Pierre’s Café Bistro Restaurant Pty Ltd v Myer Ltd
[2022] QCAT 398
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- Unreported Judgment
- Pierre’s Café Bistro Restaurant Pty Ltd v Myer Ltd[2022] QCAT 398
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Pierre’s Café Bistro Restaurant Pty Ltd v Myer Ltd[2022] QCAT 398
Pierre’s Café Bistro Restaurant Pty Ltd v Myer Ltd[2022] QCAT 398
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pierre’s Café Bistro Restaurant Pty Ltd v Myer Ltd [2022] QCAT 398 | ||
PARTIES: |
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APPLICATION NO/S: | RSL086-22 | ||
MATTER TYPE: | Retail shop leases matter | ||
DELIVERED ON: | 12 August 2022 | ||
HEARING DATE: | On the papers | ||
HEARD AT: | Brisbane | ||
DECISION OF: | Member Holzberger | ||
ORDERS: |
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CATCHWORDS: | Retail Shop Lease – Termination of lease – whether proceedings properly commenced – tribunals jurisdiction – entitlement to interim relief where no proceedings before the tribunal Queensland Civil and Administrative Tribunal Act 2009 Retail Shop Leases Act 1994 | ||
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REASONS FOR DECISION
Background
- [1]Pierre's Café Bistro Restaurant Pty Ltd (Pierres) occupied an allocated space at Pacific fair shopping centre pursuant to a license agreement with Myer Ltd (Myer) dated seventh of December 2018
- [2]It is not in dispute that the Retail Shop Leases Act 1994 (RSL Act) applies to the license agreement.
- [3]On 20 July 2021 Myer provided a letter to Panagiotis Malkopoulos a director of Pierre's detailing a number of alleged breaches of the license agreement which are required to be rectified.
- [4]On 5 July 2022 Myer delivered to Mr Malkopoulos a letter detailing further breaches and terminating the license agreement as of that date.
- [5]On 19 July 2022 Myer, among other things, required removal of Pierres fit out and other assets by 25 July 2022.
- [6]By email dated 25 July 2022 Myer provided an undertaking not to remove Pierres property until the interim application which is the subject of these proceedings was determined.
- [7]Pierres has not traded since 5 July 2022 but its fit out remains in place in the allocated space.
Applications to the Tribunal
- [8]On 12 July 2022 Pierres filed in the Tribunal an application for an interim order allowing it to continue to trade from the allocated space until “such a time that the matter can be heard in court.”
- [9]On 1 August 2022 Myer applied to the Tribunal to be legally represented. That application is opposed by Pierres.
- [10]On 5 August 2022 Pierres filed an application for miscellaneous matters requesting that it be permitted to rely on various further materials in response to Myer’s submissions to the Tribunal in relation to the interim application. I have read those materials.
QCAT's jurisdiction
- [11]The tribunal derives its jurisdiction to determine retail tenancy disputes from the enabling act, the RSL Act.
- [12]A party to a retail tenancy dispute may lodge a notice of dispute with the small business Commissioner.[1] The Commissioner then arranges for a mediation to occur. If the mediation does not resolve the dispute the mediator or must then to the Tribunal if the dispute is within the Tribunal's jurisdiction.[2]
- [13]A party may apply directly to the Tribunal only if a mediation agreement is not complied with, the mediator refuses to refer it or a court has ordered the dispute to be removed to the Tribunal.[3]
- [14]In this case there has been no referral of this dispute from a mediator and the material before the Tribunal does not disclose any circumstance which would permit Pierres to apply directly to the Tribunal.
- [15]The material filed by Pierres on 5 August 2022 includes a copy of an email to Pierres from the Queensland Small Business Commissioner's Office confirming Pierres application to that office for mediation and advising that a mediation will not be arranged until after the interim application to the Tribunal has been determined.
- [16]No substantive application for determination of a tenancy dispute has been lodged nor can it be until it is referred by the mediator or a circumstance referred to in section 64 has occurred. In my view the jurisdiction of the Tribunal has not been enlivened the Tribunal does not have jurisdiction to make the interim orders sought.
Interim Orders
- [17]Section 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT act) permits the tribunal to make interim orders “before making a final decision in a proceeding.”
- [18]Section 59(1) of the QCAT act permits the tribunal to make an interim injunction “in a proceeding”.
- [19]Schedule 3 of the QCAT act defines “proceedings” as “generally – means a proceeding before the Tribunal”.
- [20]There is no proceeding before the Tribunal. Were the tribunal to make an order sought it would not have effect as an interim injunction because no substantive proceeding exists to be determined.
Myer's submissions
- [21]For the reasons set out above the tribunal is unable to make the orders set out in paragraph 38 of the Myer submissions relating to the removal of fittings and making good.
- [22]In view of the Tribunal's orders there is no utility in the application for legal representation and it is dismissed accordingly.
Further application
- [23]There is nothing to prevent Pierres from proceeding with the mediation and, assuming it is unsuccessful, applying to the Tribunal on the mediator's referral.
- [24]There is nothing to prevent Pierres from applying or reapplying for interim order at that juncture, however I am of the view that such application would have poor prospects of success. I agree with the submissions made by Myer to the effect that the balance of convenience favours refusing the application. The tribunal would be reluctant to force the parties into an ongoing commercial arrangement where their existing relationship is so poor. I am also of the view that damages would be an adequate remedy to any of the disputes Pierres has foreshadowed in its material.