Gosbell v Linehurst Pty Ltd - [2015] QCAT 74

CITATION:

Gosbell v Linehurst Pty Ltd [2015] QCAT 74

PARTIES:	Cathy Louise Gosbell (Applicant)
v
Linehurst Pty Ltd (Respondent)

APPLICATION NUMBER:

RSL124-14

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Howard

DELIVERED ON:

3 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Unless otherwise ordered, pending the determination of the proceedings Linehurst Pty Ltd must not take steps to disconnect or have disconnected the electricity in the leased premises occupied by Cathy Gosbell.

CATCHWORDS:

RETAIL SHOP LEASE – APPLICATION FOR INTERIM ORDER – whether arguable case – whether balance of convenience favours granting interim order sought

Retail Shop Leases Act 1994

APPEARANCES

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

REASONS FOR DECISION

Ms Gosbell has filed an application for interim orders. She seeks an order, (pending the resolution or determination of her retail shop lease dispute about whether she or the lessor is responsible for payment of electricity costs), that her lessor (Linehurst Pty Ltd) be restrained from having the electricity disconnected from the leased premises. She says that Linehurst disconnected the electricity for several days in December 2014 and that this resulted in a loss to her of some $2,000 in revenue. As well, she says her employees were disadvantaged by losing wages.
Both parties have provided submissions to the Tribunal about the interim application. Ms Gosbell contends that when agreement was reached for the reduction of her rent, (which is not in dispute), that it was agreed all outgoings and GST were to be included in the amount of $1,500 per month. Linehurst Pty Ltd (‘Linehurst’) acknowledges agreement in that regard. It says it has been accommodating in reducing rent (to the extent of almost $9,000 over a 12 month period) to assist Ms Gosbell.
However, Linehurst says that the electricity is purchased in bulk by the lessor. Clause 11 of the lease provides for this. Linehurst argues that the lease provides for each tenant to pay for their own electricity as a service (rather than as an outgoing). It relies upon the definition of services in the lease which refers to ‘any services or systems provided to the Centre’, which include:
(a)water, power, fuel, oil, garbage compacting and removal, waste disposal, sewerage, telecommunications, communication systems and public address systems, background music, security, air conditioning, ventilation, escalators, fire protection, lift services, washroom and toilet services …
It also relies upon clause 5.2 of the lease which provides that:
The Lessee must pay for all Services separately connected and supplied to the Premises or connected and supplied to the Centre and separately metered to the Premises, including, but not limited to water, electricity, gas and telephone.
Ms Gosbell relies upon the meaning of outgoings as defined in s 7(1) of the Retail Shop Lease Act 1994 (Qld) (‘RSL Act’) and s 37 of the RSL Act which sets…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gosbell v Linehurst Pty Ltd

Details

AGLC: Gosbell v Linehurst Pty Ltd [2015] QCAT 74
Case: [2015] QCAT 74
Decision Date: 3 March 2015

CaseChat Overview and Summary

The parties in this case are Cathy Gosbell, a tenant, and Linehurst Pty Ltd, the landlord, who are in dispute over the termination of a retail shop lease. The case was heard by the Federal Circuit and Family Court of Australia. The tenant, Ms Gosbell, sought an interim order to prevent the landlord from disconnecting the electricity to the premises she occupies. The legal issues before the court were whether Ms Gosbell had established an arguable case for her claims, and whether the balance of convenience favoured the granting of the interim order she sought.

The court examined the evidence and submissions from both parties, considering the nature of the relief sought and the potential consequences for both parties if the order was or was not granted. In relation to the arguable case, the court found that Ms Gosbell had presented a credible case for the relief sought. The court also considered the balance of convenience, noting that if the electricity were disconnected, Ms Gosbell would be unable to continue her business, which would cause her significant financial loss and hardship, and that this was a greater inconvenience than the potential harm to the landlord if the interim order was granted. The court therefore found that the balance of convenience favoured the granting of the interim order.

As a result, the court made an order that Linehurst Pty Ltd must not take steps to disconnect or have disconnected the electricity in the leased premises occupied by Cathy Gosbell, unless otherwise ordered, pending the determination of the proceedings. The court emphasised that this was an interim order only and that the final outcome of the proceedings would depend on the evidence and arguments presented by both parties.

Orders

Orders of the court

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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