ACA Gold Pty Ltd atf ACA Gold Property Trust v Argo Architects Pty Ltd
[2021] QCAT 218
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- ACA Gold Pty Ltd atf ACA Gold Property Trust v Argo Architects Pty Ltd[2021] QCAT 218
- Add to List
ACA Gold Pty Ltd atf ACA Gold Property Trust v Argo Architects Pty Ltd[2021] QCAT 218
ACA Gold Pty Ltd atf ACA Gold Property Trust v Argo Architects Pty Ltd[2021] QCAT 218
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | ACA Gold Pty Ltd atf ACA Gold Property Trust v Argo Architects Pty Ltd [2021] QCAT 218 |
PARTIES: | ACA GOLD PTY LTD ATF ACA GOLD PROPERTY TRUST (applicant) v ARGO ARCHITECTS PTY LTD (respondent) |
APPLICATION NO/S: | RSL068-21 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 23 June 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: |
|
CATCHWORDS: | LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS – whether an interim order should be granted – where seeks same relief as final relief PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – OTHER MATTERS – dispute between commercial tenant and landlord – whether Tribunal has jurisdiction – whether a retail tenancy dispute or an eligible lease dispute – whether misconceived and lacking substance – whether costs should be awarded COVID-19 Emergency Response Act 2020 (Qld), s 23 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 47, s 52, s 58, s 100, s 102, s 107 Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 5D, s 103, schedule Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 2, s 5, s 12, s 21, s 26, s 40, s 41, Schedule 1 Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 DSGN Kartell Pty Ltd v Pathmaperuma & Ors [2020] QCAT 211 Fuge v Queensland Building and Construction Commission [2014] QCAT 383 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
|
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | B Klopper of Corney & Lind Lawyers This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) |
REASONS FOR DECISION
- [1]Since ACA Gold Pty Ltd purchased premises leased to Argo Architects Pty Ltd various disputes have arisen between them. ACA Gold filed an Application for an order to resolve a retail tenancy dispute and an Application for interim order on 17 May 2021. ACA Gold claims that Argo Architects is in breach of the lease and has failed to vacate the premises despite ACA Gold terminating it.
- [2]
- [3]Before making a final decision, the Tribunal may make an interim order it considers appropriate in the interests of justice to protect a party’s position for the duration of the proceeding[3] or to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction.
- [4]ACA Gold seeks the following interim orders:
- (a)Urgent final termination order;
- (b)Stop the tenant Argo Architects continuing to breach the essential of the lease agreement (sic);
- (c)Terminate the lease and request the tenant Argo Architects to vacate the premises immediately.
- (a)
- [5]Whether an interim order should be made depends upon the nature of the orders ultimately sought and whether the interim order is in aid of that relief.
- [6]ACA Gold seeks the following final relief:
- (a)Stop the tenant Argo Architects continuing to breach the lease agreement;
- (b)Request the tenant Argo Architects to vacate the premises immediately;
- (c)Request the tenant Argo Architects to remove belongings and stop living on site to allow the landlord to re-enter and re-let the premises.
- (a)
- [7]Argo Architects dispute that the Tribunal has power to make the orders sought and contends both Applications should be dismissed.
- [8]The interim relief sought mirrors the final relief and are not orders which will assist to, for example, preserve the status quo pending a determination of whether the final relief ought to be granted. The Application for interim order is misconceived and should be dismissed.
- [9]Argo Architects also contends the Application for an order to resolve a retail tenancy dispute is misconceived as the dispute is not a retail tenancy dispute and ought to be dismissed. ACA Gold’s submissions in reply do not address the basis upon which it contends the Tribunal has jurisdiction.
Is this a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’)?
- [10]I am not satisfied that this is a retail tenancy dispute under the RSL Act.
- [11]The Tribunal has jurisdiction to hear certain retail tenancy disputes.[4]
- [12]A retail tenancy dispute is defined as ‘any dispute under or about a retail shop lease, or about the use and occupation of a leased shop under a retail shop lease’.[5] A ‘retail shop lease’ is defined as a ‘lease of a retail shop’ subject to exceptions, none of which appear to apply.[6] A ‘retail shop’ means premises situated in a retail shopping centre or used wholly or predominantly for the carrying on of a retail business.[7] Retail business is defined to mean a business prescribed by regulation.[8]
- [13]
- [14]I am not satisfied the lease is a retail shop lease and therefore I am not satisfied that this is a retail tenancy dispute.
- [15]I find that the Tribunal does not have jurisdiction under the RSL Act to make orders in respect of this dispute.
Is this an eligible lease dispute under the COVID-19 Emergency Response Act 2020 (Qld) (the ‘COVID Act’) and the Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (‘the Regulations’)?
- [16]The Tribunal’s jurisdiction in relation to commercial (as distinct from domestic) tenancy disputes was expanded beyond retail tenancy disputes under the RSL Act during the pandemic. The Application for an order to resolve a retail tenancy dispute does not clearly seek to rely upon the expanded jurisdiction.
- [17]I am not satisfied that this is an eligible lease dispute.
- [18]The COVID Act is part of the State Government’s response to the pandemic. It provides for the making of regulations in respect of relevant leases, including regulations providing for dispute resolution processes, the conduct of mediations and the conferral of jurisdiction to hear and decide disputes.[11]
- [19]‘Relevant lease’ means a retail shop lease under the RSL Act or a lease prescribed by regulation.[12]
- [20]
- [21]Section 41 of the Regulations sets out when a person may apply to the Tribunal in respect of an eligible lease dispute. Such an application is reliant upon a notice of dispute being given to the small business commissioner and usually pre-proceeding mediation through the small business commissioner having been undertaken or attempted.[15]
- [22]
- [23]The Regulations provide for a response period commencing on 29 March 2020 and ending 30 September 2020 and for an extension period starting at the beginning of the day on 1 October 2020 ending at the end of the day on 31 December 2020.[17]
- [24]On the material before the Tribunal the dispute in so far as it relies upon a claimed failure to pay rent and outgoings since 1 March 2021 arose after the extension period and in so far as a claimed failure to pay a security bond it arose prior to the pandemic and legislative response because the claimed breach pre-dated ACA Gold’s purchase of the land.
- [25]I am not satisfied that the COVID Act and Regulations confer jurisdiction on the Tribunal based on the documents filed. ACA Gold has not sought to demonstrate:
- (a)
- (b)that the lease is a small business lease;[19]
- (c)that the dispute is an affected lease dispute;[20]
- (d)that the dispute is a small business tenancy dispute;[21]
- (e)how any dispute which arose prior to the response period or after the extension period under the Regulations is governed by the COVID Act and the Regulations;
- (f)whether a notice of dispute was lodged with the small business commissioner or whether pre-proceeding mediation was conducted or attempted through the small business commissioner prior to 17 May 2021 in relation to the current dispute between the parties;[22]
- (g)in the absence of the above steps being taken, the basis upon which the Tribunal has jurisdiction, where the Regulations provide that a mediator’s functions under Part 3 of the Regulations are in addition to the mediator’s functions under Part 9 of the RSL Act.[23]
- [26]I am not satisfied that ACA Gold has established a right to apply to the Tribunal under section 41 of the Regulations.
- [27]I am not satisfied that the Tribunal has jurisdiction under the COVID Act and Regulations to make orders in respect of this dispute.
- [28]There is no suggestion in the material filed that the proceeding should be ordered to be transferred to another tribunal or court with appropriate jurisdiction.[24] I do not consider the issue of transfer further.
Jurisdiction Summary
- [29]I am not satisfied that the Tribunal has jurisdiction to hear and determine this dispute. The proceeding is therefore misconceived or lacking in substance and should be dismissed.[25] As there has been no substantive determination of the parties’ rights they are at liberty to apply to a court with appropriate jurisdiction to have their rights determined.
Costs
- [30]I order that there is no order as to costs.
- [31]Argo Architects claim its costs on an indemnity basis. It points to correspondence with ACA Gold’s solicitors dated 28 May 2021 inviting ACA Gold to withdraw its applications, in particular relying upon its contention that the Tribunal lacked jurisdiction, prior to 4 June 2021, the time by which Argo Architects were required to file submissions in response to the Application for interim order. The intervening period was relatively short.
- [32]ACA Gold’s submissions in reply do not address the application for costs.
- [33]
- [34]The then President, Justice Wilson in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[28] stated at [4]:
This presumption may, however, be displaced if the Tribunal considers it is in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.
- [35]The then Deputy President, Judge Kingham in Ascot v Nursing & Midwifery Board of Australia[29] stated at [9]:
The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.
- [36]I consider the factors referred to in section 102(3) of the QCAT Act, to the extent they are relevant, to determine if the interests of justice point to a costs award. Those considerations are largely in the nature of what may be regarded as ‘entitling’ or ‘disentitling’ factors.
- [37]If an order is made, the Tribunal should fix the costs if possible.[30] There is no evidence before me of the costs incurred by Argo Architects.
Whether a party acts in a way that unnecessarily disadvantages another party[31]
- [38]I am not satisfied that ACA Gold acted in a way which unnecessarily disadvantaged Argo Architects in the proceedings. This is not a factor in favour of an award of costs.
- [39]The proceedings were disposed of at an early stage after filing in accordance with the first directions made and without the parties being required to appear before the Tribunal.[32]
- [40]I find that the correspondence relied upon is a factor in favour of an award of costs but only in respect of costs incurred after it was written.[33] This essentially relates to the submissions filed on 4 June 2021, which were very brief. The submissions consisted of a little more than one page being seven paragraphs, two of which related to the claim for costs.
The nature and complexity of the dispute[34]
- [41]
- [42]I accept that the nature and complexity of the dispute warranted the involvement of legal representation.
The relative strengths of the claims[36]
- [43]This is a factor in favour of an award of costs.
- [44]The Application for interim order and the Application for an order to resolve a retail tenancy dispute were misconceived.
The financial circumstances of the parties[37]
- [45]This is not a factor in favour or against an award of costs.
- [46]There is some evidence before me that both parties have experienced some financial issues.
Anything else the Tribunal considers relevant[38]
- [47]Argo Architects did not seek and were not granted leave to be legally represented in these proceedings.[39] This is a factor against an award of costs.
Should indemnity costs be awarded?
- [48]I am not satisfied that there is some special or unusual feature to justify an award on an indemnity basis.
- [49]The Tribunal has accepted that in some circumstances an award on an indemnity basis is appropriate. In DSGN Kartell Pty Ltd v Pathmaperuma & Ors, Senior Member Brown stated:[40]
The discretion to award indemnity costs should be exercised judicially and be the subject of careful reasoning. Generally speaking, an award of indemnity costs requires a sufficient or unusual feature or some relevant delinquency in the relation to the conduct of the case.
Indemnity costs may be awarded where a case is hopeless, that is to say, without substance, groundless, fanciful or so weak as to be futile. As framed, the claim by DSGN was bound to fail. The tribunal has no jurisdiction in respect of claims for breach of copyright. Proceedings which are an abuse of process may result in an award of indemnity costs. I am not prepared however to find that the proceedings were commenced other than in good faith or for an ulterior or collateral purpose or were otherwise an abuse of process. (references omitted)
- [50]Even though Senior Member Brown found that the applicant had acted unreasonably in commencing and that the claim was futile, indemnity costs were not ordered.
- [51]The correspondence relied upon was not sent to ACA Gold prior to commencing these proceedings but only prior to Argo Architects filing its brief submissions. As mentioned earlier it would potentially support an award of all reasonable costs incurred after the correspondence was sent as distinct from costs incurred before the correspondence was sent.
- [52]In any event, there is no evidence before me as to the quantum of all reasonable costs incurred after the Applications ought to reasonably have been withdrawn.
- [53]There is no evidence before me that the proceedings were commenced other than in good faith. They have continued for only a short period of time after the correspondence was sent.
Summary
- [54]On balance, the factors are not in favour of an award of costs on either a standard or indemnity basis.
Footnotes
[1] Directions dated 21 May 2021.
[2] Submissions from ACA Gold filed 27 May 2021 and 10 June 2021. Submissions from Argo Architects filed 4 June 2021.
[3] QCAT Act, s 58(1).
[4] RSL Act, s 103.
[5] Ibid, schedule (definition ‘retail tenancy dispute’).
[6] Ibid, s 5A.
[7] Ibid, s 5B.
[8] Ibid, s 5C.
[9] Ibid, s 5D.
[10] Retail Shop Leases Regulation 2016 (Qld), s 8(1), Schedule 1.
[11] COVID Act, s 23.
[12] Ibid, s 23(8).
[13] Regulations, s 2.
[14] Ibid, s 12, s 41.
[15] Ibid, s 41(1)(b).
[16] Ibid, s 21.
[17] Ibid, Schedule 1.
[18] Regulations, s 5.
[19] Ibid, Schedule 1.
[20] Ibid.
[21] Ibid.
[22] Ibid, s 26.
[23] Ibid, s 40.
[24] QCAT Act, s 52.
[25] Ibid, s 47.
[26] QCAT Act, s 100.
[27] Ibid, s 102.
[28] [2010] QCAT 412.
[29] [2010] QCAT 364.
[30] QCAT Act, s 107.
[31] Ibid, s 102(3)(a).
[32] The matter was determined on the papers and without a telephone or in person appearance.
[33] QCAT Act, s 102(3)(f).
[34] Ibid, s 102(3)(b).
[35] Fuge v Queensland Building and Construction Commission [2014] QCAT 383, [21].
[36] QCAT Act, s 102(3)(c).
[37] Ibid, s 102(3)(e).
[38] Ibid, s 102(3)(f).
[39] Ibid, s 43.
[40] [2020] QCAT 211, [69]-[70].