Café Cinnamon v O'Brien - [2013] QCAT 364

CITATION:

Café Cinnamon v O’Brien [2013] QCAT 364

PARTIES:	Theresa Maria Kellas trading as Café Cinnamon (Applicant)
v
Alan O’Brien (Respondent)

APPLICATION NUMBER:

RSL044-12

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

8 May 2013

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Presiding Member
Sandra Kairl, Member
Malcolm Macrae, Member

DELIVERED ON:

13 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That Alan O’Brien pay to Theresa Maria Kellas the sum of $979.18 within 14 days of these orders.

2. The claims and counter-claims are otherwise dismissed.

CATCHWORDS:

RETAIL SHOP LEASE MATTERS - where claim for compensation relating to proposed sale of business - where no contract of sale with proposed purchasers - where no allegations amounting to unconscionable conduct - where lessor entered into lease with another person introduced by lessee and as agreed with lessee

Retail Shop Lease Act 1994 ss 42, 43, 46A, 46B, 50, 83.

Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Theresa Kellas

RESPONDENT:

Mr Alan O’Brien

REASONS FOR DECISION

Ms Kellas briefly operated a coffee shop called the Café Cinnamon. She leased premises, in which she ran the business, from Mr O’Brien. Although she purchased the coffee shop business as an ongoing concern, she and Mr O’Brien entered into a new lease at the time she bought the business. The lease commenced on 20 December 2011 and was to terminate on 19 September 2013, subject to an option for a further 3 years. However, after a very brief period of some 42 days in the business, Ms Kellas advised Mr O’Brien that the business was not going well.
Shortly afterwards, she advised him that she had two parties interested in leasing the premises, one who may be interested in purchasing the business from her and operating the coffee shop, and the other who wanted to turn the premises into a book shop.
Ultimately, the sale of the coffee shop business did not proceed. By agreement between Ms Kellas and Mr O’Brien, Ms Kellas was released from the obligations of the lease and Mr O’Brien entered into a new lease for the premises with the bookshop owner. The Agreement to cancel the lease was executed on 15 March 2012.
The parties acknowledge that the bond monies of $2,136 held under the lease by Mr O’Brien have not been repaid. Further they agree that Ms Kellas owes to Mr O’Brien for rates in the amount of $273.40; and that Mr O’Brien owes Ms Kellas a credit for water charges in the amount of $291.58. Mr O’Brien has retained the full amount of the bond on account of these amounts, less the cost ($1,175) of replacing a plate-glass window which was broken during Ms Kellas’ tenancy and the costs ($1,054.50) of sealing off a grease trap in the tenancy after the coffee shop ceased to operate which he has paid. On his calculation, Ms Kellas owes him $75.32.
Ms Kellas filed a notice alleging retail tenancy disputes…

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: [2013] QCAT 364
Decision Date

CaseChat Overview and Summary

Theresa Maria Kellas, trading as Café Cinnamon, brought a claim against Alan O'Brien in relation to a retail tenancy dispute. Ms Kellas had leased premises from Mr O'Brien, in which she ran her coffee shop business. Although she had purchased the coffee shop business as an ongoing concern, she and Mr O'Brien entered into a new lease at the time she bought the business. After a brief period of operation, Ms Kellas advised Mr O'Brien that the business was not going well and that she had two parties interested in leasing the premises. Ultimately, the sale of the coffee shop business did not proceed. By agreement between Ms Kellas and Mr O'Brien, Ms Kellas was released from the obligations of the lease and Mr O'Brien entered into a new lease for the premises with the bookshop owner.

The Tribunal had to decide on various issues, including whether Ms Kellas was entitled to compensation relating to the proposed sale of her business and whether there were any withholdings of information at the time the lease was entered into. The Tribunal also had to consider whether Mr O'Brien had engaged in unconscionable conduct and whether Ms Kellas was entitled to the return of her bond monies. The Tribunal found that Ms Kellas was not entitled to compensation relating to the proposed sale of her business as there was no contract of sale with the proposed purchasers and no allegations amounting to unconscionable conduct. The Tribunal also found that the lessor had entered into a lease with another person introduced by the lessee and as agreed with the lessee.

The Tribunal ordered that Mr O'Brien pay to Ms Kellas the sum of $979.18 within 14 days of the orders. The claims and counter-claims were otherwise dismissed. The Tribunal made this decision based on the evidence presented by both parties and the relevant legislation, including the Retail Shop Lease Act 1994. The Tribunal found that Ms Kellas had not established her claim to the reasonable satisfaction of the Tribunal and that she was responsible for the de-fit costs.

Orders