Ecobikes Australasia Limited v ABC Pty Ltd [2014] QCAT 679

CITATION: Ecobikes Australasia Limited v ABC Pty Ltd [2014] QCAT 679 PARTIES: Ecobikes Australasia Limited (Applicant) v ABC Pty Ltd (Respondent) APPLICATION NUMBER: RSL117-14 MATTER TYPE: Retail shop leases matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Howard DELIVERED ON: 11 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for an interim order is refused. CATCHWORDS: RETAIL SHOP LEASES – Application for interim injunction – whether arguable case – where notice to exercise option not given under s 46 of Retail Shop Leases Act 1994 – where written notice of exercise of option not given as required under lease Retail Shop Leases Act 1994 (Qld) s 46, s 63 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58 Duncan Properties Pty Ltd v Hunter [1991] 1 Qd R 101 JV Tub Group Pty Ltd v Red Carpet Real Estate Pty Ltd & Ors [2014] QSC 232 Topbeach Pty Ltd v Seafarer Investments Pty Ltd [2010] QSC 459 APPEARANCES: 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 4 -- 2 REPRESENTATIVES: APPLICANT: Ecobikes Australasia Limited is represented by MacGregor O’Reilly, Solicitors RESPONDENT: ABC Pty Ltd is represented by McLaughlins Lawyers REASONS FOR DECISION [1] On 11 December 2014, Ecobikes Australasia Limited (‘Ecobikes’) lodged a notice of dispute under the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’) with the Chief Executive. On the same day, an application for an interim order accompanied by an application for miscellaneous matters was filed by it in the Tribunal. Ecobikes seeks interim orders in essence that a notice to deliver up possession of the leased premises by 31 December 2014 not be allowed to operate pending determination of its notice of dispute, in which it seeks final orders for declarations variously that the notice is invalid, that the lease remains on foot, and that Ecobikes validly exercised its option to renew the lease. Effectively, it seeks an interim injunction restraining the lessor, ABC Pty Ltd, from taking possession of the leased premises pending the final hearing of the Notice of Dispute. [2] The notice of dispute has not yet been referred to the Tribunal, as mediation has not occurred.1 However, the Tribunal may determine the interim application at this stage. That is the only matter before me. [3] Under s 58 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), before making a final decision in a proceeding, the Tribunal may make an interim order it considers appropriate in the interests of justice. It may do so for example to protect a party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the Tribunal’s jurisdiction for the proceeding. Section 59 provides that it may make an interim injunction. [4] I made directions that the parties file and serve copies of any material and submissions to be relied upon regarding the application for an interim order. Both have done so, and additionally Ecobikes has provided a further submission in reply. Background [5] Essentially, Ecobikes says that under the lease between the parties, it was entitled to exercise an option to renew for a further period. It does not suggest that it did so in the terms set out in the lease, which required notice to be given in writing of not less than three months prior to the 1 RSL Act s 63. -- 2 of 4 -- 3 expiry of the term of the lease.2 Mr Boyer, director of Ecobikes, says only that he told Tony Kirby on several occasions that he intended that Ecobikes would exercise the option. Ecobikes further says that Mr Tony Kirby told Mr Boyer that he wanted to take possession of the premises himself. Mr Kirby denies this allegation. [6] Ecobikes bases its argument around the alleged failure of ABC to give notice to it under s 46 of the RSL Act. Section 46 provides that where a retail shop lease contains an option for the lessee to renew or extend the lease then, at least two months, but not longer than six months, before the option date, the lessor must give the lessee a written notice of the option date. Section 46 provides for a penalty of 40 penalty units. The option date is defined to mean the date stated in the lease as the date by which the lessee, if the lessee intends to exercise the option, must exercise it. Ecobikes claims that a notice under s 46 was not given. [7] ABC has provided statements, which claim that Tony Kirby, who is not a director of ABC Pty Ltd, but who is said to be authorised to act on behalf of it, on Monday 6 January 2014 under instructions from the director delivered a notice to renew pursuant to s 46 of the RSL Act to the leased premises. Mr Kirby says that he left the notice with a young male employee who informed him that he would give it to Mr Boyer, the director of Ecobikes. Mr Boyer submits that Ecobikes has not at any time had a young male employee, and that he did not receive any such notice. Should an interim order be made? [8] It is not for me on this interim application to make findings of fact or form final conclusions. The issues for consideration by me are whether the applicant has a good arguable case that may entitle it to the final orders sought, and if so, whether the balance of convenience favours the making of the order sought. [9] Section 46 provides for a penalty against a lessor who does not give a notice under the section. However, it does not provide that failure to give the notice in any way affects non-compliance as between the parties with the lease terms about the exercise of the option. Under the common law, if a party fails to exercise its option by the required date, the option lapses.3 In Topbeach Pty Ltd v Seafarer Investments Pty Ltd,4 the Supreme Court of Queensland held that non-compliance with s 46 did not affect the consequences of non-compliance as between the parties. [10] Under the lease, Ecobikes was required to give notice of its intention to exercise its option in writing not less than 3 months prior to the expiry of the term of the lease. It does not suggest that it did so. If it is the case that the landlord would have preferred that the option not be exercised and wished to take possession of the premises, that is irrelevant. The issue for 2 Clauses 15.1 and 14.3 of the lease document. 3 Duncan Properties Pty Ltd v Hunter [1991] 1 Qd R 101 at 103; JV Tub Group Pty Ltd v Red Carpet Real Estate Pty Ltd & Ors [2014] QSC 232 at [20]. 4 [2010] QSC 459. -- 3 of 4 -- 4 me is whether there is an arguable case that the option was validly exercised and whether the final relief sought by Ecobikes may be granted at the final hearing. [11] I am not satisfied that Ecobikes has presented an arguable case. Ecobikes does not suggest that it exercised the option as required under the lease terms. It appears that the option may have lapsed. As a matter of law, it appears irrelevant whether a section 46 notice was given. [12] As an arguable case has not been established, I do not need to consider the balance of convenience. [13] I refuse the application for an interim order. -- 4 of 4 --