Gold Tips (News) pty Ltd trading as Mt Ommaney News v AMP Life Ltd
[2011] QCAT 494
•25 July 2011
| CITATION: | Gold Tips (News) Pty Ltd v AMP Life Ltd [2011] QCAT 494 |
| PARTIES: | Gold Tips (News) Pty Ltd trading as MT Ommaney News |
| v | |
| AMP Life Ltd |
| APPLICATION NUMBER: | RSL015-11 |
| MATTER TYPE: | Retail shop leases matter |
| HEARING DATE: | 18 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Anne Forbes, Member |
| DELIVERED ON: | 25 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The application for compensation under section 43(2) of the Retail Shop Leases Act 1994 is dismissed. [2] The application for compensation under section 43(1) of the Retail Shop Leases Act 1994, to the extent that it relates to the lease from AMP to Gold Tip which ended on 3 February 2010, is struck out. [3] This proceeding is referred to a directions hearing, to be held on 9 August 2011, to determine procedure in Gold Tip’s claim under s 43(1) of the Retail Shop Leases Act 1994, in so far as that claim relates only to the lease from AMP to Gold Tip which commenced on 4 February 2010. [4] Gold Tip shall pay to AMP by way of costs, the sum of $1,500, within 28 days of the date of this decision. |
| CATCHWORDS: | Application to strike out or dismiss proceedings – where no reasonable prospects of success – proceeding struck out in part – order for costs Retail Shop Leases Act 1994, ss 43, 63, 64, 94 |
APPEARANCES and REPRESENTATION (if any):
Decision on papers.
REASONS FOR DECISION
This is an application under s 47 of the Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) by a lessor, AMP Life Ltd (“AMP”) for an order dismissing or striking out proceedings brought by its lessee Gold Tip News Pty Ltd (“Gold Tip”) under the Retail Shop Leases Act 1994 (“RLSA”), and for costs.
Gold Top seeks compensation under s 43(1) of the RSLA for interference with its business, and under s 43(2) thereof, for false or misleading statements or representations inducing it to enter a lease.
The claim under s 43(1) relates to a lease ending on 3 February 2010, and the claim under s 43(2) concerns a lease commencing on 4 February 2010.
Bases of AMP’s Application – Summary
AMP challenges the claim under s 43(1) of the RSLA on two bases:
(a) That it was lodged on 15 February 2011, more than one year[1] after the lease ended on 3 February 2010;
(b) That it is barred by a contract of compromise.
[1] See RSLA, s 63(1)(b).
Further, AMP says that the misrepresentation claim is misconceived or lacking in substance because (i) the representations in question were true; and (ii) Gold Tip did not rely on them when it undertook the lease which commenced on 4 February 2010.
Should the s 43(1) Claim be struck out?
When a retail shop lease dispute is lodged, the registrar must forthwith refer it to mediation.[2] If mediation is unsuccessful – as in this case – the mediator must refer it to this Tribunal[3], provided that the lease did not end more than 1 year before the dispute notice was lodged[4]. There is then, a special limitation period of one year for claims of the present kind.
[2] RSLA, s 56(1).
[3] RSLA, s 63(2).
[4] RSLA, s 63(1)(b). See also s 64(1)(b).
Gold Top alleges that the interference with its business due to redevelopment work extended from about June 2007 to June 2010. It is undisputed that Gold Top’s “first lease” ended on 3 February 2010, and that it lodged its Notice of Dispute on 15 February 2011. And so it follows inevitably that the Tribunal has no jurisdiction to entertain the s 43(1) claim, in so far as it relates to the first lease.
AMP’s second objection to the “interference” claim is that it is barred, wholly or in part, by a contract of compromise, whereby Gold Tip “released [AMP] from all claims for loss of business related to [AMP’s] redevelopment of the centre up until 30 June 2009”.
On 6 April 2009 an AMP representative emailed Gold Tip as follows:
“I have spoken to my Divisional Manager and have secured approval to a concession of $30K which can be applied against the recent rent account immediately. This is slightly short of the amount you are requesting but reflects that the main impact from the development would not have occurred till the north door closed in mid September 2008, thus the reason for backdating the concession till 1 September.
This is offered on the basis that it is a full and final settlement of all claims made by you in respect of the redevelopment project.
On your written acceptance of the above we will immediately prepare a credit to your account and advise our lease administrator to proceed with instructing our solicitors to prepare the lease documents for the new premises. I look forward to your response to finalise this matter.”
On 7 April 2009 Gold Tip replied:
“The $30k, and your reason for reducing our claim to that amount, seems fair. On that basis we’re happy to accept the offer. We’re prepared to waive all further claims for loss of business related to the redevelopment from its inception through to June 30th this year.
... Because we don’t know what the future holds, it would be irresponsible to waive away all future claims related to the redevelopment. But as I’ve said above, for the period that ends June 30 this year, we will make no further claims.
I hope this is satisfactory.”
I find that this exchange of correspondence constitutes a settlement of the “disturbance” claim up to and including 30 June 2009. I note, however, that Gold Tip reserved the right to claim compensation for any disruptive acts or omissions by, or on behalf of AMP that might occur after that time. There is no evidence that AMP demurred to that reservation, or treated it as a rejection of its offer of 6 April 2009, or as a counter offer.
Therefore I am satisfied that so much of Gold Tip’s first head of claim as relates to the time up to and including 30 June 2009 is barred by a settlement concluded on 7 April 2009. I shall make an appropriate order. I may add that, in view of my decision on the limitation issue, this finding may be welcome to both parties.
Should the misrepresentation claim be dismissed?
In paragraphs 14 and 15 of its “statement of claim” Gold Tip alleges that, in or about late 2008 and early January 2009, an AMP representative claimed that AMP was holding “signed and unconditional offers from two other newsagency operators, Nextra and Newsexpress, to take over the centre’s newsagency concession”.
AMP contends that those representations were true, and that, in any event, they were not a basis upon which Gold Tip was induced to enter into the lease that began on 4 February 2010.
Copies of the relevant letters are annexures “E” and “F” to AMP’s application.
The letter from Newsexpress to AMP is dated 23 September 2008 and reads as follows:
“Thank you for your invitation to consider the newsagency opportunity in the Mt Ommaney Shopping Centre expansion. Attached are executed copies of your September 5, 2008 letter outlining the proposed terms and conditions for the two stores.
We look forward to receiving a formal invitation to lease, in accordance with these commercial terms, as soon as practicable.
With regard to the current newsagency use, should it assist the landlord we are in a position to operate in a temporary capacity until the extension to the centre is complete.”
That letter was written in response to one from AMP, dated 8 September 2008, which reads in part:
“Mt Ommaney Shopping Centre – Newsexpress – Shop 59 – subject to lessor approval. It is with pleasure that we invite you to consider the above premises. The proposed terms and conditions are as follows ...”.
Endorsed on that letter, and dated 23 September 2008 is this note from Newsexpress:
“We request a formal invitation to lease ... in accordance with the terms outlined above. We are aware that further and more detailed terms and conditions will be contained in the invitation to lease and that this letter does not constitute a binding agreement.”
The letter from Nextra to AMP, dated 7 April 2008, reads in part:
“We definitely wish to have a Nextra newsagency operating in the centre. When convenient, please call Greg Campbell on 0403 084 666 to discuss the possibility of another site suitable for Nextra in the future expansion of your centre.”
In describing these communications – particularly the one from Nextra – as “signed and unconditional offers”, AMP’s agent, not to put too fine a point on it, was gilding the lily somewhat.
But a misrepresentation that does not materially induce another party to act – or, in the words of the RSLA, is not “the basis” of a decision to take a lease – cannot found a viable cause of action, either at common law or under the Act.[5]
[5]Attorney- General of New South Wales v Peters (1924) 34 CLR 146; State of Queensland v Brooks & McCabe [2006] QCA 431 at [85].
At paragraph 16 of its statement of claim Gold Tip indicates that it regarded AMP’s representations of “early January” with suspicion, and that “shortly after[wards]” it made inquiries through the Queensland Newsagents’ Federation and learned that Newsexpress “denied that [it] had made any such offer”. Mr Goldsmith (of Gold Tip) then asked AMP’s agent to produce the alleged offers, but the latter refused to do so. Whether Newsexpress’ denial was true or false, there comes a point where reliance, if any, is so unreasonable as to break the chain of causation[6], and in my view Gold Tip arrived at that point, on its own admission, in January 2009. It signed the new lease some five months later, on 11 June 2009, and it commenced on 4 February 2010.
[6] Grainger v Williams [2009] WASCA 60 at [26].
In these circumstances, the misrepresentation claim is one that is misconceived[7], with no reasonable prospects of success.
[7]Cf M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454 at [11].
A Transfer to the Supreme Court?
In a submission dated 27 June 2011 Gold Tip applies for a transfer of these proceedings to the Supreme Court. That would require an order of a judicial member.[8] Apart from the fact that the Tribunal’s jurisdiction under the RSLA is exclusive,[9] the “pleadings” such as they are, are not well suited to litigation in accordance with the Uniform Civil Procedure Rules 1999[10], and it is very doubtful that the quantum of the claim that would survive scrutiny in the Supreme Court would justify resort to that tribunal.
[8] QCAT Act, s 52(7).
[9] RSLA, s 94.
[10]Cf M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454 at [14].
Conclusions
Gold Tip’s claim based on misrepresentation has no reasonable prospects of success, and should be dismissed. Its claim for disturbance under s 43(1) of the RSLA cannot be sustained, so far as the lease that ended on 3 February 2010 is concerned. Gold Tip is entitled to pursue a s 43(1) claim in relation to the lease which commenced on 4 February 2010.
Costs
In its application for costs, AMP is not required to satisfy s 102 of the QCAT Act. Section 47(2)(c) of that Act enables the Tribunal to order costs against a party against whom a s 47 order is made. In this case the respondent, AMP has been required to answer, at length, claims that are largely, but not entirely, unsustainable. I shall make an order for costs in the amount of $1,500.00.
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