Japanese 4x4 Spares & Repairs v Lanpac Pty Ltd

[2011] QCATA 133

CITATION: Japanese 4x4 Spares & Repairs v Lanpac Pty Ltd [2011] QCATA 133

PARTIES:	Japanese 4x4 Spares & Repairs
v
Lanpac Pty Ltd

APPLICATION NUMBER:            APL348-10               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   27 May 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused.

CATCHWORDS: COMMERCIAL TENANCY – where lessor claimed for outgoings and CPI increase not previously invoiced to tenant – where lessor claimed compensation for damages to premises – where tenant did not admit executed lease agreement existed – where proceedings adjourned to allow production of executed lease – whether grounds exist for leave to appeal

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Japanese 4x4 was a tenant of a commercial property owned by Lanpac Pty Ltd.  At the conclusion of the tenancy, Lanpac applied to the tribunal for an order that Japanese 4x4 pay $8,529.92 for rental adjustments, outgoings and the replacement of damaged vinyl flooring.  The learned Adjudicator ordered that Japanese 4x4 pay the claim in full plus tribunal filing fees.

1. Japanese 4x4 has appealed the decision.  Mr Giffin, the owner of Japanese 4x4 says:

a)    His case was never heard or read properly.

b)    Lanpac relied on an unsigned lease agreement.

c)    Lanpac is trying to retrieve money after Japanese 4x4 has paid invoices.

d)    The building leaked and was unsafe.

e)    Japanese 4x4 spent money making the building suitable for occupation which he did not recover from Lanpac.

1. Because this is an appeal from the minor civil disputes jurisdiction of the tribunal, leave is necessary.  The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at [13].

   [3]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

1. It is important to note that the learned Adjudicator adjourned the proceedings to allow Lanpac to file an executed copy of the lease.  Lanpac had asserted at the initial hearing that there was an executed copy in existence but Mr Giffin did not admit that he had signed one.  The lease subsequently provided by Lanpac is, indeed, signed by Mr Giffin.

1. The learned Adjudicator also allowed Mr Giffin to file additional material in relation to the condition of the premises throughout the tenancy.  I can find no additional material and the learned Adjudicator did not make reference to any other documents.

1. Once the learned Adjudicator was satisfied that the parties had signed a lease, the parties’ rights and obligations were determined by that document.  She points out that:

a)    The lease contains a rent review clause whereby the rent increases annually by CPI.

b)    Japanese 4x4 is required to pay outgoings.

c)    Japanese 4x4 must leave the premises in good repair and make good any damage caused by its occupation.  Japanese 4x4 did not dispute that the vinyl was disfigured by marks from its tyres being stored on the floor but it did not accept the responsibility imposed by the lease.

1. There is no evidence to support Mr Giffin’s assertion that his case was not heard or read properly.  He had ample opportunity to put material before the tribunal and it is clear to me that the learned Adjudicator gave proper consideration to the issues and the evidence that was submitted.

1. Neither Lanpac nor the learned Adjudicator relied upon an unsigned lease agreement and Mr Giffin’s argument that they did so is simply mischievous.

1. The obligation to pay an increased rent and outgoings survives the expiration of the lease term.  I understand that Mr Giffin is unhappy that these claims were made late but that does not affect his liability to pay them.

1. Mr Giffin did not satisfy the learned Adjudicator that his liability should be reduced by the cost of installing security bars or a handrail to the mezzanine floor.  Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]  The learned Adjudicator’s findings can be supported by the evidence before her and I see no reason to form a contrary view.

   [5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.

1. There is no question of general importance that requires a decision of the appeal tribunal; there is no prospect that Japanese 4x4 will obtain substantive relief on appeal and there is no evidence that Japanese 4x4 will suffer a substantial injustice if leave is not granted.  Leave to appeal should be refused.