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O'Neil Air Conditioning v Wisseman[2016] QCAT 235

O'Neil Air Conditioning v Wisseman[2016] QCAT 235

CITATION:

O'Neil Air Conditioning t/as The Junction Café v Wisseman [2016] QCAT 235

PARTIES:

O'Neil Air Conditioning t/as The Junction Cafe

(Applicant)

 

v

 

Errol Wisseman and Prudence Wisseman

(Respondent)

APPLICATION NUMBER:

RSL 010-15

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

20 April 2016

HEARD AT:

Cairns

DECISION OF:

Member Krebs

DELIVERED ON:

21 June 2016

DELIVERED AT:

Cairns

ORDERS MADE:

  1. Notice of dispute is dismissed.
  2. Claim for compensation by the respondent landlord is dismissed.

CATCHWORDS:

Retail shop leases matters

Retail Shop Leases Act 1994 (Qld) ss 83, 103

APPEARANCES:

APPLICANT:

Mr Gideon O'Neil

RESPONDENT:

Mr Errol Wisseman

APPEARANCES and REPRESENTATION (if any):

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]
    This is a matter referred to QCAT under the Retail Shop Leases Act 1994 (RSL Act). QCAT has the original jurisdiction conferred on it under what is called ‘an enabling Act’ and jurisdiction is conferred upon QCAT by operation of Section 103 of the RSL Act. The Tribunals jurisdiction specifically relates to ‘retail tenancy disputes’ which are defined in the RSL Act and would include a dispute which is the subject of this matter. The orders that the Tribunal can make are set out in Section 83 of the RSL Act and include amongst other things, the order to direct a party to do, or to not do, something.
  2. [2]
    This matter involves a retail shop lease for premises at Shop 1, 5 Front Street, Mossman.
  3. [3]
    The Respondent landlord, Errol and Prudence Wisseman, entered into a 3 year lease with option to renew, with the Applicant tenant, O'Neil Air conditioning Pty Ltd in which Mr Gideon O'Neil is a director. It would seem that Mr O'Neil at all times was the person whom the landlord negotiated with before entering into the lease and in all matters involving its dispute. The rent payable was $21,119.64 per annum, and the lease was executed on 31 July 2014 and came into effect on 22 August 2014.
  4. [4]
    The premises were to be used as a café under the business name ‘The Junction Café Mossman’.
  5. [5]
    In early December 2014, the relationship between the landlord and tenant began to deteriorate. Around this time, Mr O'Neil separated from his wife and moved back to Adelaide in South Australia leaving his wife to run the café business. On the evidence before it, the Tribunal is satisfied this occurred.
  6. [6]
    Of concern to the landlord were the following matters which he notified Mr O'Neil about in an email sent on 15 December 2014:
  7. [7]
    1. Mr O'Neil cancelling all insurance policies over the leased premises.
  8. [8]
    2. Mr O'Neil cancelling the ABN for the business.
  9. [9]
    3. Mr O'Neil cancelling all the café suppliers account.
  10. [10]
    4. Mr O'Neil cancelling the Ergon Energy account for the café business.
  11. [11]
    5. Mr O'Neil transferring funds from the café business accounts to his credit card account.
  12. [12]
    6. Mr O'Neil cancelling the Café’s EFTPOST facility.
  13. [13]
    The landlord advised Mr O'Neil that the matters above constituted a breach of the terms of the lease and on this basis the landlord was terminating the lease with effect from 31 December 2014.
  14. [14]
    From the email correspondence on file, it would seem that the landlord allowed Mr O'Neil’s wife to operate the café business on a month to month basis after 31 December 2014. On the file, there were numerous accusations and counter claims in emails between the parties which are not relevant to the matter to be decided. It would be fair to say however that the relationship between the applicant and respondent was not an amicable one.
  15. [15]
    On 29 January 2015, Mr O'Neil lodged a notice of dispute under the RSL Act with QCAT. The main points of the dispute outlined in the notice of dispute can be summarised as the action to be taken by the landlord in removing O'Neil air conditioning Pty Ltd from the lease and denying he had breached the terms of the lease. Mr O'Neil stated in the notice of dispute that he wanted the lease to remain as is, so that he could sell the business as part of a property settlement. Without the lease, he stated he could not sell the business and would lose $130,000.
  16. [16]
    In effect, the Applicant Mr O'Neil is asking the Tribunal for an order to stop the Respondent landlord from terminating the lease and/or removing O'Neil air conditioning Pty Ltd as the tenant.
  17. [17]
    The landlord is opposing the application, and in submissions made on 31 January 2016, is asking the Tribunal to award him compensation of $60,263.10 made up of 2.5 years of rent at the monthly rate of $2008.77 for the tenant breaching the lease.
  18. [18]
    The matter was referred to mediation in Brisbane on 14 April 2015. The outcome of that mediation is unclear, however the matter was referred for further mediation on 1 May 2015. The Landlord attended in person but there was no appearance of Mr O'Neil and therefore the mediation could not proceed. The matter was then set down for a compulsory conference at Cairns on 8 February 2016. Again, the Landlord appeared but there was no appearance by Mr O'Neil. On the Tribunal file, Mr O'Neil said that he had forwarded a formal request to appear via telephone but that request, which required leave by the Tribunal was not received, nor was it on the Tribunal file.
  19. [19]
    On 17 February 2016, the Tribunal set directions for the service of documents and ordered that the matter be determined on the papers, without an oral hearing, not before 18 March 2016.
  20. [20]
    This is a matter where Mr Gideon O'Neil as the applicant in these proceedings bears the onus of proving his case on the balance of probabilities that the Tribunal should make the order as requested.
  21. [21]
    The respondent Landlord asserts that the actions of Mr O'Neil in cancelling insurance policies, cancelling the ABN, the electricity and supplier’s accounts, effectively removed O'Neil air conditioning Pty Ltd from any obligations, ownership or responsibilities for the café business. Furthermore, the landlord asserts that the respondent had breached Sections 3.02,3.03, 3.04.3 3.05.2, 8.01, 8.03, 8.04, 10.04.1, 10.04.2 and 11.03. Upon perusal of the lease and other documents before the Tribunal, the respondent seems to have a case and therefore a right to terminate the lease. The landlord is also seeking $60,263.10 as compensation for the breach of the lease. Apart from asserting the breaches occurred, there is no evidence of the loss of rental income or other damages.
  22. [22]
    However, this action has been brought by the applicant tenant, and not the respondent landlord, and it is for the applicant to satisfy the tribunal to make the order requested.
  23. [23]
    In the evidence before the Tribunal, the actions of the applicant tenant in cancelling insurance policies, supplier accounts, electricity and the EFTPOS for the business do constitute a breach of the lease, which would give rise to the right to the landlord to cancel the lease. In the contexts of a marriage breakup where the applicant has moved interstate to Adelaide while his wife remained to run business would further raise concerns about the applicants commitment to the successful running of the business. 
  24. [24]
    The Tribunal finds that the applicant has not satisfied the Tribunal to the requisite standard that the orders sought should be made therefore the matter is dismissed.
  25. [25]
    The Tribunal further finds that the submission by the Respondent Landlord for the payment of $60,263.10 compensation for the breach of the lease by the tenant has not been made out is also dismissed due to a lack of evidence of actual loss.
Close

Editorial Notes

  • Published Case Name:

    O'Neil Air Conditioning t/as The Junction Café v Wisseman

  • Shortened Case Name:

    O'Neil Air Conditioning v Wisseman

  • MNC:

    [2016] QCAT 235

  • Court:

    QCAT

  • Judge(s):

    Member Krebs

  • Date:

    21 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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