G Plus Console Games Pty Ltd v McWell Investments Pty Ltd
[2011] QCAT 655
•20 October 2011
| CITATION: | G Plus Console Games Pty Ltd and Anor v McWell Investments Pty Ltd [2011] QCAT 655 |
| PARTIES: | G Plus Console Games Pty Ltd Ho Lau |
| v | |
| McWell Investments Pty Ltd |
| APPLICATION NUMBER: | RSL017-11 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 20 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Mr Ho Lau is joined as an applicant in these proceedings. 2. Mr Lau pay the sum of $1,100 to McWell Investments Pty Ltd within 28 days. |
| CATCHWORDS: | Retail Shop Lease – damage to premises – claim for abatement of rent – joinder of party Queensland Civil and Administrative Tribunal Act 2009, s 42 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Background
Mr Ho Lau leased a shop located at Kuraby from McWell Investments Pty Ltd. The written lease was dated 15 April 2010 and provided for monthly rent of $1,100 and a security bond in the amount of $1,100.
Mr Lau commenced these proccedings in the name of G Plus Console Games Pty Ltd seeking recovery of moneys paid under the lease. It appears the proceedings ought to have been commenced in Mr Lau’s name as the lessee.
Section 42 of the QCAT Act provides that the Tribunal may make an order on its own intitiative joining a person as a party to a proceeding if the Tribunal considers that the person should be bound by or have the benefit of a Tribunal decision.
I therefore order that Mr Ho Lau is joined as an applicant in these proceedings.
There was a fire at the shop on 10 January 2011. Mr Lau contends that the damage to the shop was such that he was unable to trade. Electricity was cut off on 11 January 2011.
Mr Lau’s and McWell Investments’ insurance loss adjustor attended at the shop on 17 January 2011.
McWell Investments contend that it was unable to arrange tradesmen to quote to repair the damage until Mr Lau’s damaged goods and stock had been cleared from the shop.
Mr Lau vacated the shop on 6 February 2011 and returned the key on 10 February 2011.
Mr Lau terminated the lease by notice given by email on 15 February 2011.
[10] Mr Lau claims return of the bond and rent paid but said to be unused for the period 10 January 2011 to 14 January 2011 on the basis that he was not able to operate his busines from the shop on and from 10 January 2011.
[11] McWell Investments has counterclaimed for an amount of $1,180, calculated as follows:
Rent payable until effective date of termination
(2 months –15 January 2011 to 14 March 2011 ) $2,200
Amount owing for costs to remove Mr Lau’s sign (cl35) $80
Sub-total $2,280
Less bond held $1,100
Amount claimed $1,180
[12] Clause 47(2) of the lease entitled Mr Lau to terminate the lease because the shop was seriously damaged by fire by giving one month’s written notice and stated “the Lessee may only have to pay a portion of the rental or may not have to pay rent for the period upon the mutual agreement between Lessor and Lessee”.
[13] Clause 35 of the lease required Mr Lau to remove any signs he erected before termination of the lease or within 14 days of termination where the lease was terminated suddenly by destruction. If Mr Lau failed to do so then McWell Investments was entitled to remove the sign and Mr Lau was required to reimburse the reasonable costs of doing so.
Discussion and decision
[14] Mr Lau contends that:
a)prior to or on or about 6 February 2011 Cindy Yau on behalf of McWell Investments agreed that he should vacate the shop;
b)he asked for a refund of the bond and unused rent when he returned the keys;
c)he ought not have to pay rent during the period of the fire damage if he cannot operate his business from the shop.
[15] Ms Yau:
a)denies any agreement to vacate the shop or to terminate the lease;
b)says that she requested Mr Lau to clear the debris so that McWell Investments could obtain quotes for repair. Mr Lau denies this;
c)says that Mr Lau attempted to negotiate with her to waive the rent for the period of the fire damage. Mr Lau denies this and says he referred to clause 47 of the lease;
d)denies that any mutual agreement was reached to abate the rent in whole or in part;
e)says that rent was paid up until 14 January 2011;
f)McWell Investments invoiced Mr Lau for rent for the period 15 January to 14 February 2011 and Mr Lau refused to pay it;
g)Mr Lau failed to remove signage from the awning and that it cost $80 to remove the sign on the front awning.
[16] Mr Lau gave evidence that there were negotiations prior to signing the lease in relation to abatement of rent in circumstances such as the fire and produced a draft lease which contained a clause 8 Abatement of Lessee’s financial obligations. The clause 47 in the draft lease referred to rights of termination where the premises were not capable of being used for a period in excess of 12 months from the date of the damage.
[17] The lease as signed did not contain any clause 8 but instead stated “N/A” and clause 47 had been amended to reduce the period from 12 months to one month from the date of damage and to include a concept of reducing the rent in whole or in part by mutual agreement.
[18] Clause 47 gives an entitlement to Mr Lau to terminate by one month’s written notice. Such a notice was given on 15 February 2011. The lease therefore terminated on 14 March 2011.
[19] There is no evidence that there was any written agreement to abate the rent.
[20] I am not satisfied that there was any verbal agreement between Mr Lau and Ms Yau on behalf of McWell Investments to abate the rent.
[21] Mr Lau’s evidence is that he asked Ms Yau and she asked him to refer her to the relevant clause in the lease. Thereafter he says he continued to seek a refund.
[22] Ms Yau’s evidence is that Mr Lau asked for a refund but that she never agreed to abate the rent. Ms Yau produced a number of emails. These are consistent with Ms Yau’s evidence that Mr Lau asked for but she did not agree to abate the rent.
[23] On the evidence before the Tribunal I find on the balance of probabilities that there is no mutual agreement and therefore Mr Lau is required to pay rent until the date of termination in the sum of $2,200. The bond of $1,100 ought to be applied in reduction of the amount owing.
[24] McWell Investments did not produce any evidence to support its claim for the cost of removing the sign. There is therefore insufficient evidence to order any amount be reimbursed to it under clause 35.
Orders
Mr Ho Lau is joined as an applicant in these proceedings.
Mr Lau pay the sum of $1,100 to McWell Investments Pty Ltd within 28 days.
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