D'Silva Investments Pty Ltd v Fox Eco Pty Ltd [2025] QCAT 138

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: D'Silva Investments Pty Ltd v Fox Eco Pty Ltd [2025] QCAT 138 PARTIES: D'SILVA INVESTMENTS PTY LTD (applicant) v FOX ECO PTY LTD (respondent) APPLICATION NO/S: RSL045-23 MATTER TYPE: Retail shop leases matter DELIVERED ON: 4 April 2025 HEARING DATE: On Papers Hearing HEARD AT: Brisbane DECISION OF: Member D Brown ORDERS: The Notice of Dispute as referred by a mediator filed on 18 August 2023 is dismissed for want of jurisdiction. CATCHWORDS: LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – EXCLUSIVITY OF JURISDICTION OF TRIBUNAL – GENERALLY – where the question arises as to whether or not it is a dispute that falls within the Tribunal’s jurisdiction – whether the lease is a retail shop lease – where business involves cosmetic injectables Consumer Goods (Cosmetics) Information Standard 2020 (Cth), s 6 Public Health (Infection Control for Personal Appearance Services) Act 2003 (Qld), s 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 47 Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 5D, s 103 Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1. Therapeutic Goods (Poisons Standard—February 2025) (Cth) APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 5 -- 2 REASONS FOR DECISION [1] On 18 August 2023, the matter was referred to the tribunal by a mediator after the parties were unable to resolve the issues at mediation. [2] The applicant, D'Silva Investments Pty Ltd, is the lessee/tenant and the respondent, Fox Eco Pty Ltd, is the Lessor/Landlord. When the application was first referred it had “Injectables by Tyler Rose” as the applicant, which was the trading name of the store on the premise. This was corrected in February 2024 to the correct parties as per the lease when D’Silva Investments Pty Ltd was named as the applicant and Injectables by Tyler Rose was removed as an applicant. [3] The dispute is about maintenance obligations of the respondent under the lease and the ability of the applicant to collect their property after the termination of the lease. What is the Tribunal’s jurisdiction? [4] The tribunal has jurisdiction to determine matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an enabling Act.1 [5] The enabling Act here is the Retail Shop Leases Act 1994 (Qld) (‘RSLA’). The RSLA and the Retail Shop Leases Regulation 2016 (Qld) (‘the Regulation’) provide specific pathways to resolve certain disputes between certain tenants and landlords. Not all disputes between commercial tenants and landlords may be resolved by the tribunal. [6] Under the RSLA, the tribunal has jurisdiction to hear ‘retail tenancy disputes’.2 [7] The phrase ‘retail tenancy dispute’ is defined in the RSLA to mean: any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.3 [8] ‘Retail shop lease’ is defined in the RSLA4 to mean “a lease of a retail shop”. A number of exceptions as to what constitutes a ‘retail shop lease’ are contained in subsections 5A (2) and (3), however none of which apply in this matter. [9] ‘Retail shop’ is defined in the RSLA5 to mean premises that are: Retail shop means premises that are — (a) situated in a retail shopping centre; or (b) used wholly or predominantly for the carrying on of a retail business. [10] ‘Retail business’ is defined in the RSLA6 to mean “a business prescribed by regulation as a retail business”. [11] Section 8 of the Regulation provides: 1 QCAT Act, s 9(1). 2 RSLA, s 103(1). 3 Ibid, Schedule. 4 Ibid, s 5A. 5 Ibid, s 5B. 6 Ibid, s 5C. -- 2 of 5 -- 3 (1) For section 5C of the Act, a business is a retail business if — (a) it is a business mentioned in schedule 1; or (b) its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in schedule 1. (2) The wholesale sale of goods is not a retail business. Is this matter a retail tenancy dispute? [12] In the present case, the initial question is whether this is a retail shop lease, in that, was the premise used for a ‘retail shop’. [13] On 14 November 2025, directions were issued requiring both parties to file evidence and submissions as to whether the dispute is a retail tenancy dispute having regard to the RSLA and the definitions of retail shop and retail business. The applicant did not comply with the directions, and the compliance date was extended for both parties. [14] Both parties provided submission which addressed the substantive issues of the dispute but did not address the jurisdictional issues as to whether this is a retail shop lease dispute which invokes the tribunal’s jurisdiction. [15] Neither party’s submissions were of any assistance to the tribunal as to the preliminary issue of jurisdiction as neither party addressed the issues as requested by the tribunal. [16] The lease is on a retail shop tenancy agreement demonstrating it was the intention of the parties for it to be bound by the RSLA. However, the parties intention, while one factor to consider, does not bind the tribunal. Notwithstanding the position of the parties, it is important for the tribunal to be satisfied that it has jurisdiction to deal with the dispute. [17] If the lease is not a retail shop lease, then the proceedings would be misconceived and lacking in substance because the tribunal would have no power to make the orders sought and the proceedings may be dismissed or struck out.7 It is a significant step to dismiss or strike out a proceeding prior to a full hearing of a matter; however, where it is clear that the tribunal has no jurisdiction then it is appropriate. [18] There is no evidence to suggest that the premise was situated in a retail shopping centre, so the question to be determined is whether the premise was used wholly or predominately for the carrying on of a retail business. [19] It is clear the predominate use of the premise was for carrying on an injectable cosmetics business.8 [20] In the list of businesses, goods or services under schedule 1 of the Regulation there is a section for ‘Pharmaceuticals, cosmetic and toiletry retailing’. The issue is that cosmetic injectables is not a business, good or service specifically prescribed under this section or elsewhere in the schedule. 7 QCAT Act, s 47. 8 Permitted use in the lease was beauty and injectable studio. Exclusivity was ticked and stated it relates to cosmetic injectables. -- 3 of 5 -- 4 [21] The applicant did not provide any submissions to identify how they state they are a retail business in light of the fact cosmetic injectables are not specifically referenced in the Regulation. Under the Regulation, there is reference to “ beauty salon”, “beauty products” and “cosmetics, which would be the closest examples to cosmetic injectables. [22] The Macquarie dictionary (9th Edition) defines Beauty salon as “establishment where hairdressing, manicuring, facials etc are performed. [23] The applicant does not seem to suggest that their shop was a beauty salon, instead referred to it in their material as a medical clinic or clinic.9 [24] Beauty therapy is defined in section 11 of Public Health (Infection Control for Personal Appearance Services) Act 2003 (Qld) as meaning “a procedure, other than hairdressing, intended to maintain, alter or enhance a person’s appearance, including the following— (a) facial or body treatments; (b) application of cosmetics; (c) manicure or pedicure; (d) application of, or mending, artificial nails; (e) epilation including by electrolysis or hot or cold wax. [25] Cosmetic Product is defined in section 6 of the Consumer Goods (Cosmetics) Information Standard 2020 (Cth) as meaning “a substance or preparation intended for placement in contact with any external part of the human body, including: (a) the mucous membranes of the oral cavity; and (b) the teeth; with a view to: (c) altering the odours of the body; or (d) changing its appearance; or (e) cleansing it; or (f) maintaining it in good condition; or (g) perfuming it; or (h) protecting it. [26] Cosmetic injectables do not fit within the ordinary meaning of beauty salon, beauty products or cosmetics. Cosmetic injections are serious medical procedures that involve injecting a substance under your skin to change an aspect of your appearance (e.g. reducing the appearance of wrinkles or lines on your face).10 9 Affidavit of David D’Silva dated 13 November 2023 at para 1 and 5; submission received 6 January 2025. 10 Australian Government Department of Health and Aged Care, ‘Cosmetic injections’ (Web Page) https://www.tga.gov.au/products/medical-devices/cosmetic-injections. -- 4 of 5 -- 5 [27] Cosmetics and beauty products do not generally require any specific storage or administration requirements. Whereas cosmetic injectables require strict storage requirements, have buying restrictions and strict dispensing requirements. [28] This is due to the fact that cosmetic injectables are schedule 4 controlled substances under the Therapeutic Goods (Poisons Standard—February 2025) (Cth).11 They are prescription only medication that have restrictions on advertising and purchasing, and they can only be administered by a registered health practitioner, such as a medical practitioner, dentist, or nurse practitioner.12 [29] In the circumstances, it would be an unreasonable stretch to suggest that a business involving cosmetic injectables falls within the definition under schedule 1 of a beauty salon, cosmetics or beauty products. [30] Accordingly, as the sale and/or provision of cosmetic injectable is not a retail business as prescribed in schedule 1 of the regulation, this is not a retail lease dispute and there is no jurisdiction of the tribunal to hear the dispute under the RSLA. [31] In the absence of submissions addressing the basis upon which the tribunal has power to determine the application, given there is no jurisdiction under the RSLA, the tribunal is not satisfied that there is any jurisdiction to hear this matter. [32] Where a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.13 Because the tribunal does not have jurisdiction, the application is misconceived and lacking in substance. [33] Accordingly, the only appropriate order in this matter is that the Notice of Dispute is dismissed for want of jurisdiction, pursuant to section 47 of the QCAT Act. Orders [34] The Notice of Dispute as referred by a mediator filed on 18 August 2023 is dismissed for want of jurisdiction. 11 And in the Therapeutic Goods (Poisons Standard—October 2024) Instrument 2024 (Cth) which was superseded by the February 2025 version. 12 APHRA fact sheet; Supporting a safe choice about cosmetic injectables (Web page) https://www.ahpra.gov.au/Resources/Cosmetic-surgery-hub/Information-for-the-public/Thinking- about-cosmetic-injectables.aspx. 13 QCAT Act, s 47. -- 5 of 5 --