Sandgate Taphouse Pty Ltd v SJI No 7 Pty Ltd
[2025] QCAT 80
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Sandgate Taphouse Pty Ltd v SJI No 7 Pty Ltd[2025] QCAT 80
- Add to List
Sandgate Taphouse Pty Ltd v SJI No 7 Pty Ltd[2025] QCAT 80
Sandgate Taphouse Pty Ltd v SJI No 7 Pty Ltd[2025] QCAT 80
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Sandgate Taphouse Pty Ltd v SJI No 7 Pty Ltd [2025] QCAT 80 |
PARTIES: | Sandgate Taphouse Pty Ltd (applicant) v SJI No 7 Pty Ltd (respondent) |
APPLICATION NO/S: | RSL067-24 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 3 March 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 seeking respondent’s consent to lease transfer and for respondent not to issue breach notices – 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 46A, s 63, s 64, s 83, s 103 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 59 Contract PPS Pty Ltd t/as Petals & Pinecones v Ciranni (unreported) 28 February 2025 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
- [1]The applicant is the tenant of a retail shop. The respondent is the lessor. The parties have fallen into dispute. The applicant has filed an application for interim relief seeking orders that the respondent consent to the transfer of the lease and restraining the respondent from engaging in unconscionable conduct by issuing breach notices.
- [2]On 19 December 2024 the Tribunal ordered that the respondent be restrained from acting on a notice to remedy breach issued on 6 December 2024 until the determination of the application for interim order.
- [3]The applicant says that on 21 February 2025 the respondent terminated the lease. The application for interim order falls to be determined.
- [4]The following matters are not controversial:
- The premises the subject of the tenancy are used as a retail shop;
- The subject tenancy is a retail shop lease;
- The dispute between the parties is a retail tenancy dispute.
- [5]After the filing of the application for interim order the parties were directed to file submissions addressing the jurisdiction of the Tribunal to decide the application in the absence of the parties engaging in the pre-proceedings mediation process prescribed by the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’).
- [6]The Tribunal has the power to grant interim relief, including interim injunctive relief. By s 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Tribunal may, before making a final decision in a proceeding, make an interim order it considers appropriate in the interests of justice. By s 59(1) of the QCAT Act the Tribunal may, by order, grant an injunction, including an interim injunction, in a proceeding if it is just and convenient to do so.
- [7]The applicant operates a bar and restaurant business from premises leased from the respondent. The applicant has entered into a contract for the sale of the business. The applicant says, referring to a somewhat unusual set of circumstances, that the lessor and the business buyer are in effect one and the same. The applicant says:
- The respondent has unreasonably withheld its consent to the assignment of the lease to the business buyer; and
- The respondent has engaged in, and continues to engage in, unconscionable conduct in contravention of s 46A of the RSL Act. This conduct is said to include unreasonable, unfair, bullying and thuggish behaviour, issuing four breach notices to the applicant and threatening to terminate the lease and re-enter into possession of the premises.
The jurisdiction of QCAT to decide retail tenancy disputes
- [8]The jurisdiction of the Tribunal in deciding a retail tenancy dispute is found in s 103 of the RSL Act. Section 83 deals with the orders the Tribunal may make to resolve a retail tenancy dispute. Among other things, the Tribunal may make an order for a party to do, or not to do, anything and an order requiring a party to pay an amount (including an amount of compensation) to a specified person. The Tribunal’s powers to make orders are broad and include the power to make declaratory orders.
Consideration
- [9]Each of s 63 and s 64 of the RSL Act set out a pathway to the Tribunal for a retail tenancy dispute. Aside the transfer of a proceeding from a court, both pathways require the parties to engage in the pre-proceeding mediation process set out in the Act. That process starts with the lodging of a dispute notice with the Small Business Commissioner (SBC).
- [10]There is no evidence before the Tribunal that the applicant has lodged a dispute notice with the SBC. It would appear that the applicant has elected to proceed straight to the Tribunal by filing the application for interim order.
- [11]The applicant says:
- Section 103 of the RSL Act confers upon QCAT a broad jurisdiction to hear retail tenancy disputes;
- None of the exceptions referred to in s 103 apply to the dispute between the parties;
- The Tribunal has jurisdiction to decide the application for interim orders.
- [12]The applicant relies upon the decision of the Supreme Court of Queensland in Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd[1] (‘Wagners Properties’). The applicant says that decision is authority for the proposition that QCAT has jurisdiction under s 103 of the RSL Act to decide a retail tenancy dispute notwithstanding the pre-proceedings mediation process not being undertaken by the parties, because s 63 and s 64 of the RSL Act are not the only gateway to QCAT and those sections do not expressly qualify the broad jurisdiction given to QCAT under s 103.
- [13]In Wagners Properties 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.[2]
- [14]The applicant says in its submissions that Kelly J relied upon the decision of then President of QCAT, Alan Wilson J, in McDonald’s Australia Ltd v Emaaas Pty Ltd (‘McDonald’s’).[3] In McDonald’s it was held that the filing of an application for interim injunctive relief was sufficient to engage QCAT’s jurisdiction to decide a retail tenancy dispute.
- [15]An important distinction between Wagners Properties and McDonald’s is that in the former a substantive application had been commenced in which the application for interim relief had been brought, and in the latter the application for interim relief was the only application filed and no substantive proceeding had been commenced.
- [16]In Contract PPS Pty Ltd t/as Petals & Pinecones v Ciranni (‘Contract PPS’)[4] I considered the jurisdiction of QCAT to decide an application for interim injunctive relief in circumstances where no substantive proceeding for a retail tenancy dispute had been commenced by the applicant. Of central importance was the meaning of ‘proceeding’ in s 58 and s 59 of the QCAT Act. In Contract PPS I said:
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.
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.
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.
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.
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.[5]
- [17]I see no reason to depart from my reasoning in Contract PPS.
- [18]An order pursuant to s 58 or s 59 of the QCAT Act can only be made if an application for interim relief is brought in a substantive proceeding for a retail tenancy dispute. An application for interim relief cannot, of itself, be a substantive proceeding. There is no substantive proceeding before the Tribunal. The Tribunal has no power to grant the interim relief sought.
- [19]Direction 3 of the Directions made 19 December 2024 is vacated and the interim injunction dissolved. The application for interim order is dismissed.