Bruno Delights Pty Ltd v Alexiadis - [2014] QCAT 88

CITATION:

Bruno Delights Pty Ltd v Alexiadis [2014] QCAT 88

PARTIES:	Bruno Delights Pty Ltd (Applicant)
v
Mr George Alexiadis (Respondent)

APPLICATION NUMBER:

RSL007-13

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

22 October 2013 and 6 December 2013

HEARD AT:

Brisbane

DECISION OF:

Member Allen
Member Judge
Member Macrae

DELIVERED ON:

13 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Alexiadis is ordered to pay Bruno Delights the amount of $20,889.57 within 14 days of the date of this order.

CATCHWORDS:

RETAIL LEASE DISPUTE – claim for compensation by former tenant – breach of covenant for quiet enjoyment by lessor – tenant unable to remove their property from premises – claim for rent following termination
Retail Shop lease Act s 42, 43

Kenny v Preen [1963] 1 QB 499
Shevill v Builders Registration Board (1982) 149 CLR 620
Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185
Curtin v Meadlow Holdings Pty Ltd [2001] QCA 145

APPEARANCES and REPRESENTATION:

APPLICANT:

Mr Alati, director appeared for Bruno Delights Pty Ltd

RESPONDENT:

Mr Alexiadis was self-represented

REASONS FOR DECISION

Bruno Delights was the tenant of premises at 53 Johnston Street, Southport of which Mr Alexiadis was the Landlord under a lease dated 15 June 2012. The lease was to commence on 2 July 2012 with a term of 7 years. The premises were be used as take away shop selling amongst other things kebabs. The tenancy did not last through July and Bruno Delights has made claim for compensation and damages in respect of what it alleges was the wrongful termination of the lease on 27 July 2012. The ultimate claim was for $40,510.17 including legal costs of $5,050.00.
Bruno Delights made three payments to Mr Alexiadis. The first on 15 June 2012 in the amount of $15,000 being for Bond $7,850 and the first month’s rent $7,150. The second was paid on 29 June 2012 in the amount of $5,000 pursuant to an invoice issued by Mr Alexiadis for monies which were claimed to be due for insurances (1 year in advance); rates (1 year of rates in advance), gas, bank fees, pizza trays, packaging expenses and other miscellaneous expenses. A further amount of $1,279.40 was paid on 29 June 2012 to Mr Alexiadis to cover a cheque payment he made to one of the suppliers to the business, Total Packaging. Bruno Delights became aware that this payment had not been credited as they received a statement from the company showing the amount was still owing on 9 July 2012.
The amount of $5,000 paid by Bruno Delights was in response to an invoice dated 27 June 2012 from Mr Alexiadis. The invoice was untotalled but the items totalled $7,858.19 for:-
Chattel insurance  $1,820.00
Building insurance  950.16
Rates  1,200.00
Gas  693.78
Registration fee
Bank approval and fees  800.00
Pizza trays  196.00
Schweppes  654.75
Carter Lester lawyers  165.00
Chattel registration  70.00
Chemicals (comm.kitchen)  162.86
Global  73.82
Right bag packaging  1,071.77
The Tribunal notes that the outgoings set out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCAT 88
Decision Date: 13 March 2014

CaseChat Overview and Summary

Bruno Delights Pty Ltd, the plaintiff, sought compensation from Alexiadis, the defendant, for breach of the covenant for quiet enjoyment in a retail lease. The dispute arose from the defendant's alleged interference with the plaintiff's ability to conduct their business, which led to the termination of the lease. The plaintiff claimed they were unable to remove their property from the premises, and they sought compensation for the loss of rent following the termination of the lease. The case was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the defendant breached the covenant for quiet enjoyment and if such a breach was the reason for the plaintiff's inability to remove their property from the premises. Furthermore, the court had to consider whether the plaintiff was entitled to compensation for the loss of rent following the termination of the lease. The court had to examine the terms of the lease agreement and the conduct of the parties to establish whether the defendant's actions constituted a breach of the covenant for quiet enjoyment.

The court found that the defendant breached the covenant for quiet enjoyment by interfering with the plaintiff's ability to conduct their business. The interference led to the plaintiff's inability to remove their property from the premises, resulting in the termination of the lease. The court held that the plaintiff was entitled to compensation for the loss of rent following the termination of the lease. The court ordered the defendant to pay the plaintiff the amount of $20,889.57 within 14 days of the date of the order.

Orders

Orders of the court

1. Mr Alexiadis is ordered to pay Bruno Delights the amount of $20,889.57 within 14 days of the date of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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