Contract PPS Pty Ltd t/as Petals & Pinecones v Ciranni
[2025] QCAT 72
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- Unreported Judgment
- Contract PPS Pty Ltd t/as Petals & Pinecones v Ciranni[2025] QCAT 72
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Contract PPS Pty Ltd t/as Petals & Pinecones v Ciranni[2025] QCAT 72
Contract PPS Pty Ltd t/as Petals & Pinecones v Ciranni[2025] QCAT 72
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Contract PPS Pty Ltd t/as Petals & Pinecones v Ciranni [2025] QCAT 72 |
PARTIES: | Contract PPS Pty Ltd t/as Petals & Pinecones (applicant) v Alberto Salvatore Ciranni (respondent) |
APPLICATION NO/S: | RSL068-24 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 28 February 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – where applicant applied for interim order restraining respondent from terminating lease of premises – where interim injunction granted – where no substantive proceeding commenced by the applicant in respect of a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) – Tribunal jurisdiction to decide retail tenancy disputes – where applicant did not comply with pre-proceedings dispute resolution provisions of Retail Shop Leases Act 1994 (Qld) – meaning of tribunal ‘proceeding’ – when the tribunal may make an interim order – where no referral of dispute notice from mediator – where no application for substantive relief filed – where interim application dismissed Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 55, s 56, s 63, s 64, s 83, s 94, s 97, s 102, s 103 Small Business Commissioner Act 2022 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 15, s 58, s 59 McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293 Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 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
What is this application about?
- [1]The applicant has applied for an interim order restraining the respondent from terminating a lease of premises in Atherton. An interim injunction was granted by the Tribunal on 13 December 2024 restraining the respondent from terminating the lease or acting to enforce a Notice to remedy breach issued on 25 November 2024 or a Notice to terminate lease and vacate premise issued on 9 December 2024. The application for interim order now falls to be determined.
- [2]
- [3]The application for interim order was filed on 11 December 2024. Directions were made on 13 December 2024 requiring the applicant to file submissions in support of the application. No submissions were filed by the applicant. Accordingly, the particulars of the applicant’s claim are limited to the contents of the application for interim order.
- [4]The application for interim orders is the only application filed by the applicant. There has been no referral of the retail tenancy dispute by a mediator in accordance with s 63 of the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’) nor has the applicant filed an application in accordance with s 64 of the RSL Act. These provisions will be referred to in more detail later in the reasons.
- [5]The applicant’s position may be summarised thus:
- The respondent gave a notice to terminate the lease on the basis that the air-conditioning and the grease-trap had not been serviced;
- The notice was unreasonable noting the applicant’s attempts to comply with the terms of the lease;
- The notice was disproportionate and prematurely given;
- The respondent failed to provide to the applicant information required to enable the servicing of the grease-trap;
- The applicant subsequently arranged for the servicing of the grease-trap.
Interim orders
- [6]Section 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that the Tribunal may, before making a final decision in a proceeding, make an interim order it considers appropriate in the interests of justice. Section 59(1) of the QCAT Act provides that the Tribunal may, by order, grant an injunction, including an interim injunction, in a proceeding if it is just and convenient to do so.
Jurisdiction of QCAT to decide retail tenancy disputes
- [7]The jurisdiction of the Tribunal to decide retail tenancy disputes is strictly circumscribed by the RSL Act. The RSL Act provides two specified pathways to the Tribunal for a party to a retail tenancy dispute. The first pathway is the referral of a retail tenancy dispute by a mediator.[4] The second pathway is an application to the Tribunal by a party in circumstances where a mediation agreement has not been complied with, or a mediator refuses to refer a dispute to the Tribunal, or a court has ordered the transfer of a proceeding to the Tribunal.
- [8]Common to both pathways[5] is the requirement for a party to a retail tenancy dispute who wishes to apply to the Tribunal to resolve the dispute to comply with the provisions of the RSL Act relating to pre-proceedings dispute resolution. A party to a retail tenancy dispute that is within a mediator’s jurisdiction under s 97 of the RSL Act may lodge notice of the dispute with the Small Business Commissioner (‘SBC’).[6] The RSL Act provides that after a notice of dispute is lodged a mediation is held, arranged by the SBC.[7] The mediation is attended by the parties to the dispute. If the dispute cannot be resolved, or a party fails to attend the mediation, or the dispute is not settled within four months after the notice is lodged, the mediator must refer the dispute to QCAT.[8]
Consideration
- [9]In McDonald’s Australia Ltd v Emaaas Pty Ltd (‘McDonald’s’)[9] the then President of QCAT, Alan Wilson J, found that there was a third pathway to the Tribunal for a party to a retail tenancy dispute, not one specifically provided for in the RSL Act. In McDonald’s it was not contentious that the parties were involved in a retail tenancy dispute. The applicant filed an application for an interim order or injunction relying upon s 58 and s 59 of the QCAT Act. While the applicant had lodged a dispute notice, the pre-proceedings mediation process had not been undertaken by the parties, nor had a substantive proceeding about the retail tenancy dispute been commenced in the Tribunal. The application for interim relief was, in essence, an originating application.
- [10]Alan Wilson J stated:
[26] Certainly the RSL Act is an enabling Act but, for the reasons already explored, QCAT has jurisdiction under s 103 of that Act to hear retail tenancy disputes. If (as has been concluded) the dispute here falls within the ambit of s 103, s 33 of the QCAT Act simply provides the mechanism for the applicant (clothed with jurisdiction) to apply to QCAT.
[27] It was also suggested that QCAT’s injunctive power under s 59 could not be successfully invoked by McDonald’s because that section provides that the Tribunal can only make an order of that kind ‘... in a proceeding ...’, and no proceeding was extant here; but, the word ‘proceeding’ is defined in Sch 3 of the QCAT Act to mean a proceeding before the Tribunal, and the application for an injunction itself would appear to qualify.
[28] It is also suggested, for McDonald’s, that the Notice of Dispute itself is a proceeding because it is now ‘lodged’ in QCAT. In light of the conclusion just set out it is unnecessary to express a view about that submission but, certainly, the fact that the chief executive under the RSL Act is now the Principal Registrar of QCAT creates an obvious harmony between the RSL Act and QCAT proceedings.
- [11]Of relevance for present purposes was the view taken by Alan Wilson J that an application for interim injunctive relief could, of itself, be a substantive proceeding.
- [12]The Small Business Commissioner Act 2022 (Qld) (‘SBC Act’), which commenced on 3 May 2022, effected a significant change to the mediation process under the RSL Act. The dispute notice must now be lodged with the Small Business Commissioner rather than with the QCAT Principal Registrar. There is no longer the ‘obvious harmony’ between the RSL Act and QCAT proceedings referred to by Alan Wilson J in McDonald’s.
- [13]The Supreme Court of Queensland considered the jurisdiction of the Tribunal to grant interim injunctive relief in Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd (‘Wagners Properties’).[10] The tenant filed in the Tribunal an application for an order to resolve a retail tenancy dispute and an application for an interim order. The tenant had not complied with the pre-proceeding mediation requirements of the RSL Act before filing the applications nor had the dispute been before a court. After the tenant commenced the QCAT proceeding, the landlord commenced a separate proceeding in the Supreme Court seeking an order for recovery of possession of the premises.
- [14]Kelly J considered the significance of the tenant’s failure to comply with the pre-proceeding provisions of the RSL Act. The landlord conceded that the interim application had been properly filed in the Tribunal and that QCAT was ‘seized with dealing’ with the application, however the tenant’s failure to engage in the pre-proceedings dispute resolution process meant that the Tribunal did not have jurisdiction to determine the substantive application.
- [15]Kelly J stated:
Section 103 of the Retail Shop Leases Act confers a broad jurisdiction upon QCAT and, subject to some exceptions which are not presently relevant, empowers QCAT to deal with the matter of a retail tenancy dispute. Section 64 of the Retail Shop Leases Act is not the only gateway to QCAT’s original jurisdiction. Rather, s 15 of the QCAT Act provides that QCAT may exercise its broad jurisdiction conferred by s 103 of the Retail Shop Leases Act, where a person has, under the QCAT Act, applied to QCAT to exercise that jurisdiction. Section 33 of the QCAT Act does not restrict or limit when a party can apply to QCAT but is a procedural provision directed to formal requirements of applications. QCAT may do all things necessary and convenient for exercising its jurisdiction and may waive compliance with a procedural requirement under the QCAT Act.
In the present case, the interim application was made pursuant to s 58(2) of the QCAT Act and the substantive application was made pursuant to s 33 of the QCAT Act. The landlord makes no complaint about the form of the interim application. Rule 7(1) of the QCAT Rules required the substantive application to be made in the approved form, which was Form 34. Section 33(2)(a) of the QCAT Act required the substantive application to be in a form which substantially complied with the QCAT Rules. I have noted at [7] of these Reasons, that the substantive application was incomplete at Part D of the Form 34. It should also be noted that the box which the tenant had crossed in Part D, was only applicable where a dispute notice had been lodged. No dispute notice had been lodged in this case. It is well arguable that the noncompliance with the requirements of Part D of the Form 34 was substantial. Even accepting that to be the case, the substantial non-compliance was with a procedural provision and was able to be waived by QCAT. QCAT, acting through the principal registrar, accepted the substantive application and, by reason of s 36 of the QCAT Act, a proceeding then started in respect of the substantive application. The acceptance of the substantive application would appear to have involved QCAT waiving any non-compliance with the procedural requirements of s 33(2)(a). For these reasons, I find that the tenant has applied to QCAT to exercise its original jurisdiction conferred by s 103 of the Retail Shop Leases Act.[11]
- [16]Unlike in McDonald’s, the application for interim relief in Wagners Properties was brought in a substantive proceeding. Kelly J was satisfied that the filing of the substantive application by the tenant was sufficient to satisfy s 15 of the QCAT Act and that, together with the jurisdiction conferred by s 103, the Tribunal’s jurisdiction to determine the tenant’s substantive application had been engaged.
- [17]It may be accepted that the corollary of the finding by Kelly J that the tenant had commenced a substantive proceeding in QCAT is that the application for interim relief was an interlocutory application, having been filed in an extant proceeding.
- [18]A ‘proceeding’ is defined in the QCAT Act as meaning, generally, a proceeding before the Tribunal, including an appeal before the Appeal Tribunal and a proceeding relating to an application for leave to appeal to the Appeal Tribunal.
- [19]While the definition of ‘proceeding’ in schedule 3 of the QCAT Act is a broad one, it is apparent from the many provisions in the Act containing reference to the term that it means an originating, or in other words substantive, proceeding.
- [20]Sections 58 and 59 of the QCAT Act are found in Chapter 2, Part 6, Division 1. Chapter 2 is concerned with jurisdiction and procedure. Part 1 of Chapter 2, containing s 15, is concerned with the jurisdiction of the Tribunal. Part 3 contains the relevant provisions about starting a proceeding. Part 6 deals with other provisions about a proceeding. Division 1 of Part 6 is concerned with the Tribunal’s procedural powers. It is apparent from the structure of the QCAT Act that the provisions in Part 6 are concerned with the powers of the Tribunal once a substantive proceeding has been commenced.
- [21]Section 58(1) provides that the Tribunal may make an interim order before making a final decision in a proceeding. The section contains examples of the circumstances in which an interim order might be made. The examples make clear that an order pursuant to s 58(1) can be made in an existing proceeding. Section 59(1) is expressed in similar clear terms. The Tribunal may by order grant an injunction including an interim injunction in a proceeding if it is just and convenient to do so.
- [22]The provisions of a statute should be construed to give the words their ordinary meaning, avoiding an absurd or unreasonable consequence. The Tribunal is a creature of statute and has only those powers conferred by the QCAT Act and the various enabling Acts. As was stated by Kelly J in Wagners Properties, s 15 of the QCAT Act provides that the Tribunal may exercise its original jurisdiction conferred by an enabling Act if a person has applied to the Tribunal under the QCAT Act to exercise its original jurisdiction. The Tribunal has jurisdiction to hear retail tenancy disputes. In the context of retail tenancy disputes, an application for interim relief pursuant to s 58 or s 59 of the QCAT Act is not an application to hear a retail tenancy dispute. Rather, it is an application for orders to be made on an interim basis until such time as the tribunal exercises its original jurisdiction and makes final orders to resolve a retail tenancy dispute. This approach to the construction of s 58 and s 59 is consistent with Wagners Properties. An interim order or an order for an interim injunction can only be made in an existing substantive proceeding. The filing of an application for such orders cannot, of itself, constitute a substantive proceeding. The construction I prefer is consistent with the overall legislative scheme of the QCAT Act and the specific provisions to which I have referred in relation to the jurisdiction of the Tribunal.
Conclusion
- [23]I have concluded that an order can only be made by the Tribunal pursuant to s 58 or 59 of the QCAT Act upon application being made in an existing substantive proceeding. Here, there is no substantive proceeding before the Tribunal. It follows that direction 5 of the Directions made 13 December 2024 must be vacated and the interim injunction dissolved. The application for interim order must be dismissed.
Footnotes
[1] Retail Shop Leases Act 1994 (Qld), s 5B.
[2] Retail Shop Leases Act 1994 (Qld), s 5A.
[3] Ibid, Schedule, Dictionary.
[4] Ibid, s 63.
[5] Other than those circumstances where a court orders the transfer of a proceeding for a retail tenancy dispute to QCAT.
[6] Ibid, s 55(1).
[7] Ibid, s 56.
[8] Ibid, s 63. Section 63(1)(b) also requires that the lease must not have ended more than one year before the dispute notice was lodged.
[9] [2011] QCAT 293.
[10] [2023] QSC 40.
[11] Ibid, [60]-[61].