by Petrina  15/01/2016  248 Page Views
0 Comments  Commercial law, litigation, contracts, IP, property law
I would like to investigate whether the following matter could be prosecuted on the grounds of civil conspiracy, fraud and unlawful interference with economic interests. Also whether a concurrent action in SAT would be heard on the grounds that the losses sustained by the business could not be reasonably ascertained at the time of settlement. I have had difficulties in finding law to support this matter as it involves a commercial lease and a residential lease - the first can only be considered by SAT and the second by consumer affairs and the department of commerce. The reality is that the need to hear these matters separately by separate authorities does not provide the proper context or way to explore a broad range of behaviours.

The main actors in this case involve myself, a sole trader and owner operator of a restaurant cafe, the lessor and owner of my commercial tenancy and principal of the real estate agent managing my residential tenancy “Crofts", and my ex-defacto and ex-employee “Guest”. Crofts and Guest are best friends. Guest was guarantor to my commercial lease and Crofts was guarantor to my residential lease.

I believe that for some time prior to my separation with Guest, Guest and Crofts unlawfully conspired together to take over the management of what was a successful business, drive me from town and send me bankrupt. This was with the intention of becoming business partners, with Guest running the day-to-day operations of the restaurant and Crofts to manage the financial aspects of the business.

Originally the commercial lease was made for 11 Lowood Rd only, but this was later extended to include the adjacent building that abutted 11 Lowood Road. The new lease pertained to 11-13 Lowood Rd.

Around April last year, prior to Guest and I separating, I had been supoened by Guest’s ex-wife to produce all documents pertaining to the business.

I realised that I had inadvertently placed my original lease with the new lease that I had duly signed and returned to Crofts. When I asked Crofts to supply me with a copy of the new lease (I was in his real estate office at the time), after rummaging through a draw in his office, he briefly pulled out a file with “we can change this” and a big smiley face written on it. After hurriedly placing this away out of sight, he then claimed that documents relating to the Suki Trust (his Trust) and my commercial lease was stored at his home.

Despite asking repeatedly for a copy of the lease, it was never provided. It was around this time that Guests name appeared on statements relating to outgoings and rent for the commercial lease instead of mine.

On the day that Guest left our shared home, he appeared with Crofts and Crofts told me that I did not have a lease because it was never signed properly. I told him that this was a nonsense, given that I had been paying rent for over a year, there was now a doorway joining 11 and 13 Lowood Road and I had duly signed and returned the lease that this was a nonsense.

Unfortunately the abuse that I had suffered at home from Guest, spilled over into the work place. I could not enter my place of business without being verbally abused and physically threatened by Guest. This left me little choice but to seek a VRO on Guest, which was granted by the court. A short while before this, I had sought legal advice to confirm that I did indeed hold a valid lease. It was around this time, that Crofts inappropriately contacted my lawyer to try and negotiate a settlement between Guest and myself.

Crofts then waged a malicious attack on two fronts, designed to bankrupt my business and drive me from town.

Firstly he entered my business, told me that it had been agreed that I did hold a valid lease and then handed me a default notice and a copy of the new lease, that had contained handwritten amendments made by Crofts written over the top. This included that Crofts had removed himself as guarantor from the lease and I was to find a new guarantor. I said to Crofts that I could meet all of the conditions required in the default notice (which also said that I was 49 cents behind in the rent) except find a new guarantor. I took advice from my lawyer who said that it was unlawful for Crofts to remove himself as guarantor. Despite meeting all of the relevant conditions of the default notice and Crofts lawyers entering a discussion with my lawyers, I was locked out of my business. I then had to pay $5,000 in legal costs for my lawyers to take the matter to SAT.

In conjunction with this action, Crofts also evicted me from my residential home, without grounds and with 60 days notice. The morning of the afternoon when I was handed the documents pertaining to this, I was given two other documents, one to remove Guest from the residential lease and the other to remove Crofts as guarantor for the lease. I did sign these as my living and business arrangements had changed - it never dawned on me that I would also be evicted from my home. While I vacated the premises by the proscribed date, Guest then took another few weeks to collect his belongings and Crofts is threatening to sue me for the rent for this period (remember that Guest was put up in Crofts’ stepfathers home).

I was ultimately successful in my claim against Crofts, who had been found to wrongfully terminate my commercial lease and was ordered to make a settlement with me (two and a half months free rent). From the date of being wrongfully locked out of my business to being ordered to settle took 6 weeks. Then Crofts delayed this further, almost to the point of contempt of court - it took another 10 days for Crofts to return my keys.

In the period immediately before being heard by SAT, Crofts offered me $10,000 by way of settlement, which was to be paid towards my main supplier as well as compensating me for the value of a stock take. Considering in the time between me being abused out of the business by Guest and my retaking of the business, Guest had run up over $22,000 worth of immediate debt with my suppliers and had left the business with out any even any savings for GST or staff entitlements, this offer would have left me bankrupt in any case. Part of this offer included that Crofts be able to insert new people (Guest) into running the business in order to mitigate his costs until new tenants could be found (Guest). Why would Crofts offer me this settlement when Crofts had already terminated my lease and locked me out of the premises?

Crofts then demanded things of me that had not previously not been the status quo, for example paying the general rates in full, rather than in instalments. He also demanded that I pay outgoings that were over twice the amount stipulated in the lease agreement. This was done to put further financial pressure on me, in an attempt to drive me into insolvency.

In relation to the general rates Crofts then claimed that I had not been called to pay them for the first year. This was nonsense, and I supplied Crofts with the receipt numbers for each instalment. I was then accused of lying about the rates. I then supplied Crofts with colour photocopies of the general rates in question with attached proof of payment. I asked that these monies either be returned to me or put towards this years general rates, considering that Crofts must have charged me in error.

I also asked Crofts to make good on the terms of the lease and provide floor coverings to the front of the restaurant as well as make some structural repairs. This included fixing the drainage outside the rear of the kitchen, which caused severe flooding inside the kitchen any time we had more than light rain.

All of these requests were sent via my lawyer to Crofts’ lawyer. Croft then lied about his responsibilities and took to ignoring any requests made through my lawyer. Of course with every fruitless effort made by my lawyer resulted in more legal costs for me.

Guest and Crofts took to nightly drinking in a shed, just outside of the distance required by the VRO on Guest. Guest breached the restraining order on two occasions. The first, during a drinking session with Crofts, when Guest came to the restaurant tapping on the window to get my attention and waving at me - this was the night before the day that the directions hearing for the VRO was heard. The second, immediately after this court hearing outside the court when he got in my face, verbally abused me and told me several times “that I was going down”.

Several weeks later, Crofts entered uninvited into my business. He was very drunk and abusive and refused to leave when asked to. This resulted in the police attending and removing Crofts from the premises. When Crofts was accused by my lawyer of breaching quiet enjoyment, he denied that this episode had ever occurred and claimed that I was lying. The police incident report was supplied to Crofts’ lawyer, but this was ignored.

Ultimately the business never recovered to the state it was in before Crofts and Guest conspired to firstly deceive me into thinking I did not have a lease. As it was also clear that Crofts had no intention of ever dealing fairly with me and refused legitimate requests for proper statements concerning outgoings and the like, I chose to terminate the lease on the grounds of repudiation and estoppel.

This was ignored by Crofts too. Although I had vacated the premises on these grounds by the date that I had given, Crofts then just sent me default notices for non-payment of rent. He also inappropriately stipulated that I must not take anything from the business that had been introduced (allegedly) by Guest or I would be charged with theft.

I am not happy with my legal representation to date, they basically refused to make known to the SAT the nature of the relationships between the parties and refused to provide the context of the subsequent wrongful termination of my lease.

While I understand that I must again make an application to SAT for repudiation of the lease and damages, I am wondering if I have any course of available to me based on civil conspiracy and unlawful interference with economic interests?