The District Court at Maroochydore last week decided* in favour of commercial landlords and their real estate agent who had completed a commercial tenancy agreement and without reference to the RPD of the community title lot on which the tenant carried on its naturopathy business.

The premises were described in the lease as “11/100 Burnett Street Buderim”. Lot 11 on the BUP comprised 76m2 of office space and balcony plus two car spaces, but the agent – Trevor Hicks of Buderim – did not make any reference to the RPD or the “lot” on the lease.

At the outset everyone, including the tenant understood that only one of the garages was included. However after deciding to buy premises next door, the tenant sought to escape from the lease on the basis that the landlord had denied it the usage of the second garage that was part of Lot 11.

The tenant refused to pay rent the remaining two years of the lease and notified the agent that it no longer considered itself subject to the lease.

The landlord re-leased the premises on the basis that the new tenant be given a two-month rent-free period as an incentive. The landlord then sued the former tenant to recover the rent unpaid during occupation, its re-letting expenses and rent for the two-month incentive period.

The court had no difficulty in deciding that, notwithstanding the RPD encompassed two car spaces, the property that was the subject of the lease included only one. His honour  ruled that the tenant had wrongly repudiated the lease as a result of which the landlord was entitled to all damages connected to its breach of the lease agreement. The agent, Mr Hicks was labeled “an impressive witness”.

Despite the tenant’s argument that it constituted “unjust enrichment”, the rent foregone during the two-month rent-free period was allowed.

* Wyles v Health Pathways Pty Ltd [2010] QDC 398


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