Tivoli Retail Pty Ltd v Metcash Food & Grocery Pty Ltd
[2018] QCAT 195
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- Unreported Judgment
- Tivoli Retail Pty Ltd v Metcash Food & Grocery Pty Ltd[2018] QCAT 195
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Tivoli Retail Pty Ltd v Metcash Food & Grocery Pty Ltd[2018] QCAT 195
Tivoli Retail Pty Ltd v Metcash Food & Grocery Pty Ltd[2018] QCAT 195
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tivoli Retail Pty Ltd as Trustee under Instrument 711454913 v Metcash Food & Grocery Pty Ltd [2018] QCAT 195 |
PARTIES: | TIVOLI RETAIL PTY LTD AS TRUSTEE UNDER INSTRUMENT 711454913 (applicant) v METCASH FOOD & GROCERY PTY LTD (respondent) |
APPLICATION NO/S: | RSL055-17 |
MATTER TYPE: | Retail shop leases matters |
DELIVERED ON: | 22 June 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Presiding Member Hughes Member McBryde Member Judge |
ORDERS: | The Notice of dispute – Retail Shop Leases Act 1994 (Qld) is struck out for want of jurisdiction. |
CATCHWORDS: | LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – whether ‘retail tenancy dispute’ – where floor area more than 1000 square metres – where lessee was subsidiary of listed corporation – where Tribunal did not have jurisdiction to determine dispute PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISMISSAL – GENERALLY – where transfer not appropriate – where application misconceived and struck out for want of jurisdiction Corporations Act 2001 (Cth), s 9, s 46 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 52, s 100, s 103 Retail Shop Leases Act 1994 (Qld), s 83, s 103, Schedule Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 J F Hodge Pty Ltd v Brown [2013] QCATA 36 M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454 Malmate Pty Ltd v ISPT Pty Ltd (No. 2) [2012] QCAT 615 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | HopgoodGanim Lawyers |
Respondent: | C Chapman, Head of Legal – Group Functions & Logistics |
REASONS FOR DECISION
What is the Notice of Dispute about?
- [1]Tivoli Retail Pty Ltd rents premises to Metcash Food & Grocery Pty Ltd under a lease scheduled to expire on 9 August 2026. Tivoli and Metcash could not agree on the market rent as at 10 August 2016 or a specialist retail valuer to determine current market rent. Consequently, the Tribunal nominated a valuer who determined the market rent.
- [2]Tivoli did not agree with the valuer’s determination and on 10 April 2017, filed a Notice of Dispute – Retail Shop Leases Act 1994 (Qld) seeking an order to set the rental determination aside and for related orders.
- [3]However, on 1 December 2017, Metcash applied to the Tribunal to strike out Tivoli’s Notice of Dispute on the grounds that the Tribunal does not have jurisdiction to determine the dispute because it is not a ‘retail tenancy dispute’.
What is the Tribunal’s jurisdiction?
- [4]The Tribunal has jurisdiction to determine matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an enabling Act.[1] The enabling Act here is the Retail Shop Leases Act 1994 (Qld) (‘RSLA’). Under the RSLA, the Tribunal has jurisdiction to hear ‘retail tenancy disputes’.[2]
- [5]The RSLA has been amended a number of times since its enactment. Amendments that affect the substantive rights and obligations of the landlord or tenant will not apply to retail shop leases entered into before the commencement of the relevant amendment.
- [6]Here, the lease was entered into on 15 June 2012. The definition of ‘retail tenancy dispute’ is the same under the then version of the RSLA and the current version to mean any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.[3]
- [7]However, the version of the RSLA in operation at the time the lease was entered into excludes from the definition of ‘retail shop lease’ a lease of a retail shop with a floor area of more than 1000 square metres by a listed corporation or a listed corporation’s subsidiary.[4] The policy intent is based on the Legislature’s ongoing focus to protect smaller lessees because of their market imbalance with lessors, rather than sophisticated lessees who do not require the RSLA’s protection.[5]
Is the floor area more than 1000 square metres?
- [8]
Is the lease by a listed corporation or a listed corporation’s subsidiary?
- [9]The RSLA defines a ‘listed corporation’ to mean a listed corporation under the Corporations Act 2001 (Cth), which defines it as a body corporate that is included in an official list of a prescribed financial market.[7]
- [10]Metcash Limited is the ultimate holding company of Metcash Food & Grocery Pty Ltd and holds all of its issued share capital.[8] Metcash Food & Grocery Pty Ltd has had no change in its shareholding since 10 August 2011, the commencement date of the lease.[9] Metcash Food & Grocery Pty Ltd is therefore a ‘subsidiary’ of Metcash Limited.[10]
- [11]
- [12]Because Metcash Food & Grocery Pty Ltd has at all material times been a subsidiary of the listed corporation Metcash Trading Limited and the floor area of the leased premises is more than 1000 square metres, the dispute is not about a ‘retail shop lease’ as defined by the RSLA in operation at the relevant time.
Did the parties agree to the Tribunal having jurisdiction?
- [13]The parties cannot agree to the RSLA applying to their lease in circumstances where the Legislature has provided for the RSLA not to apply.
Does section 83(2)(j) of the Retail Shop Leases Act 1994 (Qld) confer jurisdiction?
- [14]Tivoli also submitted that section 83(2)(j) of the RSLA would operate to confer jurisdiction. However, section 83 provides for the orders that the Tribunal may make within the substantive jurisdiction conferred upon it. Section 83 does not confer jurisdiction upon the Tribunal.
Should the Tribunal transfer the matter to the Supreme Court?
- [15]This means that the Tribunal does not have jurisdiction to determine the dispute. In its submissions, Tivoli suggested the matter be transferred to the Supreme Court if the Tribunal did not have jurisdiction to determine the dispute. Unfortunately, Tivoli’s submissions did not provide any basis for why the Supreme Court would be the appropriate jurisdiction, while Metcash did not address Tivoli’s submission or the issue of transfer.
- [16]Although the Supreme Court would appear to have inherent jurisdiction in a dispute of this nature, the parties’ submissions do not address whether it would be the most appropriate jurisdiction and any costs implications of a transfer to that Court, and moreover, whether the Notice of Dispute and Response are in a form to constitute adequate pleadings in the Supreme Court.[12]
- [17]The Tribunal therefore does not consider it appropriate to make any order to transfer the matter to a court of competent jurisdiction,[13] in circumstances where the parties are legally represented,[14] but have not filed submissions on the rationale for the suggested court of competent jurisdiction or otherwise agreeing upon the appropriate jurisdiction.[15] Parties have an obligation to act in their own best interests:[16]
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be unnecessarily burdensome on the parties.
- [18]The appropriate jurisdiction for the filing of any further application will be a matter for Tivoli to consider, presumably in consultation with its legal advisors.
Should the Tribunal depart from the usual position on costs?
- [19]
- [20]There is therefore a strong indicator against awarding costs:[19]
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
- [21]The Tribunal does not consider it in the interests of justice to depart from the usual position that each party must bear their own costs,[20] in circumstances where the Notice of Dispute was misconceived but the respondent did not raise the issue of jurisdiction until some months after filing its Response on 13 July 2017.
Should the Notice of Dispute be struck out?
- [22]Because the Tribunal does not have jurisdiction, the application is misconceived. The appropriate Order is that the Notice of Dispute – Retail Shop Leases Act 1994 (Qld) is struck out for want of jurisdiction.[21]
Footnotes
[1]QCAT Act, s 9(1).
[2]RSLA, s 103(1).
[3]RSLA, Schedule, ‘retail tenancy dispute’.
[4]Ibid ‘retail shop lease’.
[5]See for example: Explanatory Notes of Retail Shop Leases Bill 1994, ‘Reasons for the Bill’ and clause 5; Second Reading Speech.
[6]Lease Site Plan.
[7]Corporations Act 2001 (Cth), s 9.
[8]ASIC Current & Historical Extract of Metcash Food & Grocery Pty Ltd, pp 4, 10.
[9]Ibid 12.
[10]Corporations Act 2001 (Cth), s 46.
[11]ASIC Current & Historical Extract of Metcash Limited, 1.
[12]M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454, [13]-[15] (Wilson J).
[13]QCAT Act, s 52.
[14]Unlike J F Hodge Pty Ltd v Brown [2013] QCATA 36, where the application was filed in the Tribunal’s minor civil disputes jurisdiction.
[15]Unlike Malmate Pty Ltd v ISP Pty Ltd (No. 2) [2012] QCAT 615, where both parties, through their lawyers, agreed to the transfer – see [5], [6] and [10].
[16]Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
[17]QCAT Act, s 100.
[18]Ibid 102.
[19]Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29] (Wilson J).
[20]QCAT Act, ss 102(1), 100.
[21]Ibid ss 47(1)(a), 47(2)(a).