Amnesia Retail Projects Pty Ltd v Ninaford Pty Ltd and Anor [2012] QCAT 106

CITATION: Amnesia Retail Projects Pty Ltd v Ninaford Pty Ltd and Anor [2012] QCAT 106 PARTIES: Amnesia Retail Projects Pty Ltd ABN 81075206183 trading as Ultra Art & Design (Applicant) v Ninaford Pty Ltd ABN 073589741 Framwelgate Investment Ltd ABN 073589741 (Respondents) APPLICATION NUMBER: RSL079-11 MATTER TYPE: Retail shop leases matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 6 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application of the respondents to dismiss or strike out the notice of dispute is dismissed; 2. The applicant shall file in the Tribunal and give a copy to the respondents of an amended notice of dispute by 4pm on 27 March 2012; 3. No order is made as to costs. CATCHWORDS: RETAIL SHOP LEASES – where application for dismissal of notice of dispute – where orders sought cannot be made by tribunal – where dispute within jurisdiction of tribunal Queensland Civil and Administrative Tribunal Act 2009, s 47 Retail Shop Leases Act 1994, s 103 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Amnesia Pty Ltd filed a notice of dispute under the Retail Shop Leases Act 1994 (the Act) against its lessor, Ninaford Pty Ltd and Framwelgate Investment Ltd. Amnesia was not legally represented. In the notice of dispute it sought orders ‘outgoings charges to be levied at $65.55’ and ‘full disclosure of where the outgoings charges are being spent.’ [2] Ninaford and Framwelgate have brought an application seeking that the notice of dispute be dismissed or struck out under s 47 of the QCAT Act and for an order for costs against Amnesia. The lessor contends that the tribunal does not have jurisdiction under the Act to determine the claim made by Amnesia. [3] Specifically, the lessor submits that it does not fall within those matters specified by section 103 as within QCAT’s jurisdiction. In particular, it relies upon s 103(2) which provides that QCAT has jurisdiction to hear a dispute about, under s 103(2)(b) the basis on which the lessor’s outgoings are payable by, and the procedure for charging the outgoings to a lessor under a retail shop lease, but not the actual amount of the outgoings. This, it says, is a dispute about the actual outgoings. Further, it says that the order sought for disclosure does not fall within the ambit of any of the matter specified in s 103. [4] In response, Amnesia says in essence that it is apparent from the other contents of the notice of dispute and the material filed with it that the issue raised by Amnesia for determination relate to the basis upon which outgoings are being charged by the lessor. These include letters to the lessor requesting information about the basis on which the amounts charged are payable under the lease. Amnesia submits that the matters raised are within the jurisdiction of the tribunal. In particular, it relies upon s 103(2)(b) and s 103(2)(c). Section 103(2)(c) provides for the tribunal to have jurisdiction to determine whether an item of the lessor’s outgoings ‘was reasonably incurred in, or, or directly attributable to, the operations, maintenance or repair of the centre or building’. [5] Amnesia also submits that the orders sought were merely inexpertly framed by a person who is not a legal representative and that the nature of the dispute cannot be characterised by reference only to the orders sought. It says that any deficiency can be cured by amendment to the notice of dispute. It asks for costs against the lessor on the basis that the application is grossly misconceived and without merit. Discussion and Decision [6] Under section 47 of the QCAT Act, the tribunal may dismiss or strike out an application, or part of it, which is misconceived or lacking in substance. [7] The Act provides in section 103 for QCAT’s jurisdiction to determine retail tenancy disputes. The jurisdiction is not at large. It has no jurisdiction to determine a dispute about the amount of a lessor’s outgoings under a -- 2 of 3 -- 3 retail shop lease: s 103(1)(b)(iii). It does include those matters referred to by the parties set out in s 103(2). [8] The nature of the dispute between the parties cannot, in my view be characterised only by reference to the orders sought. It is readily apparent that the tribunal may not make orders in the terms sought by Amnesia in the notice of dispute filed. However, it is also readily apparent from the material filed by Amnesia with its notice of dispute that the dispute between the parties relates to the basis upon which the lessor’s outgoings are charged to Amnesia and whether some items are reasonably incurred in or attributable to the operations of the centre or building. [9] In the circumstances, the application to strike out the notice of dispute must fail. However, Amnesia should file an amended notice of dispute setting out the orders it seeks which may be made by the tribunal. [10] I am not satisfied that it is in the interests of justice to award costs to either party. The lessor’s application for striking out or dismissal of the application ignores the details of the dispute provided in and with the notice of dispute, other than the orders sought. However, Amnesia’s unfortunate framing of the orders sought without regard to the limits of QCAT’s jurisdiction contributed to the application being made occurring. The parties should bear their own costs. [11] The application under section 47 of the QCAT Act is refused. Directions are made for the filing of an amended notice of dispute by Amnesia; a response by the lessor; the filing of the material to be relied upon by each party; and in due course, for the parties to attend a compulsory conference and directions hearing. -- 3 of 3 --