Kruger Cove Pty Ltd v Mulpha Sanctuary Cove Marine Village Pty Limited
[2024] QCAT 180
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- Unreported Judgment
- Kruger Cove Pty Ltd v Mulpha Sanctuary Cove Marine Village Pty Limited[2024] QCAT 180
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Kruger Cove Pty Ltd v Mulpha Sanctuary Cove Marine Village Pty Limited[2024] QCAT 180
Kruger Cove Pty Ltd v Mulpha Sanctuary Cove Marine Village Pty Limited[2024] QCAT 180
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Kruger Cove Pty Ltd v Mulpha Sanctuary Cove Marine Village Pty Limited [2024] QCAT 180 |
PARTIES: | Kruger Cove Pty Ltd t/as Quay Street Cafe (applicant) v Mulpha Sanctuary Cove Marine Village Pty Limited (respondent) |
APPLICATION NO/S: | RSL084-22 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 1 May 2024 |
HEARING DATE: | Heard on the papers |
HEARD AT: | Cairns |
DECISION OF: | Member Taylor |
ORDERS: |
|
CATCHWORDS: | LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS – where a retail shop tenant raised a notice of dispute asserting wrongs by the landlord and claiming compensation – where mediation of the dispute was unsuccessful – where the dispute was then referred to the Tribunal for determination – where the applicant was directed to file relevant submissions in support of its assertions and claim – where several extensions of time were afforded the applicant – where the applicant failed to comply with directions – where subsequently a liquidator was appointed to the applicant company – where the liquidator failed to contact the Tribunal to either advance or withdraw the company’s action – where the respondent applied to have the proceeding dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48 Robert Genge v Paragon Portfolio Pty Ltd [2011] QCAT 234, cited |
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]The parties are in dispute over the lease of a shop in the Marine Village at Sanctuary Cove to the north of Queensland’s Gold Coast.
- [2]On 4 April 2023, the respondent applied to this Tribunal for the proceeding to be dismissed on the premise that the applicant had consistently failed to comply with directions of this Tribunal for the filing of relevant material. Subsequently, in December 2023 the respondent also alerted the Tribunal to the fact that on 20 November 2023 a liquidator was appointed to the applicant under a creditors voluntary winding up.
- [3]As discussed in these reasons, not only did the applicant fail to comply with directions for the filing of submissions on issues as directed, but there has also not been any contact from the applicant via its liquidator since his appointment. Accordingly the respondent succeeds in its application.
Background
- [4]From 30 July 2014 the applicant was a tenant of the respondent in a shop at The Marine Village, Sanctuary Cove, such occurring following an assignment of a lease to it. Subsequently, from 13 September 2017 the parties entered into a new lease that was due to expire in September 2025. A lease document to that effect was signed by the parties in August 2018.
- [5]In November 2021, the respondent served on the applicant purported Notices to Remedy Breach, and subsequently on or about 23 December 2021 served on the applicant what is said to have been a Notice of Termination asserting that the least was effectively terminated on and from 30 December 2021with a demand to cease trading and deliver up the premises from that date.
- [6]On 18 March 2022, the applicant filed a Notice of Dispute under the Retail Shop Leases Act 1994 (Qld) with this Tribunal. Therein the applicant asserted a claim for compensation for losses it alleged it had incurred as a result of what is said to be the respondent’s actions as landlord. Such triggered a mediation between the parties but whereat no resolution was reached.[1] Failing resolution at mediation, on 7 July 2022 the dispute was thus referred to this Tribunal for determination.[2]
- [7]What then followed was a series of directions given by this Tribunal on 8 July 2022 for the filing of relevant material and documentation. In response thereto the applicant filed material on 20 September 2022, namely a statement of a Ms Chantelle Kruger, however the respondent did not file any statements in satisfaction of the directions for same. Subsequently, further directions were given on 16 December 2022 for the parties to file and serve submissions addressing certain aspects of the proceeding as defined therein, with a direction also being given that the Notice of Dispute would thereafter be determined on the papers.
- [8]Following an extension of time being granted to both parties, the respondent filed its submissions on 10 March 2023 wherein the respondent sought relief that the applicant’s proceeding be dismissed on the basis that the lease was validly terminated and that there was no premise for the applicant to be compensated.
- [9]However the applicant did not file any submissions in satisfaction of the directions for same, and on 31 March 2023 it filed an application to extend time for compliance with those directions.
- [10]Shortly thereafter, on 4 April 2023 the respondent filed an application to have the substantive proceeding dismissed on the basis of the applicant having continuously failed to have complied with the Tribunal’s directions.
- [11]In response to both those applications, on 2 May 2024 this Tribunal gave directions providing the applicant with time up to 21 July 2023 to comply with the earlier directions given, and for the applicant to file and serve any submissions it wishes to make in response to the respondent’s application to dismiss, also to be provided not later than 21 July 2023. Simultaneously it directed that the application to dismiss would thereafter be determined on the papers.
- [12]The applicant did not file any further material, but on 20 July 2023 it filed another application for extension of time. By directions given 21 July 2023 that application was denied and it was once again directed that the application to dismiss would be determined on the papers.
- [13]For reasons that are not apparent to me from my review of the file, the proceeding seemed to have then got lost in the registry and was not thus promptly dealt with thereafter, it not being referred to me until April of this year. Whilst nothing further was received from or on behalf of the applicant, what did occur in that period of hiatus is that on 7 December 2023, via e-mail from the respondent, this Tribunal was informed that on 20 November 2023 a liquidator was appointed to the applicant in a creditors voluntary winding up. The respondent provided a copy of a relevant company search showing that fact, and simultaneously requested that this Tribunal confirm this proceeding is dismissed. Neither the applicant itself nor its liquidator informed the Tribunal of that event, nor otherwise made any contact with the Tribunal during that period of hiatus.
- [14]It is against this background that I dealt with the application to dismiss, determined on the papers.
Discussion on the Application to Dismiss
- [15]As the respondent expressed it in its ‘Annexure A’ to its application to dismiss:
- The substantive application is the second application made by the applicant in respect of the same subject matter, the first application being RSL 077-21 which was dismissed by the Tribunal inter-alia on the basis of the applicant’s failure to have complied with directions;
- The applicant has failed to correspondent with the Tribunal or the respondent regarding its failure to have complied with directions, consistent with its conduct in that first application; and
- The respondent has had to utilise scarce personnel resources to defend the first application and now the second application.
- [16]The respondent’s reference to an earlier proceeding, namely RSL 077-21, is not something I have considered in deciding its application in this proceeding. Whilst there may be issues similar to the current proceeding that is not relevant. This current proceeding and the respondent’s application within it must be considered and determined within the confines of this current proceeding.
- [17]In terms of the respondent’s application otherwise, whilst not cited by the respondent in support of its application, relevantly the Queensland Civil and Administrative Tribunal Act 2009 (Qld) includes the following provision, which seemed to me to be the relevant provision under which the respondent’s application to dismiss fell to be determined.
48 Dismissing, striking out or deciding if party causing disadvantage
- This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
- not complying with a tribunal order or direction without reasonable excuse; or
- …
- The tribunal may—
- if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
- …
- In acting under subsection (2), the tribunal must have regard to the following—
- the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures;
- the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions;
- whether the party causing the disadvantage is acting deliberately.
- [18]In that regard, the applicant’s continued failure to have complied with the Tribunal’s directions in this proceeding as I have identified them in the Background section to these reasons is without any explanation. Moreover, there is also the fact that a liquidator was appointed to the applicant for the purposes of winding it up, and there has not been any contact from the liquidator to this Tribunal to not only inform the Tribunal of that fact but also to explain the applicant’s circumstances and why it should be afforded any further opportunity to press its case, or otherwise to formally withdraw the proceeding.
- [19]In all respects it seems to me that the applicant, affirmed by the inaction of the liquidator in this regard, has effectively abandoned its asserted claims for relief and the issues that gave rise to the Notice of Dispute. That being said, giving regard to the provisions of s 48(3) as I am required to do, the following observations are relevant:
- The applicant’s compliance with the directions was not an onerous task or in any way complex or complicated such that it might be said that the applicant was not familiar with the Tribunal’s practices and procedures, nor that it had the capacity to understand and act on the Tribunal’s directions, and moreover, there is nothing filed by or on behalf of the applicant to indicate a contrary position; and
- whilst there is nothing to indicate to me that the applicant itself, via its directors, acted deliberately in not complying with these directions, with the appointment of the liquidator it should be expected that the liquidator would have contacted the Tribunal to inform it of his intentions in regard to the future conduct of the substantive proceeding, and in the absence of same it seems to be that he has consciously chosen to not press further with the proceeding and so effectively abandoned it.
- [20]Similar to observations made many years ago by this Tribunal in a matter concerning a party’s continued failure to have complied with its obligations to progress a proceeding:[3]
- this Tribunal has already granted the applicant several indulgences, namely many extensions of time for the provision of requisite material;
- despite those indulgences, the applicant has not lodged any submissions, as it was directed to, in support of and prosecution of its allegations and claims against the respondent; and
- in light of those facts, and that which I stated in the preceding paragraph herein, in such instances the respondent would clearly be disadvantaged if this proceeding were to linger any longer.
- [21]For these reasons, the appropriate order is that the proceeding be dismissed. There was an order to that effect.