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  4. Acqualine Pty Ltd as Trustee v Ponticello Properties Pty Ltd as Trustee - [2023] QCATA 140

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Acqualine Pty Ltd as Trustee v Ponticello Properties Pty Ltd as Trustee[2023] QCATA 140

Acqualine Pty Ltd as Trustee v Ponticello Properties Pty Ltd as Trustee[2023] QCATA 140

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Acqualine Pty Ltd as Trustee v Ponticello Properties Pty Ltd as Trustee [2023] QCATA 140

PARTIES:

Acqualine pty ltd ACN 010 556 493 as trustee for houghton investment trust

(applicant/appellant)

v

Ponticello properties pty led ACN 010 070 934 as trustee under intstrument no 707058827

(respondent)

APPLICATION NO/S:

APL087-22

ORIGINATING APPLICATION NO/S:

RSL033-18

MATTER TYPE:

Appeals

DELIVERED ON:

6 November 2023

HEARING DATE:

22 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. The application to admit fresh evidence is dismissed.
  2. Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FRESH EVIDENCE – where applicant leased a newsagency at a shopping centre on a month to month tenancy from the respondent – where respondent undertook construction work at the shopping centre – where applicant brought a compensation claim against the respondent for disruption during the construction work – where applicant also claimed breach of term of the lease for quiet enjoyment – where respondent removed signage relating to the applicant’s business at the shopping centre – where the tribunal found the applicant had no entitlement to compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) prior to 25 November 2016 – where tribunal found that decline in the applicant’s business was not a result of the disruption caused by the respondent – where applicant contends the tribunal made errors of fact and law – where applicant sought to lead fresh evidence – whether fresh evidence should be admitted in the appeal – whether the tribunal’s conclusions of fact were open on the evidence – whether errors of law – whether any grounds to interfere with the tribunal’s decision – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147

Retail Shop Leases Act 1994 (Qld), s 41, s 43

Retail Shop Leases Amendment Act 2016 (Qld)

Allen v Queensland Building and Construction [2023] QCATA 66

Aqualine Pty Ltd v Ponticello Properties Pty Ltd [2019] QCAT 393

Briridge Pty Ltd v Charter Hall Real Estate Management Services Pty Ltd [2104] QCAT 469

Clarke v Japan Machines (Aust) Pty Ltd (1984) 1 Qd R 404

Hawkesbury Nominees Pty Ltd v Battick Pty Ltd [2000] FCA 185

Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] 232

Rintoul v State of Queensland [2018] QCA 20

Robinson Helicopter Incorporated v McDermott [2016] HCA 22

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr  Long of counsel instructed by Thynne + Macartney

REASONS FOR DECISION

  1. [1]
    Since October 2005 the applicant leased a retail shop in at the Acacia Marketplace Shopping Centre (“the shopping centre”) at Acacia Ridge. The applicant conducted a newsagency business at the shop under the business name Archerfield News. The formal lease between the applicant and the original owner of the shopping centre expired in August 2011.  By then the respondent had purchased the shopping centre and despite negotiations, the applicant and the respondent could not agree on a new lease. Since then the applicant had been holding over on a periodic tenancy. It was agreed between the parties that the terms of the original lease were applicable to the tenancy.
  2. [2]
    In mid 2011 the relationship between the applicant, represented by its director Mr Charles Evans, and the respondent started to breakdown. This was as a result of the what the applicant contends was unreasonable interference with the applicant’s business in the removal of signage. Further issues arose when the respondent commenced to carry out major renovations and construction works in 2014. This started with the construction of shade sales in the car park, then the construction of the Aldi supermarket between May 2014 and February 2015. There was further construction work for another retail tenancy “Link”. Then the Kmart construction between July and December 2016 (”the construction  work”). During these periods carparking was reduced. All of this work, the applicant contends, interfered with the newsagency business, loss of custom and consequential loss of income.  
  3. [3]
    The applicant then filed a Notice of Dispute under s 43 of the Retail Shop Leases Act 1994 (“the RSL Act”) and at common law for damages for the interruption of its business and the losses sustained during, and as a result of, the construction  work. That section relevantly provides:

The lessor is liable to pay to the lessee reasonable compensation for loss or damage suffered by the lessee because the lessor, or a person acting under the lessor’s authority—

  1. substantially restricts the lessee’s access to the leased shop; or
  2. takes action (other than action under a lawful requirement) that substantially restricts, or alters—
  1. access by customers to the leased shop; or
  1. the flow of potential customers past the shop; or
  1. causes significant disruption to the lessee’s trading in the leased shop or does not take all reasonable steps to prevent or stop significant disruption within the lessor’s control; or

…

  1. [4]
    Ultimately the application came on for hearing where the parties confined the issues in dispute to four specific areas,[1] they were:
    1. The signage disruption;
    2. The Aldi disruption;
    3. Construction disruption;
    4. Wasted outgoings;
  2. [5]
    There was another side issue which related to the application of s 43 of the RSL Act to prevent the recovery of compensation for events that occurred before 25 November 2016. Pursuant to the Retail Shop Leases Amendment Act 2016 (Qld), proclaimed on 26 November 2016 the compensation provisions in s 43 were legislatively implied in certain shop leases. The effect of this, as found in Aqualine Pty Ltd v Ponticello Properties Pty Ltd,[2] was that the section did not apply retrospectively and therefore any claim for compensation prior to 26 November 2016 were confined to breaches of clause 10 to of the lease being the right to quiet enjoyment. Again this was conceded by the parties at the hearing.
  3. [6]
    In respect of the remaining issues the Tribunal was not satisfied that any loss was sustained by the applicant was as a result of the conduct of the respondent and the claim was dismissed.
  4. [7]
    The applicant has filed an application for leave to appeal or appeal. As this is an appeal on a question of mixed law and fact under 147(2), the applicant must first obtain leave to appeal from the appeal tribunal under  s 142(3)(b). If leave to appeal is granted then then the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.
  5. [8]
    As Judicial Member McGill said in Allen v Queensland Building and Construction:[3]

The appellant is entitled to appeal to the Appeal Tribunal on a question of law, but requires the leave of the Appeal Tribunal to appeal on a question of fact, or of mixed fact and law. As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling inferences. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146

Application to admit fresh evidence

  1. [9]
    As a preliminary issue the applicant has sought leave to admit fresh evidence. That evidence consists of a Profit and Loss Statement of Archerfield News for the 2006 – 2007 financial years. It is relevant, the applicant submits, because it contains an accurate account of the net profit trading figures for the 2007 financial year of $149,404. Whereas the Profit and Loss Statement for the 2007 – 2008 financial years, admitted as exhibit 3 at the hearing, incorrectly shows the net profit for the 2007 financial year of $199,722. A difference of about $50,000.
  2. [10]
    The relevance of this is the finding of the Tribunal that the business was is slow decline from the time of its purchase by the applicant and exemplified in the table produced in [44] of the reasons. The table show net profit in 2007 of $199,722 and 2008 of $150,608. Had the correct figure been adopted then it would have shown, obviously, that business was trading consistently over that two-year period.
  3. [11]
    In the affidavit in support of the application[4] Mr Evans, says that the correct profit and loss as shown in the document sought to be admitted, was as a result of an Australian Tax Office audit in 2010 and outside the timeframe of the dispute. Exhibit 3 is inaccurate and unreliable and therefore should not be relied upon. In this oral submissions in the appeal, he contends that he was never given an opportunity to consider the actual and correct profit and loss and no one, in particular counsel for the respondent, brought his attention to the difference between the original (Ex 3) and the amended version.
  4. [12]
    The application is opposed. The respondent submits that Mr Evans was cross-examined about exhibit 3, the net profit figures were plainly obvious on the document and he adopted the content of the document. He was taken to the financial records in the report from his expert Mr Otto and the following exchange occurred:[5]

Mr LONG: So in addition to the documents that I just took you to this was also a document that you gave to Mr Otto for the purpose of this proceeding:

Yep.

And you gave it to him in the form of a PDF document titled Archerfield PNL 2008, 2009.PDF?

Yeah.

And as that filename suggests, what it is is the financial accounts for Archerfield News for the financial years ending 30 June 2008 and 30 June 2009?

Yep.

  1. [13]
    The documents were then tended without objections and marked Exhibit 3. Later in the cross-examination, Mr Evans was again taken specifically to the 2007 profit and loss.[6]

Mr Long: So I can take you to the second page of that document. And you can see at the top it refers to this year?

Yep.

That means the financial year ending 30 June 2008?

Yes.

And then next to that is last year, being naturally, the financial year ending 30 June 2007?

Yes.

So that relates to the period 1 July 2006 to 30 June 2007. And so you have purched the – purchased the business in late 2005, so that was part-way through the 2006 financial year?

Yes

So this financial year we’re looking at there last year, begin 2007, was the first full financial year that the business had traded?

Yes.

  1. [14]
    Then a little later in the evidence Mr Evans was directed to the profit for 2007. He acknowledged that was a good result for the business.[7] He then went on to concede that there was a reduction in net profit of about $50,000 between the 2007 year and the 2008 year.
  2. [15]
    The respondent submits that Mr Evans was given every opportunity to not only correct the evidence as to the 2007 nett profit, but also to produce and tender the updated version of the profit and loss statement he seeks to rely on in this appeal, at the hearing. Mr Evans claims he was not aware of the mistake at the time, and this may be correct but it was important evidence in establishing the reduction in net profit in the business. Its significance certainly became evident once the reasons for the decision were published.
  3. [16]
    Mr Evans was represented by counsel at the hearing and there was more than enough time to address the issue during the course of the two-day hearing. Furthermore, it ought to have been obvious to all, given the line of cross-examination referred to in [12] above, that the respondent was attempting to establish the decline in profitability of the business was going to be a real issue in the proceeding.
  4. [17]
    The respondent relies on the general principles relating to the admission of fresh evidence on appeal. They are well established:[8]
    1. the evidence could not have been obtained with reasonable diligence for use at the trial;
    2. the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
    3. the evidence is credible, though it need not be incontrovertible.
  5. [18]
    Clearly the evidence was available at the hearing. It is probably credible although the respondent was not given the opportunity to explore, in cross-examination, the basis for the difference in the two sets of figures. Now it is too late to test the evidence that the applicant now seeks to rely on to disturb the Tribunals findings as to the reasons for the decline in the profitability of the business.
  6. [19]
    Whether it would have had an important impact on the result is debatable. If the evidence is accepted the net profit for both 2007 and 2008 is about the same. Thereafter there is a steady decline in profit well before the sign was changed in 2011 and construction work started.
  7. [20]
    In the end the prejudice to the respondent of not being able to test or explore the basis of the change, outweighs the benefit to the applicant to allow this further evidence to be admitted, also for the reasons that follow about its relevance. Therefore, the application to admit fresh evidence is refused.

The Tribunal’s reasons

  1. [21]
    When the business was purchased by the applicant there was an old existing sign on a pylon on the outside of the shopping centre. On the sign was “Archerfield News” with the Golden Casket graphic. In 2011 the supporting pylon was damaged by lightning and when repaired or replaced it only contained the word “News”. Not only that, when the Aldi renovations started the sign was removed completely, with an offer by the respondent to put a sign “Archerfield News” over the shop front. This never eventuated.
  2. [22]
    The applicant’s claim for compensation for this was dismissed on a number of basis. Firstly, despite a request from Mr Rizzo, a director of the respondent, Mr Evans never provided the artwork for the new sign. He conceded that he did not “follow up” the issue of the facia signage. Secondly, if any loss was incurred it was limited to losses pre-November 2016. Thirdly, insofar as there was a claim for breach of the covenant of quiet enjoyment under clause 10.1 of the lease, the pylon and signage did not form part of the demised premises and therefore the ordinary and lawful enjoyment of the demised premises was not interfered with because of the lack of a sign[9] the damages for which were not quantified. Finally the erection and removal of signage was at the discretion of the respondent lessor under clause 8.5 of the lease.
  3. [23]
    Under the heading “The Aldi disruption” the Tribunal had regard to the following particulars of conduct on the part of the respondent which resulted in the alleged downturn in trading. They were the installation of the shade sales between February and April 2014; construction of the Aldi supermarket between July 2014 and February 2015; construction of the retail tenancy “Link” in August 2015 and the loss of carparks as a result of this work.
  4. [24]
    The Tribunal had reference to the door counters of people attending the centre and concluded that they were unreliable and provided no empirical evidence to a decline in numbers. Expert evidence was given as to the availability of carparks but this was of little assistance because there was no evidence that despite the reduction of available carpark, the car park was never full.
  5. [25]
    Turning to the net profit figures for the years the applicant was operating the business, the Tribunal produced a table of net profit showing from 2007 through to 2014, being the commencement of the construction works. This demonstrates there was a decline of net profit between 2008 and 2009 ($150,608 down to $134,279), down to $87,461 in 2010, however some of this was attributed to the global financial crisis according to Mr Evans. Profit returned up to about $100,000 for the 2011 and 2012 years then was steady in the $90,000s between 2013 and 2016. The reasons record that the return to higher profit after 2008 was as a result of Mr and Mrs Evans spending more time in the business and therefore saving on employment costs. The implication here is that the business was experiencing difficulties between 2009 and 2014.
  6. [26]
    Having regard to the findings that the door counters were unreliable, that the applicant  failed to establish that there was a lack or carparking during the tenancy, and the general downturn in the profitability of the business before the Aldi disruption, the Tribunal concluded that any loss occasioned by the applicant was not as a result of the Aldi disruption.
  7. [27]
    As similar conclusion was reached in respect of the construction disruption, e.g. the Link construction works as well as the construction of a K-Mart Tyre and Auto at the shopping centre. The Tribunal struggled to identify a clear delineation between this work and the Aldi work. In any event, reliance was placed on the same evidence for the Aldi disruption compensation claim and therefore the same conclusion was reached.
  8. [28]
    Further, no compensation was payable prior to 25 November 2016 under s 43 of the RSL Act. Not only did the Tribunal rely on the objective evidence of the experts called at the hearing in respect of traffic and carparking issues, insofar as there was a dispute about the level of disruption at the shopping centre the Tribunal preferred the evidence of Mr Rizzo of the respondent as opposed to that of Mr Evans. The Tribunal said at [69]:

However, the clause [8.4 of the lease] required Ponticello to minimise the extent of any disruption as far as practicable. We are not satisfied that Aqualine has met the burden of proof that Ponticello breached clause 8.4 in relation to the noise issues. Given the lack of complaints from other tenants, and from Aqualine at the time, we prefer the evidence of Mr Rizzo to that of Mr Evans.

  1. [29]
    The Tribunal found that there was no breach of the lease by the respondent in relation to the construction work, which must have included any claim for breach of the covenant of quiet enjoyment.
  2. [30]
    Finally there was the question of wasted outgoings. Although the Tribunal accepted that the applicant paid $3,728.02 between 1 January 2013 and 2014 for promotion of the shopping centre, the respondent failed to provide an audit of expenditure as required by the s 41 of the RSL Act. However it was accepted that between 2012 and 2015 there was promotional expenditure by the respondent and rather than spend money on an audit, greater value to the shopping centre would be achieved if the money was spent on promotional expenditure instead.
  3. [31]
    The Tribunal accepted Mr Rizzo’s evidence on this point and in any event, the applicant had no claim to compensation before 25 November 2016 and further that the applicant had not established, on balance, that the promotional funds were not applied by the respondent for promotional expenditure. This claim was dismissed.

The Appeal

  1. [32]
    The application for leave to appeal or appeal, has attached to it what purports to be the grounds of appeal. Rather than provide specific grounds of appeal the attachment is a narrative of why the applicant says the Tribunal came to the wrong decision with respect its claim for compensation.[10] The document is difficult to follow and to discern specific grounds but it seems to be the case that the applicant generally contends that it disagrees with the Tribunal’s finding of fact and its failure to have regard to all of the evidence produced at the hearing. It contends the Tribunal unnecessarily confined itself to the four categories referred to above at [4] above. Reference is made to specific findings, by way of example, the failure to have regard to the evidence about customer numbers at the point of sale, rather than the door counters.
  2. [33]
    There is also a challenge to the reliance on Aqualine Pty Ltd v Ponticello Pty Ltd[11] as to the retrospective application of s 43 for a tenant that is “holding over” on a periodic tenancy. It is useful to have regard to what the Tribunal actually concluded in that case.

[52]   From 26 November 2016, the Amending Act has the effect of including the compensation provisions of the RSLA into periodic tenancies created by the lessee holding over under the lease or with the lessor’s consent as referred to in section 42(2)(a) of the RSLA.

[53]   A periodic tenant, of the kind referred to under section 42(2)(a) of the RSLA, can only make a claim for compensation under the compensation provisions of the RSLA for any alleged action of a lessor or failure of a lessor or an event that occurred after 26 November 2016.

  1. [34]
    The complaint seems to be that the Tribunal, on a fair reading of s 43(b)(i) and (ii) of the RSL Act should have come to the conclusion that the compensation provisions applied to the period of disruption by the respondent. As the applicant was a holding over periodic tenant, it took the benefit of the amendment to claim compensation under s 43, but could only do so from the date of the amending Act being proclaimed on 26 November 2016.[12]
  2. [35]
    On that point, the alternate argument is that if s 43 of the RSL Act does not apply, compensation could be awarded for breach of the covenant of quiet enjoyment.[13] Under clause 8.4 of the lease the respondent reserved the right to build additions to the centre:

The Lessor may at any time during the term at its absolute discretion build additions to the Centre and for that purpose may (without incurring any liability to the Lessee) interrupt the water gas electrical and other services to the demised premises provided that the Lessor shall carry out such works in such a manner as to minimise so far as may be practical any inconvenience tot or interruption to the business of the Lessee and provided that always that:

The means of ingress to and egress from the demised premises on foot or by motor vehicles from and to public streets shall be no less adequate than those prevailing at the date of the commencement of this lease.

  1. [36]
    Because the respondent was, under the lease, permitted to build additions to the Centre, the onus is on the applicant to prove, on balance, that it was the construction works that substantially interfered with the profitability of the business rather than some other cause. Here the issue, fairly raised by the respondent, was the declining profitability of the business even before work started. It the applicant was able to establish a causal link between the construction works and the impact on the business then compensation for breach of the covenant of quiet enjoyment would be recoverable. Similarly, with respect to any impact from the signage issue the applicant had to establish causation.
  2. [37]
    The applicant complains about the lack of specificity of dates about when the construction works were undertaken in the reasons. An example is that the sail shade development started on 27 February whereas in fact the applicant said it started on 6 February (presumably 2014). The factual discrepancy, even if correct, does not address the findings that any loss was not as a result of the disruption.
  3. [38]
    Other criticisms, e.g. about the sign “Archerfield News” do not go to the core issue in the case and that is the onus on the applicant to demonstrate that the removal of the sign and construction works disrupted the business, and if it did the basis upon which compensation was payable before 26 November 2016. There was also a challenge to the factual finding about length of time the Postle Street entry/exit was closed contending that it was closed for an extended period. Again, accepting this to be the case for the purposes of the appeal, it still does not overcome the findings as to why the business’ profitability declined, which I will now come to.
  4. [39]
    When the appeal came on for hearing, Mr Evans conceded that the four areas of dispute were those referred to in [4] above. However in the submissions in support of the appeal he provided specific “reasons for the appeal”[14] which I will treat as the grounds of appeal. There are:

The right to claim compensation under section 83 of the RLSA 1994 or under general law were not considered.

Documents were tendered and used that had not previously been submitted into evidence.

A fraudulent 2007 P & L amount was used to promote a false premise

Supposedly unreliable Centre door counter figures that had not been used as evidence and that did not exist for the period in question were used as the reason the burden of proof of the reduction in customer number had not been met.

Oral evidence from witnesses that conflicted with written and aerial imagery evidence in the trial book was accepted without review.

  1. [40]
    The submission then goes on to address these matters. I agree with the respondent’s submission that s 83 of the RSL Act does not provide a cause of action for an aggrieved party to a retail shop lease.  The section simply sets out what orders QCAT can make when making a decision about a retail shop lease dispute, either under the Act or the general law. Specific consideration was given by the Tribunal as to whether there was a breach of the covenant of quiet enjoyment under the general law but was not satisfied that this was established.
  2. [41]
    The thrust of the applicant’s submission is in relation to the impact, if any, of the original 2007 profit and loss statement and what it submits is a false profit of $199,722. This is document put to, and adopted by, Mr Evans. He now submits this document should be ignored and reliance placed on the corrected 2007 profit and loss. In its submission, the applicant attempts to reargue the whole case that was before the Tribunal on the basis of the corrected profit and loss. In other words to have a rehearing on the basis of this new evidence. That is not the function of the Appeal Tribunal.
  3. [42]
    The Tribunal was obviously entitled to rely on the documents tendered without objection from Mr Evans or his counsel. Furthermore, despite the contention that the documents were not specifically produced by the respondent before the hearing, they were in the documents given to the respondent’s expert accountant, Mr Otto. Mr Evans and his team had more than sufficient time during the hearing to address this issue. Submissions in the appeal based on the corrected 2007 profit and loss are irrelevant not only because the evidence was not part of the Tribunal’s consideration but also because the Tribunal found that the respondent was not responsible for any loss, or drop in business experienced by the applicant. That is the respondent was not the cause of the loss, or in other words the applicant failed to establish causation. That finding was clearly open on the evidence before the Tribunal in reliance on the applicant’s own documents.
  4. [43]
    As submitted by the respondent,[15] even if the corrected figure of $150,608 was included, there is no reason to suggest that the Tribunal’s decision about the profitability of the business would have been any different. The nett profit for 2007 would be about the same as 2008 and then a general decline up to when the construction  works started in July 2014. Also, this is demonstrated by Mr Evans own evidence about the business. He conceded that 2010 was the second worst year the business had had other than 2017.[16]
  5. [44]
    There is also the evidence, accepted by the Tribunal that both Mr Evans and Mrs Evans having to spend more time in the newsagency to save on staff costs at this time.[17] The picture painted about this business, the lack of diversification and upgrade of the premises is bleak, before any intervention by the respondent to improve the shopping centre to attract more customers. This was acknowledged by the applicant in the correspondence to the respondent when trying to negotiate a new lease in February 2011, Mr Evans said when asking for a new lease without a rent increase because of “substantial decrease of customer traffic through the centre over the last several years”.[18]
  6. [45]
    On the basis of all this evidence, in particular that from the Mr Evans, there is simply no basis to disturb the findings of fact by the Tribunal as to the financial viability of the business. Findings of fact will only be disturbed if they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences".[19]
  7. [46]
    Similar considerations apply to the customer count. Mr Evans submits that the Tribunal failed to take into account the actual customer numbers from “the point of sale computer of the newsagency”.[20] Although the Tribunal found that the door count figures were unreliable, as conceded by Mr Evans, it did accept that overall there was a reduction in the number of customers to the newsagency[21] during the construction  works.
  8. [47]
    However, it found that this was as a result of the general and ongoing decline in the business between the financial years for 2010 – 2011 through to the financial year of 2013 – 2014. It follows once the conclusion is reached that the business was in decline prior to the start of the construction works in July 2014, that customer numbers would be reduced. The Tribunal was not satisfied that there was a causal link between the reduction of customers and the construction works given the way the business was trading. In fact having regard to the net profit figures,[22] there was not a significant difference between 2013 and 2016. In the financial year of the Aldi works,[23] 2014 – 2015 there was an increase in profit from the previous year. The applicant’s argument is difficult to reconcile with the trading figures before July 2014.
  9. [48]
    The applicant also relied on the reduction in carparking and interference with the ingress and egress from the carparking area, particularly Postle Street bearing n mind the respondent’s obligations under clause 8.4 of the lease with respect to ingress and egress. Accepting again there was a loss of carparking spaces during the work, both traffic experts called, Mr Pekon and Mr Douglas agreed that the carpark was never at capacity during this time. Even if one were to accept Mr Evans’ submission that the Postle Street exit was closed off during the work, there is still no correlation between that and customer reduction at the business.  While it may be the case that the very fact construction works were under way might generally deter customers, any deterrence was not directly due to lack of carparking spaces.
  10. [49]
    The Tribunal referred to clause 8.4 of the lease which gave the respondent the right to “build additions to the Centre” and in doing so, is to minimise any disruption to the business of any of the tenants. This of course does not mean that there won’t be some disturbance to the operation of businesses in the centre. Also the Tribunal accepted Mr Rizzo’s evidence that no other tenant’s complained about the work, at the time. On the whole of this evidence the Tribunal found that the respondent did not breach clause 8.4. Again, assuming there was, no compensation would be recoverable before 25 November 2016 under s of the RSL Act, by which time all of the work had been done, save perhaps for a little work in December 2016 at Kmart. The applicant then resorts to common law and the respondents obligations under the lease when exercising the rights under clause 8.4.
  11. [50]
    Also in respect of this work, based on the findings of the Tribunal that:
    1. the work did not result in a disruption to the applicant’s business, and;
    2. there had been no breach of clause 8.4 of the lease by the respondent;

there had been no interference with the applicant’s quiet enjoyment of the demised premises.

  1. [51]
    The applicant submits the Tribunal erred in not finding that the removal and changing of the signage interfered with the applicant’s quiet enjoyment and compensation should be payable. It challenged the finding of fact that Mr Evans never followed up with the art work for the sign on the grounds that at a meeting in 2014 between him and Jane Travers from Chesterton, the managing agents for the centre, it was agreed that the graphics should be the same as the sign that was removed.
  2. [52]
    Accepting that to be the case, firstly it is doubtful if this constitutes an interference with quiet enjoyment and secondly, there is no evidence that Mr Evans followed up with ensuring the sign was made up and erected. Despite the submission that there was an agreement for it to be the same as the one removed, this is not reflected in the diary note relied upon by Mr Evans.[24] The note records that:

…she (Jane Travers) again advised that the facia signage would be removed and replaced with signage to my satisfaction, above the shopfront…

  1. [53]
    It was therefore open to the Tribunal to conclude firstly, that the lease did not contain any right to signage and secondly, it was for the applicant to follow up with the artwork. There is no basis for this Tribunal to interfere with that conclusion.
  2. [54]
    The applicant paid promotional expenses between January 2013 and November 2014 in total of sum of $3,728.02, pursuant to clause 21.2(a) of the lease. Section 41(4) of the RSL Act requires the respondent to provide an annual audited statement as to the lessor’s expenditure for promotion amounts. The Tribunal accepted that the respondent failed to provide audited statement. The Tribunal referred to Briridge Pty Ltd v Charter Hall Real Estate Management Services Pty Ltd[25] which confirmed that s 41 did not give any rights to the lessee, but obviously it imposes obligations on the lessor. There is no suggestion that the money was not used for promotional purposes. The Tribunal accepted Mr Rizzo’s evidence that this was the case, and included a table of expenditure between 2012 and 2015 of about $56,000. The only compliant is that the respondent has not provided a proper accounting for the expenditure. Furthermore, the Tribunal was satisfied that the applicant had not suffered any loss as a result. Even if it had, no compensation was payable because it occurred before 25 November 2016.
  3. [55]
    It is difficult to apprehend, from the applicant’s submissions, the consequences of failing to provide the audited statement. It seems the failure to do so somehow impacted the capital value of the business and because there was no lease, a capital loss was incurred.[26]  Also, reliance is placed on the failed negotiations for a new lease to generate an argument that the respondent acted unconscionably in not granting a new lease.[27] This was not an issue before the Tribunal at first instance. The issues were those listed above at [4] and confirmed by Mr Evans at the hearing.
  4. [56]
    There is no basis to interfere with the Tribunal’s findings on the promotional expenditure.

Conclusion

  1. [57]
    The applicant sought compensation for breach of it right to quiet enjoyment under the lease for the newsagency shop at Acacia Marketplace Shopping centre. It claims it suffered losses as a result of construction work being carried out at the shopping centre firstly, the Aldi shop between July 2014 and March 2015 then secondly, the Kmart between July and December 2016. It also contended that the change in signage in 2011 impacted the business.
  2. [58]
    The Tribunal dismissed the applicant’s claim, principally on the basis that the cause of the loss of profits during this period was not as a result of the construction work but relying on the financial statements produced by the applicant, the loss of profits was as a result of a downturn in trade unrelated to the construction work. The business was in decline since at least the 2009 – 2010 year if not before. Although the applicant as sought to lead fresh evidence being the corrected 2007 financial statement, even this evidence would not change the financial landscape for this business.
  3. [59]
    The respondent was entitled to undertake the construction work under the lease. The onus was then on the applicant to establish that by undertaking the work, the respondent derogated from the grant of quiet enjoyment resulting in loss to the applicant. It was the task of the tribunal of fact to determine whether the onus had been discharged in establishing causation. It was not satisfied there was a causal connection between the construction works and the downturn in trade.
  4. [60]
    Also, in considering the reasons for the decision, although there may be some minor errors with respect to specific dates, the conclusions reached were open of the evidence before the Tribunal. In fact, on a fresh consideration of the evidence and the periods of disruption, it is difficult to see how a different conclusion could be reached particularly with respect to the financial year of the Aldi construction works where the net profit increased marginally by about $2,500.
  5. [61]
    The applicant has not established that the decision of the Tribunal below is attended by error or an appeal is necessary to correct a substantial injustice.[28] As no error of fact or law has been demonstrated which would warrant interference with the decision below, leave to appeal is refused.

Orders

  1. The application to admit fresh evidence is dismissed.
  2. Leave to appeal is refused..

Footnotes

[1]  Reasons published 4 March 2022 at [5].

[2]  [2019] QCAT 393 at [55].

[3]  [2023] QCATA 66 at [2] citing Crime and Corruption Commission v Lee [2019] QCATA 38 at [12] and Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].

[4]  Filed 10 October 2022.

[5]  Transcript page 10 line 40.

[6]  Ibid page 14 line 30.

[7]  Ibid page 15 line 15.

[8] Clarke v Japan Machines (Aust) Pty Ltd (1984) 1 Qd R 404.

[9] Hawkesbury Nominees Pty Ltd v Battick Pty Ltd [2000] FCA 185 at [37].

[10]  This format is not unusual for self-represented litigants.

[11]  [2019] QCAT 393.

[12]  Also see Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] 232 at [13].

[13]  Ibid.

[14]  Appeal submissions filed 11 October 2022 at [5].

[15]  Respondent’s submissions 2 December 2022 [35(b)].

[16]  Transcript 1 page 60 line 30.

[17]  Reasons [45].

[18]  Ibid [46].

[19] Robinson Helicopter Incorporated v McDermott [2016] HCA 22 at [43].

[20]  Applicant’s submissions at [34].

[21]  Reasons [53].

[22]  Reasons [44]

[23]  Between July 2014 and March 2015

[24]  Applicant’s submission [64]

[25]  [2104] QCAT 469.

[26]  Applicant’s submissions at [68].

[27]  Ibid at [69].

[28] Rintoul v State of Queensland [2018] QCA 20 at [10]

Close

Editorial Notes

  • Published Case Name:

    Acqualine Pty Ltd as Trustee v Ponticello Properties Pty Ltd as Trustee

  • Shortened Case Name:

    Acqualine Pty Ltd as Trustee v Ponticello Properties Pty Ltd as Trustee

  • MNC:

    [2023] QCATA 140

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    06 Nov 2023

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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