My Computer Support Pty Ltd t/as Swytch v The Trustee for JL Amos Superannuation Fund - [2023] QCAT 183

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

My Computer Support Pty Ltd t/as Swytch v The Trustee for JL Amos Superannuation Fund [2023] QCAT 183

PARTIES:

MY COMPUTER SUPPORT PTY LTD T/AS SWYTCH

(applicant)

v

THE TRUSTEE FOR JL AMOS SUPERANNUATION FUND

(respondent)

APPLICATION NO/S:

RSL 042-22

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

24 May 2023

HEARING DATE:

18 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The respondent is to pay the applicant $8,250 within one month of the date of this decision.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL SHOP LEASE – where landlord refuses to return bond – where tenant responsible for return of keys and servicing of air conditioning – whether any loss suffered by the landlord

Retail Shop Leases Act 1994 (Qld) s 83, s 103

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

The parties are in dispute over the return of a bond paid by the applicant.
The background to this dispute is as follows:
(a)On 8 December 2017, the parties entered into a contract whereby the applicant leased a business premises from the respondent;
(b)The lease was for two years, and a bond of $8,250 was paid;
(c)From 8 December 2019, the applicant continued to occupy the premises by mutual agreement until the lease came to an end in August 2021. The applicant claims to have vacated on 7 August 2021. The respondent claims that the premises were vacated on 17 August 2021, when keys were returned to the agent Ray White Milton;
(d)The applicant applies, under the Retail Shop Leases Act 1994 (Qld) for return of the bond, an order requiring that the respondent pay the Tribunal filing fee, and refund of the cost of the air conditioning service it paid for in June 2021;
(e)Rent was paid to 7 August 2021. The respondent claims it is entitled to deductions from the bond:
(i)      $620 from the bond to cover rent up to 17 August (rent was $30,000 per annum plus GST);
(ii)      the cost of regular air conditioning maintenance which it says the applicant failed to undertake; and
(iii)     $400 replacement cost for partitioning the applicant removed from the premises.
(f)The respondent claims that the failure to undertake maintenance on the air conditioning reduced the useful life of the system, and meant that fabric ducting needed to be replaced at a cost of $4,600.
THE TERMS OF THE LEASE
The parties have referred the Tribunal to the following particular clauses of the lease:
(a)Special condition 6. “The Tenant at the completion of the Lease Term is required to clean Tenancy, including ceilings, lights, windows and blinds, and repair any damage which may have occurred to the tenancy. All paint and holes to walls to be repaired. Fair wear and tear is acceptable. The Tenant shall return all keys and security cards (if app) at the end of the Lease.”
(b)Special condition 8. “A qualified, reputable service contractor is to be engaged to complete periodic servicing of all units as per the Australian Guidelines or Equipment installed at Lessee’s cost…”
THE LEGISLATION
The Retail Shop Leases Act 1994 (Qld) governs retail tenancy disputes and vests the Tribunal with jurisdiction (with certain exceptions) to determine them.[1] There is no dispute as to the jurisdiction of the Tribunal.
[1]s 103 Retail Shop Leases Act 1994 (Qld).
The Tribunal may make orders it considers to be just to resolve a dispute,[2] including (relevantly) orders that:
(a)a party must do, or not to do, anything; or
(b)a party is, or is not, required to pay an amount of money to another person.
[2]s 83 Retail Shop Leases Act 1994 (Qld).

AIR CONDITIONING

During the course of the lease, there were ongoing difficulties regarding the air conditioning, summarised as follows:
(a)During 2018, the applicant raised concerns regarding the state of the air conditioning unit. The applicant advised the respondent that maintenance was not being carried out due to difficulty in finding a company available to undertake the work.
(b)The applicant claims that up until December 2019, the respondent’s air conditioning maintenance company attended the office on average every 3 months to troubleshoot issues with the air conditioning. The applicant advises that, during the initial 2 years of the lease, it did not arrange for servicing as the unit was not correctly functioning and was continually being worked on by All Air solutions, the respondent’s preferred air conditioning company.
(c)Work was undertaken on the system in December 2019, at a cost to the respondent of $2,300 plus GST.
(d)On 24 June 2021, the respondent requested confirmation that paragraph 8 of the special conditions had been complied with. The applicant responded “the aircon was last serviced when the ducting was replaced early 2020, due to covid and not using the office this has not resumed. I will arrange for Scott to perform a service and ensure there aren’t any issues”.
(e)On 28 June 2021, the applicant advised that “the aircon service has technically not been serviced every quarter as per the lease agreement… I can arrange for the company who has serviced the aircon to come out this week, service the aircon, provide a full report and provide service history at the same time”.
(f)On 29 June 2021, the respondent requested details (contractor name, dates of service and amounts paid since 8 December 2017).
(g)On 1 July 2021, the applicant advised the respondent that regular servicing did not take place for the initial two years of the lease due to ongoing issues with the performance of the air conditioning, but that it had been serviced every quarter since those issues were resolved. The Tribunal has not been provided with a service history prepared by an independent party.
(h)The Tribunal has been provided with a tax invoice from Seeto Air dated 7 July 2021 (for work completed on 30 June 2021) for the amount of $421.30 for preparing a condition report on the system and carrying out a premium service.
(i)The Tribunal has been provided with a letter dated 30 July 2021 from Seeto Air to the applicant stating:
“The system was found to be in good working order and operating efficiently”.
On 5 July 2022, Technicool Air Conditioning wrote to the respondent stating “After carrying out my inspection…it is my opinion that the system has not had regular planned maintenance carried out on it”. It was considered that the lack of maintenance would have had a detrimental effect on the life of the mechanical components of the system, and recommended that work be carried out at a cost of $3,200, plus GST.
There is no independent evidence of any further costs paid by the respondent in relation to the air conditioning unit after August 2021. It is unclear when the inspection by Technicool took place, and whether the claimed lack of periodic maintenance was before or after the end of this lease.
The special conditions contained in the contract require that a qualified, reputable service contractor is to be engaged to complete periodic servicing of all units “as per the Australian Guidelines or Equipment installed at Lessee’s cost”. The parties have not provided evidence as to the applicable Australian Guidelines, particularly those that may apply if the unit has not been used for some time during the period of COVID lockdown.
Before the Tribunal can be satisfied that the applicant owes the respondent money, the respondent must satisfy the Tribunal that the applicant has breached its obligations, and that breach has resulted in loss to the respondent. It is the respondent’s responsibility to provide evidence of the breach, and to quantify the amount of resultant loss.
Pursuant to the contract, the applicant was required to clean the tenancy, … and repair any damage which may have occurred to the tenancy… Fair wear and tear is acceptable.
I accept that there were difficulties with the air conditioning up to December 2019 and the respondent was working with its preferred supplier to attend to those issues. This work obviated the need for other servicing during that period. The applicant states that the air conditioning was not used for a period during COVID shut down, and so servicing was not arranged.
For the respondent to successfully claim that money is due on account of a deterioration in the state of the air conditioning unit, the Tribunal requires evidence of the condition of the state of the air conditioning unit at the beginning of the contract, evidence of its condition at the end, and if there is a deterioration, evidence about whether the deterioration is due to fair wear and tear or something else.
Even if the Tribunal is satisfied that the applicant breached its obligation to service the air conditioning, there is no clear evidence that any such breach resulted in loss to the respondent. There is no evidence regarding how the life of the air conditioning unit has been reduced, and no evidence regarding any depreciation in value of the system which can be said to be due to the actions of the applicant.
I accept that the air conditioning system was functioning to a reasonable standard as at early 2020 after it was repaired. The evidence from Seeto Air is that the system was in good working order and functioning efficiently at approximately the time the lease was ended. There is no evidence of deterioration during the course of the lease. The evidence from Technicool is dated July 2022, almost a year after the lease was ended, and is not useful in determining the state of the system at the conclusion of the lease.
The applicant seeks a refund of the amount paid to Seeto Air, claiming that legislation provides that the respondent, as landlord, is responsible for maintaining the air conditioning. I do not propose to make an order for the refund of those funds. The applicant is obliged under the terms of the contract to pay the costs of servicing the air conditioning.
There is no adjustment to the bond refund on account of air conditioning issues.
RETURN OF KEYS
Pursuant to the terms of the contract, the applicant was required to return all keys at the end of the lease.
The applicant physically vacated the premises on Saturday 7 August 2022. All but one set of keys were left in the business premises. It was the applicant’s understanding that the respondent held a set a keys which could be used to access the property for the purpose of inspection.
On Tuesday 10 August 2022 the respondent texted the applicant asking where the keys were, and requesting that they were delivered to his agent.
On Friday 12 August 2022 the respondent texted the applicant to advise that he could not find his set of keys and again requested that the keys be returned to his agent. The keys were delivered on Monday 16 August, one business day later.

The applicant submits that the delay in handing over the final set of keys did not result in any loss to the respondent, and so no rent is payable for that period.
To make an order for the payment of money in favour of the respondent, the Tribunal must be satisfied that the respondent suffered some loss. There must also be evidence of an attempt by the respondent to mitigate any loss. There is no evidence of what, if any, loss was suffered by the respondent. To the extent that there was some possible inconvenience, I am satisfied that was caused by the respondent’s loss of his set of keys, not by any action by the applicant.
There is no money owing by the applicant in relation to the keys.
REPLACEMENT OF THE PARTITION
The Tribunal has been provided with a copy of an email from the respondent to the applicant dated 9 February 2020 stating:
I am happy to confirm our agreement that the partitioning or any part thereof in the leased premises can be removed or relocated without my further approval. I also agree to your disposal of any of the furniture which is excess to your requirements so long as you account to me for the consideration (if any) which you receive. I only ask that any furniture removed or dumped be itemized and I be informed (each time) of the items removed so that I can “write off” these items.
I am satisfied that there was an agreement between the parties that the partition could be removed and there was no requirement for it to be replaced. Accordingly, no compensation is payable for the removal.

Orders

The Tribunal determines that the bond should be returned to the applicant within one month.
There is no order for payment of the QCAT filing fee.