Echolocate Pty Ltd v Raphill Pty Ltd [2012] QCAT 451

CITATION: Echolocate Pty Ltd v Raphill Pty Ltd [2012] QCAT 451 PARTIES: Echolocate Pty Ltd t/as Caribbean Dreams (Applicant) v Raphill Pty Ltd (Respondent) APPLICATION NUMBER: RSL083-12 MATTER TYPE: Retail shop lease matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 7 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for an interim order or injunction refused. CATCHWORDS: LANDLORD AND TENANT – LEASES AND TENANCY AGREMENTS – FORMAL REQUIREMENTS – GENERALLY – where tenant vacated leased premises – where tenant filed application for interim order or injunction for return of bond – whether tenant entitled to interim relief pending determination of dispute Queensland Civil and Administrative Tribunal Act 2009, s 32 Retail Shop Leases Act 1994 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] This dispute concerns the lease of an ice-cream parlour at Peregian Beach. Raphill Pty Ltd was the lessor and Echolocate Pty Ltd was the tenant, trading under the name “Caribbean Dreams.” -- 1 of 2 -- 2 [2] On 25 July 2012, Caribbean Dreams filed a Notice of Dispute under the Retail Shop Leases Act 1994 seeking an order that the landlord return a bond it had paid under the lease. The material shows the dispute arose around the circumstances in which the tenant vacated the leased premises. [3] On the same day, the tenant filed an application for an interim order or injunction under the QCAT Act, also seeking an order that the landlord “return bond to tenant”. [4] On 7 August 2012 I ordered that the application for the interim order or injunction be refused. Subsequently Mr Jones, a Director of Echolocate Pty Ltd, wrote seeking reasons for that decision. [5] The parties exchanged written material, which was available at the time my decision was made. Their dispute centres around the date the lease was to end, and the condition of the premises when Echolocate/Caribbean Dreams vacated. [6] The landlord‟s position is that the lease was extended by mutual agreement from 30 June until 30 September 2012 and rent is now outstanding for that period; and, that the tenant has not properly restored the premises in accordance with the terms of the lease. The tenant argues that no agreement to extend the lease was entered into, and that it did everything it was required to do to restore the premises. [7] It is plain that these matters are at the core of the dispute between the parties. The landlord also asserts that the bond has already been “cashed” by which I assume it means it has called up the amount of a bank guarantee provided, under the lease, by the tenant. [8] Wherever the truth may lie in the dispute, it is plain that there was no basis upon which the tenant could obtain an interim order. First, it was effectively seeking through injunctive relief, the remedy it actually sought in the entire proceedings, and, had it succeeded, there would have been nothing requiring adjudication under its Notice of Dispute pursuant to the Retail Shop Leases Act 1994. [9] Second, it is plain there are real disputes between the parties about the extension, or not, of the term of the lease and the condition of the premises which requires proper determination, with evidence from the parties. [10] Third, the application for injunctive relief was, in those circumstances, premature. [11] Fourth, it appears the application was futile in the sense the guarantee may, as the landlord alleges, have already been forfeited. [12] That is not to say that the tenant might not ultimately succeed in the proceedings begun by its Notice. The only question I was required to address was whether or not Caribbean Dreams was entitled to urgent, interim relief pending the determination of the dispute set out in its Notice. For the reasons set out above, an order of a kind it sought would have been inappropriate and was necessarily refused. -- 2 of 2 --