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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Yuan Company Pty Ltd v Golden Vision Biggera Waters GC Pty Ltd  QCAT 37
yuan company pty ltd
golden vision biggera waters GC Pty ltd
Retail shop leases matter
3 January 2020
On the papers
LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENT –
where one company signed an agreement on behalf of another company to be formed – whether the Tribunal has jurisdiction under the Retail Shop Leases Act to hear the dispute
Retail Shop Leases Act 1994 (Qld) s 83, Dictionary
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, s 102
Romano v Capitol Bikes Pty Ltd & Anor  QCAT 108
Real Management Solutions Pty Ltd v Brisbane City Council  QCAT 370
REASONS FOR DECISION
- Yuan Company Pty Ltd (‘Yuan’) filed a Notice of Dispute – Retail Shop Leases Act 1994 on 30 January 2019, seeking an order directing Golden Vision Biggera Waters GC Pty Ltd (‘Golden Vision’) to refund a deposit in the sum of $19,121.67 to Yuan.
- Golden Vision filed a response and counter-application on 3 May 2019. The counter- application was for the amount of $77,628.00 plus GST, to be awarded to Golden Vision for modification of below slab hydraulics, and reduced rent obtained from a subsequent licensee.
- Golden Vision filed an Application for miscellaneous matters on 2 July 2019 to strike out the Application of Yuan on the following grounds:
The applicants case is in reference to a licence (lease) which has not been executed by either party. Further to this the applicant has never signed a licence or lease with Golden Vision Biggera Waters GC Pty Ltd. As such we don’t believe this matter to be the jurisdiction of the tribunal.
- I gave directions on 15 July 2019 that the parties were to file submissions in relation to the strike-out application, and for the matter to be determined on the papers.
- Yuan filed submissions on 11 June 2019. Golden Vision did not file submissions by 30 August 2019 as directed.
- A statement of Stephenie Lo was filed on 4 September 2019. Ms Lowe stated that she is a director of Yuan.
- Ms Lo stated that on 10 May 2018, Mei-Tung Chou a director of Dokit Pty Ltd ACN 140 743 406 (‘Dokit’) negotiated with David Wu, a director of Golden Vision, and Mr Wu’s associate Sophia, as follows:
- Dokit wished to franchise its business to a proposed franchisee, a company to be formed by me. I wished to take a lease from the Respondent at Stall S12 C90, Harbour Town Outlet Shopping Centre, 147-189 Brisbane Road, Biggera Waters (‘stall’)
- I intended to form a company to take up the franchise and lease/licence and I was seeking finance and legal advice to form the company
- The respondent set out the terms contained in the Agreement and a deposit was to be paid in order to secure the rights to the licence of the Stall
- As I had not yet formed the Company it was agreed that Dokit will be named in the Agreement on behalf of the Company to be formed by me (later on to be the applicant).
- Ms Lo stated that on 15 May 2018 Dokit signed the agreement as agent for the company to be formed by her for a licence of the stall; and that on 23 May 2018 she caused Yuan Company Pty Ltd ACN 626 335 000 to be registered.
- Ms Lo stated that she paid the sum of $19,121.67, which was received by Golden Vision as being from Yuan:
15. On 28 May 2018, in reliance on the Agreement, I paid to the Respondent the sum of $19,121.67 being the deposit payable under s 24 of the agreement. On the same day, the respondent issued an invoice and receipt for the deposit which was made in the Applicants name.
- A copy of Invoice 00000010 from Golden Vision to Yuan for $19,121.67, dated 28 May 2018, for ‘Initial deposit as per Offer for 8 Street Harbour Town shop No.12’, is attached to the statement of Ms Lo. The invoice credits an amount of $19,121.67, and shows a balance due as $0.00.
- Golden Vision has not filed any material contesting the statement of Ms Lo.
- The Tribunal has jurisdiction under section 83 of the Retail Shop Leases Act 1994 (Qld) (‘the Act’) to make orders in relation to a ‘retail tenancy dispute’:
83 QCAT Orders
(1) Subject to subsection (3), QCAT may make the orders, including declaratory orders, QCAT considers to be just to resolve a retail tenancy dispute.
- The dictionary in the Schedule to the Act defines a ‘retail tenancy dispute’ as follows:
retail tenancy dispute means any dispute under or about a retail shop lease, or about the use or occupation of the leased shop under a retail shop lease, regardless of when the lease was entered into.
- The extent of the expression ‘a retail tenancy dispute’ was considered by the Tribunal in Romano v Capitol Bikes Pty Ltd & Anor where it was held that a claim against a guarantor was a retail tenancy dispute for the purposes of the Act. The Tribunal referred to the decision in Real Management Solutions Pty Ltd v Brisbane City Council:
-  In Real Management Solutions Pty Ltd v Brisbane City Council, the Tribunal determined that a claim against guarantors was a retail tenancy dispute.
-  The Tribunal considered that the definition of retail tenancy dispute:
- Was not confined to a dispute ‘under’ a lease but may be ‘about’ a lease, although the connection between the lease and the dispute must be a close one;
- Was not limited by reference to a description of who may be a party to such lease or dispute (e.g. a lessor, or lessee).
-  The Tribunal considered that hearing a claim against guarantors in the Tribunal was consistent with the objects of the RSLA to provide low-cost resolution of tenancy disputes. It also considered that such hearing was ‘entirely harmonious with the objects of the QCAT Act and the requirement for the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
- This matter concerns a proposed ‘stall licence agreement’ between Golden Vision and Yuan. The agreement specifically refers to the ‘headlease’ between the shopping centre owner and Golden Vision, and refers to the Act in the licence agreement.
- Golden Vision has issued an Invoice and Receipt to Yuan in relation to the licence agreement.
- This dispute is therefore ‘about’ a retail shop lease, and is within the definition of a ‘retail tenancy dispute’ in the Act. The Tribunal therefore has jurisdiction to hear this dispute.
- Further, it is incomprehensible how Golden Vision can on the one hand claim that the Tribunal does not have jurisdiction in this matter, such that the application by Yuan in these proceedings should be struck out, but on the other hand file a counter-application in the same proceedings against Yuan for $77,628.00 in the application which is brought under the Act.
- The application to strike-out by Golden Vision is clearly misconceived and lacking in substance, and I dismiss the application to strike-out under section 47(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
- Golden Vision has put Yuan to expense, and caused it to incur costs, in responding to this baseless application to strike-out, which it has not even supported by any submissions as directed.
- The Tribunal has a discretion under section 102 of the QCAT Act to make an order requiring a party to a proceeding to pay a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.
- Having regard to the provisions of section 102(3) of the QCAT Act, I consider that Golden Vision has acted in a way that unnecessarily disadvantages Yuan, and that the interests of justice require a costs order to be made, and that it is appropriate that the costs be paid on an indemnity basis.
- I make an order that Golden Vision is to pay Yuan its costs of the strike-out application, on an indemnity basis, to be agreed, or failing agreement, as further ordered by the Tribunal.
- This matter should be progressed as soon as possible, as this application by Golden Vision has delayed the matter. I direct that the matter be set for a Directions Hearing as soon as possible, for the purpose of making directions for the expeditious progress of this proceeding.
- The orders are as follows:
- The Application for miscellaneous matters (seeking to strike out the notice of dispute) filed on 2 July 2019 by Golden Vision Biggera Waters GC Pty Ltd is dismissed.
- Golden Vision Biggera Waters GC Pty Ltd is to pay to Yuan Company Pty Ltd its costs of the application for miscellaneous matters filed on 2 July 2019, on an indemnity basis, to be agreed between the parties, or failing agreement, as further ordered by the Tribunal.
- The proceedings RSL056-19 are to be set for a Directions Hearing at a date and time, as soon as possible, to be advised by the Registry.
- Published Case Name:
Yuan Company Pty Ltd v Golden Vision Biggera Waters GC Pty Ltd
- Shortened Case Name:
Yuan Company Pty Ltd v Golden Vision Biggera Waters GC Pty Ltd
 QCAT 37
03 Jan 2020