D&W Republic Pty Ltd v Quinn Kelk Pty Ltd [2025] QCATA 101

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: D&W Republic Pty Ltd v Quinn Kelk Pty Ltd [2025] QCATA 101 PARTIES: D&W REPUBLIC PTY LTD (applicant/appellant) v QUINN KELK PTY LTD (respondent) APPLICATION NO/S: APL138-25 ORIGINATING APPLICATION NO/S: RSL034-24 MATTER TYPE: Appeals DELIVERED ON: 31 October 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Fitzpatrick ORDERS: The Appeal Tribunal record is corrected to reflect that the Applicant is D&W Republic Pty Ltd. Leave to appeal is refused. The appeal is dismissed. The application for leave to be represented filed on 27 May 2025 is dismissed. The application for interim order (security for costs) filed on 27 May 2025 is dismissed. The application for miscellaneous matters (directions and other – additional evidence) filed on 20 June 2025 is dismissed. CATCHWORDS: LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTIONAL, POWERS AND APPEALS OF COURTS AND TRIBUNALS – EXCLUSIVITY OF JURISDICTION OF TRIBUNALS – GENERALLY – where dispute as to whether the lease was a retail business – whether there was jurisdiction to make orders APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant sought leave to appeal – where the tribunal dismissed proceedings for want of jurisdiction – -- 1 of 7 -- 2 where the applicant raises errors of law and errors of mixed law and fact in determining the meaning of a retail business – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1), s 142(3)(b) Retail Shop Leases Act 1994 (Qld) s 5C Retail Shop Leases Regulation 2016 (Qld) s 8, sch 1 Bagumya v Kakwano [2010] NSWSC 600 Chopra v Department of Education and Training (2019) 60 VR 505 Crime and Corruption Commission v Andersen [2021] QCA 222 Harrison & Anor v Meehan [2017] QCA 315 Ozibar Pty Ltd v Laroar Holdings Pty Ltd [2015] QSC 345 Seymour v Racing Queensland [2013] QCATA 179 SZ v ME and MA [2018] QCATA 21 Williams v the Queen (1986) 161 CLR 278 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) Applicant: Self-represented Respondent: B Sindel, Solicitor of Plastiras Lawyers REASONS FOR DECISION [1] I order that the Appeal Tribunal record is amended to reflect that the applicant is D&W Republic Pty Ltd (‘DWR’). [2] By Directions made 4 June 2025 the parties were required to address a preliminary issue as to whether leave to appeal should be granted. That is directed only to questions of fact or mixed law and fact. [3] To the extent that a question of law alone is raised no leave to appeal is required. However, if questions of fact and mixed law and fact are raised leave to appeal is required.1 [4] A question of law alone is one which can be stated and considered separately from the facts with which it may be connected in a given case.2 A question of fact involves what occurred between the parties. A question of mixed law and fact requires a question of fact to be determined in order to decide a question of law. [5] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 142(1), (3)(b). 2 Williams v The Queen (1986) 161 CLR 278,287. -- 2 of 7 -- 3 [6] If this matter were to progress to the hearing of an appeal the various grounds would be dealt with in the following way: (a) If grounds of appeal raise questions of law alone, as well as questions of fact or mixed law and fact, those grounds involving questions of fact or mixed law and fact will be dealt with first. (b) If leave to appeal is granted then all grounds of appeal are dealt with on a rehearing.3 (c) If leave is not granted, then the questions of law will be considered.4 [7] DWR asserts that some of its grounds are questions of law. Those grounds will be considered later in this decision. It is important that the grounds of appeal are correctly characterised because the characterisation will determine if they are subject to leave and how an appeal will proceed. Decision made 14 March 2025 [8] The Member below decided that the Tribunal does not have jurisdiction to deal with the dispute between the parties under the Retail Shop Leases Act 1994 (Qld) (‘RSLA’) because the applicant does not conduct a retail business. The Member dismissed the application under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [9] The Member found that DWR conducted a bar from the premises and that it utilised a “ghost kitchen” for the provision of food. [10] The Member concluded that a bar does not fall within the definition of a retail business as defined in the RSLA and Retail Shop Leases Regulation 2016 (Qld) (‘Regulation’).5 [11] The Member found that a restaurant is a retail business, but because other restaurants provided food to the premises, which was not prepared on site, and because the sale of food was not a significant portion of the turnover of the business, it could not be said that DWR conducted a restaurant as its whole or predominant activity, so as to fall within the definition of a retail business. Applicant’s grounds of appeal [12] DWR addresses error in a number of documents filed in the Appeal Tribunal. I have relied principally on submissions filed on 23 July 2025 which were filed in response to the Direction to address whether leave to appeal should be granted in this matter. [13] I note that the other documents filed in the Appeal Tribunal canvass the same grounds. Ground one [14] DWR submits that it was an error of law to state the key issue for determination as whether the whole or predominant use of the premises was a bar, or a bar and restaurant6 because the Member has mis-stated the test by: 3 Harrison & Anor v Meehan [2017] QCA 315 [50]. 4 Seymour v Racing Queensland [2013] QCATA 179 [18]. 5 Retail Shop Leases Act 1994 (Qld) s 5C; Retail Shop Leases Regulation 2016 (Qld) s 8, sch 1. 6 [17]. -- 3 of 7 -- 4 (a) referring to “use” of premises, when the Regulation refers to its whole or predominant “activity”; and (b) failing to apply the “predominant activity” test to the “combination of the sale, hire or supply of goods or services mentioned in Schedule 1”, but instead applies that test to a “bar, or a bar and restaurant”. [15] The Member has stated the issue for determination. The extract referred to by DWR is only part of the paragraph where the Member goes on to state why that issue needs to be determined by findings of fact. I do not think the statement of factual issues to be determined raises a question of law alone and it cannot be turned into a question of law by calling the statement a test and suggesting it should have been re-worded and applied in a particular way. [16] The ground raised is not one which informs the question of whether there is a reasonably arguable case on appeal because it does not raise an error of law, fact or mixed law and fact. Ground two [17] DWR submits that it was an error of law for the Member to state that “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.” DWR says that the Member mis-stated the test because she did not refer to the Liquor Act 1992 allowing service of meals and the supply and sale of drinks. [18] DWR seeks to characterise a statement of fact as to what appears in sch 1 as a legal test, which it is not. DWR then raises an irrelevant issue. It is not to the point that under a particular licence meals may be served with alcohol. The actual food service arrangements at the premises is to the point. [19] The ground does not raise an error of law alone. The purported ground of appeal is unlikely to succeed as it is misconceived. Ground three [20] DWR submits that an error of mixed fact and law occurred because the Member referred to the submissions of the respondent Quinn Kelk Pty Ltd (‘QK’) including that the operation of a “ghost kitchen” does not constitute a restaurant and no meals were prepared from the premises. DWR says that the “ghost kitchen” operated from day one of the lease. [21] A statement of QK’s submissions cannot raise an appealable error. Ground four [22] DWR submits that an error of mixed fact and law occurred when the Member relied on QK’s submissions that it was necessary the predominant use of the premises be a restaurant or café rather than the use being a secondary activity to the use of the premises as a bar. It is asserted the predominant use test is not the appropriate test. [23] This ground is considered with ground five below. Ground five [24] DWR submits that an error of law occurred by the Member applying a test that the business mentioned in sch 1 needs to be the whole or predominant activity of the -- 4 of 7 -- 5 business and finding that the “ghost kitchen” was not the whole or predominant activity. [25] These latter two grounds of appeal go to the heart of DWR’s case. DWR submits the Member misconstrued the legislation and as a result found that the ghost kitchen was not the whole or predominant activity carried out on the premises. Despite the plain words of s 8 of the Regulation, DWR submits that the section does not require the whole or predominant activity of the leased premises to be a restaurant, for the business conduct there to comply with the requirements of a retail business in s 8. [26] The Member has not sought to construe the definition of a retail business in s 8 of the Regulation. The Member has simply set out the section in full. [27] The Member set out the statutory framework in deciding whether the Tribunal has jurisdiction to determine an alleged retail tenancy dispute between the parties. She set out the facts which need to be determined. After making findings of fact largely by reference to the acknowledgements of DWR, the Member applied the facts to the legislation and formed a conclusion that the matter is not a retail lease dispute and there is no jurisdiction of the Tribunal to hear the dispute. [28] DWR confirmed that a “ghost kitchen” was used, that income from the service of food was limited and that there was no commercial kitchen on site, although it was planned for succeeding years. [29] In this case I consider the words used in the RSLA bear their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words. Accordingly, the question of whether they do or not is a question of fact.7 [30] No question of law alone arises in the grounds put by DWR. It is open to then consider whether leave to appeal should be granted by reference to these grounds. [31] I do not consider the grounds are reasonably arguable. The same process of reasoning was used in Ozibar Pty Ltd v Laroar Holdings Pty Ltd 8 which applied the same definition of a retail business. In that case McMeekin J was found that a nightclub was not a business mentioned in the schedule to the Regulation and that even though food or coffee might be served in the nightclub, that could not be said to be the “whole or predominant” activity of a nightclub. That service was merely incidental. Accordingly, the business of a nightclub was held not to be a retail business as defined, as the whole or predominant activity of the business did not fall within any business described in the schedule to the Regulation. By analogy the same conclusion can be reached in this matter. Ground six [32] DWR submits that it was an error of law to decide that the matter should be dismissed for want of jurisdiction, because the RSLA is intended to protect small businesses and that nothing in the RSLA caused the bar conducted by DWR to be excluded at law from application of the RSLA’s provisions. [33] Stating an objection to the outcome does not of itself raise an error of law, fact or mixed law and fact. I do not think it is reasonably arguable that even though the 7 Chopra v Department of Education and Training (2019) 60 VR 505 [88], approved in Crime and Corruption Commission v Andersen [2021] QCA 222 [37]. 8 [2015] QSC 345. -- 5 of 7 -- 6 business of a bar is not mentioned in Schedule 1, one can nevertheless conclude the bar is a retail business and that the dispute resolution provisions of the RSLA apply just because it is a small business. I adopt the conclusion of McMeekin J in Ozibar’s case that sch 1 is restrictive.9 Ground seven [34] Finally, DWR submits that it was an error of law not to agree to an expert conclave. Further, that it was an error of law not to allow eye-witness evidence as to the actual service of meals by the “ghost kitchen” arrangements in year one of the lease. [35] DWR’s own submissions to the Member below, and in the appeal submissions, confirm that the service of food was not the whole or predominant activity of the business. The Member below did not doubt that food was served at the bar. There was no need for evidence on that point. [36] As to an expert’s conclave I understand that to relate to engineering evidence as to problems with the roof of the premises. That evidence may have been relevant in dispute resolution proceedings before the Tribunal if the Tribunal had jurisdiction in the matter. Until that threshold hurdle was overcome the evidence was premature. [37] In any event, the admission of evidence does not raise solely a question of law on an appeal.10 [38] The ground of appeal has poor prospects of success. Consideration [39] Overall, I conclude that there is no reasonably arguable case of error in the decision below. [40] In the absence of arguable error, I do not consider that leave is needed to correct a substantial injustice. [41] DWR has not raised an error of law alone which should proceed to a hearing. [42] For these reasons the application for leave to appeal or appeal is dismissed. [43] Although it has not informed my decision in this matter, I note that DWR is not left without legal recourse. QK raises in its submissions that the business is no longer conducted by DWR and that there are currently Supreme Court proceedings on foot between the parties in which DWR may raise any matter which is sought to be raised in this Tribunal. [44] As a result of this order the other interlocutory applications currently before the Appeal Tribunal are dismissed. Reasons for decision refusing a stay [45] On 4 June 2025 the Appeal Tribunal decided that an application by DWR for a stay of the decision below is refused. Reasons for that decision have been sought. [46] A stay of the decision that the application is dismissed for want of jurisdiction is not a decision capable of being stayed. The decision creates no rights capable of being 9 Ibid [29]. 10 Bagumya v Kakwano [2010] NSWSC 600 [29]. -- 6 of 7 -- 7 stayed. DWR hopes by use of a stay to give jurisdiction to the Tribunal where it has been found not to exist. That is misconceived. A finding that the Tribunal has no jurisdiction is analogous to a declaration by the Tribunal. The Courts have determined that applications to stay a declaration should be refused due to the logic that there is nothing about a declaratory order that can be stayed.11 For those reasons the application to stay the decision below is refused. 11 SZ v ME and MA [2018] QCATA 21 [6], [8], [11]. -- 7 of 7 --