Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. MacKellar Investments Pty Ltd v G & B McRae Properties Pty Ltd - [2024] QCAT 276

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

MacKellar Investments Pty Ltd v G & B McRae Properties Pty Ltd[2024] QCAT 276

MacKellar Investments Pty Ltd v G & B McRae Properties Pty Ltd[2024] QCAT 276

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MacKellar Investments Pty Ltd v G & B McRae Properties Pty Ltd & Ors [2024] QCAT 276

PARTIES:

MacKellar Investments Pty Ltd

(applicant)

v

G & B McRae properties Pty Ltd

(first respondent)

Evans SP sippy downs pty ltd

(second respondent)

long sp sippy downs pty ltd

(third respondent)

APPLICATION NO/S:

RSL003-23

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

10 July 2024

HEARING DATE:

19 June 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

The application for miscellaneous matters filed 28 March 2023 by the second and third respondents and the application for miscellaneous matters filed 29 September 2023 by the first respondent seeking to strike out or dismiss the action brought against them are dismissed.

CATCHWORDS:

LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENT – where the 2nd and 3rd respondents as lessor leased retail shop premises in a complex to the applicant – where the complex was strata titled – where development of the complex occurred including car park – where the strata titled shop leased by the applicant was sold to the first respondent – where the applicant claimed trade losses associated with the development of the car park – where an easement in respect of the car park lot was granted to the body corporate – where the applicant commenced retail shop dispute proceedings in the Tribunal against the respondents – where the respondents brought applications to strike out or dismiss the retail shop dispute proceedings on the grounds the dispute did not concern a retail shop lease – where the applicant was found to have available potential causes of action under the retail shop lease legislation – where the applications to strike out or dismiss the proceedings were dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47

Retail Shop Leases Act 1994 (Qld) s 42, s 43(1)(c), s 46A

State of Queensland & Anor v Aigner [2013] QCATA 151

Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 143

Dey v Victorian Railways Commissioners (1949) HCA 1

General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125

Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394

Goldsmith v AMP Life Ltd [2020] QDC 140

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]
    The applicant entered into a lease of premises (‘the shop premises’) situated within one building in a complex of three, all owned by the 2nd and 3rd respondents (jointly ‘original lessor’). That was on 29 December 2017 (‘original lease’).
  2. [2]
    In May 2018 the original lessor attempted to sell the complex as a whole. Sometime after that, without a sale taking place, the complex was strata titled.
  3. [3]
    There was a right to strata title the complex, including the shop premises, acknowledged in the original lease. The applicant was given notice about the proposal to strata title the complex on 11 October 2018 and to that end was provided with a Deed of Surrender of the existing lease, a new lease (‘current lease’)  on similar terms as the original but with some changes, a new lessor disclosure statement (‘new disclosure notice’), a copy of the proposed Survey Plan and a copy of the draft First Community Management Statement.
  4. [4]
    The applicant was asked to return the documents duly executed within 14 days. The documents were signed by the applicant and returned as requested.
  5. [5]
    On 29 January 2019, the original lessor granted an easement over part of the complex (‘Lot 900’) to the proposed Body Corporate for its use as customer parking. Future Lot 900 was proposed to be developed by construction of a building and raised car park over the existing open air carpark there. Lot 900 was immediately adjacent to the shop premises.
  6. [6]
    The proposal about developing Lot 900 was referred to in both the new lessor disclosure statement and draft First Community Management Scheme provided to the applicant on 11 October 2018.
  7. [7]
    The new lease commenced on 4 February 2019 following registration of the Survey Plan and First Community Management Scheme.
  8. [8]
    The first respondent (‘new lessor’) purchased the shop premises from the original lessor on 21 February 2019.
  9. [9]
    Work commenced on Lot 900 created in the community titles scheme on or about 20 May 2022.
  10. [10]
    The applicant raised complaints in an application for mediation made to the Queensland Small Business Commissioner. The main dispute concerned the development work on Lot 900 adversely affecting the applicant’s business.
  11. [11]
    There were other minor issues as well: about work performed on the roof of the shop premises during business hours creating significant noise and disruption; that the roof had ongoing water leak problems; that additional keys had been requested but not provided.
  12. [12]
    It is unclear, from the Queensland Small Business Commissioner’s summary of the dispute at mediation, but the parking issue at least appears to encompass a claim made against all respondents.
  13. [13]
    The Commissioner has referred the dispute to the Tribunal.
  14. [14]
    The respondents have filed responses denying the claims of the applicant.
  15. [15]
    The original lessor (second and third respondents) filed an application to dismiss or strike out the applicant’s Retail Shop dispute application on 28 March 2023 pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The new lessor supports the application.
  16. [16]
    On 29 September 2023 an application to dismiss or strike out the application for a Retail Shop dispute was filed by the new lessor (the first respondent). That strike out application is supported by the original lessor.
  17. [17]
    Those two strike out applications are before me for determination.

Strike out or dismiss

  1. [18]
    It is appropriate to quote the words of Dixon J in Dey v Victorian Railways Commissioners (1949) HCA 1 concerning an application to dismiss proceedings based on grounds that they were an abuse of process, frivolous or vexatious:
  1. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.[1]
  1. [19]
    Barwick CJ in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 repeated Dixon J’s statement and went on to add:
  1. Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.[2]
  1. [20]
    Similarly in Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 143 Flanagan J said after citing both abovementioned cases said:
  1. [71]
    The proposition which emerges from these cases is that the Court must exercise “great care” if it exercises a discretion to terminate proceedings prior to trial, bearing in mind that the consequence is to deprive a party of the chance to prove his or her claim or defence at trial.[3]
  1. [21]
    Finally the following statement made in State of Queensland & Anor v Aigner [2013] QCATA 151 is apposite, given the voluminous material filed by the parties in the strike out proceedings:
  1. [46]
    The Tribunal’s role was not to decide the case on the evidence before it but, rather, to determine whether an arguable case, no matter how weak, is demonstrated so that a strike out is either warranted, or unwarranted.[4]
  1. [22]
    Here the parties have been directed to file and serve their general statements of evidence in the proceedings, and that appears to have been done though with little clear identification (or demarcation) of the issues for decision.

The application by the original lessor

  1. [23]
    The original lessor says the applicant’s key dispute about carparking does not concern a retail shop. Rather it concerns the applicant’s access to carparks which are common property of the scheme. The applicant has not been granted a licence or a lease over Lot 900 or the common property carpark, and therefore the Tribunal’s jurisdiction is not enlivened.
  2. [24]
    The issue raised by the applicant however concerns disruption to its business by reduction of parking facilities that were or should have been available for use by the applicant’s customers pursuant to the terms of both the original lease and the new lease.
  3. [25]
    The original lease commenced on 29 December 2017.
  4. [26]
    The original lessor granted an easement to the body corporate with respect to car parks on Lot 900 on 29 January 2019.
  5. [27]
    The new lease commenced on 4 February 2019.
  6. [28]
    The new lessor purchased the strata titled shop premises on 21 February 2019.
  7. [29]
    Covid restrictions lifted 18 April 2022. The applicant says good trade ensued with the restrictions lifted.
  8. [30]
    On or about 20 May 2022 builders arrived to commence work on the carpark area strata titled as Lot 900.  The applicant alleges there was no notice given about this and the number of carparks was subsequently considerably reduced to enable the development work to proceed. The applicant’s material is not entirely consistent or clear on car park numbers, but the solicitors for the original lessor wrote to the applicant on 2 September 2022 to say that at that time, during construction work, there were 71 available car parks.
  9. [31]
    The new lease disclosure statement identifies 90 car park spaces available for customers of the complex at the time of making the disclosure statement.
  10. [32]
    The applicant’s evidence is that during construction there was at most only 57 available parks to service the entire complex, and even car parks set aside for the disabled had been cordoned off.
  11. [33]
    The applicant’s claimed losses caused by business disturbance is $163,808.
  12. [34]
    Clause 13 of both the original lease and the current lease is entitled Landlord obligations and rights and by clause 13.1 entitles the applicant to occupy the shop premises without interference by or through the Landlord. Clause 13.3 states the car park is subject to the Landlord’s exclusive control and management and the applicant’s customers are entitled to park in the car park:

13.3(a)

The car park is subject to the landlord’s exclusive control and management. The tenant’s customers in the complex may use the carpark for parking motor vehicles.

13.3(b)

The tenant and the tenant’s employees and agents (excluding the tenant’s invitees) do not have the right to park in the car park. The landlord may prevent them from parking and discourage those who are not customers from parking in the car park.

(emphasis added)

  1. [35]
    The original lessor says it cannot be expected to shoulder responsibility for any problems associated with carparking because it handed over responsibility for that to the body corporate with the grant of the easement over Lot 900.
  2. [36]
    By clause 13.6, again common to both leases, the original lessor covenanted:

The landlord may subdivide (including by strata subdivision) the complex or grant easements or other rights over it or the premises unless this would have a substantial adverse effect on the tenant’s business.

  1. [37]
    In the new lessor disclosure statement the grant of easement to the body corporate was stated to be ‘to ensure the continuity of use of those car parks by customers’. The applicant would presumably make a case that that was misleading because continuity of use has not been the outcome. Rather, with the body corporate exercising control over parking in Lot 900, the result has been the applicant experiencing substantial adverse effects with respect to its business.
  2. [38]
    In support of that, and potentially raising the prospect of an additional cause of action under s 46A of the Retail Shop Leases Act 1994 (Qld) (‘the Act’), in an email from estate agents Colliers to the applicant dated 22 February 2023,[5] the agents said:

…

Impacts from the development – including car parking - the Community Titles Scheme that governs the complex provides rights for the developer to carry out works to further develop the undeveloped lots. These rights were designed to give the developer maximum flexibility and, amongst other things, prevent the lot owners (such as the landlord) from objecting to the works or doing anything that in any way hinders, prevents or delays such works.

  1. [39]
    The applicant could be expected to argue that the purposeful distancing of the original lessor from responsibility for parking on Lot 900 by handing that over to the body corporate constituted unconscionable conduct in connection with a retail shop lease, which behaviour is sanctioned by s 46A of the Act.
  2. [40]
    Generally, added to the mix, there is also the potential for the applicant to pursue a claim of breach of the express covenant guaranteeing the applicant quiet enjoyment of the shop premises under clause 13.1(a).
  3. [41]
    Apart from breach of the express covenants of the new lease, and any claim about unconscionable conduct, the applicant may also have available, arising from the same factual matrix, a claim for compensation based on breach of the terms taken to be implied into the lease by s 42 of the Act, specifically the circumstances referred to in s 43(1)(c):
  1. 43
    When compensation is payable by lessor—business disturbance
  1. (1)
    The lessor is liable to pay to the lessee reasonable compensation for loss or damage suffered by the lessee because the lessor, or a person acting under the lessor’s authority—
  1. ....
  1. (c)
    causes significant disruption to the lessee’s trading in the leased shop or does not take all reasonable steps to prevent or stop significant disruption within the lessor’s control;
  1. [42]
    The success of the abovementioned claims of course would depend on the applicant’s assertions coming up to proof with respect to the parking problems, the disruption to trade and the consequent claimed business losses. But that is a matter for hearing, not for me to decide in this application seeking summary disposal of the applicant’s case without hearing.
  2. [43]
    In Goldsmith v AMP Life Ltd [2020] QDC 140 (‘Goldsmith’) the tenant pursued claims relying on breach of express covenants for quiet enjoyment in the lease and also breach of the implied terms under s 43 based, amongst other things, on reduction of the applicant’s trade and profitability caused by a claimed reduction of 50% of available car parks at a shopping centre coupled with dust problems and general disturbance associated with renovation and development of the centre.
  3. [44]
    Goldsmith gave excellent analysis of the matters required to be proved in cases such as this, and the decision approved on appeal.[6]
  4. [45]
    I note the covenant in clause 13.6, not to subdivide the complex by strata subdivision or grant easements if that would have a substantial adverse effect on the tenant’s business, is far more precise and specific than the generic quiet enjoyment covenant pleaded (but not relied on given the available claim under s 43) in Goldsmith.
  5. [46]
    These aforesaid potential causes of action available to the applicant are appropriately to be tested at a hearing. They are within the Tribunal’s jurisdiction for retail shop lease disputes.
  6. [47]
    The original lessor’s application to strike out or dismiss the action on a summary basis is refused.

The application by the new lessor

  1. [48]
    The new disclosure notice, new lease and grant of easement to the body corporate predated the involvement of the new lessor.
  2. [49]
    There is no obvious claim available to the applicant against the new lessor pursuant to s 46A. Nor section 43.
  3. [50]
    There are however additional claims made by the applicant against the new lessor concerning the provision of keys, water entry through the roof and charges made for work which the applicant says is the responsibility of the new lessor. The new lessor claims these issues have been resolved. The applicant says not.
  4. [51]
    Whilst the Tribunal does not have jurisdiction over the amount of rent or the amount of outgoings payable under a retail shop lease,[7] it does have jurisdiction over arrears of rent and arrears of outgoings payable.[8]
  5. [52]
    There are retail shop dispute issues extant between the applicant and the new lessor. Given that, it is not appropriate to dismiss the application for Retail Shop dispute brought by the applicant against the new lessor with those issues remaining to be determined.

Conclusion

  1. [53]
    The application for miscellaneous matters filed 28 March 2023 by the second and third respondents and the application for miscellaneous matters filed 29 September 2023 by the first respondent seeking to strike out or dismiss the action brought against them are dismissed.

Footnotes

[1]Dey v Victorian Railways Commissioners (1949) HCA 1, [13]

[2]General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, [10]

[3]Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 143, [71]

[4]State of Queensland & Anor v Aigner [2013] QCATA 151, [42]

[5] Statement of Evidence Michael Polkinghorne dated 28 April 2023, attachment 1

[6]Goldsmith & Anor v AMP Life Ltd [2021] QCA 20

[7] the Act, s 103(1)(b)

[8]Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394, [59]

Close

Editorial Notes

  • Published Case Name:

    MacKellar Investments Pty Ltd v G & B McRae Properties Pty Ltd & Ors

  • Shortened Case Name:

    MacKellar Investments Pty Ltd v G & B McRae Properties Pty Ltd

  • MNC:

    [2024] QCAT 276

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    10 Jul 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
Chan v Macarthur Minerals Ltd [2019] QSC 143
3 citations
Jump To
Cite 1 - [2019] QSC 143
Cite 2 - [2019] QSC 143
Cite 3 - [2019] QSC 143
Dey v Victorian Railways Commissioners [1949] HCA 1
3 citations
Jump To
Cite 1 - [1949] HCA 1
Cite 2 - [1949] HCA 1
Cite 3 - [1949] HCA 1
Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394
2 citations
Jump To
Cite 1 - [2019] QCAT 394
Cite 2 - [2019] QCAT 394
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
3 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Cite 3 - (1964) 112 CLR 125
Goldsmith v AMP Life Limited(2021) 7 QR 113; [2021] QCA 20
1 citation
Jump To
Cite 1 - [2021] QCA 20
Goldsmith v AMP Life Ltd [2020] QDC 140
2 citations
Jump To
Cite 1 - [2020] QDC 140
Cite 2 - [2020] QDC 140
State of Queensland & Anor v Aigner [2013] QCATA 151
3 citations
Jump To
Cite 1 - [2013] QCATA 151
Cite 2 - [2013] QCATA 151
Cite 3 - [2013] QCATA 151

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.