D and W Republic Pty Ltd v Quinn Kelk Pty Ltd [2025] QCAT 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: D and W Republic Pty Ltd v Quinn Kelk Pty Ltd [2025] QCAT 106 PARTIES: D AND W REPUBLIC PTY LTD (applicant) v QUINN KELK PTY LTD (respondent) APPLICATION NO/S: RSL034-24 MATTER TYPE: Retail shop leases matter DELIVERED ON: 14 March 2025 HEARING DATE: On Papers Hearing HEARD AT: Brisbane DECISION OF: Member D Brown ORDERS: The referral by a mediator of a retail tenancy dispute filed on 27 June 2024 is dismissed for want of jurisdiction. The application for leave to be represented is dismissed. The application for an expert conclave is dismissed. The request for costs is refused. Each party is to bear their own costs. 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 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 -- 1 of 6 -- 2 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) REASONS FOR DECISION [1] On 27 June 2024 the matter was referred to the tribunal by a mediator after the parties were unable to resolve the issues at mediation. [2] The dispute is brought by the applicant D and W Republic Pty Ltd who is the lessee/tenant against the respondent Quinn Kelk Pty Ltd who is the lessor/landlord. The key issues in dispute are in relation to the state of the premise, in particular the roof and the respondent’s obligations to do conduct repairs. [3] On 6 September 2024 the respondent filed an application for miscellaneous matters (strike out or dismissal) seeking the matter be dismissed due to the tribunal not having jurisdiction. 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”. 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 6 -- 3 [11] Section 8 of the Regulation provides: (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. Strike out [12] The tribunal can dismiss a proceeding if, among other things, it considers the proceeding to be frivolous, vexatious, misconceived or lacking in substance.7 [13] 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. [14] The tribunal is a creature of statute and must derive its powers from the QCAT Act or an enabling Act such as the RSLA. Unlike some Courts, it has no inherent jurisdiction. The tribunal’s powers to make orders under the RSLA are contingent on the proceeding being one of a number of certain types of “retail tenancy disputes’ which is defined by reference to the term “retail shop lease”. Is this matter a retail tenancy dispute? [15] In the present case, the initial question is whether this is a retail shop lease, in that was the premise used wholly or predominately for a ‘retail shop’. [16] The premises is a free-standing building and not situated in a retail shopping centre.8 Accordingly only the second limb of the definition can be relied upon, that is whether the premise was used wholly or predominately for the carrying on of a retail business. [17] The key issue for determination is whether the whole or predominant use of the premises was a bar, or a bar and restaurant. This is because a bar is not a retail business. Schedule 1 refers to alcoholic beverages, but it is only liquor trading for off premises consumption, which falls within the definition of a retail business, which does not include a bar. Dine-in retailing including a café and restaurant are however retail businesses under the schedule. [18] The applicant states the premise was used for carrying on a retail business, namely a restaurant and bar. In support of this, the applicant asserts: (a) The permitted use in the lease is as a 'Bar and Restaurant.9 (b) The applicant’s development approval permits a food and drink outlet.10 (c) The operations since the outset of trading have involved the service of food on the premise.11 From October 2022 when the business opened, until mid-2023 7 QCAT Act, s 47. 8 Respondent’s submissions filed on 30 October 2024; Affidavit of Geoffrey Quinn affirmed on 6 September 2024 (Quinn affidavit), para 4. 9 Item 11 of the Lease. 10 Applicant’s submissions filed 29 October 2024, para 13. 11 Ibid, 15. -- 3 of 6 -- 4 they operated as a bar and restaurant with a "ghost kitchen" arrangement with several local cafes and takeaway restaurants providing the meals. This arrangement created no significant revenue basis for the applicant.12 (d) Their business is a bar and restaurant, with the restaurant being a secondary activity to the business’s primary activity of the sale and service of alcohol.13 [19] The respondent assert that the premise is not used wholly or predominantly for a retail business, as it is a bar which is not a retail business under schedule 1 of the regulation. In support of this position, they state: (a) There was no restaurant on the premises as: (i) There is no kitchen in the premises. There was not one at the beginning of the lease and no kitchen was ever installed during the lease term, nor was there any request from the applicant to instal one.14 (ii) The applicant held a 'Commercial other - Bar' liquor license which demonstrates that its principal activity was selling liquor rather than providing meals.15 (iii) Development plans and decisions demonstrate that the use of the premise is as a bar.16 (iv) The applicant’s insurance documents state the applicant’s business is principally operator of bar/cocktail bar/live music.17 (v) Facebook posts of the applicant demonstrate they advertised the business as a bar.18 (vi) There is no record of the applicant being granted any approval or permit to prepare and serve food from the premise as required by Council regulations.19 (vii) The operation of a “ghost kitchen” does not constitute a restaurant and no meals were prepared from the premise. (b) If it was deemed there was a restaurant on the premises, it is not the predominant use, and the applicants acknowledge that it is a secondary activity to the predominant use of running a bar. [20] The difficulty for the applicant is that the business mentioned in schedule 1 needs to be the whole or predominant activity of the business. The operation of "ghost kitchens", where the applicant did not cook or make the food and they which made no significant revenue basis from, does not demonstrate that a restaurant was the whole or predominant activity of the business on the premise. The applicant in fact admits 12 Ibid 37-40. 13 Ibid, 17. 14 Quinn affidavit, para 3 and 10. 15 Ibid, para 5 and GQ-2, Respondents submissions, para 24 and 28. 16 Quinn affidavit, attachment 1-3. 17 Ibid, para 6; GQ-3. 18 Quinn affidavit [6]; GQ-3., attachment 6. 19 Affidavit of Benjamin Sindel dated 29 October 20224, para 5. -- 4 of 6 -- 5 that it was not, and the provision of food was secondary to the primary activity of the sale and service of alcohol. [21] As the sale and service of alcohol for consumption on the premises is not a retail business, this is not a retail lease dispute and there is no jurisdiction of the tribunal to hear the dispute. [22] Where a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.20 Because the tribunal does not have jurisdiction, the application is misconceived and lacking in substance. [23] Accordingly, the only appropriate order in this matter is that the referral by a mediator of a retail tenancy dispute filed on 27 June 2024 is dismissed for want of jurisdiction, pursuant to section 47 of the QCAT Act. Application for miscellaneous matters [24] The respondent has brought an application for leave to be represented and the applicant has brought an applicant for an expert conclave. Given the substantive proceedings are dismissed, there is no need to determine either of these applications and both applications are dismissed. Cost [25] The respondent asserts that the tribunal should make a cost order against the applicant to compensate the respondent for reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding given the lack of jurisdiction.21 [26] The starting point for costs is that each party must bear their own costs.22 However, the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.23 [27] The respondent acknowledged that the starting point is that each party bears their own costs but state the interest of justice favours the tribunal to make a costs order in its favour because the applicant has acted in a way that unnecessarily disadvantaged the respondent. The applicant's case is one with very low prospects and the applicant should have been aware there was no jurisdiction under the RSLA, as they have been involved in other proceedings, relating to a nightclub, where the same finding was made.24 [28] The strike out was determined early in the proceedings without the respondent having to file any significant material. The only material required from the respondent was to file a response to the application. [29] The respondent seeks costs for inconvenience and embarrassment, however they have not demonstrated what specific amount or costs they are seeking and it is unclear what 20 QCAT Act, s 47. 21 Respondent’s submissions, para 61. 22 QCAT Act, s 100. 23 Ibid, s 102. 24 Ozibar Pty Ltd v Laroar Holdings Pty Ltd [2015] QSC 345. -- 5 of 6 -- 6 the embarrassment is to the respondent, other than being embarrassed by the pleadings of the applicant. [30] The respondent seeks costs for expenses and losses but have not identified any expenses or losses or any costs paid in the proceedings. The respondent is not legally represented in these proceedings. There was a request for legal representation, but it had not been determined and the starting point within the tribunal is that parties represent themselves unless the interests of justice require otherwise.25 [31] In the circumstances of this matter, where the issue of jurisdiction was determined early in the proceedings and the respondent has not clearly identified any costs or expenses they have arising from these proceedings, the interests of justice do not warrant swaying from the ordinary position that each party should bear their own costs. Accordingly, the request for costs is refused. Orders [32] The orders of the tribunal are: The referral by a mediator of a retail tenancy dispute filed on 27 June 2024 is dismissed for want of jurisdiction. The application for leave to be represented is dismissed. The application for an expert conclave is dismissed. The request for costs is refused. Each party is to bear their own costs. 25 QCAT Act, s 43(1). -- 6 of 6 --