Western Australia Supreme Court

State/Jurisdiction:Western Australia Supreme Court   Complexity: 8.5 / 10

Parties to Dispute: Plaintiff: Menswear Store, part of reasonably large retail chain
Defendant:Major A-REIT, owner of major shopping centre where store located

Type of Dispute: Alleged Breach of ‘Quiet Use & Enjoyment’ of Lease

Description of Dispute: Shopping centre management leased the space in front of the menswear shop to a juice bar. Not only did this reduce the visibility of the shop within the centre, it also set up a ‘clash of cultures’ between the shop’s client base and the groups of teenagers who frequented the juice bar and who Plaintiff alleged were‘crowding’ access and egress to the store, swearing, spilling drinks, etc.

Despite repeated attempts by Plaintiff to get centre management to address and correct this breach of quiet use and enjoyment, centre management failed to do so causing the Plaintiff to become ‘frustrated’ and file suit. This situation could easily have been avoided ‘but for”poor management and the Defendant’s ongoing ‘failure to rectify’.

Both parties were legally represented by established law firms. Plaintiff had also retained a PhD-qualified accountant as an Expert who had provided a 50-page report at a cost of $50,000. Defendant’s Expert was an economist with substantial experience in shopping centre analysis.

Instructions Received from Plaintiff:
Don was retained as a Specialist Retail Valuer to provide the following retail property consultant services:

• 1.Peer-review Expert’s report to determine whether or not the calculations of loss were sound and reasonable (a forensic accounting exercise);
• 2. Analyse and respond to report submitted by Defendant’s Expert;
• 3. Establish and detail causal links between actions of Defendant and losses of Plaintiff.

How Settled: Settlement reached at mediation based on the strength of Don’s single report

The matter did not go to hearing partly due to an illness in Plaintiff’s family. However, Don’s Expert Report was critical to the amount of damages paid to the Plaintiff by:

• 1. Establishing that Plaintiff’s Accounting Expert’s calculations were sound and reasonable, backing them up with a much simpler methodology. Using forensic analysis, Don was able to reduce the 38,000 figures used in support of the Plaintiff’s case to a single, half-page table that clearly isolatedcausal factors from inconsequential ones and showed the losses related to them.
• 2. Analysing the Defendant’s Expert’s report to reveal flawed assumptions and modelling that supported Defendant’s case and how they were used in complex graphs to produce incorrect results and support flawed arguments that did not represent the situation accurately or fairly.
• 3. Deconstructed the many assumptions and variables used in the Defendant’s case showing how some were too remote to have any causal influence and others were specious.
• 4. Used key performance indicators (KPIs) from other stores in the group and industry benchmarks to establish reasonableness of store’s performance, explored local economic and environmental factors and ultimately proved that the decline of the Plaintiff’s store could be directly linked to the shopping centre management’s actions and inaction.

Comments:

ALPC’s services were retained based on a 45-minute phone conversation in which Don’s estimate of losses incurred was similar to that arrived at by the Plaintiff’s accountant.This case took advantage of the full breadth of Don’s knowledgeand experience, including his understanding of general retail business economics (accounts and accounting principles), marketing and market analysis, retail propertyvaluation and economics, and his ability to find the important facts of a case among large amounts of complex information.