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  4. Roll'd Australia Pty Ltd t/as Roll'd Australia v Challenger Life Nominees Pty Ltd - [2021] QCAT 210

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Roll'd Australia Pty Ltd t/as Roll'd Australia v Challenger Life Nominees Pty Ltd[2021] QCAT 210

Roll'd Australia Pty Ltd t/as Roll'd Australia v Challenger Life Nominees Pty Ltd[2021] QCAT 210

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Roll’d Australia Pty Ltd t/as Roll’d Australia v Challenger Life Nominees Pty Ltd [2021] QCAT 210

PARTIES:

roll’d australia pty ltd t/as roll’d australia

(applicant)

v

challenger life nominees pty ltd

(respondent)

APPLICATION NO/S:

RSL022-19

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

8 June 2021

HEARING DATE:

27 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

Member Judge

Member McBryde

ORDERS:

  1. The claim made pursuant to the notice of dispute filed 1 October 2019 by Roll’d Australia Pty Ltd ACN 160 241789 t/as Roll’d Australia is dismissed.
  2. Roll’d Australia Pty Ltd must pay to Challenger Life Nominees Pty Ltd ABN 39091336793 the sum of $160,277.80 within 21 days of the date of this order.
  3. No order is made for further amendment of the counter-application filed by Challenger Life Nominees Pty Ltd ABN 39091336793 on 10 October 2019 to enable determination of a claim for damages arising out of early termination of the Lease between the parties, dated 2 June 2014. That issue has not been dealt with in these proceedings.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – where tenant seeks declaration and compensation – where landlord seeks arrears of rent and outgoings – where landlord makes further new claims for damages for early termination of lease – where tenant failed to file evidence and failed to attend hearing.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 28(3)(a), s 61(1)(c), s 64

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48, r 51.

Retail Shop Leases Act 1994 (Qld), s 5A, s 63, s 97, s 83, s 103.

Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394.

APPEARANCES &

REPRESENTATION:

Applicant:

No appearance

Respondent:

LKozac, Minter Ellison Lawyers

REASONS FOR DECISION

  1. [1]
    This matter was set down for hearing on 27 March 2020 in Brisbane. We are satisfied by reference to the Tribunal’s file and the affidavit of Raymond Anthony Esquieres filed 29 May 2020 that notice of the hearing was given to the solicitors acting for the applicant, Robert James Lawyers, and received by those lawyers.
  2. [2]
    Despite that notice the applicant did not attend the hearing. Unsuccessful attempts were made by the Tribunal’s registry staff to contact the applicant and their solicitors on the day of the hearing.
  3. [3]
    The Tribunal proceeded with the hearing in the absence of the applicant pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Jurisdiction

  1. [4]
    In this matter:
    1. (a)
      the lease between the parties is a retail shop lease.[1]
    2. (b)
      A notice of dispute filed 7 November 2018 by the applicant was the subject of unsuccessful mediation under section 97 of the Retail Shop Leases Act 1994 (Qld) (RSLA) and was referred to the Tribunal on 28 February 2019 under section 63 of the RSLA.
    3. (c)
      By the notice of dispute, the applicant sought a declaration that the landlord had unreasonably refused to consent to the assignment of the lease to an assignee; and sought an order that the tenant be permitted to assign the lease to the assignee.
    4. (d)
      By response and counter-application,[2] filed 14 May 2019, the respondent sought an order that the applicant’s application be dismissed and an order that the applicant pay costs and charges owed under the lease in an amount of $69,916.39 (including GST).
    5. (e)
      Following a compulsory conference in the Tribunal an amended notice of dispute was filed in the Tribunal on 13 September 2019. The remedy sought changed to a declaration that the landlord unreasonably refused to consent to the assignment of the lease to the assignee and repudiated the lease by doing so; and an order that the landlord pay damages in an unspecified amount to the tenant.
    6. (f)
      The respondent filed an amended response and counter-application on 10 October 2019, seeking an order that the applicant’s application be dismissed and an order that the applicant pay costs and charges owed under the lease, which by then had increased to $140,608.55 (including GST). The respondent filed an affidavit on 17 March 2020 updating the claim to $160,277.80 for outstanding costs and charges to the date of termination of the lease and making a further claim for damages arising out of early termination of the lease.
    7. (g)
      The matters in dispute fall within the definition of a retail tenancy dispute under the RSLA, being a dispute under or about a retail shop lease. The matters in dispute do not fall within the exceptions to this Tribunal’s jurisdiction under section 103 of the RSLA.
    8. (h)
      We accept on the authority of Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd[3] that the Tribunal has jurisdiction in relation to rent arrears and outgoings arrears. We also consider that the other claims by both parties fall within the Tribunal’s jurisdiction.
    9. (i)
      Accordingly, QCAT has jurisdiction under section 103 of the RSLA to hear the retail tenancy dispute. By section 83 of the RSLA, this Tribunal may make orders, including declaratory orders it considers just to resolve a retail tenancy dispute, and orders for payment of an amount.
    10. (j)
      We consider the Tribunal is properly seized of the retail tenancy dispute and may make appropriate orders.

Evidence

  1. [5]
    The Tribunal has referred to the amended notice of dispute and amended response and counter-application.
  2. [6]
    We note that the respondent’s response to the applicant’s notice of dispute is that:
  1. (a)
    at the time of the request to assign the lease the applicant was in breach of the lease, owing $13,098.19 under the lease;
  2. (b)
    the proposed assignment involved a change of use from selling Vietnamese food to selling Lebanese food, not being a permitted use under the lease, so that the proposed transfer of control would not be an assignment under clause 19.2 of the lease;
  3. (c)
    the owner did not believe the proposed tenant had a similar financial standing and experience as the current operator.
  1. [7]
    We have also referred to:
    1. (a)
      the Affidavit of Lukas Timothy Hopper, senior property manager JLL as agent for the respondent, filed 11 November 2019 swearing to the matters set out in the Amended Response and Counter-Application (Exhibit 1); and
    2. (b)
      Further affidavit of Lukas Timothy Hopper, filed 17 March 2020 (Exhibit 2), swearing to:
      1. (i)
        termination of the lease and re-entry by the respondent on 13 December 2019 because of a failure to trade from the premises.
      1. (ii)
        Entry into a new lease on 19 February 2020 for a period of five years together with a fit out and contribution deed.
      1. (iii)
        An increase in the respondent’s claim for loss and damage to $506,186.45 comprising:
  1. Outstanding rent and charges to 13 December 2019 - $160,277.80.
  2. Loss of rent 14 December 2019 – 24 June 2020 - $77,247.45.
  3. Shortfall rent 25 June 2020 – 13 March 2025.
  4. Tenant fit out incentive - $55,000.00.
  5. Leasing fee - $16,500.00.
    1. (c)
      Schedule setting out loss of rent and shortfall of rent, tendered at the hearing (Exhibit 3).
    2. (d)
      Tax invoice and receipts from the new tenant in relation to fit out and set up of new restaurant, tendered at the hearing (Exhibit 4).
    3. (e)
      Lease from the respondent to the new tenant, tendered at the hearing (Exhibit 5).
  1. [8]
    The applicant has not filed any material on which it relies, despite extensions of time to do so. The Tribunal has no evidence from relevant personnel swearing to the facts of the matter and no supporting documents which address the claims in the notice of dispute and the response of the respondent. The material was directed to be filed on 16 April 2019, extended to 14 June 2019 and extended to 25 October 2019. No further application for extension was made before the hearing nor was any attempt made to file material in the ensuing five months to the date of the hearing.
  2. [9]
    Mr Hopper gave evidence at the hearing consistent with his affidavits.
  3. [10]
    Mr Hopper confirmed that by way of mitigation of its loss the respondent granted an incentive to a new tenant of a rent-free period of four months from 14 December 2019 to 24 June 2020 and met the cost of the fit out.
  4. [11]
    It was confirmed by Mr Hopper that the applicant returned the key to the premises and walked away, which was treated as a repudiation of the lease by the respondent. The applicant took some plants and equipment, suppliers took other plants and equipment and some goods were abandoned.
  5. [12]
    No claim for making good in accordance with Clause 25 of the lease has been made by the respondent.
  6. [13]
    Mr Hopper said that the respondent’s claims were caught by the following clauses of the lease with the applicant:
    1. (a)
      Clause 4: The lessee must pay the rent to the lessor in equal monthly instalments in advance.
    2. (b)
      Clause 24.3: Damages
  1. (a)
    If the lessor terminates this lease under this clause 23 (sic), the lessee indemnifies the lessor against any Cost (whether arising before or after termination) in connection with:
    1. (i)
      the Lessee’s breach of this Lease; or
    1. (ii)
      the termination of this Lease

including the Lessor’s loss of the benefit of the Lessee performing the Lessee’s obligations under this Lease from the date of termination until the Terminating Date.

  1. (b)
    If the Lessor terminates this Lease, the Lessor must take reasonable steps to mitigate the Lessor’s Cost.
  1. (c)
    Definition of Cost: means a cost, charge, expense, outgoing, payment, fee or other expenditure of any nature.
  1. (d)
    Definition of Terminating Date: Item 8 – 13 March 2025.

Directions to the parties

  1. [14]
    Following the hearing written submissions were required. The applicant was provided with copies of material tendered during the hearing. The Tribunal set out the matters it required to be addressed in Directions dated 27 March 2020.

Issues

  1. [15]
    The issues raised by this proceeding are:
    1. (a)
      should the applicant’s amended Notice of dispute be dismissed because it has not proved its case or dismissed pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) for non-compliance with Tribunal directions and failure to attend the hearing?
    2. (b)
      Is the respondent entitled to an order for payment of moneys owing under the lease and for damages for breach of the lease?

Applicant’s claim

  1. [16]
    The applicant submits that it should be directed to file material in the proceeding and to be heard in relation to its claim and the respondent’s counter-application.
  2. [17]
    The applicant has two problems. First, its failure to attend the hearing, and second the failure to file any material in support of its claims.
  3. [18]
    The applicant is fixed with the consequences of the actions of its former solicitors who were acting as its agents in the proceeding. The Tribunal is entitled to treat a notice given to solicitors as notice given to the solicitors’ client. No reasonable excuse has been given for failing to appear at the hearing. The evidence from the Director, Mr Esquieres, is very limited in the information it conveys, referring only to a difficulty in communication with the applicant’s former solicitors and a failure on their part to advise of the date of hearing. Mr Esquieres does not say what the difficulty in communication was, nor why the solicitors appointed to represent the applicant did not pass on advice as to the date of a hearing as one would expect, in accordance with their professional obligations. We do not think Mr Esquieres’ evidence is a sufficient basis for the hearing to be resumed and for yet another opportunity to be given for the applicant to file material and to appear. If that course were adopted it would result in wasted costs and Tribunal resources. The applicant has not suggested that it would meet the costs of the respondent thrown away by its non-compliance with Tribunal directions.
  4. [19]
    The respondent in its submissions sets out the history of this matter including the delays and non-compliance with Directions on the part of the applicant. It makes the point that over 18 months after commencing the proceeding and despite orders made by the Tribunal, the applicant has not filed any evidence in the proceeding. No explanation has been given for this failure. The failure pre-dates any breakdown in communication between the applicant and its solicitors.
  5. [20]
    The applicant had many opportunities to file its evidence but did not do so over a very lengthy period of time. Even at this late stage the applicant does not refer to any evidence which exists and which supports its claim.
  6. [21]
    The fact is that there is no evidence before the Tribunal on which it could find in favour of the applicant in relation to the orders sought by it. It is a legal maxim that he who asserts must prove.
  7. [22]
    The notice of dispute is dismissed because there is no evidence as to the matters asserted. In the circumstances it is unnecessary to make findings in relation to whether the respondent acted lawfully in refusing to assign the lease.
  8. [23]
    Because of the order made it is unnecessary to consider dismissing the notice of dispute pursuant to section 48 of the QCAT Act.

Respondent’s claim

  1. [24]
    The respondent’s claim may be characterised in this way:
    1. (a)
      a claim for moneys due and owing under the lease prior to termination, as particularised in the amended response and counter-application, updated by Mr Hopper in his second affidavit, to the date of termination of the lease on 13 December 2020 in an amount of $160,277.80 for unpaid rent and outgoings.
    2. (b)
      A claim for damages for early termination of the lease, being costs incurred by the respondent after the date of termination and particularised in the second affidavit of Luke Hopper.
  2. [25]
    The respondent’s claim for $160,277.80 is unchallenged and the calculation is supported by a schedule of calculations.[4] We accept the evidence of Mr Hopper and find that the sum of $160,277.80 is owed to the respondent pursuant to the lease and that it is entitled to an order requiring payment of the sum.
  3. [26]
    To the extent that it is necessary, leave is granted for an amendment to the counter-application to reflect the arrears of rent and outgoings as at the date of termination of the lease.[5]

Claim for damages

  1. [27]
    As to the remainder of the claim for the sum of $345,908.65, the respondent submits that it has led unchallenged and uncontradicted evidence of its loss and damage as a result of early termination of the lease. The amounts claimed fall within the definition of Costs, recoverable as damages pursuant to Clause 24.3 of the lease and furthermore, the respondent has mitigated its loss by entry into a new lease.
  2. [28]
    The respondent submits that:
    1. (a)
      the new claims made in the second affidavit of Luke Hopper arise from the same factual matters the subject of the amended counter-application filed in October 2019 and that the new claims had not been suffered at the time of filing the counter-application.
    2. (b)
      Notice of the new claims was given to the applicant on 19 March 2020, prior to the hearing.
    3. (c)
      The Tribunal has jurisdiction to hear all relevant aspects of a dispute which includes the matters the subject of the new claims.
  3. [29]
    The applicant makes a number of submissions as to why the Tribunal should not consider the new claims.
  4. [30]
    One submission, which we reject, is that the lease is an affected lease and the respondent is barred by operation of the Retail Shop Leases and Other Commercial Leases (COVID – 19 Emergency Response) Regulation 2020 (Qld) from prosecuting its counter-application and the new claims.
  5. [31]
    The respondent says that the COVID-19 Emergency Response Regulations commenced on 28 May 2020. The lease was terminated on 13 December 2019. We accept the respondent’s submissions and find that within the terms of the Regulation, the lease is not an affected lease, the proceeding was not commenced during the pre-commencement period and this retail tenancy dispute is not an eligible lease dispute because it is not an affected lease dispute or a small business tenancy dispute. We agree that, in any event, s 49 of the Regulation provides that Part 8 of the RSLA (which includes proceedings in QCAT) is to continue to apply, ensuring this proceeding can continue in the usual manner.
  6. [32]
    The applicant submits that the second affidavit of Mr Hopper should not be received into evidence because it is prejudicial to the applicant and the applicant has had no opportunity to meet it with evidence of its own which may involve notices to non-parties. It is said that for this reason the hearing should not have proceeded on 27 March 2020.
  7. [33]
    We reject this submission on the basis that the applicant or its solicitors could have sought an adjournment of the hearing or raised an objection to the affidavit upon attendance at the hearing. It did not do so. It is now too late to raise an objection to the affidavit, being received into evidence. Whether the Tribunal gives effect to the matters raised in the affidavit is another matter.
  8. [34]
    The applicant submits that the matters forming the new claims by the respondent fall outside the retail tenancy dispute because they post-date the amended response and counter-application. For this reason it is said that the second affidavit of Mr Hopper is not relevant to the dispute between the parties.
  9. [35]
    The applicant says that the claims are not subject to any proceedings in the Tribunal, there is no new notice of dispute or further amended counter-application filed with the tribunal in relation to the new claims. The new claims are not set out in an approved form as required by the QCAT Act and Regulations.
  10. [36]
    In addition, it is said that the Tribunal has no jurisdiction to entertain the new claims because they do not fall within the rubric of the amended response. Were the Tribunal to do so, this would entail the Tribunal engaging in jurisdictional error, in particular an excess of jurisdiction. It would be a breach of natural justice and procedural fairness for the applicant to have to meet the new claims at the hearing, given the affidavit of Luke Hopper was only served a week before the hearing.
  11. [37]
    It is submitted that the new claims are not a retail tenancy dispute within the meaning of that phrase in the RSLA because the new claims are not enlivened by way of a proper Response. Furthermore, there is no machinery in the QCAT Act to augment a claim for relief based upon future events such as the new claims.
  12. [38]
    The respondent submits that the amounts claimed which go beyond the date of filing of the amended response and counter-application must be rejected.
  13. [39]
    It is said that recovery of the cost of the tenant fit out is too remote from any asserted breach of the lease and is not recoverable: Hadley v Baxendale;[6] European Bank Ltd v Evans.[7] The cost post-dates the date of filing of the counter-application and should be rejected.
  14. [40]
    It is said that the leasing fee of $16,500 bears no rational connection to any asserted breach of lease by the applicant. It is too remote and is not recoverable. It also post-dates the date of filing of the counter-application and must be rejected.

Consideration

  1. [41]
    The new claims are not raised expressly nor implicitly in the respondent’s amended response and counter-application, which dealt with claims arising before termination of the lease.
  2. [42]
    The applicant might fairly assume the scope of the dispute was determined by the matters raised in its amended Notice of dispute and the amended response and counter-application.
  3. [43]
    The applicant was however put on notice of the new claims a week before the hearing and did nothing about them.
  4. [44]
    The second affidavit of Luke Hopper in effect seeks to amend the counter-application. The respondent did not make an application for leave to amend. The Tribunal does have power under section 64 of the QCAT Act to order that any document be amended. It may do so on the application of the party who filed the document, or on its own initiative. The section relates to amendment of an application, which would capture an amended counter-application.
  5. [45]
    Insofar as the form of the amendment to the counter-application is concerned, the Tribunal may, under section 61(1)(c) of the QCAT Act, waive compliance with a procedural requirement under the Act, an enabling Act or the rules. In other words, the affidavit could be treated as a further amended counter-application.
  6. [46]
    As to whether the Tribunal should give effect to the purported amendment, given its power to do so, some competing considerations arise.
  7. [47]
    The Tribunal must under section 4(c) of the QCAT Act ensure that proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice. That imperative is consistent with giving effect to the purported amendment.
  8. [48]
    On the other hand, the new claims are a new retail tenancy dispute arising out of early termination of the lease, not out of breaches of the lease raised in the current retail tenancy dispute. The new claims are for a very significant sum of money.
  9. [49]
    By section 28(3)(a) of the QCAT Act, the Tribunal must observe the rules of natural justice in the conduct of a proceeding.
  10. [50]
    Even though the applicant ignored the Directions of the Tribunal and failed to appear at the hearing, we do not consider that the rules of natural justice are met if the Tribunal allowed a new retail tenancy dispute to be determined at the hearing, without giving the applicant a fair opportunity to give a response to that new dispute.
  11. [51]
    For those reasons and taking into account that the respondent’s rights at law remain as against the applicant, we do not think that the new claims should fall for consideration by the Tribunal as part of these proceedings.

Orders

  1. [52]
    We order that:
  1. The claim made pursuant to the notice of dispute filed 1 October 2019 by Roll’d Australia Pty Ltd ACN 160 241789 t/as Roll’d Australia is dismissed.
  1. Roll’d Australia Pty Ltd must pay to Challenger Life Nominees Pty Ltd ABN 39091336793 the sum of $160,277.80 within 21 days of the date of this order.
  2. No order is made for further amendment of the counter-application filed by Challenger Life Nominees Pty Ltd ABN 39091336793 on 10 October 2019 to enable determination of a claim for damages arising out of early termination of the Lease between the parties dated 2 June 2014. That issue has not been dealt with in these proceedings.

Footnotes

[1]Retail Shop Leases Act 1994 (Qld), s 5A.

[2]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48, r 51.

[3][2019] QCAT 394.

[4]Exhibit 2, attachment C.

[5]QCAT Act, s 64.

[6](1854) 9 Ex 341, 354.

[7](2010) 240 CLR 432.

Close

Editorial Notes

  • Published Case Name:

    Roll'd Australia Pty Ltd t/as Roll'd Australia v Challenger Life Nominees Pty Ltd

  • Shortened Case Name:

    Roll'd Australia Pty Ltd t/as Roll'd Australia v Challenger Life Nominees Pty Ltd

  • MNC:

    [2021] QCAT 210

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick, Member Judge, Member McBryde

  • Date:

    08 Jun 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
European Bank Ltd v Evans (2010) 240 CLR 432
1 citation
Jump To
Cite 1 - (2010) 240 CLR 432
Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394
2 citations
Jump To
Cite 1 - [2019] QCAT 394
Cite 2 - [2019] QCAT 394
Hadley v Baxendale (1854) 9 Ex 341
1 citation
Jump To
Cite 1 - (1854) 9 Ex 341

Cases Citing

Case NameFull CitationFrequency
Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks [2021] QCATA 1462 citations
1

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