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Wilson v LP & MJ Pty Ltd[2019] QCATA 82

Wilson v LP & MJ Pty Ltd[2019] QCATA 82

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Wilson & Anor v LP & MJ Pty Ltd [2019] QCATA 82

PARTIES:

ALAN GORDON WILSON AS TRUSTEE UNDER INSTRUMENT 71417844

(first appellant)

PAMELA HELEN CASWELL AS TRUSTEE UNDER INSTRUMENT 71417844

(second appellant)

 

v

 

LP & MJ PTY LTD

(respondent)

APPLICATION NO/S:

APL187-18

ORIGINATING APPLICATION NO/S:

MCDO448-18 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

10 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The order made 25 May 2018 dismissing the appellant’s application to strike out proceedings set aside.
  4. Minor Civil Dispute – minor debt application 448-18 dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where parties to a retail shop lease fell into dispute – where the tenant commenced minor civil dispute-minor debt proceedings in the Tribunal to recover money – where the respondent lessors filed an application to strike out the claim – where the application to strike out dismissed – where the lessors filed an application for leave to appeal against the dismissal of the strike out application – where parties had not undertaken requisite mediation prior to commencement of the minor debt application – whether there was jurisdiction in the Tribunal to hear the minor debt application

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, schedule 2 definitions

Retail Shop Leases Act 1994 (Qld) s 63, s 64, s 103

Burinpipal Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100

Pickering v McArthur [2005] QCA 294

REPRESENTATION:

 

Appellants:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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 about 31 July 2017 the parties entered into an agreement to lease cafe premises located at the Redlands Business Park complex.
  2. [2]
    The parties signed a lease on 27 September 2017. There were immediate difficulties that arose with respect to the conduct of the business and whether or not a restaurant business could also be conducted from the leased premises.
  3. [3]
    The next day on 28 September 2017 the respondent corporate tenant advised the appellant lessors that the tenant terminated the lease because of misleading and deceptive conduct and misrepresentations on the part of agents acting for the lessor.
  4. [4]
    The respondent commenced proceedings in the Tribunal by way of application for minor civil dispute – minor debt on 27 March 2018 claiming the amount of $24,801.79 plus interest and costs.
  5. [5]
    On 4 May 2018 the appellant lessors filed an application to strike out the respondent’s claim pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) on the basis that it was frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
  6. [6]
    The appellants claimed the Tribunal had no jurisdiction to hear the matter as a minor civil dispute because it was a retail shop lease dispute. Further, given the matter was a retail shop lease dispute, under the Retail Shop Leases Act 1994 (Qld) (‘the Act’) a prerequisite to commencement of proceedings was mediation and no mediation had occurred between the parties.
  7. [7]
    The application for miscellaneous matters was refused by the Tribunal at first instance. The appellants filed a response to the claim in the minor civil dispute – minor debt proceedings but also filed an application for leave to appeal or appeal against the decision refusing to strike out the minor debt application.
  8. [8]
    The minor civil dispute – minor debt application was adjourned to the registry pending determination of the application for leave to appeal.
  9. [9]
    The appellants say the Tribunal has made an error of law in dismissing the application to strike out.
  10. [10]
    Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
  11. [11]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] There may be other relevant considerations, but these are primary.

Retail shop lease dispute

  1. [12]
    By s 103 of the Act the Tribunal has jurisdiction to hear retail tenancy disputes. Retail tenancy dispute is defined in the schedule to the Act as meaning any dispute under or about a retail shop lease, or about the use or occupation of the leased shop under a retail shop lease, regardless of when the lease was entered into.
  2. [13]
    The matter at hand concerns a dispute about the use of the leased shop or representations made by the lessor’s representatives about the use of a leased shop under a retail shop lease. It is clearly a retail tenancy dispute as defined under the Act and all parties concede that point.[3]
  3. [14]
    The Act stipulates that mediation between the parties is a prerequisite to any application by a party to the Tribunal to resolve the dispute. By s 63 and 64 of the Act, if mediation does not resolve the issues in dispute, the matter can be referred to the Tribunal for resolution.
  4. [15]
    Mediation is a pre-requisite requirement to commencement of any proceedings in the Tribunal, regardless how those proceedings are brought and the Tribunal has no power to dispense with the mediation requirement.[4]
  5. [16]
    In the matter at hand, there was no mediation conducted before the proceedings were commenced in the Tribunal as a minor civil dispute – minor debt matter. Given that failure to comply with the requisite pre-proceeding requirements, the Tribunal has no jurisdiction to hear the matter, either as a minor civil dispute – minor debt application or as a retail shop lease application.

Retail shop lease dispute as a minor civil dispute – minor debt proceeding

  1. [17]
    The jurisdictional difficulties for the respondent tenant does not end there however.
  2. [18]
    By s 12 of the QCAT Act a person may apply to recover a debt or liquidated demand of money as a minor civil dispute. The definition of minor civil dispute in schedule 3 provides as follows:

1 Minor civil dispute means—

  1. (a)
    a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or
  1. (b)
    a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
  1. (i)
    for payment of money of a value not more than the prescribed amount; or
  1. (ii)
    for relief from payment of money of a value not more than the prescribed amount; or
  1. (iii)
    for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
  1. (iv)
    for return of goods of a value not more than the prescribed amount; or
  1. (v)
    for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or
  1. (c)
    a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or
  1. (d)
    a claim for repair of a defect under the Motor Dealers and Chattel Auctioneers Act 2014, schedule 1, section 13; or
  1. (e)
    a tenancy matter; or
  1. (f)
    a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or
  1. (g)
    a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the Tribunal for an order.

Note—

A matter mentioned in paragraph (g) would relate to part of a barrier for a swimming pool along a common boundary.

2  However, if an enabling Act confers jurisdiction on the Tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.

  1. [19]
    The Act is an enabling Act giving jurisdiction to the Tribunal to hear retail tenancy disputes. However the Act says nothing about whether such may be heard as minor civil disputes.
  2. [20]
    Here the respondents filed an application for minor civil dispute – minor debt in the Tribunal to determine a retail shop lease dispute which was asserted to be a claim to recover a debt or liquidated demand of money. That claim could not be the subject of a minor civil dispute – minor debt application because the Act does not say a retail shop lease dispute can be brought as a minor civil dispute claim.
  3. [21]
    That is not to say where some enabling Act gives the Tribunal jurisdiction for particular matters, and that enabling Act does not specify that a claim brought pursuant to the jurisdiction conferred by that enabling Act on the Tribunal can be determined as a minor civil dispute, that all minor civil dispute proceedings are therefore excluded.
  4. [22]
    There are a number of different minor civil dispute claims.  Pursuing a claim for a debt or liquidated demand of money by way of a minor debt application might not be available, but, for example, a minor civil dispute – consumer dispute application might well be. Such is the case with building disputes under the Queensland Building and Construction Commission Act 2003 (Qld) where an owner may be able to claim compensation from a builder through a minor civil dispute – consumer application, whilst the unpaid builder cannot in turn claim payment of outstanding moneys due under the building contract from the owner utilising a minor civil dispute – minor debt claim.
  5. [23]
    It should be noted that there may be other constraints applying to further limit access to the minor civil dispute jurisdiction, such as the limited definition of consumer under the QCAT Act which excludes corporate consumers from relief and also excludes services supplied to an individual in the course of carrying on a trade or business.
  6. [24]
    It is not to the point whether or not the claim was for a liquidated demand of money, as the parties contended at some length in submissions, but rather the process chosen to pursue a claim for money consequent on a dispute concerning a retail shop lease.

Conclusion

  1. [25]
    Given the subject matter of the minor debt application comprises a retail shop lease dispute and the prerequisite mediation requirements have not been attended to prior to commencement of proceedings, and further, that the proceeding in the Tribunal was by way of minor civil dispute – minor debt application to recover a liquidated amount of money where that proceeding type is not available in the determination of a retail shop lease dispute, the application by the appellants to strike out the claim of the respondents in the minor debt proceedings should have succeeded in the Tribunal below. The Tribunal had no jurisdiction to determine the minor debt application.
  2. [26]
    The application for leave to appeal must be granted and for the reasons given above the appeal allowed. There was clearly an error in the proceedings below which must be corrected. The appropriate order is that minor civil dispute – minor debt application 448–18 be dismissed for want of jurisdiction.

Footnotes

[1]  QCAT Act, s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294, [3].

[3]  Application for leave to appeal or appeal Annexure A, [58]; Submissions in Reply no behalf of the Respondent filed 5 October 2018, [10].

[4] Burinpipal Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100, [14]-[15].

Close

Editorial Notes

  • Published Case Name:

    Wilson & Anor v LP & MJ Pty Ltd

  • Shortened Case Name:

    Wilson v LP & MJ Pty Ltd

  • MNC:

    [2019] QCATA 82

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    10 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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