Eugene Choi v Mee Wah To

CITATION: Choi v To [2011] QCAT 495

PARTIES:	Eugene Choi
v
Mee Wah To

APPLICATION NUMBER:   RSL047-10   

MATTER TYPE: Retail shop leases matters

HEARING DATE:     15, 16 September 2011

HEARD AT:  Brisbane

DECISION OF: Ms Anne Forbes, Presiding Member
Ms Sandra Kairl, Member
Ms Don McBryde, Member

DELIVERED ON: 13 October 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

[1]     It is declared that by the lease instrument dated 28 September 2009 the Respondent leased to Ms Choi the premises therein described as having an area of 148 square metres, being the area delineated in the survey plan annexed to the lease.

[2]     It is further declared that Ms Choi is not liable to pay to Ms To the sums of $544.50 and $495 for legal fees claimed in tax invoice No 2709 from DB Realty to Eugene Choi dated 16 April 2010.

[3]     It is further declared that the Notice to Remedy Breach of Covenant dated 17 May 2010 issued by the Respondent to Ms Choi is invalid and does not entitle the Respondent to forfeit the lease.

[4]     The Respondent shall forthwith do all such things as are necessary to deliver up to the Applicant possession of all the 148 square metres demised by the lease dated 28 September 2009, more particularly described as Lot 5 on SP116032 County Stanley Parish Enoggera Title Reference 50335423 that part of the ground floor of the Building erected on the Land as more particularly shown on the plan annexed and hatched in black (“the demised area”).

[5]     The Respondent, her servants and agents are ordered not to interfere with the Applicant’s exclusive possession and quiet enjoyment of the whole of the demised area.

[6]     Within 28 days of the date of this order, the Respondent shall pay to the Applicant the sum of $10,000 by way of compensation for her failure to allow quiet possession of the whole of the demised area.

[7]     Within 28 days of the date of this order the Respondent shall repay to the Applicant the sum of $495 together with interest at the rate of 10% per annum from the date of the Respondent’s receipt of the said sum to the date of repayment thereof.

CATCHWORDS:

Where the Respondent leases retail premises to the Applicant – lease is registered – where demised premises are defined by a plan attached to the lease and hatched in black – where Respondent claims plan attached does not reflect area agreed to be leased – where Respondent alleges common mistake and seeks declaratory orders requiring Applicant to enable changes to the lease to be made – where the Applicant seeks declaratory orders inter alia confirming her title

HELD: No operative mistake – alternatively, no evidence of fraud or any action or omission by Applicant led to any mistake – negligence of Respondent or her agents in instructing solicitors – claim by Respondent that she signed lease without reading and never meant to demise premises described therein – evidence not “clear and convincing”…