Gleave v Ingleton
[2010] QCAT 541
•3 November 2010
| CITATION: | Gleave v Ingleton [2010] QCAT 541 |
| PARTIES: | Paul Gleave |
| v | |
| Mr Barry Edward Ingleton C/ Joanne Dunn Korda Mentha |
| APPLICATION NUMBER: | RSL065-10 |
| MATTER TYPE: | Retail shop lease matters |
| HEARING DATE: | Decision on the Papers |
| HEARD AT: | 3 November 2010 |
| DECISION OF: | Ms Anne Forbes |
| DELIVERED ON: | 3 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1 It is declared that: (a) The Applicant lawfully terminated his lease of Shop 12B in the Spring Lake Metro centre, Centenary Highway, Springfield Lakes, Queensland, on 5 July 2010. (b) The Applicant is not indebted to the Respondent in the amount of $34,044.34, or any amount, under or with respect to the said lease. 2. No order as to costs. |
| CATCHWORDS : | Retail shop lease – implied term – breach – false or misleading statement or misrepresentation – s 43(2)(a) Retail Shop Leases Act 1994 – declaration sought – jurisdiction under enabling Act – Queensland Civil and Administrative Tribunal Act 2009 does not derogate. |
APPEARANCES and REPRESENTATION (if any):
Decision was made on the papers without parties being present.
REASONS FOR DECISION
This is an application under the Retail Shop Leases Act 1994 (“the RSL Act”), lodged on14 July 2010, seeking declarations that a retail shop lease was validly terminated, and that no moneys are owing under that lease. Jurisdiction to grant declaratory relief in proceedings under the Act is not affected by the incorporation of the former Retail Shop Leases Tribunal in the Queensland Civil and Administrative Tribunal: QCAT Act ss 7, 60(4); Retail Shop Leases Act 1994 s 83(1); Spring Lake Garden Centre Pty Ltd v Ingleton [2010] QCAT 171.
The subject premises are Shop 12B in the Spring Lake Metro centre, Centenary Highway, Springfield Lakes. On 30 March 2006 and 31 March 2006 respectively the Respondent as lessor and the Applicant as lessee executed a lease in Form 7, as prescribed by the Land Title Act 1994. On 31 March 2006 the parties and Leanne Gleave, wife of the Applicant, signed a deed entitled “Agreement for Lease”, whereby Leanne Gleave guaranteed the Applicant’s due performance of the said lease.
On 15 September 2005, prior to the signing of the lease and guarantee, the Respondent delivered to the Applicant an Offer to Lease, and a brochure entitled “Spring Lake Metro Premium Designer Lifestyle Centre” (both of which are in evidence) which contained these representations:
(a) “Careful attention has been paid to the mix of the centre to ensure that prestige is maintained. Deluxe Specialty Stores, Tasteful Restaurants, Retail Boutiques, Club Studio Apartments and Attractive Showrooms are just some of the tenant categories the centre will comprise of [sic];
(b) The said documents described “Premium Food Markets”, cafes, and a “Cereal and Juice Bar”, apt to attract daytime customer traffic to the Applicant’s premises; and advertised -
(c) “Grand Opening April/May 2006”.
It is alleged that every one of the above three representations was a material representation, and/or a false and misleading statement, in that:
(a) Spring Lake Metro did not, at any material time, feature any businesses properly described as “Deluxe Specialty Stores” or “Retail Boutiques”, and at time of making the said representations, the Respondent had not secured tenants for the majority of the shops in the Centre, and therefore did not know what the ultimate tenant mix would be;
(b) The business described were not present at the Centre at any material time; and
(c) While the Centre was opened progressively the ”Grand Opening” event was repeatedly cancelled and never in fact took place.
The applicant says that the above representations induced him to enter into the lease, and that, absent the representations that the tenant mix would be such as to attract daytime customer traffic interested in goods offered for sale by the Applicant, the Applicant would not have executed the lease.
The Applicant also alleges that the lease is deficient or defective in several respects, detailed in Paragraphs 2-5 of the Annexure to the Notice of Dispute, but in the circumstances it is not necessary to examine that issue.
The Applicant took possession of the premises in January 2007, fitted them out, and began to trade.
In April 2009 the Respondent became bankrupt and Grant Sparks and Ray Richards of PPB Australia (“the Receivers”) were appointed by the Respondent’s trustee in bankruptcy as receivers and managers of Spring Lake Metro centre.
On 24 June 2010 the receivers, by their solicitors, served a notice in Form 7 of the Property Law Act 1974 upon the Applicant, and a formal demand upon Leanne Gleave, as the Applicant’s guarantor, for payment of $34,044.34 by 16 July 2010.
10.On 5 July 2010 the Applicant, by letter to the receivers, purported to terminate the lease for the misrepresentations alleged above, and sought an undertaking that no attempt would be made to recover $34,044.34, or any part thereof, from the Applicant or from Leanne Gleave. In response, the receivers alleged that the Applicant wrongfully repudiated the lease, and declined to give the undertakings demanded.
11.On 20 August 2010, by letter to the Tribunal, the receivers advised that they would take no part in these proceedings.
12.On 3 September 2010, by letter to the Tribunal, the Respondent’s trustee in bankruptcy advised that she, too, had no interest in these proceedings.
13.No material has been filed by the Respondent, by his trustee in bankruptcy, or by the receivers, in answer to the Applicant’s allegations and claim for declaratory relief. By an affidavit sworn on 15 October 2010 the Applicant verifies the allegations in his Notice of Dispute, including his claims of misrepresentation. I accept that undisputed evidence.
14.While the claim for arrears of rent in the Respondent’s Notice to Remedy Breach of Covenant predates the Applicant’s notice of termination by more than 2 years, the Respondent’s trustee, as noted above, has abandoned any claim to arrears. The Applicant, for his part, makes no claim for compensation under s 43(2)(a) of the RSL Act.
15.I am satisfied that the Respondent, trustee and receivers have all been duly served with the Notice of Dispute, and that, in default of their appearance, the Tribunal may proceed ex parte: s 61(1)(c) of the QCAT Act.
16.I find that the Applicant was induced to enter the lease by the misrepresentations set out above, and that he was lawfully entitled to terminate, and did terminate the subject lease on 5 July 2010. Accordingly, I am prepared to make the declarations sought on the Applicant’s behalf. So far as the application for a declaration in favour of the guarantor is concerned, she is not a party to these proceedings. However, a declaration that the Applicant owes nothing under the lease necessarily implies that no claim may be made against her in relation to the lease.
ORDERS:
It is declared that:
a) The Applicant lawfully terminated his lease of Shop 12B in the Spring Lake Metro centre, Centenary Highway, Springfield Lakes, Queensland, on 5 July 2010.
b) The Applicant is not indebted to the Respondent in the amount of $34,044.34, or any amount, under or with respect to the said lease.
No order as to costs.
0
1
0