Beaumond v Shopping Centres Australasia Property Group Re Ltd

[2013] QCATA 69

CITATION: Beaumond and Anor v Shopping Centres Australasia Property Group RE Ltd and anor [2013] QCATA 69

PARTIES:	Mr Adrian Beaumond and Ms Deborah Smith t/as Mission Entertainment (Appellant)
V
Shopping Centres Australasia Property Group RE Ltd Jones Lang Le Salle (Qld) Pty Ltd (Respondent)

APPLICATION NUMBER: APL087 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 7 March 2013

DELIVERED AT: Brisbane

ORDERS MADE:     1.    The application for miscellaneous matters filed 6 March 2013 is dismissed.

CATCHWORDS: APPEAL - retail shop lease – where previous application for injunction – where appeal against that decision – where application for miscellaneous matters – whether arguable case – whether balance of convenience favours grant – where no undertaking as to damages

APPEARANCES and REPRESENTATION (if any):

The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Beaumond and Ms Smith operated a music and video hire business in Mission Beach Marketplace, which is owned by Shopping Centres Australasia Property Group RE Ltd and managed by Jones Lang La Salle.  Jones Lang La Salle terminated the lease on 4 December 2012. The tenants filed a notice of dispute under the Retail Shop Leases Act1994 on 1 February 2013. At the same time, they asked the Tribunal to order that the lessor observe the terms of the lease and allow them quiet enjoyment of the premises. In other words, they asked the Tribunal to issue an injunction stopping the lessor from taking action.

2. A member of the Tribunal dismissed the tenants’ application on 20 February 2013. They filed an application for leave to appeal that decision. They also filed an application to stay that decision and an application for miscellaneous matters. This decision deals with the application for miscellaneous matters. It is, in fact, an application for a stay of the first decision or another application for injunction. The tenants also seek relief against forfeiture.

3. Mr Beaumond and Ms Smith say that the lessor is taking action to remove their fittings from the shop. They say that the lessor is showing reckless disregard for their welfare and that it has deliberately acted to cause them loss and damage. They say that they have established a prima facie case and that they face immediate financial ruin if the lessor is not restrained.

4. The lessor says that, as the member found in the first application, Mr Beaumond and Ms Smith have not established a prima facie case. The lessor says that the balance of convenience does not favour the grant of an injunction. Finally, the lessor says that relief against forfeiture is final relief which is not available in an interim application.

5. The tenants’ primary submission, as I understand it, is that a lease was created when they took possession and the fact that the parties could not agree on all the terms does not mean that there is no lease agreement. The evidence suggests, however, that the tenants took possession on the basis of a licence, or month to month agreement, with the intention of negotiating a long term lease. The mere fact of occupation cannot, in my view, transform a short term agreement into something more substantial.

6. I can understand that parties may have agreed to a lease while some trivial terms were outstanding. But the evidence suggests that the parties were in disagreement about fundamental issues such as the term and the rent. Although only a preliminary view, I have difficulty agreeing with the tenants’ argument that a lease has been created.

7. If the tenants have no lease, then their occupation was always month to month. Their investment, and the value of their business, was always perilous. The lessor’s actions to remove the fittings would have a disastrous effect on a business that had a secure long term future. Because of my previous comments, I am not satisfied that it will have the same effect on Mr Beaumond and Ms Smith.

8. The lessor points out that Mr Beaumond and Ms Smith have made no undertaking as to damages. If Mr Beaumond and Ms Smith are correct and they do have a lease, and if they are correct in saying that the lessor’s difficulties with the centre are not related to any action they might be talking, then they should have no difficulty in offering an undertaking. The lessor raised the point before the Member in the earlier application. The tenants’ refusal to acknowledge the need for an undertaking, and to offer one in this application, is troubling.

9. The lessor has advised the Tribunal that it invited Mr Beaumond and Ms Smith to remove their stock and fittings.  The lessor has also pointed out that it will hold the stock and fittings for the tenants’ collection. The tenants’ assertion that their stock and fittings are being “tossed on the street” is inflammatory, unhelpful and wrong.

10. As the lessor rightly points out, relief against forfeiture is a final order. I will not deal with the issue in an interim application.

11. I am not presently persuaded that the tenants have a good arguable case. Their business was operating in premises for which they had no long term lease. Their stock and assets will be secured. They have not offered an undertaking as to damages. The application for miscellaneous matters is dismissed.