C.P.E Pty Ltd v QIC Logan Hyperdome Pty Ltd [2008] RSLT 11

[2008] RSLT 11 THE RETAIL SHOP LEASES TRIBUNAL In the matter of Dispute No. 2008/0020 C.P.E. PTY LTD (ACN 096 965 141) (subject to Deed of Company arrangement) Claimant - and - JOHN CLIFFORD LONGHURST and QIC LOGAN HYPERDOME PTY LTD (ACN 076 279 699) Respondents BEFORE: KF Watson (Chair) Appearances: Mr Stephen Hurford, Solicitor, for the Respondents No appearance for and on behalf of the Claimant DECISION ON JURISDICTION Given in Brisbane on the 27 th day of August 2008 -- 1 of 8 -- Decision Dispute 2008/0020 2 The Application 1. This matter was brought before myself pursuant to directions made after the solicitor for the Respondents indicated that the Respondents had a jurisdictional objection to the Notice of Dispute as lodged by the Claimant. The jurisdictional objection arises because it is claimed by the Respondents that there are issues between the parties that are before a Court and, therefore, pursuant to s.109(1)(a)(iii) of the Retail Shop Leases Act 1994 (“the Act”), a Retail Shop Leases Tribunal does not have jurisdiction to deal with the matter. 2. To understand the nature of the jurisdictional objection one must have regard to the documents which are said to give rise to it. The first document is a Defence which was filed by the Claimant and other Defendants in the Magistrates Court of Queensland on 31 January 2008. This was a defence to a claim brought by the Respondents in the Beenleigh Division of the Magistrates Court of Queensland and given Registry No. M1739 of 2007. The material parts of the Defence are set out in paragraphs 11 to 15 (both inclusive) of that Defence and are as follows:- “11. A representative of the Plaintiffs by the name of Melissa made the following verbal representations during a time prior to the Defendants entering into the lease, to the Defendants: 11.1 that the Supré store currently located at the other end of the shopping centre would be located so that it was opposite the First Defendant’s store; 11.2 the Plaintiffs intended to create a ‘Youth Precinct’ in the vicinity of the First Defendant’s store so as to encourage customers within the First Defendant’s target demographic; 11.3 the centre stage that was then located outside the First Defendant’s store would remain outside the First Defendant’s store. 12. The representations referred to in paragraph 11 above were false and/or misleading. PARTICULARS 12.1 the Supré store was not relocated near the First Defendant’s store and a ‘Youth Precinct’ has not been set up in the vicinity of the First Defendant’s store; -- 2 of 8 -- Decision Dispute 2008/0020 3 12.2 the store placed opposite the First Defendant’s store is clothing store targeting predominately women aged 35+; 12.3 the centre stage has been removed and has been replaced with a ‘Shingle Inn’ coffee shop and as a result, school holiday and Christmas activities and other events encouraging people within the First Defendant’s demographic to the centre have been moved away from the First Defendant’s store. 13. In breach of section 43 of the Retail Shop Leases Act 1994, the Plaintiff has taken action that has substantially restricted and altered the access by customers to the First Defendant’s shop and the flow of potential customers past the First Defendant’s shop. PARTICULARS 13.1 the First Defendant repeats and relies upon paragraph 12 above; 13.2 the Plaintiffs have carried out substantial renovation work on either side of the First Defendant’s store resulting in significant construction work being carried out in the vicinity of the First Defendant’s store and fewer retail shops around the First Defendant’s store resulting in fewer customers. 14. In breach of section 43(1)(d) of the Retail Shop Leases Act 1994, the Plaintiffs have failed to rectify the breakdown of plant or equipment and/or defects in the retail shopping centre around the First Defendant’s store resulting in stores in the vicinity of the First Defendant’s store being closed and the First Defendant experiencing holes, cracks and water leaks in its store. 15. By reason of the matters referred to in paragraphs 11, 12 and 13 above, the Plaintiffs are liable to pay the First Defendant compensation. PARTICULARS 15.1 the amount of compensation payable by the Plaintiff to the First Defendant is yet to be fully particularised, but will be an amount in excess of $100,000.00, representing the trading losses experienced by the First Defendant in relation to the premises, in relation to comparable premises leased by the First Defendant in other locations; 15.2 the compensation payable by the Plaintiff to the First Defendant must, under the Retail Shop Leases Act 1994 -- 3 of 8 -- Decision Dispute 2008/0020 4 be determined through the dispute resolution process prescribed in the Retail Shop Leases Act. 15.3 The First Defendant intends lodging a notice of dispute in accordance with the provisions of the Retail Shop Leases Act in the near future.” 3. The relevant paragraphs in the Notice of Dispute which was filed in the Retail Shop Leases Registry on 12 February 2008 are as follows: “1. The Lessee seeks compensation from the lessor under section 43 of the Retail Shop Leases Act in relation to the following:- 1.1 The Lessee entered into the lease on the basis of a false or misleading statement or misrepresentation made by a person acting on or under the Lessor’s authority; 1.2 The Lessor, or a person acting under the Lessor’s authority:- 1.2.1 Has taken action that substantially restricts or alters access by customers to the premises or the flow of potential customers past the premises; 1.2.2 Has caused significant disruption to the Lessee’s trading in the premises or did not take all reasonable steps to prevent or stop significant disruption within the Lessor’s control; 1.3 The Lessor has not had rectified as soon as possible any breakdown in plant of [sic] equipment or any defect in the shopping centre. Misrepresentation 2. A representative of the Lessor by the name of Melissa Hollands made the following verbal representations during a period of time prior to the Lessee entering into the lease, to the Lessee: 2.1 that the Supré store currently located at the other end of the shopping centre would be relocated so that it was opposite the Lessee’s store; 2.2 the Lessors intended to create a ‘Youth Precinct’ in the vicinity of the Lessee’s store so as to encourage customers within the Lessee’s target demographic; 2.3 the centre stage that was then located outside the Lessee’s store would remain outside the Lessee’s store; -- 4 of 8 -- Decision Dispute 2008/0020 5 3. The representations referred to in paragraph 2 above were false and/or misleading because: 3.1 The lessor did not relocate the Supré store near the Lessee’s store and a ‘Youth Precinct’ has not been set up in the vicinity of the Lessee’s store; 3.2 the store placed opposite the Lessee’s store by the Lessor is a clothing store targeting predominately women aged 35+; 3.3 The Lessor has removed the centre stage and replaced it with a ‘Shingle Inn’ coffee shop and as a result, school holiday and Christmas activities and other events encouraging people within the Lessee’s demographic to the centre have been moved away from the Lessee’s store. Disruption to Lessee’s Trading 4. The matters referred to in paragraph 3 above has substantially restricted or altered access by customers to the premises and the flow of potential customers past the premises and has caused significant disruption to the Lessee’s trading in the premises; 5. The Lessors having carried out substantial renovation work on either side of the Lessee’s store resulting in significant construction work being carried out in the vicinity of the Lessee’s store and fewer retail shops around the Lessee’s store resulting in fewer customers. This has substantially restricted or altered access by customers to the premises and the flow of potential customers past the premises and has caused significant disruption to the Lessee’s trading in the premises. Breakdown of plant or Equipment 6. The Lessors have failed to rectify the breakdown of plant or equipment and/or defects in the retail shopping centre around the Lessee’s store resulting in stores in the vicinity of the Lessee’s store being closed and the Lessee experiencing holes, cracks and water leaks in its store. 7. Further, by reason of renovation work being carried out on behalf of the lessor around the Lessee’s tenancy, the Lessee has suffered physical damage to the fitout, stock and other equipment in the following circumstances:- 7.1 The Lessee’s store was inundated with water on two occasions in early February 2008 – such inundation would not have occurred but for the renovation work being carried out on behalf of the Lessor. -- 5 of 8 -- Decision Dispute 2008/0020 6 7.2 The Lessee has not yet had the opportunity to quantify the damage suffered as a result of this damage, but it is likely the Lessee will incur significant costs and disruption to its trading in order to have the damage repaired and replaced.” What are the issues? 4. The word “issue” as used in s.109(1)(a) is not defined in the Act itself nor in the Acts Interpretation Act 1954. Thus, one is driven back to its natural and ordinary meaning within the statutory context. A good discussion of the concept of an issue is found in McPherson J’s (as his Honour then was) judgment in R v The Judges of the District Court holden at Brisbane, Ex Parte Kruger Enterprises [1982] Qd R 623 at 627 where his Honour says:- “Under the modern system of pleading the issues are, or ought to be, ascertainable from the pleadings which allege only the ultimate facts selected by reference to principles of law giving rise to the right to the relief claimed, or the defence relied upon. That formal pleadings are not essential to the formulation or determination of an issue or issues in this sense is demonstrated by the course of trial and criminal proceedings where the accused, by his plea of not guilty to an indictment expressed only in general terms, raises the general issue to the claim of the Crown that he is guilty of the particular offence charged.” 5. His Honour there was discussing the meaning of the word “issue” in a statutory context where the phrase in question was “the issue in dispute”. That is a different statutory context to the use of the word “issue” contained in the section of the Act which I am considering. However, as McPherson J said in the above quote, the issues should be ascertainable from what is set out in the pleadings filed on behalf of the claimant in a Magistrates Court matter and compare those allegations which are identifiable from the Notice of Dispute. 6. Using that analysis, it seems to me that it is tolerably clear that the issues may be grouped as follows:- (a) whether or not representations were made to the Claimant which representations were either false or misleading (see paragraphs 11 and -- 6 of 8 -- Decision Dispute 2008/0020 7 12 of the Magistrates Court Defence and paragraphs 2 and 3 of the Notice of Dispute filed on behalf of the Claimant); (b) that the Respondent has taken action that has substantially restricted and altered the access by customers to the Claimant’s shop and the flow of potential customers past the Claimant’s shop (paragraph 13 of the Magistrates Court Defence and paragraphs 3, 4 and 5 of the Notice of Dispute); and (c) that there has been a breakdown of plant or equipment and the Respondents have failed to rectify the same together with alleged defects in the retail shopping centre around the Claimant’s store resulting in stores in the vicinity of the Claimant’s store being closed and the Claimant experiencing holes, cracks and water leaks in its store (see paragraph 14 of the Magistrates Court Defence and paragraph 6 of the Claimant’s Notice of Dispute). 7. In the Notice of Dispute there is a further allegation set out in paragraph 7 thereof which I have set out above. This allegation is not contained in the Claimant’s Defence for the obvious reason that it refers to an occasion in early February 2008 which would have occurred after the filing of that Defence. 8. It seems to me clear that there is an identicality of issues, as I have analysed them above, in the Magistrates Court Defence and the Notice of Dispute save for the matters set out in paragraph 7 of the Claimant’s Notice of Dispute. Whether or not the paragraphs in the Magistrates Court claim should have been pleaded or amount to a valid set-off as claimed in the Magistrates Court Defence is not for me to decide. The matter for me is whether or not there is an issue or whether there are issues before a Court (and there is no reason for not reading the reference to Court in s.109(1)(a)(iii) as including a Magistrates Court in Queensland) which is also an issue in the retail tenancy dispute before the Tribunal. In my opinion, there is and so I am of the opinion that, as matters presently stand, the Claimant is unable to pursue its claim based upon paragraphs 2, 3, 4, 5 and 6 of its Notice of Dispute. -- 7 of 8 -- Decision Dispute 2008/0020 8 9. That leaves paragraph 7. As was conceded by Mr Hurford at the hearing of this matter, the allegations contained in that paragraph are not allegations which are contained in the Magistrates Court Defence of the Claimant. That being the case, it cannot be said that that is an issue which is before a Court and thus denying a Tribunal under the Act jurisdiction to hear that part of the retail tenancy dispute filed by the Claimant. 10. Rather than formally striking out the impugned paragraphs in the Claimant’s Notice of Dispute, this decision can be taken as a determination that the Tribunal, as matters presently stand, does not have jurisdiction to deal with any dispute constituted by those impugned paragraphs. It may well be that the Claimant may decide to take a particular course with respect to the Magistrates Court proceedings, for example by amending its Defence so as to delete the paragraphs which have caused the jurisdictional objection successfully relied upon the Respondents before me. That is, of course, a matter for the Claimant to decide upon as, indeed, it is also a matter for the Claimant to decide whether or not it wishes to pursue the remaining matter in the Notice of Dispute. Accordingly, I will adjourn any further proceedings on this dispute to the Registry which may be brought on by either party, as they see fit, upon 7 days notice to the other and the Registry. K.F. WATSON Chair -- 8 of 8 --