Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd
[2022] QCATA 132
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- Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd[2022] QCATA 132
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Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd[2022] QCATA 132
Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd[2022] QCATA 132
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2022] QCATA 132 |
PARTIES: | golden vision gold coast pty ltd (applicant/appellant) v orchid avenue pty ltd (respondent) |
APPLICATION NO/S: | APL 193-20 |
ORIGINATING APPLICATION NO/S: | RSL169-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 21 March 2022 |
HEARING DATE: | 31 August 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson Member Deane |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – ERROR OF FACT OR MIXED LAW AND FACT – where parties to a retail shop lease fell into dispute – where Tribunal found that lease agreement not terminated – where finding that lease agreement not breached by lessor – whether denial of procedural fairness – whether Notice of Dispute constituted termination notice – whether breach of lease agreement – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46 Retail Shop Leases Act 1994 (Qld), s 11, s 21B, s 21F, s 55, s 56, s 63, s 64, s 83, s 91 Cachia v Grech [2009] NSWCA 232 Citicorp Australia Ltd v Hendry (1985) 4 NSWLR 1 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215 Heyman v Darwins Ltd [1942] AC 356 Immer (N 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 Issitch v Worrell [2000] FCA 477 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QBE Insurance (Australia) Limited v Cape York Airlines Pty Ltd [2011] QCA 60 QUYD Pty Ltd v Marvass Pty Ltd [2009] Qd R 41 Sargent v ASL Developments Ltd (1974) 131 CLR 634 |
APPEARANCES & REPRESENTATION: | |
Applicant: | MJ May instructed by Cooper Grace Ward |
Respondent: | DM Turner instructed by Clayton Utz |
REASONS FOR DECISION
- [1]The appellant, Golden Vision Gold Coast Pty Ltd (‘Golden Vision’), as lessee, entered into a lease agreement with the respondent Orchid Avenue Pty Ltd (‘Orchid Avenue’), as lessor, to operate a bar in a retail shopping centre. Golden Vision contends that it validly terminated that agreement. By decision delivered on 17 June 2020, the Tribunal at first instance found that it did not validly terminate and ordered it to pay Orchid Avenue $28,267.81 within 28 days. Golden Vision seeks leave to appeal and to appeal that decision.[1]
- [2]Golden Vision relies upon three grounds. It contends that the Tribunal at first instance erred:
- (a)in making a finding in relation to the due date for the landlord’s disclosure statement contrary to the agreement of the parties and, in consequence, not affording procedural fairness (Ground 1);
- (b)in finding that the Notice of Dispute did not constitute a termination notice (Ground 2);
- (c)in finding that clause 5.1 was not an essential term of the lease agreement, that the term was not breached, and that Golden Vision did not incur any loss as a result of any breach (Ground 3).
- (a)
- [3]As submitted by Golden Vision, Grounds 1 and 2 involve errors of law such that leave to appeal is not required. At the oral hearing of this Appeal, Golden Vision conceded that Ground 3 involves questions of fact or mixed fact and law, requiring leave to appeal.
Ground 1
- [4]Grounds one and two of the appeal are interrelated. Ground one is that the Tribunal erred in its finding as to the due date for the landlord’s disclosure statement required by s 21B of the Retail Shop Leases Act 1994 (Qld) (‘the Act’), which finding was contrary to the agreement of the parties, and, as such, denied Golden Vision procedural fairness, there being no opportunity to lead evidence on that issue. A lessor’s failure to comply with s 21B of the Act gives the lessee a right to terminate by giving written notice in accordance with s 21F of the Act. Whether or not there was a valid termination notice is the subject of ground 2 of the appeal. Accordingly, even if Golden Vision is successful in relation to ground 1, the appeal nevertheless fails if, in any event, proper notice of termination was not provided by Golden Vision to Orchid Avenue.
- [5]Underlying ground 1 of the appeal are s 11 and s 21B(1) of the Act. Section 21B(1) provides:
At least 7 days before a prospective lessee of a retail shop enters into a retail shop lease (the prescribed disclosure date), the lessor must give the prospective lessee—
- (a)a draft of the lease; and
- (b)a disclosure statement.
Section 11 of the Act provides:
A retail shop lease is entered into on the earliest of the following dates—
- (a)the first date by which the lease is signed by all of the parties to the lease;
- (b)the date the lessee enters into possession of the retail shop under the lease;
- (c)the date the lessee first pays rent under the lease, other than as a deposit to secure the premises for the lease
- [6]Golden Vision submits that at the hearing at first instance the parties agreed that the lease agreement had been entered into on 21 February 2018 and that that was the relevant date for the purposes of s 11 of the Act.[2] Accordingly, consistent with s 21B(1) of the Act, the landlord’s disclosure statement was to be provided at least 7 days prior to that date.[3] The Tribunal at first instance found that the landlord’s disclosure statement was issued to Golden Vision on 20 February 2018.[4]
- [7]It is next submitted that in finding that the lease was not ‘entered into’ for the purposes of s 11 of the Act until 18 April 2018,[5] impacting the due date for the landlord’s disclosure statement,[6] the Tribunal at first instance did not afford the parties procedural fairness; Golden Vision having lost the opportunity to lead further evidence in respect of the three alternative factual scenarios provided for in s 11 of the Act.[7]
- [8]Golden Vision says that it was not until Orchid Avenue’s final written submissions were filed and served, after the close of evidence, that it became apparent that Orchid Avenue intended to resile from the agreement made on the first day of the hearing. In those written submissions Orchid Avenue submitted that the parties did not enter into the lease within the meaning of section 11 of the Act until 18 April 2018.[8]
- [9]However, it is not altogether clear what was ‘agreed’ between the parties and what relationship it had to the finding of the Tribunal as to when the lease agreement was ‘entered into’ for the purposes of s 11 of the Act. As appears from the transcript of the proceedings,[9] it was agreed between the parties that on the ‘construction of the lease’ the lease commenced on 21 February 2018.[10] The Tribunal noted that ‘it is common ground as between the parties that the lease commenced on 21 February 2018’.[11] However, as stated by the Tribunal at first instance,[12] that is not necessarily the same thing as the date on which the lease is ‘entered into’ for the purposes of s 11 of the Act. As is noted above, for the purposes of s 11 of the Act, the lease is entered into at the earliest of three specified alternative dates. The Tribunal found that, for the purposes of s 11 of the Act, the lease was ‘entered into’ on 18 April 2018.
- [10]In our view there has been no denial of procedural fairness. As appears from the transcript of the first day of the hearing, in response to a question by the learned Member as to when the lease ‘commenced’, counsel for Golden Vision agreed that it was 18 April 2018.[13] It was counsel for Orchid Avenue who submitted that the ‘commencement date’ was 21 February 2018.[14] Counsel for Golden Vision then agreed that on ‘the construction of the lease’ the ‘commencement date’ was 21 February 2018.[15] It was not until the second day of the hearing that counsel for Golden Vision raised the question of whether there was a right to terminate on the basis of non-compliance with s 21B of the Act.[16] It was not one of the issues in contention raised on the first day of the hearing.[17]
- [11]Having raised this issue on the second day of the hearing, there was an opportunity for Golden Vision to fully address the question of whether one or other of the criteria in s 11 of the Act had been satisfied, rather than simply relying on what is said to have been an agreement reached on the previous day. Not only should there have been some doubt as to what was agreed, relative to s 11 and s 21B of the Act, but also any agreement that was reached arose in circumstances where failure to provide a disclosure statement in time was not an issue then in dispute between the parties. While at that time reference was made to s 11 of the Act by the learned Member, there was no discussion or submissions made by either party as to the specific timeframes indicated in s 11 of the Act. The submission made by counsel for Golden Vision that on ‘the construction of the lease’ the ‘commencement date’ was 21 February 2018, could well indicate that the specific timeframes under s 11 of the Act as to when the lease was ‘entered into’ were not in mind. Counsel for Orchid Avenue also used the term ‘commencement date’, rather than the language used in s 11. Indeed, initially, and subsequent to the reference by the learned Members to s 11, counsel for Golden Vision indicated a commencement date of 18 April 2018.
- [12]Also, it is evident from the oral submissions that counsel for Golden Vision was relying on the first of the s 11 criteria as to when the lease was ‘entered into’; that is ‘the first date by which the lease is signed by all of the parties to the lease’.[18] It was said that that was on 21 February 2018, even though in the course of the hearing it was conceded that the lease had not been signed by both parties until 18 April 2018.[19]
- [13]Further, on the final day of the hearing, it was agreed that the parties file written submissions. In the written submissions of Orchid Avenue it was submitted that the date of entry into the lease for the purposes of s 11 of the Act was 18 April 2018.[20] In reply, Golden Vision submitted that it would be unjust and unfair to allow Orchid Avenue to now resile from the position taken in relation to this issue during the hearing.[21] However, there was no attempt made by Orchid Avenue seeking to have the hearing continued so as to allow further evidence on this issue.
- [14]Also, to the extent that Golden Vision might have been misled by the agreement between the parties as to when the lease commenced and the impact of that agreement on s 11 of the Act, there is no indication as to what further evidence or material might have been produced to enable the Tribunal to conclude otherwise than that the lease was ‘entered into’ on 18 April 2018. It is apparent from the evidence of Mr Wu, for Golden Vision, that Golden Vision had not entered into possession.[22] The Tribunal stated that there was no evidence and nor was it contended that any rent had been paid under the lease, while Orchid Avenue submitted that it had always been uncontroversial that no rent had been paid.[23] That submission was not challenged by Golden Vision’s in its written submissions in reply. The Tribunal found that Golden Vision signed the lease documents on 22 February 2018 and, as appeared from the lease documents tendered at the hearing, Orchid Avenue executed the lease on 18 April 2018.[24] Counsel for Golden Vision accepted that the lease had been countersigned on 18 April 2018.[25]
- [15]The first ground of appeal is rejected.
Ground 2
- [16]Ground 2 of the appeal is that the Tribunal erred in finding that the Notice of Dispute did not constitute a termination notice for the purposes of s 21F(1) of the Act. The Notice of Dispute – Retail Shop Leases Act 1994 (Form 4) (‘the Notice’) was said to be filed in the Tribunal on 3 July 2018, initiating proceedings in the Tribunal. Section 21F(1) provides:
A lessee may terminate a retail shop lease by giving written notice to a lessor within 6 months after the lessee enters into the lease if—
- (a)the lessor does not comply with s 21B or 21E; or
- (b)a disclosure statement when given to the lessee under section 21B or 21E is a defective statement.
- [17]The Act is silent as to the form or content of any such notice. The written notice relied upon by Golden Vision for the purposes of s 21F(1) of the Act is Annexure 2 of the Notice said to be filed in the Tribunal on 3 July 2018, which the Tribunal found was given to Orchid Avenue on or about 25 July 2018.[26] Part C3 of the Notice requires the applicant to ‘set out the remedy you are seeking to resolve the dispute’. In that Part, Golden Vision refers to Annexure 2 of the Notice. That annexure provides:
In order to remedy the dispute Golden Vision Gold Coast will require the following from the Respondent:
- 1To terminate the lease with Golden Vision Gold Coast Pty Ltd and for each party to release each other.
- 2Reimburse the amount of $18,211.60 including GST to Golden Vision for fitout payments to Altran Project Management Pty Ltd to date. As per attachment 7 and 8.
- 3Reimburse the amount to $1741.50 for Liquor Licence Fees as per attachment 9
- 4Reimburse the amount of $5000 ex GST for the legal costs involved with going through the lease.
- 5Reimburse the amount of $3890 ex GST for signs from Simply Signs as per attachments 10 and 11.
- 6Reimburse the amount of $1100 including GST for Fire Consulting works by Cushway. As per attachment 12.
- 7Reimburse the amount of $2435 including GST for Hydraulic Consulting works by Sedgman Consulting as per attachment 13.
- 8Reimburse the amount of $ (sic) including GST for Building Approval works by MCG as per attachment 14 and 15.
- [18]The Tribunal at first instance held that the Notice was not an unequivocal statement that Golden Vision was treating the lease as at an end and did not constitute an effective notice of termination.[27] The Tribunal found that the Notice was received by Orchid Avenue directly from the Tribunal and not from Golden Vision,[28] and noted that it was framed in terms of what Golden Vision ‘will require’ from Orchid Avenue ‘in order to remedy the dispute’, including: ‘To terminate the lease with Golden vision Gold Coast Pty Ltd and for each party to release each other’.[29] It was not stated that the lease is terminated or at an end and it was held by the Tribunal at first instance that it could not objectively be understood as conveying notice of termination of the lease.[30]
- [19]Viewed objectively, the words or conduct required to constitute an election to terminate must be clear and unequivocal, in the sense that it is consistent only with the exercise of the right to terminate.[31]
- [20]While the issue of a writ or claim may sometimes be regarded as constituting the exercise of a right to terminate,[32] the statutory processes giving rise to the Notice in the present case and the content of that Notice are not suggestive of the exercise of such a right. With limited exceptions, a retail tenancy dispute must first pass through the mediation process set out in the Act,[33] before the notice of dispute finds its way to the Tribunal by way of a referral by the mediator,[34] or the dispute is the subject of any application made by a party.[35] On that basis, the Notice is framed in terms of the remedy being sought through mediation and, if the mediation is unsuccessful, through the Tribunal. Section 64(1) of the Act, which provides for the making of an application to QCAT, is also framed in terms of an application ‘for an order to resolve the dispute’. By s 83(1) of the Act, the Tribunal ‘may make the orders, including declaratory orders, QCAT considers to be just to resolve a retail tenancy dispute’.
- [21]The Notice does not refer to any specific breaches and, at Annexure 1 of the Notice, it refers to and annexes a letter from Orchid Avenue to Golden Vision dated 2 July 2018 enclosing a notice to remedy breach directed to Golden Vision. At Annexure 1 it is stated that the suggested breaches ‘are regarding breaches of a management agreement not specifically to a breach of lease. Furthermore, this agreement has been terminated by Orchid Avenue and as such the breaches no longer are valid’. That seems to suggest a distinction; that the lease, as distinct from the management agreement, has not been terminated.
- [22]Further, by s 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), an application made to the Tribunal may be withdrawn.[36] If the Notice constitutes a termination notice, that raises the question of whether any withdrawal of the application would also signify a purported withdrawal of the notice of termination, which is said to have arisen by the issue of the Notice. On the other hand, a notice to terminate cannot unilaterally be withdrawn.
- [23]In our view, the Tribunal at first instance did not err in holding that the Notice did not constitute a termination notice. This ground of appeal is rejected.
Ground 3
- [24]Ground 3 of the appeal is in three parts: that the Tribunal at first instance erred in finding that clause 5.1 of the agreement for lease was not an essential term entitling the appellant to terminate, that Orchid Avenue had not breached that term and clause 6.1, and that it was not satisfied that Golden Vision had incurred the loss claimed by reason of Orchid Avenue’s breaches.[37]
- [25]Clause 5.1 of the agreement for lease is headed ‘Handover’ and provides:
We must use reasonable endeavours to complete Our Works[38] to a stage sufficient for you to occupy the Premises for the purposes of conducting Your Works on or before the Estimated Handover Date.
The estimated handover date was 21 February 2018.
Clause 6.1(a) of the agreement for lease was headed ‘When we will complete our works’ and provided:
We must use reasonable endeavours to complete Our Works, except for minor matters which will not prevent you occupying the Premises to conduct Your Business, by the Estimated Completion Date.
The estimated completion date was 23 March 2018.
- [26]Clause 15.14 of the agreement for lease provided: ‘Time is of the essence in respect of this deed’.
- [27]In finding that clause 5.1 was not an essential term,[39] the Tribunal at first instance referred to other provisions of the agreement for lease and to the evidence before it, including that of Mr Wu, for Golden Vision, who signed the lease documents on 22 February 2018 (the day after the ‘Estimated Handover Date’), knowing that the fit out plans had not been approved and that it was Golden Vision’s responsibility to approve those plans.[40] The plans were first provided on 9 April 2018 and the final plans were provided on 18 April 2018.[41] The fit out works and excluded works were completed in accordance with the contract signed on 18 April 2018.[42] The Tribunal found that Orchid Avenue could not complete the works until Golden Vision had finalised its drawings and specifications for the works in accordance with its obligations under clause 8.1(b) of the agreement for lease.[43] Accordingly, it was held that Orchid Avenue could not, using reasonable endeavours, have completed the works by 21 February 2018 or 23 March 2018.[44]
- [28]Golden Vision conceded that this ground of appeal involved questions of fact or mixed question of law and fact, such that leave to appeal is required. There are well established principles as to when leave should be granted:[45] is there a reasonably arguable case of error in the primary decision;[46] is there a reasonable prospect that the applicant will obtain substantive relief;[47] is leave necessary to correct a substantial injustice to the applicant caused by some error;[48] is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage[49]
- [29]Golden Vision submits that there are reasonable prospects of success and that it stands to suffer a substantial injustice if leave is refused. That is because it will be required to comply with the Tribunal order and it is seeking separate relief against Orchid Avenue in the Supreme Court, in which Orchid Avenue has contended that those separate proceedings are an abuse of process and the Tribunal’s determination gives rise to findings that are determinative of those separate proceedings.
- [30]With reference to the prospects of success, Golden Vision submits that clause 5.1 was an essential term, breach of which would allow termination, for two reasons.[50] First, by clause 15.4, time was to be of the essence of the agreement. Second, the surrounding circumstances establish that clause 5.1 was an essential term. The suggested surrounding circumstances are that the Commonwealth Games were due to commence on the Gold Coast in April 2018 and that it was expected that the precinct would be up and running by that date.[51]
- [31]Clause 15.4 is not tied to any particular clauses and it does not necessarily follow that it was intended to apply to all obligations under the agreement for lease.[52] It is a question of construction. It is not evident that it was intended to extend to clause 5.1, which only requires that there be ‘reasonable endeavours’ to complete the specified works by the ‘Estimated Handover Date’. Also, what constitutes reasonable endeavours cannot always be readily assessed, so that there should be caution in finding that its satisfaction or otherwise conclusively determines the contractual rights as between the parties. Further, clause 6.1 provides that the lessor must use reasonable endeavours to complete the works ‘except for minor matters’ by the later ‘Estimated Completion Date’. On top of that, as noted above, the lease documents were signed on behalf of Golden Vision on the day after the estimated handover date, suggesting that Golden Vision did not consider it to be an essential term.
- [32]In relation to the suggested important ‘surrounding circumstances’ of the Commonwealth Games, the evidence of Mr Wu for Golden Vision in relation to this was acknowledged by the Tribunal at first instance.[53] Clearly it was taken into account. It is not said why that single item of evidence should displace the findings of the Tribunal on the whole of the evidence as outlined above.
- [33]In relation to the question of whether there was a breach of clauses 5.1 and 6.1, Golden Vision submits that the Tribunal posed the wrong question: rather than asking whether Orchid Avenue ‘had’ used all reasonable endeavours to complete the works by the specified time, the question was assessed by reference to whether it ‘could’ have completed the works if it had used reasonable endeavours.[54] It is further submitted that Orchid Avenue had not used reasonable endeavours, with reference being made to admissions made that it had not competed certain works by the specified date, to Mr Wu’s evidence that the works were delayed because Orchid Avenue was trying to save money and that the approved plans were not requested by Orchid Avenue.[55] It was added: ‘Critically, the respondent led no evidence of the reasonable endeavours, if any, which it used, to complete the works by the relevant date’.[56]
- [34]Whether the proper question was ‘had’ Orchid Avenue used reasonable endeavours or ‘could’ it have completed the works if it had used reasonable endeavours, it is evident on the findings of the Tribunal at first instance that the answer remains the same; that is, the obligation was on Golden Vision to first provide the fit out plans, which were not provided until April 2018. Golden Vision does not submit otherwise. In any event, it is evident that the Tribunal at first instance understood the relevant question. It is noted that the heading to that part of the reasons is: ‘Did the lessor use “all reasonable endeavours” to complete the works?’ Also, in its reasons the Tribunal stated: ‘We have found that the lessor used all reasonable endeavours to complete its works as required under the agreement to lease …’.[57] Further, it is not made clear what more Orchid Avenue might or could have done in circumstances where the inaction rested with Golden Vision and why Golden Vision should be entitled to benefit from its own inaction.
- [35]Given the above conclusions, it is not necessary to consider whether the Tribunal erred in finding that Golden Vision did not suffer loss arising from any breach. However, it is noted that the Tribunal at first instance found that invoices relied upon as indicative of the loss were addressed to entities other than Golden Vision.[58] It is submitted by Golden Vision that the Tribunal erred in failing to deal with the evidence of Mr Wu that there was an accounting adjustment between the relevant entities, with the result that the expenses were ultimately borne by Golden Vision. However, that evidence emerged through cross examination and was not the subject of any other evidence, documentary or otherwise. The cross-examination of Mr Wu is referred to in the reasons[59] and it is evident that the Tribunal was not satisfied that any loss had been incurred by Golden Vision.
- [36]In our view there is not a reasonably arguable case of error in the decision at first instance and nor is there a reasonable prospect that the applicant will obtain substantive relief. Also, there is no substantial injustice. It is noted that both the separate proceedings in the Supreme Court and the proceedings before the Tribunal were initiated by Golden Vision.
- [37]Leave to appeal on ground 3 of the appeal is refused and the appeal is dismissed.
Footnotes
[1] Application for leave to appeal or appeal filed 15 July 2020.
[2] Applicant’s outline of submissions, [28]-[30].
[3] Ibid, [39].
[4] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [28]-[29].
[5] Ibid, [41].
[6] It was held that that the prescribed disclosure date for the purposes of s 21B of the Act was 11 April 2018; that is, 7 days before the date by which the lease is signed by all parties: Ibid.
[7] Applicant’s outline of submissions, [32]-[39].
[8] Appeal book volume 1 of 3, tab 7, [69].
[9] Transcript 1-35 L 35 to 1-37 L 40; applicant’s outline of submissions, [28].
[10] By clause 3.3 of the lease agreement, ‘the lease will commence on the commencement date’, while clause 2.1 defined ‘commencement date’ to mean ‘the estimated handover date’. Also by clause 2.1, the ‘estimated handover date’ means the date specified in item 9 of schedule 1. That date was 21 February 2018.
[11] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [35].
[12] Ibid, [38].
[13] Transcript 1-35, L 37 to L 44.
[14] Ibid, 1-36, L 5 to 1-37, L 28.
[15] Ibid, 1-37, L 32 to L 34.
[16] Ibid, 2-2, L 20 to 2-3, L 46.
[17] Ibid, 1-29, L 26 to 1-30, L 36.
[18] Ibid, 3-74, L 33 to 3-75, L 26.
[19] Ibid, 1-34, L 32 to 1-35, L 2; 1-35, L 37 to l-36, L 1.
[20] Outline of submissions for the respondent, [69].
[21] Applicant’s submissions in reply, [32].
[22] Transcript 2-49, L 30 to 2-53, L 2. See also Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [33].
[23] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [33]; Respondent’s outline of submissions, [22](b).
[24] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [35], [41].
[25] Transcript 1-34, L 32 to L-35; 1-35, L 37 to l-36, L 1.
[26] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [47], [50]-[52].
[27] Ibid, [55]-[57].
[28] Ibid, [50]-[52].
[29] Ibid, [[55]-[57]
[30] Ibid, [56]-[57].
[31] Immer (N 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26, at 30 per Brennan J, at 38-39 per Deane, Toohey. Gaudron and McHugh JJ; Sargent v ASL Developments Ltd (1974) 131 CLR 634, at 646 per Stephen J, which whom McTiernan ACJ agreed, per Mason J at 648-649; QBE Insurance (Australia) Ltd v Cape York Airlines Pty Ltd [2011] QCA 60, at [23]-[24] per Muir JA, Chesterman JA and Margaret Wilson AJA agreeing; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50, at [356]-[359].
[32] See Heyman v Darwins Ltd [1942] AC 356, at 362, per Viscount Simon LC; Issitch v Worrell [2000] FCA 477, [21] per Drummond J, Spender and Katz JJ agreeing.
[33] Section 55 of the Act provides that a notice of dispute is lodged with the Chief Executive, while 56 of the Act provides that the Chief Executive is to nominate a mediator.
[34] The Act, s 63.
[35] Ibid, s 64.
[36] By s 91 of the Act, a notice to the Chief Executive may be withdrawn, unless the matter has been referred to QCAT or an application has been made to QCAT. A note to that section makes reference to the provision allowing for withdrawal under s 46 of the QCAT Act.
[37] Applicant’s outline of submissions, [51]-[73].
[38] By clause 2.1 of the agreement, in essence, ‘our works’ means the work which was the responsibility of the lessor, Orchid Avenue.
[39] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [70].
[40] Ibid, [71].
[41] Ibid, [73]-[74].
[42] Ibid, [71].
[43] Ibid, [72]-[77].
[44] Ibid, [72]-[73].
[45] See, eg, Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.
[46] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[47] Cachia v Grech [2009] NSWCA 232, [13].
[48] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[49] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
[50] Applicant’s outline of submissions, [58]-[60].
[51] Ibid, [60].
[52] See, for example, Citicorp Australia Ltd v Hendry (1985) 4 NSWLR 1.
[53] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [67].
[54] Applicant’s outline of submissions, [62]-[67].
[55] Ibid, [69].
[56] Ibid, [70].
[57] Ibid, [83].
[58] Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 215, [79].
[59] Ibid.