Ratakhin v Tabaro (No 2) - [2023] QCAT 366

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
Ratakhin v Tabaro (No 2) [2023] QCAT 366

PARTIES:

SERGEY RATAKHIN T/A FIX MY LAPTOP

(applicant)

v

SONIA TABARO

(respondent)

APPLICATION NO/S:
RSL023-23

MATTER TYPE:
Retail shop leases matter

DELIVERED ON:
12 September 2023

HEARING DATE:
5 September 2023

HEARD AT:
Brisbane

DECISION OF:
Member King-Scott

ORDERS:
1. Sonia Tabaro pay Sergey Ratakhin t/a Fix My Laptop the sum of $5,000.00 compensation by 4:00 pm on 20 October 2023.

2. Sonia Tabaro refund Sergey Ratakhin t/a Fix My Laptop the bond of $2,600.00 by 4:00 pm on 20 October 2023.

CATCHWORDS:
LANDLORD AND TENANT - RETAIL AND
COMMERCIAL TENANCIES LEGISLATION –
JURISDICTION – where dispute about the use of the
subject premises as a retail shop - where landlord refused to replace faulty air conditioner as required under the lease -where tenant refused to pay rent - where tenant locked out of premises - where both parties in breach - where tenant wanted specific performance - where landlord relet premises - compensation for loss of trade as required to work from home.

District Court of Queensland Act 1967 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Retail Shop Leases Act 1994 (Qld)

Small Business Commissioner Act 2022 (Qld)

Ratakhin v Tubaro & Anor [2023] QCAT 256

APPEARANCES & REPRESENTATION:

Applicant: Self-represented

Respondent: Ms A Dapontes as agent for the Respondent

REASONS FOR DECISION

This matter was the subject of some interlocutory applications heard and determined on the papers by Member Oliver on 5 July 2023.[1] Member Oliver referred to the background of the dispute which I adopt and repeat below with some additional information.
[1]Ratakhin v Tubaro & Anor [2023] QCAT 256
On 21 August 2021 Sonia Tubaro (the landlord) entered into a Commercial Lease Agreement (the Lease) with a company, Fix My Laptop Pty Ltd (the tenant), for premises at 38 Hudson Rd Albion. The lease was for 5 years.
On 16 December 2022 Mr Ratakhin purchased the business from Fix My Laptop Pty Ltd and kept the business name. A deed of Consent to Assign the Lease was entered into between Sonia Tubaro, Fix My Laptop Pty Ltd and Mr Ratakhin. Mr Ratakhin commenced conducting the business at the leased premises in December 2022.
Subsequently, a dispute arose between Mr Ratakhin and the landlord concerning her obligations under the lease. The first was the failure to repair an air conditioner in the leased premises. There was a failure by the landlord to remove a broken down vehicle in the carparking area which, according to Mr Ratakhin was an eyesore and detracted from the amenity of the presentation of the business to customers.
There were exchanges of emails and correspondence between Mr Ratakhin and Alexandra Dapontes, concerning these matters. Ms Dapontes represents the landlord, who is a lady of advanced years and has health issues. Ms Dapontes is an employee of Tubaro Lawyers but has no legal qualifications. The only communications Mr Ratakhin had with the landlord was through Ms Dapontes.

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: [2023] QCAT 366
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) heard a dispute between Sergey Ratakhin trading as Fix My Laptop (the applicant) and Sonia Tabaro (the respondent) regarding a commercial lease for retail shop premises at 38 Hudson Rd, Albion. The central issues were the landlord's failure to replace a faulty air conditioner as required under the lease, the landlord's refusal to remove a broken-down vehicle from the carpark, and the subsequent lockout of the tenant from the premises after withholding rent. Both parties were found to be in breach of the lease. The applicant sought compensation for loss of trade due to being forced to work from home.

The Tribunal found that the lease qualified as a retail shop lease under the Retail Shop Leases Act 1994 (Qld), as the applicant conducted both repair services and sales of computers and accessories from the premises. The Tribunal held that the landlord was obligated to replace the faulty air conditioner as it was her responsibility under the lease terms. The landlord's refusal to replace the air conditioner and remove the vandalised car amounted to breaches of the lease entitling the applicant to compensation. The Tribunal awarded the applicant $5,000.00 in compensation for loss of trade and ordered the landlord to refund the bond of $2,600.00.

The Tribunal concluded that the applicant was entitled to compensation for business disturbance as the landlord failed to rectify the air conditioning issue and neglected to remove the vandalised car, both of which substantially affected the applicant's ability to conduct business from the leased premises. The applicant's evidence demonstrated a significant decline in income after being locked out and forced to operate from home. The Tribunal assessed the compensation on a global basis, considering the loss of income, the benefit of not paying rent during the period, and the landlord's withholding of the bond. The Tribunal ordered the landlord to pay the compensation and refund the bond by 4:00 pm on 20 October 2023.

Orders