The collapse of a Brisbane CBD take away business ravaged by the disappearance of foot traffic at the onset of the Covid pandemic illustrates the plight of hundreds of other retail tenants whose businesses have been similarly decimated.
Di Pan took up a six year of an eatery space in MacArthur Central Shopping Centre – in Queen St Brisbane – from July 2016.
She sought rental relief under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 which led to a commercial mediation in January 2021.
The landlord offered a retrospective rent relief package – that was not taken up – in February 2021.
Because the emergency response period ended in December 2020 and was not re-instated – notwithstanding further waves of infections and work-from-home advices – it was not obliged to consider rent relief thru 2021 and early 2022.
In April 2021, Pan proposed to end the lease to which the landlord agreed subject to payment of $27,000 and the surrender of the tenant’s $25,000 bank guarantee to cover arrears.
What appeared to have been achievable, was though rejected by the tenant, upon reflecting that such a resolution would leave her insufficient funds “to meet day-to-day living expenditures”.
In June, MacArthur terminated the lease and promptly filed District Court proceedings seeking recovery of $53k for unpaid rent and unliquidated damages – ie rent foregone for the balance of the term of the lease – of $125k.
No claim was made for arrears for any part of the emergency response period – ie from 22 January to 31 December 2020 – even though a full waiver of rent for those months had not been offered in the January mediation.
On receipt of Pan’s somewhat deficient Defence – she was self represented – MacArthur then applied for summary judgement under UCPR 292 for judgement in its favour for the unpaid rent and for the unliquidated loss as “damages to be assessed”.
The application filed in October was heard the following month with Judge Deborah Holliday QC ruling ex tempore.
In resisting the claim, Pan had attempted to take refuge by contending the landlord was bound by its April 2021 offer to forego any claim for loss of future rent.
In her judgement – only published on 5 July 2022 – Her Honour observed that although negotiations along those lines had occurred, no binding agreement had been reached.
Judge Holliday considered both of the rule 292 considerations, noting that if a triable issue of law had been pleaded, the application should be refused.
“There is no triable issue of law here,” she concluded “and no real prospect” of the defence succeeding.
She granted judgement to MacArthur for the unpaid rent and for damages to be assessed in respect of the balance of the claim.