Brakar Pty Ltd v Sunshine Developments (Vic) Pty Ltd [2021] QCAT 217

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brakar Pty Ltd v Sunshine Developments (Vic) Pty Ltd [2021] QCAT 217 PARTIES: BRAKAR PTY LTD (applicant) v SUNSHINE DEVELOPMENTS (VIC) PTY LTD (respondent) APPLICATION NO/S: RSL092-20 MATTER TYPE: Retail shop leases matter DELIVERED ON: 16 June 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: The Notice of dispute is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – OTHER MATTERS – dispute between commercial tenant and landlord – whether Tribunal has jurisdiction – whether a retail tenancy dispute or an eligible lease dispute – whether misconceived and lacking substance COVID-19 Emergency Response Act 2020 (Qld), s 23 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 52 Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 55, s 103, schedule Retail Shop Lease and Other Commercial Leases (COVID- 19 Emergency Response) Regulation 2020 (Qld), s 2, s 9, s 12, s 21, s 26, s 40, s 41, Schedule 1 Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) -- 1 of 5 -- 2 REASONS FOR DECISION [1] Brakar Pty Ltd (Brakar) leased premises from Sunshine Developments (Vic) Pty Ltd (the Landlord). Brakar’s lease expired. After Brakar vacated disputes arose with the Landlord over the return of the security bond under the lease. Brakar commenced these proceedings seeking the return of its full bond and various costs including the filing fee. [2] The Tribunal is required to find its power to hear and determine disputes in either the QCAT Act or an enabling Act. At a directions hearing I raised with Brakar’s director the issue of the Tribunal’s jurisdiction and made directions for the parties to file submissions to allow the Tribunal to determine, as a preliminary matter, whether the dispute is one which the Tribunal has power to hear and determine.1 No submissions have been received from either party nor has any request for an extension of time been received. [3] I now proceed to determine the issue of jurisdiction on the papers. In the absence of receiving submissions there is limited information before me. There is no suggestion in the material filed that the proceeding should be ordered to be transferred to another tribunal or court with appropriate jurisdiction.2 I do not consider the issue of transfer further. [4] I am not satisfied that the Tribunal has jurisdiction to hear and determine this dispute. The proceeding is therefore misconceived or lacking in substance and should be dismissed.3 As there has been no substantive determination of the parties’ rights they are at liberty to apply to a court with appropriate jurisdiction to have their rights determined. [5] Further, Brakar is non-compliant with directions made 17 July 2020 and 13 November 2020. The latter directions were made at a directions hearing, at which I explained the issues to Brakar’s director. Such non-compliance is delaying the resolution of the matter. Brakar has not provided a reasonable excuse for its non-compliance. The proceeding should be dismissed for non-compliance.4 Is this a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’)? [6] I am not satisfied that this is a retail tenancy dispute under the RSL Act. [7] The Tribunal has jurisdiction to hear certain retail tenancy disputes.5 [8] A retail tenancy dispute is defined as ‘any dispute under or about a retail shop lease, or about the use and occupation of a leased shop under a retail shop lease’.6 A ‘retail shop lease’ is defined as a ‘lease of a retail shop’ subject to exceptions, none of which appear to apply.7 A ‘retail shop’ means premises situated in a retail shopping centre 1 Directions 13 November 2020. 2 QCAT Act, s 52. 3 Ibid, s 47. 4 Ibid, s 48. 5 RSL Act, s 103. 6 Ibid, schedule (definition ‘retail tenancy dispute’). 7 Ibid, s 5A. -- 2 of 5 -- 3 or used wholly or predominantly for the carrying on of a retail business.8 Retail business is defined to mean a business prescribed by regulation.9 [9] The documents filed show that the leased premises were in a commercial or industrial complex rather than in a retail shopping centre. The leasing proposal and the lease attached to the Notice of dispute state the proposed or permitted use is for offices for a finance broker. Finance broking is not prescribed as a retail business.10 [10] I am not satisfied the lease is a retail shop lease and therefore I am not satisfied that this is a retail tenancy dispute. [11] I find that the Tribunal does not have jurisdiction under the RSL Act to make orders in respect of this dispute. Is this an eligible lease dispute under the COVID-19 Emergency Response Act 2020 (Qld) (the ‘COVID Act’) and the Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (‘the Regulations’)? [12] The Tribunal’s jurisdiction in relation to commercial (as distinct from domestic) tenancy disputes was expanded beyond retail tenancy disputes under the RSL Act during the pandemic. Although the Notice of dispute does not clearly seek to rely upon the expanded jurisdiction, I invited the parties to make submissions in relation to it.11 As stated earlier, none were received. [13] I am not satisfied that this is an eligible lease dispute. [14] The COVID Act is part of the State Government’s response to the pandemic. It provides for the making of regulations in respect of relevant leases, including regulations providing for dispute resolution processes, the conduct of mediations and the conferral of jurisdiction to hear and decide disputes.12 [15] Relevant lease means a retail shop lease under the RSL Act or a lease prescribed by regulation.13 [16] The Regulations were made under section 23 of the COVID Act.14 The COVID Act and the Regulations confer jurisdiction on the Tribunal in certain circumstances in respect of eligible lease disputes.15 [17] Section 41 of the Regulations sets out when a person may apply to the Tribunal in respect of an eligible lease dispute. Such an application is reliant upon a notice of dispute being given to the small business commissioner and usually pre-proceeding mediation through the small business commissioner having been undertaken or attempted.16 8 Ibid, s 5B. 9 Ibid, s 5C. 10 Retail Shop Leases Regulation 2016 (Qld), s 8(1), Schedule 1. 11 Directions 13 November 2020. 12 COVID Act, s 23. 13 Ibid, s 23(8). 14 Regulations, s 2. 15 Ibid, s 12, s 41. 16 Ibid, s 41(1)(b). -- 3 of 5 -- 4 [18] Section 12(3) provides that a lessee under an affected lease may apply to the Tribunal for an order requiring the lessor to comply with section 12(1) of the Regulations, which requires a lessor not to take a prescribed action on stated grounds.17 [19] Eligible lease disputes are affected lease disputes and small business tenancy disputes.18 [20] The Regulations provide for a response period commencing on 29 March 2020 and ending 30 September 2020 and for an extension period starting at the beginning of the day on 1 October 2020 ending at the end of the day on 31 December 2020.19 [21] The Notice of dispute was lodged with the chief executive under the RSL Act20 on 5 March 2020. It was subsequently referred to the Tribunal on 5 June 2020. [22] The Deed of Extension of Lease attached to the Notice of dispute provides that the lease term was extended to 30 November 2019. Emails attached to the Notice of dispute show that Brakar was seeking return of the security bond on 2 December 2019 after it had vacated a few days prior and that the Landlord raised issues with the state of the premises on 4 December 2019. [23] On the material before the Tribunal the dispute arose prior to the pandemic and the legislative response. [24] I am not satisfied that the COVID Act and Regulations confer jurisdiction on the Tribunal based on the documents filed. Brakar has not sought to demonstrate: (a) that the lease is an affected lease;21 (b) that the lease is a small business lease;22 (c) that the dispute is an affected lease dispute;23 (d) that the dispute is a small business tenancy dispute;24 (e) how any dispute which arose prior to the response period under the Regulations is governed by the COVID Act and the Regulations; (f) whether a notice of dispute was lodged with the small business commissioner or whether pre-proceeding mediation was conducted or attempted through the small business commissioner. Given Brakar lodged a Notice of dispute under the RSL Act on 5 March 2020, it seems unlikely that a notice of dispute was lodged with the small business commissioner;25 (g) in the absence of the above steps being taken, the basis upon which the Tribunal has jurisdiction, where the Regulations provide that a mediator’s functions 17 Ibid, s 12(3). 18 Ibid, s 21. 19 Ibid, Schedule 1. 20 RSL Act, s 55. 21 Regulations, s 5. 22 Ibid, Schedule 1. 23 Ibid. 24 Ibid. 25 Ibid, s 26. -- 4 of 5 -- 5 under Part 3 of the Regulations are in addition to the mediator’s functions under Part 9 of the RSL Act;26 (h) that the Notice of dispute seeks an order requiring the lessor to comply with s 12(1) of the Regulations, to enforce the statutory prohibition on a lessor taking a prescribed action;27 (i) that the actions of the Landlord constitute a prescribed action.28 [25] I am not satisfied that Brakar has established a right to apply to the Tribunal under either section 12(3) or section 41 of the Regulations. [26] I am not satisfied that the Tribunal has jurisdiction under the COVID Act and Regulations to make orders in respect of this dispute. 26 Ibid, s 40. 27 Ibid, s 12(3). 28 Ibid, s 9. -- 5 of 5 --