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Aqualine Pty Ltd v Ponticello Properties Pty Ltd[2019] QCAT 393

Aqualine Pty Ltd v Ponticello Properties Pty Ltd[2019] QCAT 393

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Aqualine Pty Ltd v Ponticello Properties Pty Ltd [2019] QCAT 393

PARTIES:

Aqualine Pty Ltd ACN 010556493 ATF The Houghton investment Trust

 

(applicant)

 

V

 

Ponticello Properties PTY LTD ACN 010070934 As trustee under instrument number 70758827

 

(respondent)

APPLICATION NO/S:

RSL033-18

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

7 May 2019

HEARING DATE:

25 March 2019

HEARD AT:

Brisbane

DECISION OF:

Member Vass Poteri

ORDERS:

Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust is not entitled to claim compensation from Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827 under Section 43 of the Retail Shop Leases Act 1994 for loss or damage allegedly suffered by Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust because of an action by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or a failure by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or another event of the kind described in Section 43 of the Retail Shop Leases Act 1994 that occurred before 25 November 2016.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTIONS FOR LESSEES – OTHER MATTERS – implied right to compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) - where no implied right to compensation under a periodic tenancy existed prior to legislative amendment – whether a lessee on a periodic tenancy created by holding over is entitled to claim compensation under section 43 of the Retail Shop Leases Act 1994 for an action, failure to act or an event that occurred prior to the legislative amendment – whether the amendment operates retrospectively

Acts Interpretation Act 1954 (Qld), s 20

Legislative Standards Act 1992 (Qld), s 4

Retail Shop Leases Act 1994 (Qld), s 13, s 42, s 43

Retail Shop Leases Amendment Act 2016 (Qld)

Coleman v The Shell Company of Australia Limited (1943) 45 SR (NSW) 27

Colonial Sugar Refining Company Limited v Irving [1905] AC 369

D’Arro v Queensland Building and Construction Commission [2017] QCA 90

Doro v Victorian Railway Commissioners [1960] VR 84

Laldy Pty Ltd v Archer & Ors [2016] QSC 257

Maxwell v Murphy (1957) 96 CLR 261

Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232

Ozibar Pty Ltd v Leroar Holdings Pty Ltd [2015] QSC345

Project Bluesky v Australian Broadcasting Authority (1998) 194 CLR 355

Smith v Ash [2010] QCA 112

Worrall v Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28

APPEARANCES &

REPRESENTATION:

 

Applicant:

S C Fischer of Counsel

Respondent:

M Cooke of Counsel instructed by Thynne & McCartney Lawyers

Material

Exhibit 1 - Order of Senior Member Brown dated 10 September 2018

Exhibit 2 – Applicant’s Submissions dated 24 September 2018

Exhibit 3 – Applicant’s Reply Submissions dated 15 October 2018

Exhibit 4 – Respondent’s Submissions dated 8 October 2018

Exhibit 5 – Respondent’s Response to New Submissions raised by the Applicant dated 22 October 2018

REASONS FOR DECISION

Background

  1. [1]
    The Respondent is the registered proprietor of a shopping centre property known as Acacia Market Place Shopping Centre, located at Beaudesert Road, Acacia Ridge.
  2. [2]
    The Applicant had been holding over as a periodic tenant in the shopping centre from 26 August 2011 until 23 July 2017.
  3. [3]
    The Applicant has filed a Notice of Dispute in Queensland Civil and Administrative Tribunal claiming compensation pursuant to section 43 of the Retail Shop Leases Act 1994 (Qld) (“RSLA”).
  4. [4]
    The RSLA was amended by the Retail Shop Leases Amendment Act (Qld) 2016 (“Amending Act”), with the amendments proclaimed on 25 November 2016.
  5. [5]
    Section 42(1) of the RSLA now provides for certain compensation provisions contained in sections 43, 43AA, 43AB, 43AC, 43AD and 43A of the RSLA to be implied in certain retail shop leases.  For the purposes of this decision, I will refer to these provisions collectively as ‘the compensation provisions’.
  6. [6]
    Section 42(2)(a) of the RSLA provides, in effect, for a lessee who is a periodic tenant created by the lessee holding over under a lease or with the lessor’s consent to claim compensation under the compensation provisions.
  7. [7]
    The question now before the Tribunal is: does the Applicant’s right to claim compensation, pursuant to the compensation provisions, extend to the alleged actions of the Respondent that occurred before 25 November 2016? That is, does the Amending Act have retrospective effect to apply to events that have already occurred and impose obligations to past events in respect of any periodic tenancies of the type referred to in section 42(a) of the RSLA that were in existence prior to 25 November 2016?
  8. [8]
    The Applicant has raised an alternate argument in section 6 paragraphs 33 to 39 of the Applicant’s Reply Submissions (exhibit 3) relating to the possible operation of section 129 of the Property Law Act 1974. At the commencement of the hearing on 25 March 2019, the Applicant withdrew this argument. It is now common ground between the parties that at all relevant times the Applicant was a periodic tenant pursuant to section 42(2)(a) of the RSLA.

Legislation

  1. [9]
    Section 13 of the RSLA provides:

13 Application of Act to leases—general

This Act applies in relation to all retail shop leases whether entered into, or renewed, before or after 28 October 1994, subject to the following provisions—

  1. (a)
    section 14;
  2. (b)
    section 19(1);
  3. (c)
    section 20;
  4. (d)
    section 20A;
  5. (e)
    section 20B;
  6. (f)
    section 20C;
  7. (g)
    section 21;
  8. (h)
    section 42;
  9. (i)
    section 45(3);
  10. (j)
    section 46AB;
  11. (k)
    part 7.
  1. [10]
    Section 42 of the RSLA provides:
  1. Compensation provisions implied in particular leases
  1. (1)
    A retail shop lease is taken to include sections 43, 43AA, 43AB, 43AC, 43AD, 43A and 44.
  2. (2)
    However, subsection (1) does not apply to a lease for—
  1. (a)
    a periodic tenancy, other than a periodic tenancy created by the lessee holding over under the lease or with the lessor’s consent; or
  2. (b)
    a tenancy at will, other than a tenancy at will created by the lessee holding over under the lease or with the lessor’s consent.
  1. [11]
    Section 4 of the Legislative Standards Act 1992 (Qld) sets out the meaning of “fundamental legislative principles” as follows:

4  Meaning of fundamental legislative principles

  1. (1)
    For the purposes of this Act, fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.

Note

Under section 7, a function of the Office of the Queensland Parliamentary Counsel is to advise on the application of fundamental legislative principles to proposed legislation.

  1. (2)
    The principles include requiring that legislation has sufficient regard to—
  1. (a)
    rights and liberties of individuals; and
  2. (b)
    the institution of Parliament.
  1. (3)
    Whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation—
  1. (a)
    makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review; and
  2. (b)
    is consistent with principles of natural justice; and
  3. (c)
    allows the delegation of administrative power only in appropriate cases and to appropriate persons; and
  4. (d)
    does not reverse the onus of proof in criminal proceedings without adequate justification; and
  5. (e)
    confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer; and
  6. (f)
    provides appropriate protection against self-incrimination; and
  7. (g)
    does not adversely affect rights and liberties, or impose obligations, retrospectively; and
  8. (h)
    does not confer immunity from proceeding or prosecution without adequate justification; and
  9. (i)
    provides for the compulsory acquisition of property only with fair compensation; and
  10. (j)
    has sufficient regard to Aboriginal tradition and Island custom; and
  11. (k)
    is unambiguous and drafted in a sufficiently clear and precise way.
  1. (4)
    Whether a Bill has sufficient regard to the institution of Parliament depends on whether, for example, the Bill—
  1. (a)
    allows the delegation of legislative power only in appropriate cases and to appropriate persons; and
  2. (b)
    sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly; and
  3. (c)
    authorises the amendment of an Act only by another Act.
  1. (5)
    Whether subordinate legislation has sufficient regard to the institution of Parliament depends on whether, for example, the subordinate legislation—
  1. (a)
    is within the power that, under an Act or subordinate legislation (the authorising law), allows the subordinate legislation to be made; and
  2. (b)
    is consistent with the policy objectives of the authorising law; and
  3. (c)
    contains only matter appropriate to subordinate legislation; and
  4. (d)
    amends statutory instruments only; and
  5. (e)
    allows the subdelegation of a power delegated by an Act only—
  1. (i)
    in appropriate cases and to appropriate persons; and
  2. (ii)
    if authorised by an Act.
  1. [12]
    The Retail Shop Leases Amendment Bill (Qld) 2015 (“the Bill”) and the Explanatory Notes to the Bill (“Explanatory Notes”) are also relevant.
  2. [13]
    Section 20 of the Acts Interpretation Act 1954 (Qld) (“AIA”) also provides:

20 Saving of operation of repealed Act etc.

  1. (1)
    In this section—

Act includes a provision of an Act.

repeal includes expiry.

  1. (2)
    The repeal or amendment of an Act does not—
  1. (a)
    revive anything not in force or existing at the time the repeal or amendment takes effect; …
  1. [14]
    Section 42 of the RSLA provides for certain compensation provisions to be implied into particular leases. Section 42(2)(a) of the RSLA now gives a right to periodic tenants (holding over under the lease or with the lessors consent) to claim compensation under the compensation provisions.  This right did not exist before the Amending Act was proclaimed on 25 November 2016.
  2. [15]
    Section 4 of the Legislative Standards Act (Qld) 1992 sets out the meaning of the “fundamental legislative principles” that parliament should observe when enacting legislation.  Section 4(2) of this Act states as follows,

The principles include requiring that legislation has sufficient regard to (a) the rights and liberties of individuals; and …

Section 4(3)(g) of this Act states,

Where the legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation…

(g) does not adversely affect rights and liberties, or impose obligations, retrospectively; and …

  1. [16]
    The Explanatory Notes set out the policy objectives of the Bill. These objectives are set out as follows:

 “excluding certain leases from the operation of the Act where its application   cannot be justified;

 clarifying the application of the disclosure provisions in Part 5 of the Act for key lease categories;

 enhancing protection for lessees, including prospective purchasers of retail businesses and the release from liability for assignors and their guarantors on assignment of lease where the assignor has complied with its disclosure  obligation;

 providing for exclusions from lessor's liability for compensation to the lessee for business disruption in certain circumstances;

 providing for liability as to certain legal costs related to a retail shop lease; and

 simplifying procedural requirements and clarifying the operation of various provisions.”

These objectives clearly benefit both lessors and lessees. Further there is no mention in the Explanatory Notes of any of the provisions of the Bill having retrospective effect. Also on page 5 of the Explanatory Notes there is a statement that the Bill is consistent with fundamental legislative principles.

Applicant’s Submissions

  1. [17]
    I will now comment on the Applicant’s Submissions which generally promote the view that the Amending Act was remedial legislation and enacted solely for the benefit of the lessees.
  2. [18]
    In paragraphs 22, 23 and 24 of the Applicant’s Submissions dated 24 September 2018 (Exhibit 3), the Applicant refers to section 14A of the AIA and sections 3 and 4 of the RSLA.
  3. [19]
    Section 14A of the AIA provides:

14A  Interpretation best achieving Act’s purpose

  1. (1)
    In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
  1. (2)
    Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act .
  1. (3)
    To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

Example—

There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.

  1. [20]
    Sections 3 and 4 of the RSLA provides:

3  Object of Act

The object of this Act is to promote efficiency and equity in the conduct of certain retail businesses in Queensland.

4  How object of Act to be achieved

The object of this Act is to be achieved through—

  1. (a)
    mandatory minimum standards for retail shop leases; and
  1. (b)
    a low cost dispute resolution process for retail tenancy disputes.
  1. [21]
    The Amending Act does not change the object of the RSLA.
  2. [22]
    The Applicant has submitted that the object of the RSLA, together with section 4, should be read with section 14A of the AIA.  That is, one should interpret a provision of legislation, here it is sections 14(1) and 14(2)(a) of the RSLA, and give primary consideration or importance to these general provisions.  However, these general provisions only become relevant or provide assistance where there is some ambiguity or conflict with the particular provisions.  Sections 14(1) and 14(2)(a) of the RSLA are very clear and the general provisions cannot overcome the principles set out in Maxwell v Murphy (1957) 96 CLR 261 (“Maxwell”).  Further, the Applicant has referred to the authorities of Laldy Pty Ltd v Archer & Ors [2016] QSC 257 (“Laldy”) and Ozibar Pty Ltd v Leroar Holdings Pty Ltd [2015] QSC 345 (“Ozibar”)These authorities do not support the Applicant’s contention.
  3. [23]
    In Laldy, which involved proceedings that applied before the RSLA was amended in 2016, Henry J held at [21],

The respondents complain the above construction and its application in this case is inconsistent with the Act’s object pursuant to s 3 which provides:

“The object of this Act is to promote efficiency and equity in the conduct of certain retail businesses in Queensland.”

Section 14A Acts Interpretation Act 1954 (Qld) requires that preference be given to an interpretation of an Act’s provision that will best achieve the purpose of the Act. However the above level of generality with which this Act’s beneficial purpose is stated is of little use in construing particular parts of the legislative language and in any event is not at odds with the construction favoured in these reasons. The respondents’ submission in effect is that the above discussed construction and its application in this case would inequitably deprive the respondents of compensation for loss occasioned by the early ending of the lease due to demolition works. However the respondents made a commercial choice in entering into their leases to agree to a lease that could end earlier than otherwise contemplated in the event the lessor gave at least six months’ notice of proposed demolition work. It was open to them to negotiate a longer period of such notice or refrain from entering into a lease containing such a clause. In entering into a lease containing such a clause the lessees knew the lessor could quite legitimately end the leases early in the very circumstances which have come to pass.

  1. [24]
    I will now deal with the two leading authorities of Maxwell and Colonial Sugar Refining Company v Irving [1905] AC 369 (“Colonial Sugar”).  In the High Court authority of Maxwell, the basic principle is against retrospectivity if a right or liability is in issue.  On the other hand, where amending legislation relates to practice or procedure, then the law may apply to past events.  In Maxwell, Dixon CJ held at 267-268:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger (1876) 3 Ch D 62 “No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done” (1876) 3 Ch D, at p 69.

The distinction is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application. In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing. In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy. There is a tacit recognition of this in the manner in which Lord Penzance (then Wilde B.) stated the rule in a passage that has been much quoted – “The rule applicable to cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act” - Wright v. Hale (1860) 6 H & N 227, at p 232 [1860] EngR 1191; (158 ER 94, at p 96).

  1. [25]
    In Maxwell, a case which involved a time limit to claim compensation which was increased from 12 months to five years, the claimant commenced an action outside the 12 month period, Dixon CJ held at 268-269 that,

The rule or rules governing the presumption against the operation of new laws upon rights that have already accrued or immunities that have already been established or acquired must be reconciled or accommodated with the rule that the repeal of a provision makes it as if it had never been enacted. It is to this that the exceptions, already described, of the former rule are directed. In the case cited above, Butcher v. Henderson (1868) LR 3 QB 335, this is clearly put by Blackburn J. as follows: “The maxim alike of law and justice is, ‘Nova constitutio futuris formam imponere debet, non praeteritis,’ and therefore, though when a statute is repealed, it is as to new matters as though it had never existed, yet as to transactions already completed under it, it still has full effect” (1868) LR 3 QB, at p 338.

When the Compensation to Relatives Act gives rights to those of the deceased man's family to whom injury results from his death it does so in terms of remedy. The wrongdoer is to “be liable in an action of damages”: s. 3(1). “Every such action shall be for the benefit of the wife, parent and chil” - s. 4. The effect of these provisions, combined with s. 5 as it stood, was, in the conditions defined, to confer a right of action which is to endure for twelve months from the death. The statement that every such action shall be commenced within twelve months meant, of course, “and not otherwise”. When the time expired the right of action was terminated or defeated.

That being so, it appears to me that the situation is one falling within the application of the presumptive rule of construction. The appellant had lost her right of action before Act No. 33 of 1953 was passed and was without remedy. In terms a remedy had been conferred and in terms a bar had been imposed upon the remedy as such. If the passing of Act No. 33 of 1953 revived her remedy that means that it revived a right which had ceased to exist and reimposed a liability on the respondent from which he had been discharged.

To say that notionally the right to damages continued to exist and only the manner of enforcing the right had been destroyed appears to me to ignore the fact that the right to damages could not be separated from the right to recover them. There are rights in English law which have an existence and a purpose although the remedy be suspended or wanting. But the right here in question is not one of them. If the amending statute received the operation for which the appellant contends, it would impose anew a liability that had ceased to exist. The presumptive interpretation is against such an operation.

  1. [26]
    In Maxwell, no right existed at the date the proceedings were commenced because the claim was made outside the 12 month limit that applied under the previous legislation.  In the new legislation, the time limit was increased to five years, but the legislation did not operate to revive the claim and the claim failed.
  2. [27]
    In paragraph 24 of Exhibit 2, the Applicant refers to sections 15, 16 and 17 of the RSLA as supporting its contentions.  These sections provide as follows:

15  Act’s provisions implied in leases

If, under this Act, a duty is imposed or an entitlement is conferred on a lessor or lessee under a retail shop lease, the duty or entitlement is taken to be included in the lease.

16  Contracting out of Act prohibited

A provision of a retail shop lease, or another agreement entered into for a retail shop lease, is void if it purports to exclude the application of a provision of this Act that applies to the lease.

17  Act prevails over inconsistent leases

If a provision of this Act is inconsistent with a provision of a retail shop lease, the provision of this Act prevails and the provision of the lease is void to the extent of the inconsistency.

  1. [28]
    These are general provisions and do not support the Applicant’s contentions.  Section 15 of the RSLA refers to a "duty" which is not subject to these proceedings. Section 15 of the RSLA also refers to "an entitlement" which must be subject to the principles set out in Maxwell and can only operate prospectively.  Section 16 of the RSLA does not apply because there is no issue of attempting to exclude the application of the RSLA in the relevant lease.  Further, section 17 of the RSLA only applies where there is inconsistency between the terms of the relevant lease and the provisions of the RSLA.  The question of inconsistency is not an issue in these proceedings.
  2. [29]
    In paragraph 24 of Exhibit 2, the Applicant also refers to section 22 of the AIA.  The significance of this submission is unclear.  Section 22 of the AIA provides:

An Act and all Acts amending the Act are to be read as one.  

  1. [30]
    I do not believe this assists the Applicant.
  2. [31]
    In paragraph 26 of Exhibit 2, the Applicant appears to submit that because the wording of sections 42(1) and 42(2)(a) of the RSLA do not confine their operation then the provision should be given an expanded operation. This submission ignores the common law presumption against retrospective effect as explained previously in paragraphs 24 and 25 above. Also this submission ignores the specific wording set out in section 13 of the RSLA.
  3. [32]
    In paragraph 27 of Exhibit 2, the Applicant refers to the High Court authority of Project Bluesky v Australian Broadcasting Authority Limited and Ors (1998) 194 CLR 355 (“Project Bluesky”). The Applicant has quoted a section from page 381 of this authority as:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”…

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.

  1. [33]
    The principle of reading a statute as a whole to achieve the goals of the statute, as set out in Project Bluesky, only apply where there is conflict or ambiguity in the provision. There is no conflict or ambiguity in the operation of sections 42(1) and 42(2)(a) of the RSLA or any other provisions and object of the RSLA. The wording of sections 42 and the compensation provisions of the RSLA is clear.
  2. [34]
    In paragraph 29 and 30 of Exhibit 2, the Applicant continues the theme of some of the previous submissions. That is the object and the provisions should be read as a whole “both fairly and carefully” to reach the conclusion that there is nothing in RSLA to limit the operation of the RSLA to matters arising before and after the 25th of November 2016. This ignores the common law presumption against retrospectivity, section 13 of the RSLA and the provisions of the RSLA that benefit both lessor and lessee. Again, I point out that there was no right for periodic tenants of the type referred to in section 42(1)(a) of the RSLA to claim compensation under the compensation provisions before 26 November 2016.
  3. [35]
    In paragraph 31 of Exhibit 2, the Applicant makes a statement that the enactment of the new section 42(2)(a) of the RSLA is correcting an omission to the former section 42(2)(a) of the legislation that was in force prior to 26 November 2016. The Applicant makes this statement without reference to any legislation, case law or evidence. Therefore this submission does not support or assist the Applicant.
  4. [36]
    In paragraph 32 of Exhibit 2, the Applicant makes reference to the doctrine of equity of statute. A basic definition of equity of statute is a rule of statutory construction which says a statute should be interpreted according to the legislator’s purpose and intent, even if this interpretation goes beyond the literal meaning of the text of the legislation.  That is, interpreting the text of the legislation literally would result in an inequitable result to the lessee. The Applicant has provided some authorities, however the Applicant has not provided any evidence of any inequitable result by interpreting section 42(2)(a) and the compensation provisions of the RSLA as only operating prospectively.  By interpreting the operation of section 42(2)(a) and the compensation provisions of the RSLA to operate retrospectively would result in an advantage or benefit to the Applicant but would be inequitable to the Respondent and all other affected lessors in Queensland.
  5. [37]
    In paragraph 33 of Exhibit 2, the Applicant submits that a court may read words into a legislative provision if, by inadvertence, Parliament has failed to deal with an eventuality required to be dealt with, if the purpose of the statute is to be achieved. The Applicant points to the Queensland case of Smith v Ash [2010] QCA 112 which involved an appeal to the Court of Appeal on the question of an appeal regarding section 222 of the Justices Act 1886 (Qld). The issue in these proceedings was whether an appeal is possible on the question of costs.  Section 222(2)(c) of the Justices Act 1886 (Qld) uses the words “fine”, “penalty”, “forfeiture” or “punishment” but not “costs”. Even in this authority the court was divided on how the law should operate. This authority does not assist the Applicant. Further the Applicant has not pointed to any evidence or extrinsic material that supports this submission. The Explanatory Notes clearly show that the Amending Act was for the benefit of both lessors and lessees and does not mention any provisions that should have retrospective effect. The Applicant merely states that the legislator has omitted or inadvertently omitted that the provisions of section 42 and the compensation provisions of the RSLA should operate retrospectively because it would then give a right to a claim for compensation before 26 November 2016.  This submission does not assist the Applicant.
  6. [38]
    In paragraph 34 of Exhibit 2, the Applicant is submitting that sections 42(2)(a) and the compensation provisions of the RSLA apply to periodic tenancies created by the lessee holding over under the lease or with the lessors consent currently in force. This contention again ignores the operation of section 13(h) of the RSLA and, in my view, interpreting the legislation this way would lead to the legislation operating retrospectively.  The Applicant has referred to the authority of Coleman v The Shell Company of Australia Limited (1943) 45 SR (NSW) 27 (“Coleman”).  This authority involved a workers compensation claim where the worker had to commence common law proceedings within a six month period.  Legislation was enacted to extend this to 12 months.  The court held that the 12 month period could apply because it only related to procedure and the worker had the right to claim compensation previously.  This authority in no way assists the Applicant’s contention because in Coleman a right to claim compensation existed before the legislation was amended.
  7. [39]
    In paragraph 35 of Exhibit 2, the Applicant refers to the authority of Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232. In this matter, the Court of Appeal noted that a tenant holding over under a holding over clause was a periodic tenancy. Also this appeal involved the differentiation between a question of fact and law and the appeal related to legislation that was superseded by the RSLA.  This authority supports the Respondent’s contention.
  8. [40]
    In paragraph 36 of Exhibit 2, the Applicant refers to Laldy and says that the RSLA as it was prior to 26 November 2016 was a beneficial statute. This submission again refers to the general object of the RSLA and how it should generally operate to redress any imbalance between landlord and tenant. The submission is really a reiteration of previous submissions. Once again, the Applicant points to general principles and ignores the specific operation of section 13 of the RSLA, the common law presumption against retrospectivity, the fact that there was no right to compensation before the Amending Act came into force and the Amending Act has been enacted for both lessors and lessees.
  9. [41]
    I will now comment on some of the other authorities referred to me by the Applicant and the Respondent.
  10. [42]
    Colonial Sugar involved an appeal to the Privy Council from the Supreme Court regarding the imposition of excise duty. During the proceeding, the Judiciary Act 1903 (Cth) was enacted mandating that appeals are to be to the High Court of Australia. The issue was whether the Judiciary Act 1903 (Cth) had retrospective effect.  The Privy Council held that question of appeal was one of procedure not a right. Therefore, the legislation had retrospective effect. This authority does not support the Applicant’s contention because this authority does not involve a “right”.
  11. [43]
    The Applicant has referred me to the authority of Worrall v Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28 in paragraph 22 of the Applicant’s Reply Submissions dated 15 October 2018 (Exhibit 3).  This authority was heard during World War One and related to regulations giving relief to mortgagors and restricting rights of appeal.  The High Court held that the amending regulations were intended to place all relevant parties on the same footing (that is, non appealability), and to give relief to mortgagors who are unable to meet their debts.  This authority should be viewed in the light of wartime regulation. The High Court held that the necessary intendment of legislation was so strong that this was the only way of interpreting the legislation and that the presumption against retrospectivity did not apply. I do not believe this authority applies to the Amending Act. In the Amending Act the provisions are clear and the intent of the legislation can only be interpreted one way.
  12. [44]
    In paragraph 23 of Exhibit 3, the Applicant refers to Doro v Victorian Railways Commissioner [1960] VR 84 (“Doro”). This authority related to an action for negligence.  Proceedings were commenced on 30 September 1955 when the limit to damages was 2000 pounds. On 13 December 1955, the damages limit was increased to 10,000 pounds.  This matter turned on the construction of the legislation.  Adams, J of the Victorian Supreme Court distinguished the facts and law of this matter and did not apply the principles outlined in Maxwell and Colonial Sugar. In Doro, Henry J held at 88:

Putting to one side any presumption against retrospectivity there appears to be sound reason for giving to the language of the act its full meaning and inclining to imply words which would confine its operations to actions brought after its commencement. The amending act is a remedial one its purpose is clearly enough to rectify the injustice and the hardship to persons injured by the fault of the commissioner by the prohibition against the ward of any sum in excess of a sum which in the period elapsed since 1890 had become I think I may say notorious and adequate the dominant intent of the act seems clear beyond doubt.

  1. [45]
    The principles in this authority do not apply to the Amending Act and the RSLA where the object of the legislation is to promote efficiency and equity in the conduct of certain retail businesses in Queensland. The purpose of the amending legislation is not to rectify any injustice and hardship to persons.  Further, it should be noted that in Doro, the right to claim compensation existed before the relevant legislation was amended.

Findings

  1. [46]
    Although the AIA was not relied on to a great degree by the Applicant or the Respondent, I will mention section 20(2)(a) and (b) of the AIA. It is clear that these provisions operate on a prima facie basis to maintain the status quo of legislation and against the presumption of retrospectivity.
  2. [47]
    Section 13 of the RSLA states that the RSLA applies to all retail shop leases whether entered into, or renewed, before or after 28 October 1994 subject to certain provisions. One of those provisions is section 42. Section 13 of the RSLA was amended pursuant to the Amending Act by proclamation on 26 November 2016. It is clear from this provision that the operation of the amended section 42 of the RSLA only applies to retail shop leases after 26 November 2016.
  3. [48]
    There is no clear language or any clear provisions in the RSLA or the Amending Act that section 42 and the compensation provisions should operate retrospectively. 
  4. [49]
    Specific statutory provisions to allow periodic tenants to claim compensation from lessors did not exist prior to 26 November 2016.
  5. [50]
    Further, there is no mention in the Explanatory Notes or the Bill that the Amending Act is remedial legislation and the legislation has been enacted to rectify any injustice.
  6. [51]
    A claim for compensation under the compensation provisions is a right therefore the common law presumption of retrospectivity applies to the amendments to sections 42 and the compensation provisions of the RSLA by the Amending Act.
  7. [52]
    From 26 November 2016, the Amending Act has the effect of including the compensation provisions of the RSLA into periodic tenancies created by the lessee holding over under the lease or with the lessor’s consent as referred to in section 42(2)(a) of the RSLA.
  8. [53]
    A periodic tenant, of the kind referred to under section 42(2)(a) of the RSLA, can only make a claim for compensation under the compensation provisions of the RSLA for any alleged action of a lessor or failure of a lessor or an event that occurred after 26 November 2016.
  9. [54]
    The Respondent has made a submission that they wish to reserve costs in this matter. It is a matter for the Respondent to make any such application and for the Applicant to respond, if necessary.

Orders

  1. [55]
    I therefore order:

AQUALINE PTY LTD ACN 010556493 ATF THE HOUGHTON INVESTMENT TRUST is not entitled to claim compensation under section 43 of the RSLA for loss or for loss or damage allegedly suffered by the AQUALINE PTY LTD ACN 010556493 ATF THE HOUGHTON INVESTMENT TRUST because of an alleged action by the PONTICELLO PROPERTIES PTY LTD ACN 010070934 AS TRUSTEE UNDER INSTRUMENT NUMBER 70758827, or an alleged failure by PONTICELLO PROPERTIES PTY LTD ACN 010070934 AS TRUSTEE UNDER INSTRUMENT NUMBER 70758827, or another event of the kind described in section 43 of the RSLA that occurred before 25 November 2016.

Close

Editorial Notes

  • Published Case Name:

    Aqualine Pty Ltd v Ponticello Properties Pty Ltd

  • Shortened Case Name:

    Aqualine Pty Ltd v Ponticello Properties Pty Ltd

  • MNC:

    [2019] QCAT 393

  • Court:

    QCAT

  • Judge(s):

    Member Vass Poteri

  • Date:

    07 May 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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