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  4. N.Q Seafood Distributors Pty Ltd v Shopping Centres Australasia Property Group Re Ltd - [2023] QCAT 405

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N.Q Seafood Distributors Pty Ltd v Shopping Centres Australasia Property Group Re Ltd[2023] QCAT 405

N.Q Seafood Distributors Pty Ltd v Shopping Centres Australasia Property Group Re Ltd[2023] QCAT 405

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

N.Q Seafood Distributors Pty Ltd v Shopping Centres Australasia Property Group Re Ltd [2023] QCAT 405

PARTIES:

N.Q. Seafood Distributors Pty Ltd as Trustee

(applicant)

v

Shopping Centres Australasia Property Group PTY Ltd

(respondent)

APPLICATION NO/S:

RSL115-18

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

11 October 2023

HEARING DATE:

On The Papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

Member Kairl

Member McBryde

ORDERS:

  1. N.Q. must pay Shopping Centres Australasia Property Group Pty Ltd nominal damages in the sum of $10 within 14 days of the date of these orders.
  2. The parties must bear their own costs.

CATCHWORDS:

RETAIL SHOP LEASES – assessment of damages for wrongful repudiation of lease – Costs on indemnity basis are costs in the proceedings

Retail Shop Leases Act 1994 s 3

Queensland Civil and Administrative Tribunal Act 2009 s 100, 102

Christodoulou & Nobilio v ISPT Pty Ltd [2013] QCAT 206

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    In March 2018 N.Q. Seafood Distributors Pty Ltd as Trustee (NQ) lodged a notice of dispute pursuant to the retail Shop Leases Act 1994 claiming compensation from Shopping Centres Australasia Property Group PTY Ltd (SCA) for alteration of traffic flow past its premises in the Whitsunday Shopping Center by the construction of a corrugated iron fence adjacent to those premises and by failing to reinstate part of the shopping center after it was damaged by a fire on 3 April 2016. SCA counterclaimed for damages from NQ for wrongful repudiation of the lease.
  2. [2]
    On 27 November 2020, the Tribunal dismissed NQ's application for compensation and allowed SCA’s counter application.
  3. [3]
    In relation to the counter application the party’s submissions were limited to liability and directions were made allowing the parties to make further written submissions in relation to both damages and costs. Both parties have taken the opportunity to do so.
  4. [4]
    The lease does not require SCA to reinstate the center in the event of damage or destruction.
  5. [5]
    SCA decided not to reinstate and communicated that to the tenants of the center by a memo dated the 21 December 2016.
  6. [6]
    NQ ceased to trade on 27 March 2017 and in so doing it has been found to have wrongfully repudiated the lease. The repudiation was accepted by SCA on the 4th of October 2017.

Damages

  1. [7]
    It is submitted on behalf of SCA that as the premises were not re-tenanted before the expiry of the term that it is entitled to damages for loss of rent from 1 July 2017 up to the expiry date of the lease on 30 July 2018 in the sum of $64,902.48[1].
  2. [8]
    It is submitted on behalf of NQ that at best SCA is entitled to 14 days rent which is offset against the security deposit of $32,056.98 paid by NQ at the commencement of the lease, which has been forwarded to SCA or alternatively to nominal damages.
  3. [9]
    If the Tribunal is against NQ on that point, it is submitted that SCA is entitled to damages only up to the date accepted in NQ’s repudiation, that is, until 4 October 2017 in the amount of $12,133.29 after offsetting the forfeited security deposit.
  4. [10]
    Clause 9.2 (a) of the lease provides;

“If the Landlord gives the Tenant a notice that it considers that the damage makes repair of the Shop Centre impractical or undesirable, the landlord or tenant may terminate this lease by giving 14 days’ notice to the other.”

  1. [11]
    The Tribunal has found that the memo circulated to the tenants of the center on 21 December 2016 did not constitute a notice pursuant to clause 9.2 (a). It did however, in light of subsequent events, accurately communicate SCA's position to the tenants of the center.
  2. [12]
    It is not disputed that a number of attempts were made to negotiate terms of termination of the lease, both by the parties respective solicitors and directly by Mr. Kirk and Miss Manning. While no agreement was concluded NQ’s intention to vacate the premises was known to all.
  3. [13]
    While clause 9.2 (a) does not oblige SCA to deliver a notice to NQ if it decides not to reinstate there is an implied term that it must act reasonably and in good faith.
  4. [14]
    To discharge its obligations to act reasonably and in good faith, SCA would either need to provide a notice which would permit NQ to terminate pursuant to clause 9.2 (a) or in the alternative on becoming aware of NQ's decision to vacate give notice of termination itself.
  5. [15]
    It cannot in our view, in circumstances where in NQ’s intention to vacate was clear, rely on N.Q. Seafood Distributors Pty Ltd as Trustee failure to deliver a written notice of termination where the failure to deliver that notice, substantially caused or contributed to that failure.
  6. [16]
    The Tribunal is not satisfied that SCA suffered any loss as a result of NQ's wrongful repudiation of lease and accordingly makes an award of the nominal damages in the sum of $10.

Costs

  1. [17]
    In proceedings before the Tribunal it is usual for each party to bear its own costs,[2] unless the Tribunal considers the interests of Justice require the making of a costs order.[3]
  2. [18]
    NQ submits there are no circumstances exist to justify a costs order.
  3. [19]
    SCA submits that it is entitled to costs on an indemnity basis, self-assessed at $182,867.69 largely on the basis of NQ's rejection of four offers of compromise during the course of the proceedings, which in effect would have seen the parties walk away with each bearing its own costs.
  4. [20]
    NQ's claim was dismissed and while SCA's counterclaim was successful it has resulted only in an award of nominal damages.
  5. [21]
    The proceedings were sufficiently complex to justify the retention of legal representatives. The nature of NQ's claim required the parties, respective experts to give opinions as to quantum.
  6. [22]
    As a general observation the bulk of the material filed by the parties in these proceedings, including the calculation of damages related to the effects of the fire, which did not give rise to a claim for compensation, rather than the effect of the construction of the temporary wall or SCA's decision not to reinstate which arguably did.
  7. [23]
    While ultimately unsuccessful in its claim for compensation for the decision not to reinstate the argument was not an unreasonable one.
  8. [24]
    With the exception of Christodoulou & Nobilio v ISPT Pty Ltd[4] which was distinguished the Tribunal is not aware of previous proceedings in the Tribunal where NQ’s argument has been advanced.
  9. [25]
    We are of the view that NQ's rejection of SCA's offer is not so unreasonable as to justify an indemnity costs order.
  10. [26]
    We are also of the view that both parties having in practical terms at least failed. In those circumstances the interests of justice do not, in our view, require the Tribunal to make a costs order.

Footnotes

[1]In the applicants written submissions at paragraph 20, the calculation is disputed. The correct amount being $60,112.28.

[2]s 100 Queensland Civil and Administrative Tribunal Act 2009.

[3]s 102 Queensland Civil and Administrative Tribunal Act 2009.

[4][2013] QCAT 206.

Close

Editorial Notes

  • Published Case Name:

    N.Q Seafood Distributors Pty Ltd v Shopping Centres Australasia Property Group Re Ltd

  • Shortened Case Name:

    N.Q Seafood Distributors Pty Ltd v Shopping Centres Australasia Property Group Re Ltd

  • MNC:

    [2023] QCAT 405

  • Court:

    QCAT

  • Judge(s):

    Member Holzberger

  • Date:

    11 Oct 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Christodoulou & Nobilio v ISPT Pty Ltd A.C.N. 064 041 283 [2013] QCAT 206
2 citations
Jump To
Cite 1 - [2013] QCAT 206
Cite 2 - [2013] QCAT 206

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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