Need HELP HELP HELP

[Property Meister]

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^^^ This drives me nuts....

I had a situation a few years ago, where I was in a shopping centre lease
the kitchen exhaust was playing up, the exhaust system was one system for the entire building/complex, and had an automatic timing switch or something along the lines of that.

it had played up a few times over the past (note the building was 16 months old),

on one occassion it went down for 8-10 days straight,

imagine a kitchen full of ovens, deepfryers, grills, lights, heat lamps, plus middle of summer,

in 10 days, I made 30 calls, all ranging from secruity, secreatary, reception, operations manager, and noted the time and date of the calls,

My chef was getting dizzy spells, in fact I was surprised he didnt faint as I couldnt spend more then 5 mins in there, and by day 7, he was threatening to walk out of the job (which I dont blame him)

on approx day 3, and 6 and 9, the same operations manager who had very little technical knowledge came down, had a poke around, came back and said, people were looking at it,

it was only on day 9 or 10 that it actually got fixed,

I wrote a big whinge letter demanding compensation in the form of rent for a few months and two pages of dates and times of who I contacted and left msgs, up to 3 times per day, in the letter I also wrote that I had to turn customers away and cancel bookings

I received a response approx 6 weeks later after over 10 follow up emails for a response which in two or 3 lines said "we cannot confirm any of the details of your phone calls".

That was start of many other incidents that ultimately decided me in reassigning the lease

 

[alvin.y]

Australia is a highly contractual environment unlike some other countries. Here it depends on what is in your lease. However read it carefully as even those things may be open to interpretation. Does the lease say you cant sell milk ? If so can you sell ice cream as it is not milk. Maybe the lease says you cant sell anything that another store already sells. If so then you have problems. What is fair is irrelevant. What your contracts says is very relevant.

Have terryw reveiw it for you. He isnt the cheapest but he is good.

I just checked the copy of the lease contract signed by previous previous owner, the lease contract restricts all shops in this shopping centre.
I don't know why the copy of the contract I saw before was different from the copy of landlords.His copy just only restricts me.

By now, I realise what is fairness in Australia.Thanks.

 

[alexlee]

I just checked the copy of the lease contract signed by previous previous owner, the lease contract restricts all shops in this shopping centre.

This is irrelevant. The only contract that's relevant is the one YOU signed.

I don't know why the copy of the contract I saw before was different from the copy of landlords.His copy just only restricts me.

Not 'his' copy. Your copy. As in, the one you read, understood and signed.

By now, I realise what is fairness in Australia.Thanks.

Why did you assume things would be fair?

 

[alvin.y]

If the landlord has made you promises that the other stores in your shopping centre will not compete with you and has broken those promises then you can complain to your State fair trading department.

Yes, in my copy of the contract there states some sentenses like that.

The previous owner and the previous previous owner confirmed the landlord agree that this agreement.When the lease renewal, both the landlord and the previous previous owner put forward their request, we can not sell the goods of the lunch bar, the lunch bar can not sell our goods.So I think this is very fair and did not feel suspicious.

But when I found the lunch bar sell our goods, so I started selling sandwiches.the owner of the lunch bar kicked up a row in my store, and told the landlord. the landlord warned me not allowed to sell these items.

I mentioned the content of the contract, but the landlord does not endorse what I said, he said the contract does not have these treaties. Later, I asked the landlord to want his contract, and by now he has been no reply.

 

[alvin.y]

^^^ This is my opinion also.

This is the end result of a lack of due diligence upfront on your part.

​

^^^ This drives me nuts....

Because I do not understand the laws of Australia, I just give an example to explain whether Australia's law is same as the law of other countries in this matter.

Because of my poor English, I can only say that in such a way, this has been very difficult to me.

any way,I learned a lot here,Thanks for everyone's reply.

 

[Dazz]

Because I do not understand the laws of Australia.

Because of my poor English, I can only say that in such a way, this has been very difficult to me.

Fair enough...most people don't fully understand the impact of the laws, and quite a few have a poor grasp of quite complicated English, let alone if it is not your mother tongue.

Given those things that you acknowledge, I find it almost incredulous that you would enter an agreement and execute a contract without first consulting an English speaking lawyer who was across the retail legislation that governs your Lease to assist and advise you prior to you signing up.

 

[Terry_w]

Because I do not understand the laws of Australia, I just give an example to explain whether Australia's law is same as the law of other countries in this matter.

Because of my poor English, I can only say that in such a way, this has been very difficult to me.

Hi Alvin

I would think Australia's laws on contracts would be similar to other countries laws on contracts.

For example if you agree to do something and put it in a contract then you would be expected to do that which you promised to do.

Just because you didn't read the contract doesn't mean it is unfair.

I know in some countries that what is agreed to in contracts doesn't necessarily mean much. But here you can get into serious trouble by breaching a contract.

That is why you need to read the whole contract and make sure you understand everything in it. Then you need to use a lawyer who generally has more experience in this area and to get them to explain it to you as well and to offer their opinion on other matters which you may not be aware of or which could impact on things.

What you should do now is to go through all your contracts yourself and see what you have agreed to. Use a lawyer too.

 

[chilliblue]

I am so glad you are not one of my tenants. Stop whinging and get on with it.

It was you who entered into contractual agreement and no one else. You have no one to blame but yourself.

English is my second language but I would never use that as an excuse for poor business acumen.

 

[Francesco]

In Australia stick to law and not informal 'laws' which may be present in other countries. Contractual law is usually based on written agreement where both signed up to it with witnesses and money changing hands and registered with the state authority to show that it is non trivial and back by law. It cannot be any fairer than that. Don't put in your money if you are unsure and get a professional to advise you.

 

[Terry_w]

In Australia stick to law and not informal 'laws' which may be present in other countries. Contractual law is usually based on written agreement where both signed up to it with witnesses and money changing hands and registered with the state authority to show that it is non trivial and back by law. It cannot be any fairer than that. Don't put in your money if you are unsure and get a professional to advise you.

Actually in Australia contracts do not have to be in writing. The only exception is for those dealing with land - leases, or purchase etc.

Of course it is easier to prove if it is in writing and the terms are clearer!

 

[Francesco]

Actually in Australia contracts do not have to be in writing. The only exception is for those dealing with land - leases, or purchase etc.

Of course it is easier to prove if it is in writing and the terms are clearer!

Yes, that is why I used the word 'usually'. It is a good example of how words can make all the difference as it should in a contract.

 

[boomtown]

Dear Alvin

If your landlord induced you to enter into the lease by representing to you that the sandwich shop would not compete with you and deliberately lied to you then you may have rights against him for misleading and deceptive conduct under Australian fair trading and competition law.

Of course it needs to make sense - everyone expects sandwich shops to sell drinks so I do not think you can complain about that unless the sandwich shop was supposed to be limited to selling certain types of drinks (eg only Coke products).

If you think your landlord lied to you on purpose about what restrictions are in other leases I again suggest that you contact your local fair trading office.

Australia is a strong supporter of competition but fair competition. That means that eeryone has to do their homework but there may be some help for you if someone else deliberately misleads you.

 

[Terry_w]

Dear Alvin

If your landlord induced you to enter into the lease by representing to you that the sandwich shop would not compete with you and deliberately lied to you then you may have rights against him for misleading and deceptive conduct under Australian fair trading and competition law.

Of course it needs to make sense - everyone expects sandwich shops to sell drinks so I do not think you can complain about that unless the sandwich shop was supposed to be limited to selling certain types of drinks (eg only Coke products).

If you think your landlord lied to you on purpose about what restrictions are in other leases I again suggest that you contact your local fair trading office.

Australia is a strong supporter of competition but fair competition. That means that eeryone has to do their homework but there may be some help for you if someone else deliberately misleads you.

Or more likely it was the assignor of the lease maybe?

 

[boomtown]

Yes Alvin may also have a complaint againt the vendor / assignor. But that may be harder because the sale agreement will be full of exclusions. And its probably a 2 dollar company.

The landlord probably has deeper pockets. Its harder to run and hide with a shopping centre.

 

[coastymike]

And yet despite there potentially being verbal discussions as to what can and could not be sold a written contract was entered into and signed which said something to the contrary. Agreed with others. Independent legal advice was not sought to do things on the cheap (happens a lot) and now the pain is being felt. Welcome to Australia and maybe you will learn from this experience. Alternatively if the laws are not to an individuals like their is nothing stopping someone from returning back to home base. We don't force people to stay here.

 

[Aaron_C]

Parole evidence rule, anyone? There is the presumption that the written contract is the final contract. Pretty hard to rebut that without specific evidence - not a 'he said, she said' debate.

 

[Terry_w]

Contract would probably have a clause saying it contains all terms and no reliance on anything not in the contract should be made.

 

[Aaron_C]

Contract would probably have a clause saying it contains all terms and no reliance on anything not in the contract should be made.

Yes Terry but if all contracts were final by virtue of an exclusion clause there would be no such thing as voidable rules...all commercial lawyers would be out of a job

 

[lizzie]

But when I found the lunch bar sell our goods, so I started selling sandwiches.the owner of the lunch bar kicked up a row in my store, and told the landlord. the landlord warned me not allowed to sell these items.

Okay - so here is your situation. You signed a contract that specified you cannot sell anything the lunch bar sells. The lunch bar is also contracted to "not" sell anything you sell.

So, you found out the lunch bar was selling, say, drinks that were allocated, via contract, to your store - so instead of informing the landlord of this breach and having it resolved, you retaliated by sticking your finger up at the lunch bar and selling sandwiches (which you were not allowed to do according to the contract).

I'm a little confused about what exactly is unfair here. I would assume that, since it has been bought to landlord/management attention, that the lunch bar has ceased selling what it is not entitled to sell.

Tit for tat (in other words - you hit me I'll hit you back) is frowned upon in business in this country and very childish.

Abide by the rules - make sure the lunch bar also abides by the rules - and you'll all get along fine.

You have received lots of wonderful advice on this thread regarding making your own business a success, so stop worrying about the petty stuff and get out and do it.

p.s. Not much in life is fair ... if you have that attitude.

 

[boomtown]

The parole evidence rule and an "entire agreement" clause referred to above are directly relevant to an action brought for breach of contract.

In this situation though no one is saying that the landlord is in breach of contract. An action for misleading or deceptive conduct is a statutory cause of action which is not subject to usual limitations of contract law. The very reason the Australian Consumer Law was enacted was to deal with unfair contracts.

http://en.m.wikipedia.org/wiki/Misleading_or_deceptive_conduct