Lotzalip Pty Ltd v Cook
[2025] QCAT 95
•13 March 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Lotzalip Pty Ltd v Cook [2025] QCAT 95
PARTIES:
LOTZALIP PTY LTD (applicant)
v
LIANNE MAREE COOK (respondent)
APPLICATION NO/S:
RSL083-22
MATTER TYPE:
Retail shop leases matter
DELIVERED ON:
13 March 2025
HEARING DATE:
10 January 2025
HEARD AT:
Brisbane
DECISION OF:
Acting Member Jensen, Presiding, Member McBryde, Member Norling
ORDERS:
Pursuant to s 83(2)(b) of the Retail Shop Leases Act 1994 (Qld), the respondent must pay the applicant the sum of $14,103.57 within 28 days of the date of this decision.
CATCHWORDS:
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – lease – retail shop lease dispute – arrears of rent
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102
Retail Shop Leases Act 1994 (Qld), s 83
APPEARANCES & REPRESENTATION:
Applicant:
Mr R Ferguson on behalf of the applicant
Respondent:
Self-represented
REASONS FOR DECISION
Background and issues
It is not disputed that:
(a)On or about 26 June 2020, the parties entered into a retail shop lease in respect of shop 14, Everton Junction, Corner Chinook and Old Northern Roads, Everton Hills, Queensland (the ‘lease’);
(b)The lease contains the following relevant provisions:
(i) It was for a term of one year commencing on 15 June 2020 and ending on 14 June 2021;
(ii) Pursuant to clause 2, the respondent was required to pay rent by equal monthly instalments in advance on the first day of each month;
(iii) Pursuant to item 6 of the reference schedule, the annual rent was $20,800 plus GST;
(iv) Pursuant to clause 4 relating to outgoings, in the event that the rental in clause 6 of the reference schedule is stated excluding outgoings then during the term of the lease the lessee must pay the lessee’s proportion of outgoings as specified in item 16 of the reference schedule for each year or part thereof ended 30 June of the term;
(v) Pursuant to item 16, the amount stated for outgoings is $10,538.77 per annum excluding GST (16.32%);
(c)The applicant issued invoices for rent and outgoings which the respondent paid until 10 September 2020, which was the respondent’s last payment;
(d)The respondent vacated the premises during January 2021;
(e)No replacement tenant was found before the end of the lease term;
(f)On or about 11 January 2022, the applicant sent a notice of breach and letter of demand to the respondent demanding payment of the amount of $16,690.56 no later than five business days from the date of the letter.
The applicant now claims unpaid rent and outgoings of $16,690.56.
The respondent argues that she does not owe this money because first, there was an agreement to end the lease in January 2021 with no ongoing payment and second, the applicant did not mitigate losses; the respondent claims that she had two people interested in renting the premises before she left, but the applicant did not want to negotiate.
The issue is therefore what is the amount (if any) owed by the respondent to the applicant under the lease?
Consideration
Rent
The agreed rental for the lease term of one year is $20,800 plus GST. ($22,880 inclusive of 10% GST).
The total amount paid by the respondent for rent and outgoings according to the agent’s ‘Tenant Statement’ is $9,134.43 inclusive of GST.
Outgoings
Clause 4 of the lease relevantly provides:
In the event that the rental in clause 6 of the Reference Schedule is stated excluding outgoings then during the Term of the Lease, the Lessee must pay the Lessee’s Proportion of Outgoings as specified in item 16 of the Reference Schedule…
Item 6 of the Reference Schedule does not state that the rent is exclusive of outgoings (as required by clause 4 in order for the respondent to have a liability under the lease to pay outgoings).
On a proper construction, the words in clause 4 are clear. Clause 4 provides that the rental at item 6 of the Reference Schedule must state that it excludes outgoings in order for there to be an entitlement under the lease for the applicant to also be paid outgoings in addition to the rent. The fact that item 6 does not so state in our view leaves the applicant without the right to recover outgoings under the lease. This finding is not altered by the amount of $10,538.77 for outgoings being specified at item 16 because the liability to pay the amount of outgoings stated is contingent upon item 6 stating that the rent excludes outgoings, which it does not so state.
Furthermore, the finding is not altered by reason of the lessor disclosure statement referring to estimated outgoings for the year. The wording in clause 4 of the lease is clear and there is no need to refer to an external document, namely the lessor disclosure statement, as an aid in interpreting the lease.
It follows that the lease does not give the applicant an entitlement to recover outgoings from the respondent.
Early end to lease
In terms of the lease ending by agreement during January 2021, the respondent’s evidence during the hearing was that she made this assumption from naivety. The tribunal does not give the evidence of the lease ending by agreement in January 2021 any weight because it is only based on the respondent’s assumption which cannot be used to bind the applicant. By contrast, the agent gave credible evidence that he told the respondent that she would be responsible for the rent until such time as a new tenant was secured. On balance, the tribunal accepts the evidence of the agent and finds that the lease did not end in January 2021.
Mitigation of loss
As to mitigation of losses, we are satisfied with the agent’s evidence that the applicant took all steps to minimise its losses. The applicant commenced a search for a replacement tenant reasonably promptly. The evidence of a screenshot of an advertisement from February 2021 and contact records of prospective tenants in March 2021 is persuasive. Because it is supported by documents, we place more weight on the agent’s evidence than the respondent’s evidence which is that “I had two people interested in renting the premises before I left, but the owner did not want to negotiate”. Neither of these potential tenants gave evidence which leaves the respondent’s evidence unsupported and of no weight.
Therefore, the tribunal finds that the respondent is required to pay the rent for the term of the lease, but not the outgoings.
Interest
As to interest on outstanding monies, the tribunal does not award this to the applicant for the following reasons:
(a)The applicant delayed sending its letter of demand for approximately 12 months from the time the respondent surrendered possession of the premises. Furthermore, there is only a passing reference to interest in that letter;
(b)The applicant does not claim interest as part of a remedy at Part C, item 3 of the application received by the tribunal on 18 March 2022;
(c)Interest is mentioned as part of the applicant’s submissions dated 3 December 2024 in a very general way as follows:
[25] The Applicant seeks an order for payment of $17,048.56 plus interest by the respondent being the amount outstanding and the filing fee for the QCAT application.
(d)No basis for awarding interest is asserted; no lease provision is referred to; no amount of interest is calculated (or formula provided for the calculation of interest). There is no guidance for the tribunal to make an order for interest; and
(e)In the circumstances, the tribunal considers it to be just to resolve the retail tenancy dispute by not awarding interest pursuant to s 83(1) of the Retail Shop Leases Act 1994 (Qld) [the ‘RSLA’].
The total rent payable for the term is $22,880 inclusive of GST. The amount paid by the respondent to the applicant is $9,134.43 inclusive of GST. The component of outgoings in this amount can be applied to rent arrears. The unpaid amount of rent which is owed to the applicant is, therefore, $13,745.57 inclusive of GST.
The tribunal considers it reasonable to order that the respondent pay the applicant’s filing fee in the tribunal in the amount of $358.
Orders
Pursuant to s 83(2)(b) of the RSLA, the respondent must pay the applicant the sum of $14,103.57 within 28 days of the date of this decision.
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