Chas Straker Pty Ltd as trustee for Dianne Crea Family Trust and Anor v Orsay Holdings Pty Ltd [2011] QCAT 676

CITATION: Chas Straker Pty Ltd as trustee for Dianne Crea Family Trust and Anor v Orsay Holdings Pty Ltd [2011] QCAT 676 PARTIES: Chas Straker Pty Ltd as trustee for Dianne Crea Family Trust Nadmec Nominees Pty Ltd as trustee for the N & Z Mecanovic Family Trust t/as The Deck Restaurant (Applicants) v Orsay Holdings Pty Ltd t/as Whale Bay Marina (Respondent) APPLICATION NUMBER: RSL049-11 MATTER TYPE: Retail shop leases matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: Orders made 20 June 2011; Reasons delivered 23 June 2011 DELIVERED AT: Brisbane ORDERS MADE: The Application for an interim order or injunction is refused. CATCHWORDS: INTERIM ORDER – whether necessary to protect a party’s interests – whether necessary to secure the effectiveness of the Tribunal’s jurisdictions INJUNCTION – INTERLOCUTORY INJUNCTION – whether just and convenient – whether serious question to be tried – whether balance of convenience favours grant Queensland Civil and Administrative Tribunal Act 2009, ss 58(1)(a), 59(1), (6)(a) Australian Course Grain Pool Pty Ltd v -- 1 of 3 -- 2 Barley Marketing Board of Queensland (1982) 46 ALR 398 applied APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Chas Straker Pty Ltd (as trustee for Dianne Crea Family Trust) and Nadmec Nominees Pty Ltd (as trustee for the N & Z Mecanovic Family Trust) trading as The Deck Restaurant are the applicants. They are the lessees of a restaurant trading under that name. The Respondents, Orsay Holdings Pty Ltd trading as Whale Bay Marina, are their lessors. The Deck Restaurant is situated at Whale Bay Marina, Buccaneer Avenue Hervey Bay. [2] Straker and Nadmec have leased the premises since July 2006. Since at least May 2009 they have had some issues paying their rent on time and in full. On 18 May 2011 Straker and Nadmec were sent a Notice to Remedy Breach for failure to pay outstanding rental arrears. [3] By letter dated 24 May 2011 Straker and Nadmec informed Orsay they had lodged a Notice of Dispute with QCAT. That application was received by the Tribunal on 27 May 2011. It claims compensation for loss of income allegedly arising from an obstruction to the view enjoyed by the restaurant caused by Orsay parking its boat in the Marina. [4] By fax dated 27 May 2011 Straker and Nadmec notified Orsay that they did not have the means to pay the rental arrears. On 30 May 2011 Orsay re-took possession of the premises and changed all locks. [5] On 30 May 2011 the Straker and Nadmec made an application for an interim order or injunction which would require Orsay to put them back in possession of the restaurant. On 20 May 2011 the application was refused, these are the reasons for that decision. [6] The Tribunal may make an interim order if it considers it appropriate in the interests of justice, including, for example to protect a party’s position for the duration of the proceeding.1 [7] Here, it is not clear how an interim order would protect Straker and Nadmec’s position. Straker and Nadmec are in breach of the lease for failure to pay rental arrears, this is not in dispute. Both parties have attached, largely the same, correspondence to their submissions. The correspondence reveals that Straker and Nadmec are not in a position to satisfy the outstanding rental arrears. Whilst they have made offers to pay some rent at a reduced rate, they are not in a position to meet the rent as it stands, and when it falls due, though it attributes this to Orsay’s conduct. 1 Queensland Civil and Administrative Tribunal Act 2009, s 58(1)(a). -- 2 of 3 -- 3 [8] An interim order is not necessary to secure the effectiveness of Straker and Nadmec’s position. Their claim is in damages and that is not hampered by whether or not Straker and Nadmec are in possession of the premises. Orsay’s ability to meet a judgement for damages will not be secured by an interim order. [9] The Tribunal may grant an injunction if is just and convenient to do so.2 In so doing it may require an undertaking as to damages.3 In this case, I am not persuaded that it would be just and convenient to grant one, particularly given Straker and Nadmec are not in a position to give an undertaking as to damages. [10] The usual test applied by the courts when considering whether or not to grant an interlocutory injunction is to determine whether there is a serious question to be tried,4 and then to determine the matter on the balance of convenience.5 [11] There may well be a serious question to be tried on Straker and Nadmec’s claim, but that is not affected by whether or not the injunction is granted. The injunction is sought to undo action Orsay was, apparently, entitled to take because of Straker and Nadmec’s ongoing default in meeting rental payments. It does not address the matter which is the subject of the claim, therefore. [12] The balance of convenience does not favour Straker and Nadmec. The Tribunal can not make an order preventing Orsay from exercising all and any rights under the lease. The evidence before this Tribunal suggests that Straker and Nadmec are likely to fall into breach again; in fact it is the foundation of its claim against Orsay. Straker and Nadmec could not, therefore, provide a meaningful undertaking as to damages. [13] If an injunction is granted, Orsay would be prevented from exercising their rights under the lease and would be exposed to ongoing loss. On the other hand, if it is not granted, Straker and Nadmec’s claim, in damages, against Orsay will not be adversely affected. [14] The application for an interim order or injunction is refused. 2 Queensland Civil and Administrative Tribunal Act 2009, s 59(1). 3 Queensland Civil and Administrative Tribunal Act 2009, s 59 (6)(a). 4 Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 per Gibbs CJ approving the formulation made by the House of Lords in American Cyanamid Co v Ethicon Ltd [1975] AC 396. 5 Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398. -- 3 of 3 --