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Alshdaifat Pty Ltd t/as Paradise Convenience Store v Consulting Japan Pty Ltd QCATA 123
Alshdaifat Pty Ltd t/as Paradise Convenience Store v Consulting Japan Pty Ltd  QCATA 123
Alshdaifat Pty Ltd t/as Paradise Convenience Store
Consulting Japan Pty Ltd
On the papers
Senior Member O'Callaghan
20 August 2015
1. Appeal dismissed.
2. Leave to appeal is refused.
APPEAL – LEAVE TO APPEAL – RETAIL SHOP LEASE – whether parts of appeal are against finding of fact – whether leave required – whether Tribunal erred in its findings on the correct parties to an agreement, and on other matters – whether the hearing was unfair because one side was legally represented
Retail Shop Leases Act 1994 (Qld), s 43
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 43, s 142
Alshdaifat Pty Ltd t/as Paradise Convenience Store v Consulting Japan Pty Ltd  QCAT 507
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
- Alshdaifat Pty Ltd t/as Paradise Convenience Store (‘Alshdaifat’) was tenant of retail shop premises in Surfers Paradise on the Gold Coast and Consulting Japan Pty Ltd was the landlord. Alshdaifat now appeals against a decision of the Tribunal concerning this tenancy.
- Alshdaifat claimed to have suffered a loss of $16,000 because of a leaking roof at the premises which had not been repaired by the landlord.
- Alshdaifat also claimed that it had been entitled to terminate its lease before the end of the term of the lease, and did so, and that it was entitled to return of its bond of about $26,000.
- Both of these claims failed. The Tribunal decided that the claim for the leaking roof failed because there was insufficient evidence to support it. The return of the bond failed because it was found that Alshdaifat was in arrears of rent and had not been entitled to terminate the lease before the end of the fixed term.
- In the proceedings, Consulting Japan lodged a counterclaim for the arrears of rent. This claim was successful and an order was made on the counterclaim that Alshdaifat should pay the sum of $12,875 in rent.
The order which is appealed against
- Alshdaifat only appeals against the Tribunal’s rejection of its claim for damages of $16,000 in respect of the leaking roof.
Agreement of 21 December 2012
- After rent became in arrears, and after the complaint about the leaking roof was made by the tenant, there was a written agreement dated 21 December 2012. This was signed by a director of Alshdaifat (Christine Leslie) and by a director of Consulting Japan (Erica Russell). On the face of the agreement it was signed by them as individuals. This is because neither of them stated in the agreement that they were signing on behalf of the companies of which they were directors and which were tenant and landlord respectively.
- The agreement provided for rent to be paid, and also stated (of relevance to this appeal) ‘Erica Russell will repair leak to roof at her expense no later than 30 Jan 13’. In the claim for compensation before the Tribunal, Alshdaifat relied on this agreement as giving it a contractual right to compensation if Consulting Japan failed to repair the roof leak by 30 January 2013.
- The Tribunal found however, that there was no such right because the signatories to the document signed it as individuals and not on behalf of the companies.
Grounds of appeal
- In the application for leave to appeal or appeal (Form 39) the following grounds were given:
- a)There was an error of law in that the Tribunal applied ‘legalistic thinking’ to an agreement dated 21 December 2012 and failed to regard it as binding between the two companies.
- b)The agreement (being an amendment to the lease) should have been registered. Since it was not registered it was not an amendment but a new lease, and Consulting Japan failed to adhere to its terms.
- c)The Tribunal erred in finding that Consulting Japan took steps to adhere to this agreement when no steps were in fact taken.
- d)The Tribunal erred in not taking into consideration Consulting Japan’s obligation to mitigate its loss.
- e)Alshdaifat was disadvantaged at the hearing because Consulting Japan was legally represented and Alshdaifat did not appear.
- As part of the appeal process, the parties were directed to provide their submissions. Further grounds of appeal appeared in Alshdaifat’s submissions. They were:
- f)Because of the roof leak, clause 4.1(a)(i) of the lease agreement is triggered which provides for an automatic reduction in rent arising from damage by storm and flood etc.
- g)The Tribunal failed to consider clause 4.1(a)(ii) of the lease which permitted the tenant to terminate the lease if the lessor failed to respond to a tenant’s notice about the premises being unfit or inaccessible.
- h)By failing to repair the roof leak, Consulting Japan should be ordered to pay compensation to Alshdaifat under s 43(1)(d)(ii) of the Retail Shop Leases Act 1994 (Qld), which provides that the lessor shall pay to the lessee compensation for loss arising from a failure to remedy a defect which was not reasonably apparent when the parties entered into the lease.
- There was no application by Alshdaifat to amend the grounds of appeal to add grounds (f), (g) and (h). Normally the Tribunal expects the grounds to be given in the initial appeal application, then any submission should explain and discuss those grounds, not to introduce new grounds. This is to ensure that the respondent to the appeal is aware of the nature of the appeal and is given a proper opportunity to make submissions in respect of them. It is also necessary to enable the Tribunal to deal with the appeal efficiently because it is disruptive for a party to add to the grounds of appeal as the appeal progresses.
- Here the Tribunal has given Consulting Japan an opportunity to respond to these new grounds, and since we are therefore in a position to deal with them, to avoid excessive formality we propose to do so.
- Appeals on questions of law can be made as of right, but appeals on questions of fact or of mixed law and fact may only be made with the Tribunal’s leave. When considering the grounds of appeal below, we also consider in any appeal requiring leave whether it is right to grant such leave.
Appeal ground (a): the agreement of 21 December 2012
- The Tribunal found that this agreement was not a binding agreement between the tenant and the landlord because it was signed by Christine Leslie and Erica Russell personally and on its face this was without reference to the companies involved.
- In this appeal it is submitted on behalf of Alshdaifat that this finding was wrong because the agreement is clearly referable to the premises and to the tenancy concerned. Whilst it is correct that the agreement clearly referred to the premises and to the tenancy concerned, the difficulty with this argument is that there is no reason why the agreement should not be between the two individuals as it appeared to be on its face. In order for the Tribunal to find that it was instead between the two companies, the Tribunal would have had to be satisfied that, viewed objectively, both sides to the agreement intended that they were both acting as agents for their companies and not on their own behalf. Since the agreement itself did not mention the companies at all, there would need to be some cogent evidence to displace the presumption that the agreement accurately identified the parties to the agreement.
- One point made in submissions on behalf of Alshdaifat on this ground of appeal is that the Tribunal found that Consulting Japan was estopped by the agreement from claiming the whole rent. This was because the agreement allowed for a reduction in rent while the light rail system was being built at Surfer’s Paradise. This it is said, was inconsistent with a finding that the agreement was not made by the companies.
- The difficulty with this argument is that the estoppel arises in equity and stopped Consulting Japan from making a claim which would have been unconscionable for it to claim. It would clearly be unconscionable to claim the whole rent, where the director of the landlord company had agreed a discounted rent. We would point out that at the hearing Consulting Japan’s legal representative rightly volunteered the estoppel point and limited the claim to the lower amount. There is nothing here which affects the rules used to identify the correct parties to a contract. There is no inconsistency between the two findings.
- In any case, the argument that the agreement of 21 December 2012 was between the companies and not between the individuals who signed it, cannot avail Alshdaifat because the Tribunal found that the roof leak claim was not proved to its satisfaction. This finding is the subject of ground of appeal (h) dealt with below.
Appeal grounds (b) and (d)
- The grounds of appeal (b) (referring to failing to register an amendment to the lease) and (d) (as to mitigation of loss) were not enlarged upon nor explained in the submissions. They do not appear to add anything to the appeal.
Appeal ground (c): Erroneous finding about steps taken to remedy
- This is an attempt to re-open a finding of fact by the Tribunal. It is arguable as a ground of appeal only if the Tribunal’s finding was not open to it on the evidence. The finding was clearly open to the Tribunal because at the hearing evidence was given by Ms Russell on behalf of Consulting Japan about it. This evidence was accepted by the Tribunal. We do not give leave to appeal on this ground. Such leave is necessary before this ground of appeal can be considered because it is an appeal on a question of fact.
Appeal ground (e): Unfairness arising from imbalance of representation
- It can be seen from the papers that about six months before the hearing, an application was made on behalf of Consulting Japan for legal representation in the Tribunal proceedings because of that company’s director’s ill-health and difficulty in communication. At the time Alshdaifat was given the opportunity to make submissions about this and it did so expressing its disagreement. Despite this, the Tribunal did grant legal representation, initially for a compulsory conference and subsequently for the hearing.
- It was open to Alshdaifat to seek its own legal representation for the hearing. It can be seen from the papers that it did have the assistance of a lawyer prior to bringing the proceedings in the Tribunal. Had Alshdaifat applied for such an order, it would have been looked upon favourably because if one side is represented then this is a circumstance which the Tribunal can consider supports the giving of leave for representation.
- Legal advocates owe a duty not knowingly to mislead the Tribunal at the hearing, and to ensure that the Tribunal has before it all relevant binding authority and legislation. This, plus the Tribunal’s obligation to deal with matters fairly and ensuring the parties’ proper understanding and regard is usually sufficient to result in a fair hearing. This is more difficult if a party does not appear at the hearing as was the case here with Alshdaifat. However, there is nothing in Alshdaifat’s submissions or in the transcript of the hearing that makes us think that the hearing was unfairly balanced because Consulting Japan was legally represented.
Appeal grounds (f) and (g): clauses 4.1(a)(i) and 4.1(a)(ii)
- The difficulty with these grounds is they do not go to the order appealed against at all. They could only be arguments if there were an appeal against the order made on the counterclaim (for payment of rent) but there is no appeal against that order.
Appeal ground (h): s 43
- This is an attempt to argue a question of fact decided by the Tribunal. In - of its reasons, the Tribunal considered whether Alshdaifat had a good claim for compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) and decided that it had not. This was because the Tribunal found Alshdaifat’s evidence insufficient to support the roof leak claim.
- In order to succeed on this ground of appeal, we would have to be satisfied that this finding was not open to the Tribunal on the evidence. On a review of the evidence this finding was clearly open to the Tribunal. Although it was admitted by Consulting Japan at the hearing that there were continuing problems with the roof despite attempts to have it fixed, there was scant evidence showing the effect of this on the premises occupied by Alshdaifat and nothing to show that its property had been damaged or that it had suffered any loss. Proof of this was necessary before an award of compensation could have been made under s 43. Therefore we do not give leave to appeal against this decision. Such leave is necessary before this ground of appeal can be considered because it is an appeal on a question of fact.
- We found no error of law. The appeal is dismissed. We are not satisfied that leave to appeal should be given on grounds that raise questions of fact. Leave to appeal is therefore refused.
 Alshdaifat Pty Ltd t/as Paradise Convenience Store v Consulting Japan Pty Ltd  QCAT 507.
 Appellant’s submissions filed with the appeal application on 26 November 2014 at .
 Appellant’s submissions filed 8 April 2015 at .
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 142(3)(b).
 Appellant’s submissions filed 8 April 2015 at .
 Alshdaifat Pty Ltd t/as Paradise Convenience Store v Consulting Japan Pty Ltd  QCAT 507 at -.
 QCAT Act s 43(3).
 2011 Barristers’ Rule at -, Australian Solicitors’ Conduct Rules 2012 at -.
 QCAT Act s 3(b) and s 28(2).
 QCAT Act s 29.
- Published Case Name:
Alshdaifat Pty Ltd t/as Paradise Convenience Store v Consulting Japan Pty Ltd
- Shortened Case Name:
Alshdaifat Pty Ltd t/as Paradise Convenience Store v Consulting Japan Pty Ltd
 QCATA 123
Senior Member O'Callaghan, Member Gordon
20 Aug 2015