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J&Y Latham Pty Ltd ATF v Curtis[2024] QCAT 235

J&Y Latham Pty Ltd ATF v Curtis[2024] QCAT 235

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

J&Y Latham Pty Ltd ATF v Curtis [2024] QCAT 235

PARTIES:

J&Y latham PTY LTD ATF

(applicant)

v

jake curtis

(respondent)

APPLICATION NO/S:

RSL088-22

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

3 June 2024

HEARING DATE:

On the papers

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

  1. This proceeding is dismissed for want of jurisdiction

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – EXCLUSIVITY OF JURISDICTION OF TRIBUNAL – GENERALLY – where the applicant asserts a claim for unpaid rent and outgoings advancing such as a dispute by way of a Notice of Dispute – where the respondent did not respond to the Notice of Dispute, attend mediation, or file any documentation in the Tribunal after the dispute was referred to the Tribunal following mediation – where the question arises as to whether or not it is a dispute that falls within the Tribunal’s jurisdiction – where the material before the Tribunal fails to establish there was a dispute notwithstanding prima-facie it shows there was unpaid rent and outgoings

COVID-19 Emergency Response Act 2020 (Qld), s 23

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 5D, s 103(1)(b)(i)

Retail Shop Lease Amendment Act 2016 (Qld), s 57

Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 5, s 6, s 26

Retail Shop Leases Regulation 2006 (Qld), s 9, Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld), s 1588

To v Choi [2011] QSC 2

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

Overview

  1. [1]
    The applicant seeks relief in this Tribunal for the payment by the respondent of $21,086.69 in what it says is arrears in payment of rent and outgoings under a retail shop lease. On the material filed by the applicant in this proceeding, that rent arrears arose during the Covid-19 pandemic, it being the subject of rent relief afforded the respondent at that time but what is said to have subsequently been payable. It also seeks an order for payment of the filing fee of $358.00 it has incurred in commencing this proceeding.
  2. [2]
    Notwithstanding directions requiring him to have filed relevant material in this proceeding to the extent he may be defending the claim against him, the respondent did not file any material and thus effectively did not respond to the claim. In the absence of anything from the respondent, the Tribunal was left to decide the matter solely on the applicant’s material that was before it. But in doing so, whilst prima-facie the material showed that most likely there was unpaid rent, it did not show that there was any dispute about that fact. At its highest it could be said that the applicant’s material merely showed the rent was in arrears and the respondent simply was not paying it.
  3. [3]
    Firstly, as I explain in these reasons, there was doubt on the material filed that the lease in issue was a retail shop lease, such being the premise upon which the applicant advanced its case.
  4. [4]
    But moreover, as I also explain in these reasons, the applicant’s material was insufficient to show that there was a dispute and thus invoke this Tribunal’s jurisdiction to hear and determine the applicant’s claim as a dispute under the Retail Shop Leases Act 1994 (Qld).
  5. [5]
    For the reasons I give herein, the applicant failed in its efforts to obtain the relief it sought. It commenced this proceeding in a manner that does not invoke this Tribunal’s jurisdiction. Accordingly an order was given dismissing the proceeding for want of jurisdiction.

Relevant Facts and Circumstances

  1. [6]
    On the Tribunal record as it has been provided to me:
    1. on 20 January 2023, the applicant filed a document entitled ‘Statement of Evidence’, however whilst it is a document seemingly on its face prepared as a statement to be signed by a Director of the applicant, it is not executed in that matter and is merely signed as a document prepared and presented by the solicitors for the applicant. I thus refer to this as the ‘Applicant’s Submissions’.
    2. the respondent did not file any documentary material or otherwise contact the Tribunal in regard to that which he was directed to do, or this proceeding in general.
  2. [7]
    Thus, it is from that material I draw the following relevant facts and circumstances.
  3. [8]
    As from 1 October 2018, the respondent was a lessee of a property, namely 4/54 Sugar Road, Maroochydore, Queensland, from the applicant as lessor, for the whole of the premises leased. It was for the purposes of the lessee operating a ‘Gym/Fitness Centre’. Therein the rent was set at $2,333.33 per month plus GST, but rent free for the initial two months of the lease period. Outgoings were payable in addition to the rent. The lease period was for 3 years, thus expiring on 30 September 2021, but with an option for a further 3 years. (‘the Lease’)
  4. [9]
    On 26 March 2020, that is not long after the on-set of the Covid-19 pandemic, the respondent requested rent relief from the applicant. What then followed was an exchange of correspondence between the parties, and in turn between the applicant’s solicitor and the respondent in terms of a possible arrangement in that regard.
  5. [10]
    Ultimately, on 22 July 2020, the following agreement is said to have been reached between the parties, recorded by way of a series of e-mailed communications of 11 June 2020, 22 June 2020, and 22 July 2020:[1] (‘the Rent Relief Agreement’)
    1. A waiver of 50% of the rent payable for the period 28 March 2020 to 30 September 2020 (‘the Relief Period’);
    2. A deferral of the balance of the rent payable in the Relief Period, on the basis that:
      1. The deferred rent was to be repaid over a period of two years commencing 1 October 2020, by equal monthly instalments on the same date that future rent was payable; and
      2. No interest charges or other fees were payable in relation to the deferred rent (unless the respondent failed to comply with his repayment obligations in respect of the deferred rent in which case the terms of the Lease would apply); and
      3. Outgoings payable under the Lease were to be reduced on the same basis as the rent was reduced.
  6. [11]
    On 7 June 2021, the applicant sold the premises, and the respondent vacated it.[2]
  7. [12]
    On 4 November 2021, in a letter shown to have been sent from the applicant’s solicitor to the respondent, the following statement appeared following a recitation of the Rent Relief Agreement:[3]

From the period March 2020 to December 2020 and in June 2021 you either made reduced lease payments or no lease payment to our client.

There is currently $23,358.77 in outstanding lease (sic) and outgoings. …

…

  1. [13]
    What then followed that statement was a proposal by the applicant for repayment of this amount. As the Applicant’s Submissions state, there was no response from the respondent to that proposal, and the applicant then attempted to press its claim for the asserted arrears: [4] 
    1. via the Office of Fair Trading, but was unsuccessful in that regard being informed by the Office of Fair Trading that the issue was outside its jurisdiction; and
    2. subsequently via the Office of the Small  Business Commissioner, albeit once again unsuccessful, such that on 10 February 2022 the Commissioner dismissed the matter on the basis that it did not fall within the ambit of an eligible lease dispute under s 5 of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld).
  2. [14]
    On 15 March 2022, the applicant then filed a Notice of Dispute under the Retail Shop Leases Act 1994 (Qld) (‘RSLA’) in this Tribunal (‘the Notice of Dispute’). Therein the applicant stated that it sought payment of ‘rent arrears’ in the sum of $23,358.77 plus the cost of filing the Notice of Dispute.
  3. [15]
    On 17 June 2022, a mediation was conducted as is required under the RSLA. It is recorded in Tribunal record in this matter that the respondent did not appear at that mediation, and accordingly on 21 June 2022 the dispute was formally referred to this Tribunal as a proceeding in which the applicant’s claim for payment of rent was to be determined.[5]
  4. [16]
    Following that referral, a series of Directions were issued in this proceeding as to its future conduct. Such included the requirement for the parties to file their respective statements of evidence upon which they each wished to rely in terms of respectively pressing or defending the claim made. It was also directed therein that unless either party requests an oral hearing by 27 February 2023 the matter would be determined on the papers on the basis of the documents forming the Tribunal record.[6]
  5. [17]
    By a direction issued subsequently, the respondent was required to file and serve his response (if any) to the Notice of Dispute by 12 October 2023, and if he failed to do so that the matter would proceed to be determined on the papers.[7]
  6. [18]
    As noted in paragraph [6] herein, it was only the applicant that filed material. In the Applicant’s Submissions, it reduced its claim to be only $21,086.59.[8]
  7. [19]
    It is against that background that I considered and decided this proceeding on-the-papers, such being permissible under s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

The Issues

  1. [20]
    The applicant is effectively pressing a claim against the respondent for unpaid rent and outgoings, such a claim arising from what is asserted to have been the respondent’s failure to have paid rent and outgoings during the COVID-19 pandemic. It does so via a procedure dictated under the RSLA, seemingly thus asserting the lease is a retail shop lease.
  2. [21]
    Before getting to the substantive issue as to whether the applicant has shown an entitlement to an order that the respondent pays it that which it asserts is owing, an issue I will comment on briefly at the end of these reasons, there are two fundamental issues to be addressed, namely:
    1. whether the Lease is, at law, a retail shop lease; and
    2. if it is a retail shop lease, is the claim being pressed one which falls with the jurisdiction of this Tribunal under s 103 of the RSLA.
  3. [22]
    As I discuss it in the paragraphs that follow here, in my opinion the applicant has failed to show in its material that either of these questions can be answered in the affirmative, thus it has failed to meet the requisite threshold to establish that this Tribunal has jurisdiction to provide it with the relief it seeks. For this reason I dismissed the proceeding for want of jurisdiction.

The Relevant Law

Retail Shop Leases Act 1994 (Qld)

  1. [23]
    This Tribunal is given jurisdiction under s 103 of the RSLA, subject to limited exceptions, to hear and determine retail tenancy disputes. For present purposes two issues arise out of that, namely:
    1. Is the dispute a retail tenancy dispute ?; and
    2. If so, does it fall within any of those exceptions ?
  2. [24]
    To address the first of those issues, it was  necessary to consider relevant terms as they are defined in the RSLA, namely:
    1. A ‘retail tenancy dispute’ means any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.[9]
    2. A ‘retail shop lease’ is, subject to certain exceptions which do not apply here, a lease of a retail shop.[10]
    3. A ‘retail shop’ is premises that are situated in a retail shopping centre; or used wholly or predominantly for the carrying on of a retail business.[11]
    4. A ‘retail business’ is a business prescribed by regulation as a retail business,[12] namely being a business mentioned in the Schedule to the regulations or its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods and services mentioned in the Schedule, save only for wholesale sale of goods;[13]
    5. A ‘retail shopping centre’ is, as relevant to this proceeding, a cluster of premises having all of the following attributes (relevantly) – five or more of the premises are used wholly or predominantly for carrying on retail businesses; all the premises - are owned by the 1 person; or are located in one building; and the cluster of premises is promoted, or generally regarded, as constituting a shopping centre, shopping mall, shopping court, or shopping arcade.[14]
    6. A ‘lease’ for the purposes of the RSLA is an agreement under which a person gives or agrees to give to someone else for valuable consideration a right to occupy premises whether or not the right is – (a) an exclusive right to occupy the premises; or (b) for a term or by way of a period tenancy or tenancy at will.[15]

Consideration of the Applicant’s Material Filed

  1. [25]
    On the applicant’s material before me, I was unable to reach a finding with certainty that the Lease was, at law, a retail shop lease. This is so notwithstanding that it appears to be the common ground taken by the parties in their correspondence to the extent copies of it is included within the Applicant’s Submissions, and was also seemingly the opinion held by the mediator to whom the Notice of Dispute was first referred.
  2. [26]
    Firstly, there is nothing to show me that the premises the subject of the Lease are part of a retail shopping centre. In the absence of that information, at best it could be a premise used whole or predominately for the carrying on of a retail business. But even if that were so, the issue is then with the ‘permitted use’ as described in the Reference Schedule to the Lease document as a ‘Gym / Fitness Centre’. Such is not a description found within the list of ‘Businesses, goods and services’ as given in Schedule 1 to the Retail Shop Leases Regulation 2006 (Qld),[16] such that it would be considered to be a retail business as that term is used in the RSLA.
  3. [27]
    In my opinion, the closest the operation of a gym/fitness centre comes to being a retail business is in the circumstances where the activity of that business is wholly or predominantly, or is combination of, the sale, hire, or supply of goods and services, of ‘Miscellaneous retailing – exercise equipment’ as that term is found in Schedule 1 of those Regulations. But the applicant has simply not explained or otherwise provided material to show that such is the case. It might be the case that the premises is used as a traditional gym wherein boxing or muay-thai is the predominant activity with associated exercise areas, such which in my opinion would not fall within that definition.
  4. [28]
    For these reasons, I am not satisfied that the Lease is a ‘retail shop lease’. As such, the manner in which the applicant has commenced this proceeding is misguided and has failed to invoke this Tribunal’s jurisdiction.
  5. [29]
    I pause here to observe that this also appears to have been a conclusion reached, or at the very least unable to be reached in the affirmative, by the Authorised Officer of the Office of the Queensland Small Business Commissioner in response to the applicant’s earlier attempts to seek relief via that office. As stated in his e-mail communication to the applicant’s representative, its solicitor, and the respondent, he made this statement in reference to the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld):[17]

I have decided to dismiss the dispute notice under section 26(3)(b) on the grounds that I consider the dispute notice does not relate to an eligible lease dispute (section 26(4)(a)). The reason for my decision is that, despite numerous attempts by this office (via telephone and email from 21 January 2022 to 9 February 2022), the lessee has not provided sufficient evidence to verify that the notice meets the eligibility requirements of an affected lease dispute as defined under s.5 of the Regulation.

  1. [30]
    An ‘affected lease’ for the purposes of those Regulations is either ‘a retail shop lease, or a prescribed lease’, the latter being 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.[18] Given the applicant sought to subsequently proceed via this Tribunal by way of its Notice of Dispute on the basis that the Lease was a retail shop lease, having received this communication, and in particular given the reference therein to ‘numerous attempts’, the applicant and/or its solicitor at the very least should have been alert to the need to show, with certainty, that in this proceeding the Lease was a retail shop lease. As I have discussed, it did not do so.
  2. [31]
    However, if I am wrong about that, in my opinion there remains a jurisdictional barrier even if the Lease is a retail shop lease. That is because the relief the applicant seeks is in terms of a claim for unpaid rent, such which, whilst not responded to by the respondent, has seemingly been framed by the content of the applicant’s material as to being a disputed issue. But it may be that the respondent does not dispute that the unpaid rent is payable. It may simply be he is unable to pay it.
  3. [32]
    If that were so, it would simply leave the applicant in a position to seek relief to enforce what is in effect a contractual liability for payment to be made. Such is not something falling within the jurisdiction of this Tribunal under s 103 of the RSLA.
  4. [33]
    But proceeding on the basis that the absence of any response is sufficient to support an assertion that there is a dispute about what is payable, the applicant’s material does not demonstrate in any way as to what the basis of the dispute is. I return to this point a few paragraphs from here later in these reasons. Moreover, even if it was sufficient and thus the dispute is in effect one about a claim for rent arrears, the question remains as to whether it is a dispute that falls within the jurisdiction of this Tribunal.
  5. [34]
    It has sometimes been said that it would in in effect be a dispute ‘about the amount of rent payable’, such being expressly excluded from this Tribunal’s jurisdiction under s 103 (1)(b) of the RSLA. Such an interpretation seemingly comes from the historical premise for this provision. When the RSLA was originally enacted in 1994, the provision which is now s 103 was numbered s 109. It expressly provided for a prohibition on disputes about arrears of rent. As was stated in the Explanatory Notes to the Bill which was before the Parliament and which ultimately became the Act:

A Tribunal cannot hear a dispute about arrears of rent or the amount of rent or outgoings payable under a lease.

  1. [35]
    In June 2009, with the creation of this Tribunal, under s 1588 of the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld) s 109 was renumbered as s 103 with the prohibition on disputes about arrears of rent being retained as s 103(1)(b)(i). However in 2016, the next, and relevant, amendment was made, such occurring under s 57 of the Retail Shop Lease Amendment Act 2016 (Qld) whereby s 103(1)(b)(i) was removed to the extent it provided for a limitation on this Tribunal’s jurisdiction in relation to disputes about arrears of rent. By that amendment it permitted this Tribunal to hear and determine dispute about arrears.
  2. [36]
    But that being so, there must still be a dispute identified to invoke that jurisdiction. This is where the applicant’s case goes wrong. To the extent the applicant presses its case in this proceeding effectively as a claim for payment of arrears of rent, it is not of itself such as to constitute a ‘dispute’ about those arrears.
  3. [37]
    At best, what the applicant has done is effectively assert that the dispute is solely the fact that the rent is unpaid, and so it presses its claim for payment of unpaid rent. In my opinion this is an insufficient basis upon which the ‘dispute’ may properly be characterised for the purposes of s 103 of the RSLA. As Fryberg J observed in To v Choi [2011] QSC 2 at [17], a dispute brought before a court or tribunal is not to be identified solely by having regard to the relief sought.
  4. [38]
    For this sole reason, the applicant has not shown a proper and effective basis upon which it has invoked this Tribunal’s jurisdiction to obtain the relief it sought. It therefore follows that this proceeding must be dismissed for want of jurisdiction.

A General Observation

  1. [39]
    For completeness, I now return to the issue I mentioned in paragraph [21] herein that I said would do. Even if I am wrong about all of that which I have just discussed and the conclusions I have reached as noted therein, there is an overriding issue that would otherwise have been the basis for deciding the proceeding against the applicant. Critically, and in my opinion fatally to the applicant’s entitlement to the relief it seeks from this Tribunal initiated by the filing of the Notice of Dispute, is that the applicant has simply failed to prove its case to a sufficient certainty.
  2. [40]
    Its assertion as to rent and outgoings not being paid is bare of a fundamental piece of the necessary supporting evidence, namely a copy of the invoices issued for the charge of the rent and outgoings. Whilst it refers to ‘Invoices’ in paragraphs 11 to 14 of the Applicant’s Submissions, and the provides a tabulated summary of what is said to be the ‘invoices’ in paragraphs 15 therein, the applicant did not include a copy of any of the said invoice documents to show, with certainty, the amount said to have been charged and in turn unpaid. The only document the applicant provides in support of the allegation of rent being charged, is what is said to be a ‘copy of the Unpaid Rent Summary’ which appears to be a screen-shot of a summary report prepared on some form of account management software. That screen shot shows a list of invoice numbers and dates with corresponding amounts. It should not have been a difficult or challenging task to have compiled copies of those invoices and also provided evidence of them having been sent to the respondent. In the absence of same there is a want of evidence which would similarly then result in the applicant’s failure to obtain the relief it seeks.

Conclusion - Is the Applicant entitled to the relief it seeks ?

  1. [41]
    For all these reasons, the applicant’s attempts to press its claim for rent arrears by way of its Notice of Dispute under the RSLA filed in this Tribunal, and then have this Tribunal determine the claim in a proceeding following failure to resolve it in mediation, has not invoked the Tribunal’s jurisdiction.
  2. [42]
    Accordingly, the only proper outcome was that the proceeding be dismissed for want of jurisdiction. An order was made to that effect.

Footnotes

[1]  Applicant’s Submissions para’s 6 to 9.

[2]  Applicant’s Submissions para 16; See also a statement to that effect in a letter from the applicant’s solicitor to the Queensland Small Business Commissioner which appears at page 75 of the annexures to the Applicant’s Submissions, although therein stating the date as being 8 June 2021.In that regard, as I understand it, this brought the accrual of unpaid rent to an end so that a total arrears could be readily stated.

[3]  Annexure JYL-11 to the Applicant’s Submissions.

[4]  See Applicant’s Submissions para’s 17 to 23. As I understand it, although such is by inference only based on the material that is on the Tribunal Record, the applicant did so, or at least did the latter, seemingly intending to be consistent with the provisions of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) s 26, such having been enacted under the COVID-19 Emergency Response Act 2020 (Qld) s 23.

[5]  There is a formal referral on the file dated 17 June 2022 by way of a form entitled ‘Retail Shop Leases Act 1994 Section 63 Result of Mediation’. It is dated 17 June 2022 however on the Tribunal file the referral is recorded as having occurred on 21 June 2022. The reason stated therein is that is has been referred because “ a party to the dispute did not attend the mediation conference”. It is apparent that the mediator considered this dispute to be a retail shop lease and thus the dispute within this Tribunal’s jurisdiction. I return to this point in my discussion later in these reasons.

[6]  See directions of 16 December 2022, confirmed again on 16 January 2023.

[7]  See directions of 17 August 2023.

[8]  Applicant’s Submissions para 15.

[9]  RSLA Schedule.

[10]  RSLA s 5A.

[11]  RSLA s 5B.

[12]  RSLA s 5C.

[13] Retail Shop Leases Regulation 2006 (Qld) s 9 and Schedule.

[14]  RSLA s 5D.

[15]  RSLA Schedule.

[16]  As relevant to the Lease, that being the version current as at 1 July 2018.

[17]  See Annexure JYL-17 to the Applicant’s Submissions.

[18] Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) s 5 and s 6.

Close

Editorial Notes

  • Published Case Name:

    J&Y Latham Pty Ltd ATF v Curtis

  • Shortened Case Name:

    J&Y Latham Pty Ltd ATF v Curtis

  • MNC:

    [2024] QCAT 235

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    03 Jun 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
To v Choi [2011] QSC 2
2 citations
Jump To
Cite 1 - [2011] QSC 2
Cite 2 - [2011] QSC 2

Cases Citing

Case NameFull CitationFrequency
Healthy Life Choices Aust Pty Ltd v 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust [2025] QCAT 1372 citations
1

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