Boyle v Stockland Pty Ltd [1999] RSLT 7

[1999] RSLT 7 THE RETAIL SHOP LEASES ACT In the matter of Dispute 28/1998 CHRISTOPHER BOYLE AND LOUISE BOYLE (T/A CHRIS BOYLE'S PAYLESS CHEMIST) - Claimants - and - STOCKLAND PTY LIMITED - Respondent DECISION Given in Brisbane on 11 November, 1999. -- 1 of 3 -- Boyle-v-Stockland 2 Decision This matter comes before me as a Chairman sitting alone on the application of the respondent, which seeks a ruling that in law the Tribunal has no jurisdiction in this matter. Sitting as a Chairman alone, I have no power to resolve disputes of fact. After consideration I have come to the conclusion that this matter can only be resolved after the dispute of facts has been determined, and that, therefore, I must dismiss the application at this stage. The claimant is a tenant is a shopping centre at Earlville owned by the respondent. In a letter accompanying the Notice of Dispute, the claimant sets out: It has been discovered that there are large differences in 1996/97 outgoing expenses compared to 95/6 financial year. Stockland Cairns has refused to offer explanations. I require details of these differences on a “check” basis. Attached to the Notice of Dispute is a list of outgoings setting out the actual costs in the 96/7 year and the 55/96 year. The objection to the jurisdiction is based on s.109(1)(b)(iii) which excludes the jurisdiction of the Tribunal to hear disputes about the amount of the lessor’s outgoings under a retail shop lease. Opposed to this is s.109(3)(c) where an item of outgoings was reasonably occurred in or directly attributable to the operations, maintenance or repair of the centre or building. On the original Notice of Dispute there may well have been a good argument to exclude the jurisdiction of the Tribunal. However, further material has been put before the Tribunal by the claimant. This was done not by seeking to amend the Notice of Dispute, nor by formal statement, but by attachments to the written arguments filed on behalf of the claimant with respect to jurisdiction. I have come to the conclusion that, notwithstanding absence of form, I should take this material into consideration. I do so because of the provisions of s.72 of the Act, which requires me to act as quickly and with as little formality and technicality as is consistent with a fair and proper consideration before it, and further provides that the Tribunal is not bound by the Rules of Evidence, and that it may inform itself of any matter in any way which it considers appropriate. The further material is a letter and a report from the Retail Property Advisory Service under the hand of Mr Malcolm Macrae. I have pointed out to the legal representatives that Mr Macrae is well known to me. He is a Member of the Panel from which the Lay Members of the Tribunal are drawn. The significant portions of Mr Macrae’s material can be summarised as such: 1. Outgoings for the centre increased substantially between the 96/7 year and the 95/6 year. They then decline in the 1997/8 year. -- 2 of 3 -- Boyle-v-Stockland 3 Decision 2. In the 1996/7 year there were substantial extensions and refurbishments of the shopping centre. 3. In Mr Macrae’s opinion as an expert, it not uncommonly happens that capital expenses associated with extension or refurbishment are treated as maintenance outgoings. 4. That on his analysis, this may well have been the case with regard to the Earlville Shopping Centre. I have been careful not to analyse Mr Macrae’s material or submission at any depth, as I do not wish to give the impression that I may have formed any conclusion whatsoever on its acceptance or ability to persuade. The only conclusion I have come to is that his material leads to a dispute of fact which I am unable to resolve. I direct that this matter be set down for a further or continued directions hearing when directions for its further progress will be made. P V Loewenthal, Chairman. -- 3 of 3 --