Nguyen v Nguyen

Case [2013] QCAT 315
CITATION: Nguyen v Nguyen & Anor [2013] QCAT 315
PARTIES: Kim Chi Nguyen
(Applicant)
V
Trung Viet Nguyen
Mai Que Nguyen
(Respondents)
APPLICATION NUMBER: RSL045-12
MATTER TYPE: Retail shop leases matters
HEARING DATE: 28 and 29 May 2013
HEARD AT: Brisbane
DECISION OF: Dr J R Forbes, Presiding Member
Mr N Judge, Member
Mr D McBryde, Member
DELIVERED ON: 6 June 2013
DELIVERED AT: Brisbane
ORDERS MADE:

1.     The application is dismissed.

2.     Kim Chi Nguyen t/as Dakbla Vietnamese Asian Cuisine shall vacate the subject premises not later than 5 pm on Friday 19 July 2013.

3.     Kim Chi Nguyen t/as Dakbla Vietnamese Asian Cuisine shall remove all her fixtures and fittings and make good all or any damage resulting from such removal, or compensate Trung Viet Nguyen and Mai Que Nguyen for the same.

4.     There is no order as to costs.

5. The Principal Registrar is directed to report to the appropriate authority the Respondents’ failure to comply with section 46 of the Retail Shop Leases Act 1994.
CATCHWORDS:

RETAIL SHOP LEASE - OPTION TO RENEW – tenant omits to exercise option in time stipulated in lease - whether that provision waived - whether lessors promised not to rely on time limit - whether alleged promise made – whether promise, if made, unequivocal – whether, if promise made, reasonable relied on – application dismissed – breach of Retail Shop Leases Act 1994 s 46 referred to appropriate authority

Retail Shop Leases Act 1994 (Qld), s 19, s 36, s 36A, s 46, s 47
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102

Topbeach Pty Ltd v Seafarer Investments Pty Ltd [2010] QSC 459
HR & CE Griffiths Pty Ltd v Rock Bottom Fashion Market Pty Ltd & Ors [1997] QSC 5
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Mann v Carnell (1999) 201 CLR 1

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Commonwealth of Australia v Verwayen (1990) 170 CLR 394
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Freshmark Ltd v Mercantile Mutual Insurance (Australia) Ltd [1994] 2 Qd R 390
Scandinavian Trading Tanker Co AB v Flota Petrolera Escuatoriana (“The Scaptrade”) [1981] 2 Lloyd’s Rep 425; affd [1983] 2 AC 694
Wright v Hamilton Island Enterprises Ltd [2003] Q Conv R 54-588; [2003] QCA 36
Equuscorp Pty Ltd v Glengallen Investments Pty Ltd [2006] QCA 194
Johnston v Arnaboldi [1990] 2 Qd R 138
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Coshott v Barry [2007] NSWSC 1094
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Nguyen v Nguyen [2013] QCAT 315
Case
[2013] QCAT 315
Decision Date

CaseChat Overview and Summary

The case of Nguyen v Nguyen involved a dispute between the tenant, Kim Chi Nguyen, trading as Dakbla Vietnamese Asian Cuisine, and the landlords, Trung Viet Nguyen and Mai Que Nguyen. Kim Chi Nguyen sought relief from vacating the premises under the lease agreement, arguing that the landlords had waived the strict time limits for exercising an option to renew the lease and that the landlords had promised not to rely on the time limit. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues were whether the landlords had waived the time limit for exercising the option to renew the lease and whether there was a promise by the landlords not to rely on the time limit, which could be relied upon by the tenant.

The court found that the evidence provided by the tenant was insufficient to prove that the landlords had made a clear promise that could be relied upon, especially given the strained relationship between the parties. The court noted that the evidence provided by Hien Dinh, the tenant's husband, was not convincing, and the contemporary notes of Peter Hahn, a witness mentioned by the tenant, did not support the tenant's version of events. Furthermore, the court considered that even if such a promise had been made, it was too ambiguous to give rise to a waiver or promissory estoppel. Additionally, the court held that any reliance on such a promise would not be reasonable given the prior litigation and the animosity between the parties.

The Tribunal dismissed the tenant's application and ordered that Kim Chi Nguyen vacate the premises by 5 pm on Friday, 19 July 2013. The Tribunal also directed the Principal Registrar to report to the appropriate authority the landlords' failure to comply with section 46 of the Retail Shop Leases Act 1994. There was no order as to costs.

Orders

Orders of the court

1. The application is dismissed.

2. Kim Chi Nguyen t/as Dakbla Vietnamese Asian Cuisine shall vacate the subject premises not later than 5 pm on Friday 19 July 2013.

3. Kim Chi Nguyen t/as Dakbla Vietnamese Asian Cuisine shall remove all her fixtures and fittings and make good all or any damage resulting from such removal, or compensate Trung Viet Nguyen and Mai Que Nguyen for the same.

4. There is no order as to costs.

5. The Principal Registrar is directed to report to the appropriate authority the Respondents’ failure to comply with section 46 of the Retail Shop Leases Act 1994.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Therefore we are unable to accept that there was such sweetness and light between the parties in October 2011 that a verbal assurance that a lease renewal could be “talked about” later on would have been made, or, if were made, that it could reasonably be relied on by the Tenant, without further question or attempt at documentation. After all, discussions about the relatively unimportant deck repairs were copiously documented. It is not without significance that Hien Dinh, in the very act of narrating the alleged promise, referred to Mai Nguyen as "our former friend".[40][40] See paragraph [13], above, emphasis added.Hahn's Evidence The evidence of Peter Hahn, to say the least, does not enhance the Tenant’s case. Hahn swears that when Hien Dinh “bumped into” him and Mai Nguyen while Hahn was inspecting the deck, he (Hahn) heard nothing about renewal of the lease. According to Hahn - and in this he supports the evidence of Mai Nguyen - Dinh merely made a brief comment about the deck, which he and Mai simply ignored. Furthermore, Hahn’s contemporary notes of his work commitments are quite inconsistent with Dinh’s story of a meeting with Hahn and Mai Nguyen on 4 December 2011. (Dinh does not suggest that it occurred on any other day.) According to Hahn’s work diary[41] that meeting took place on 12 October 2011, when the option to renew was no longer available. No attack was made upon Hahn’s credit, or upon the accuracy of his diary notes. We accept him as an honest and reliable witness.[41] Exhibit 3. In conclusion, we are far from satisfied, on the balance of probabilities, that the Tenant has discharged the onus of proving that the alleged promise was made. That is sufficient to dispose of the action. However, we may add that, if (contrary to our finding) it was made, it is too equivocal to give rise either to a waiver or to promissory estoppel. Further, if it was made, and leaving its ambiguity aside, we consider that reliance upon it would not be reasonable, having regard to the prior litigation, and the ill feeling that clearly existed between the parties by October 2011. Accordingly the application will be dismissed. There will be no order as to costs. Lack of success, without more, does not enliven the discretion in section 102 of the QCAT Act. If the Tenant considers that her former solicitors did not give her sufficient warning of the time limit for valid exercise of her option, she may proceed to seek appropriate legal advice. There will be orders for the Respondents, in terms of items 1, 2, and 4 of Attachment B of the Response filed on 5 April 2012, subject to a reasonable time to vacate. It is agreed that there are no arrears of rent. We shall direct the Principal Registrar to inform the appropriate authority of the Respondents' admitted failure to comply with section 46 of the RSLA. The Tribunal, of course, has no criminal jurisdiction.ORDERS1. The application is dismissed.2. Kim Chi Nguyen t/as Dakbla Vietnamese Asian Cuisine shall vacate the subject premises not later than 5 pm on Friday 19 July 2013.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Cross-examined, Hahn said that his diary notes showed that on 4 October 2011, and again on 12 October 2011 he was not at West End, but was building a house at Red Hill, several kilometres away, on the other side of the Brisbane River. He agreed that his notes are sparse, being just records of where he worked, and who worked for him on particular days.Consideration The only direct evidence of the alleged promise to relax the notice requirement[19] is that of the Tenant’s husband, Hien Dinh, describing a conversation with Mai Nguyen, in the presence of Peter Hahn, on 4 October 2011. The Tenant admits that she did not exercise her option within the time limited by the lease, but bases her claim for relief upon pleas of waiver and promissory estoppel. We consider these submissions a little later on.[19] Lease Clause 22.1. The Tenant also argues that the Landlords’ admittedly late delivery of a notice required by section 46 of the Retail Shop Leases Act 1994 (“RSLA”) means that the time for exercise of the option is no longer “of the essence”. Section 46 provides that where a retail shop lease provides for an option on the lessee's part to renew or extend the lease, the lessor must give the lessee written notice of the last date for exercise of the option at least 2 months, but no longer than 6 months, before that deadline arrives. Failure to comply with section 46 renders the landlord liable to a maximum penal sanction of 40 penalty units, but no other adverse consequence is prescribed. Elsewhere, by way of comparison and contrast, the RLSA imposes clear civil law consequences for non-compliance with the provisions concerned.[20] It is reasonable to infer that, if the legislature intended section 46 to be sanctioned other than by a fine, it would have expressly said so. Margaret Wilson J found this consideration persuasive in Topbeach Pty Ltd v Seafarer Investments Pty Ltd[21], where she observed: A question has arisen whether the general law position[22] is affected by section 46 of the [RSLA] ... Section 46 creates an offence ... It says nothing about the consequences of non-compliance as between parties. Counsel for the plaintiff really made no submissions as to why [that] inference ... should be drawn. I am not satisfied that there is a triable issue as to the application of section 46.[20] See s 19 (no contracting out), s 36 (certain rent review provisions void), s 36A (ratchetrent provisions void), s 47 (lessee’s right to independent legal advice).[21] [2010] QSC 459.[22] Note that her Honour did not confine these dicta to the type of case in hand, namely anapplication for an interlocutory injunction. While those dicta occur in an interlocutory decision, we are not aware of any authority to the contrary. Decisions on section 46 of the RSLA, as it stood before the year 2000,[23] are of no assistance. We reject the submission based on section 46. We do not consider that it relieves a tenant from the responsibility to note and observe the terms of his or her lease.[23] HR & CE Griffiths Pty Limited v Rock Bottom Fashion Market Pty Ltd & Ors [1997] QSC5; RockBottom Fashion Market Pty Ltd & Ors v HR & CE Griffiths Pty Ltd [1998] QCA 33.Waiver?