Vanish Laser Clinic Pty Ltd v Gabba Nominees Pty Ltd
[2023] QCAT 403
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- Unreported Judgment
- Vanish Laser Clinic Pty Ltd v Gabba Nominees Pty Ltd[2023] QCAT 403
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Vanish Laser Clinic Pty Ltd v Gabba Nominees Pty Ltd[2023] QCAT 403
Vanish Laser Clinic Pty Ltd v Gabba Nominees Pty Ltd[2023] QCAT 403
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Vanish Laser Clinic Pty Ltd v Gabba Nominees Pty Ltd [2023] QCAT 403 |
PARTIES: | VANISH LASER CLINIC PTY LTD (applicant) v GABBA NOMINEES PTY LTD (respondent) |
APPLICATION NO/S: | RSL039-23 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 11 October 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb |
ORDERS: |
|
CATCHWORDS: | LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – where applicant/lessee alleges misrepresentation by respondent/lessor in disclosure statement concerning ‘alteration works planned or known to lessor’ – subsequent closure of one access point to street adjoining centre containing leased premises – where applicant claims entitlement to damages – where applicant seeks interim injunctive relief to suspend notice to remedy breach (unpaid rent) and to suspend future payment of rent and outings – whether interim order should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 59 Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 8, s 103, Part 8 Gold Coast Jet Boating Pty Ltd v Ridong (Australia) International Pty Ltd [2022] QCAT 14 McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293 RA Quality Meats Pty Ltd trading/as RA Quality Meats v Nambour Property Investments Pty Ltd [2021] QCAT 281 |
REPRESENTATION: | |
Applicant: | Calvados & Woolf Lawyers |
Respondent: | Mahoneys Lawyers |
APPEARANCES: |
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
Introduction
- [1]In December 2020, the Applicant (as lessee) and the Respondent (as lessor) entered into a written lease in respect of premises described as ‘Tenancy T10’, being part of the ground floor of a building situated on the corner of Stanley Street and Ipswich Road, Woolloongabba, Brisbane. The Applicant executed the lease on 26 November 2020. The Respondent executed the lease on 11 December 2020. The commencement date of the lease was 1 December 2020, and the initial term of the lease was for a period of 10 years.
- [2]The stated permitted use under the lease is:
Beauty, laser treatments including cosmetic laser, hair removal, tattoo removal, non-invasive cosmetic injectable and cosmetic tattooing (including, without limitation, eyebrows, eyeliner and permanent make-up application for the face only).
- [3]On 24 July 2023, the Applicant filed an Application for interim order in the Tribunal. The Applicant seeks the following orders:
- 1.That the Notice of Breach as issues [sic] by the Respondent be suspended (Annexure A) until the substantive matter is either settled commercially at the mediation between the parties to be conducted by the Queensland Small Business Commissioner (QSBC) OR at the conclusion of the QCAT hearing on the matter which will be subequent [sic] to the QSBC mediation in the event that the mediation is not successful.
- 2.That payment of rent and outgoings by the Applicant is suspended until the substantive matter is either settled commercially at the mediation between the parties to be conducted by the Queensland Small Business Commissioner (QSBC) OR at the conclusion of the QCAT hearing on the matter which will be subequent [sic] to the QSBC mediation in the event that the mediation is not successful. The Applicant will take all necessary steps to expedite the matter and not cause undue delays to any party.
- 3.That during the above periods (paragraphs 1 and 2) the interest and rights of the Applicant are preserved.
- [4]The stated grounds in support of the Application are as follows:
The Applicant is a tenant in the Respondent’s shopping centre and who subject of a Retail Shop Lease seeks the Interim Orders as detailed above for the following reasons:
- 1.The Applicant operates from the shopping centre known as GABBA CENTRAL SHOPPING CENTRE and located at 308 Stanley Street, South Brisbane.
- 2.The shopping centre is at the epicentre of the Cross River Rail station located in South Brisbane.
- 3.The Applicant entered into a Lease with the Respondent on 1 December 2020 for a period of ten (10) years and terminating on 30 November 2030 (Annexure B).
- 4.The Respondent at section 17.1 of the required Disclosure Statement (Annexure C) marked the NO box when answering the question:
“Are there any alterations [sic] works planned OR known to the lessor at this point in time, to the premises or building/centre including surrounding roads, during the term or any further term or terms?”
- 5.As a result of the Respondent’s representations, the Applicant confidently entered into a long lease and expended approximately $150,000.00 in fit out costs.
- 6.From September 2019 (or earlier) The Cross River Rail authority commenced an information campaign available publicly and to all landlords of the planned extensive works to be undertaken directly opposite and around the streets where the Applicant’s place of business is located. Exhibited at Annexure D are the relevant advisories.
- 7.Due to the ongoing disruptions caused by the extensive and ongoing works being conducted by the Cross River Rail Authority, the Applicant has suffered very substantial losses to his business revenue because of a near total collapse of passing foot traffic, access to the centre and surrounding road closures.
- 8.The issues with the shopping centre have also been extensively documented in the public domain as is the plight of the various tenants of the centre. Exhibited at Annexure E are relevant media articles. The Applicant is in the process of quantifying its losses to be presented to the QSBC mediation and subsequent QCAT application in the event the mediation is unsuccessful.
- 9.The Applicant and Respondent have exchanged correspondence which has not resulted into a mutually agreed outcome. Exhibited at Annexure F is the correspondence between the parties.
- 10.The Respondent has served the Applicant with a second Notice of Breach (the first notice having been satisfied) for an amount including rent arrears and legal fees. Exhibited at Annexure A is the Notice of Breach and invoices.
- 11.The Applicant disputes that the legal fees which form part of the Notice of Breach are reasonable.
- 12.The Applicant seeks the order from the tribunal to:.
- (i)Allow time to quantify his losses;
- (ii)Allow time to prepare for the QSBC hearing;
- (iii)Allow time to prepare for a potential QCAT Application; and
- (iv)Preserve their rights and interest whilst the matter is in dispute.
Threshold jurisdictional issue
- [5]Although the Respondent does not contest that the Tribunal has jurisdiction to determine the Application, it is necessary to consider the issue.
Retail tenancy dispute
- [6]On the present state of the material, I am satisfied that, for the purposes of this Application only, the dispute between the parties constitutes a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) (the RSLA).[1] I consider that:
- (a)the premises constitute a ‘retail shop’ pursuant to s 5B of the RSLA, being situated in a retail shopping centre. The Disclosure statement by the Respondent contained a Part 9 headed ‘RETAIL SHOPPING CENTRE DETAILS’ and included a note that the Part must only be completed if the premises are in a retail shopping centre as defined in s 8 of the RSLA.[2] Part 9 was completed by the Respondent and included a reference to the total number of shops being 19;
- (b)the lease is a ‘retail shop lease’ as defined by reference to s 5A of the RSLA;
- (c)the dispute is a dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease.
Absence of mediation process to date
- [7]Part 8 of the RSLA deals with retail tenancy dispute resolution and makes provision for a mandatory pre-proceeding mediation process.
- [8]On the current state of the law, I am satisfied that the Tribunal has jurisdiction to deal with an Application for interim order (seeking relief under, relevantly, s 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)), despite the mediation process not having been attempted.[3]
- [9]Consequently, I consider that the Tribunal does have jurisdiction to determine the Application.
Should an interim order be made?
- [10]As to the applicable principles for the grant of interim injunctive relief, I respectfully adopt the following observations of Senior Member Brown in RA Quality Meats Pty Ltd trading/as RA Quality Meats v Nambour Property Investments Pty Ltd:[4]
Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, to protect a party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding. The tribunal may also, by order, grant an injunction, including an interim injunction, in a proceeding if it is just and convenient to do so. If the tribunal makes an interim order or grants an interim injunction the tribunal may require an undertaking as to costs or damages to be provided.
An applicant seeking interim injunctive relief must establish the following:
- (a)there is a serious question to be tried;
- (b)there is a matter of urgency;
- (c)damages will not be an adequate remedy; and
- (d)the balance of convenience favours granting an injunction.
(citations omitted)
Serious question to be tried
- [11]The Applicant’s case centres on the Respondent’s negative answer to the following question in the Disclosure statement:
Are there any alteration works, planned or known to the lessor at this point in time, to the premises or building / centre, including surrounding roads, during the term or any further term or terms?”
- [12]There appears to be a dispute as to the proper construction of that provision, centring on the question of whether the question encompassed relevant planned works even if the Respondent had no knowledge of such works at the time of the Disclosure statement. The provision is not clearly drafted. While expressing no concluded view on the issue, I consider that the Applicant’s construction that no knowledge is required is, at least, reasonably open. I consider that the ordinary grammatical meaning tends to support the Applicant’s argument, noting that the question adopts the disjunctive ‘or’ between ‘planned’ and ‘known to’.
- [13]The next question is whether alteration works were planned ‘to the premises or building/centre including surrounding roads’, either as at the date of the Disclosure statement or, alternatively, the date on which the Applicant executed the lease (the relevant time).
- [14]The Applicant’s case is that its business was significantly impacted by the closure of a section of Gibbon Street at the Stanley Street service road intersection. Gibbon Street provides entry to the centre (and, thereby, to the leased premises) but access to Gibbon Street also appears to be available via Hawthorne Street.
- [15]As to the evidence of the planned works, the Applicant relies on a number of Works Notices in relation to the construction of the Woolloongabba station for the cross river rail project. Whilst it is plain from the Notices that there were substantial proposed works at and immediately surrounding the Woolloongabba station worksite, I have not been able to identify any reference to the closure of Stanley Street at the intersection of Gibbon Street or to a closure or partial closure of Gibbon Street itself. It is not evident to me that such works were ‘planned’ at the relevant time. However, it is unnecessary to reach a concluded view on this factual issue which would require further evidence if the matter were to proceed to a hearing. For present purposes, I consider that the inaccuracy of the answer to the question posed does raise a serious question to be tried, but the case does not look to be a strong one on the present state of the material.
- [16]I also note that the Applicant’s purported reliance on the representation said to arise from the answer to the question identified above would be in issue.[5]
Balance of convenience
- [17]The Applicant has not addressed this issue.
- [18]In my view, having regard to the matters addressed by the Respondent, I consider that the balance of convenience favours the refusal of the interim order. In this regard:
- (a)the Applicant’s claim appears to be limited to a claim for damages or compensation. The Applicant has not identified the specific basis upon which the alleged loss is calculated nor any details of the quantum of such loss;
- (b)there is no suggestion that the Applicant would not be able to pursue a damages or compensation claim against the Respondent if the Application were refused;
- (c)there appears to be no dispute that rental arrears are owing. There is no proposal by the Applicant that unpaid rent be paid nor an undertaking to pay future rent and outgoings. To the contrary, the injunctive relief sought by the Applicant is that the payment of rent and outgoings be ‘suspended’ until the earlier of the resolution of the matter between the parties or a final hearing in the Tribunal;
- (d)further, the substance of order number 1 effectively seeks to restrain the Respondent from acting upon the notice or notices to remedy breach and thereby prevent the Respondent from retaking possession of the premises. That is, the combined effect of orders 1 and 2 would be to permit the Applicant to occupy the premises and carry on its business rent free until the determination of the matter;
- (e)the Applicant has not offered an undertaking as to damages. Further, the Applicant has not provided evidence that it would be able to meet an undertaking as to damages (if the Tribunal ordered an undertaking) if the Applicant was ultimately unsuccessful. In that event, the Respondent would need to pursue the Applicant for recovery of the outstanding amount of rent and outgoings in circumstances where recovery of such amount (and any associated legal costs) appears uncertain.
- [19]Having regard to the above considerations, I consider that any injury that may be sustained by the Applicant if the interim order is refused is plainly outweighed by the injury that would be suffered by the Respondent if the relief is granted. I find that the balance of convenience warrants the refusal of the Application.
Order
- [20]For the above reasons, the Application for interim order is refused.
Footnotes
[1] See s 103 of, and the definition of ‘retail tenancy dispute’ in the Dictionary to, the RSLA.
[2] Section 8 of the RSLA was renumbered as s 5D in 2016.
[3] McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293; Gold Coast Jet Boating Pty Ltd v Ridong (Australia) International Pty Ltd [2022] QCAT 14.
[4] [2021] QCAT 281, [34]-[35].
[5] Respondent’s written submissions, [34].