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A & C G Lee Pty Ltd v Collier[2019] QCAT 30

A & C G Lee Pty Ltd v Collier[2019] QCAT 30

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

A & C G Lee Pty Ltd v Collier & Anor [2019] QCAT 30

PARTIES:

A & C G LEE PTY LTD ATF LEE SUPERANNUATION FUND

(applicant)

v

MARK NORMAN COLLIER

(first respondent)

PAULA MAREE COLLIER

(second respondent)

APPLICATION NO/S:

RSL162-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

19 February 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. A & C G Lee Pty Ltd ATF Lee Superannuation Fund must file in the Tribunal two (2) copies and give to Mark Collier and Paula Collier one (1) copy of submissions as to the further orders and directions the Tribunal should make in the proceedings, by: 4:00 pm on 1 March 2019.
  2. Mark Collier and Paula Collier must file in the Tribunal two (2) copies and give to A & C G Lee Pty Ltd ATF Lee Superannuation Fund one (1) copy of submissions in response, by: 4:00 pm on 15 March 2019
  3. A & C G Lee Pty Ltd ATF Lee Superannuation Fund must file in the Tribunal two (2) copies and give to Mark Collier and Paula Collier one (1) copy of submissions in reply, by: 4:00 pm on 22 March 2019.
  4. The Tribunal will make further orders not before 4:00 pm on 22 March 2019.

CATCHWORDS:

ADMINISTRATIVELAWADMINISTRATIVE TRIBUNALS QUEENSLAND  CIVIL  AND

ADMINISTRATIVE TRIBUNAL – where applicantlessor made Application for minor civil dispute (minor debt) against respondent lessor claiming outstanding rent and make good costs – whether dispute a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) or minor civil dispute under the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

 

LANDLORD AND TENANT RETAIL AND COMMERCIAL TENANCIES LEGISLATION – wherethe dispute is a retail tenancy dispute – where the applicant has not complied with the pre-proceedings mediation process mandated by the Retail Shop Leases Act 1994 (Qld) – whether the proceeding should be dismissed

Queensland Civil and Administrative Tribunals Act 2009 (Qld), schedule 3Retail Shop Leases Act 1994 (Qld), s 55(1), s 56(1), s 63(1), s 63(2), s 64, 83(1) , 83(1), 83(2)(b), 103(1), Schedule

Big4 Brisbane Northside Caravan Village v Schliebs

[2012] QCAT 277

Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87

To v Choi [2011] QSC 2

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    The applicant is the owner and lessor of commercial premises in Dalby from which a video rental business and ice creamery. Despite being named as respondents, Mr and Mrs Collier say that they were not the lessees of the subject premises. The respondents say that the lessee of the premises was Dalby Video Rentals Pty Ltd, that the company traded as Video Ezy Dalby until it ceased trading in October 2017 and that it had been the lessee of the premises from 2006 until it ceased trading.[1] The applicant says it does not dispute that the lessee is Dalby Video Rentals Pty Ltd.[2] I will proceed on the basis that the correct respondent is Dalby Video Rentals Pty Ltd and the submissions filed by the respondents are by DVR.
  1. [2]
    After the expiration of the lease, the applicant commenced proceedings in the Tribunal against the respondents for a minor civil dispute (minor debt) claiming outstanding rent and make good costs. On 8 August 2017 it was ordered by an adjudicator that the application for minor civil dispute be dealt with as a retail shop lease dispute.
  2. [3]
    The parties were directed to file submissions addressing the following preliminary question for determination by the Tribunal:

Is the dispute, the subject of the proceedings, a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) and/or a minor civil dispute under the Queensland Civil and Administrative Tribunal Act 2009 (Qld)?

  1. [4]
    It is not contentious that, if the dispute is a retail tenancy dispute, the parties have not complied with Part 8 of the Retail Shop Leases Act 1994 (Qld) (RSL Act).
  2. [5]
    The applicant originally claimed an amount of $8,190 for arrears of rent and make good costs. The rent claim is abandoned. The claim for make good costs amounts to

$7,090 including GST and relates to interior painting, removal of display boxes and cabinets (the fittings) and electrical work. The applicant also claims the cost of storing the fittings.

  1. [6]
    The respondent says that it does not own the fittings which, says the respondent, remain the property of the previous lessees. The respondent says that it made no structural alterations to the premises and that it is therefore not liable under special condition 4 of the lease to make good ‘structural changes made by the tenant which are detrimental to a future tenancy …’.[3]

The jurisdiction of QCAT – retail tenancy disputes and the RSL Act

  1. [7]
    The tribunal has, subject to certain exceptions, jurisdiction to hear and decide retail tenancy disputes.[4] A ‘retail tenancy dispute’ is 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.[5]
  2. [8]
    ‘Retail shop lease’ is defined and, with certain exceptions, means a lease of a retail shop.[6] ‘Lease’ is defined.[7] ‘Retail shop’ is defined and means premises situated in a retail shopping centre or that are used wholly or predominantly for the carrying on of one or more retail businesses.[8] ‘Retail business’ means a business prescribed by regulation as such.[9]
  3. [9]
    The tribunal may make the orders, including declaratory orders, the tribunal considers to be just to resolve a retail tenancy dispute.[10] The tribunal may, among other things, order the payment of an amount by a party to a dispute to a specified person.[11]
  1. [10]
    A party to a retail tenancy dispute that is within a mediator’s jurisdiction under s 97 of the RSL Act may lodge a notice of dispute with the chief executive.[12]With certain stated exceptions a mediator has jurisdiction to mediate retail tenancy disputes.[13]
  2. [11]
    After a notice of dispute is lodged, a mediation conference must be scheduled.[14] If the parties cannot reach a mediated solution to the dispute, or a party to the dispute does not attend the mediation conference, or the dispute is not settled within four months after the notice of dispute is lodged, and the retail shop lease has not ended more than one year before the dispute notice was lodged, the mediator must refer the dispute to the tribunal.[15]
  3. [12]
    There is an alternative path to the tribunal for a party to a retail tenancy dispute. A party may apply to the tribunal for an order to resolve the dispute if a party to a mediation agreement has not complied with the agreement or a mediator refuses to refer the dispute to the tribunal or a court has ordered that a proceeding for the dispute be removed to the tribunal, and the retail shop lease has not ended more than one year before the dispute notice was lodged.[16]
  4. [13]
    Accordingly, and putting to one side applications for urgent interim relief, the jurisdiction of the tribunal to hear and decide a retail tenancy dispute is enlivened if the requirements of either s 63 or s 64 of the RSL Act are met.

The jurisdiction of QCAT – minor civil disputes and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

  1. [14]
    The tribunal has jurisdiction to hear and decide a minor civil dispute.[17] The tribunal may exercise its minor civil dispute jurisdiction if a ‘relevant person’ has applied to the tribunal to deal with the dispute.[18] A ‘relevant person’ includes, for a claim to recover a debt or a liquidated demand of money, the person to whom the debt is owed or money is payable.[19]
  2. [15]
    A ‘minor civil dispute’ is defined[20] and includes:
    1. (a)
      a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or
  1. (b)
    a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
  1. (i)
    for payment of money of a value not more than the prescribed amount; or
  1. (ii)
    for relief from payment of money of a value not more than the prescribed amount; or
  1. (iii)
    for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
  1. (iv)
    for return of goods of a value not more than the prescribed amount; or
  1. (v)
    for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount;

  1. [16]
    If an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of (a) above, the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.[21]
  2. [17]
    A ‘consumer’ is defined.[22] A ‘trader’ is defined and includes a person who, in trade or commerce, carries on a business of supplying goods or providing services.[23]

What do the parties say?

  1. [18]
    The parties’ submissions are not particularly illuminating. The applicant’s submissions are essentially a restatement of the matters previously set out in the Application for minor civil dispute and include a commentary on the respondents’ response. The applicant says that the matter should proceed as a minor civil dispute.
  2. [19]
    The respondents say that the applicant’s claim is not for a ‘debt’ within the definition of ‘minor civil dispute’. Despite this submission, the respondents submit that the Tribunal ‘authorise the Applicant to have the matter dealt with as a minor civil dispute…’.

Consideration

  1. [20]
    On the basis of the material before the Tribunal I find that:
  2. [21]
    The proceedings were commenced by the applicant by way of an Application for minor civil dispute – minor debt. Aside claims for property damage arising out of motor vehicle accidents, claims for repair of defective motor vehicles, residential tenancy matters and dividing fence disputes, there are two limbs to the definition of a minor civil dispute. The first limb is claims to recover a debt or liquidated demand ofmoney, with or without interest, of up to the prescribed amount. [24]The second limb is consumer and trader, and trader and trader, disputes.
  1. [22]
    The tribunal has considered previously the meaning of ‘debt’ and ‘liquidated demand’. In Morales v Murray Lyons Solicitors (a firm)[25] the appeal tribunal held:

The phrase “debt or liquidated demand” has had the benefit of extensive judicial exegesis. A reasonably comprehensive definition is to be found in the judgment of Justice Sholl in Alexander v Ajax Insurance Co. Ltd.:

“The best statement which can be attempted of the meaning of the expression "debt or liquidated demand (in money)", as used in 1851, is that it covered any claim :-

  1. (a)
    for which the action of debt would lie.
  2. (b)
    for which an indebitatus (or "common") count would lie – including those cases formerly covered by the quantum meruit or quantum valebat counts, notwithstanding that the only agreement implied between the parties in such cases was for payment at a "reasonable rate".
  3. (c)
    for which covenant, or special assumpsit, would lie, provided that the claim was for a specific amount, not involving in the calculation thereof elements the selection whereof was dependent on the opinion of a jury.”
  1. [23]
    A liquidated demand is a claim that can be calculated or ascertained by a formula.[26] The applicant has abandoned the claim for outstanding rent. The remaining claims relate to make good costs and the costs of storage of the fittings removed from the premises.
  2. [24]
    The general rule for assessing damages for breach of a covenant by a lessee to deliver up the demised premises in repair is the cost of putting the premises into the state of repair required by the covenant.[27] The claim by the applicant is framed as one for damages for breach of the special condition of the lease requiring the respondents to make good structural changes made by the tenant detrimental to a future tenancy. In addition to the special condition, the applicant relies upon clause 10.2 of the lease permitting the lessor to remove and store the property of the tenant, not removed by the tenant at the end of the lease, at the tenant’s risk and expense.
  3. [25]
    At least insofar as the claim for make good costs is concerned, and assuming a breach of the lease is established, an assessment of the damages flowing from the breach will be required to be undertaken. Such a claim is not one for a debt or liquidated demand of money. In respect of the former, the terms of the lease do not give rise to a right of action for the recovery of a debt for the make good costs. In respect of the latter, the damages to which the applicant may be entitled lack the characteristic of being ascertainable by a mere formulaic calculation.
  4. [26]
    It is arguable that part of the claim relating to the removal and/or the storage of the fittings is a claim for a debt or liquidated demand of money. Even if this argument was accepted, for the reasons that follow, the definition of ‘minor civil dispute’ in the QCAT Act precludes such a claim being made in the tribunal’s minor civil dispute jurisdiction as a claim for a debt or liquidated demand of money.
  1. [27]
    Paragraph 2 of the definition of ‘minor civil dispute’ in the QCAT Act provides:

However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.

  1. [28]
    Paragraph 1(a) of the definition is the first limb of the definition of ‘minor civil dispute’ – ‘a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount’.
  2. [29]
    There are two things to be said about the definition of ‘minor civil dispute’ in the QCAT Act. The first is that on a plain reading the definition contemplates that a claim may be characterised as both a minor civil dispute and another type of dispute in relation to which the tribunal has jurisdiction.[28]
  3. [30]
    Secondly, and again on a plain reading, paragraph 2 of the definition of ‘minor civil dispute’ is directed at any claim to recover a debt or liquidated demand of money in relation to which jurisdiction is conferred upon the tribunal by an enabling Act. The effect of paragraph 2 of the definition of ‘minor civil dispute’ is to remove such a claim from the tribunal’s minor civil dispute jurisdiction unless the enabling Act expressly states that the claim is a minor civil dispute.
  4. [31]
    Jurisdiction in respect of the present dispute is conferred upon the Tribunal by the RSL Act. The RSL Act contains no provision that a retail tenancy dispute (of whatever nature) is a minor civil dispute. Accordingly, paragraph 2 of the definition of ‘minor civil dispute’, insofar as it relates to any aspect of a retail tenancy dispute that is a claim for a debt or a liquidated demand of money, operates to exclude such a claim from proceeding as a minor civil dispute. I will deal with the application of the RSL Act to that part of the applicant’s claim that may be a claim for a debt or liquidated demand later in these reasons.
  5. [32]
    I turn now to that part of the dispute that is not a claim for a debt or liquidated demand of money. This requires a consideration of whether the claim for make good costs and the claim for the removal and/or storage of the fittings (assuming the latter is not a claim for a debt or liquidated demand of money) is a ‘minor civil dispute’, being a claim arising out of a contract between a consumer and trader, or a trader and trader, for the payment of money.
  6. [33]
    Assuming the lease of retail premises falls within the meaning of ‘supplying goods’ and the provision of the services relating to the lease falls within the meaning of ‘providing services’ for the purposes of the definition of ‘trader’ under the QCAT Act, the applicant, engaging as it did in trade or commerce, is a trader. The respondent is also a trader being a person who, in trade or commerce, carried on the business of supplying goods (video rental and selling ice cream). It follows, on the basis of the premise earlier outlined, that the claim by the applicant for the make good costs and costs for the removal and/or storage of the fittings is a claim arising out of a contract between two or more traders that is for the payment of money of a value not more than the prescribed amount. The claim therefore falls within the second limb of the definition of a minor civil dispute.
  1. [34]
    But that is not the end of the matter.
  2. [35]
    As I have observed, a claim may be characterised as both a minor civil dispute and another type of dispute in relation to which jurisdiction is conferred upon the tribunal by an enabling Act. The claim for make good costs and removal/storage costs may be so characterised. It is necessary at this juncture to consider the requirements of the RSL Act in respect of commencing proceedings in the tribunal for a retail tenancy dispute.
  3. [36]
    A party to a retail tenancy dispute may apply to the tribunal to resolve the dispute if the parties have attempted to mediate the dispute or a proceeding commenced in a court in respect of the dispute is transferred to QCAT. What then is the effect of non- compliance by the parties with the requirements in the RSL Act for pre-proceedings mediation?
  4. [37]
    In Big4 Brisbane Northside Caravan Village v Schliebs,[29] (Big4) then QCAT President, Alan Wilson J, considered the issue of non-compliance by a party with the pre-proceedings conciliation process in respect of non-urgent matters imposed by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). In Big4 the lessor brought an application to terminate a residential tenancy on the grounds that the tenant had failed to leave the premises after being served with the required notice. The application also sought orders for the payment of rent arrears and outgoings. The application for the termination order was an ‘urgent application’ within the meaning of s 415 of the RTRA Act. By s 416 of the RTRA Act a lessor or tenant is permitted to make an application to the tribunal about an issue only if the applicant has first made a dispute resolution request about the issue and the conciliation process has been unsuccessful. By s 416(2) of the RTRA Act the pre- proceeding conciliation requirements do not apply to urgent applications. However in Big4, insofar as the application sought orders relating to the payment of outstanding rent and outgoings, the application was not an ‘urgent application’. The parties had not engaged in the pre-proceedings conciliation process. The issue for determination by the Tribunal was whether, in dealing with the urgent application, the Tribunal could also deal with the non-urgent claims which had not been through the conciliation process.
  5. [38]
    Alan Wilson J considered whether the tribunal could, in respect of the rent and outgoings, deal with the claim as a minor civil dispute being a claim for a debt or liquidated demand of money and not as a tenancy matter.[30]His Honour noted that the RTRA Act distinguished between urgent applications and other applications, that it was an enabling Act and that the RTRA Act contained provisions governing the tribunal’s functions when dealing with matters involving residential tenancies. His Honour referred to an earlier decision of the tribunal in Raymond v Doidge[31] where, in circumstances not dissimilar to those in Big4, the tribunal found that non-urgent matters could be dealt with as part of an urgent application despite non-compliance with the pre-proceedings conciliation process. Alan Wilson J came to a different conclusion to that reached in Raymond. His Honour held:[32]
  1. [30]
    Under ss 6 and 7 of the QCAT Act provisions in enabling Acts about applications, and the Tribunal’s functions, prevail over the provisions of the QCAT Act.
  1. [31]
    Here the enabling act, the RTRA Act, clearly prescribes the procedures to be followed and, to the extent of any inconsistency between that procedure and the provisions of the QCAT Act mentioned above, the enabling Act prevails.
  1. [32]
    It follows that, while the efforts of the learned Adjudicator were creditable in the sense they accorded with the general provisions of the QCAT Act encouraging speed and informality, those provisions did not override the requirements of the RTRA Act and the non-urgent elements of the claim could not be heard and determined until s 416 of the RTRA Act had been complied with.
  1. [33]
    I appreciate this adds an additional burden to applicants seeking both urgent, and non-urgent, remedies in RTRA Act matters.
  1. [39]
    The pre-proceedings mediation process under the RSL Act must, with a limited exception, be complied with before a party may commence proceedings in the tribunal.[33] The requirement in the RSL Act for the parties to engage in the mediation process has the same effect as the requirement under the RTRA Act for the parties to engage in pre-proceedings conciliation before commencing a non-urgent application. The RSL Act, as an enabling Act, contains modifying provisions requiring parties to retail tenancy disputes to engage in mediation before a Notice of Dispute can be referred to, or filed in, the tribunal. The object of the RSL Act is to promote efficiency and equity in the conduct of retail businesses in Queensland. One of the ways in which the object is to be achieved is through a low cost dispute resolution process for retail tenancy disputes. That process is consistent with the object of the QCAT Act to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. Only after parties to a retail tenancy dispute have engaged in the pre-proceedings mediation process can they proceed to the tribunal. A person may of course elect to commence proceedings in respect of a retail tenancy dispute elsewhere in which event the pre-proceedings mediation provisions will not apply.
  2. [40]
    However the RSL Act makes it clear that this election must be made before a dispute notice is lodged pursuant to s 55(1).[34] By s 94(1) of the RSL Act, and subject to certain stated exceptions contained in s 94(2), on and after the lodgement of a dispute notice, the dispute must not be referred to arbitration or heard by any court. Accordingly, once a person elects to lodge a dispute notice, the path through the pre-proceedings mediation process to the tribunal can only be departed from in very limited circumstances.
  3. [41]
    Can the tribunal waive compliance with the requirement for parties to engage in the pre-proceedings mediation process? By s 61 of the QCAT Act, the tribunal may, byorder, waive compliance with a procedural requirement under the QCAT Act, an enabling Act or the QCAT rules.[35] The tribunal cannot waive such compliance however if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party to a proceeding.[36] Section 61 provides for relief from procedural requirements. In Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [37] the Court of Appeal held:

Section 61 exists for a variety of cases in which enabling Acts or the QCAT Act may fix a time limit or impose other procedural requirements. Its presence removes the need to laboriously insert in numerous enabling Acts words such as “unless the Tribunal extends the time or waives compliance with this requirement” in conjunction with time limits or other procedural requirements.

  1. [42]
    Are the pre-proceedings mediation provisions in the RSL Act substantive or procedural in nature? The RSL Act contemplates that retail tenancy disputes may be heard by a court or the tribunal. A party to a retail tenancy dispute may lodge a notice of dispute. The lodgement of the notice is the first step in the mediation process. Part 8, Division 3 of the RSL Act is headed ‘Reference of retail tenancy disputes and applications to QCAT’. By s 63 of the RSL Act a mediator must, subject to certain matters, refer a dispute to QCAT if there is no mediated resolution of the matter. By 64 of the RSL Act a party to a retail tenancy dispute may apply to QCAT if the other party does not comply with a mediation agreement or the mediator refuses to refer the dispute to QCAT or a proceeding commenced in a court in respect of the dispute is transferred to QCAT.
  2. [43]
    As I have observed, a party to a retail tenancy dispute is not required by s 55(1) of the RSL Act to lodge a notice of dispute. The reference in s 55(1) to ‘may’ as opposed to ‘must’ recognises that a party to a retail tenancy dispute can elect to proceed in a court or in the tribunal. The tribunal does not have exclusive jurisdiction in respect of retail tenancy disputes. As I have also outlined earlier in these reasons, sections 63 and 64 of the RSL Act have no application if a party elects to proceed in a court in respect of a retail tenancy dispute. But if a party does elect to proceed in the tribunal, and lodges a dispute notice, then sections 63 and 64 are the gateways to the tribunal. With the exception of s 64(1)(a)(iii), both sections require a party to engage in the pre- proceedings mediation process before a dispute may progress to the tribunal. If a retail tenancy dispute is not resolved at mediation or within 4 months after the notice of dispute is lodged, the mediator must refer the dispute to QCAT. If there is a resolution of a dispute at mediation and there is a failure to comply with the mediation agreement, or the mediator refuses to refer the dispute, a party may apply to the tribunal. That a party may, by s 64(1) of the RSL Act, apply to QCAT for an order to resolve a dispute recognises that a party may, where the section applies, elect to proceed no further with a retail tenancy dispute. However as has been observed, by s 94 of the RSL Act, after the lodgement of a dispute notice the path to the tribunal can only be deviated from in limited circumstances. Absent those circumstances, that path must be followed if the tribunal is to have jurisdiction to hear and decide a retail tenancy dispute.
  1. [44]
    The requirement for parties to engage in the pre-proceedings mediation process is therefore a pre-condition to the jurisdiction of the tribunal to hear and decide a retail tenancy dispute. In the absence of a party satisfying that pre-condition, the tribunal does not have jurisdiction to hear and decide a retail tenancy dispute. To this extent, the relevant pre-proceedings mediation provisions of the RSL Act may be seen as substantive in nature as opposed to procedural.[38]
  2. [45]
    Section 61 of the QCAT Act does not apply if a requirement, under the QCAT Act, an enabling Act or the rules, is a precondition to jurisdiction. Nor does it apply if a provision is substantive in nature and effect. Section 61 of the QCAT Act cannot operate to waive compliance with the pre-proceedings mediation provisions found in the RSL Act.
  3. [46]
    As I have outlined earlier in these reasons, the requirements in the RSL Act for parties to engage in the pre-proceedings mediation process may also be considered modifying provisions and prevail to the extent of any inconsistency with the QCAT Act. The QCAT Act does not contain provisions requiring parties to disputes to engage in pre- proceedings mediation before commencing a proceeding in the tribunal. To this extent there is an inconsistency between the QCAT Act and the RSL Act. By operation of s 7(1) and s 7(2) of the QCAT Act, to the extent of the inconsistency the RSL Act must prevail and the pre-proceedings mediation requirements must be met before proceedings for a retail tenancy dispute are commenced in the tribunal, either by referral from a mediator or application by a party.
  4. [47]
    In reaching the conclusion I have regarding the mandatory nature of the pre- proceedings mediation process I have considered the decision of the Tribunal in McDonald’s Australia Ltd v Emaaas Pty Ltd[39] (McDonald’s). In McDonald’s Alan Wilson J held:

It is not apparent, however, that ss 63 and 64 are intended under the RSL Act to provide the only gateway to QCAT. Those provisions do not expressly qualify the broad jurisdiction given to QCAT under s 103.[40]

  1. [48]
    In my view McDonald’s can be distinguished from the present case. There, the Tribunal was dealing with an application for urgent injunctive relief in relation to which Alan Wilson J had this to say:

Different questions may arise, and different conclusions may apply, when proceedings do not involve applications to this Tribunal for relief under ss 58 and 59 of the QCAT Act.[41]

  1. [49]
    Here, there is no application for urgent interim relief. I do not consider McDonald’s to be authority for the proposition that the tribunal may dispense with the requirement for parties to engage in the pre-proceedings mediation process where there is no urgent interim relief sought.
  1. [50]
    It follows from these reasons that the non-compliance by the applicant with the pre- proceedings mediation process mandated by the RSL Act prevents the applicant from proceeding further with any part of its claim.
  2. [51]
    In light of the conclusions I have reached, I consider it unnecessary to answer the preliminary question. The failure by the applicant to comply with the pre-proceedings mediation requirements of the RSL Act is fatal to the proceeding continuing. It seems to me that the only order that can be made is that the proceeding be dismissed. However to ensure that the parties are afforded procedural fairness, I will invite submissions as to the appropriate further orders. Those submissions should also address the appropriate orders to be made to regularise the correct respondent in the proceedings.

Footnotes

[1]Mark Collier and Paula Collier, ‘Respondent Response with Recommendations’, Submission in A & C G Lee Pty Ltd v Collier & Anor, RSL162-18, 23 February 2018, 1[2], 6[39].

[2]A & C G Lee Pty Ltd ATF Lee Superannuation Fund, ‘Re: RSL162-18’, Submission in A & C G Lee Pty Ltd v Collier & Anor, RSL162-18, 28 September 2018, 2[7].

[3]Commercial Tenancy Agreement dated 31 July 2015, special condition 4.

[4]RSL Act, s 103(1).

[5]Ibid, sch (definition of ‘retail tenancy dispute’).

[6]Ibid, s 5A, sch (definition of ‘retail shop lease’).

[7]Ibid, sch (definition of ‘lease’).

[8]Ibid, sch (definition of ‘retail shop’).

[9]Ibid, s 5C, sch (definition of ‘retail business’).

[10]Ibid, s 83(1).

[11]Ibid, s 83(2)(b).

[12]Ibid, s 55(1).

[13]Ibid, s 97(1).

[14]Ibid, s 56(1).

[15]Ibid, s 63(1), s 63(2).

[16]Ibid, s 64.

[17]QCAT Act, s 11.

[18]Ibid, s 12(1).

[19]Ibid, s 12(4)(a).

[20]Ibid, sch 3 (definition of ‘minor civil dispute’).

[21]Ibid.

[22]Ibid, sch 3 (definition of ‘consumer’).

[23]Ibid, sch 3 (definition of ‘trader’).

[24]The prescribed amount is $25,000: QCAT Act, sch 3 (definition of ‘prescribed amount’).

[25][2010] QCATA 87 (26 November 2010).

[26]Spain v Union Steamship Company of New Zealand Ltd (1923) 32 CLR 138.

[27]Graham v Markets Hotel Pty Ltd (1943) 67 CLR 567 applying Joyner v Weeks [1891] 2 QB 31.

[28]In the context of claims under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) see Raymond v Doidge [2012] QCAT 163 (12 April 2012) and particularly at [15].

[29][2012] QCAT 277 (29 June 2012).

[30]By para 1(e) of the definition of ‘minor civil dispute’ a tenancy matter is a minor civil dispute. (A tenancy matter is defined under sch 3 of the QCAT Act as a matter in relation to which a person may, under the RTRA Act, apply to the tribunal for a decision.)

[31][2012] QCAT 163 (12 April 2012).

[32][2012] QCAT 277 (29 June 2012), [30]-[33] (citations omitted).

[33]Burinpipat Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100 (1 March 2016).

[34]See To v Choi [2011] QSC 2.

[35]QCAT Act, s 61(1)(c).

[36]Ibid, s 61(3).

[37][2016] QCA 37 (26 February 2016) [48].

[38]John Pfeiffer Pty Ltd v Rogerson (2000) 203 C.L.R. 503.

[39][2011] QCAT 293 (22 June 2011).

[40]Ibid, [17].

[41]Ibid, [30].

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Editorial Notes

  • Published Case Name:

    A & C G Lee Pty Ltd v Collier & Anor

  • Shortened Case Name:

    A & C G Lee Pty Ltd v Collier

  • MNC:

    [2019] QCAT 30

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    19 Feb 2019

Appeal Status

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