CITATION: | Rustic Investments Pty Ltd ATF the Curtis Family Trust t/as Subway Airlie Beach v ABH Hotel Pty Ltd ATF ABH Hotel Trust [2025] QCAT 145 |
PARTIES: | rustic investments australia pty ltd ACN 155 571 449 as Trustee for the Curtis Family Trust ABN 57 887 062 051 trading as subway airlie beach (applicant) v abh Hotel pty ltd acn 622 296 011 as trustee for abh hotel trust abn 91 494 691 421 (respondent) |
APPLICATION NO/S: | RSL059-23 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 10 February 2025 |
HEARING DATE: | 26 September 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: |
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application to dismiss the proceeding is made, the power under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) should only be exercised if it is clear beyond doubt that the claim is lacking in substance and is not arguable – where the applicant has an arguable case, the power to dismiss the proceedings should not be exercised. RETAIL SHOP LEASE DISPUTE – where applicant was not a lessee nor a sub-lessee or franchisee – where applicant had no jurisdiction to bring proceedings – lack of privity of contract – where lease preceded Retail Shop Leases Amendment Act 2006 amendments – whether claim can be made under s. 83 Queensland Civil and Administrative Tribunal Act 2009 (Qld). PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – OTHER MATTERS – application for joinder – whether the party’s interests are affected – whether it is desirable for a party to be joined Insurance Contracts Act 1984 (Cth) Property Law Act 1974 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Retail Shop Leases Act 1994 (Qld) Retail Shop Leases Amendment Act 2006 (Qld) Retail Shop Leases Amendment Act 2016 (Qld) Victorian Civil and Administrative Tribunal Act 1998 (Vic) Baxter & Fifties Food Pty Ltd atf the Ninja Bear Trust t/as Subway Wynnum Central v Subway Pty Ltd & Anor [2015] QCAT 83 Beswick v Beswick [1968] AC 58 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242 Dundral Pty Ltd v Orton [2013] QCAT 604 Felstead v Bundaberg Homes Pty Ltd [2016] QCAT 294 Fuller's Theatre and Vaudeville Co Ltd v Role [1923] AC 435; Fumi Sushi Pty Ltd v Perpetual Nominees Ltd [2005] RSLT 18 Hobart International Airport Pty Ltd and Anor v Clarence City Council and Anor (2022) 276 CLR 519 Legal Services Commissioner v Leneham [2017] QCAT 96 Norman v Australian Red Cross Society (1998) 14 VAR 243 Osman v Juniper Property Holdings No 15 Pty Ltd [2008] QRSLT 16 PW& Co v Milton Gate / Investments Ltd [2004] 2 WLR 443 Rye v Rye [1962] AC 496 South of England Dairies Ltd v Baker [1906] 2 Ch 631 Tweddle v Atkinson (1861) 1 B&S 393 |
APPEARANCES & REPRESENTATION: | |
Applicant: | S Mason of Vocare Law |
Respondent: | D A Skennar of Counsel instructed by Morgan Conley Solicitors |
REASONS FOR DECISION
The Applications
Background
Rustic Investment Submissions on joinder
ABH Hotel Pty Ltd response to the joinder application
Rustic’s clam and ABH Hotel’s response
Rustic was not a "lessee‘ of ABH Hotel within the meaning of the relevant version of the RSL Act
lessee -
lessor means the person who, under a lease, is or would be entitled to the rent payable for the leased premises regardless of the person‘s interest in the premises, and includes—
(emphasis added by ABH Hotel):
(a) the lessor‘s agent; and
(b) in relation to a retail tenancy dispute—the former lessor.
(emphasis added by ABH Hotel):
an agreement under which a person gives or agrees to give to someone else for valuable consideration a right to occupy premises whether or not the right is—
(a) an exclusive right to occupy the premises; or
(b) for a term or by way of a periodic tenancy or tenancy at will.
129 Application of Act
(1) Subject to subsection (2), this Act, as in force immediately before the commencement, continues to apply to a retail shop lease entered into before the commencement, and any extension or renewal of the lease, as if the 2006 Act had not been enacted.
(2) On and from the commencement, sections 63, 64, 66, 70A, 71, 82A, 83, 88A, 91, 91A, 106 and 109, as amended or inserted by the 2006 Act, apply to a lease entered into before the commencement and any extension or renewal of the lease.
(3) This section does not affect the operation of section 8 of the 2006 Act.
Note—
The provisions inserted by section 8 of the 2006 Act include relevant provisions for the application of the provisions of this Act mentioned in the section.
In this section—
"2006 Act" means the Retail Shop Leases Amendment Act 2006. "commencement" means the commencement of this section.
Interests of Rustic and Terry Curtis have merged
A "merger" will occur where a leasehold estate and leasehold reversion become vested in the same person in the same right. At common law the same person cannot be a lessor and a lessee of the same premises.[17] The common law position is altered by section 115 of the Property Law Act 1974, which provides that the surrender of the term or the merger of the head lease with the freehold does not put an end to the rights of the sub-lessees, but only operates as a grant subject to their rights. However, section 115 does not apply to termination of leases. Termination is not the same as surrender or merger, which is a pre-requisite to operation of the section. Where a lease is terminated, the sublease is also terminated."[18]
There is nothing in the RSL Act that changes the common law to create a legal relationship between a head lessor and a sub-lessee, other than that created by the 2006 amendments, which has no application to this proceeding by reason of section 129.
Is Rustic a sublessee?
The Sub-lessee covenants not to mortgage, assign, transfer. sub-let, part with, or share possession or give to any person, firm, company or corporation a license to use of occupy the Premises or may part thereof without first obtaining the written consent of the Sub- lessor and the Landlord.
Rustic does not refer to any material to support the allegation.
Order under s. 83 of the RSL Act
Section 83 provides:
83 QCAT orders
Does the Tribunal have jurisdiction to make such an order under s. 83 or under any other provision? Under s. 83 the Tribunal has a general power to make the orders [it] considers to be just to resolve the retail tenancy dispute.
The explanatory notes to the 1999 amendments to the Act give several examples of orders under that section, none of which are in the nature of an injunction restraining the beneficiary of a bank guarantee from calling it up.
The Tribunal is a creature of statute and has no inherent jurisdiction. I am not required to decide whether it has any incidental jurisdiction. I accept the submissions of the respondent that no power to make an order in the nature of an injunction lies within s. 83 or anywhere else in the Act.
Losses claimed by Rustic
Joinder
[11] There must be some utility or purpose in the joinder. It might be that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the tribunal; there might be common question of fact or law involved in the proceeding; the joinder may enable all issues in dispute between affected parties to be finally determined; or it may be that the parties joined would be amenable to an order of the tribunal in the proceeding in the Tribunal. There are also questions of prejudice to the proposed parties in terms of costs, whether the process would be unnecessarily lengthened and, importantly, and whether the objects set out in s 3 of the QCAT would be achieved. These are some of the matters that might be taken into account in the exercise of discretion but are by no means exhaustive and each case would depend on its own particular circumstances.
…
[14] To include parties in contentious litigation without their consent is a serious matter and will not be done lightly. That is why the section confers a discretionary power on the Tribunal. The applicant for an order to join another party must demonstrate not only that the party may be affected by the proceeding but also there is, within that proceeding, here a review of an administrative decision, some utility or purpose in the joinder. This is particularly so given the broad basis upon which a person might have standing to bring an application to either be joined as a party to a proceeding or, to apply to join another party. The threshold to establish that their interest “may be affected” is easily crossed.
VCAT should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.
[1] Applicant‘s Documents, AB01.
[2] Applicant‘s Documents, AB08.
[3] Applicant‘s Documents, AB10.
[4] Applicant‘s Documents, AB09.
[5] Applicant‘s Documents, AB16.
[6] SFICS.
[7] [2015] QCAT 83.
[8] Ibid [15].
[9] Ibid [22].
[10] Ibid [29].
[11] Tweddle v Atkinson (1861) 1 B&S 393 upheld by the House of Lords in Beswick v Beswick [1968] AC 58.
[12] (2022) 276 CLR 519.
[13] Insurance Contracts Act 1984 (Cth).
[14] Ibid [16].
[15] Fuller's Theatre and Vaudeville Co Ltd v Role [1923] AC 435; South of England Dairies Ltd v Baker [1906] 2 Ch 631.
[16] Baxter [29].
[17] Rye v Rye [1962] AC 496.
[18] PW& Co v Milton Gate / Investments Ltd [2004] 2 WLR 443 at [72].
[19] Baxter [30].
[20] Ibid [31].
[21] Paragraph 63.4 – 63.5 of SFICS.
[22] Paragraph 63.6 SFICS.
[23] Paragraph 63.7 of SFICS.
[24] Paragraph 63.8 of SFICS.
[25] Paragraph 63.4 (e) of SFICS.
[26] Applicant‘s Documents, AB10 page 314.
[27] [200S] QRSLT 18.
[28] Baxter.
[29] [2008] QRSLT 16.
[30] Revised SFICD at [111].
[31] [2012] QCATA 242.
[32] (1998) 14 VAR 243.
[33] [2013] QCAT 604.
[34] [2016] QCAT 294.
[35] [2017] QCAT 96.
