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  4. Healthy Life Choices Aust Pty Ltd v 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust - [2025] QCAT 137

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Healthy Life Choices Aust Pty Ltd v 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust[2025] QCAT 137

Healthy Life Choices Aust Pty Ltd v 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust[2025] QCAT 137

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Healthy Life Choices Aust Pty Ltd v 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust  [2025] QCAT 137

PARTIES:

Healthy Life Choices Aust Pty Ltd

(applicant)

v

27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit trust

(respondent)

APPLICATION NO/S:

RSL070-24

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

12 March 2025

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

The notice of dispute filed on 10 December 2024 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 question arises as to whether or not it is a dispute that falls within the Tribunal’s jurisdiction – whether the lease is a retail shop lease

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 47

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

Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1

Gary Wolfe Properties Pty Ltd v Exocoet Pty Ltd [2013] QCAT 513

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

Kwon v Kim [2005] NSWADT 167

Mackfitness 1 Pty Ltd v Salty & Anor [2021] QCAT 318

Sandra Field v Neville Pape [2023] QCAT 40

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]
    On 10 December 2024 the matter was referred to the tribunal by a mediator after the parties were unable to resolve the issues at mediation.
  2. [2]
    The applicant, Healthy Life Choices Aust Pty Ltd, trades under the name Anytime Fitness Sandgate and runs a 24/7 fitness centre and gymnasium at the leased premises. The respondent, 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust, is the lessor/landlord.
  3. [3]
    The retail tenancy dispute is about the scheduled building maintenance obligations of the respondent and the applicant’s obligations to pay for solar power.

What is the Tribunal’s jurisdiction?

  1. [4]
    The tribunal has no inherent jurisdiction. The tribunal is a creature of statute and must find its power to determine disputes either in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an enabling Act.[1]
  2. [5]
    The enabling Act here is the Retail Shop Leases Act 1994 (Qld) (‘RSLA’). The RSLA and the Retail Shop Leases Regulation 2016 (Qld) (‘the Regulation’) provide specific pathways to resolve certain disputes between certain tenants and landlords. Not all disputes between commercial tenants and landlords may be resolved by the tribunal.
  3. [6]
    Under the RSLA, the Tribunal has jurisdiction to hear ‘retail tenancy disputes’.[2]
  4. [7]
    The phrase ‘retail tenancy dispute’ is defined in the RSLA to mean:

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.[3]

  1. [8]
    ‘Retail shop lease’ is defined in the RSLA at section 5A to mean “a lease of a retail shop”. A number of exceptions as to what constitutes a ‘retail shop lease’ are contained in subsections 5A (2) and (3), none of which, however, apply in this matter.
  2. [9]
    ‘Retail shop’ is defined in the RSLA at section 5B which provides:

Retail shop means premises that are —

  1. situated in a retail shopping centre; or
  1. used wholly or predominantly for the carrying on of a retail business.
  1. [10]
    ‘Retail business’ is defined in the RSLA at section 5C to mean “a business prescribed by regulation as a retail business”.
  2. [11]
    Section 8 of the Regulation provides:
  1. For section 5C of the Act, a business is a retail business if —
  1. it is a business mentioned in schedule 1; or
  1. its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in schedule 1.
  1. The wholesale sale of goods is not a retail business.

Is this matter a retail tenancy dispute?

  1. [12]
    In the present case, the initial question to be determined is whether this is a retail shop lease, in that it was the premises used for a ‘retail shop’.
  2. [13]
    The applicant submitted that the lease is a retail shop lease, as they are a retail shop, and this is not disputed by the respondent.[4]
  3. [14]
    Notwithstanding the parties’ position, it is important for the tribunal to be satisfied that it has jurisdiction to deal with the dispute, as the tribunal cannot act solely on the parties’ belief that there is a retail shop lease dispute. The RSLA provides specific pathways to resolve certain disputes between certain tenants and landlords.  Not all disputes between commercial tenants and landlords may be resolved by the tribunal.
  4. [15]
    If the lease is not a retail shop lease, then the proceedings would be misconceived and lacking in substance because the tribunal would have no power to make the orders sought and the proceedings should be dismissed or struck out.[5] It is a significant step to dismiss or strike out a proceeding prior to a full hearing of a matter; however, where it is clear that the tribunal has no jurisdiction then it is appropriate.
  5. [16]
    The applicant’s assert that they meet the definition of a retail shop based on both the fact that the premises are used wholly or predominantly for carrying on a retail business and that they are situated in a retail shopping centre

Is the applicant a retail business

  1. [17]
    A retail business means a business prescribed by regulation to be a retail business.[6]
  2. [18]
    The premise use prescribed in the lease signed by the parties is as a “24 hours 7 days a week fitness centre and gymnasium with personal training, offices and the retail sale of associated goods and services”.
  3. [19]
    The applicant states:
    1. Under section 5 of the RSLA, the definition of a "retail business" includes businesses that sell goods or provide services to the public. They are a gym that provides goods and services related to health and fitness, which is considered as a "retail business" under the Act since it provides those goods and services directly to consumers.
    2. The primary business of the gym involves health and fitness services, which is considered a retail service under the RSLA.
    3. Anytime Fitness Sandgate also has a vending machine and sells health supplement products and merchandise which meets the definition of traditional retail activities as per schedule 1 of the Regulations for specialised food retailing and miscellaneous retailing. The business’ purpose is to provide services to the public for their personal health and fitness use.[7]
  4. [20]
    The applicant is correct that the definition of a retail business does include businesses which both sell goods and those which provide services, but it is not sufficient to say that if a business sells goods or provides a service directly to the public then it satisfies the definition as it is not all businesses that provide services or that sell goods that meet the definition of a retail business.
  5. [21]
    It is also not correct that the provision of health and fitness services are a “retail service under the RSLA”. There is no reference to health or fitness services in the definition of retail business prescribed in Schedule 1 of the Regulation and the tribunal has found on a number of prior occasions that a gym/fitness centre is not a retail business.[8]
  6. [22]
    The closest activity there is in Schedule 1 is the reference to a business which carries out as its whole or predominate activity the sale, hire or supply of exercise equipment. This would relate to a shop or a store which has exercise equipment available for sale or to rent or hire to the public, but not a gymnasium or fitness centre.
  7. [23]
    The predominant activity of a fitness centre is the provision of health and fitness services, which includes the use of the premises for exercise. While this does generally include the use of exercise equipment, it also includes the provision of other services including personal training and group classes, which do not fall within the definition of a retail business.
  8. [24]
    The use of the exercise equipment is not a hire of the equipment or supply of equipment as there is no change in ownership and it is simply an ability to use in situ. There is no true bailment and or right to take the equipment away. It is not a hire of equipment, but a hire or right to use the equipment, as such it is a “granting a temporary right of access”[9] to the equipment as opposed to a supply or hire.
  9. [25]
    As such the whole or predominant use is not the sale, hire or supply of exercise equipment.
  10. [26]
    Accordingly as a gymnasium, a fitness centre or the provision of health and fitness service are not prescribed by the Regulation to be retail business, the applicant’s business of providing a 24 hours 7 days a week fitness centre and gymnasium is not a retail business.
  11. [27]
    The applicant also asserts that as they sell health supplements, merchandise and food from a vending machine, which does fall under the definitions in Schedule 1, that this makes them a retail business. The sale of these products is not the predominant activity of the business. As is stated in the lease this is simply an associated use or supplementary income for the business and not the predominant activity of the business. Accordingly the selling of some supplements or merchandise does not meet the definition of a retail business.

Is the premise within a shopping centre?

  1. [28]
    A ‘retail shopping centre’ is, as relevant to this proceeding, a cluster of premises having all of the following attributes:
    1. five or more of the premises which are used wholly or predominantly for carrying on retail businesses;
    2. all the premises – are owned by one person; or are located in one building; and
    3. the cluster of premises is promoted, or generally regarded, as constituting a shopping centre, shopping mall, shopping court, or shopping arcade.[10]
  2. [29]
    The applicant states:
    1. The premises consist of five tenancies all owned by the same landlord and under the same property manager. Their business occupies the top floor tenancy, while the ground floor comprises four additional tenancies, offering a mix of services. These include a pilates studio, a legal services office, an employment services provider, and a massage therapy service.
    2. The location is regarded by locals as a “retail precinct” due to it being in close proximity to a range of amenities and other retail stores.[11]
  3. [30]
    The difficulty for the applicant is that none of the businesses they advise in the premises are retail businesses. A pilates studio, a legal service office, an employment service and a massage therapy provider are all businesses which are not found under Schedule 1 of the Regulation and as such are not retail businesses. 
  4. [31]
    I find that the cluster of premises does not satisfy the first attribute of the definition of a “retail shopping centre” and as such the premise is not situated in a retail shopping centre.
  5. [32]
    As the premises are not used wholly or predominantly for the carrying on of a retail business and are not situated in a retail shopping centre, the lease in this matter is not a ‘retail shop lease’. As such, the proceeding is misguided and lacking in substance and has failed to invoke this tribunal’s jurisdiction.
  6. [33]
    Where a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.[12] Because the tribunal does not have jurisdiction, the application is misconceived and lacking in substance. Accordingly the only appropriate order in this matter is to order that the Notice of Dispute is dismissed for want of jurisdiction, pursuant to section 47 of the QCAT Act.

Orders

  1. [34]
    The Notice of Dispute filed 10 December 2024 is dismissed for want of jurisdiction.

Footnotes

[1]QCAT Act, s 9(1).

[2]RSLA, s 103(1).

[3]Ibid, Schedule.

[4]Respondent’s submissions dated 13 January 2025.

[5]QCAT Act, s47.

[6]RSLA, s 5C.

[7]Applicant’s submissions dated 27 January 2025.

[8]Mackfitness 1 Pty Ltd v Salty & Anor [2021] QCAT 318; J&Y Latham Pty Ltd ATF v Curtis [2024] QCAT 235; Sandra Field v Neville Pape [2023] QCAT 40.

[9]Gary Wolfe Properties Pty Ltd v Exocoet Pty Ltd [2013] QCAT 513 at [45], Kwon v Kim [2005] NSWADT 167 at [14].

[10]RSLA, s 5D.

[11]Applicant’s submissions dated 27 January 2025.

[12]QCAT Act, s 47.

Close

Editorial Notes

  • Published Case Name:

    Healthy Life Choices Aust Pty Ltd v 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust

  • Shortened Case Name:

    Healthy Life Choices Aust Pty Ltd v 27 Brighton Rd Sandgate Pty Ltd ATF 27 Brighton Rd Sandgate Unit Trust

  • MNC:

    [2025] QCAT 137

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    12 Mar 2025

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
Gary Wolfe Properties Pty Ltd v Exocoet Pty Ltd [2013] QCAT 513
2 citations
Jump To
Cite 1 - [2013] QCAT 513
Cite 2 - [2013] QCAT 513
J&Y Latham Pty Ltd ATF v Curtis [2024] QCAT 235
2 citations
Jump To
Cite 1 - [2024] QCAT 235
Cite 2 - [2024] QCAT 235
Kwon v Kim [2005] NSWADT 167
2 citations
Jump To
Cite 1 - [2005] NSWADT 167
Cite 2 - [2005] NSWADT 167
Mackfitness 1 Pty Ltd v Salty [2021] QCAT 318
2 citations
Jump To
Cite 1 - [2021] QCAT 318
Cite 2 - [2021] QCAT 318
Sandra Field v Neville Pape [2023] QCAT 40
2 citations
Jump To
Cite 1 - [2023] QCAT 40
Cite 2 - [2023] QCAT 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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