A hairstylist who acquired a leasehold business in central Nambour in June 2019 relied upon the seller’s assurances that repairs to the premises would be carried out by the landlord.
She brought the items to the attention of the landlord – including damage to the ceiling, the “beauty wall”, skirting boards and other surfaces – but due to unavailability of tradesmen, they were never repaired during her 9 month occupation.
Landlord Amber Werchon did manage to get a plumber to the site the very same day of being notified of a leak in a drainpipe and on another occasion to get a broken down hot water system replaced.
It was storm water inundation in February 2020 through light fixtures in the ceiling from blocked gutters in the overhead awning, that appeared to be the final straw for tenant Marie Davison.
She complained about the cost of clean-ups and lost income from all of those episodes but didn’t provide particulars.
The broken drainpipe for example, restricted her to two out of four basins to work with for a week because the repair necessitated cutting the concrete floor outside of business hours, to expose and repair the pipe.
But when asked just after the heavy storm whether she intended to take up the three-year option starting on 1 July, her response was to seek the landlord’s consent to an early termination of the lease.
When such agreement was not forthcoming, she nevertheless abandoned the premises and posted the keys back to Werchon.
Not of the view that any of those incidents had prejudiced the business’s viability, Werchon filed proceedings for recovery of the rental arrears in QCAT.
Davison responded with her list of unrepaired maintenance and damage issues contending that the premises were not fit for occupation and were a safety risk not only to herself but to her clientele.
Both parties appeared self-represented before QCAT member Robert King-Scott for adjudication of the dispute.
He was of the view that Davison’s failure to raise the repair delinquencies – when asked about her lease renewal intentions by the landlord – indicated that the issue “was not uppermost in her mind”.
“Ms Davison was behind in her rent and I expect was looking for somewhere cheaper. She had some grievances but I do not believe they were the basis of her abandoning the lease”.
In any event, abandonment of the lease was not an appropriate remedy for the landlord’s failure to maintain the premises. Rather, ruled Member King-Scott, she ought to have bought a claim for compensation – if the landlord refused to agree – under s 43 of the Retail Shop Leases Act.
He ordered the tenant pay the landlord arrears of $11k and $2k for reinstatement of the premises.
Although the dispute arose at the onset of pandemic movement restrictions, no reference is made in the judgment to the application of the Covid Emergency Response regulation and the landlord’s obligation to negotiate rental relief.
Good legal advice – had Davison sought it out for the purchase of the business or when she began to encounter financial difficulties – may well have been able to produce a far more favourable result.
Amber Werchon Property v Davison [2022] QCAT 228 Member King-Scott, 23 June 2022
