The applicants were the owners and managers of Gold Tip (News) Pty Ltd, a newsagency at the Mt Ommaney shopping centre leased from the respondent. Gold Tip operated the news agency until it was placed into liquidation. During the initial lease, the respondent undertook significant renovations and expansion of the centre which required the appellant to move to new premises under a new lease. The applicants sought compensation pursuant to s 43 of the Retail Shop Leases Act 1994 (Q.).
At first instance the trial judge ultimately dismissed both the applicants’ and the respondent’s claims. In doing so the trial judge concluded inter alia that reasonable compensation payable under the first lease was to be set-off in equity against the unpaid rent due to the respondent under the second lease. The applicants sought leave to appeal from the dismissal of their claims, on the grounds that the trial judge erred in failing to properly consider all of the evidence and that he was wrong to allow the set off.
Separately in his judgment, the trial judge dismissed the respondent’s contention that the claim in respect of the first lease was statute barred because it was a contract and not a specialty because of s 176 of the Land Title Act 1994 (Q.). This was the subject of a notice of contention.
The Court of Appeal refused the applicants’ application for leave to appeal. In doing so, the Court of Appeal reasoned that the claim in respect of the first lease was statute barred (upholding the notice of contention), and that the trial judge was correct to allow the set off in equity. The Court also rejected the applicants’ challenge to the trial judge’s consideration of the evidence about their claim for compensation.
David Chesterman appeared for the respondent, instructed by Norton Rose Fulbright.
The judgment is published here.