To v Choi - [2013] QCATA 27

CITATION:

To v Choi [2013] QCATA 27

PARTIES:	Mee Wah To (Applicant/Appellant)
v
Eugene Choi (Respondent)

APPLICATION NUMBER:

APL412-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon James Thomas AM QC, Judicial Member

DELIVERED ON:

11 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The appeal is dismissed.

CATCHWORDS:

APPEAL – Retail Shop Leases Act1994 dispute – claim for damages for mesne profits, compensation and other claims – damages awarded for breach of covenant of quiet enjoyment – whether such claim properly litigated – whether reasons adequate – reference to causes of action in pleading – whether landlord denied natural justice – whether Appeal Tribunal may uphold judgment on basis different from that stated by original Tribunal – whether fresh appeal needs to be brought by respondent who seeks variation of basis of judgment it seeks to uphold – where conduct of case shows issue adequately litigated

Retail Shop Leases Act 1994, ss 63,64,83,103
Queensland Civil and Administrative Tribunal Act 2009, ss 32, 146

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION

This is an appeal against the decision of a three Member QCAT Tribunal concerning a retail shop lease dispute between a landlord and a tenant.
The appellant landlord is Ms Mee Wah To and the respondent tenant is Ms Eugene Choi. It will be convenient to refer to the parties as “the landlord” and “the tenant” respectively.
The leased premises comprise part of a small shopping centre owned by the landlord at Lisson Grove. The main issue in litigation was whether the lease was in respect of 148 square metres as specified in the written lease, or whether it related only to an area of 44 square metres (an existing shop surrounded by other areas owned by the landlord) as alleged by the landlord. The area over which the landlord denied that the tenant was entitled to possession included a residential unit, garage and areas around the shop described as new enclosed area, shop extension and new store. Without those areas the shop was an ‘island’, and the landlord contended that access to the shop was dependant on the landlord’s permission and license.
The litigation commenced in QCAT, and was then referred to the Supreme Court on application by the landlord for rectification of the lease. On 24 January 2011, Fryberg J referred it back to QCAT for determination. QCAT jurisdiction therefore arose both originally and under s 64(1)(a)(iii) of the Retail Shop Leases Act 1994 (‘RSL Act’).
The Tribunal, in a carefully reasoned judgment, found in favour of the tenant and declared the lease to be as contained in the written instrument. It ordered the landlord to deliver up possession of the balance of the 148 square metres demised premises over which it had denied the right of possession to the tenant. It further ordered…

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: [2013] QCATA 27
Decision Date

CaseChat Overview and Summary

To v Choi is an appeal against the decision of a QCAT Tribunal concerning a retail shop lease dispute between the landlord and tenant. The main issue in the litigation was whether the lease was in respect of 148 square metres as specified in the written lease, or whether it related only to an area of 44 square metres as alleged by the landlord. The landlord sought a declaration that the lease was only in respect of the 44 square metres, and the tenant sought a declaration that the lease was in respect of the 148 square metres. The Tribunal found in favour of the tenant and ordered the landlord to deliver up possession of the balance of the 148 square metres demised premises over which it had denied the right of possession to the tenant, and to pay the tenant $10,000.00 by way of compensation for a failure to allow quiet possession of the whole of the demised area. The landlord appealed against the compensation order on the grounds that the tenant had not specifically sought compensation for a failure to allow quiet possession of the whole of the demised area, that there was no evidence that the tenant was not allowed quiet possession of the whole of the demised area, that the Tribunal ignored the evidence that the tenant had possession of the whole of the demised area, and that the Tribunal provided inadequate reasons for the decision. The court found that the tenant had fully litigated the issue of quiet enjoyment of the disputed area, and that the compensation award was justified by the facts found. The appeal was dismissed. The court held that the tenant's claim for compensation was sufficiently pleaded or litigated before its determination, that there was evidence supporting the Tribunal's findings, that the Tribunal's reasons were adequate, and that it was open to the Tribunal to award $10,000.00 as damages for breach of the obligation to deliver possession, or as damages for breach of the quiet enjoyment obligation.

The appeal was dismissed. The court held that the tenant's claim for compensation was sufficiently pleaded or litigated before its determination, that there was evidence supporting the Tribunal's findings, that the Tribunal's reasons were adequate, and that it was open to the Tribunal to award $10,000.00 as damages for breach of the obligation to deliver possession, or as damages for breach of the quiet enjoyment obligation. The court also held that it was in this instance open to the tenant to contend that the judgment appealed from may be properly upheld on a basis different from that stated by the primary Tribunal, and that the challenged judgment for $10,000.00 was sustainable as an assessment of mesne profits. However, the court found that such a procedure would be otiose and unnecessary, and that the only necessary order was "appeal dismissed".

Orders