Doverline Pty Ltd v Mastro and Sons Pty Ltd [2006] RSLT 19

[2006] RSLT 19 THE RETAIL SHOP LEASES ACT In the matter of Dispute No 2006/0027 DOVERLINE PTY LTD -Claimant - and - MASTRO AND SONS PTY LTD -Respondent Coram: A Forbes N Judge M Macrae REASONS FOR ORDER Given in Brisbane on Friday 15 September 2006 -- 1 of 4 -- Doverline P/L-v-Mastro & Sons P/L Decision 2 The Claimant Doverline Pty Ltd holds a 10-year lease of part of the Respondent's premises at Old Cleveland Road, Capalaba, as from 1 September 2003. The Claimant alleges that, since the commencement of the lease, the Respondent has failed to provide it with annual estimates and audited annual statements of outgoings, as required by section 37 of the Retail Shop Leases Act 1994 (“the Act”). The Claimant seeks "an enforcement order for the payment of penalty units by the respondent pursuant to section 37 of the Retail Shop Leases Act 1994 within 14 days of the date of the order". In a telephonic directions hearing on 26 July 2006 the Claimant’s solicitor advised the Tribunal that the documents in question were received after service of the Notice of Dispute. However, the Claimant desired “some sanction” against the Respondent for failing to provide them within the time limits set by the Act. At that stage the Chairman indicated, as her provisional view, that the Tribunal has no jurisdiction to deal with complaints of offences against the Act. However, as it appeared that material facts might be in issue, orders were made for written submissions and a full Tribunal hearing. In due course the Claimant particularised a claim that the Respondent failed to deliver to it, within the times prescribed by law: (a) annual estimates of outgoings for the financial years 2004-2005, 2005-2006 and 2006-2007; and (b) audited annual statements of outgoings for the financial years 2003-2004 and 2004-2005. It is now common ground that the Respondent did fail to serve the two items described in “(b)” above within the time limits set by the Act. The Respondent says that responsibility for preparing and serving them fell between two stools - the managing agent and the Respondent each assuming that the other had already done so. When the mistake was discovered, the Respondent instructed accountants to prepare the documents, and they were given to the Claimant on 24 May 2006. With respect to the annual estimates of outgoings, the Respondent says that it supplied an estimate for the first year of the lease with its disclosure statement in July 2003. (The lease itself was not signed until about one year later.) The Respondent further says that annual estimates for 2003-2004, and 2004-2005 were provided well ahead of time, in April 2004 and April 2005 respectively. 1 It also points out that, when the Notice of Dispute was filed, the duty to provide the annual estimate for 2006-2007, and the annual audited statements for 2005–2006 had not yet arisen. In mitigation of its admitted defaults, the Respondent says that the Claimant was well aware of the estimated outgoings before it signed the lease, that those defaults were promptly remedied when the Respondent became aware of them, and that the Claimant was not prejudiced by them. However, as appears below, evidence in mitigation is for another forum. 1 Attachments 1,1A and 1B to submissions of Respondent’s solicitor. -- 2 of 4 -- Doverline P/L-v-Mastro & Sons P/L Decision 3 Principles to be applied In connection with a retail shop lease ...the lessor must give to the lessee an annual estimate in the approved form of the lessor’s outgoings...(i) at least one month before the start of the period to which the estimate relates; or (ii) ...within one month before...the lessee enters into the lease 2 and ... an audited annual statement in the approved form of the outgoings within three months after the end of the period to which the outgoings relate.” Failure to meet those requirements is an offence punishable by a maximum fine of 60 penalty units. However, the types of orders that this Tribunal may make are limited by s 83. Neither that section nor any other part of the Act authorizes it to exercise criminal jurisdiction. As the Chairman suggested at the directions hearing, the Tribunal has no such jurisdiction – a position in accordance with the constitutional principle that confines criminal matters to courts of appropriate jurisdiction. An offence against s 37 is manifestly such a matter. By the same token the Tribunal, like commissions of inquiry, is protected against contempt3 , but – as with commissions of inquiry4 – punishment of contempt is a matter for the courts, not the Tribunal itself. Section 41 of the Acts Interpretation Act 1954 provides: “…a penalty specified at the end of a section or a subsection of an Act ... indicates that an offence mentioned in the section ... is punishable on conviction … by a penalty not more than the specified penalty.” Offences not otherwise described are “simple offences”.5 A simple offence is criminal in character, albeit much less serious than an indictable crime or misdemeanour. 6 Allegations of simple offences are triable in a Magistrates Court 7 , upon a complaint and summons under the Justices Act 1886. 8 That is the proper procedure here. We have directed that the file be transferred to the Magistrates Court as background information, but that is no substitute for an originating complaint and summons. In a case of this kind, the most the Tribunal can do is to grant the aggrieved party a declaration that a specific provision of the Retail Shop Leases Act has not been complied with. Then it is matter for that party, if he or she thinks it worthwhile, to 2 The Retail Shop Leases Act 1994 section 37(2) 3 Section 82. 4 R v McDonnell; Ex parte Attorney-General [1988] 2 Qd R 189. 5 Criminal Code s 3(5). 6 Criminal Code s 3(2). 7 Criminal Code s 3(4). 8 Acts Interpretation Act 1954 ss.44(1), 44(4). -- 3 of 4 -- Doverline P/L-v-Mastro & Sons P/L Decision 4 initiate, or cause to be initiated, fresh proceedings in the Magistrates Court, in its criminal jurisdiction. The question of who should initiate such proceedings is not one for us to decide. While “any person” may take a proceeding for the imposition of a penalty under an Act 9 , such matters are commonly instituted by an officer of the Department in charge of the legislation. 10 Similarly, in the Chairman’s experience, proceedings before the Misconduct Tribunal of the Criminal Justice Commission were regularly commenced in that way. It would seem burdensome if persons aggrieved by breaches of the present Act had the carriage of prosecutions, which, if successful, profit only the Consolidated Revenue. No doubt the designated officer, like a police prosecutor or the DPP, retains a reasonable discretion to decide whether a particular matter, in all the circumstances, warrants penal action. Conclusion On the evidence of the Claimant, and the abovementioned admissions of the Respondent, we find that the Respondent failed to give the Claimant audited annual statements of the outgoings of the Bayside Shopping Village, 200 Old Cleveland Road, Capalaba, Brisbane for the periods 1 September 2003–31 August 2004 and 1 September 2004 – 31 August 2005 as and when required by s 37(2)(b) of the Retail Shop Leases Act 1994. Declaration Pursuant to s 83 of the said Act, we so declare. Anne Forbes Chairman 9 Acts Interpretation Act 1954 s 42. 10 See e.g. Bercenau v Boltons Real Estate Pty Ltd & Ors [2004] QDC 18; Stephens v Chief Executive, Dept of Tourism, Racing and Fair Trading [2002] QCA 407 (complaint by Secretary to Auctioneers & Agents Cttee); Bone v Mothershaw [2001] QDC 255 (vegetation protection order); Hackett v Chief Executive, Dept of Tourism, Fair Trading & Wine Industry Development [2005] QDC 379. -- 4 of 4 --