Crema Espresso Leasing Pty Ltd v Grocorp Developments Pty Ltd - [2023] QCAT 281

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Crema Espresso Leasing Pty Ltd v Grocorp Developments Pty Ltd [2023] QCAT 281

PARTIES:

CREMA ESPRESSO LEASING PTY LTD ACN 165 916 334

(Applicant)

v

GROCORP DEVELOPMENTS PTY LTD ACN 151 679 364

(Respondent)

APPLICATION NO/S:

RSL133-19

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

10 July 2023

HEARING DATE:

15 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member Katter, Member Judge, and Member McBryde

ORDER:

1. The Applicant’s claims in the amended notice of dispute filed 11 January 2021 are dismissed.

2. The Applicant is to pay the Respondent the sum of $166,655.57 plus interest at the rate of 12.85% per annum from 18 June 2019 until the date of payment.

CATCHWORDS:

LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION - where the dispute is a retail tenancy dispute – termination of lease agreement - whether false or misleading statement or misrepresentation – whether notice to remedy breach is required – whether lease agreement abandoned - whether accrued right to claim rent and outgoings arrears - whether contractual entitlement to claim interest on rent and outgoings arrears

CONTRACTS – REPUDIATION AND NON-PERFORMANCE – whether finding of repudiation is reliant upon finding of breach

Acts Interpretation Act 1954 (Qld) s 48A
Property Law Act 1994 (Qld) s 124
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3
Retail Shop Leases Act 1994 (Qld) s 43AA, 46B, s 83(3)

Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85
Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd (2014) 45 VR 79; [2014] VSCA 32
Commercial Bank of Australia Ltd v Amadio (1983) 15 CLR 447
Commercial Banking Co of Sydney Ltd v RH Brown & Co (1972) 126 CLR 337
DTR Nominees Pty Ltd v Mona Homes Pty Ltd
(1978) 138 CLR 423
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (2020) 103 NSWLR 443
QUYD Pty Ltd v Marvass Pty Ltd (2009) 1 Qd R 41
Ryder v Frohlich [2004] NSWCA 472
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Wash Investments Pty Ltd & Ors v SCK Properties Pty Ltd & Ors [2016] QCA 258

Applicant:

B C O’Sullivan Counsel instructed by Twomey Dispute Lawyers

Respondent:

D V Ferraro Counsel instructed by MacGregor O’Reilly Nash

REASONS FOR DECISION

By amended notice of dispute filed 11 January 2021, the Applicant seeks compensation pursuant to section 43AA and 83(3) of the Retail Shop Leases Act 1994 (Qld) (“the RSL Act”). The Applicant also seeks a declaration pursuant to section 83(1) of the RSL Act that the Applicant was entitled to terminate the lease.
The Respondent filed an amended response and counter-claim dated 15 February 2021. The Respondent seeks an order that the Applicant pay to the Respondent amounts for rent arrears and outgoings and compensation for loss of rent.

Background

The Respondent owns a multi-tenanted site at 88…

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.

Keep reading for free

Create a free CaseChat account to read Crema Espresso Leasing Pty Ltd v Grocorp Developments Pty Lt... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QCAT 281
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to decide a dispute between Crema Espresso Leasing Pty Ltd (the Applicant) and Grocorp Developments Pty Ltd (the Respondent). The Applicant sought compensation for the alleged breach of the lease agreement by the Respondent, who owned a multi-tenanted site where the Applicant operated a coffee shop. The Applicant claimed that the Respondent breached the lease agreement by allowing another tenant to sell barista-made coffee, contrary to an exclusivity clause in the lease. The Applicant also sought a declaration that the lease was validly terminated. The Respondent, on the other hand, filed a counterclaim seeking payment of outstanding rent and outgoings, as well as compensation for loss of rent.

The Tribunal dismissed the Applicant's claims and ordered the Applicant to pay the Respondent the sum of $166,655.57 plus interest at the rate of 12.85% per annum from 18 June 2019 until the date of payment. The Tribunal found that the sale of barista-made coffee by another tenant did not constitute a breach of the exclusivity clause in the lease agreement. The Tribunal also found that the Applicant did not enter the lease agreement on the basis of any alleged misrepresentations by the Respondent, and therefore, there was no basis for a claim under section 43AA of the Retail Shop Leases Act 1994 (Qld). Furthermore, the Tribunal found that the Respondent's notice to remedy breach was ineffective as it did not provide a reasonable time for the Applicant to remedy the breach, and therefore, the purported termination of the lease by the Respondent was invalid. The Tribunal also found that the Applicant's purported termination of the lease in response to the Respondent's re-entry was ineffective as the Applicant was already in breach of the lease agreement by failing to pay rent.

The Tribunal found that the Respondent had an accrued right to be paid the arrears as set out in the notice, but the legal costs associated with the notice would not be awarded. The Tribunal also found that the right to payment of interest on the arrears was an accrued right under the contract, but the calculations of interest would be based on the total amount of arrears from the date of the notice to remedy to the date the payment is made.

Both parties sought costs, but the Tribunal found that neither party had achieved the order they sought, and therefore, each party would bear their own costs in proceedings before the Tribunal.

Orders