Emmaland Pty Ltd v Trust Company of Australia Ltd [2003] RSLT 2

[2003] RSLT 2 THE RETAIL SHOP LEASES ACT In the matter of Dispute 28/03 EMMALAND PTY LTD - Claimant - and - TRUST COMPANY OF AUSTRALIA LIMITED - Respondent Chair: : A Forbes DECISION ON JURISDICTION Given in Brisbane on 4 August 2003 -- 1 of 3 -- Emmaland-v-Trust Company Decision 2 In this application there are three principal claims. One of them raises a question of jurisdiction, namely: "The claimant seeks an order that it is not required [to pay] the lessor rental for the period 27 November 2002 to 7 December 2002". The basis of this claim is that there was a variation of the lease, postponing the commencement date from 27 November to 7 December 2002. The respondent's objection to jurisdiction is that a dispute about the commencement date is a dispute about arrears of rent, which the tribunal is forbidden to entertain by s 109(1)(b)(i) of the Act. Section 109 is not primarily negative. On the contrary it affirms the tribunal's power to hear retail tenancy disputes, elsewhere defined as "any dispute under or about a retail shop lease". Section 109(1)(b) then makes certain exceptions to that grant, while s 109(3)(a) modifies those exceptions so that "the procedure for the determination of rent payable" is, after all, within the general grant of power in the opening words of s 109. Essentially the tenant seeks an interpretation of the lease. It seems to me that such an inquiry is within the general grant of power, whether or not the decision subsequently or incidentally affects the obligation to pay rent. A determination of the commencement date would not be a finding as to the amount of rent payable, or as to arrears. Arrears, if any, would then be a matter for adjustment between the parties, or for proceedings in an appropriate court. Any payment on that account would not be based on any order of this tribunal, or any calculation by it, but on the terms of the lease and any variation thereof. Many decisions of this Tribunal have consequences for the rent that landlords derive from their properties, but I cannot conceive that the legislature, in creating this tribunal to expedite and simplify the resolution of retail tenancy disputes, intended all such proceedings to be inhibited by s109 (1) (b). However, if a decision as to the proper commencement date is characterised as a decision about rent it is, in my view, a decision about "the procedure for the determination of rent, but not the actual amount of rent", within the meaning of the affirmative clause in s 109(3)(a). It is difficult to think of anything more germane to the -- 2 of 3 -- Emmaland-v-Trust Company Decision 3 rent-determination procedure than ascertainment of the time at which the rent, as agreed by the parties, begins to accrue. The respondent landlord refers to two decisions of this tribunal. Their respective numbers are B/00 and 1/00. The former deals with a question of set off which is remote from the present dispute. Decision 1/00 involved a dispute about a formula for calculating rent. As such, it was more closely bound up with "the amount of rent payable", within the meaning of the exclusionary section 109(1)(b)(ii), if not s 109(1)(b)(i) as well. With this difference in mind, and in the absence of any detailed reasons for the conclusion in Decision 1/00, I consider that it is distinguishable in this case. If a decision as to the commencement date is intrinsically a decision about rent, which I seriously doubt, it is, in my view, a decision about procedure for determining rent. As such, it is within the jurisdiction of this tribunal. A Forbes Chair Retail Shop Lease Tribunal -- 3 of 3 --