Browns Kitchen and Co Pty Ltd v Resinite Group Pty Ltd - [2024] QCAT 576

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Browns Kitchen and Co Pty Ltd v Resinite Group Pty Ltd [2024] QCAT 576

PARTIES:

BROWNS KITCHEN AND CO PTY LTD

(applicant)

v

RESINITE GROUP PTY LTD

(respondent)

APPLICATION NO/S:

RSL098-22

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

4 December 2024

HEARING DATE:

22 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Deane, Presiding Member
Member Judge

Member McBryde

ORDERS:

The Notice of Dispute is dismissed with no order as to costs.

CATCHWORDS:

LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – OTHER MATTERS – where claimed storm damage to leased premises – whether compensation owing under the terms of the lease

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – ALTERATIONS OR INTERFERENCE TO PREMISES – where legislation implies terms in lease – whether Lessor failed to repair premises within a reasonable time – whether compensation owing

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

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 42, s 43, s 44, s 55, s 56, s 63, s 83, s 102, s 103, Schedule Dictionary

Retail Shop Leases Regulation2016 (Qld), s 8, schedule 1

N.Q. Seafood Distributors Pty Ltd as Trustee v Shopping Centres Australasia Property Group Re Ltd [2019] QCAT 467

APPEARANCES & REPRESENTATION:

Applicant:

Mr M Brown, director

Respondent:

Mrs A Neville, director

REASONS FOR DECISION

Brown’s Kitchen and Co Pty Ltd (‘the Lessee’) lodged a Notice of Dispute[1] under the Retail Shop Leases Act 1994 (Qld) (‘the Act’) on 19 April 2022 in respect of a dispute involving restaurant premises at Toowong, which it leases from Resinite Group Pty Ltd (‘the Lessor’) pursuant to a lease commencing 1 September 2019 (‘the Lease’).
[1]Exhibit 1; Retail Shop Leases Act 1994 (Qld) (‘the Act’), s 55.
There is evidence before us that the Notice of Dispute was referred to mediation[2] however the parties failed to resolve the dispute and it was referred to the Tribunal for determination.[3]
[2]The Act, s 56.
[3]Ibid, s 63.
The parties were directed to file statements of evidence. Limited written evidence was filed. The Lessor says, and we accept, that its ability to respond has been limited by the lack of clarity of the Lessee’s claims and the basis for them.
The Lessee clarified that it claims compensation pursuant to clauses 9.6 and 15.1 of the Lease and section 43 of the Act following a significant weather event in late February 2022 (‘2022 weather event’), which it contends caused damage to the Premises.[4] It says that the damage to the Premises caused by the 2022 weather event resulted in the Premises being unfit for use, the Lessor’s delay in attending to the repairs to the Premises was unreasonable and this caused disruption to its business for which it should be compensated.
[4]Directions Hearing held 14 October 2024 and at the oral hearing on 22 October 2024.
The Lessee did not clearly quantify its claim. This resulted in the Tribunal being constituted as a panel of three members, in accordance with section 102(1) of the Act.
At the hearing, Mr Brown stated that the Lessee sought an order for compensation calculated as 100% abatement for rent and outgoings for the period 1 March 2022 to 15 July 2022, which he calculated as $33,302 (incl GST) less the partial abatement already provided by the Lessor, which he did not dispute was $15,170.25 (excl GST).[5] On this basis, on our calculation, the Lessee’s claim was for $16,614.72 (incl GST), an amount less than the QCAT prescribed amount.[6]
[5]On our calculation, $16,687.27 (incl GST).
[6]The Act, s 102(2), s 102(3).
The Lessee says that there have been structural issues with the Premises since 2020, and that the Lessor has failed to act. The Lessee did not clearly set out what those structural issues were said to be. It says that if the Lessor had acted on these issues the 2022 weather event water damage would have been prevented. It says it is not seeking loss of profit but compensation for its inability to access or use the Premises.
The Lessor denies that the Lessee is entitled to compensation. It says that it arranged for repairs to the Premises at the earliest opportunity having regard to demands on the building industry since it purchased the Premises and, in particular, having regard to demands on the building industry in Southeast Queensland after the 2022 weather event.
The Lessee’s documents raise various other disputes with the previous lessors, the Lessors and the property manager.[7] We clarified at the final hearing that no orders were sought in respect of those matters in this proceeding.
[7]Including disputes relating to a fence, claims for abatement of rent prior to the 2022 weather event, and claims that repair work has not been completed or completed satisfactorily.
The Lessee is the applicant and bears the onus of proving its claims on the balance of probabilities.
We are satisfied that the Tribunal has power to hear and decide the claim under section 43 of the Act because we are satisfied that:
(a)the Premises were used for the conduct of a retail business;[8]
(b)the Premises were a retail shop;[9]
(c)the Lease is a retail shop lease;[10]
(d)there exists a retail tenancy dispute;[11] and
(e)the parties have complied with the pre-proceeding mediation process.[12]
[8]The Act, s 5C; Retail Shop Leases Regulation 2016 (Qld), s 8, schedule 1.
[9]The Act, s 5B.
[10]Ibid, s 5A.
[11]Ibid, Schedule Dictionary, definition ‘retail tenancy dispute’.
[12]Ibid, s 63.
The Tribunal has jurisdiction to hear retail tenancy disputes except for certain excluded disputes, none of which are relevant to this dispute.[13]
[13]Ibid, s 103(1). The Notice of Dispute indicated at page 5 of 7 that the dispute was the subject of other proceedings. At the Directions Hearing on 14 October 2024 the parties clarified there were no other relevant proceedings.
The Tribunal may make orders it considers to be just to resolve a retail tenancy dispute, including an order for a party to pay an amount of compensation.[14]
[14]Ibid, s 83.
Many of the facts were not contested. It is not disputed that:
(a)the Lease was originally entered into by the Lessee with a previous lessor with an initial term of five years and that the Lease included options. The Lease is in respect of the whole of the land;[15]
[15]Exhibit 1, attached Lease, schedule, item 4.
(b)the Lessor purchased the Premises the subject of the Lease in about September 2021 and settlement occurred 13 November 2021;
(c)by email dated 1 February 2022 the Lessee sought a reduction of rent and outgoings by 33.33% until ‘all structural issues and subsequent damage relating to the outside courtyard are rectified’;[16]
[16]Exhibit 13, attachment M, p 5.
(d)by email dated 3 February 2022 the Lessee was asked to advise areas that may benefit from temporary responses while the Lessor was seeking quotes for more permanent solutions to the issues raised by the Lessee;[17]
[17]Exhibit 13, attachment M, p 3.
(e)on or about 14 February 2022 the Lessee raised issues with the condition of the Premises and acknowledged then current issues in the building trade;[18]
[18]Ibid, attachment A, pp 2-3.
(f)on 15 February 2022 the Lessor’s property manager advised that trades were to attend ‘this week and next’ to give quotes;[19]
[19]Ibid, attachment A.
(g)on 24 February 2022 a contractor was scheduled to inspect the Premises however the Lessee was unable to facilitate that inspection and another contractor was scheduled to attend on 25 February 2022;[20]
[20]Ibid, attachment L.
(h)in or about 24 to 28 February 2022 Southeast Queensland experienced a significant weather event;[21]
[21]Exhibit 3.
(i)on or about 2 March 2022 the Lessee reported damage to the Premises;[22]
[22]Exhibit 13, attachment K, 7a.
(j)by email dated 2 March 2022 the Lessor’s property manager requested a contractor to provide a quote for the required works to the Premises and acknowledged ‘further damage’ from the recent floods/rain;[23]
[23]Exhibit 4.
(k)the Lessee gave a Damage Notice dated 10 March 2022 pursuant to clause 15.1 of the Lease.[24] It states that the Premises are unfit due to water damage. It does not specify the damage or the areas of the Premises affected. It refers to the notice being in addition to the Notice to Remedy Breach of Covenant issued and dated 22 August 2021;[25]
[24]Exhibit 7.
[25]A copy of the 22 August 2021 Notice to Remedy Breach of Covenant is not in evidence before us. In any event such a notice was given to the previous lessor.
(l)on or about 11 March 2022 a contractor attended the Premises;
(m)on or about 15 March 2022 the contractor, who attended on 11 March 2022, prepared a quote for the performance of works at the premises.[26] No representative of the contractor gave evidence at the final hearing for either the Lessee or Lessor;
[26]Exhibit 13, attachment C. Exhibit 5 is a quote dated 28 March 2022, which other than the date is in the same or substantially the same terms. No party gave evidence as to any difference between the two quotes or any explanation for the different dates.
(n)on 5 April 2022 the Lessor’s property manager issued an Entry Notice to allow a contractor access to repair the damaged front door on 8 April 2022;[27]
[27]Exhibit 2, attachment 16.
(o)on 29 April 2022 the Lessor’s property manager issued an Entry Notice to allow the Lessor’s insurer’s adjustor to inspect on 5 May 2022;[28]
[28]Ibid, attachment 17.
(p)on 11 May 2022 the Lessor’s property manager issued an Entry Notice to allow the Lessor’s insurer’s adjustor to inspect on 13 May 2022 and to allow the carrying out of repairs;[29]
[29]Ibid, attachment 18.
(q)the Lessor engaged a contractor to perform roof replacement and repair work at the Premises. An unsigned and undated contract is in evidence before us;[30]
(r)on 26 May 2022 the Lessor’s property manager issued an Entry Notice to allow a contractor access to perform repairs from 7am on 3 June 2022 for a period of 4-6 weeks;[31]
(s)during March to July 2022, the monthly rent was $6,186.75 (including GST) and the monthly outgoings was $1,213.82 (including GST);[32]
(t)the Lessor provided a rent abatement in the amount of $15,170.25 (excluding GST) calculated as 50% rebate for March, April and May 2022 and 100% rent abatement for June 2022 and for 1– 6 July 2022;
(u)on or about 22 June 2022 the Lessee gave three Damage Notices dated 22 June 2022 pursuant to clause 15.1 of the lease;[33]
(v)Exhibit 8 states that the Premises are unfit due to water damage and states that it relates to the front main entrance room sub floor and attaches a photo of the area;
(w)Exhibit 9 states that the Premises are unfit due to water damage and states that it relates to the front main entrance room and attaches a photo of a wall-papered wall;
(x)Exhibit 10 states that the Premises are unfit due to water damage, that it relates to the Courtyard area, says that the area’s condition and its deterioration was originally reported to the lessor in 2020 and attaches four photos of what appears to be the ceiling;
(y)after the Lessor’s contractor finished its work in ‘dining room 1’ the Lessee engaged a contractor to perform additional works in relation to installation of floorcoverings at its costs;
(z)on 19 July 2022 a form 11 certificate of occupancy was issued following the roof replacement.[34]
[30]Exhibit 13, attachment D.
[31]Exhibit 2, attachment 20.
[32]Exhibit 6.
[33]Exhibits 8, 9 and 10.
[34]Exhibit 13, attachment E.
The contractor’s quotes dated 15 March and 28 March 2022 note that there is moisture in the sub-floor in ‘dining room 1’ and that it needs replacing but does not express a view as to what caused the moisture. The quotes also note that the front door is sinking and jammed which needs repair but does not express a view as to what caused the issue.
Neither party gave clear evidence as to when contractor(s) engaged by the Lessor performed repair work at the Premises.

Claims under the Lease

We are not satisfied that any compensation is owing by the Lessor to the Lessee under clause 9.6 or clause 15.1 of the Lease.

Is the Lessee entitled to compensation under Clause 9.6(1)?

We are not satisfied that any compensation is owing by the Lessor to the Lessee under clause 9.6 of the Lease.
Clause 9.6 (1) of the Lease is headed ‘Condition Precedent’ and provides:
Despite any term in this Lease or any law to the contrary, the Landlord is not legally responsible for any loss or damage suffered by the Tenant because the Landlord does or fails to do something relating to the Premises or Premises unless the Tenant gives the Landlord written notice to fix that act or omission and the Landlord unreasonably fails to do so.
The Lessee relies upon this clause. However, we are not persuaded that clause 9.6(1) provides a separate right to make a claim against the Lessor. In our view, it is a procedural provision, which requires the Lessee to give notice of a claimed breach of another provision of the Lease.
Other than clause 15.1 of the Lease the Lessee did not expressly rely upon any other clause in the Lease.

Is the Lessee entitled to compensation under clause 15.1?

We are not satisfied that any compensation is owing by the Lessor to the Lessee under clause 15.1 of the Lease.
Clause 15.1 of the Lease provides:
(1)     Substantially Unfit or Substantially Inaccessible
In this clause ‘Anyone Connected With The Tenant’ means an employee, agent, licensee, invitee, customer, visitor of the tenant or of any subtenant, licensee or other occupier claiming under the Tenant.
If the Premises or the Premises are damaged by an Insured Risk so that the Premises are substantially unfit for occupation and use by the Tenant or (having regard to the nature and location of the Premises and the normal means of access) are substantially inaccessible, then:
(a)Paragraphs (i), (ii) and (iii) below do not apply if the Tenant or Anyone Connected With The Tenant, caused the damage negligently or by a failure to act:
(i)annual rent and other amounts payable under this lease (except additional rent) are reduced in proportion to the nature and extent of the damage until the premises have been restored or made accessible.
(ii)Within 14 days of the damage occurring to the premises the tenant may give the landlord a written “damage notice” saying the premises are unfit or inaccessible. Within 31 days of getting the damage notice the landlord may give the tenant a “restoration notice” saying that the premises will be made fit for occupation, use and access by the tenant. If the landlord does not give a restoration notice, the tenant may terminate this lease by written notice to the landlord between 31 and 75 days after the landlord received the damage notice;
(iii)if the tenant gets a restoration notice but the landlord does not make a genuine effort or progress in fixing the access or the premises within a reasonable time, then the tenant may give the landlord a notice of intention to terminate this lease. If, after giving the tenants notice, the landlord does not act with reasonable speed and effort to fix the premises or access the tenant may terminate this lease. To terminate, the tenant must give the landlord at least one months written notice and at the end of that period this lease terminates.
(b)If in the landlord’s opinion that damage to the premises for the premises makes it impractical or undesirable to restore the premises or if the damage occurs less than 2 years before the expiration of term of this lease, the landlord may terminate this lease by giving one months notice in writing to the tenant;
the landlord is not legally responsible for the termination of this lease under cl.15.1(1)(a) or (b). Any termination under this clause does not affect the rights of either party regarding the previous breach of a term in this lease.
(2)     …
(3)     Resolution of Disputes
Any disputes arising under clause 15.1 (1) … will be decided by a member of the Valuers’ Institute or its successor appointed by the President for the time being of that Institute on the application of the Landlord or the Tenant. The appointed person will, in making their decision, act as an expert and not as an arbitrator and their decision will be final and binding on both Parties. The cost of the decision will be paid by either or both parties (and if by both Parties, in the proportion between them) as the person appointed decides.
Mr Brown confirmed that the only event relied upon under clause 15 was the 2022 weather event. He stated that the Lessee issued the June 2022 notices because repairs had not been completed. Clause 15 of the Lease contemplates Damage Notices being given within 14 days of the claimed damage occurring. The three notices given in June 2022 were given outside of the 14-day period.
During the hearing we sought submissions in relation to whether clause 15.1(3) of the Lease affected the Tribunal’s power to make orders for compensation under clause 15.1(1) in this matter. Neither party was legally represented. The parties were not able to make meaningful submissions.
Clause 15.1(3) is in mandatory language. It uses ‘will be decided’ and the ‘decision will be final and binding on both Parties.’ This may exclude the Tribunal’s power to assess the applicable compensation.
For reasons set out below, it is not necessary to decide whether it does exclude the Tribunal’s power to order an abatement under clause 15.1(1).
Insured risk is defined to mean:
the risks the landlord is required by this lease to insure and any additional risks against which the landlord takes insurance relating to the Building.
Clause 9.7 of the Lease provides:
The Landlord will insure the Building against:
(1)     fire;
(2)     lightning;
(3)     impact by aircraft;
(4)     earthquake;
(5)     explosion;
(6)     impact by vehicles and animals;
(7)     malicious damage other than by persons in or about the building with the actual or implied consent of the tenant any subtenant or licensee;
(8)     rainwater;
(9)     storm and/or tempest,
in broad cover form with repair and replacement terms on terms and conditions reasonable in the market at the time insurance is taken out. The obligation to insure against any risk is conditional upon insurance for that risk being available from reputable insurers at reasonable rates.
The Lessor denies that the damage was caused by an Insured Risk. The property manager communicated that denial to the Lessee by emails dated 16 August 2022[35]and 27 September 2022.[36]
[35]Exhibit 13, attachment H.
[36]Ibid, attachment I.
There is no report or correspondence from the Lessor’s insurer or insurance adjustor in evidence, in particular, following the inspections scheduled for 5 May 2022 and 13 May 2022 as to the cause of the damage inspected and whether or not the Lessor’s building insurance responded to the damage.
Mrs Neville gave oral evidence that the Lessor’s claim against its insurer was declined on the grounds that the insurer decided that the damage assessed was caused by wear and tear. Further she said that the lack of clarity of the Lessee’s claims meant that they were not aware that such correspondence may be relevant.

The Lessee did not file a statement of evidence or a report from a relevant expert as to the cause of the claimed damage. It relied upon some photographs and a quote[37] from the contractor engaged by the Lessor to perform work. The Lessee did not file a statement of evidence which clearly explained what damage was said to have occurred nor clear evidence as to what the photographs were said to demonstrate. The March 2022 damage notice did not clearly explain what damage was claimed.
[37]Exhibit 5.
Even if we accepted that the Tribunal has power to make orders for compensation under clause 15 of the Lease, about which there is doubt, there is insufficient evidence before us for us to be satisfied:
(a)of the nature and extent of the damage claimed;
(b)of the cause of that damage; and
(c)that the cause of that damage was an ‘Insured Risk’.
Even if we accepted that the damage was caused by an Insured Risk there is insufficient evidence before us to be satisfied that the Premises were substantially unfit for occupation and use by the Lessee or that the damage caused the Premises to be substantially inaccessible.
An issue in dispute in the proceeding was the extent to which the Lessee had been able to trade. The Lessee claims that the main and only customer entrance to the Premises was affected by the 2022 weather event. There is no documentary evidence before us of the layout of the Premises and its entrance(s). The copy of the Lease in evidence before us does not contain a sketch plan showing the layout.
There is some evidence before the Tribunal that the Lessee was ordinarily available or open for trade seven days per week either through its regular restaurant hours or for catering or private events. The Lessor says that one out of the three dining areas was affected by storm damage and that no significant damage to the kitchen, bathrooms, storage or outdoor areas were reported.
During the oral hearing Mr Brown:
(a)acknowledged that the kitchen was not affected by the claimed damage;
(b)denied that in 2022 the Lessee offered takeaway or was licensed for outside catering;
(c)pointed to photographs filed which he said showed that the Lessee had moved furniture from the water damaged front room to the other internal dining room, which rendered them both incapable of use;
(d)said that it would not be acceptable for customers to enter the restaurant through the damaged room to access other areas.
The Lessee did not file a copy of its food service licence showing its conditions.
The Lessee did not clearly explain how the access issue affected all aspects of its business. There was no evidence before us clearly explaining that there was no alternative storage options for furniture other than the other internal dining room.
The Lessee did not file any clear written evidence in relation to the impact of the claimed damage on its trading. There was no forensic accounting evidence filed nor any documentation in relation to its trading during the period 1 March – 15 July 2022. There was no evidence filed in relation to whether the Lessee had relevant insurance, and, if so, whether it had made a successful claim in respect of the 2022 weather event.
There is insufficient evidence before us to find that the nature and extent of the damage prevented any use by the Lessee of the Premises for the whole period of 1 March to 15 July 2022.
It is possible that the Lessee’s ability to access the Premises to trade was entirely prevented by the damage claimed. However, there is insufficient evidence before us to be satisfied on the balance of probability that it was.
The Lessee has not proved its claim under clause 15.1.

Claims under the Act

We are not satisfied that any compensation is owing by the Lessor to the Lessee under section 43 of the Act.
A retail shop lease is taken, relevantly, to include sections 43 and 44.[38]
[38]The Act, s 42(1).
Section 43 of the Act provides:
(1) 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—
(a)substantially restricts the lessee’s access to the leased shop; or
(b)takes action (other than action under a lawful requirement) that substantially restricts, or alters—
(i)access by customers to the leased shop; or
(ii)the flow of potential customers past the shop; or
(c)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
(d)does not have rectified as soon as is practicable—
(i)any breakdown of plant or equipment under the lessor’s care or maintenance; or
(ii)any defect in the retail shopping centre or leased building containing the leased shop, other than a defect due to a condition that would have been reasonably apparent to the lessee when the lessee entered into the lease or, for a lessee by way of assignment of the lease, when the lessee accepted the assignment; or
(e)neglects to clean, maintain or repaint the retail shopping centre or leased building containing the leased shop or the part of the centre or building that, under the lease, is the lessor’s responsibility; or
(f)causes the lessee to vacate the leased shop before the end of the lease or renewal of it because of the extension, refurbishment or demolition of the retail shopping centre or leased building containing the shop.
(2) The lessee must give the lessor written notice of the loss or damage mentioned in subsection (1) as soon as practicable after it is suffered.
(3) If the lessee fails to give the lessor the notice, the failure does not affect any right of the lessee to compensation but must be considered when deciding the amount of compensation payable under section 44.
The Lessee has not clearly identified under which limb of section 43 it seeks to claim. At the hearing Mr Brown confirmed that he had not given a notice which specifically referenced it being given under section 43 of the Act.
Section 44 of the Act provides that if the parties cannot agree on the amount of compensation payable the amount is to be decided by way of the dispute resolution process.
The Act defines dispute resolution process to mean a mediation process or the hearing of a retail tenancy dispute by the Tribunal.[39]
[39]The Act, Schedule Dictionary, definition ‘dispute resolution process’.
The Lessee did not file any written evidence clearly setting out the respects in which it said that the Lessor’s actions fell within the terms of section 43.
There are references in the documents to the Lessee claiming that there were issues with the condition of the Premises prior to the 2022 weather event. There is no building report setting out what the issues were prior to the 2022 weather event, nor a building report which clearly indicates why the various work was required i.e. whether required because of damage by the 2022 weather event or whether they were repairs for which the Lessor was responsible.
The Lease imposes an obligation on the Lessee to repair the Premises except where the damage is caused by fair wear and tear or an Insured Risk for which insurance is recoverable.[40]
[40]Lease, clause 7.2.
Mrs Neville gave oral evidence that the Lessor obtained a building and pest inspection report prior to settlement, which indicated that some work was required, and that the Lessor was in the process of obtaining quotes for that work, when the 2022 weather event occurred. A copy of that report is not in evidence before us.
There is written evidence before us that the Lessor had taken some steps to have work performed to the Premises prior to the 2022 weather event. The evidence is that the Lessor:
(a)had sought a quote from a builder for the works identified in the building and pest inspection report prior to settlement and that the quote was received in mid- January 2022;[41]
(b)on 3 February 2022 requested its property manager to recommend ‘good quality, reasonable builders’ and had also sought a recommendation from the building and pest inspector;[42]
(c)on 8 February 2022 requested its property manager to recommend builders;[43]
(d)had instructed its property manager to obtain quotes for work to the Premises before the 2022 weather event occurred and appointments had been scheduled.[44]
[41]Exhibit 13, Attachment M, p 5.
[42]Ibid, p 4.
[43]Ibid, p 3.
[44]Ibid, attachment A.
Mrs Neville also gave oral evidence that the Lessor had obtained a second quote for work to the Premises from another contractor, which was received in April 2022. A copy of that quote was not in evidence before us. The Lessor gave evidence that it sought the assistance of its insurer’s building contractors to attempt to secure a contractor to perform work to the Premises.
The Lessor filed a document by the Master Builders Queensland, which provides some evidence of the high demand for trades in Queensland in 2021.[45] In mid- February 2022, the Lessee acknowledged issues with the building industry and contractors’ forward books of work.
[45]Exhibit 13, attachment B.
The Lessor says, and we accept, that the 2022 weather event is likely to have added to the demand for trades and the availability of trades is likely to have affected its ability to respond to requests by the Lessee for work to be performed more quickly.
There is no evidence before us, by a suitably qualified person, upon which we could rely to find that:
(a)any damage which occurred because of the 2022 weather event would have been prevented by repairs, which the Lessor ought to have carried out prior to that time;
(b)the Lessor failed to address issues raised by the Lessee, which were the Lessor’s responsibility under the Lease, within a reasonable time frame in the circumstances facing the Lessor, which includes that it became the Lessor in November 2021, and the availability of building contractors to quote and perform the work.
The Lessee did not file any written evidence in relation to the effect of the claimed contravention of section 43 on its trading. As previously noted, there was no forensic accounting evidence filed nor any documentation in relation to the Lessee’s income during the period 1 March – 15 July 2022 and there was no evidence in relation to any relevant insurance held by the Lessee.
The Lessor provided to the Lessee some rent abatement.
The Tribunal has previously found that:[46]
Section 43 does not, however require any fault or wrongdoing on the part of the lessor. A decision made by a lessor which has the effect of altering traffic flow to the detriment of a lessee may give rise to a claim for compensation even if the need for a decision arises through no fault of the lessor and the decision is the only practical commercial response it could make. The potential claim is a factor in the commercial decision itself.
That said, section 43(1)(b) does require that the substantial restriction to access or traffic flow arises from some “action” on the part of the lessor.
[46]N.Q. Seafood Distributors Pty Ltd as Trustee v Shopping Centres Australasia Property Group Re Ltd [2019] QCAT 467, [83] – [84].
Even if we were satisfied that section 43 applies, about which there is doubt, by reason of the Lessor:
(a)substantially restricting the Lessee’s access to the Premises; or
(b)taking action that substantially restricted or altered access by customers to the Premises; or
(c)taking action that caused significant disruption to the Lessee’s trading or by not taking all reasonable steps to prevent or stop significant disruption within the Lessor’s control; or
(d)not having rectified as soon as is practicable any defect in the Premises; or
(e)neglecting to maintain the Premises, to the extent that such maintenance is the Lessor’s responsibility under the Lease,
we are not satisfied that the compensation already allowed is not reasonable.
Having regard to lack of specific notice of a claim under section 43 and the state of the evidence as to the extent of the impact on the Lessee’s trading, we find that there is insufficient evidence for us to be satisfied that additional compensation for loss or damage ought to be ordered.
The Lessee has not proved its claim under section 43 of the Act.

Costs

At the conclusion of the hearing, we enquired whether any party wished to seek costs against the other[47] and therefore whether they wished to make submissions on the issue of costs once our decision was published. Both parties advised us that they did not intend to seek their costs.
[47]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102.
It is, therefore, appropriate to order that there be no order as to costs.