is dispute, which is also about compensation[5]. There is no application in respect of compensation here. The Tribunal could hardly then make an interim order that it could not perfect as a final order in respect of the payment or non-payment of rent and outgoings.
- [12]In terms of how the additional charges or outgoings are calculated, the Tribunal considers that the balance of convenience lays with Beach Plaza. That is for amounts which were considered to be payable by both parties before the market rent review to continue to be calculated the way they were. Beach Plaza will continue to receive the previously agreed amounts unless and until the Tribunal determines that amounts should not be payable or payable on a different basis.
- [13]There will be no order for relief of payment to Blue Angel. Likewise, there will be no order that Blue Angel pay any outstanding amounts to Beach Plaza as that is beyond the Tribunal’s jurisdiction.
- [14]The payment of rent by the lessee entitles it to quiet enjoyment of the demised premises. Therefore, if Blue Angel is expected to comply with its obligations then Beach Plaza must comply with the obligation not to interfere with that quiet enjoyment. Both parties argue that the other is interfering with the quiet enjoyment of others at Beach Plaza. It appears that this is exacerbated somewhat by Mr O'Rourke living at or near Beach Plaza.
- [15]Each party is already obliged to act in accordance with the lease and any other relevant requirements of the law. It should not be for the Tribunal to dictate how the parties communicate. They and their officers should act reasonably and appropriately as good corporate citizens. The Tribunal therefore declines to make an order about quiet enjoyment while noting that the behaviour and actions of the parties and their officers will be taken into consideration when the primary application is heard.
- [16]The application for interim orders is dismissed.