Li Ali Pty Ltd v The Pine Kitchen Pty Ltd
[2018] QCAT 401
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- Unreported Judgment
- Li Ali Pty Ltd v The Pine Kitchen Pty Ltd[2018] QCAT 401
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Li Ali Pty Ltd v The Pine Kitchen Pty Ltd[2018] QCAT 401
Li Ali Pty Ltd v The Pine Kitchen Pty Ltd[2018] QCAT 401
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Li Ali Pty Ltd v The Pine Kitchen Pty Ltd [2018] QCAT 401 |
PARTIES: | LI ALI PTY LTD (applicant) |
| v |
| THE PINE KITCHEN PTY LTD (respondent) |
APPLICATION NO/S: | RSL117-17 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 23 July 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski |
ORDERS: |
|
CATCHWORDS: | LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – where lease signed before legislation amended to give Queensland Civil and Administrative Tribunal jurisdiction in rent arrears dispute – whether Queensland Civil and Administrative Tribunal has jurisdiction to hear rent arrears dispute for lease signed before legislation amended Retail Shop Leases Act 1994 (Qld), s 103 Retail Shop Leases Amendment Act 2016 (Qld) Carmelo Peter Scuderi & Caterina Scuderi ATF The C & C Group Trust v Perez [2018] QCAT 45 |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | No submissions filed |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
Introduction
- [1]These reasons relate to jurisdictional and interim matters in a lease dispute. The primary issue is whether QCAT has jurisdiction to resolve the dispute.
History
- [2]On 2 August 2017 the applicant lodged at QCAT a notice of dispute with the respondent, under the Retail Shop Leases Act 1994 (Qld) (‘Retail Shop Leases Act’). The notice indicated that the parties had entered into a lease of premises for a restaurant, with the applicant as lessor and the respondent as lessee. The notice alleged that the respondent had failed to pay rent for a number of months. It also alleged that the applicant had not received the security bond amount of $21,106.25, adding that the security bond provided by the respondent was ‘not valid’. The applicant also described an attachment to the notice as ‘Security Bond Certificate from Tenant but can’t withdraw’.
- [3]The remedies sought by the applicant were:
Payments of Breach the contract by Tenant:
- Pay Security bond by breach the contract $21,106.25 inc GST
- need to payoff all the unpaid invoice Total: $28,141.60 inc GST
- [4]The notice of dispute attached an undated copy of the lease agreement, some invoices and other business records. There were also documents relating to the security bond including a copy of a bank guarantee said to be given at the request of the respondent.
- [5]A compulsory conference between the parties was conducted by QCAT on 31 January 2018. At the conclusion of that conference, QCAT made various directions. These included a requirement for the applicant to provide evidence of when the agreement was signed, and directions that the parties file submissions, by particular dates, about whether QCAT has power under the Retail Shop Leases Act to make the orders sought in the notice of dispute.
- [6]It appears that the member who conducted the compulsory conference had identified an issue about whether QCAT has jurisdiction. The applicant is seeking, amongst other things, payment of rent arrears. QCAT’s power to resolve disputes about rent arrears has been conferred relatively recently: possibly after the lease agreement was signed.
- [7]The applicant has filed documents in response to those directions. The applicant has provided a dated copy of the lease agreement. It is dated 26 October 2016. The applicant, however, has not squarely addressed the question of jurisdiction. The respondent has not filed any submissions on the question of jurisdiction.
Does QCAT have jurisdiction?
- [8]QCAT’s jurisdiction in retail tenancy disputes is set out in section 103 of the Retail Shop Leases Act. QCAT has jurisdiction to hear retail tenancy disputes other than certain types. Until 25 November 2016, disputes about rent arrears were excluded from QCAT’s jurisdiction (except in limited circumstances). This exclusion was then removed by the Retail Shop Lease Amendment Act 2016 (Qld).
- [9]The question of whether the expanded jurisdiction of QCAT applies to a lease entered into before the amendment was considered in Carmelo Peter Scuderi & Caterina Scuderi ATF The C & C Group Trust v Perez.[1] QCAT decided in that case that the amendment was merely procedural in nature, and so the usual presumption against the retrospective operation of legislation did not apply. Accordingly, QCAT could hear a rent arrears dispute even though the lease was signed before the amendment.
- [10]I respectfully adopt that reasoning. Accordingly, I consider that QCAT has jurisdiction to hear the rent arrears aspect of the dispute between the applicant and respondent even though their agreement to lease was signed before 25 November 2016.
- [11]The other aspect of the dispute relates to the security bond. It is not clear from the notice of dispute what the applicant says was the problem with the guarantee. Nonetheless, it seems unlikely that this aspect of the dispute would fall within any of the exclusions in section 103 of the Retail Shop Leases Act. Accordingly, it can be assumed for present purposes that QCAT has jurisdiction to hear that aspect of the dispute.
- [12]Accordingly, the matter can proceed toward a hearing.
What are the appropriate next steps?
- [13]As I have mentioned, it is not clear what the applicant says was the problem with the guarantee provided by way of security bond. It is therefore appropriate to direct the applicant to lodge a document explaining the problem. It is also appropriate to give the respondent an opportunity to respond to that explanation.
- [14]The respondent did not file a response to the notice of dispute by 11 December 2017, as originally directed. On 31 January 2018 QCAT directed the respondent to file a response, and to give the applicant a copy, by 21 February 2018. On 20 February 2018 Mr Steve Darwich, who is a director of the respondent, filed as the respondent’s response a three-page document headed ‘To Whom It May Concern’. The applicant, in its submissions received by QCAT on 7 March 2018, says it has not received a copy of the response. Accordingly, it is appropriate to require the respondent to provide evidence that it has given a copy of its responses to the applicant.
Conclusion
- [15]The procedural directions that I have made are intended to give effect to the above observations.
Footnotes
[1] [2018] QCAT 45, [25]-[33].