Gaindome Pty Ltd v Tomac

[2018] QCAT 152

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gaindome Pty Ltd v Tomac [2018] QCAT 152

PARTIES:

GAINDOME PTY LTD as trustee for the CRONAN FAMILY TRUST
(applicant)

v

MICHAEL JOHN TOMAC

(respondent)

APPLICATION NO/S:

RSL143-16

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

23 May 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

Michael John Tomac must pay Gaindome Pty Ltd as trustee for the Cronan Family Trust the sum of $6,192.49 by 4:00pm on the 29^th of June 2018.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – OTHER MATTERS – retail shop lease dispute – arears of rent – failure to reinstate – decision by default

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102

Retail Shop Leases Act 1994 (Qld)

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 23 March 2013, Gaindome Pty Ltd as trustee for the Cronan Family Trust (‘Gaindome’) entered into a retail shop tenancy agreement (‘the lease’) in a form adopted by REIQ with Michael John Tomac in respect to premises described as Shop 3, 758 Ann Street, Fortitude Valley (‘the premises’) for a term of three years expiring on 19 March 2016.

2. On 11 November 2016, Gaindome made an application for an order to resolve a retail tenancy dispute to the Tribunal.

3. On 18 July 2017, the Tribunal directed, among other things, that Mr Tomac file all witness statements and other documents relied on and that the matter be determined on the papers without oral hearing.

4. Mr Tomac was at that time also in breach of those directions and directions made on 11 November 2016, 21 December 2016, 7 March 2017 and 23 May 2017.

5. Mr Tomac has filed no material and did not attend the compulsory conference on 6 April 2017.

6. Gaindome relies on the affidavit of Stephen John Cronan, a director of Gaindome, filed on 26 July 2017. All documents relevant to this decision are attached to that affidavit.

7. I accept the evidence of Mr Cronan and make the following findings of fact:

   (a)On 23 March 2013, Gaindome and Mr Tomac entered a retail tenancy agreement in respect of the premises;

   (b)On 12 October 2016, Gaindome agreed to extend the expiry date of the lease until 27 October 2016 for the purpose of reinstatement of the premises for an additional amount of $1,592.27;

   (c)Gaindome re-entered the premises which Mr Tomac had then vacated;

   (d)Mr Tomac did not pay rent of $1,592.27 for the period of 13 October 2016 to 27 October 2016;

   (e)Mr Tomac did not reinstate the premises as required by clause 12 of the lease and did not return keys and left the premises in an untenantable condition; and

   (f)Gaindome reasonably had contractors undertake cleaning rubbish removal and reinstatement and replaced the locks. The works untaken and the charges for them supported by tax invoices are reasonable.

8. Gaindome’s claim is as follows:

   (a)Arrears of rent    $1,592.24

   (b)Property reinstatement costs    $4,284.55

   (c)Quoted costs for supply and installation of new floor $4,628.55

   (d)Recovery costs    $1,502.12

   (e)Total    $12,014.46

9. On the basis of my findings of fact I allow, as claimed, the arrears of rent and reinstatement costs.

10. I am not prepared to allow the quoted costs for repairing the floor. Clause 12 of the lease requires the tenant to keep the premises in good condition having regard to its condition on taking possession. Repairs due to fair wear and tear or events beyond the control of the tenant are excluded. There is insufficient evidence of the state of repair of the floor at the commencement of the tenancy, the nature of the damage which requires replacement or the cause of such damage.

11. In respect of recovery costs, I allow the QCAT filing fee of $315.70. In the absence of a costs provision in the Retail Shop Leases Act 1994 (Qld), each party must bear its own costs unless the Tribunal considers the interest of justice require it to make an order.[1] I am not satisfied here.

    [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(1).

12. Accordingly, I calculate the amount recoverable as follows:

    (a)Arrears   $1,592.24

    (b)Reinstatement   $4,284.55

    (c)Costs   $315.70

    (d)Total   $6,192.49