Mackfitness 1 Pty Ltd v Salty
[2021] QCAT 318
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- Unreported Judgment
- Mackfitness 1 Pty Ltd v Salty[2021] QCAT 318
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Mackfitness 1 Pty Ltd v Salty[2021] QCAT 318
Mackfitness 1 Pty Ltd v Salty[2021] QCAT 318
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Mackfitness 1 Pty Ltd v Salty & Anor [2021] QCAT 318 |
PARTIES: | Mackfitness 1 Pty Ltd ATF The Chillingirian Family Trust t/as Anytime Fitness Mackay (applicant) v ian walter salty STELLA MAVIS SALTY (respondents) |
APPLICATION NO/S: | RSL164-20 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 17 September 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 interim orders in the nature of ‘relief from forfeiture’ should be made – whether interim order should be granted restraining the lessor from taking alleged prescribed action COVID-19 Emergency Response Act 2020 (Qld), s 4A, s 23 Property Law Act 1974 (Qld), s 124, Schedule 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 42, s 58, s 59, s 61 Retail Shop Leases Act 1994 (Qld), s 5B, s 5C, s 103, Schedule Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1 Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 3, s 5, s 6, s 9, s 12, s 41, s 42, Schedule 1 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 10 Airlie Beach Real Estate Pty Ltd v Body Corporate for Delor Vue Apartments CTS 39788 [2018] QCAT 317 Kirk & Anor v Sunshine Developments (Vic) Pty Ltd [2020] QCAT 493 Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Chillingirian, director |
Respondent: | Mackays |
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]Mackfitness 1 Pty Ltd ATF The Chillingirian Family Trust t/as Anytime Fitness Mackay leased premises from which it operated a gym. The evidence is that the written lease term expired on 3 October 2018 but that it continued in possession of the premises as a month-to-month tenant. Various disputes with the lessor of the premises have arisen including as to negotiations between the lessee and the lessor about the lessee’s entitlement to ‘Covid’ rent relief during the pandemic. This proceeding relates to claims arising from whether a notice to remedy breach was valid and therefore whether actions taken in reliance upon it, including termination, re-entry and seizure of the lessee’s property were valid.
- [2]It is not clear if the substantive proceeding is also intended to seek orders in respect of appropriate rent relief. I proceed on the basis that it currently does not include such relief.[1]
- [3]An issue raised in this proceeding is the proper identity of the lessor and therefore the proper respondent to this proceeding and against which interim orders are sought.
- [4]A Notice to Remedy Breach of Covenant was sent to Mackfitness claiming that it owed Ian Walter Salty and Stella Mavis Salty, the lessor, $29,042.73 (incl GST) in respect of rent and outgoings for periods prior to 29 March 2020 (the Notice).[2] A Notice of Termination of the lease was sent to Mackfitness dated 27 November 2020 on the Saltys’ behalf purporting to terminate the lease immediately, because it claimed the breach had not been remedied. Steps were taken to change the locks and deny Mackfitness access. Mackfitness says that the Notice was invalid, for a number of reasons, and the purported termination was therefore invalid. It says it was wrongfully deprived of a sufficient opportunity to remove its goods. The Saltys contend that they allowed Mackfitness access on 28, 29 and 30 November 2020 to remove its possessions. Mackfitness denies that it was given to 30 November 2020 to remove its property.
- [5]Mackfitness filed in the Tribunal a Notice of Dispute naming Mr Salty as respondent lessor.[3] The Notice of Dispute in Part C states ‘I wish to sell my possessions (gym equipment, furniture, whitegoods etc) and come to a settlement agreement with the landlord if I am legally bound by Form 7 Lease and Deed of Amendment.’
- [6]Although it could be clearer, as I understand it, Mackfitness is seeking orders that:
- (a)the Notice was not valid;
- (b)the termination and re-entry was not valid;
- (c)the lessor is not entitled to seize and sell its possessions;
- (d)it is entitled to remove and sell its possessions.
- (a)
- [7]At the same time, Mackfitness also filed an Application for interim order naming both Mr and Mrs Salty as Respondents. In Part C it states, ‘Stop the landlord from performing prescribed action which is prohibited – s 9 recovery of possession, exercising a right of re-entry’. The reasons why the interim order is sought is stated as ‘Notice to vacate not received with 30 days’ notice as per commercial leasing code. Landlord has issued Notice of Termination and changed locks to the premises without allowing reasonable time to remove my possessions.’
- [8]As I understand it, Mackfitness is seeking to restrain the lessor from taking various prescribed actions[4] including seizure and sale of its possessions.
- [9]Mackfitness emailed the Tribunal and the Saltys an Amended Notice of Dispute, which amended the name of the Respondent to include a reference to I & S Salty Property Pty Ltd and Mrs Salty.[5] No formal application for orders to join I & S Salty Property Pty Ltd and/or Mrs Salty as respondents has been made.[6]
- [10]
- [11]
- [12]The Tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that the person should be bound by or have the benefit of a decision of the tribunal or the person’s interests may be affected by the proceeding.[11] The Tribunal may make such an order on its own initiative.[12] I am satisfied that Stella Mavis Salty is such a person because she is named as a lessor in the formal lease documents before me and both the Notice and the Notice of Termination name her as a lessor. I find that she should be joined as a respondent to the proceeding.
- [13]The Application for interim order was the subject of a directions hearing on 21 December 2020 and Mackfitness was given an opportunity to file and serve submissions in response to the Saltys’ submissions. It was directed that the issue of the Tribunal’s jurisdiction to make an interim order and a final decision in these proceedings for interim order were to be made on the papers.
- [14]After the directions hearing, Mackfitness emailed the Tribunal an Amended Application for interim order.[13] The only difference appears to be that I & S Salty Property Pty Ltd (‘the Company’) is named as the only respondent.
- [15]Mackfitness’ Further submissions[14] assert that the lessor of the premises is the Company rather than the Saltys. It states that a titles search reflects that the Company became the registered proprietor of the land, on which the premises is located, in about November 2018. A copy of such a titles search is not in evidence before me.
- [16]No formal application for leave to amend was made although Mackfitness contends that there is no disadvantage to the proposed respondent as the Saltys run the Company.[15] There is no evidence before me, such as an ASIC search of the Company, as to the directors and shareholders of the Company. In view of the name of the Company I accept there is likely to be a connection.
- [17]There is also no evidence before me as to whether Mackfitness provided a copy of the Amended Application for interim order to the Saltys or to the Company or both.
- [18]I am not presently satisfied that the Company should be joined and the Saltys removed as parties because of a lack of evidence. It therefore follows that I am not satisfied that an interim order directed to restraining the Company should be made.
- [19]Mackfitness’ Further submissions contend that the lease is an affected lease under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (‘the Regulations’) and rely upon claimed breaches of the Property Law Act 1974 (Qld) (‘PLA’) by the lessor.
- [20]Mackfitness contends that:
It is just and convenient for QCAT to make interim orders in this matter including an order (or injunction) that:
(a) the Lessee be given access to the Leased premises;
(b) the Lessor supply the new keys to the premises to the Lessee and remove the blockage to using the driveway;
(c) the Lessee be entitled to reoccupy the premises and remove its property from the premises;
(d) the Lessor and Lessee return to negotiating the rental situation; and
(e) the Lessee is not liable to any legal or other costs of the Lessor in relation to or associated with the purported Notice to Remedy Breach of Covenant dated 10 November 2020, the Notice to vacate dated 27 November 2020 and the subsequent re-entry and occupation of the premises by the Lessor.[16]
- [21]These orders sought by Mackfitness are in the nature of orders for relief against forfeiture of the lease and are in the nature of final rather than interim orders. They are not orders, which will preserve the status quo at the time of the Application pending a final determination of each parties’ rights. The orders sought are essentially declarations as to Mackfitness’ claimed entitlements.
- [22]Mackfitness claims to be entitled to these orders because of the lessor’s breach of legislation and in particular claimed breaches of the PLA and says that the Tribunal has jurisdiction under the Regulations as the dispute relates to actions taken during the ‘2020 period’.[17]
- [23]The delay in finalising the jurisdictional issue and the Application for interim order is extremely regrettable and is due at least in part to resourcing issues. I now proceed to determine those matters.
Does the Tribunal have jurisdiction to make the orders sought in the Application for interim order, Further Submissions and Notice of Dispute?
- [24]I find, that to the extent that the Notice of Dispute arguably seeks an order that the lessor comply with section 12(1) of the Regulations, the Tribunal has jurisdiction to hear and determine such a dispute. The Tribunal has power to make interim orders in aid of the final relief within its jurisdiction.
- [25]The Tribunal is required to find its power to hear and determine disputes in either the QCAT Act or an enabling Act.
- [26]Mackfitness has commenced proceedings in the Retail Shop Leases jurisdiction of the Tribunal. The Tribunal’s specific powers to hear and determine commercial tenancy disputes are found in the following enabling Acts:
- (a)the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’); and
- (b)the COVID-19 Emergency Response Act 2020 (Qld) (‘COVID Act’) and the Regulations.
- (a)
Is this a retail tenancy dispute within the Tribunal’s jurisdiction?
- [27]I find the dispute set out in the Notice of Dispute is not a retail tenancy dispute. The Tribunal does not have power to make the orders sought under the RSL Act.
- [28]The submissions filed by the Saltys contend, and I accept, that the Notice of Dispute is the form approved to be used in respect of a retail tenancy dispute.
- [29]
- [30]On the evidence before me, I am not satisfied that the dispute is a retail tenancy dispute, being a dispute under or about a retail shop lease or about the use or occupation of a retail shop lease.[20] I therefore find, for the purposes of the Application for interim order, that it is not arguable that the RSL Act confers jurisdiction on the Tribunal to make orders in respect of this dispute.[21]
- [31]Mackfitness contends that any ‘failure in connection with forms or procedure should be waived’.[22] The Tribunal may waive compliance with a procedural requirement under the QCAT Act or an enabling Act.[23] In conducting proceedings the Tribunal must act with as little formality and technicality as a proper consideration of the matter permits.[24] There is no specific approved form for applications under the COVID Act and the Regulations. The Tribunal has previously accepted either a Notice of Dispute form[25] or an Application for an order to resolve a retail tenancy dispute form[26] where a claim under the COVID Act and the Regulations is being made. There are minimum requirements for the making of an application where there is no approved form.[27] The use of the Notice of Dispute form satisfies those requirements but does, I accept, create some confusion as to the nature of the claim and the Tribunal’s power to determine it.
- [32]To the extent necessary, I waive any failure to comply with the procedural requirements in so far as the form of the originating application is concerned.
Is this a dispute seeking an order that the lessor of an affected lease comply with s 12(1) of the Regulations within the Tribunal’s jurisdiction?
- [33]For the purposes of the Application for interim order, I find that it is arguable that section 12 of the Regulations applies to prohibit the lessor from taking a prescribed action relying upon failure to pay outgoings for a period occurring partly during the response period. A claim for orders under s 12 of the Regulations is arguable and is within the Tribunal’s power. The Notice of Dispute should not therefore be dismissed for want of jurisdiction in respect of such a claim.
- [34]Mackfitness refers to the failure to give 30 days’ notice per the commercial leasing code but does not clearly explain how that confers power on the Tribunal.
- [35]The COVID Act is part of the State Government’s response to the pandemic. Section 23 of the COVID Act provides for the making of regulations in respect of relevant leases, including regulations prohibiting certain conduct by lessors (including prohibiting recovery of possession of premises under a relevant lease,[28] prohibiting termination of a relevant lease,[29] regulating the exercise or enforcement of another right of a lessor under a relevant lease[30]) and providing for the conferral of jurisdiction to hear and decide disputes.[31]
- [36]The COVID Act provides that such regulations were to be made before and expire on the COVID-19 legislation expiry day.[32] The COVID-19 legislation expiry day means the earlier of 30 September 2021 or another day prescribed by regulation.[33] The Regulations were made under the COVID Act. The COVID Act and the Regulations have not yet expired. The main purposes of the Regulations include to ‘mitigate the effects of the COVID-19 emergency on lessors and lessees under affected leases by giving effect to the good faith leasing principles set out in the National code.’[34]
- [37]The COVID Act defines:
Is the lease a relevant lease and an affected lease?
- [38]For the purposes of the Application for interim order, I find that it is arguable that Mackfitness’ lease is an affected lease.[37]
- [39]The Regulations prescribe that a relevant lease is a lease, other than a retail shop lease, under which the leased premises are to be wholly or predominantly used for carrying on a business.[38]
- [40]Business means an undertaking, whether or not for profit, including the manufacture, sale or supply of goods or services and a trade or profession.[39]
- [41]There is some evidence that the premises were wholly or predominantly used for carrying out the business of a gym. I find that it is arguable that the lease is a prescribed lease and therefore a relevant lease.
- [42]Affected lease is defined in section 5(1) of the Regulations. A prescribed lease is an affected lease if on commencement it was binding on the lessee, the lessee is an SME entity and the lessee is eligible for jobkeeper. The Saltys submissions do not expressly dispute that the lease is an affected lease. There is no specific evidence that Mackfitness is an SME entity although given the nature of the business it is likely.[40] There is some, but limited, evidence before me that Mackfitness is eligible for jobkeeper.[41] It is therefore arguable that the lease is an affected lease.
Did the Notice and actions taken by the lessor in reliance upon the Notice rely upon a ground of failure to pay rent or outgoings for a period occurring wholly or partly during the response or extension period?
- [43]For the purposes of the Application for interim order, I find that it is arguable that the Notice and actions taken by the lessor in reliance upon the Notice relied upon a failure to pay outgoings for a period occurring partly during the response period.
- [44]A lessee under an ‘affected lease’ may apply to the Tribunal or a court for an order requiring the lessor to comply with section 12(1) of the Regulations.[42] That provision prohibits a lessor under an affected lease from taking a prescribed action on certain grounds including failure to pay rent or outgoings for a period occurring wholly or partly during the response period or the extension period.
- [45]The Regulations provide for a response period commencing on 29 March 2020 and ending 30 September 2020 and 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.[43]
- [46]A prescribed action is defined to include an action under a lease or the starting of a proceeding for recovery of possession, termination of the lease, exercising a right of re-entry and seizure of any property including for the purpose of securing payment or rent or exercising or enforcing another right by the lessor under the lease.[44]
- [47]As I understand it, Mackfitness contends that the giving of the Notice or at least the actions that the Saltys, purportedly as lessor, have taken or the Company, as lessor, has allowed to be taken in reliance on the Notice constitute a prescribed action for the purposes of section 12(1) of the Regulations and that the Tribunal has power to order the lessor to comply with section 12(1) of the Regulations.[45] The Regulations provide that in such a proceeding the Tribunal or a court may make ‘any order it considers appropriate’ and may award costs.[46]
- [48]The Saltys contend that the Notice upon which they have relied to purport to terminate the lease and retake possession does not rely upon a failure to pay rent or outgoings for a period occurring wholly or partly during the response period or the extension period because the lessor accrued the right to the amounts claimed prior to 29 March 2020. The Regulations do not prevent a lessor taking a prescribed action on a ground that is not related to the effects of the COVID-19 emergency.[47]
- [49]Mackfitness contends that there were negotiations between the parties that arears from periods prior to 29 March 2020 would be paid along with amounts payable during the response and extension periods such that they were no longer payable prior to 29 March 2020 and that the actions were taken during the response and extension period. The language of section 12(1)(a) and (b) is quite clear. The prohibition is that a lessor must not take a prescribed action relying upon a failure to pay rent or outgoings for a period occurring wholly or partly during the response period or the extension period. It does not refer to when such amounts may have been payable.
- [50]Mackfitness disputes the amount claimed in the Notice.[48] This contradicts other information before me. Copies of emails passing between Mackfitness’ accountants and the lessor’s property agent or solicitors have been filed. In an email dated 18 November 2020, Mackfitness’ accountant states that he had spoken with Mackfitness’ director and that Mackfitness acknowledged the arrears listed in the Notice of $29,042.73 and sought to negotiate a payment plan.
- [51]An email of 17 July 2020 sets out the ‘pre-covid’ arrears in the amount of $29,042.73, which is the amount claimed in the Notice. The email states that they are calculated as:
- (a)Outgoings January 2020 due 12 January - $715.63
- (b)Rent February 2020 due 12 February - $11,500.00
- (c)Outgoings February 2020 due 12 February - $3,034.52
- (d)Rent to March 29, 2020 due 12 March - $10,758.06
- (e)Outgoings March 2020 due 12 March - $3,034.52.
- (a)
- [52]A copy of the Tenancy Transactions document prepared by the lessor’s property agent for the period 1 September 2019 to 1 December 2020 is in evidence before me.[49] It appears to evidence that an invoice issued 1 March 2020 for budgeted outgoings in the sum of $3,034.52 was for the period 1 March to 31 March 2020. Unlike the rent for March 2020, the outgoings amount has not been apportioned to an amount in respect of the period prior to the response period commencing.
- [53]In so far as the amount in the Notice claimed for March outgoings, the amount is arguably for a period occurring partly during the response period, which would enliven the Tribunal’s jurisdiction to make any order it considers appropriate to require the lessor to comply with s 12(1) of the Regulations, if such a finding was made at a final hearing.
- [54]The Tribunal has previously found that an application for such orders does not require the applicant to undertake or attempt to undertake pre-proceeding mediation through the Queensland Small Business Commissioner before the Tribunal has jurisdiction to entertain a claim unlike claims for eligible lease disputes.[50]
Should the Tribunal make the orders sought in the Application for interim order or the Further submissions?
- [55]I am not satisfied that an interim order or interim injunction in the terms sought in the Further submissions should be made in support of a claim for final orders that the lessor comply with section 12(1) of the Regulations.
- [56]
- [57]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[52] or to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction. The reasons given for seeking the interim orders set out above are not clearly framed in this way.
- [58]The Tribunal may grant an injunction including an interim injunction if it is just and convenient to do so.[53]
- [59]Whether an interim order or interim injunction should be made depends upon:
- (a)whether the Tribunal is empowered to hear and determine the dispute and to make the orders ultimately sought; and
- (b)whether the interim order or interim injunction is in aid of that relief.
- (a)
- [60]The interim orders sought as I understand them are in the nature of an order for relief against forfeiture of the lease and to restrain the lessor from taking prescribed action.[54]
- [61]Mackfitness, which was self-represented, has not addressed in its submissions the usual factors for the making of an interim order or interim injunction such as:
- (a)why the order is required to protect a party’s position for the duration of the proceeding or is required to secure the effectiveness of a final decision;[55]
- (b)whether Mackfitness has an arguable case that may entitle it to final relief;
- (c)whether the balance of convenience favours the making of the order, including why damages are not an adequate remedy, if the lessor is found to have taken action contrary to law;
- (d)to the extent that the interim order seeks the lessor to be restrained from doing something it contends it is entitled to do, whether Macfitness offers an undertaking as to costs or damages[56] and the value of any such undertaking.
- (a)
- [62]Mackfitness is the applicant and bears the onus of satisfying me that it is appropriate to make the orders sought.
- [63]In relation to whether Mackfitness has an arguable case that may entitle it to final relief, Mackfitness must show, as observed by SM Brown:
that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.[57]
- [64]In relation to the balance of convenience, SM Brown observed:
The court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[58]
- [65]In weighing the balance of convenience, a significant factor is whether damages would be an adequate remedy for the applicant.[59] The Tribunal has previously found that the Regulations do not expressly provide an entitlement to damages for a contravention of section 12(1) of the Regulations nor do they expressly exclude such an entitlement.[60] This is a factor in favour of an interim order.
- [66]In making such an order the Tribunal may require that Mackfitness give an undertaking as to costs and damages.[61] Mackfitness has not offered an undertaking.
- [67]As indicated earlier in these reasons, the interim orders sought are largely orders for relief against forfeiture of the lease rather than an order to preserve the status quo as it existed at the time of the Application pending a final hearing as the Saltys, purportedly as lessor, have already taken steps to terminate the lease, re-enter and seize the lessee’s possessions rather than merely threatening to do so prior to Mackfitness seeking orders from the Tribunal.
- [68]The interim orders sought in the Further submissions are not framed as restraining the lessor from taking action but rather seek orders setting aside the action already taken.
- [69]The Saltys submit that because termination, re-entry and seizure of possessions had been exercised prior to Mackfitness seeking the Interim orders that orders preventing such action could not be made. Mackfitness contends that this is contrary to the intention and spirit of the legislation, which is to protect lessees.
- [70]Although the language in section 12(5)(a) of the Regulations is broad, the language used in section 12(3) is that a lessee of an affected lease may apply to the Tribunal or a court with jurisdiction to hear the matter for an order requiring the lessor to comply with section 12(1). The ordinary meaning of the language of section 12(3) is more apt to reflect circumstances where a contravention is threatened but not yet carried out rather than circumstances where compliance would require orders in the nature of relief against forfeiture.
- [71]The PLA expressly confers power on the Supreme Court to grant relief against forfeiture of leases. The language in section 124 of the PLA is quite different to the language of section 12 of the Regulations.
- [72]Section 124 of the PLA relevantly provides:
Restriction on and relief against forfeiture
(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant, obligation, condition or agreement (express or implied) in the lease, shall not be enforceable by action or otherwise unless and until the lessor serves on the lessee a notice—
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and
(c) in case the lessor claims compensation in money for the breach, requiring the lessee to pay the same;
and the lessee fails within a reasonable time after service of the notice to remedy the breach, if it is capable of remedy, and, where compensation in money is required, to pay reasonable compensation to the satisfaction of the lessor for the breach.
(2) Where a lessor is proceeding by action or otherwise to enforce such a right of re-entry or forfeiture, or has re-entered without action the lessee may, in the lessor’s action (if any) or in proceedings instituted by the lessee, apply to the court for relief, and the court, having regard to the proceedings and conduct of the parties under subsection (1), and to all the other circumstances, may grant or refuse relief, as it thinks fit, and in case of relief may grant the same on such terms (if any) as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court in the circumstances of each case thinks fit.
- [73]Mackfitness’ claims that the lessor has failed to comply with section 124 PLA. It contends that the Notice was invalid including because it was not given on behalf of the Company, as claimed current lessor, and was in breach of section 124 of the PLA, as the Notice failed to set out how the amount is calculated and did not provide a reasonable time for remedy of the alleged breach in all the circumstances.
- [74]As stated earlier, the Tribunal is a creature of statute and must finds its power either in the QCAT Act or an enabling Act. The PLA is not an enabling Act. The PLA does not confer power on the Tribunal. The PLA defines ‘court’ for the purposes of section 124 as the Supreme Court.[62] The Tribunal has no power to make such an order under s 124 of the PLA.
- [75]Given that the jurisdiction under section 12(3) of the Regulations can be exercised by either the Tribunal or a court, including the Supreme Court, I am not satisfied that the Tribunal has power to make orders in the nature of relief against forfeiture where such power is expressly and exclusively conferred on the Supreme Court under the PLA and the power to make orders under the Regulations do not expressly grant those powers.
- [76]The Saltys’ submissions contend that the lease provides that the lessor is entitled to seize and sell the lessee’s possessions. Mackfitness’ Further submissions contends that any such rights are reliant upon a valid termination and compliance with the terms of the lease and that it is unlawful for the lessor to seize its property with the purpose of selling them to apply the proceeds against outstanding rent or amounts owing. At the time the Application for interim order was made, there was no evidence that the lessor had sold the possessions or taken irretrievable steps to do so. Such action and purporting to exercise other rights under the lease are arguably prescribed action, which if taken in reliance upon the Notice, are arguably forbidden.
- [77]An interim order restraining the Saltys from taking any further prescribed actions relying upon the Notice pending determination of the Notice of Dispute, would be an order in aid of the claim for final orders that the lessor comply with section 12(1) of the Regulations.
- [78]Since the Further submissions were filed, and prior to this matter being scheduled for determination, Mackfitness contacted the Registry by email[63] to advise that its possessions were being dis-assembled and prepared for removal from the premises without its consent. Unfortunately, this information was only recently brought to the Tribunal’s attention.
- [79]There is no evidence before me as to whether the possessions are being stored elsewhere or have been sold. In these circumstances, making an interim order of the nature indicated above may now have little utility.
- [80]On balance, I find that such an interim order should be made as the Saltys purportedly acted as lessor in reliance upon the Notice, which arguably relied upon a failure to pay outgoings for a period occurring partly during the response period.
- [81]As I have found that the claim for an order under section 12 of the Regulations is a claim within the Tribunal’s jurisdiction, it is appropriate to make directions to allow the parties and the Company to make submissions as to whether the Company should be joined as an additional respondent or whether it should be joined and the Saltys removed.
- [82]Given the limited nature of the relief available from the Tribunal, it may be more appropriate that the proceeding be dealt with by the Supreme Court. The Tribunal has power to transfer a proceeding to the Supreme Court.[64] If the Tribunal transfers a matter to the Supreme Court, it is taken to have been started before the Supreme Court when it was started before the Tribunal.[65]
- [83]It is appropriate to make also directions to obtain submissions from the parties as to whether the Notice of Dispute should be ordered to be transferred.
Footnotes
[1]Such a claim will involve a consideration of whether it is an eligible lease dispute within the Tribunal’s jurisdiction and in respect of which pre-proceeding mediation is required to be conducted or attempted prior to a party applying to the Tribunal. Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 41, s 42 (the Regulations).
[2]Dated 10 November 2020 but issued 11 November 2020.
[3]Filed 11 December 2020.
[4]Regulations, s 9.
[5]18 December 2020.
[6]QCAT Act, s 42.
[7]18 October 2013.
[8]18 April 2017.
[9]Application for leave to be represented signed by both Mr and Mrs Salty, filed 18 December 2020.
[10]18 December 2020.
[11]QCAT Act, s 42(1).
[12]Ibid, s 42(3).
[13]1 February 2021.
[14]Filed 3 February 2021.
[15]Ibid, [20].
[16]Ibid, [18].
[17]Ibid, [21].
[18]RSL Act, s 5C; Retail Shop Lease Regulation 2016 (Qld), s 8, Schedule 1.
[19]RSL Act, s 5B.
[20]Ibid, Schedule, definition ‘retail tenancy dispute’.
[21]Ibid, s 103.
[22]Mackfitness’ Further Submissions, [3].
[23]QCAT Act, s 61(1)(c).
[24]Ibid, s 28(3)(d).
[25]Form 4.
[26]Form 34.
[27]QCAT Rules r10.
[28]COVID Act, s 23(1)(a).
[29]Ibid, s 23(1)(b).
[30]Ibid, s 23(1)(c).
[31]Ibid, s 23.
[32]Ibid, s 23(6).
[33]Ibid, s 4A.
[34]Regulations, s 3(a).
[35]COVID Act, s 23(8).
[36]Ibid.
[37]Regulations, s 5.
[38]Ibid, s 6.
[39]Ibid, Schedule 1.
[40]Ibid, s 5(1)(c), s 5(5).
[41]Ibid, s 5(1)(d).
[42]Ibid, s12(3).
[43]Ibid, Schedule 1.
[44]Ibid, s 9.
[45]Ibid, s 12(3).
[46]Ibid, s 12(5).
[47]Ibid, s 12(2)(c).
[48]Further submissions, [10].
[49]The Saltys’ Submissions filed 18 December 2020, [6.1], Attachment G.
[50]Regulations s 41; Kirk & Anor v Sunshine Developments (Vic) Pty Ltd [2020] QCAT 493, [30].
[51]QCAT Act, s 58(2).
[52]Ibid, s 58(1).
[53]Ibid, s 59(1).
[54]Regulations, s 9.
[55]QCAT Act, s 58(1).
[56]Ibid, s 58(3).
[57]Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6, [23].
[58]Ibid, [24].
[59]Airlie Beach Real Estate Pty Ltd v Body Corporate for Delor Vue Apartments CTS 39788 [2018] QCAT 317, [70].
[60]Kirk & Anor v Sunshine Developments (Vic) Pty Ltd [2020] QCAT 493, [28].
[61]QCAT Act, s 58(3), s 59(6).
[62]PLA, Schedule 6, definition ‘court.’
[63]Emails 21 and 25 June 2021.
[64]QCAT Act, s 52.
[65]Ibid. s 52(4)(a).