State/Jurisdiction: D & M Pelle Holdings Pty Ltd v Cottrell Pty Ltd (No 2) …
Complexity: 8.5 / 10
Parties to Dispute:
Plaintiff: QCAT 033 – 11 Nobilio & Christodoulou t/a Essentials vs ISPT Pty Ltd https://www.sclqld.org.au/caselaw/QCAT/2013/206
Type of Dispute:
Alleged Breach of ‘Quiet Use & Enjoyment’ of Lease
Description of Dispute: Significant disruption in Wintergarden Shopping Centre. Reduce visibility of shop due to kiosk.
Centre management failed to address and correct this breach of quiet use and enjoyment and thereby frustrated the lease.
Both parties represented by established law firms.
- Provide detailed report to consider “wider market influences on the business” i.e. isolate causation factors back to the alleged dispute; and
- Evaluate “reasonable loss” for purpose of breach of lease.
We were retained as a Specialist Retail Valuer to:
- Evaluate “reasonable loss” in this matter (a forensic accounting exercise);
- Ferrier Hodgson were respondents; they copied our methodology and made miniscule changes in assumptions and presented slightly different outcomes;
- All our work paralleled the Applicant’s Chartered Accountants, Bentleys work;
- The Respondents has a major Melbourne firm who sought to neutralise the Tenant’s claim;
- My forensic evaluation was that the Shopping Centre Council has to be tipping money into the defence and that there had to be collusion between the Defendant’s Experts;
- Notwithstanding that Tribunal favoured Ferrier Hodgson’s calculations, based on our methodology subject to minor changes and the Tribunal made slightly different assumptions aka time-lines.
Highest decision ever in Retail Shop Leases Tribunal; but the kudos was awarded to Ferrier Hodgson. We have zero time for these shenanigans which seems to be embedded into our legal system in Queensland.