Apr 27, 2015

Retail tenancy dispute: Still looking for justice after 17 years

Bob and Dianne Heller still remember the day they arrived at their small business to find the locks had been changed overnight.
For years, the couple had it all: a modest cafe in the heart of suburbia; their dream home set on 1.7 acres;  peace of mind about their future retirement.
But suddenly, a retail tenancy dispute with their landlord erupted and they were evicted without warning, setting in motion a decade-long fight that would eventually cost their house, their shop and most of their savings.
Seventeen years on, Dianne and Bob Heller continue to fight for justice.
Seventeen years on, Dianne and Bob Heller continue to fight for justice. Photo: Arsineh Houspian
It's a David and Goliath battle with shades of The Castle: two small business owners versus a corporate shopping centre; a legal stoush across five different courts; and the dogged pursuit of four state governments, one federal attorney-general, and countless members of the legal fraternity.
"This is about fairness, honesty and integrity," says Mrs Heller, now 71. "If a mistake has been made then somebody should at least acknowledge it."
The Hellers' story stretches back to 1998, when the couple ran a coffee lounge at Ivanhoe Plaza, in Melbourne's north-east. A group of traders started having grievances with shopping centre management, and Mr Heller – a tenant at plaza for almost eight years – had become their unofficial spokesman.
Frustrated that the traders' complaints weren't being heard, the Hellers started withholding a portion of their monthly rent in an act of protest. Months later, after seeking to extend their lease for another five years, they were evicted without warning.
In hindsight, Mr Heller admits docking his rent probably wasn't the best way to bring the dispute to a head. However, he points out the shopping centre continued accepting his payments for almost a year before they changed the locks, and more importantly, the law was meant to protect retail tenants by ensuring they had written notice before being kicked out, including the chance to remedy any purported breaches of a lease. 
To that end, the Supreme Court agreed, finding the couple had been wrongly evicted – a judgment that was also upheld in the Court of Appeal. Yet, in a bizarre twist, the Hellers later returned to the Supreme Court to claim damages, only to have the same judge who had ruled in their favour three years earlier overturn his original decision and side with the landlord.
Legal experts agree this was highly unusual; some even describe it as a grave injustice. Put simply, instead of relying on the finality of its previous decision, the court allowed the landlord to raise a fresh argument that had not been canvassed earlier: that the Hellers had repudiated their lease by withholding part of their rent, and therefore the shopping centre's actions were appropriate. The couple, believing they had already won the case, were completely blindsided.
"Bob went back to the court to seek damages on the basis that he had been wrongfully turfed out, but then the same judge decided that in fact, Bob had terminated the lease at common law, so none of the statutory protections for tenants applied," says constitutional barrister Matt Harvey, one of several lawyers who has offered pro-bono advice to the couple over the years. "That's the real injustice."
Mr Heller tried to appeal the decision, but failed. He later sought leave to take the case to the High Court, but it wasn't granted. The Bracks Government even ended up changing the law to clarify that tenants can't just be evicted without notice – even if they are found in breach of their lease. Unfortunately for the Hellers, the change was not retrospective.
"Put it this way – we must be the only people that ever went to court that had to appeal a judgment from a case they had already won," says Mr Heller, 77. "How's that possible?"
The dining table of the couple's rented Lilydale home is filled with dozens of documents from all the people they've lobbied over the years, initially for legal recourse, but more recently, for an ex-gratia payment from the state government. There are emails to past and present attorneys-general; pleas to small business ministers from successive Labor and Liberal governments; letters to Victoria's chief justice, the Law Institute of Victoria, and countless MPs.
Most of the replies share a similar theme: sympathy with their plight, but no real commitment to address it. A recent letter from federal Attorney-General George Brandis' department, for instance, states that the "laws of Victoria are a matter for the government of Victoria". A request to discuss the case with Attorney-General Martin Pakula remains in limbo. "The Department of Justice and Regulation is examining their request and will provide advice to the Attorney-General in due course," his spokeswoman said.
An Ivanhoe Plaza spokesman said the eviction was justified because "the tenant was in substantial arrears". But Peter Strong, chief executive of the Council of Small Business of Australia believes the case highlights how the retail sector tends to be heavily stacked in favour of landlords, particularly in large shopping centres. Mr Harvey says it not only showed the importance of strong protection for tenants, but also "the need for an inexpensive dispute resolution procedure that is actually compulsory so they don't have to go through the courts".
The Hellers just want some closure. "Obviously it's very distressing," Mr Heller says, "but the fact is, justice must prevail." 

No comments: