White v Downes - [2012] QCAT 450

CITATION:

White v Downes [2012] QCAT 450

PARTIES:	Sheree White (trading as Bizarre Hair) (Applicant)
v
Shane Downes Tanya Downes (Respondents)

APPLICATION NUMBER:

RSL047-12

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

17 September 2012

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member
N Judge, Member
D McBryde, Member

DELIVERED ON:

20 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. It is declared that the tenure of the Applicant is extended, by virtue of the Retail Shop Leases Act 1994, to 3 October 2012.

2. The counterclaim is dismissed.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERICAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – MINIMUM TERM OF LEASE AND RENEWAL OF TERM – where applicant leased property with option to renew – where lessor gave notice to quit after lease expired – whether notice to quit valid – whether landlord entitled to mesne profits

Retail Shop Leases Act 1994, ss 46AA, 83

Coronis v Jilt Pty Ltd & Anor [2012] QCA 66
Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285
Landers v Schmidt [1983] 1 Qd R 188
Lollis v Loulatzis & Anor [2007] VSC 547
Wilson v Kelly [1957] VR 147

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms S White in person

RESPONDENT:

Mr S Downes in person, on behalf of himself and Ms T Downes

REASONS FOR DECISION

Section 46AA

This dispute turns upon s 46AA of the Retail Shop Leases Act 1994 (‘the RSLA’). The area of factual disagreement is limited. The Applicant, Ms White, leased premises in Charters Towers, now owned by the Downes, from 1 November 2005 to 31 October 2007 with an option to renew for another 3 years. She exercised the option, thus extending her tenancy to 31 October 2010. No further option was granted.
Subsection 46AA(2) of the RLSA provides, with respect to leases including no option, that the lessor, within a specified “notice period”[1], must either offer the lessee an extension or make it plain that none will be offered. The apparent intention of the provision is that a lessee should have a reasonable opportunity to make other arrangements, if necessary.
[1] In this case, between 6 and 12 months before the lease will end: RSLA, s 46AA(6)(b).
It is common ground that the lessor did not give any such notice until April 2012, some 19 months after the lease expired.
Subject to s 46AA(4A), considered below, a landlord’s non-compliance with s 46AA(2) results, by operation of law, in an extension of the lease until notice is given.
However, in the light of s 46AA(4A) neglect of the landlord’s duty to give the statutory notice does not attract a sanction unless the lessee seeks an extension before the lease is due to expire.
Ms White states that she posted a letter to her then landlords on 1 August 2010, some three months before the expiry date, and that she received a verbal acknowledgement of receipt. Mr Downes disputes that…

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.

Continue reading White v Downes

Details

AGLC: White v Downes [2012] QCAT 450
Case: [2012] QCAT 450
Decision Date: 20 September 2012

CaseChat Overview and Summary

The matter before the court involved a dispute between White, the tenant, and Downes, the landlord, regarding the validity of a notice to quit and the entitlement of the landlord to mesne profits. The case was heard in the Supreme Court of New South Wales. The central issue was whether the landlord was entitled to terminate the tenancy and claim mesne profits after the tenant's lease had expired. The tenant argued that the lease should be extended under the provisions of the Retail Shop Leases Act 1994, while the landlord contended that the notice to quit was valid and that they were entitled to mesne profits.

The court was required to determine whether the notice to quit was valid and whether the landlord had the right to claim mesne profits. The primary legal issues included the interpretation of the Retail Shop Leases Act 1994, the validity of the notice to quit, and the consequences of the expiration of the lease term. The court had to consider whether the lease had effectively been extended under the Act and if the landlord's notice to quit was valid. Additionally, the court had to assess whether the landlord was entitled to claim mesne profits after the expiration of the lease term.

The court found that the Retail Shop Leases Act 1994 applied to the lease, extending the tenure of the tenant to 3 October 2012. The court held that the notice to quit was invalid as it was given after the lease had been extended under the Act. Consequently, the landlord was not entitled to claim mesne profits. The court dismissed the landlord's counterclaim, ruling that the notice to quit was invalid and that the tenant's tenure was extended as per the Act. As a result, the landlord was not entitled to mesne profits, and the counterclaim was dismissed.

Orders

Orders of the court

1. It is declared that the tenure of the Applicant is extended, by virtue of the Retail Shop Leases Act 1994, to 3 October 2012.

2. The counterclaim is dismissed.

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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