Sticky Fingers Pty Ltd v Klooster

CITATION: Sticky Fingers Pty Ltd v Klooster [2012] QCAT 256

PARTIES:	Sticky Fingers Pty Ltd (Applicant)
v
Frank Klooster (Respondent)

APPLICATION NUMBER: RSL009-10

MATTER TYPE: Retail shop leases matters

HEARING DATE: 16 December 2011

HEARD AT: Brisbane

DECISION OF: Dr P McDermott, Member
Mr N Judge, Member
Mr D McBryde, Member

DELIVERED ON: 18 June 2012

DELIVERED AT: Brisbane

ORDERS MADE: The Queensland Civil and Administrative Tribunal dismisses the claim of Sticky Fingers (Qld) Pty Ltd (the applicant) against Frank Klooster (the respondent) for compensation.

CATCHWORDS: Compensation where the lessor substantially restricted the lessee’s access to the leased shop – unconscionable conduct – no proof of damage – application dismissed

APPEARANCES and REPRESENTATION (if any):  

APPLICANT: Mr A Netherwood

RESPONDENT: Mr F Klooster

REASONS FOR DECISION

Introduction

1. This application concerns a retail tenancy dispute under the Retail Shop Leasing Act 1994 (RSL Act) which relates to a claim by Sticky Fingers Pty Ltd (the applicant) against Mr Frank Klooster (the respondent).

2. This is the rehearing of an application for compensation brought by the applicant against the respondent.  The application was originally heard by a differently constituted Tribunal which held that the respondent was liable to pay compensation for a wrongful refusal of consent to the assignment of a lease where a refusal was purportedly made on 15 December 2009 in circumstances where there was evidence that the respondent had tendered a deed of assignment to the assignee.  On appeal it has been held that compensation is not an available remedy in these circumstances.

3. A direction has been made that this Tribunal should hear and determine whether a claim for compensation is available for loss or damage suffered by the lessee because the lessor substantially restricted the lessee’s access to the leased shop RSL Act, s 43(1)(a).  A direction has also been made that this Tribunal should hear and determine whether compensation is available for unconscionable conduct: RSL Act, s 46A(1).

Leased Premises

1. The property which is subject to the lease is a café at Montville known as Poppys, being Shop 15 at Montville Village Square situated on land described as Lot 15 on BUP104141, County of March, Parish of Maleny, Title Reference 50120057 (“the shop”).

2. The applicant and respondent are parties to a deed of variation of a lease of property dated 20 June 2007.  The original lessee under the lease, which was executed on 14 April 1999, assigned all her rights under the lease to the applicant on 12 February 2004.  On 18 February 2004 the term of the lease was renewed for a term of 3 years commencing on 14 April 2004.  The applicant exercised an option of renewal to renew the lease for a term of three years commencing on 14 April 2007.

History of the Matter

1. On 2 December 2009 the applicant entered into a contract to assign the lease for the shop to Mr Ross Taylor for $32,500.  Mr Taylor was to have paid cash for the café business.  The settlement date under the…