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  4. Pastrami on Rye Pty Ltd (in liquidation) v P&MV Constructions Pty Ltd - [2024] QCAT 439

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Pastrami on Rye Pty Ltd (in liquidation) v P&MV Constructions Pty Ltd[2024] QCAT 439

Pastrami on Rye Pty Ltd (in liquidation) v P&MV Constructions Pty Ltd[2024] QCAT 439

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pastrami on Rye Pty Ltd (in liquidation) v P&MV Constructions Pty Ltd [2024] QCAT 439

PARTIES:

Pastrami on Rye Pty Ltd (in liquidation) aCn 625 238 431

(applicant)

v

P&MV Constructions Pty Ltd aCn 009 773 764

(respondent)

APPLICATION NO:

RSL061-23

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

8 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

  1. P&MV Constructions Pty Ltd must pay Pastrami on Rye Pty Ltd the amount of $23,822.36 within 30 days of the date of this decision.
  2. P&MV Constructions Pty Ltd must also pay Pastrami on Rye Pty Ltd the amount of $5,000.00 in costs within 30 days of the date of this decision.

CATCHWORDS:

LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENT – RETAIL AND COMMERCIAL TENACIES LEGISLATION – OTHER MATTERS – where tenant sought to obtain rent relief during COVID pandemic – whether the landlord granted a waiver or only deferral of rent – whether lease was an ‘affected lease’ under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld)

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – default position on costs under s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – factors on when the tribunal may make an order for costs in the interests of justice under s 102 of that Act – costs of one party unnecessarily disadvantaged by the vague and unsatisfactory evidence of another party – held: costs should be awarded to compensate the party put to disadvantage

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, Dictionary (the schedule to the Act)

Retail Shop Leases Act 1994 (Qld), s 5A, s 63, s 83, s 102, s 103

Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 3, s 5, s 11, s 14, s 15, s 44, the Dictionary (schedule 1)

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 406 ALR 632

Capsanis v Omoso Holdings Pty Ltd [2007] NSWADTAP 75

Commonwealth v Verwayen (1990) 170 CLR 394

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

OF Beenleigh Pty Ltd v Khalaf Management Pty Ltd [2024] QSC 96

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Wright v Hamilton Island Enterprises Ltd [2003] Q Conv R 54-588; [2003] QCA 36

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)

Applicant:

Patane Lawyers

Respondent:

Quinlan Miller & Treston

REASONS FOR DECISION

Background

  1. [1]
    This is a dispute between a former landlord, P&MV Constructions Pty Ltd (‘P&MV’) and its former tenant, Pastrami on Rye Pty Ltd (‘Pastrami’) about the rent correctly payable by Pastrami during the COVID era in 2020.[1]
  2. [2]
    Pastrami has made a claim that P&MV agreed to waive the rent for the months of February to July 2020 on a cafe that Pastrami operated as tenant under a lease from P&MV as landlord. As a result, Pastrami seeks orders for a refund of rental bond in the amount of $23,822.36 from the bond held by P&MV, and costs of the proceeding.[2] Alternatively, Pastrami contends that it is entitled to a reduction of the rent because of the effect of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (‘the COVID Regulation’).
  3. [3]
    For its part, P&MV contends that Pastrami remains indebted to it for a total amount of $9,910.97 for rent for April to July 2022, water charges and some legal fees due to assignment of the lease.
  4. [4]
    Both parties appear to accept that the Retail Shop Leases Act 1994 (Qld) (‘the Act’) applies to the lease.

Jurisdiction

  1. [5]
    Under s 103 of the Act, the Tribunal has jurisdiction to hear ‘retail tenancy disputes’ other than several categories of listed disputes which I will come to. The expression ‘retail tenancy dispute’ is defined in the Dictionary (the schedule) to the Act,  relevantly to mean:

any dispute under or about a retail shop lease.[3]

  1. [6]
    The parties appear to have attempted to resolve their dispute by mediation under part 8, division 2 of the Act, but unsuccessfully. The matter was referred to the Tribunal by the mediator concerned under s 63(2) of the Act, filed in the Tribunal on 9 November 2023.
  2. [7]
    Two matters of potential relevance are excluded from the Tribunal’s jurisdiction under s 103(1)(b), which is that the Tribunal does not have jurisdiction for a retail tenancy dispute:
  1.  about—
  1.  the amount of rent payable under a retail shop lease; or
  1.  the amount of a lessor’s outgoings under a retail shop lease.

(added emphasis)

  1. [8]
    However, under s 103(2), the Tribunal does have jurisdiction to hear a retail tenancy dispute about:
  1.  the procedure for the determination of rent payable under a retail shop lease, but not the actual amount of the rent; or
  1.  the basis on which the lessor’s outgoings are payable by, and the procedure for charging the lessor’s outgoings to a lessee under a  retail shop lease, but not the actual amount of the outgoings.

(added emphasis)

  1. [9]
    Paragraphs (a) and (b) of s 103(2) are reflective, in the same order, of matters about which the Tribunal does have jurisdiction despite the exception to jurisdiction in s 103(1)(b)(i) and (ii). In other words, despite s 103(1)(b) excluding the jurisdiction of the Tribunal about the ‘amount of rent’ or the ‘amount of a lessor’s outgoings’, the Tribunal does have jurisdiction to hear a retail tenancy dispute about the procedure,  or the basis, for those matters, respectively. An example could be the lessor (landlord)  not complying with the procedure in a lease for determination of rent payable by the tenant.
  2. [10]
    Further than that, the Tribunal has determined that the language of s 103(1)(b) does not mean that the Tribunal lacks jurisdiction to determine rent arrears and outgoings arrears. In Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd,[4] the Tribunal reviewed the legislative history of s 103.[5] The Tribunal considered that the expression ‘the amount of rent payable’ in s 103(1)(b) is a separate concept to ‘the arrears of rent’ and that the former term indicated that Parliament was referring to a concept other than arrears, so that, for example, the expression ‘the amount of rent payable’ would refer to the amount (or, I would add, the rate) of the monthly rental liability.
  3. [11]
    In other words, the Tribunal has jurisdiction to determine the quantum of rent legally payable in accordance with the rate at which the rent is payable, but not to determine the amount of the rate of the rent payable, for example, monthly or weekly. The Act leaves to the parties, the striking of the bargain about the initial rate for the rent payable.
  4. [12]
    The Tribunal’s determination on this point in Fu Manchu is, in my opinion, reinforced by the structure of s 103, and especially the statement in s 103(2) that the Tribunal has jurisdiction, taking the example of paragraph (a), to hear a retail tenancy dispute about the procedure for the determination of rent,[6] but not about the rate of the rent agreed between the parties. That is consistent with my interpretation that the striking of the bargain between the parties for the rate of the rent is left to the parties.
  5. [13]
    The claim by P&MV is for arrears of rent, whilst the claim by Pastrami is to oppose that claim, and to contend that an amount of rent is not payable, or in arrears, and is payable by P&MV. I hold that the Tribunal has jurisdiction to determine these questions. No party has contended otherwise.
  6. [14]
    The orders which the Tribunal may make for a retail tenancy dispute are set out in       s 83 of the Act. Section 83(1) provides that the Tribunal may make:

… the orders, including declaratory orders, QCAT considers to be just to resolve a retail tenancy dispute.

  1. [15]
    Section 83(2) gives examples of the orders that the Tribunal may make, without limiting the generality of s 83(1), relevantly to the issues in this case:
  1.  an order for a party to the dispute to do, or not to do, anything;
  1.  an order requiring a party to the dispute to pay an amount (including an amount of compensation) to a specified person;
  1.  an order that a party to the dispute is not required to pay an amount to a specified person.

The issues in the case and the position of the parties

  1. [16]
    Summarising the submissions made by the parties, the issues in this case are:
    1. what quantum of rent is payable for the period of 19 February 2020 to 18 July 2020 (‘the Relevant Period’) and whether any amount in respect of that period is payable to Pastrami from the bond amount held by P&MV;
    2. whether the COVID Regulation applies to reduce the rent which Pastrami would otherwise be obliged to pay.
  2. [17]
    Pastrami says that P&MV, through its discussion with Pastrami in early 2020, communicated with Pastrami in such a way as to have the legal effect of P&MV waiving the rent otherwise payable for the Relevant Period. Further to that, and in the alternative, Pastrami says that the effect of the COVID Regulation was to reduce the rent which Pastrami was otherwise obliged to pay by 50%.
  3. [18]
    For its part, P&MV says that it did not, by its communications, agree to waive the rent payable for the Relevant Period, but only to defer payment of the rent. On the second issue, P&MV contends that the COVID Regulation does not apply, and so there should be no reduction of the rent.

Common ground matters

  1. [19]
    There is no dispute about the amount of the bond held by P&MV, which is $33,733.33. Similarly, there is no dispute about the rate for the rent, which was $8,433.33 per month. 
  2. [20]
    Also, Pastrami does not deny that it owes P&MV for the following items:

Invoice 1149 for outstanding rent for the period 19/04/22 to 18/07/22

$5,981.72

Water charges and trade waste charges for the period 6/04/22 to 4/7/22

$957.75

Legal costs for assignment of lease

$2,971.50

Total

$9,910.97

  1. [21]
    There is a difference in approach between the parties about the effect of this total. Pastrami says that this total should be deducted from the bond payable to it, leaving a total of $23,822.36 payable to Pastrami out of the bond. On the other hand, P&MV say that it is entitled to retain the entirety of the bond, and that Pastrami owes the total of $9,910.97 to it as an outstanding debt.
  2. [22]
    The highest amount that one of the parties says it is owed by the other, is therefore $23,822.36. That amount is less than the ‘prescribed amount’ of $25,000 in the Dictionary (the schedule of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)) (‘the QCAT Act’) which means that the Tribunal may for the dispute be constituted by a single legally qualified member.[7]
  3. [23]
    There is also no dispute about how the lease between the parties came to an end. In or about May 2022, Pastrami sold its business to a third party. Pastrami and P&MV entered into a deed of covenant assigning Pastrami’s interest in the lease to the incoming purchaser with effect from 27 June 2022, or such other date agreed to by the parties. Pastrami agrees that it must pay the amount of $2,971.50 to P&MV for the legal costs for the assignment of the lease, which is one of the items described in the table above.
  4. [24]
    On or about 18 July 2022, the sale of Pastrami’s business was completed and Pastrami ceased trading. Pastrami’s interest in the lease was assigned to the incoming purchaser.
  5. [25]
    Pastrami was wound up in insolvency on 20 July 2022, and Chad Robert Rapsey was appointed as liquidator of Pastrami. In an affidavit by Mr Rapsey filed in the Tribunal on 18 January 2024, following his appointment as liquidator, he caused inquiries to be made about refund of the balance of the bond amount to Pastrami.
  6. [26]
    In or about August 2022, P&MV provided tax invoice number 1084 for four months’ ‘deferred COVID rent relief’ in the amount of $33,733.32 being rent for the period February 2020, and April 2020-June 2020 (inclusive) and to deduct that amount from the bond.[8] That event appears to have prompted the dispute about whether there was an agreement that the rent for those months be waived by P&MV, or merely deferred. If the rent was merely deferred, that would mean that it is still payable by Pastrami, but only not when the rent was otherwise payable.

Payment of rent for February 2020

  1. [27]
    Before considering whether rent was waived for the period of the months in 2020, when Pastrami says rent was waived by P&MV, it is first necessary to determine a contention on behalf of Pastrami that it had paid the rent for the period from 19 February 2020 to 18 March 2020, which was invoiced to Pastrami by P&MV in tax invoice 1035.[9]
  2. [28]
    Tax invoice 1035 is attached to the first statement of Margaret Noonan Reed (who had been the sole director and shareholder of Pastrami) filed on 7 May 2024, as attachment MNR-17. It records an invoice for monthly rent for the period between   19 February 2000 and 18 March 2020 in the amount of $8,433.33.
  3. [29]
    Ms Reed states that on or about 6 April 2020, she caused $500 to be paid from Pastrami’s bank account in part payment of that invoice.[10] She attaches, as MNR-18 and MNR-19, banking records which show that she had paid the amount of $500 to P&MV.
  4. [30]
    She then says that on or about 28 June 2020 she caused $7,933.33 to be paid from her bank account to P&MV in satisfaction of the outstanding balance of invoice 1035. She attached to her statement as MNR-20 and MNR-21, banking records which show payment of that amount from Pastrami’s accounts to P&MV on 28 and 29 June 2020, respectively, with an effective date of payment of 28 June 2020. Simple mathematical addition of those two amounts comes to $8,433.33, which is the amount invoiced for that month.
  5. [31]
    P&MV filed statements in response to the statements filed by Pastrami, consisting of two statements by Mr Anton Vidakovic, dated 5 March 2024 (‘first statement’) and 22 May 2024 (‘second statement’). Mr Vidakovic is a director of P&MV. However, he makes no specific response in those statements to the evidence of Ms Reed that the rent for the period between 19 February 2020 and 18 March 2020 had been paid. 
  6. [32]
    There is a submission made in the written submissions by P&MV filed on 9 July 2024 that the rent under invoice 1035 still remained owing by Pastrami to P&MV. However, no evidence is cited in support of that submission.
  7. [33]
    In my view, the best evidence on the question of whether rent payable under invoice 1035 has been paid or not is the evidence of Ms Reed referred to above, supported as it is by bank statements. I find that the rent under invoice 1035 has been paid by Pastrami.

Was the rent waived or deferred?

  1. [34]
    There is both a factual and legal dimension to this question. It is first necessary that I arrive at a factual finding on whether P&MV agreed to waive the rent, or merely defer it.
  2. [35]
    There appears to be common ground that the first action on whether there was an agreement for waiver, or merely deferral of the rent, was an email that Mr Emanuel (Manny) Rosenberg sent to Mr Vidakovic dated 24 March 2020. That was one day after the nationally-announced general shutdown took effect following the declaration of the COVID pandemic in Australia.
  3. [36]
    Ms Reed says that Mr Rosenberg is her husband and worked with her in Pastrami’s business, in operating a cafe delicatessen business under the name ‘Reuben’s Deli’. Her first statement says that Mr Rosenberg helped in tasks in the day-to-day running of the business of a cafe delicatessen. However, Ms Reed also says that Mr Rosenberg was not a director of Pastrami and did not have any responsibilities concerning communicating with creditors, paying invoices or handling payroll.
  4. [37]
    Ms Reed says that she caused Mr Rosenberg to send an email dated 24 March 2020 to Mr Vidakovic about the possibility of Pastrami being given rent relief under the lease. She attached a copy of that email to her first statement marked MNR-2, with the signature block ‘Manny & Peggy Rosenberg Reuben’s Deli & Bar’. The email initially reflects on actions that they had taken to continue to trade, apparently in the wake of the announced COVID shutdown. On the subject of rent for the premises, the email states:

We are hoping we can also see a deferment in the rent, possibly six months. Lets [sic] try and work on a solution to all this. We want to remain here and develop a thriving business.

  1. [38]
    I pause to note that the request made in that email is to defer rent, rather than to request waiver of it. However, Ms Reed says that she did not receive a response to that request from P&MV.[11] That is not contested in the evidence provided by P&MV, in the form of the two statements made by Mr Vidakovic and filed in the Tribunal.[12]
  2. [39]
    The next communication between the parties was an email which Ms Reed says she sent to Mr Vidakovic on or about 6 April 2020. The email refers to the COVID restrictions, and says that Pastrami was applying for, and awaiting word on, financial assistance. All the email says about rent is that Pastrami had made a ‘small downpayment’ of $500 towards the February rent invoice 1035, which I have discussed above.
  3. [40]
    Ms Reed says in her first statement that P&MV did not respond to the Pastrami request for rent relief until on or about 18 June 2020 when she received an email[13] from Mr Vidakovic stating as follows:

Hi Manny & Peggy[14]

In reference to the outstanding rent for March/ April 2020 $7933.33

We would like the remaining amount paid for this month as early as possible.

We will grant a rent free period for the COVID-19 for April, May and June 2020, but from July 2020 the rent will return to the normal amount of $8433.33 per month payable on the 18th.

  1. [41]
    I pause there to make the following observations about that email. First, Mr Vidakovic’s email does not include, as a chain of emails, either the first email on the subject of rent, dated 24 March 2020 from Pastrami, or the email from Ms Reed dated 6 April 2020. There is no reference in Mr Vidakovic’s email to either of those earlier emails. His email is distant in time from those earlier emails by almost three months in the instance of the 24 March email, and more than two months in the instance of the 6 April 2020 email.
  2. [42]
    Second, there is no response on behalf of P&MV in terms expressly about a deferral of rent. Third, in contrast to a deferral of rent, there is a request or requirement that the amount of $7,933.33 be paid as soon as possible. That is the amount that I have discussed above as invoiced for the period between 19 February 2000 and 18 March 2020, and which I have concluded was paid by Pastrami on 28 June 2020, apparently in response to the email from Mr Vidakovic dated 18 June 2020.
  3. [43]
    Fourth, Mr Vidakovic’s email says that P&MV would grant a ‘rent free period for the COVID 19 for April, May and June 2020’. In the language of that sentence, there is a contrast between the ‘normal amount’ of rent from July 2020, and treatment for April, May and June 2020, about which he says P&MV will grant a ‘rent free’ period. In other words, the contrast drawn in that sentence is between ‘full rent’ and ‘rent free’. The language of the sentence is not in terms of a deferral of the rent for April, May and June 2020.  
  4. [44]
    Document MNR-4 contains an email response by Mr Rosenberg about the rent owing of $7,933.33, that ‘We will get on to the rent owing of $7933.33 immediately’, which Pastrami did, by paying the rent with an effective date of 28 June 2020 as I have discussed above.
  5. [45]
    Ms Reed states[15] that other than the emails discussed above, she did not have any communications (either verbally or in writing) with Mr Vidakovic (or any other person) on behalf of P&MV about Pastrami being relieved from an obligation to pay rent under the lease for COVID-19.
  6. [46]
    Mr Vidakovic responds to the evidence of Ms Reed about the rent in his first statement.[16] He says that he agreed to Pastrami’s request for a deferral of rent that was otherwise owed, which was for a three-month period, specifically a deferral of the rent owed during April, May and June 2020. He says that the agreement by P&MV to the deferral that was requested was not an agreement to waive the rent payable or to provide a rent-free period to Pastrami, but rather agreeing to the request for deferred payment of rent that had been made.
  7. [47]
    He goes on to say that:

In discussions held between myself and Mr and Mrs Reed, on behalf of [Pastrami], I confirmed that a deferral of rent was granted, however it remained that [Pastrami] would still need to pay the deferred rent to [P&MV].

  1. [48]
    Accordingly, the battle lines are drawn on this issue. Pastrami says that the email from Mr Vidakovic dated 18 June 2020 amounted to him granting a ‘rent free’ period for the three months concerned. Mr Vidakovic says that the email only amounted to him granting a deferral of rent in response to the earlier request by Pastrami.
  2. [49]
    In determining the factual and legal consequences of the email dated 18 June 2020, I consider that I am I able to take into account other factual circumstances which may objectively reflect the intentions and actions of the parties at the time.
  3. [50]
    First, in response to the statement by Mr Vidakovic that there were ‘discussions held between myself and Mr and Mrs Reed’ about the rent,[17] Ms Reed said[18] that she did not have any such discussions with Mr Vidakovic and that she is not aware of any such discussion between Mr Vidakovic and Mr Rosenberg. She goes on to say in her first statement that at no time did Mr Vidakovic (or any other person) on behalf of P&MV say to her, either verbally or in writing, words to the effect that the rent relief given to Pastrami for the relevant months was a deferral or that rent would still need to be paid by Pastrami for those periods.
  4. [51]
    Specifically in response to paragraph 8 of Mr Vidakovic’s first statement, Mr Rosenberg says in his statement that no such conversation or other form of communication occurred between himself, Ms Reed and Mr Vidakovic about Pastrami ‘being required to pay the rent free period granted by P&MV for COVID-19.’[19]
  5. [52]
    Mr Vidakovic responds to what Ms Reed and Mr Rosenberg said in their statements about other discussions between him and Ms Reed and Mr Rosenberg in Mr Vidakovic’s second statement.[20] Referring to paragraph 8 of his first statement, he says that he would clarify that paragraph to state that the discussion was held with    Mr Rosenberg, with whom he said he had previous dealings on behalf of Pastrami, and I infer from what Mr Vidakovic says, rather than Ms Reed.
  6. [53]
    He seeks to demonstrate that by reference to emails between him and Mr Rosenberg going back to March 2019 at the commencement of the lease. Mr Vidakovic then makes the quizzical statement[21] that:

If Mr Rosenberg did not pass on the content of all of the discussions I held with him regarding the lease and the leased property, then that is a matter of which I am unaware, though I had the reasonable expectation that Mr Rosenberg would have informed Ms Reed of these discussions.

  1. [54]
    Mr Vidakovic does not go on to say what discussions he had with Mr Rosenberg about the waiver or deferral of rent, about the subject matter of those discussions, the date on when they occurred, or indeed, anything else at all about those discussions.
  2. [55]
    Mr Vidakovic’s evidence on this point is entirely unsatisfactory. He seeks to raise the spectre of some discussions he says he had with Mr Rosenberg, but suggests that        Mr Rosenberg did not pass the content of those discussions on to Ms Reed, whilst at the same time saying nothing at all about the content of those discussions. 
  3. [56]
    To my mind, this lowers the credibility of Mr Vidakovic’s evidence, certainly on the question of whether his actions amounted to waiver of rent or merely deferral. Where there is any conflict in the evidence by way of statement not otherwise supported by a document, I prefer the evidence of Ms Reed and Mr Rosenberg.
  4. [57]
    In response to the quizzical evidence of Mr Vidakovic about discussions he alleged to have occurred between himself and Mr Rosenberg, presumably about the rent for the relevant months in 2020 being deferred, instead of waived, Ms Reed responds in her second statement.[22]
  5. [58]
    In contradistinction to what Mr Vidakovic says about discussions on the subject of the rent for the relevant months in 2020 being between himself and Mr Rosenberg, and Mr Vidakovic’s belief that ‘most difficult discussions with respect to the leased premises were held with Mr Rosenberg rather than Ms Reed’, Ms Reed says that Mr Vidakovic regularly communicated with her by text message and email about rent owing under the lease. She attaches to her second statement, as MNR-22, copies of emails and text messages which suggest that this is the case.
  6. [59]
    Included in those emails are requests by Mr Vidakovic in June, September and November 2021 for payment of rent then otherwise overdue by Pastrami in respect of rent for those months. As Ms Reed points out in her second statement, those emails and text messages are silent about any requirement for Pastrami to pay or repay rent under the lease for the months in question of April-June for the year before, 2020.
  7. [60]
    Ms Reed then says that circumstantially, the allegations by Mr Vidakovic regarding the discussions and repayment of rent are not capable of being true. She says that from the date of receipt of the email dated 18 June 2020 onwards, any requirement for Pastrami to pay or repay rent under the lease for the months of April-June 2020 was never brought up again ‘and that was the end of the matter’. She says:

[P&MV] did not discuss it again, did not ask for it, did not demand it, did not pursue it and did not talk about it or bring it up again. If the allegations [referred to by Mr Vidakovic about discussions between himself and Mr Rosenberg] were true, then [P&MV] would have demanded those unpaid amounts soon thereafter, however, it was never raised again until after liquidation.

  1. [61]
    In my opinion, what Ms Reed says here has the ring of truth about it regarding whether Mr Vidakovic had intended waiver or instead mere deferral of the rent for the relevant months in 2020. The emails from Mr Vidakovic included in MNR-22 show Mr Vidakovic to be assiduous in following up on overdue rent. Consistently with that approach, in my opinion, if Mr Vidakovic had only intended for the rent for the relevant months in 2020 to be deferred, he would more likely have followed up at some time after those months, and after the tightest stringencies of COVID lockdown had been lessened, at least within Queensland’s borders, or the very least, to seek repayment of rent for the relevant months by way of instalments.
  2. [62]
    Ms Reed’s evidence that P&MV did not raise the question of rent for the relevant months of 2020 until after Pastrami went into liquidation is verified by the affidavit of Mr Rapsey.[23]
  3. [63]
    Being aware of the bond paid for the lease, Mr Rapsey says that after he was appointed liquidator, he caused a Mr Dana Cook, an Executive Analyst from his firm to contact Mr Vidakovic about the refund of the balance of the bond to Pastrami.[24]
  4. [64]
    Mr Rapsey goes on to depose that on or about 12 August 2022, Mr Cook had a telephone conversation with Mr Vidakovic during which Mr Vidakovic said to Mr Cook, words to the effect, relevantly that:
    1. the balance of the bond amount to be refunded to Pastrami was approximately $20,000; and
    2. Mr Vidakovic was happy to transfer $10,000 of the bond amount to Pastrami the following week and the remaining balance to Pastrami after deduction of rent arrears and other costs.
  5. [65]
    Following that, there appears to have been a change of heart on the part of Mr Vidakovic. Mr Rapsey’s affidavit continues[25] that on or about 22 August 2022, Mr Vidakovic sent an email to Mr Cook stating that P&MV:

... have discovered that there was deferred Covid Rent Relief back in 2020 applied to Pastrami which needs to be recovered from the bond.

  1. [66]
    Mr Vidakovic’s email goes on to attach an invoice for $33,733.32 stated to be for a period of four months. That amount is in any event incorrect, given my findings that the rent for the month of February-March had already been paid, in 2020.
  2. [67]
    On 22 August 2022, Mr Newell from Mr Rapsey’s firm sent an email to Mr Vidakovic asking for additional information about the suggested deferral of rent. Mr Newell asked for a copy of all correspondence between P&MV and Pastrami in respect of the alleged rent relief. Mr Vidakovic responded on the same day, saying in response:

No written correspondence, they stopped paying rent for this period, and it was understood verbally that this rent would be paid back in due course.[26]

  1. [68]
    That version is consistent with part of the position that Mr Vidakovic presently adopts for this proceeding, that there were conversations with someone on the part of Pastrami on the question, but inconsistent with another part of the present position, that the email dated 18 June 2020 was the decisive correspondence, albeit in the context that P&MV says that email followed on written correspondence, namely an earlier email dated 24 March 2020 from Pastrami.
  2. [69]
    Mr Rapsey comments on tax invoices raised by P&MV for the rent for the relevant months of 2020, and says they were not raised, or bond applied by P&MV in purported satisfaction of those invoices, until a date on or after 12 August 2022, when Mr Rapsey’s firm started making inquiries of Mr Vidakovic about refund of the rental bond.
  3. [70]
    Mr Rapseys’ firm also made inquiries of Ms Reed, and the correspondence provided from Ms Reed is referred to in paragraphs 73-79 of his affidavit. Included in those paragraphs is correspondence from Mr Vidakovic dated 21 July 2022, to the effect that he would transfer funds to Pastrami in remittance of the rental bond. That is consistent with an understanding on the part of Mr Vidakovic that there was indeed a waiver of rent for the relevant months of 2020.

Conclusion on whether there was a waiver or deferral of rent in 2020

  1. [71]
    In my opinion, the best view of the evidence is that Mr Vidakovic, on behalf of P&MV, waived the rent for the months of April-June (inclusive) of 2020. The content of the email from Mr Vidakovic dated 18 June 2020 stating that P&MV will grant a ‘rent free’ period for April, May and June 2020 is most consistent with that. The document is also consistent with waiver rather than deferral of the rent because it also says that ‘from July 2020 the rent will return to the normal amount of $8433.33 per month payable on the 18th’. That is, after agreeing to a rent-free period, from July onwards, the full rent would be payable.
  2. [72]
    In my opinion, if Mr Vidakovic had intended for there only to be a deferral of the rent for the relevant months, he would have stated in that email when the deferred rent was to be paid by Pastrami. That approach would have been consistent with him assiduously following up late payment of rent in other cases. There is nothing to that effect in the email dated 18 June 2020.
  3. [73]
    All of the conduct by Mr Vidakovic and P&MV after 18 June 2020 is consistent with a waiver of rent, rather than deferral, until August 2022, when the liquidator started making inquiries about refund of the rental bond. Then, Mr Vidakovic's language changed to one of deferral.
  4. [74]
    I do not accept the evidence of Mr Vidakovic that there was some oral discussion with anyone representing, or on behalf of, Pastrami after 18 June 2020, that the rent was only to be deferred.
  5. [75]
    The only objective evidence that P&MV can refer to in support of there being a deferral is the initial inquiry by Pastrami in the email dated 24 March 2020, which states that Pastrami was hoping to see a deferment of the rent, possibly for six months. Ultimately there was no meeting of the minds about that, because even on the best case for P&MV, it was only offering deferral for three months.
  6. [76]
    However, in my view, the email from Mr Vidakovic dated 18 June 2020 was not in direct response to the email from Pastrami dated 24 March 2020. First, there was no reference to that earlier email in the email dated 18 June 2020. Instead, it is more likely a response to what is referred to in the first paragraph of that email, namely outstanding rent for March/April 2020. Second, the email dated 18 June 2020 was almost three months after the initial email from Pastrami. In my view, all that would have remained, of the effect of the email from Pastrami dated 24 March 2020, was that there was some form of request for relief from the payment of rent.
  7. [77]
    There is a further reason why Mr Vidakovic’s grant of a ‘rent free’ period made in his email dated 18 June 2020 is not in direct response to the earlier emails from Pastrami. That is, by 18 June 2020, the COVID Regulation had commenced, on 28 May 2020.  As I will analyse below, one of the effects of that Regulation was that a landlord of a retail shop lease that is an ‘affected lease’ under that Regulation was obliged, if the relevant statutory criteria applied, to provide a rent reduction of not less than 50% of the rent in the form of a waiver, not a deferral of the rent, for the six month period between 29 March-30 September 2020.
  8. [78]
    A prudent landlord would have been aware of their responsibilities under the Regulation to reduce the rent under the Regulation.[27] On any view, what Mr Vidakovic was granting to Pastrami, after commencement of the COVID Regulation, was a three month benefit out of the six months for the period March-September 2020, marked out by the Regulation as the period of time under which a tenant of an affected lease was entitled to a benefit in terms of reduction of rent. In my view, for reasons set out in the analysis of application of the COVID Regulation below in these reasons, what Mr Vidakovic was doing, through his email of 18 June 2020, was no more than what he was obliged to do under that Regulation, that is, to grant a 50% reduction of rent under the lease.
  9. [79]
    In my opinion, the evidence supports a finding that P&MV granted, in the terms of the email dated 18 June 2020 a ‘rent free’ period for April-June 2020, not deferral for that rent. Given that finding, it is now necessary for me to consider the legal effect of the grant of a rent-free period for the lease.

Legal effect of the grant of a rent-free period

  1. [80]
    In its written submissions filed on 1 July 2024, Pastrami submits that P&MV is estopped from revoking the waiver of the rent for the relevant months in 2020.
  2. [81]
    Pastrami submits that waiver, in the sense of a promissory or equitable estoppel, restrains the enforcement of existing legal rights inconsistent with a promise. Here, Pastrami applies that principle to P&MV not being able to enforce its rights to payment of the rent for the relevant months, which would otherwise be the legal obligation of Pastrami. The waiver may occur where a party, by words or conduct, is disentitled to enforce a right conferred by a contract where it would be unfair, unconscionable, or inequitable for it to insist on that right, and there is reasonable reliance on those words or that conduct by the person who receives the promise, to its detriment.[28]
  3. [82]
    As to the meaning of a waiver, Pastrami cites in support a decision of the Queensland Supreme Court in OF Beenleigh Pty Ltd v Khalaf Management Pty Ltd,[29] which is to the effect that as a general proposition, waiver is an intentional act done with knowledge in which a person abandons a right by acting in a manner inconsistent with that right, and amounts to a unilateral release or abandonment of a right that is operative, even in the absence of any reliance. The waiver must be clear and unequivocal, and is generally binding on the waiving party unless revoked with reasonable notice.
  4. [83]
    On the requirement for detriment on the part of the person who receives the promise, Pastrami submits[30] that detriment is not limited to monetary loss but concerns the consequences of disadvantage to a person who has been induced to change his or her position if the state of affairs brought about by the promise was to be altered by the reversal of the assumption on which the change of position occurred.
  5. [84]
    Referring to the time difference between the grant of a rent-free period made on 18 June 2020, and the change of position on the part of P&MV in August 2022, Pastrami submitted that reliance upon an assumption for an extended period of time may give rise to an estoppel justifying a court in requiring the assumption to be made good.[31]
  6. [85]
    Consideration, in the present context, which would, for example, amount to Pastrami conferring some form of benefit on P&MV in return for the waiver of rent, is not required for an estoppel to take effect[32] and estoppel may prevail over the terms of a written agreement.[33]
  7. [86]
    Finally on the relevant legal principles, Pastrami referred to a decision of the Administrative Decisions Tribunal Appeal Panel of New South Wales in Capsanis v Omoso Holdings Pty Ltd,[34] where the Appeal Panel upheld an agreement to waive rent payable under a retail lease as an example of waiver by estoppel.
  8. [87]
    In the written submissions filed by P&MV, it does not refute the legal principles relied upon by Pastrami. Instead, it puts weight on a submission that P&MV, through Mr Vidakovic, did not make any waiver of rent, but only offered to defer the rent.
  9. [88]
    In terms of detrimental reliance on the waiver of rent, Pastrami submitted that it relied upon the waiver of the rent for more than two years. Pastrami did not seek to negotiate other rent relief from P&MV, under the COVID Regulation, as Pastrami submits that it was entitled to do, because it assumed it had already been given a three-month waiver of rent. Pastrami submits that the entirety of the evidence makes clear that during the relevant period, Pastrami was taking active steps to apply for the financial relief and incentives available because of the COVID pandemic, for which it qualified.
  10. [89]
    That is a reference to the email from Pastrami to Mr Vidakovic dated 24 March 2020 where Pastrami said that it was applying for assistance the government was suggesting at the time. The email also states that Pastrami had received relief for the next six months from its bank business loan and personal mortgage. In the further email from Ms Reed to Mr Vidakovic dated 6 April 2020, Ms Reed stated she was applying and awaiting word on all financial assistance incentives, both business and personal, for which Pastrami qualified.
  11. [90]
    In her first statement,[35] Ms Reed says that she did not ask P&MV for any other rent relief for COVID, because she thought that Pastrami had already been given a three-month waiver of rent.
  12. [91]
    I accept the application of the legal principles submitted by Pastrami, and that the grant of a ‘rent free’ period made by Mr Vidakovic in his email dated 18 June 2020 was a representation upon which Pastrami was entitled to rely, and did rely upon, not to seek further rent relief from P&MV, specifically under, and invoking the COVID Regulation. I find that was a detrimental reliance on the part of Pastrami. I also find that Pastrami relied upon that representation from 18 June 2020, until August 2022, when P&MV sought, in practical terms, to relent on the grant of the rent-free period.
  13. [92]
    That is enough to allow me to find that Pastrami should succeed in its application to the Tribunal, and that I should order that P&MV should pay Pastrami the amount of $23,822.36 from the bond held by P&MV.

The effect of the COVID Regulation

  1. [93]
    The purpose of the COVID Regulation (now repealed), relevantly stated in s 3(a) was to:

… mitigate the effects of the COVID-19 emergency on lessors and lessees under affected leases by giving effect to the good faith leasing principles set out in the National code.

(Added emphasis)

  1. [94]
    The term ‘affected lease’ was defined in s 5 of the Regulation. The term ‘National code’ was defined in the Dictionary (schedule 1) of the Regulation to mean a document called ‘National Cabinet mandatory code of conduct-SME commercial leasing principles during COVID-19’ agreed to by the National Cabinet on 3 April 2020.
  2. [95]
    Relevantly for the purposes of this case, the obligations of the parties were contained in s 14 and s 15 of the Regulation. Section 14(1) provided that either party (‘the initiator’) to an affected lease may, in writing, ask another party to the lease to negotiate any or all of the rent payable during the ‘response period’. That term was defined in the Dictionary to the Regulation to mean the period of time starting on 29 March 2020 and ending on 30 September 2020.
  3. [96]
    Section 14(2) provided that after the initiator’s request was made, the parties were required to, as soon as practicable, give each other information relating to the request that was:
    1. true, accurate, correct and not misleading; and
    2. sufficient to enable the parties to negotiate in a fair and transparent way.
  4. [97]
    Section 14(2) was not prescriptive about the information to be provided between the parties to an ‘affected lease’ but gave some examples of ‘sufficient information’, including the example of a statement by the lessee that demonstrates why the lease is an ‘affected lease’ within the meaning of that definition, accompanied by supporting information and evidence.
  5. [98]
    In my view, there was scope, and likely an obligation on the parties under s 14(2) to give information that one party sought from the other for the purposes of satisfying the requirements of s 14 and s 15. That much seems clear from the obligation contained in s 11 that the lessor and lessee under an ‘affected lease’ must cooperate and act reasonably and in good faith in all discussions and actions associated with mitigating the effect of the COVID-19 emergency on the parties to the lease and other matters to which part 2 of the Regulation applied.
  6. [99]
    The obligation which s 14(3) imposed on the parties to the ‘affected lease’ was to negotiate the conditions of the lease the subject of the initiator’s request, and to comply with s 15.
  7. [100]
    Section 15(1) required that within 30 days after a party to an ‘affected lease’ received sufficient information about a request under s 14(2), the lessor must have, relevantly for the purposes of this case, offered the lessee a reduction in the amount of rent payable under the lease. Relevantly, the lessor’s offer must, under 15(2), have related to the rent payable during the ‘response period’ and provide for no less than 50% of the rent reduction offered, to be in the form of a waiver (not deferral) of rent.
  8. [101]
    In Pastrami’s initial written outline of submissions,[36] it submitted that the lease with P&MV was an ‘affected lease’ under s 5 of the COVID Regulation because:
    1. the lease was a retail shop lease under the Retail Shop Leases Act;
    2. the lease was binding on Pastrami on the commencement of the COVID Regulation;
    3. Pastrami had an annual turnover of less than $1 million and was a ‘SME (small to medium enterprise) entity’;[37]
    4. Pastrami was eligible for, and received payments under, the Commonwealth Government JobKeeper scheme.[38]
  9. [102]
    In response, P&MV submitted that Pastrami did not make a request for deferral of rent as contemplated by the COVID Regulation because:
    1. the Regulation was not in force at the time Pastrami requested a ‘deferral of rent’;
    2. Pastrami and P&MV were not parties to an ‘affected lease’ as that term is defined in the Regulation;
    3. Pastrami did not provide P&MV with information as required by the Regulation;
    4. the request was not made in contemplation of the Regulation.
  10. [103]
    Taking these points one at a time, in my opinion, it is not an obstacle to Pastrami having the benefit of the COVID Regulation because it was not in force when it requested a deferral of rent. There was no requirement in the Regulation that a valid request made under s 14 must be made only after the commencement of the Regulation. By contrast, there was a requirement that for a lease to qualify as an ‘affected lease’, under s 5(1)(b) that there be a binding lease in force at the commencement of the Regulation. That requirement is satisfied by the Pastrami lease.
  11. [104]
    Moreover, the clear intent of the Regulation is that an application may be made for a period of time before the commencement, because the Regulation specifically allows for reduction of rent for the ‘response period’ that commenced on 29 March 2020, which was almost two months before the Regulation itself commenced.
  12. [105]
    Unhelpfully, P&MV does not elaborate or explain the reasoning for the submission that Pastrami and P&MV were not parties to an ‘affected lease’. In those circumstances, I prefer the submissions made by Pastrami which do address the criteria for a lease being an ‘affected lease’ as defined.
  13. [106]
    Third, on the contention that the Pastrami did not provide P&MV with information as required by the Regulation, it is the case that Pastrami made an application to P&MV on two occasions in its emails dated 24 March 2020 and 6 April 2020 seeking rent relief on the basis of the effect to its business caused by the COVID pandemic.
  14. [107]
    Section 14(2) of the Regulation, on the requirement to provide information is not prescriptive as to the kind of information required, apart from the requirement that the information be true, accurate, correct and not misleading, and sufficient to enable the parties to negotiate in a fair and transparent way. There is no submission elaborated upon by P&MV that the information given in the request made by Pastrami did not satisfy those requirements. There is no evidence of any request by P&MV for further information, which was unmet by Pastrami. I reject the submission made by P&MV on this point.
  15. [108]
    Finally, it is true that the email requests for rent assistance made by Pastrami did not specifically invoke the Regulation. However, there was no requirement under the Regulation that an ‘initiator’ under s 14 must do so. I am against P&MV on this point as well.
  16. [109]
    Overall, I find that Pastrami was eligible for the benefit of waiver of rent under s 15 of the COVID Regulation.
  17. [110]
    Moreover, the P&MV submissions miss the point that Pastrami submitted, that it was adversely affected by reliance on the 18 June representation, by not pursuing more fulsomely a specific application under the Regulation, and that amounted to reliance on the representation that Mr Vidakovic made that Pastrami would receive the benefit of a rent-free period of three months.

Conclusion on substantive issue

  1. [111]
    In the end result, I find that P&MV is bound by the representation made by Mr Vidakovic that Pastrami was granted a rent-free period of three months. It is not necessary for me to make a determination on the alternative contention that Pastrami was entitled to a reduction of rent because of the effect of the COVID Regulation. However, if I am wrong in my primary finding, then I would alternatively find that Pastrami was entitled to a reduction of rent up to 50% of the rent otherwise payable during the response period between 29 March 2020-30 September 2020 which amounts to the same outcome.
  2. [112]
    I will therefore order that out of the bond held by P&MV, of $33,733.33, P&MV must pay Pastrami the amount of $23,822.36. That amount is calculated by deducting the total of items that Pastrami agrees that it owes P&MV, of $9,910.97.

Costs

  1. [113]
    In Pastrami’s opening outline of submissions filed 18 January 2024, it sought costs of the proceedings. Pastrami elaborates on that submission in the written outline of submissions filed on 1 July 2024,[39] putting P&MV on notice that it was seeking costs, and the basis for that submission. P&MV’s submissions dated 9 July 2024 do not make any submissions on costs in reply.
  2. [114]
    The default costs rule contained in s 100 of the QCAT Act is that each party must bear their own costs for a proceeding in the Tribunal.[40]
  3. [115]
    Pastrami’s submissions on costs correctly point out that the Tribunal has a discretion under s 102 of the QCAT Act to order costs where it considers that the ‘interests of justice’ require an order for costs.
  4. [116]
    Pastrami submits that the circumstances in this case which warrant an order for costs are that the issues in dispute involve complex issues of law and the factual position contended for by P&MV ‘has been shifting and contrary to documentary evidence’.[41]
  5. [117]
    The criteria contained in s 102(3) of the QCAT Act to which I may have regard when deciding whether to award costs under s 102(1) as relevant to the circumstances of this case are as follows:
  1.  whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding …;
  1.  the nature and complexity of the dispute the subject of the proceeding;
  1.  the relative strengths of the claims made by each of the parties to the proceeding;

…

  1.  anything else the tribunal considers relevant.
  1. [118]
    I agree with the submission made by Pastrami that the issue in this matter concerning the existence and legal effect of waiver of the rent by P&MV was complex, and sufficiently so to warrant leave being granted to both parties to have legal representation. However, that leave was granted in itself is not sufficient to warrant an award for costs, on the usual basis in the superior courts of Queensland, that the winner of civil litigation should ordinarily be entitled to costs. However, it is a factor that I take into account in favour of Pastrami, in conjunction with the reasoning that follows.
  2. [119]
    In my opinion, the factor in s 102(3)(a) of the QCAT Act has application in this case. I have commented above that Mr Vidakovic’s evidence that he had some sort of discussions with Mr Rosenberg about waiver or deferral of rent was unsatisfactory. He does not deign to provide either Pastrami, or the Tribunal, with any particulars about the nature of those discussions and what any such discussions meant for one of the key questions in this matter, which is whether P&MV waived, or only deferred payment of rent. Further, he raised an issue about whether Mr Rosenberg passed on those discussions to Ms Reed, who was the director of Pastrami.
  3. [120]
    As a result, Pastrami was put to legal costs in preparing affidavits by Mr Rosenberg and Ms Reed in response to a poorly-defined allegation. In that sense, Pastrami was put to unnecessary disadvantage, in boxing at the shadows that Mr Vidakovic’s evidence cast. The affidavits by Mr Rosenberg and Ms Reed in response would have been either unnecessary, or at least been fairly placed to respond, if there had been at least some particulars of Mr Vidakovic’s evidence.
  4. [121]
    In my view, Pastrami being put to unnecessary disadvantage on this aspect is not enough to weigh against the default proposition contained in s 100 that each party should pay their own costs for the case as a whole, given the other issues in the case. However, in my opinion, an order for costs in favour of Pastrami is justified because of the disadvantage caused to Pastrami in responding to the unsatisfactory evidence of Mr Vidakovic.
  5. [122]
    In making an order for costs in favour of Pastrami, the purpose is not to punish P&MV, because that is not the purpose of an order for costs. Instead, my order will compensate Pastrami for costs unnecessarily borne because of the need to respond to the vague evidence of Mr Vidakovic. In my view, an award of costs in the amount of $5,000 in favour of Pastrami is fair compensation for the costs unnecessarily borne by it, and I so order.

Footnotes

[1]  There is no contention between the parties that Pastrami was wound up in insolvency on 20 July 2022, and Chad Robert Rapsey was appointed as liquidator of Pastrami. The claim made in this case is by Mr Rapsey in his capacity as liquidator of Pastrami. For the convenience of the reader, in these reasons for decision I will refer to the Applicant as Pastrami, but through the liquidator, Mr Rapsey.

[2]  Pastrami’s written submissions filed with the Tribunal on 18 January 2024.

[3]  The expression ‘retail shop lease’ is defined in s 5A of the Act. Neither party contends that the lease in this case is not a lease of that kind.

[4]  [2019] QCAT 394 (‘Fu Manchu’).

[5]  At paragraphs [57]-[59].

[6]  For example, that the landlord has not correctly followed the procedure for the determination of rent contained in the lease.

[7]  The Act, s 102.

[8]  Email from Mr Tony Vidakovic of P&MV to Mr Rapsey’s firm dated 22 August 2022, which is exhibit CRR18 to the affidavit of Mr Rapsey.

[9]  Pastrami’s written outline of submissions filed on 1 July 2024, paragraphs 8-10.

[10]  Paragraph 60 of her first statement filed on 7 May 2024.

[11]  Ms Reed's first statement, paragraph 15.

[12]  His first statement was filed on 6 March 2024 and his second statement filed on 22 May 2024.

[13]  Attached to her first statement as document MNR-4.

[14]  In her first statement, paragraph 1, Ms Reed says that she is also known as ‘Peggy Reed’ and ‘Peggy Noonan Rosenberg’.

[15]  Her first statement, paragraph 18.

[16]  Paragraphs 7 and 8.

[17]  Paragraph 8 of Mr Vidakovic’s first statement.

[18]  Paragraph 18 of Ms Reed’s first statement.

[19]  Paragraph 5 of Mr Rosenberg’s statement dated 2 May 2024 and filed on 7 May 2024.

[20]  Paragraph 3 of his second statement.

[21]  Paragraph 12 of his second statement.

[22]  Paragraph 5.

[23]  Sworn on 15 January 2024 and filed on 18 January 2024.

[24]  Paragraph 54 of Mr Rapsey's affidavit.

[25]  Paragraph 58 of Mr Rapsey's affidavit.

[26]  Exhibit CRR-16 to Mr Rapsey's affidavit, at page 140 of the attachments.

[27]  In other parts of these reasons, I have found that Mr Vidakovic on behalf of P&MV has assiduously pursued the perceived rights of P&MV to recover rent and other outgoings under the lease, demonstrating a high level of awareness of the rights of P&MV under the lease.

[28]  Pastrami’s written submissions filed 1 July 2024, paragraph 18.

[29]  [2024] QSC 96 at [133].

[30]  Paragraphs 20 and 21, citing the decision of the High Court in Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 406 ALR 632 at 654 [80].

[31]  Citing the decision of the High Court in Commonwealth v Verwayen (1990) 170 CLR 394 at 416, per Mason CJ.

[32] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429 per Brennan J (as he then was).

[33] Wright v Hamilton Island Enterprises Ltd [2003] Q Conv R 54-588; [2003] QCA 36.

[34]  [2007] NSWADTAP 75 at [39]-[42].

[35]  Paragraph 20.

[36]  Filed 18 January 2024.

[37]  As that term is defined in s 5(5) of the COVID Regulation. The evidence cited in support of that proposition is paragraphs 84 to 88 of Mr Rapsey’s affidavit.

[38]  Citing in support of that proposition, paragraphs 89-92 of Mr Rapsey's affidavit.

[39]  At paragraphs 44-47.

[40]  Except as otherwise provided in the QCAT Act or an enabling Act. There is no specific provision in the Retail Shop Leases Act that requires a departure from the default position.

[41]  Paragraph 47.

Close

Editorial Notes

  • Published Case Name:

    Pastrami on Rye Pty Ltd (in liquidation) v P&MV Constructions Pty Ltd

  • Shortened Case Name:

    Pastrami on Rye Pty Ltd (in liquidation) v P&MV Constructions Pty Ltd

  • MNC:

    [2024] QCAT 439

  • Court:

    QCAT

  • Judge(s):

    Member Sammon

  • Date:

    08 Oct 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
Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 (2022) 406 ALR 632
2 citations
Jump To
Cite 1 - (2022) 406 ALR 632
Cite 2 - (2022) 406 ALR 632
Capsanis v Omoso Holdings Pty Ltd [2007] NSWADTAP 75
2 citations
Jump To
Cite 1 - [2007] NSWADTAP 75
Cite 2 - [2007] NSWADTAP 75
Commonwealth v Verwayen (1990) 170 CLR 394
2 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
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
OF Beenleigh Pty Ltd v Khalaf Management Pty Ltd [2024] QSC 96
2 citations
Jump To
Cite 1 - [2024] QSC 96
Cite 2 - [2024] QSC 96
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
2 citations
Jump To
Cite 1 - (1988) 164 CLR 387
Cite 2 - (1988) 164 CLR 387
Wright v Hamilton Island Enterprises Limited [2003] QCA 36
2 citations
Jump To
Cite 1 - [2003] QCA 36
Cite 2 - [2003] QCA 36
Wright v Hamilton Island Enterprises Ltd [2003] Q Conv R 54
2 citations
Jump To
Cite 1 - [2003] Q Conv R 54
Cite 2 - [2003] Q Conv R 54

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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