Ponticello Properties Pty Ltd v Nguyen - [2024] QCAT 375

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ponticello Properties Pty Ltd v Nguyen [2024] QCAT 375

PARTIES:

PONTICELLO PROPERTIES PTY LTD ATF THE PONTICELLO FAMILY TRUST

(applicant)

v

LAP VAN NGUYEN

(respondent)

APPLICATION NO/S:

RSL050-23

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

7 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member D Brown – Presiding
Member Judge

Member McBryde

ORDERS:

Lap Van Nguyen is to pay Ponticello Properties Pty Ltd ATF The Ponticello Family Trust, $11,335.67 within 30 days, being:

(a)     Rent owed in the amount of $ $11,804.27.

(b)     Legal costs in the amount of $2,501.40.

(c)     Less the security bond forfeited and retained by Ponticello Properties in the amount of $2,970.00

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – BREACH – REPUDIATION AND NON-PERFORMANCE – retail shop lease dispute – nonpayment of rent – repudiation of lease – whether damages claimed are payable.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 17, s 24, s 48

BMG SP Pty Ltd v YFG Strathton Pty Ltd [2023] QSC 52
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115

Shevill v Builders Licensing Board (1982) 149 CLR 620

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

By referral by a mediator of a retail tenancy dispute on 15 September 2023 this dispute was referred to the Tribunal. The applicant, Ponticello Properties Pty Ltd as the trustee for The Ponticello Family Trust (‘Ponticello Properties’), seeks from the respondent, Lap Van Nguyen (‘Mr Nguyen’), the amount of $38,381.78 for unpaid rent and other outgoings.
A mediation was scheduled for 29 June 2023. However, the respondent Mr Nguyen indicated he was not willing to participate in mediation and subsequently did not attend.

Background

Mr Nguyen entered into a 7-year lease (as the tenant/lessee) with the applicant Ponticello Properties (as the landlord/lessor) for shop 7, 1150 Beaudesert Road, Acacia Ridge, Qld, being a shop in the Acacia Marketplace Shopping Centre. The lease commenced on 10 January 2022 and was due to expire on 9 January 2029.
The lease confirmed the use of the premise was for the retail sale of cooked seafood, country fried chicken, takeaway, bubble tea and the operation of a carvery.
The lease provides for the annual rent to be paid in advance by instalments on the first day of each month.[1] There was also a provision for a reduced rent period for the first 8 months of the lease whereby the tenant need only pay half of the monthly instalments.[2] The annual rent increased every year with the cost in the first year of the lease being $45,000 per annum.[3]
[1]Clause 3.1 of the lease agreement.
[2]Ibid, clause 3.2.
[3]Ibid, clause 1 item 5.
Mr Nguyen paid no rent under the lease…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCAT 375
Decision Date: 7 August 2024

CaseChat Overview and Summary

The dispute in Ponticello Properties Pty Ltd v Nguyen was between the plaintiff, Ponticello Properties, and the defendant, Lap Van Nguyen. The matter involved a retail shop lease agreement under the Retail and Commercial Tenancies Legislation. The plaintiff sought payment of rent arrears, alleging that the defendant had repudiated the lease and failed to perform his obligations under it. The case was heard in the Queensland Civil and Administrative Tribunal.

The central legal issues the court had to determine were whether the defendant had indeed repudiated the lease and if the plaintiff was entitled to claim the damages sought. The court examined the nature and extent of the defendant's breaches, including non-payment of rent, and whether these constituted a repudiation of the lease. Furthermore, the court had to assess the appropriateness of the damages claimed by the plaintiff, including the amount of unpaid rent, legal costs, and the security bond forfeited.

The court found that the defendant had repudiated the lease by failing to pay rent and had also failed to perform other obligations under the lease. It held that the plaintiff's claim for unpaid rent, legal costs, and forfeiture of the security bond was justified. The court calculated the amount owed by the defendant, taking into account the security bond forfeited and retained by the plaintiff. Consequently, the defendant was ordered to pay the plaintiff a total of $11,335.67 within 30 days, comprising unpaid rent, legal costs, and less the forfeited security bond.

Orders

Orders of the court

Lap Van Nguyen is to pay Ponticello Properties Pty Ltd ATF The Ponticello Family Trust, $11,335.67 within 30 days, being:

(a) Rent owed in the amount of $ $11,804.27.

(b) Legal costs in the amount of $2,501.40.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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