Xynias v Stones Corner Village Investments Pty Ltd [2025] QSC 281

• [1] The applicants are pharmacists who operate a pharmacy from leased premises in a shopping centre known as Stones Corner Village situated at 401-405 Logan Road, Greenslopes (but more colloquially known as Stones Corner).
• [2] The respondent is the current owner and lessor of the Stones Corner Village, more particularly described as Lot 1 on Registered Plan 12119, County Stanley, Parish Bulimba, Title Reference 17332111.
• [3] The applicants hold a registered lease in respect of Shop 4/5 on the ground floor of the Stones Corner Village bearing dealing number 715893773.
• [4] On 30 April 2025, the respondent provided to the applicants a notice purporting to relocate the pharmacy business to another building situated at 409 Logan Road, Greenslopes.
• [5] The applicants seek a declaration that the Relocation Notice is void and of no effect. The Relocation Notice was given to the applicants in the context of the fact that the respondent proposes to demolish the premises at the Stones Corner Village and build a new development, and accordingly seeks to relocate the pharmacy to a new premises nearby so as to permit the demolition of the premises to take place.

• [6] The first-named applicant, Mr Xynias has operated the pharmacy from Shop 4/5 within the Stones Corner Village shopping centre since about 1993. Since 2012 he has operated the pharmacy with his two business partners, the second and third named applicants.
• [7] The applicants were granted a registered lease over Shop 4/5 on 27 August 2012. The term of the lease was then extended by a registered amendment to the lease such that the lease now expires on 26 August 2027, with one five-year option to renew the lease until 26 August 2032, subject to the valid exercise of the option.
• [8] The Stones Corner Village shopping precinct is a substantial suburban shopping precinct which opened in 1987 and previously contained some 25 tenancies. The precinct is now substantially empty, the only lessees remaining in occupation being an Aldi store, a café/coffee shop and the pharmacy in question.

• [9] The first issue arises out of the construction of cl 13.24 of the lease which permits relocation of the pharmacy for the purposes of refurbishing, redeveloping or extending the premises. Here the question is whether relocation for the purposes of demolition and reconstruction is permitted by cl 13.24.
• [10] The second issue is whether relocation must be to an alternative premises within the same "Complex" or "retail shopping centre".
• [11] The third issue is whether the alternative premises which have been offered by the lessor is "reasonably comparable" within the meaning of cl 13.24 of the lease and s 46D(2)(b) of the Retail Shops Leases Act 1994 (Qld) ("RSLA").

• [12] Clause 13.24 of the lease provides as follows:

(1) the Lessor proposes to carry out works to refurbish, redevelop or extend the Building in which the Premises is situated during the Lease Term or any Further Term (the Relocation Works); and

(2) the Relocation Works cannot be carried out practicably without vacant possession of the Premises;

then the Lessor may from time to time relocate the business of the Lessee from the Premises to another location in the Complex (a Relocation) under this clause.

(b) If the Lessor wishes to carry out a Relocation, it must give the Lessee a written notice (a Relocation Notice) containing:

(1) sufficient details of the proposed Relocation Works to indicate a genuine proposal that the Relocation Works:

(A) are to be carried out within a reasonably practical time after the Lessee's business is relocated; and

(B) cannot be carried out practically without vacant possession of the Premises; and

(2) details of the reasonably comparable alternative premises (the New Premises) to be made available to the Lessee including:

(A) a plan showing the location of the New Premises; and

(B) the Lessor's best estimate of the annual rent payable for the New Premises, adjusted to take into account the difference in the commercial values of the Premises and the New Premises (the New Rent); and

(3) the day by which the Lessee must vacate the Premises, which must be at least 3 months from the date on which the Relocation Notice is given to the Lessee (the Relocation Day).

(c) Within 1 month after receiving the Relocation Notice, the Lessee may give the Lessor a written notice terminating this document (a Lessee Termination Notice).

(d) If the Lessee gives a Lessee Termination Notice, this document terminates on the Relocation Day.

(e) If the Lessee does not give a Lessee Termination Notice, then the Lessee is deemed to have accepted the Lessor's offer of a lease of the New Premises (a New Premises Lease) in accordance with the Relocation Notice and this clause.

(f) For the removal of doubt, the Lessor may withdraw its Relocation Notice at any time before the Lessee may give a Lessee Termination Notice, in which case this document must continue without any relocation.

(h) The Floor Area of the New Premises must not be greater nor smaller by more than ten per cent of the Floor Area of the Premises, unless the Lessee otherwise consents.

(i) The New Premises must be fitted out by the Lessor to a standard comparable to that of the Premises at the time of the fitting-out, including the removal of the Lessee's Property from the Premises and the installation of it in the New Premises. The Lessee must cooperate with the Lessor to enable the fitting-out work to be carried out.

(1) commence on the day following the Relocation Day;

(2) be for a term equal to the balance of the Lease Term applicable after the Relocation Day;

(3) require payment of the New Rent by the Lessee from its commencement; and

(4) otherwise contain the same covenants and guarantee as apply to this document as if it was a continuation of the Lease Term.

(k) The Lessee and the Guarantor must within 14 days after written request by the Lessor, sign and deliver to the Lessor:

(1) a surrender of this document and a discharge (capable of immediate registration) of any dealing concerning this document; and

(2) the New Premises Lease and guarantee and all other documents that the Lessor may reasonably require (the New Lease Documents) to facilitate the registration of them.

(1) the Lessee's reasonable legal costs, lease duty (if any and limited to the balance of the Lease Term) and registration fees for the New Lease Documents; and

(2) the Lessee's reasonable costs of the Relocation to the extent that may be required under the RSL Act (if the RSL Act applies to this document);

in full satisfaction of any Claim by the Lessee for any loss, damage or compensation concerning the Relocation.

(m) Except to the extent otherwise specified in this clause or required by legislation, as from the Relocation Day the Lessor and the Lessee mutually release and discharge each other from any Claim they may have against each other under this document, but without affecting any liability of the Lessee under this document up to and including the Relocation Day."

• [13] Clause 13.24 of the lease effectively mirrors ss 46D - 46G of the RSLA. In particular, s 46D provides:

(1) If, under the retail shop lease, the lessor requires the lessee's business to be relocated, the lessor must give the lessee a written notice under this section (a relocation notice).

(2) A relocation notice must state each of the following─

(a) sufficient details of the proposed refurbishment, redevelopment or extension to indicate a genuine proposal that─

(i) is to be carried out within a reasonably practicable time after the lessee's business is relocated; and

(ii) can not be carried out practicably without vacant possession of the leased shop;

(b) details of the reasonably comparable alternative retail shop to be made available to the lessee;

(c) the day by which the lessee must vacate the leased shop (the relocation day).

(3) The relocation notice must be given at least 3 months before the relocation day.

(4) If the leased shop is within a retail shopping centre, the alternative retail shop detailed in the relocation notice under subsection (2)(b) must be situated within the centre."

• [14] Some of the terms in cl 13.24 are defined terms under the lease. For example:

Building means the building and all other improvements (above or below ground level) erected on the Land.

(a) the Land and all other land that the Lessor may at any time incorporate into the Complex for any purpose;

(b) the Building and all other improvements (above or below ground level) erected on that land; and

but excludes any land, buildings or improvements that the Lessor may determine do not form part of the Complex.

Land means the land described on the Front sheet."

• [15] It can be accepted that the Lease is subject to the regulatory overlay of the RSLA which includes the following relevant definitions:

(1) A retail shop lease is a lease of a retail shop.

(3) Also, a retail shop lease does not include a lease of premises located in a retail shopping centre if─

(a) the premises are not used wholly or predominantly for carrying on a retail business; and

(i) if the premises are located on a level of a multi-level building - the retail area of the level is 25% or less of the total lettable area of the level; or

(ii) if the premises are located in a single level building - the retail area of the building is 25% or less of the total lettable area of the building.

(b) used wholly or predominantly for the carrying on of a retail business."

• [17] Section 5D defines a retail shopping centre as follows:

A retail shopping centre is a cluster of premises having all of the following attributes─

(a) 5 or more of the premises are used wholly or predominantly for carrying on retail businesses;

(B) if the premises are owned by the 1 person - the buildings are separated by common areas or other areas owned by the owner or a road; or

(C) if the premises are not owned by the 1 person - the buildings are separated by common areas or a road;

(d) the cluster of premises is promoted, or generally regarded, as constituting a shopping centre, shopping mall, shopping court or shopping arcade."

• [18] Pursuant to s 46E of the RSLA, within one month after receiving the Relocation Notice, the lessee may give the lessor a written notice terminating the lease. If the lessee does not give that notice, then the lessee is taken to have accepted the lessor's offer of a lease of the alternative retail shop mentioned in the Relocation Notice. By s 46F of the RSLA then, unless the lessor and the lessee agree otherwise, the terms and conditions of the lease mentioned in s 46E(3), being the new lease, are the same as the terms and conditions of the existing lease.

Issue 1 - Clause 13.24 of the lease (refurbish, redevelop or extend)

• [19] The construction issues of this clause fall to be determined, together with the factual determinations.
• [20] The first issue is whether the proposed works by the respondent are properly described as redevelopment within the meaning of cl 13.24(a)(1) of the lease, "... to carry out works to refurbish, redevelop or extend the Building in which the Premises is situated ...". No party contends the works are, or could be, refurbishment or extension.
• [21] The respondent intends to demolish the whole of the building and reconstruct new premises. The lessor submits that demolition is the first step in redevelopment.
• [22] When giving the Relocation Notice the respondent stated:

"... the redevelopment requires demolition of the Premises on the ground floor because a basement will be built directly underneath the current Premises. Accordingly, the redevelopment cannot be carried out without vacant possession of the Premises."

• [23] There is no demolition clause as part of this lease, and any precontractual negotiations dealing with the inclusion or otherwise of a proposed demolition clause are irrelevant to the construction of cl 13.24. The lease contains an entire agreement clause.
• [24] Whilst the word "demolition" does not appear in the lease, it does appear in the RSLA as a defined word, and in conjunction with the term "demolition clauses". The word "demolish" is defined in the RSLA as:

"demolish, a building, includes carry out substantial repair, renovation or reconstruction of the building that can not practicably be carried out without vacant possession of 1 or more leased shops in the building."

• [25] Elsewhere, the RSLA provides for a lessor's liability to pay compensation in respect of early termination of a lease arising from demolition (s 46K and s 43(1)(f)).
• [26] The applicants submit that the relocation works are expressly limited to refurbishing, redeveloping or extending the building in which the premises are located, and that those same words appear within the relocation provisions of the RSLA. As such, the applicants submit that where the words in a statute are transposed into a contract either by choice of the contracting parties or operation of law, the same meaning should be given to the words in the contract as they have in the statute. Accordingly, the applicants submit that where the choice of words in the lease did not include demolition, the words "refurbish, redevelop or extend" should not be construed as including the separate concept of demolition. Rather, the drafting leads to the conclusion that the separate concept of "demolition" was excluded from this lease.
• [27] The respondent submits that to carve out "demolition", which is merely the first step of "redevelopment", would be to defeat the evident commercial purpose of cl 13.24 being, to permit redevelopment with appropriate safeguards.
• [28] There was no genuine dispute as to the relevant principles of construction. In construing commercial contracts, the meaning of the words used in the contract is to be determined objectively by what a reasonable person would have understood them to mean.[1] The lease must be interpreted objectively by reference to its text, context and purpose.[2] This requires attention to the language used by the parties (text), the commercial circumstances which the document addresses (context) and the purpose of the transaction and the objects which it was intended to secure (purpose).[3] The whole of the instrument needs to be considered, and evidence of surrounding circumstances is admissible to assist in the interpretation of the contract only where the language is ambiguous or susceptible to more than one meaning, but it is not admissible to contradict the language of the contract where it otherwise has a plain meaning.[4] The court must prefer the construction that best promotes the purpose of the provision.[5]

• [40] Next, cl 13.24 requires that the relocation be "... to another location in the Complex ...".
• [41] The property into which the respondent seeks to relocate the applicants is at 409 Logan Road. It is no part of the original shopping centre known as the Stones Corner Village, which is 401-405 Logan Road. The alternative premises are what might best be described as a standalone street-front shop. 409 Logan Road is physically separated from the Stones Corner Village by another property, number 407 Logan Road, which is occupied by a Lifeline store.
• [42] 409 Logan Road was previously a vacant premises, but sometime in 2024 the building was rebranded by the respondent placing a sign upon it reading "Stones Corner Village". No tenant occupied the space.
• [43] Under the terms of the lease, "Complex" means, as defined at [14] above, firstly, the "Land" described on the Frontsheet. That Land was Lot 1 on Registered Plan 121119, County Stanley, Parish Bulimba, Title Reference 17332111. No party contended that the Land described on the Frontsheet is the same as the Land at 409 Logan Road; plainly it is not.
• [44] However, the definition of Complex goes on to include "... and all other land that the lessor may at any time incorporate into the Complex for any purpose ...". The respondent submits therefore that the premises at 409 Logan Road is "other land" that the lessor has "incorporated" into the Complex "for any purpose".
• [45] The respondent submits that the words "incorporate into the Complex" do not impose a contiguity requirement such that the land must be physically adjoining or structurally continuous to the original complex, and to read a contiguity requirement into the construction would contradict the broad language of the term. Rather, the words "all other land" and the words "for any purpose" are of very wide import, and when read together with the words "into the complex", signals that incorporation may occur for commercial, branding, redevelopment, or other purposes as the lessor determines. Accordingly, the respondent submits the words are of significant breadth and should be given their full effect.
• [46] The difficulty with the respondent's construction in my view is that what the respondent is purporting to do is not genuinely incorporating other land into the Complex but rather substituting the leased tenancy that was within the complex with some other leased tenancy outside the complex when the complex is demolished.

Issue 3 - "Reasonably comparable alternative premises"

• [50] The resolution of either the first or second issues is enough to conclude that the Relocation Notice was not a valid notice and accordingly, to grant the declarations which the applicants seek. Nevertheless, I turn to consider whether the premises at 409 Logan Road are a "reasonably comparable alternative premises" within the meaning of cl 13.24(b) of the lease.

1. The term "reasonably comparable" alternative as it is contained in cl 13.24 of the lease and s 46D(2)(b) of the RSLA has barely been considered in Queensland,[7] and the same terminology is not used in the relocation provisions of most Retail Shop Leases legislation elsewhere in Australia.[8] Only Victoria also uses the phrase "reasonably comparable" in its relocation provision.[9] In those states which do not have a similar comparability requirement, the relocation provision has nevertheless been interpreted to mean alternative premises that is comparable in terms of size, aspect, commercial value or position.[10]

• [52] "Reasonably comparable" is not the same as identical. Reasonable comparability denotes a notion of considering the amenities, location, configuration, size, services, lease terms and other aspects of the leased premises for the purposes of determining whether it is fair and appropriate in all the circumstances to allow the lessor to rely upon the relocation clause in the lease. Necessarily, the court must weigh the differences and similarities of each premises in order to reach a judgment as to whether the alternative premises is "reasonably comparable". Authorities from other jurisdictions which used the term "alternative" shop or retail premises without the descriptor "reasonably comparable", are generally unhelpful to the analysis, there having been a deliberate legislative choice to avoid language with descriptors such as "similar" or "commercial similarity".[11]
• [53] Whilst relocation necessarily involves some disruption to the tenant's business, which no doubt most tenants would find undesirable, that, of itself, is not a relevant consideration. The commercial contractual terms to which the parties have agreed must be given utility. As such, the tenant must be taken to have agreed to the disruption for the contractual purpose (redevelopment, refurbishment and extension) so long as the alternative premises are "reasonably comparable".
• [54] A number of experts gave evidence relevant to this issue, and although all of their evidence was received, subject to some minor objections, ultimately the question of whether the alternative premises is reasonably comparable is a matter for the court.

• [55] The existing pharmacy is approximately 257 square metres, plus a trade out area (included in the lease) of 14.2 square metres, all over one ground floor space, accompanied by an exclusive licence of approximately 12 square metres for storage. By comparison, the alternative premises is 269 square metres, split across two levels. The ground floor/street level comprises an area of 214 square metres which is approximately 83.5 per cent of the existing premises.[12] If the trade out area is included in the calculations, the new premises are smaller again, being only 79 per cent of the existing premises.[13] Those figures do not take into account a small area of three square metres in the alternative premises located under the stairwell which are below regulation height, which would make the alternative premises smaller again.
• [56] Of the 269 square metres of the alternative premises, the upstairs area is 55 square metres. Whilst the overall size of the premises including the first floor might not be dramatically different to the existing premises, the fact that it is over two levels rather than one is a matter of some significance in this case to which I will return.
• [57] Pursuant to cl 13.24(h) the floor area of the new premises must not be greater nor smaller by more than ten per cent of the floor area of the existing premises, unless the lessee otherwise consents. The applicant does not consent.
• [58] The ground floor and the first floor of the alternative premises are not, currently, internally connected. As one looks at the premises from Logan Road, the ground floor is accessed by a door placed about centre of the shop front. To the far right-hand end of the premises there is a set of stairs accessing the first-floor level only. That set of stairs has direct access onto Logan Road, not into the ground floor of the premises. Some witnesses described it as a public stairwell, and that is an accurate description to the extent that it is not stairwell internal between the two floors, but a stairwell onto Logan Road. For a range of reasons, to which I will return, that limits the useability of the upstairs part of the premises.
• [59] Accepting for the time being that the downstairs area of 409 Logan Road is useable as a pharmacy, it would be a pharmacy of some size difference, which difference is not immaterial.

• [61] I have referred at [58] above, to the stairs which currently provide the only access to the upstairs part of the alternative premises. I am satisfied that currently the two areas of the alternative premises are quite separate.
• [62] Mr Xynias contended that the practical and commercial operation of his pharmacy required that the pharmacists had a line of sight throughout the entire pharmacy so as to be able to responsibly administer and oversee the sale of items, whether they be prescription or non-prescription medication or other services. Whilst there was some significant dispute amongst the expert evidence as to whether there were regulatory controls or limitations which would affect the obtaining of approval for a two-storey pharmacy as opposed to a pharmacy all on one level, ultimately the configuration issue does not fall to be considered particularly by reference to those regulations.[14]
• [63] I am satisfied that the upper level cannot be practically used as part of the pharmacy. Even assuming that some items of stock that did not require a pharmacist's supervision could be placed up there, such as those also able to be purchased in a supermarket (e.g. band aids, hair products, face cream etc.), it can hardly be supposed that it is practical to expect customers to complete some purchases on the ground floor, and then walk out of the shop, onto Logan Road, and up a flight of stairs to purchase other items. Alternatively, it is impractical for customers to select items on the first floor and then walk downstairs to pay for them, journeying onto Logan Road first before locating a cash register on the ground floor.
• [64] The respondent's suggestion that the upstairs could be used for storage or staff amenities is no answer to this. Currently, the storage facilities used by the pharmacy are 12 square metres, and only part of it is being used. At the alternative premises, the first floor is 55 square metres, far more than the applicants require for storage. The upstairs area is not therefore suitable, or required, for storage. In any event, even if it was used, it would require staff to transport items for storage such a boxes up a set of stairs, in contrast to the storage area currently available directly adjacent to the loading dock. The amenity of such a storage area suggests it would be a feature that is not reasonably comparable to the existing premises.

• [69] The alternative premises has street frontage on to Logan Road whilst the existing premises is, as I have already said, within a larger retail shopping centre, albeit one that is largely empty.
• [70] The difference in location carries with it, firstly, different passing foot traffic. It can be accepted that the prospects of spontaneous purchases at the pharmacy from persons who are otherwise attending the Aldi store, or the coffee shop, is foot traffic that may not be available to the pharmacy as part of a strip shop centre. The effect on the business by the difference in passing foot traffic is difficult to determine. Whilst Mr Chapman was called to provide an expert opinion as to the commercially significant differences between the current premises and the alternative premises, he did so, in part, by reference to a foot traffic report which measured the relative number of personal mobile devices in area, comparing the numbers moving past each of the premises. That evidence was not particularly helpful because it did not separate mobile devices carried by people on foot (those who might go into the pharmacy for a spontaneous purchase), from mobile devices in vehicles merely driving past.
• [71] The applicants contend that their current premises are in close proximity to a national supermarket which is drawcard for their business and generates foot traffic. It is true that there is no supermarket close to the alternative premises, but neither is it clear that the existing supermarket will continue to remain in the shopping centre. Whilst there are a range of other shops in the general vicinity of the alternative premises, it is fair to infer that they might not draw the same amount of foot traffic as a large supermarket.
• [72] Whilst Aldi and the coffee shop might bring spontaneous shoppers to the pharmacy, it cannot be supposed that the pharmacy continues to benefit from its position more broadly in a large retail shopping complex when by far the majority of the tenancies are vacant.
• [73] Next, Mr Xynias complains that the alternative premises are further away from the medical centre at Stones Corner from which many patients receive scripts which they then fill at the pharmacy. Against this, the respondent contends that the line of sight from the medical centre to the pharmacy is clearer from the alternative premises than where the pharmacy is currently located inside the retail shopping centre. In my view, there is no appreciable difference between a slightly further away, but more visible pharmacy from the medical centre to a closer, but less visible pharmacy.

• [75] In the current retail centre, there is carparking for approximately 240 cars. Naturally not all of those are available solely for the customers of the pharmacy but easy parking access, whether it is to Aldi, the coffee shop or the pharmacy, is almost certainly assured by access to such a large number of car parks. The alternative location offers five car parks at the rear of the premises in an open-air facility. Were that parking to be used by the six members of staff, it follows that there would be little if any parking available for customers.
• [76] Even without allowing for staff parking, the reduction in car parks is a matter of some considerable significance as the alternative premises are likely to be a destination of their own for customers, as opposed to a convenience whilst attending at another destination such as Aldi or the café, hence parking becomes more important.
• [77] Whilst the larger number of car parks available within the retail complex would have at one time serviced a much larger number of tenancies within the complex, the fact remains that that significant number of car parks are now available for the use of the three remaining tenants: Aldi, the pharmacy and the café. This makes the useability of the centre for customers a matter of real significance when compared to the very limited number of car parks available at the alternative premises.
• [78] Other issues regarding parking are that the parking in the shopping centre currently provides for free parking for two hours. In contrast, there are no parking bays, free or otherwise, in front of the alternative location, rather there is a No Standing zone and a Bus zone, as well as a No Parking zone outside the post office box directly opposite the premises. There are 10 two-hour parking bays and three 15 minute parking bays further away on Logan Road, between Jeavons Lane and Old Cleveland Road, but they are some distance from the alternative location. All weather access to those parking bays is not achievable in the way access is to the current available parking. What parking there is at the alternative location is dramatically limited compared to what is available currently.
• [79] The lack of parking also creates a difficulty having regard to the nature of the business, being the supply of scheduled medications, narcotics and other drugs. That car park at the back of the proposed premises does not benefit from the casual presence of other customers to the shopping centre, with the attendant security risks for staff or other persons delivering drugs or narcotics to the premises.

• [81] The loading bay in the existing premises is accessed via a flat car park level. This allows bulk stock to be delivered by a pallet truck. The delivery area has direct access to the storeroom where supplies are kept. Daily orders, which Mr Xynias says can consist of up to 30 cartons per day, can then be delivered by trolley to the pharmacy. The alternative premises has a loading bay at the bottom of a set of stairs. Naturally enough, trolleys and pallets cannot be taken up and down the stairs. Whether it is staff or delivery drivers, someone will have to carry stock up and down stairs making delivery of bulk stock difficult to achieve.
• [82] The delivery access is not a factor in favour of reasonable comparability.

• [83] The relativities of rent are difficult to assess. According to Mr Cameron, a property valuer, there is a rental variance for stores internally within shopping centres which are generally higher than rent in smaller strip centres or freestanding building such as that in the alternative premises. He concluded that the rent variance at the existing tenancy of some $946 per square metre gross, versus $751 per square metre gross at the alternative tenancy, provided sufficient relativity between the two premises having regard to the two different types of premises that they are. While accepting the correctness of that premise, it does rather demonstrate that from a commercial perspective, the desirability of a premises inside a shopping complex is reflected by the higher rental prices which lessees are prepared to pay versus the lower rent for the freestanding or strip shop premises reflecting, no doubt, the perception, if not the fact, that it is more desirable to be within a retail complex than outside of it.
• [84] While I consider that the rent offered for the alternative premise is proper for that premises, the fact that it is some 79 per cent of the existing premises does reflect, in my view, the general lack of comparability of the two premises.

• [85] The respondent is the owner of the existing premises, but the lessor of the alternative premises; the owner of the alternative premises being a company Agilitas Pty Ltd. As such, the lease that has been offered to the applicants at the alternative premises is a sub-lease. The applicants correctly submit that there are a number of difficulties with that arrangement that makes the lease of the alternative premises not reasonably comparable.
• [86] First, the applicants would not stand in a contractual relation with Agilitas and their leasehold interest would be vulnerable to Agilitas' rights under the Head Lease; a situation which does not exist under the present arrangements.
• [87] Second, the respondent purported to cure that vulnerability by proffering an undertaking from Agilitas not to terminate the lease while the applicants remain in occupation. The undertaking was offered by Mr Stockwell who is the director of both the respondent and Agilitas. Expressly, the undertaking was not offered to the court, it was offered to the tenant. As such it was asserted to be a contract between the sub-lessor and the tenant. In that form, it seemed to me the undertaking was unlikely to be worthwhile, and the applicants do not accept it. It was not, for example, accompanied by an undertaking not to dispose of the shares in Agilitas.
• [88] Third, because the undertaking came late in the trial, it did not accompany the purported Relocation Notice. As such, the late giving of it does nothing to address whether the Notice was valid at the time it was given.
• [89] Fourth, the sub-lease could not offer to the applicants the ability to display stock outside the perimeter of the pharmacy, in the common mall walkways, as permitted by the terms of the existing lease. Mr Xynias had negotiated a term to the existing lease to trade out 995 millimetres from the lease line and to use the seasonal mall space for displays. He described this trading as "critical" to maintaining his supplier agreements and promotional income. The alternative premises, being on Logan Road, likely has little if any facility to trade in such a substantial way outside the premises because that would be to encroach onto the public footpath.
• [90] The terms of the new lease, in my view, are unlikely to be reasonably comparable.

• [91] The respondent also relied on the evidence of Jeremy McKinnon of Think Economics to offer an opinion, from an economic perspective, as to the commercial and functional similarity between both premises.
• [92] Mr McKinnon was not concerned with the operation of the applicants' business model at either premises, but rather whether the alternative space was "fit for purpose" and could sustain the levels of sales at the alternative premises. Mr McKinnon concluded that the existing premises were operationally superior because there would be more expense associated with operating over two levels such as CCTV and increased staffing. Nevertheless, he found that the alternative premises were "fit for purpose".
• [93] In particular, Mr McKinnon reviewed the sales history, turnover figures and financial statements of the applicants' business and concluded, relevantly that:

(a) front-of-shop retail sales were the smallest component of the business's sales representing approximately 15 per cent of total sales in 2025 and 16 per cent over the period between 2023 to 2025;

(b) dispensary sales were the second largest component contributing to some 40 per cent of total sales in 2025 and averaging 37 per cent between 2023 and 2025; and

(c) online sales accounted for the largest share of turnover representing 44 per cent of total sales in 2025 and an average of 48 per cent between 2023 and 2025.

• [94] From this analysis Mr McKinnon concluded that the move to the alternative premises was unlikely to have a significant financial impact upon the business given that the majority of reported sales were not dependent upon the physical shopfront location, and that the dispensary sales were unlikely to materially change having regard to the ongoing proximity to the medical centre. As such, he concluded that the relocation of the pharmacy to 409 Logan Road would "... not materially diminish the functionality of the tenancy."
• [95] Mr McKinnon's analysis that dispensary sales would remain the same in either location because of the proximity to the medical centre is not borne out. Mr Xynias gave evidence that only 20 per cent of dispensary sales came from scripts from the Medical Centre, the other 80 per cent from shoppers who were in and around Aldi. As such, being removed from close proximity to the Aldi would likely have a material impact on dispensary sales.
• [96] Whilst I can accept Mr McKinnon's assessment that the alternative space was "fit for purpose", that is not the test. In my view, this criteria is finely balanced, but I would conclude in favour of reasonable comparability, the significance overall of online sales being a compelling feature.

• [97] There are other amenity issues which it seems to me are not comparable between the two premises. For example, currently toilets are accessible to the public by a key being obtained from a tenant within the complex. The proposed toilets in the alternative premises do not provide for public access whatsoever. Whilst I find that this is a minor issue, it is still not generally comparable.

• [98] I conclude that the alternative premises are not reasonably comparable because:

(a) the layout over two levels is significantly different, as well as generally impracticable, for the applicants' business;

(b) the practically useable size of the alternative premises is appreciably smaller than the existing premises, taking into account that the upstairs part of the premises are not genuinely useable by the applicants;

(c) the different availability in car park access between the two premises is most significant;

(d) the accessibility generally of the alternative premises is significantly inferior to the existing premises when receiving and transporting deliveries to the premises; and

(e) the leasing arrangements are materially less favourable in the alternative premises.

• [99] Balancing those features against comparable features (location, proximity to the medical centre and commercial similarity), I conclude that the alternative premises is not reasonably comparable within the meaning of cl 13.24 of the lease. As a consequence, the Relocation Notice is void and of no effect.
• [100] The applicants seek to be heard as to the precise form of order, and on the issue of costs. It follows however, subject to those submissions, that I propose to make a form of order whereby there is a declaration that, on the proper construction of:

(a) the registered lease 715893773 between the respondent as lessor and the applicants as lessee of Lease Shop 4/5 situated in a building at 401-405 Logan Road, Greenslopes in the State of Queensland, which lease is more particularly described as Tenancy T4/5 on part of the ground floor of a building erected on the land owned by the respondent as shown hatched or edged in black on the sketch plan annexed to Appendix 1 of the Lease; and

(b) the Retail Shop Leases Act 1994 (Qld);

the Relocation Notice issued by the respondent to the applicants on 30 April 2025 is void and of no effect.

[1] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179.

[2] Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at 656.

[3] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350-352; Western Australian Rugby Union v Australian Rugby Union Ltd [2017] NSWSC 1174 at [37].

[4] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350-352.

[5] Acts Interpretation Act 1954 (Qld), s 14A.

[6] See Greater London Council v Holmes [1986] 2 WLR 628, where demolition for the purposes of sale was not classified as "redevelopment".

1. [7] See Enidran Pty Ltd v Mirvac Funds Ltd & Anor [2000] QSC 476; See also Lincoln & Ors v Lutwyche Shopping Centre Pty Ltd [2018] QCAT 406.

[8] Retail Leases Act 1994 (NSW), Retails and Commercial Leases Act 1995 (SA), Business Tenancies (Fair Dealing) Act 2003 (NT) and Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) all use the term "alternative shop" without the words "reasonably comparable"; Retail Leases Act 2022 (Tas) uses the term "reasonably comparable alternative premises" but the Act has not yet commenced; Leases (Commercial and Retail) Act 2001 (ACT) uses the term "alternative comparable premises".

[9] Retail Leases Act 2003 (Vic), s 55.

[10] Skiwing Pty Ltd v Trust Company of Australia (No 3) [2004] NSWADT 94; Trust Company of Australia Ltd v Skiwing Pty Ltd [2005] NSWADTAP 9.

[11] Cheng v Sydney Markets Ltd [2024] NSWSC 755 at [56].

[13] 257sqm + 14.2sqm = 271.2 x 79% = 214.24sqm.

[14] National Health (Community Pharmacy Authority Rules) Determination 2018; Pharmacy Business Ownership Act 2024 (Qld); Medicines and Poisons (Medicines) Regulation 2021 (Qld).