Gosbell v Linehurst Pty Ltd[2015] QCAT 74

APPEARANCES

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   Ms Gosbell has filed an application for interim orders. She seeks an order, (pending the resolution or determination of her retail shop lease dispute about whether she or the lessor is responsible for payment of electricity costs), that her lessor (Linehurst Pty Ltd) be restrained from having the electricity disconnected from the leased premises. She says that Linehurst disconnected the electricity for several days in December 2014 and that this resulted in a loss to her of some $2,000 in revenue. As well, she says her employees were disadvantaged by losing wages.
2. [2]
   Both parties have provided submissions to the Tribunal about the interim application. Ms Gosbell contends that when agreement was reached for the reduction of her rent, (which is not in dispute), that it was agreed all outgoings and GST were to be included in the amount of $1,500 per month. Linehurst Pty Ltd (‘Linehurst’) acknowledges agreement in that regard. It says it has been accommodating in reducing rent (to the extent of almost $9,000 over a 12 month period) to assist Ms Gosbell.
3. [3]
   However, Linehurst says that the electricity is purchased in bulk by the lessor. Clause 11 of the lease provides for this. Linehurst argues that the lease provides for each tenant to pay for their own electricity as a service (rather than as an outgoing). It relies upon the definition of services in the lease which refers to ‘any services or systems provided to the Centre’, which include:

1. (a)
   water, power, fuel, oil, garbage compacting and removal, waste disposal, sewerage, telecommunications, communication systems and public address systems, background music, security, air conditioning, ventilation, escalators, fire protection, lift services, washroom and toilet services …

4. [4]
   It also relies upon clause 5.2 of the lease which provides that:

The Lessee must pay for all Services separately connected and supplied to the Premises or connected and supplied to the Centre and separately metered to the Premises, including, but not limited to water, electricity, gas and telephone.

5. [5]
   Ms Gosbell relies upon the meaning of outgoings as defined in s 7(1) of the Retail Shop Lease Act 1994 (Qld) (‘RSL Act’) and s 37 of the RSL Act which sets out requirements when a lessee is to pay a lessor’s outgoings.
6. [6]
   Section 7(2) provides that outgoings include specific outgoings. The Schedule to the RSL Act defines ‘specific outgoings’ of a lessor as follows:

1. (a)
   the lessor’s outgoings that are attributable to a lessee because of the lessee’s direct use of the services or facilities incurring the outgoings.

7. [7]
   The RSL Act provides that provisions in leases which are inconsistent with the RSL Act are void and the provision of the RSL Act prevails.^[1]
8. [8]
   Services themselves are not defined in the RSL Act. However, as discussed above, the lease entered into between the parties defines services for that purpose to include power. In context, and notwithstanding that clause 11 refers to electricity charges, it seems that the use of the word ‘power’ in the definition of services in the lease most likely means electricity.
9. [9]
   On this application for an interim order, Ms Gosbell effectively seeks an injunction to restrain Linehurst from taking steps to disconnect the power.  The issues for me to consider are whether Ms Gosbell 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.
10. [10]
    Given the definition of specific outgoings in the RSL Act (which prevails over inconsistent provisions in a lease), and given that electricity appears to be a service which falls within the meaning of specific outgoings, it appears that Ms Gosbell has an arguable case that the electricity charges are outgoings.
11. [11]
    Ms Gosbell says that her business is in the early stages and that if the power is disconnected, as it was in December by the lessor, that this had a significant financial effect on her business. Her employees were also disadvantaged due to loss of wages for that period. She suggests a significant loss of income is likely if the power is further disconnected. I accept that Linehurst has been accommodating in reducing rental to try to assist Ms Gosbell, and over the previous 12 month period has significantly discounted rent.
12. [12]
    Be that as it may, I find that the balance of convenience weighs in favour of granting the orders sought by Ms Gosbell pending the determination of the dispute between the parties given the likely financial detriment to her business of disconnection of electricity to the leased premises.
13. [13]
    In the circumstances, I am satisfied that the orders sought should be made pending determination of the retail shop lease dispute. I make orders accordingly.