Ocean Muse v Carla Zampatti
[2024] QCAT 23
•16 January 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Ocean Muse v Carla Zampatti [2024] QCAT 23
PARTIES:
OCEAN MUSE PTY LIMITED (applicant)
v
CARLA ZAMPATTI PTY LIMITED (respondent)
APPLICATION NO/S:
RSL145-20
MATTER TYPE:
Retail shop leases matter
DELIVERED ON:
16 January 2024
HEARING DATE:
25 August 2022
HEARD AT:
Brisbane
DECISION OF:
Member Holzberger
ORDERS:
1. The application of Ocean Muse Pty Limited is dismissed.
2. Ocean Muse Pty Limited must pay Carla Zampatti Pty Ltd the sum of $58,642.23 by 4:00pm on 12 February 2024.
CATCHWORDS:
LANDLORD AND TENANT – RETAIL AND OTHER COMMERCIAL TENANCIES LEGISLATION – where lease has expired – whether there has been a breach of the lease – entitlement to compensation
Retail Shop Lease Act 1994 (Qld)
APPEARANCES & REPRESENTATION:
Applicant:
Ms Sara Gianni
Respondent:
Ms Elena Notte
REASONS FOR DECISION
On 12 February 2018 Ocean Muse Pty Limited (‘Ocean Muse’) entered into a lease (‘lease’) of premises described as Shop 2/27 Orchard Avenue, Surface Paradise (‘premises’) with Carla Zampatti Pty Limited (‘Carla Zampatti’). Sara Gianni, director of Ocean Muse guaranteed the performance of Ocean Muse.
On 21 October 2020 Ocean Muse lodged a Notice of Dispute - Retail Shop Lease Act 1994. A copy of the lease was submitted with the application.
On 10 June 2021 Carla Zampatti lodged in the Tribunal a response and counterapplication.
Ocean Muse sought the following remedies:
100% rental waiver for period March 2020 - January 2021.
Renovations as requested by the landlord 100% void and deemed unnecessary, premises to be left clear, clean and in its original condition.
Bond of $16,445.05 spent on renovations to be refunded in full.
Immediate termination of lease contract to be reimbursed for all lease contract
To be reimbursed for all costs pertaining to mediation and dispute resolution (legal and other)…[1]
[1]Notice of Dispute filed 21 October 2020 part C, section 3.
Carla Zampatti’s response denies liability for any of Ocean Muse’s claims. In its counterapplication Carla Zampatti seeks:
Rental outstanding Feb 20 - Jan 21 $60,193.51
Rent fee period $13,573.72
Legal costs outstanding to lawyer $2859.65 - TIA LAWYERS
Interest charges as per lease to be waived…[2]
[2]Response filed 10 June 2021, page 4.
Carla Zampatti also sought orders in relation to Ms Gianni personally as guarantor. The Tribunal does not have jurisdiction to do so.
The Lease
The lease was for a period of three years commencing on 30 January 2018 and terminating on 29 January 2021. The option has not been exercised.
Commencing rent was $55,000 per annum reviewed annually with a fixed percentage increase of 4%.
Item 4 of the information table to the lease provided that notwithstanding the commencement date Ocean Muse’s obligation to pay rent would commence on 13 April 2018 (effectively a two-month, two-week rent-free period). It also imposed the following condition on the concession:
Important: The rent-free concession will be due and payable in full in the event of a breach or default under the lease by the tenant during the initial term of the lease.
The permitted use specified in item 8 of the information table to the lease was “beauty salon.”
Clause 25 of the lease required Carla Zampatti to carry out certain works to the premises “as soon as reasonably practical and endeavour to do so prior to the date of commencement.” The document which provided details of the work has not been provided to the Tribunal and I am unable to find any evidence of either party in relation to those works.
Background
Ms Gianni was given access to the premises in mid-December 2017. She says the premises were “not in a state fit to trade” in that there were no fire extinguishers, smoke detectors or fire blankets, and both air conditioners were broken.[3] Save for clause 25 I cannot see anything in the lease or in evidence which establishes that the landlord was required to hand the premises over in any particular state or condition.
[3]Document titled “Commercial Lease-Mediation Case” filed with Dispute Notice 21 October 2020.
Carla Zampatti says Ocean Muse first approached the managing agent for the premises about breaking the lease on 14 August 2018. Discussions with a view to reaching an agreement to a mutual termination of the lease continued on and off between Ms Gianni and the managing agent and the lawyers acting for both parties until May 2021. They are evidenced by the various e-mail exchanges in exhibit 6 – 27.
Neither party asserts that an agreement was ever reached in respect of a mutual termination of the lease. Neither purported to terminate the lease.
Ocean Muse ceased trading from the premises on 22 March 2020.
The lease expired on 29 January 2021.
Ocean Muse Claim
Ocean Muse has failed to establish any breach of the lease by Carla Zampatti that would entitle it to a waiver of rent for the period 20 March 2020 to January 2021.
The material filed in this matter suggests but does not particularize some entitlement to COVID-19 concessions. The evidence does not support such a claim and does not seem to have been actively pursued by Ocean Muse during the term of the lease.
Similarly, I can see no basis for a claim for reimbursement of the costs of works to the premises. It is not clear on the evidence that Carla Zampatti requested her to carry out any works to the premises or that they expressly or impliedly agreed to compensate her for works.
The bond will be offset against arrears.
Counterclaim
Carla Zampatti’s calculation of rent arrears is contained on page 3 of the attachment to its response and totals $60,193.51. I do not understand Ocean Muse to disagree with the calculation. I am satisfied the amount is due and payable under the terms of the lease.
I am also satisfied that in not paying that rent, Ocean Muse is in breach of its obligations under the lease. The notation contained in item 4 of the information table to the lease is a term of the lease and entitles Carla Zampatti to require repayment of the rent it had foregone during the rent-free period in the sum of $13,573.72.
The bond of $15,125.00 is offset against arrears.
The amount payable by Ocean Muse to Carla Zampatti is $58,642.23.
The legal costs claimed by both parties relate to the parties’ attempts to negotiate terms of a mutual release of obligations under the lease rather than the costs of these proceedings and in those circumstances, I am not prepared to make any order in respect of them. I make no order as to costs.
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