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Golden Vision Biggera Waters GC Pty Ltd v Lendlease funds Management Limited[2022] QCAT 271

Golden Vision Biggera Waters GC Pty Ltd v Lendlease funds Management Limited[2022] QCAT 271

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Golden Vision Biggera Waters GC Pty Ltd v Lendlease funds Management Limited [2022] QCAT 271

PARTIES:

golden vision biggera waters gc pty ltd

(Applicant)

v

lendlease funds management limited.

(Respondent)

APPLICATION NO/S:

RSL150-19 & RSL026-20

MATTER TYPE:

Retail Shop Lease

DELIVERED ON:

4 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The application for disclosure is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – OTHER MATTERS – where applicant charged electricity costs by the respondent – where the applicant in turn charges electricity costs to its licensees – where applicant refuses to disclose the method of charging licensees and the amount charged – whether the respondent should disclose licence agreements and costs records entered into with licensees – whether the documents are relevant to the agreed issues in the proceeding – whether the application for disclosure has been made in a timely way – whether further disclosure will unduly delay the further conduct of the proceeding.   confidentiality regime should be directed where commercially confidential documents directed to be produced.

Queensland Civil and Administrative Tribunal Act ss 3 and 62(3)

Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68.

Campaingntrack Victoria Pty Ltd v Gannon [2017] QCAT 272.

Mason v New South Wales (1959) 102 CLR 108

Roxborough v Rothmans of Pall Mall (2001) 185 ALR 335.

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392.

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.

APPEARANCES &

REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    In its application for a miscellaneous matters filed on 7 October 2021 the Respondent (“Lendlease”) seeks an order from the Tribunal that the Applicant (“Golden Vision”) produce documents which it says are relevant to the issues in dispute in the substantive proceeding. Those documents have been described in the Lendlease’s written submission as:
    1. (a)
      A copy of the licence agreements between Golden Vision and its licensees at the premises (Licence Agreements) the subject of proceeding in RSL150-19 (Proceeding) with all commercial terms redacted except any commercial terms which relate to, or allow, the charging of electricity by Golden Vision to its licensees; and
    2. (b)
      Golden Vision’s records or information showing any costs charged by Golden Vision to its licensees for use of electricity supplied to the premises (Golden Vision’s Electricity Cost Records).
  2. [2]
    The application is opposed, essentially on the grounds they are not relevant to any issue in the proceeding on the basis that, in summary:
    1. (a)
      they relate to separate commercial arrangements with third parties unrelated to the issues for determination in this dispute;
    2. (b)
      they are sought to justify the Lendlease’s own alleged unconscionable conduct in its supply and charging of electricity to Golden Vision;
    3. (c)
      insofar as the application involves an exercise of discretion, there has been unexplained delay in bringing the application when the proceeding was ready for a hearing. Also, to grant the application would result in an unnecessary widening of the material before the Tribunal with no probative value and it is nothing more than a fishing expedition.
  3. [3]
    The Tribunal has the power under s 62(3) of the Queensland Civil and Administrative Tribunal Act to direct a party to produce a document or thing. The section is akin to Rule 209(1)(c) of the Uniform Civil Procedure Rules which permits a court to direct disclosure of documents by parties to an application. Adopting what was said by Applegarth J in Waratah Coal Pty Ltd v Nicholls & Anor, [1] the documents sought to be produced must be relevant to the issues in the proceeding, facilitate the expeditious resolution of the real issues and it be in the interests of justice that they be produced. His Honour also said that any order should be tailored to the particular issues in dispute because:

…where there are no pleadings they may be scope for unnecessary disputes and misunderstandings about whether a document is “directly relevant to a matter in issue in the preceding”. Another is that in any case in which disclosure is ordered, its scope should be defined and not be excessively wide”.

Brief History

  1. [4]
    Golden Vision and Lendlease entered into a lease of premises at shop B30 at Harbour Town Shopping Centre on the Gold Coast in 2019. Under that lease Lendlease charged Golden Vision for electricity usage. Lendlease says that the method of charging was disclosed to Golden Vision in the pre-lease negotiations and the obligations imposed in respect of charging electricity under the National Energy Retail Law[2] (NERL). Golden Vision disputes this and says that on its proper construction the lease only permitted Lendlease to be reimbursed for the electricity without a mark-up or profit. Therefore Golden Vision contends that the electricity as charged was in contravention of the lease. If that case is made out, Golden Vision seeks a refund of overpayments on the basis that Lendlease has been unjustly enriched.
  2. [5]
    Lendlease’s position is that any electricity charges were in accordance with the lease and there is no basis for Golden Vision’s claim of overpayment. In the alternative, any claim of unjust enrichment should be rejected if it is established that the Golden Vision itself on-charged its tenants for the electricity charged to it by the Lendlease resulting in no actual loss to the Golden Vision. To establish this alternative case and Golden Vision’s understanding of how electricity is charged under the NERL, it seeks the disclosure of documents, it says are relevant to this issue.
  3. [6]
    The matter has some complexities and as a consequence, the Tribunal directed that the parties agree a list of issues for determination at the final hearing of the application. The parties have agreed a list which is set out in paragraph 14 of Lendlease’s submissions dated 6 October 2021. The list falls under the following headings: Breach of Lease, Unconscionable Conduct and Compensation. Particular issues are then listed under each of the headings.

Unjust Enrichment

  1. [7]
    Obviously the documents sought to be disclosed are not relevant to Lendlease’s primary defence to the claim for unjust enrichment on the grounds that the Golden Vision was fully informed of the basis upon which it would be charged during the pre-lease negotiations[3] and on the proper construction of clause 14 of the lease. Clause 14, at face value, is unambiguous and prescriptive as to the method of charging electricity to Golden Vision. It therefore contends there is no misrepresentation or mistake, and Golden Vision is bound, under the lease to make the payments as charged. It follows on such a finding there is no unjust enrichment.
  2. [8]
    Lendlease then says in respect of the on-charging of electricity to its licensees that Golden Vision should observe the same obligations imposed on Lendlease under the NERL. If this is the case, then it would establish that Golden Vision is conversant and understands how electricity is charged and that is consistent with the charging regime adopted by Lendlease. It contends that if Golden Vision did comply with the NERL, by reference to the licence agreements, then this is relevant evidence to establish that Golden Vision’s understanding of:
    1. (a)
      the applicability of the NERL to the sale of electricity within the premises;
    2. (b)
      the charging conditions imposed under the NERL;
    3. (c)
      the entitlement of a party to profit of the sale of electricity pursuant to the NERL;
    4. (d)
      how it would be charged for electricity under the lease by Lendlease.[4]
  3. [9]
    Lendlease argues that the production of the documents would be probative in establishing that Golden Vision’s understanding is consistent with the pre-lease negotiations and how electricity is charged under the lease.
  4. [10]
    From the documents Lendlease would also be able to compare the amount Golden Vision received from licensees for electricity and compare that to what is claimed to determine whether Golden Vision is fully reimbursed for electricity costs charged to it and if it makes a profit. This will be relevant to whether Golden Vision has suffered loss.
  5. [11]
    Under the Agreed list of issues[5], issue A sets the fundamental issue of dispute under the lease, that is:

Do the terms of clause 14 of the lease allow the Respondent to charge the Applicant for electricity in the manner it has been charged by the Respondent.

  1. [12]
    Therefore, what the Tribunal will ultimately be concerned with is the interpretation of clause 14. In other words what is the contractual obligations of Lendlease in how it on-charges electricity to Golden Vision. It is difficult to see how third party arrangements as to the manner of charging electricity to licensees can have any relevance to the application, or clause 14, and contractual relations between Lendlease and Golden Vision.
  2. [13]
    It can also be tested this way. Would the licence agreements and cost records be amenable to non-party disclosure under Rule 242 of the Uniform Civil Procedure Rules, accepting of course they don’t apply in QCAT. A non-party is only obliged to produce a document under Rule 242 if it is ‘directly relevant to an allegation in issue in the pleading’. Again, acknowledging there are no pleadings, but if there were it is difficult to see how, in both the interpretation of clause 14 and in defence of an unjust enrichment claim, a pleaded defence that Golden Vision’s subsequent knowledge gained from its own licence agreements with licensees could be maintainable. If not, there is also no basis upon which an application for non-party disclosure could be maintained.
  3. [14]
    I therefore accept Golden Vision’s submission that the documents sought are not relevant to the contractual issue. Also, adopting the UCPR example, a defence by the alleged unjustly enriched party that the claiming party has not suffered loss is not maintainable. On the strength of the cases cited by Golden Vision, referred to below, such a defence is liable to be struck out.
  4. [15]
    In Mason v New South Wales,[6] Windeyer said:

The concept of impoverishment as a correlative of enrichment may have someplace in some fields of continental law. It is foreign to our law. Even if there were an equity in favour of third parties attaching to the fruits of any judgement the plaintiffs might recover - and there is nothing proved that all remotely suggesting that there is - this circumstance would be quite irrelevant to the present proceedings             

  1. [16]
    Also, in Roxborough v Rothmans of Pall Mall[7] the High Court said:

There having been a failure of a distinct and separable part of the consideration for the net total payments made by the appellants to the respondent, then, as between the parties to the payments, the respondent has no right to retain the amounts in question. If the tobacco products in question remained unsold by the appellants at the time the claims for repayment arose for determination, the respondents obligation to make restitution would be clear. Why does it make a difference to the conscientiousness of the respondent’s retention of the monies that the products were sold by the appellants at prices that had the practical effect of recouping the expense they bore in paying the “tobacco licence fees”? The holders of the licences were those upon whom the tax was imposed, but they were also intended to pass the tax on to the customers. As between the licensees, it was the appellants who incurred the expense, in that they were charged, and paid, a separable amount for the purposes of the tax.

  1. [17]
    I therefore accept Golden Vision’s submission that it is only the parties to the restitution case that are relevant as to whether a party has been unjustly enriched in line with the authorities cited. The documents sought to be disclosed are not relevant on this basis.

Unconscionability

  1. [18]
    Lendlease submits that as one of the issues in dispute is the allegation that Lendlease engaged in unconscionable conduct and the documents are relevant to this issue. In summary the issues are:
    1. (a)
      what is the total amount of electricity paid by Golden Vision for electricity supplied;
    2. (b)
      what is the total amount of electricity charged by the Respondent to the applicant;
    3. (c)
      did the respondent unreasonably obstruct or prevent the applicant from acquiring electricity from an alternate supplier;
    4. (d)
      has the respondent engaged in unconscionable conduct either under the Retail Shop Leases Act, Schedule 2 of the Competition and consumer Act (Cth) or at common law in all the circumstances;
    5. (e)
      Then, if the respondent has breached the lease or engaged in unconscionable conduct what relief is the applicant entitled to.
  2. [19]
    Apart from what relief the applicant might be entitled to if it is found that Lendlease breached the lease, engaged in unconscionable conduct or was unjustly enriched, the documents sought to be disclosed have no relevance to the balance issues (a) – (d) above.[8]
  3. [20]
    The unconscionable conduct must only relate to the relevant facts and circumstances leading up to the execution of the lease. There is no contention that the lease is not binding or enforceable. Lendlease relies on Kakavas v Crown Melbourne Ltd[9] to argue that scrutiny is necessary of “the exact relations established between the parties to determine the real justice of the case”. Even taking a comprehensive view of all the circumstances and even assuming for that exercise, that the Golden Vision is not out of pocket by reason of its contract with the sub-licensees, it is the relations between Golden Vision and Lendlease which has to be the focus of any inquiry concerning unconscionable conduct.
  4. [21]
    Similarly in applying s 46A of the Retail Shop Leases Act to decide if there is unconscionable conduct it can only be considered in the performance of the lease. Even though regard can be had to a party’s (here lessor) conduct to other parties (lessees), it does not attract an examination of the lessee’s conduct with its sub-licensees as is the case here. Again, I accept Golden Vision’s submission that it is not for the Tribunal to adjudicate on the contractual relationship between Golden Vision and its licensees to determine:
    1. (a)
      if Golden Vision has acted unconscionably to the sub-licensees; and
    2. (b)
      the extent of reimbursement of electricity charges to offset any alleged unjust enrichment to Lendlease.
  5. [22]
    The articulated agreed issues solely relate to the manner in which the electricity charges are imposed on Golden Vision and not the sub-licensees. Also, and to be clear, the documents sought to be disclosed can have no relevance to whether there was any obstruction to Golden Vision acquiring electricity from an alternate supplier.
  6. [23]
    Lendlease argues that equity principles should apply, and it ill behoves Golden Vision to complain about its conduct if Golden Vision does not ‘have clean hands’. However, once the conclusion is reached that the arrangement between Golden Vision and its sub-licensees is irrelevant to determine if there should be an offset, the equitable doctrine has no application in these circumstances.

Delay

  1. [24]
    Golden Vision says that an order for further disclosure will unnecessarily delay the finalisation of this application. I am mindful of what Applegarth J said in Waratah concerning the ‘expeditious resolution of the matter”. This proceeding commenced in 2019. The parties have worked diligently in agreeing the issues for determination. The matter was ready for hearing in late 2021 and has now been delayed by the subject application. The delay since filing of all submissions is not the fault of the parties, however if disclosure is ordered, no doubt there will be further directions and perhaps further evidence filed. The issues will broaden, unnecessarily resulting in further delay.
  2. [25]
    More importantly, the issue of disclosure was agitated in the Tribunal in May 2021 when Member Deane made further orders about the disclosure of costs records subsequent to directions about disclosure made in November 2020. Lendlease has had at least two previous opportunities to have this matter ventilated before the directions were made in November 2021 to have the matter listed for a two day hearing. Golden Vision submits that there has been no explanation for that delay which I accept. Delay is a relevant matter in the exercise of discretion.
  3. [26]
    Therefore, and insofar as the application involves an exercise of discretion and having considered the submissions of the parties in relation to the issues in the dispute, I propose to dismiss the application. This approach is also consistent with what the High Court said in Aon Risk Services Australia Limited v Australian National University[10] so as to ensure the resources which the State commits to the administration of justice are not wasted. This is particularly so in this Tribunal where the objects of the QCAT Act require the Tribunal to “deal with matters in a way that is accessible, fair, just, economical, informal and quick”[11].
  4. [27]
    Therefore, the order of the Tribunal is that the application is dismissed.

Footnotes

[1]  [2013] QSC 68 at [133] and followed in Campaingntrack Victoria Pty Ltd v Gannon [2017] QCAT 272.

[2]  Affidavit of Gregory Wallace filed 17.09.2020 paragraph 12.

[3]  Lendlease’s submissions paragraph 22.

[4]  Ibid paragraph 27.

[5]  Ibid paragraph 14.

[6]  (1959) 102 CLR 108 at 146.

[7]  (2001) 185 ALR 335 342-3.

[8]  Issues E – H in paragraph 14 of Lendlease’s submission.

[9]  (2013) 250 CLR 392.

[10]  [2009] HCA 27 at [25]

[11]  QCAT Act s 3(b)

Close

Editorial Notes

  • Published Case Name:

    Golden Vision Biggera Waters GC Pty Ltd v Lendlease funds Management Limited

  • Shortened Case Name:

    Golden Vision Biggera Waters GC Pty Ltd v Lendlease funds Management Limited

  • MNC:

    [2022] QCAT 271

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    04 Jul 2022

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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