Beamond & Anor v Top Investments Pty Ltd [2016] QCATA 83

CITATION: Beamond & Anor v Top Investments Pty Ltd [2016] QCATA 83 PARTIES: Adrian Peter Beamond & Deborah Marie Smith t/as Mission Entertainment (Applicant/Appellant) v Top Investments Pty Ltd (Respondent) APPLICATION NUMBER: APL331-15 MATTER TYPE: Appeals HEARING DATE: 4 April 2016 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Traves DELIVERED ON: 13 June 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision is set aside. 3. The parties are to file in the Tribunal two (2) copies and give to each other one (1) copy of any written submissions they wish to make on whether the application for arrears of rent should be transferred to the Tribunal’s Minor Civil Dispute jurisdiction within 14 days of the date of this decision. CATCHWORDS: Jurisdiction to determine claim for arrears of rent where no valid claim for compensation by the tenant under the Retail Shop Leases Act – no entitlement to abatement of rent Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9, s 142 Retail Shop Leases Act 1994 (Qld) s 13, s 18, s 42, s 43, s 44, s 103 Thiess Pty Ltd v Warren Brothers Earth Moving Pty Ltd & Anor [2012] QCA 276 -- 1 of 6 -- 2 Seymour v Racing Queensland Limited [2013] QCATA 179 at [15]. Taylor v Webb [1937] 2 KB 283 APPEARANCES: APPLICANT: Adrian Peter Beamond & Deborah Marie Smith RESPONDENT: Top Investments Pty Ltd represented by James Fu 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). REASONS FOR DECISION [1] Adrian Beamond and Deborah Smith (‘the Tenants’) rented a shop owned by Top Investments Pty Ltd (‘the Landlord’) out of which they ran their video business. [2] A claim by the Tenants for compensation/damages and an abatement of rent and a counter-application by the Landlord for arrears of rent was determined by the Tribunal in June 2015. The Tribunal dismissed the Tenants’ claim and ordered that the Tenants pay the Landlord $15,840.00 for arrears of rent. [3] The Tenants seek to appeal that decision. Both parties made oral submissions to the Appeal Tribunal. [4] The grounds of appeal were not readily discernible from the Tenants’ written application. It was apparent, however, from the written application and their oral submissions that they considered the decision to be ‘unfair’. They considered that the premises were not up to the standard that they should have been, that they lost income because of that, the rent was excessive and it would have been fair for the Tribunal to reduce the rent they had to pay to ensure that there was no rental arrears. [5] From the written and oral submissions we have identified the following grounds of appeal: 1) The Tribunal erred in finding the Tenants were not entitled to compensation/damages from the Landlord; 2) Alternatively, if they were not entitled to compensation, the Tribunal had no jurisdiction to hear the Landlord’s claim for arrears of rent; and 3) If the Tribunal did have jurisdiction to hear the claim for rent, it erred in finding the Tenants were not entitled to an abatement of rent. [6] These grounds raise questions of law, and mixed law and fact. There is a right to appeal under s 142 of the Queensland Civil and Administrative -- 2 of 6 -- 3 Tribunal Act 2009 (Qld) (‘QCAT Act’). If the decision is being appealed on questions of law, then the appeal may be brought as of right. If however, the appeal raises issues involving questions of mixed law and fact, or only fact, leave to appeal is required.1 [7] It is accepted that where grounds of appeal involve questions of law and questions of mixed law and fact, it is important that the Appeal Tribunal not burden a right to appeal a decision on a question of law with a requirement to obtain the Tribunal’s leave to do so.2 Did the Tribunal err in dismissing the Tenants’ claim for compensation/damages? [8] This ground involves mixed law and fact. Leave is required. [9] In the proceedings at first instance the Tenants had claimed ‘compensation for damages, loss and consequential loss suffered over the forced closure of their business’.3 [10] This claim was dismissed by the Tribunal on the basis that the claim could not be made out under the relevant provision of the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’), and in any event, there was insufficient evidence to support the claim.4 [11] It is necessary to identify the nature of the Tenants’ claim. The Tenants did not articulate the claim, other than to say they had suffered loss in having to close the business, and that they say this was attributable to the Landlord. [12] The following issues arise:  Could the Tenants maintain a claim for compensation under the RSL Act? [13] It was accepted that the lease was a retail shop lease, but the terms were unclear. [14] The relevant provisions of the RSL Act relating to a claim for compensation are Part 6 Division 7 (‘Implied provisions for compensation’).5 [15] Section 42 provides that a right to compensation under the RSL Act does not apply to: a) A periodic tenancy; or 1 QCAT Act s 142(3)(b). 2 Seymour v Racing Queensland Limited [2013] QCATA 179 at [15]. 3 Beamond & Anor t/as Mission Entertainment v Top Investments Pty Ltd [2015] QCAT 254 at [2d]; Transcript 1-45 at line 30. 4 Beamond & Anor t/as Mission Entertainment v Top Investments Pty Ltd [2015] QCAT 254 at [7]. 5 RSL Act ss 42 – 44. -- 3 of 6 -- 4 b) A tenancy at will, other than a tenancy at will created by the Lessee holding over under the lease, or with the Lessor’s consent. [16] It was not disputed that the parties did agree to an initial lease of three months, but after that time, although there were further negotiations, no lease was executed. It is also not disputed that the Tenants remained in possession of the premises for approximately a further 12 months. [17] The arrangement between the parties after the three month term might be seen as either a tenancy at will, or a month to month tenancy. [18] The Tribunal concluded that following the three month period, there was a month to month (periodic) tenancy, and as such the compensation provisions in the RSL Act did not apply. [19] We find no error in that conclusion. Indeed, the parties both held the view that there was no agreement between them after the initial period of three months expired and the tenants were on a month to month arrangement. [20] It is noted that even if it was a tenancy at will, it was a ‘short term retail shop lease’,6 to which Part 6 of the RSL Act does not apply.7 [21] In these circumstances the Tenants could not make a claim for compensation under the RSL Act. [22] This is relevant to the Tenants’ appeal against the finding on the Landlord’s counter-claim discussed below.  If the claim was for damages, did the Tribunal err in dismissing the claim? [23] We consider that the claim was not a claim for compensation but was, in reality, a claim for “damages for breach of the lease and for wrongful termination”. [24] The Tribunal found that there was ‘no evidence put before the Tribunal to substantiate the amount claimed to the standard necessary’.8 [25] In their application for leave to appeal, the Tenants did not forcefully contend that this was an error. They did not take the Appeal Tribunal to any evidence which they said the Tribunal erred in not considering in support of their claim. [26] The Appeal Tribunal finds no error in the decision to dismiss the Tenants’ claim for compensation/damages. [27] The application for leave to appeal on that ground is dismissed. 6 RSL Act s 13 – definition. 7 Ibid s 18(3). 8 Beamond & Anor t/as Mission Entertainment v Top Investments Pty Ltd [2015] QCAT 254 at [7]. -- 4 of 6 -- 5 Did the Tribunal err in allowing the claim for arrears of rent in the counter- application? [28] The question is whether the Tribunal had jurisdiction to make the order in the Landlord’s favour in its counter-application seeking payment for arrears of rent. [29] QCAT’s jurisdiction is largely determined by its ‘enabling Acts’.9 [30] Section 103(1) of the RSL Act provides that QCAT has jurisdiction to hear retail tenancy disputes other than a retail tenancy dispute about arrears of rent under a retail shop lease.10 [31] QCAT will only have jurisdiction under the RSL Act to hear a dispute about arrears of rent, if ‘the dispute is also about payment of compensation by the lessor to the lessee under the lease’.11 [32] As discussed above, the Tribunal found correctly that because this lease was a periodic tenancy, the compensation provisions under the RSL Act had no application. [33] It follows that the claim is not one for “payment of compensation by the lessor to the lessee under the lease” and as such the Tribunal had no jurisdiction under the RSL Act to hear the claim for arrears of rent. [34] It is irrelevant that there was no finding made by the Tribunal below about whether jurisdiction existed. Proceeding in the absence of a jurisdictional fact is a category of jurisdictional error.12 This is an error of law, no leave is required. The appeal should be allowed and the decision set aside. Did the Tribunal err in not ordering abatement of rent? [35] Although determination of the jurisdictional issue resolves the appeal as to the abatement of rent, we make the observation that the Tenants were not entitled, without a term in the lease to that effect, to an abatement on the basis that the lessor had failed to maintain the building in which the shop was leased. The covenant to pay rent, and the covenant to repair the premises are independent.13 [36] We allow the appeal and set aside the decision that the Tenants pay the Landlord the sum of $15,840.00. [37] Whilst the Tribunal has no jurisdiction to hear the claim under the RSL Act, we note the amount of the claim is less than $25,000.00. This means that 9 QCAT Act s 9(1). 10 RSL Act s 103(1)(b)(i). 11 Ibid s 103(2)(d). 12 Thiess Pty Ltd v Warren Brothers Earth Moving Pty Ltd & Anor [2012] QCA 276 at [95]. 13 Taylor v Webb [1937] 2 KB 283. -- 5 of 6 -- 6 the claim could have been commenced in the Tribunal’s Minor Civil Dispute jurisdiction. [38] To this end, we direct the parties to file in the Tribunal and give to each other written submissions as to whether the claim for arrears of rent should be transferred to the Minor Civil Dispute list of the Tribunal. These submissions are to be provided within 14 days. -- 6 of 6 --