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Angus v Polites and Firgaira Pty Ltd[2024] QCAT 600

Angus v Polites and Firgaira Pty Ltd[2024] QCAT 600

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Angus v Polites and Firgaira Pty Ltd [2024] QCAT 600

PARTIES:

Brendan Angus

(applicant)

v

Polites And FirGaira Pty Ltd acn 615864009

(respondent)

APPLICATION NO/S:

RSL164-19

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

19 December 2024

HEARING DATE:

30 October 2023, 17 & 20 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Poteri (Chairperson)
Member Judge
Member McBryde

ORDERS:

  1. The Application of Brendan Angus is dismissed.
  2. The Counter Application of Polites and Firgaira Pty Ltd ACN 615864009 is allowed, and its damages and legal costs/outlays are calculated in the sum of $85,887.00.
  3. Brendan Angus must pay the sum of $85,887.00 into the nominated bank account of Polites and Firgaira Pty Ltd CAN 615864009 by 4pm on 18 February 2025.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL SHOP LEASE – where the tenant has alleged that the state of the premises is not of an acceptable standard because water entered the premises causing disruption to the tenant’s business – where the tenant alleges that this is the reason that the lease was terminated – where the tenant has made a claim for compensation from the landlord – where the landlord disputes the tenant’s claim and says that the tenant abandoned the premises and has made a claim for arrears and losses of rental from the tenant.

Queensland Civil and Administrative Act 2009 (Qld) s 100, 102, 107

Property Law Act 1974 (Qld) s 124

Retail Shop Leases Act 1994 (Qld) s 43

Work Health and Safety Act (Qld) s 3, 20

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Maynard of Counsel instructed by Cronin Miller Litigation Solicitors

REASONS FOR DECISION

  1. [1]
    The jurisdiction to hear this dispute is derived from s 9 of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’). The Retail Shop Leases Act 1994 (Qld) (‘RSL Act’) is enabling legislation under the QCAT Act. None of the parties have raised any jurisdiction issues in relation to these proceedings.

BACKGROUND

  1. [2]
    The background to these proceedings relates to events that occurred in 2018 and 2019. The material before the Tribunal is contained primarily in the joint hearing book (‘JHB’) and exhibits submitted to the Tribunal during the hearing. The panel will refer to the material contained in the JHB by reference to the page numbers situated in the middle and at the bottom of each page. There are 4 volumes of the JHB.
  2. [3]
    The Respondent in these proceedings is Polites and Firgaira Property Pty Ltd (‘Landlord’) who was at all relevant times the registered proprietor of commercial premises situated at 39 to 41 McLean Street, Coolangatta (‘the Premises’). The spokesperson and a director of the Landlord was at all relevant times Alex Polites (‘Polites’). On 20 March 2018 the Landlord entered a lease (‘Lease’) of the Premises with the Applicant, Brendan Angus (‘Angus’) to commence on 18 March 2018 and terminating on 17 March 2021. Angus was to conduct a licenced food outlet from the Premises. The first year’s rental was to be $75,000 per annum. This is a net rent with no outgoings payable by Angus. A full copy of the terms and conditions of the lease are annexed to the Application.
  3. [4]
    Angus filed an application (‘Application’) by way of a notice of dispute under the provisions of the RSL Act which was filed in the Tribunal on 3 September 2019. An amended notice of dispute was filed in the Tribunal on 20 August 2020. Angus is seeking compensation and damages of some $750,000 for the disruption to his business which he claims was caused by the poor state of the premises, more specifically leaks in the roof of the premises.
  4. [5]
    The Landlord filed a response and counter application (‘Counter Application’) in the Tribunal on 31 January 2020, filed a further amended Counter Application on 23 September 2020, a further amended Counter Application on 3 March 2022 and a further amened Counter Application on 14 July 2020. The Landlord disputes the Application of Angus and is seeking damages for arrears in rental, loss of bargain, legal and other incidental costs.
  5. [6]
    Angus gave evidence that he was negotiating for the lease and purchase of the Premises with the Landlord and at one stage paid a deposit to purchase the Premises. These negotiations did not eventuate in the purchase of the Premises by Angus. However, the parties eventually agreed on the terms of the Lease. Evidence was given that Angus started construction for the improvement and outfit of Premises before the Lease was executed by both parties and without the permission of the Landlord. Angus gave evidence that he moved some demountable containers to the Premises and undertook other works to the value of some $250,000. The demountable containers were to be used for the preparation of the food.
  6. [7]
    The Premises are an old Kentucky Fried Chicken site and are situated at Coolangatta on the Gold Coast. Angus says that he moved quickly to improve the Premises as he intended to operate a licenced food outlet from the Premises to take advantage of the expected increase in tourist numbers from the Commonwealth Games which were to commence on the Gold Coast in April 2018. The Premises were to operate under the name Sunhouse Surf Kiosk (‘Kiosk’).
  7. [8]
    The main issue in dispute is the state of the Premises. More specifically Angus says that the Premises were not fit for a food outlet as the roof of the Kiosk had leaks. Angus says that the leaks caused significant disruption to the business so that he was not able to operate the Kiosk from the Premises.
  8. [9]
    Angus submits that the Landlord has failed to properly maintain the Premises to an acceptable standard and has breached clause 12.5 of the Lease. That is the Landlord will keep, repair and maintain the exterior of the building in good repair and order. Angus says that his solicitor, Liam Young, gave notice under clause 14.2(2) of the Lease on 27 March 2019 to the Landlord’s then solicitor, Evans Lawyers, that the Lease will be terminated on 27 April 2019. See Exhibit BA-15 of the affidavit of Angus sworn on 28 February 2020 - pages 189 to 192 of the JHB.
  9. [10]
    One of the issues that the Landlord has raised is that the Premises were marketed to Angus by the Landlord’s agents in “as is” condition and that Angus was aware that there were problems with the state of the Premises, the gutters of the Premises were rusted out and that the Premises had been vacant for some time before Angus became interested in the Premises. Indeed Angus described the Premises as being “derelict” and a refuge for homeless people.
  10. [11]
    Angus is seeking the following orders from the Tribunal. See page 28 of the JHB:
    1. The Respondent compensate the Applicant in the amount of $750,000, calculated pursuant to the attached schedules. The claim is capped at $750,000.
    2. The Respondent pay the Applicant’s costs.
    3. The Respondent’s Further Amended Counter Application filed on 25 February 2022 be dismissed.
  11. [12]
    The Landlord is seeking the following orders from the Tribunal. See pages 36 and 37 of the JHB:
    1. The Amended Notice of Dispute filed by Angus on 20 August 2020 be dismissed.
    2. Angus should pay the Landlord loss and damage calculated in accordance with the table outlined on the said pages 36 and 37.
    3. Angus should pay the Landlord’s costs outlined on the said page 37. 
  12. [13]
    To succeed Angus and the Landlord must prove their respective claim/counterclaim on the balance of probabilities.

PARTIES

  1. [14]
    Angus represented himself in these proceedings and at the hearings. Angus is a builder who works offshore, and he is a FIFO worker. Angus stated that he works three weeks on duty with one week off duty. Angus is an unsophisticated litigant who was assisted in the preparation of material by his lawyer, Liam Young. Liam Young sent the purported letter of termination of the Lease dated 27 March 2019 (see pages 190 to 192 of the JHB) due to the Landlord’s failure to properly maintain the Premises as required by clause 12.5 of the Lease. Although Angus raised many concerns about the state of the Premises, his losses, the issue of the water leaks and the effect the water egress had on the Kiosk, these concerns were very general in nature, and they were in most instances not connected or linked to any breach of any relevant laws or the terms of the Lease by the Landlord.
  2. [15]
    In giving evidence and making submissions Angus appeared to be confused by the legal processes of the Tribunal and the complexity of the provision of direct evidence and linking the evidence to an alleged breach of the Lease or a relevant law/code.
  3. [16]
    In contrast to Angus, the panel viewed Polites as a very sophisticated litigant who was well versed in the relevant law and terms of the Lease. In his affidavit sworn on 17 November (no year inserted) and filed in the Tribunal on 25 November 2020 (Exhibit 4), Polites states that he is a licenced real estate agent, has managed over 200 commercial properties across Australia and has founded and operated a real estate agency in Queensland where he managed over 150 residential properties. Polites also states that he specialises in amalgamating sites for developers. Polites was also represented by Mr M Maynard of Counsel instructed by Cronin Miller Litigation, lawyers.

CLAIM BY ANGUS

  1. [17]
    The panel had reservations about the oral evidence given by Angus and the material supplied to the Tribunal by Angus. We found his evidence to be unreliable for the following reasons:
    1. Angus did not call any witnesses to corroborate his evidence.
    2. Angus gave evidence that he works at remote locations offshore and he is a FIFO worker. Accordingly, Angus gave evidence that he left the Kiosk to be run by managers and he was not present to give direct evidence about his complaints and how they impacted on the business.
    3. Angus has not provided definitive evidence or an analysis to the Tribunal of what days he was or was not at the Kiosk.
    4. Angus has not provided any analysis on how the problem with the state of the Premises affected the business. For instance, there was no expert analytical examination of the figures provided by Angus which shows how the alleged water leaks directly affected the Kiosk and resulted in disruption to the Kiosk.
    5. Angus says in his affidavit sworn on 20 March 2024 and filed in the Tribunal on 27 March 2024 at paragraphs 16 and 17 that he had to wait 109 days for work to be undertaken on the roof and “Polites clearly admits it rained for many, many weeks on end”. Angus has not adduced any evidence on how many days that there was rain during the 109-day period and how this rain affected the Kiosk. Angus has not adduced any corroborative evidence on how many days or part of any days that the Kiosk had to close during normal business hours because of the leaks from the roof. If there was significant disruption to the Kiosk as alleged, then Angus should have adduced evidence on the actual number of days or part of days that the Kiosk had to close, if at all.
    6. Angus has not provided any evidence from any independent witnesses such as any customers of Kiosk who were at the Kiosk during any rain events and complained about the egress of water to the Kiosk while they were at the Kiosk.
    7. Videos of the water ingress was shown to the Tribunal. Videos 2 and 3 were taken by Ivan Lotti (‘Lotti’) in early May 2018. Lotti was at the time the manager of Kiosk. The videos show some water entering the Kiosk. Lotti gave oral evidence and was cross examined at length by Angus. Lotti was the manager of the Kiosk between February and May 2018 and stated that Angus was usually not present at the Kiosk. He stated that he did not consider the water egress as serious, the Kiosk did not close because of the water ingress and no customers complained about the issue.
    8. The first complaint of water ingress was in May 2018. Angus also showed videos 4 and 5 which were taken in September 2018 and October 2019. Video 4 shows water ingress and flooding of the gutters and outdoor areas which is indicative of a heavy downpour. Video 5 shows some water ingress. There is also water entering the demountable building which was constructed by Angus, and it is his responsibility to maintain the integrity of the demountable buildings.
    9. There is no doubt that water entered the Premises on occasions and the videos shown at the hearings were very dramatic. However, Angus has not provided detailed evidence on when this occurred, the severity/length of the rain events, the impact of the water leaks had on the Kiosk, the number of days, if any, that the Kiosk had to close because of the water leaks and an analysis of the trading figures of the Kiosk. Further Angus was not at the Kiosk for much of the operation of the Kiosk and Angus has not provided any witnesses to corroborate the allegations of Angus.
    10. During the hearings Angus gave evidence and made submissions that water was dripping onto or being close to electrical equipment or cables. Also, the water made the floor slippery. Angus alleges that the safety issues are in breach of workplace health safety legislation, codes or guidelines. The details of these allegations by Angus are very general and he has not adduced any evidence of alleged breaches of any relevant laws or guidelines, how these laws and guidelines have been breached and how the liability for such breaches is the responsibility of the Landlord.
    11. The claim by Angus is further complicated because Angus has used his corporate entities to facilitate the erection of the demountables and the purchase of some of the equipment for the Kiosk. These companies are Ottaman Empire Co Pty Ltd, gQ rentals Pty Ltd and gQ Industries Pty Ltd. These companies are not parties to these proceedings or part of the lease arrangements with the Landlord. Angus has not articulated in sufficient detail how the losses to these companies can be claimed by Angus against the Landlord.

NOTICE BY ANGUS TERMINATING THE LEASE

  1. [18]
    Angus has placed great importance on his notice of termination of the Lease in the letter dated 27 March 2019 from his lawyer, Liam Young, to The Landlord’s lawyers, Evans, Lawyers. See pages 190 to 192 of the JHB. The notice is purported to be given under clause 14.2(2) of the Lease. The heading for clause 14.2 of the Lease is “Wholly Unfit or Totally Inaccessible” and it applies when the Premises are destroyed or so damaged that the Premises are rendered wholly unfit for occupation and use. The notice does not outline any specific details on why the Premises are wholly unfit for occupation, how many days (or part of any days) rain/water entered the Kiosk, how many days (or part of any days) that the Kiosk was closed (if any) and how the business was disrupted. For example, the Kiosk was operating notwithstanding that there were leaks in the roof during rain events and water was entering the Premises. In fact, the notice refers to clause 12.5 of the Lease and states that “the Landlord will keep repair and maintain the exterior of the Building except to the extent the Tenant and the other occupants of the Building are obliged to do so”.
  2. [19]
    Further, there was no expert evidence, or any other evidence adduced by Angus to support his position that the Premises were wholly unfit for occupation. The panel accepts that the Landlord may have breached the Landlord’s obligation set out in clause 12.5 of the Lease. In giving the notice on 27 March 2019 Angus should have given the Landlord a reasonable period to replace or rectify all the leaks in the roof and if the Landlord did not undertake these works, then Angus would have been in a much better position from a legal compliance perspective to give notice to terminate the Lease.
  3. [20]
    In the circumstances the Tribunal finds that Angus’s purported notice dated 27 March 2019 with the effective termination being 27 April 2019 was not in compliance with the terms of the Lease.
  4. [21]
    Notwithstanding the above finding the Landlord says that it properly terminated the lease either on 14 March 2019 or 15 April 2019 because Angus failed to remedy the breach notices for failure to pay rental and the Landlord took possession of the Premises. The Tribunal accepts that the lease was properly terminated by the Landlord either on 14 March 2019 or on 15 April 2019. That is prior to Angus’s purported termination on 27 April 2019.

TERMINATION OF THE LEASE BY THE LANDLORD

  1. [22]
    The first complaint about the water leaks into the Kiosk occurred in early May 2018 where a roofer undertook work to “cover the holes”. See message from Polites to Angus dated 8 May 2018 page 1576 of the JHB. Leaks were apparently still persisting because Polites arranged for Steve Visocchi (‘Visocchi’) of AAA Roofworxx & Property Maintenance to attend to repairs of the roof.
  2. [23]
    Visocchi attended the Premises on 10 July 2018. Polites says that Visocchi did not attend earlier because he had other work commitments and he wanted the roof to be dry when he attended the site. Visocchi undertook some repairs on the roof and provided a report to Polites. See page 1071 of JHB. Visocchi’s report says that the roof is in very poor condition, looks like it has been patched numerous times previously and also has rust holes in the roof. Visocchi says that he could not patch up the roof and guarantee the work. Visocchi’s recommendation was to have a new roof installed to stop the roof leaking.
  3. [24]
    After Angus raised a further complaint about the roof on 12 October 2018, Polites arranged for Lee Earl Meehan (‘Meehan’) to undertake work on the roof on 27 November 2018. Meehan outlines the work that he undertook on the roof in an affidavit dated 19 November 2020 which is Exhibit 3. Meehan provided a report to Polites. See pages 1073 to 1080 of the JHB. The report shows the work that Meehan undertook on the roof, including placing some foam to prevent driving rain from entering the Premises. Meehan recommends that the roof should be replaced “within the next 5 years”.
  4. [25]
    Meehan was called as a witness at the hearings. He was extensively cross examined by Angus. Meehan advised the Tribunal that he was advised of the approximate points of water egress by a staff member of the Kiosk. He was of the opinion that he had attended to all of the apparent leaks and he did not undertake any other investigations.  Meehan accepted that the roof was not in good condition, there were areas of deterioration/rust and that it should be replaced within five years. Angus did question Meehan about water leaks being near electrical equipment and safety issues. Meehan was not able to assist the Tribunal with these issues.
  5. [26]
    Polites says in his affidavit at page 960 of the JHB that “it rained on a number of occasions following Meehan’s attendance at the Property and I did not receive any feedback from Brendan. This indicated to me that the roof had been fixed.”
  6. [27]
    The next contact that Polites received from Angus was in early January 2019 where Angus expressed to Polites his need to exit the Lease for personal reasons. Details of the text and email exchange are contained in paragraphs 36 to 40 of the affidavit of Polites dated 17 November (no date inserted) and filed in the Tribunal on 25 November 2020. See pages 961 to 963 of the JHB. In this exchange Angus does not raise the issue of the leaking roof as the reason why Angus wishes to terminate the Lease.
  7. [28]
    Angus does refer to the water leaks issue indirectly in a text on 15 February 2019 – page 1093 of the JHB. Angus says, “We can go on about many things also” and “your property would still be sitting their (sic) empty. Derelict….”. This text was sent in response to the Landlord’s notice to remedy breach for failure to pay rental dated 12 February 2019. In the text Angus also raises the issue that a $275 penalty “is a bit rich”.
  8. [29]
    Angus did not make any further rental payments so eventually the Landlord re-entered the Premises and changed the locks to the Kiosk on 14 March 2019. At this point Angus still had full access to the rear of the property and the demountables. For reasons not fully explained the Landlord issued more than one notice to remedy breach and the Landlord’s lawyers sent another notice dated 4 April 2023 pursuant to s 124 of the Property Law Act 1974 (Qld). The Lease was formally terminated by notice on 15 April 2019.
  9. [30]
    The findings of the Tribunal are:
    1. The Lease was formally terminated by the Landlord either by re-entering the Premises on 14 March 2019 or by notice on 15 April 2019.
    2. On balance the evidence points to the Kiosk being an unsuccessful business from the start of operations. The figures of the business support this conclusion. The whole project must have been of great concern and worry to Angus. Angus had to manage the Kiosk from afar and it was a financial drain on him. The principal reason why Angus wanted to terminate the Lease at the beginning of January 2019 was the drain of the Kiosk on the finances of Angus and for other personal reasons. The state of the Premises would have been only a minor factor in Angus’s desire to exit the Lease. This is supported by the email exchanges between Angus and Polites in early 2019.
    3. The Landlord has taken reasonable steps under clause 8.5 of the Lease in the circumstances to resolve and repair the issues with the water leaks so that the Kiosk can operate properly. Notwithstanding this finding, on occasions water leaks must have been an issue for the Kiosk and they would have disrupted the business when water was entering the Premises. This was apparent when listening to some of the oral evidence and viewing the videos supplied by Angus.

DISRUPTION TO KIOSK

  1. [31]
    Pursuant to s 43(1)(d)(1) and s 43(1)(c) of the Retail Shop Leases Act 1994 (Qld) (‘RTL Act’) the Landlord is liable to pay Angus reasonable compensation for loss or damage because of any significant disruption to the Kiosk and any breakdown of plant and equipment under the Landlord’s control. Angus says that he is entitled to this compensation because the Landlord did not take steps to prevent or stop significant disruption (i.e. impact of water leaks on the Kiosk) within the Landlord’s control.
  2. [32]
    Angus has raised this issue in his closing submissions dated 31 May 2024 and filed in the Tribunal on 3 June 2024. In these submissions Angus has referred to the precedent of AF Textile Printers Pty Ltd v Thalut Nominees Pty Ltd (2007) 17 VSC 334 (‘AF Textile Printers’). In AF Textile Printers the landlord was to keep the factory roof watertight at all times and the tenant’s claim for compensation was successful because the factory had to close for six months. The reason for the factory closure was the existence of asbestos on the roof whilst the landlord’s contractor was cleaning the roof for repairs to be undertaken on the roof.
  3. [33]
    The facts and circumstances of the AF Textile Printers matter are very different to the facts and circumstances in these proceedings. In these proceedings the issue of the water leaks was first raised by Angus in May 2018 and the Tribunal accepts that the Landlord took reasonable steps to repair the roof. The Tribunal accepts that Angus may be entitled to compensation under s 43 of the RTL Act. However, there was no clear and direct evidence adduced by Angus to support his contention about the impact that the water leaks had on the Kiosk.
  4. [34]
    Further Angus has not provided clear and precise evidence on the exact days that disruption did occur and the extent of the disruption. However, the Landlord at paragraphs 22 and 23 of the Respondent’s closing submissions dated 31 May 2024 is prepared to concede that the water leaks may have affected 10 trading days and caused a loss of $5,515.70. Therefore, the Tribunal will take this figure into account in determining the final orders of the Tribunal.

ELECTRICAL AND GAS CHARGES

  1. [35]
    In paragraphs 40 to 44 of the Landlord’s submissions dated 16 September 2022, the Landlord has raised the issue of Angus claiming compensation for electricity charges for the period between March 2019 to February 2020 in the sum of $16,497.74 and gas charges for the period between December 2018 and March 2019 in the sum of $1,115.45. Angus has not proved his claim for losses/disruption to the Kiosk business caused by leaking roof. The Tribunal has found that the Lease came to an end in April 2019. Further Angus has not outlined the basis of any other claim for the electricity or gas charges. Accordingly, this claim must fail.

WORKPLACE SAFETY AND HEALTH

  1. [36]
    During the hearing Angus raised the issue of workplace health and safety (‘WHS’) issues. His complaint related to possible dangers of electrocution of his staff or customers when water entered the Premises and came into contact with electrical equipment or cables/points. He also complains of slippery wet floors. His position appears to be that because the Landlord knew about the leaks and its effects then the Landlord was responsible for any breach of relevant WHS laws.
  2. [37]
    Angus raises this issue in paragraphs 5 to 12 of his submissions dated 31 May 2024 and filed in the Tribunal on 3 June 2024. Angus says that he has obligations under ss 3 and 20 of the Workplace Health and Safety Act 2011 (Qld) (‘WHS Act’) to ensure that workers in the Premises are in a safe workplace. The submissions seem to suggest that, because the Landlord knew about the water leaks and failed to respond to the reasonable request to repair the roof, and this caused Angus to breach his obligations under the WHS Act, then the Landlord has somehow caused Angus “loss”. Angus does not clarify how he reaches this conclusion.
  3. [38]
    Angus cites the matters of Konstantopoulos v R&M Beechey Carriers Pty Ltd [2011] NSWCA 388 and Gration v C Gillan Investments Pty Ltd [2005] QCA 184. The Tribunal is not convinced that these precedents assist Angus.
  4. [39]
    The Konstantopoulos matter related to a lease where the landlord was seeking compensation for damage done to the leased premises by a transport company lessee. It does not concern WHS issues, and the facts of the Konstantopoulos matter are not similar to the facts and circumstances in these proceedings.
  5. [40]
    Gration’s case related to personal injuries claim by a tenant in a residential tenancy arrangements. That is a claim made under the laws of tort. The relationship between the parties in Gration is very different to the relationship that exists in these proceedings. In Gration the injury occurred as a result of a faulty staircase that the court held the landlord was aware of or should have been aware of. Angus says in his submissions that the Landlord was put “upon enquiry”.
  6. [41]
    Gration’s case is of no assistance because:
    1. The parties in these proceedings are both aware of the water leaks.
    2. The Tribunal has found that the Landlord has taken reasonable steps to repair the leaks.
    3. Angus has agreed to lease the Premises in an “as is” condition.
    4. If WHS issues arose during the egress of water into the Kiosk, then it is a matter for Angus to resolve those issues. If that required relocation of electrical equipment and cables, then that is a matter for Angus.
    5. The Landlord must allow Angus to have quiet enjoyment of the Premises. See 12.1 of the Lease. Therefore, any issues inside the Kiosk are a matter for Angus. The landlord cannot dictate where equipment and electrical cables are situated or located in the Premises.

ABANDONMENT OF PREMISES

  1. [42]
    The Lease came to an end sometime in or about April 2019 by:
    1. The repudiation of the Lease by Angus and his subsequent vacating of the Premises; or
    2. The termination of the Lease by formal notices and the Landlord re-entering the Premises on 14 March 2019 or by formal notice on 15 April 2019.
  2. [43]
    It is also noted that the Landlord has given the appropriate notices under s 124 of the Property Law Act 1974.
  3. [44]
    Whatever the position of the parties it was clear from at least in February/March 2019 that the Lease was at an end and the Premises would have to be vacated by Angus. Polites at this stage advised Angus that he should collect his chattels otherwise the Landlord would exercise its rights under clause 21 of the Lease. Angus responded to Polites in an email by saying “Thanks kindly for the courtesy email allowing access to the property. This great news and truly appreciated”. See 1136 of the JHB.
  4. [45]
    Angus stated in evidence that he took some time to remove the demountables and associated works because of his work as a FIFO. That is he works one week off and three weeks on duty. He complains that he was given limited access to the Premises after the Lease was determined in April 2019. He says that it was not a simple case of removing minor fixture and fittings but required substantial building work to dismantle and remove the demountables and other equipment.
  5. [46]
    There was a great deal of communications between Angus and Polites leading up to the Landlord placing temporary fencing around the Premises (and demountables). This exchange is contained in the affidavit of Polites dated 17 November (no date inserted for the year) and filed in the Tribunal on 25 November 2020 – Exhibit 4. The relevant pages of the affidavit are pages 961 to 967 of the JHB.
  6. [47]
    The relevant provisions of the Lease regarding the issue of abandonment are contained in clauses 7.5, 21.2 and 21.3 of the Lease:

7.5 Tenant’s Fixtures

If the Tenant has paid all Rent and observed and performed all the covenants agreements and provisions contained in this Lease and on the part of the Tenant to be observed and performed, any fixtures and things which with the consent of the Landlord have been installed by the Tenant on the Premises may at the expiration of the term of this Lease be taken down and removed from the Premises for the Tenant’s own benefit but always only upon the condition that the removal can be carried out without danger to the stability of the structure of the Premises or of the Building. The Tenant will make good to the satisfaction of the Landlord or the architect of the Landlord any damage done or unsightliness occasioned to the Premises by or as a result of the installation or removal of any of these fixtures and things. Any fixtures and things not removed by the Tenant and all other goods of the Tenant left on the Premises will be deemed abandoned by the Tenant and become property of the Landlord. The Landlord may in its discretion sell or otherwise dispose of abandoned fixtures things and goods in any manner the Landlord thinks fit.

21.2 Remove Fittings

If the Tenant does not do so as of right under the provisions of clause 7.5 the Tenant will if so required by the Landlord remove from the Premises within fourteen (14) days from the expiration or sooner determination of the term of this Lease all fixtures fittings floor coverings signs and notices or contents of every description erected or installed by the Landlord and requested to be removed by the Landlord and will make good any damage caused to the Building by the removal and if required by the Landlord will re-alter any alterations made by the Tenant so that the Premises are converted back to their original layout. The Landlord may at its option itself cause the fixtures fittings floor coverings signs and notices or contents to be removed and to be stored in a public warehouse or elsewhere at the risk of the Tenant and any damage to be made good and any alterations to be re-altered and may recover the costs of removal storage making good and/or re-alterations from the Tenant as a liquidated debt payable on demand.

21.3 Abandoned Fittings

Any fittings or fixtures not removed by the Tenant under clause 7.5 and clause 21.2 will be deemed abandoned by the Tenant and will be and become property of the Landlord. Nothing contained in this clause relieves the Tenant from, and except where the Landlord agrees in writing to the contrary the Tenant will be liable to the Landlord for, the cost and expense of and associated with any removal by the Landlord of fittings and fixtures not removed by the Tenant from the Premises and the cost and expense of and associated with the making good of any damage to the Premises caused by that removal by the Landlord.

  1. [48]
    As the Lease came to an end either by the termination by the Landlord or Angus’s repudiation of the Lease, then the above clauses of the Lease apply. That is Angus, if required, must remove his fixtures and fittings within 14 days of the determination of the Lease or the property will be deemed to be abandoned. See clause 21.2 of the Lease.
  2. [49]
    Under clause 21.4 of the Lease Angus, if required, must remove his stock in trade within three days of determination of the Lease.
  3. [50]
    Angus also gave evidence about this issue at the hearing. Angus was of the opinion that he should have been given more time and flexibility by the Landlord given his work commitments and he was trying to save money by doing the work himself. However, the Tribunal finds that the Landlord did provide Angus with reasonable access for Angus to remove his property, equipment and stock. This is because:
    1. Angus was planning to vacate the Kiosk or transfer his interest in the Lease from early 2019. His decision to terminate the Lease was crystalised in or about March to April 2019. This was the period when the Landlord issued the two notices to remedy breaches (dated 4 March 2019 and 4 April 2019) and Angus’s lawyers sent a notice to the Landlord’s lawyer.
    2. Angus sent an email to Polites dated 7 April 2019 where he says “Can we get access on Monday or Tuesday or Friday this week so we can organise getting power disconnected please. (sic)”. See page 1127 of the JBH. So from early 2019 at least and probably from late January or February 2019 Angus was aware that he would have to remove his property (including the demountables) from the Premises. He should have made the appropriate plans to remove his property from the Premises.
    3. On 19 July 2019 Polites arranged for temporary fencing to be placed around the Premises and for all locks to be changed for the Kiosk and the demountables. In late August 2019 the Landlord took possession of demountables, the equipment in the Kiosk/demountables and all stock in trade contained in these buildings. Polites stated in evidence that he did this because he wanted the site vacant for leasing purposes and he wanted to ensure that the Kiosk and demountables were secure and to prevent unauthorised persons from entering the property without the authorisation.
    4. Angus had full access to the demountables and the rear of the Property to access the demountables up to 19 July 2019.
    5. Angus could have engaged contractors to assist him in removing his property from the Premises.
    6. The evidence shows that up to 19 July 2019 Angus had still not removed or taken possession of his stock in trade which included bottles of liquor, spirits and other beverages from the Premises. The Tribunal finds that it would have been very easy for Angus to remove these items in the period from March or April 2019.
    7. Angus stated in evidence that at times he had difficulty communicating and arranging access to the Premises with Polites. However, the Tribunal finds that reasonable access was given to Angus from March/April 2019 to July 2019 to remove his property from the Premises.
  4. [51]
    Therefore, the Tribunal finds that Angus abandoned his property, and the Landlord was entitled to take possession of this property under the provisions of clause 21 of the Lease.
  5. [52]
    Polites gave evidence that he sold some of Angus’s property for $40,000 and $22,000. The Landlord accounts to Angus for these amounts.
  6. [53]
    One issue that was of concern for the panel was how Polites dealt with Angus’s stock in trade (beers, spirits and other beverages). Angus gave evidence that there was a substantial amount of stock in trade on the Premises. When Polites was asked about the stock in trade his responses were not convincing. Initially, he stated that he was not sure but assumed that the stock in trade was dumped. Later in his testimony he stated that this stock in trade may have been used as payment to one of his contractors. Whatever the case the Landlord must account for these assets which could have been sold on secondary markets or otherwise stored. Angus has given value for this stock in trade at $13,000. This figure is calculated based on his purchase invoices. Angus gave evidence that there were substantial stocks of beer, spirits and other beverages in the Premises when the Lease was terminated. Polites did not provide any evidence of the amount of stock that was left on the Premises on 14 July 2019. The Tribunal is of the view that a reasonable value of this stock is $10,000.
  7. [54]
    The costs claimed by the Landlord for securing the Premises are $1,159 (fencing) and $548 (locksmith). The Tribunal finds these costs are reasonable.
  8. [55]
    The Landlord should account to Angus for the following:
    1. Sale of property  $62,000; and
    2. Value of stock in trade $10,000.

DAMAGES AND MITIGATION OF LOSSES

  1. [56]
    The Landlord has claimed damages in the amount of the total rental for the period from March 2019 until November 2021. That is approximately 22 months. The Landlord was aware that there was a possibility from early in 2019 that it may be necessary to relet the Premises because Angus may be vacating the Premises.
  2. [57]
    The Landlord arranged for the Premises to be listed for reletting with real estate agents, Tanaka Jabangwe and Knight Frank, Australia.
  3. [58]
    The Premises could not be described as a premium building and were in a state of disrepair when Angus agreed to lease the Premises in 2018 on an “as is” basis. During the term of the Lease, it was obvious that the roof required ongoing repairs and/or a total replacement. Also, witnesses have described the roof as being rusty with the gutters being rusted out.
  4. [59]
    It is also clear that the Landlord was marketing the Premises for sale and eventually the Premises did sell. As mentioned previously prior to commencement of the Lease Angus was negotiating with Polites with a view to purchasing the Premises.
  5. [60]
    Whilst Polites gave evidence that he would consider any offer, he has not produced full details of how the Premises were being marketed for lease and/or for sale. For example, was there to be any incentive to prospective lessees about a rent holiday or that the Landlord would carry out repairs to the roofing/gutters or replace the roof?
  6. [61]
    The Tribunal agrees with the submission of Landlord that there is a duty on the Landlord to mitigate its losses. Also, the Landlord is entitled to damages for loss of bargain.
  7. [62]
    However, the Tribunal finds that the Landlord has not fully discharged this obligation to mitigate its losses because:
    1. The Premises were not in a pristine condition and the property was really a redevelopment site. The agents could have marketed the Premises for lease from early 2019.
    2. The fact that Angus still had demountables and equipment/stock in trade in the Kiosk from early in 2019 until later in the year was no impediment to the marketing of the Premises for lease.
    3. The Tribunal’s impression of Polites was that of a landlord whose priority was to sell the Property and spend as little as possible on repairs. For example, Polites did not accept Visocchi’s opinion that the roof needed total replacement.
    4. Further the property was marketed for sale and lease at the same time until the property was eventually sold. It seems to the Tribunal that the main focus was on selling the property rather than leasing the property.
    5. At no stage during the marketing campaign by the agents was there an advertised reduction in the rent to attract potential lessees. This may have been deliberate as any reduction may have affected the value of the property, either for sale or security purposes.
  8. [63]
    Therefore, the Landlord’s claim is rejected. The Tribunal finds that an appropriate award for damages is for Angus to pay any arrears and agreed rental until 17 November 2019. As set out in the closing submissions of the Landlord dated 13 May 2024 this is: 
    1. Arrears of rental from year 1 $4,020.45
    2. Rental for 9 months @ $7,083.33 per month (i.e. $85,000 PA) $63,749.97

Total$67,770.42

  1. [64]
    Damages are calculated:

Claim for damages/rental$67,770.42

Plus costs of fencing and locksmith$1,707

Less sale of demountables etc$62,000

Less value of stock in trade$10,000

Less an amount for disturbance$5,515.70

Amount($8,038.28 say $8,038)

  1. [65]
    Except for the sum of $5,515.70 for losses caused to the Kiosk business the application by Angus is dismissed.

COSTS

  1. [66]
    The Landlord has made a claim to be paid its legal costs. The Landlord’s costs are calculated at approximately $122,000 and $22,500 in disbursements, being $144,500. See Exhibit 9. In submissions dated 31 May 2024, Mr Maynard has submitted that a suitable award would be 65% of these costs. That is $93,925.
  2. [67]
    The following are issues that are relevant to the issue of legal costs:
    1. An order was made by the Tribunal on 3 April 2020 for the parties to be legally represented; and
    2. Angus commenced proceedings in the Tribunal claiming some $805,000 reduced to $750,000 for the Tribunal to be vested with jurisdiction to determine Angus’s application.
    3. The facts, circumstances and legal issues in these proceedings are complex and involve competing claims involving substantial sums.
    4. Angus is a very unsophisticated litigant and many of his assertions, such as his claim for losses, were made without sufficient evidence or corroborating witnesses. The issues raised by Angus were legitimate triable issues, but he did not present his case well.
    5. The starting point with matters being determined by the Tribunal is that all parties bear their own costs. See s 100 of the QCAT Act.

100Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.

There is a discretion in the Tribunal to award costs in the interests of justice. See s 102 of the QCAT Act.

102Costs against party in interests of justice

  1. The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
  1. However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
  1. In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
  1. the nature and complexity of the dispute the subject of the proceeding;
  1. the relative strengths of the claims made by each of the parties to the proceeding;
  1. for a proceeding for the review of a reviewable decision—
  1. whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. the financial circumstances of the parties to the proceeding;
  1. anything else the tribunal considers relevant.

Also, in these proceedings there is a contractual obligation in cl 13.1(2) of the Lease. This provision is outlined:

  1. Damages

If the Landlord determines this Lease under clause 13.1(1) the Landlord may recover from the Tenant in addition to damages and amounts recoverable apart from this clause:

  1. any Rent and Outgoings due but unpaid at the date of the determination;
  1. the amount by which the Rent and Outgoings between the date or determination and the date of expiry of this Lease by effluxion of time exceeds the rent and outgoings received or likely to be received from any other tenant to whom the Premises are relet or may be relet during that period;
  1. any other amount necessary to compensate the Landlord as a result directly or indirectly of the Tenant’s default and the Landlord’s determination of the Lease including, for example:
  1. costs and expenses incurred in maintaining the Premises;
  1. costs of recovering possession of the Premises;
  1. expenses of reletting including necessary renovation or alteration of the Premises;
  1. legal costs;
  1. real estate commissions charges and fees.

For the purposes of paragraph (b) of this sub-clause, the onus of proving that the Premises are likely to be relet and the amount of the rent likely to be received is upon the Tenant. For the purpose of calculating the rent and Outgoings that would have been payable after the determination of this Lease and to the extent that the Rent and Outgoings that would have been payable cannot be established certainly, it will be assumed that the Rent and Outgoings would have increased annually by five per centum cumulative on each anniversary of the Date of Commencement.

  1. The Tribunal does agree with Mr Maynard that at times Angus did complicate his claim. However, the Landlord was not successful on all its claims e.g. its claim for damages.
  2. The Tribunal finds that it is in the interests of justice to award costs and outlays to the Landlord on a standard basis with costs assessed on the relevant District Court Scale.
  3. The Tribunal should fix costs if possible. See 107 of the QCAT Act. The Landlord has made an actual claim for costs and outlays as outlined above. This claim and the discount to take into account the question of standard costs appears to be reasonable. Therefore, the Tribunal thereby fixes costs and outlays as proposed by the Landlord in the amount of $93,925.

FINAL ORDERS

  1. [68]
    The Landlord’s damages and legal costs are calculated as follows:

Legal costs and outlays fixed at $93,925.00

Less amount accountable to Angus $8,038.00

Damages and legal costs/outlays  $85,887.00

  1. [69]
    The final orders are:
  1. The Application of Angus is dismissed.
  2. The Landlord’s counter claim is allowed, and its damages and legal costs/outlays are calculated in the sum of $85,887.00.
  3. Angus must pay the sum of $85,887.00 30 into the nominated bank account of the Landlord by 4pm on 18 February 2024.
Close

Editorial Notes

  • Published Case Name:

    Angus v Polites and Firgaira Pty Ltd

  • Shortened Case Name:

    Angus v Polites and Firgaira Pty Ltd

  • MNC:

    [2024] QCAT 600

  • Court:

    QCAT

  • Judge(s):

    Member Poteri (Chairperson), Member Judge, Member McBryde

  • Date:

    19 Dec 2024

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
Gration v C Gillan Investments Pty Ltd[2005] 2 Qd R 267; [2005] QCA 184
1 citation
Jump To
Cite 1 - [2005] QCA 184

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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