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  4. Gold Coast Jet Boating Pty Ltd T/AS Paradise Jet Boating v Mariner's Cove Holdings Pty Ltd - [2023] QCATA 166

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Gold Coast Jet Boating Pty Ltd T/AS Paradise Jet Boating v Mariner's Cove Holdings Pty Ltd[2023] QCATA 166

Gold Coast Jet Boating Pty Ltd T/AS Paradise Jet Boating v Mariner's Cove Holdings Pty Ltd[2023] QCATA 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gold Coast Jet Boating Pty Ltd ACN 109505973 T/AS Paradise Jet Boating v Mariner’s Cove Holdings Pty Ltd [2023] QCATA 166

PARTIES:

Gold Coast Jet Boating Pty Ltd ACn 109505973 t/as Paradise Jet Boating

(applicant/appellant)

v

mariner’s Cove Holdings Pty Ltd

(respondent)

APPLICATION NO/S:

APL301-23

ORIGINATING APPLICATION NO/S:

RSL024-23

MATTER TYPE:

Appeals

DELIVERED ON:

15 November 2023

HEARING DATE:

On-papers Hearing

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Fitzpatrick

ORDERS:

  1. The application to extend the time for Gold Coast Jet Boating Pty Ltd ACN 109 505 973 t/as Paradise Jet Boating to file an application for leave to appeal or appeal is refused.
  2. No order is made as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where Tribunal below granted an interim order restraining the respondent from taking possession of retail shop premises – where Tribunal below made no final determination as to whether berthing area licence formed part of the retail tenancy dispute – where appellant filed application for leave to appeal or appeal outside of time – where appellant seeks orders relating to berthing area – whether to extend time to file the application for leave to appeal or appeal – whether reasonable prospects of success on appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 100, s 143

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Gobus v Cairns Hinterland Hospital and Health Service & Ors [2018] QCATA 121

Gold Coast Jet Boating Pty Ltd v Ridong (Australia) International Pty Ltd [2022] QCAT 3

Metro South Hospital and Health Service and Leighton v Luthje [2015] QCATA 145

Pickering v McArthur [2005] QCA 294

Reihana v Beenleigh Show Society [2019] QCATA 91

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. [1]
    On 15 November 2023 the Appeal Tribunal refused an application to extend time for Gold Coast Jet Boating Pty Ltd (“GC Jet Boating”) to file an application for leave to appeal or appeal.
  2. [2]
    GC Jet Boating has sought reasons for the decision.
  3. [3]
    The decision was made following receipt of submissions from the parties in relation to the issue.

Background

  1. [4]
    The background to this matter is that an interim injunction was granted on 19 July 2023. Written reasons were given on 31 July 2023 and emailed to GC Jet Boating on that date. An application for leave to appeal or appeal was filed on 19 September 2023. The application for leave to appeal or appeal should have been filed by 28 August 2023.[1] The application was filed 22 days out of time.
  2. [5]
    The proposed application for leave to appeal or appeal seeks orders overturning what are said to be findings in an interim order made on 19 July 2023 surrounding the exclusion of the applicant from retaking possession of Berth Area B; an order that termination of the Marina Berth Licence for Berth B on 23 June 2023 is void, that the applicant is given the right to retake possession of Berth Area B and ancillary orders. The reasons for decision given on 31 July 2023 include an explanation as to why a berthing area the subject of a licence between the parties was not included in the orders made by the Tribunal.[2] That part of the decision is the subject of the proposed application for leave to appeal or appeal.
  3. [6]
    The Appeal Tribunal has power to extend time for the filing of the application pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
  4. [7]
    Relevant considerations include:
    1. reasons for the delay in filing the application;
    2. any prejudice to the respondent if an extension is granted;
    3. why the application for leave to appeal or appeal has merit;
    4. why it is in the interests of justice that an extension of time be granted; and
    5. any other matters which may be relevant.

Reasons for delay

  1. [8]
    As to the reasons for delay in filing the application, GC Jet Boating say  it was not until 4 September 2023 that it was apparent no relief could be obtained by it in the Tribunal with respect to the berthing licence. GC Jet Boating had made a further application to the Tribunal below. In a decision made on 4 September 2023 the Member said at [14]:

The applicant submits I should revisit the issue with the berths.  A decision has been made about that and does not need to be, nor can it be, reconsidered in this application.  That is a matter for an appeal.

  1. [9]
    GC Jet Boating submits that it filed an application for leave to appeal or appeal within 28 days of becoming aware that it had to appeal the interim order decision relating to the berth.
  2. [10]
    The respondent Mariner’s Cove Holdings Pty Ltd (“Mariner’s Cove”) submit that GC Jet Boating were legally represented at all times and ought to have known that it must appeal the decision to exclude the berth area from the terms of the interim injunction granted by the Tribunal if it considered an error had occurred.
  3. [11]
    In the circumstances I accept the submission of Mariner’s Cove that the delay in commencing the application lacks a reasonable justification. I also rely upon various statements made in this Tribunal as to the importance of observing time limits and acting in one’s own best interests.[3]

Prejudice

  1. [12]
    As to the question of prejudice to the respondent if an extension of time were granted, it is said by GC Jet Boating that the development of the Mariner’s Cove precinct will take a considerable time to complete, especially in light of other litigation in the Planning and Environment Court in relation to the development application. Accordingly, it says that delay associated with conduct of the appeal proceedings will not cause prejudice to Mariner’s Cove if an extension of time is granted.
  2. [13]
    The respondent submits that granting an extension of time to file the application for leave to appeal or appeal will delay determination of the application for final relief sought by GC Jet Boating in matter RSL024-23.
  3. [14]
    I accept that Mariner’s Cove is entitled to a determination of the application in RSL024-23 in a timely way, particularly in light of my conclusion in relation to the utility of the proposed appeal which is discussed later in this decision.

Prospects of success

  1. [15]
    As to whether there is any reasonable prospect of success in the proposed appeal, GC Jet Boating submits that the decision of Gold Coast Jet Boating Pty Ltd v Ridong (Australia) International Pty Ltd[4] found that the berth area in question formed part of a lease with a previous landlord - Ridong. The Member in that case considered the berth area could be considered as part of a retail tenancy dispute. It is submitted that the same view should be taken in this matter.
  2. [16]
    The decision was referred to the Member below. I note from the Ridong decision that the relevant lease expressly provided that the leased premises were shop 7B and Berth Area B.[5]
  3. [17]
    The respondent makes the point that in this case it is uncontroversial between the parties that the lease which GC Jet Boating seeks to rely upon does not include the berth as it is not referred to in either the items Schedule or the plan attached to the lease. Instead, the berth is the subject of a separate licence agreement.
  4. [18]
    The Member below determined an application for an interim injunction brought by GC Jet Boating. The injunction was granted restraining Mariner’s Cove from exercising its right to possession of the retail shop in the shopping precinct known as Mariner’s Cove – Shop 7B, 24B, 24C and 41. The berth area was not included in the terms of the injunction. Along with other relevant considerations as to balance of convenience and whether damages are an adequate remedy, the injunction was granted because the Member considered there was a serious question to be tried. The Member considered that there was prima facie evidence of GC Jet Boating relying on an alleged representation by a Director of Mariner’s Cove as to when it would have to vacate the premises.
  5. [19]
    The Member did not extend the interim injunction beyond the retail shop to include the berth area for two reasons:
    1. the berthing licence does not form part of the expired lease; and
    2. it is not asserted by GC Jet Boating that the berthing lease forms part of the lease to which the representation was made.[6]
  6. [20]
    I do not accept as submitted by Mariner’s Cove that the Member noted that the Tribunal did not have jurisdiction to consider whether the berth area licence formed part of a retail tenancy dispute, nor did the Member make any finding to that effect. The decision was limited to the effect of an alleged representation with respect to occupation of the premises (that is the shop, not the berth area) for a period of 60 days from when the development application was approved and it was ready to start the demolition and redevelopment.
  7. [21]
    The result is that to the extent it may be relevant to the final relief sought by GC Jet Boating, the question of whether the berth area may form part of the retail tenancy dispute remains for decision. I note from Mariner’s Cove’s response to GC Jet Boating’s amended statement of claim that it raises a jurisdiction objection, as a preliminary matter to be determined, as to whether the Tribunal has jurisdiction over the berth and the licence.
  8. [22]
    Apart from that consideration, the following issues are also relevant:
    1. whether leave to appeal might be granted; and
    2. factors which an Appeal Tribunal may take into account in an appeal from an interlocutory decision based on the exercise of a discretion.
  9. [23]
    Leave to appeal will usually only be granted from an interlocutory decision where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[7]
  10. [24]
    Given that there has been no final determination of the issue as to whether the berth area licence may form part of the retail tenancy dispute and further that there was a reasoned basis for the Member omitting the berth area from the interim injunction, I cannot conclude that there has been a substantial injustice to GC Jet Boating which needs to be corrected on appeal. On this preliminary assessment I consider it unlikely that leave to appeal would be granted in this case.
  11. [25]
    Further, an interlocutory order for an injunction is a matter of practice and procedure.[8] The courts have been reluctant to interfere with the orders of Judges at first instance which involve the exercise of discretion on points of practice or procedure as opposed to an exercise of discretion which determines substantive rights. The same principles apply in this Tribunal. The result is that the question of whether there has been substantial injustice flowing from the decision appealed assumes prominence.
  12. [26]
    For the reasons outlined I do not consider that even if leave to appeal were to be granted that there is such injustice that the terms of the interim injunction would be varied by the appeal tribunal to include the berth area.
  13. [27]
    Finally, it is relevant to consider the utility of any appeal. Mariner’s Cove have informed the Appeal Tribunal in their submissions that GC Jet Boating declined to retake possession of the premises following orders made by the Tribunal on 4 September 2023, Mariner’s Cove remains in possession of the premises and the berth area. It has now received development approval and it is ready to start demolition and redevelopment. On 24 October 2023 Mariner’s Cove again delivered a notice to GC Jet Boating terminating the lease, with the notice to expire on 27 December 2023. That is consistent with the timing referred to in the alleged representation. Accordingly, it is said that there is no utility in an injunction preventing Mariner’s Cove from retaking possession of the tenancy or berth or the proposed appeal. I accept that submission. Events have moved on so that there is no practical relief the Appeal Tribunal could grant which would justify an extension of time to file the application for leave to appeal or appeal.
  14. [28]
    I note that GC Jet Boating has been given leave to amend its statement of claim. That document filed on 19 September 2023 sets out the relief sought by GC Jet Boating, including an injunction with respect to termination of its tenancies and licences, except on the following occurring:
    1. a successful development approval in favour of Mariner’s Cove; and
    2. 60 days’ notice after that approval is granted.
  15. [29]
    As those events have occurred, it is clear that there is no utility in an appeal which is intended to result in the berth area licence being included in an interim order preventing Mariner’s Cove from exercising its rights to possession (or delivering up possession) of the berth area, when that will not be final relief ordered in the matter.
  16. [30]
    The relief sought also includes orders for the payment of liquidated sums and unliquidated damages, which should proceed to determination.
  17. [31]
    I conclude that GC Jet Boating does not have a reasonable prospect of success in the appeal.

Interests of Justice

  1. [32]
    GC Jet Boating recaps its earlier submissions on the relevant factors for consideration which it says establish that it is in the interests of justice for an extension of time to be granted.  I do not agree that the matters raised by GC Jet Boating weigh in its favour in the application or assist it in establishing that an extension of time is in the interests of justice.
  2. [33]
    GC Jet Boating also say that QCAT should clarify its position on the scope of its jurisdiction relating to the Retail Shop Leases Act and the berth.  In my view there has been no finding as to the whether the berth area licence may be part of a retail tenancy dispute. The issue is live and will be dealt with by the Tribunal on the hearing for final relief. Accordingly, reconciling the Ridong decision with the current facts is not a matter which the Appeal Tribunal need embark upon in the interests of justice.

Costs

  1. [34]
    Mariner’s Cove in its submissions in the matter have sought an order for its costs. No formal application has been filed. I will nevertheless deal with the request in order to finalise the matter.
  2. [35]
    The request is refused.
  3. [36]
    By s 100 of the QCAT Act each party to a proceeding must bear their own costs for the proceeding unless, as argued in this matter, it is in the interests of justice for a costs order to be made.
  4. [37]
    I do not consider as submitted by Mariner’s Cove that the conduct of GC Jet Boating in seeking an extension of time to file its application is vexatious. I do not consider the application for leave to appeal or appeal and the application for an extension of time for filing was so completely without merit that it might amount to an abuse of process which could be said to be vexatious. How the berth licence is treated in the substantive proceeding is obviously important to GC Jet Boating on the case it seeks to run. Although I consider GC Jet Boating misunderstood the scope and effect of the Member’s decision it was not unreasonable in such a bitterly contested case for it to attempt to put the matter beyond doubt.  I do not consider the alleged conduct by an unnamed person on behalf of GC Jet Boating is relevant to a consideration of costs.
  5. [38]
    Although GC Jet Boating and Mariner’s Cove have incurred legal costs associated with the issue of an extension of time to file the proposed application for leave to appeal or appeal, there is nevertheless no substantive proceeding on foot. The parties’ costs are limited to the submissions required to be made with respect to the issue. Many of the submissions made have been covered in other applications before the Tribunal. This is not a case where Mariner’s Cove’s success in the matter is eroded by lack of a costs order, which might give rise to an interests of justice question.
  6. [39]
    I do not consider it is in the interests of justice for a costs order to be made. Each party should bear their own costs as is the usual position in this Tribunal.

Order

  1. [40]
    The application to extend the time for Gold Coast Jet Boating Pty Ltd ACN 109 505 973 t/as Paradise Jet Boating to file an application for leave to appeal or appeal is refused.
  2. [41]
    No order is made as to costs.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143.

[2]Gold Coast Jet Boating Pty Ltd v Mariner’s Cove Holdings Pty Ltd reasons for decision dated 31 July 2023, [26].

[3]Reihana v Beenleigh Show Society [2019] QCATA 91, [33]-[34].

[4][2022] QCAT 3.

[5]Ibid [14].

[6]Gold Coast Jet Boating Pty Ltd v Mariner’s Cove Holdings Pty Ltd, reasons for decision dated 31 July 2023, [26].

[7]Pickering v McArthur [2005] QCA 294, [3]; Metro South Hospital and Health Service and Leighton v Luthje [2015] QCATA 145; Gobus v Cairns Hinterland Hospital and Health Service & Ors [2018] QCATA 121, [24].

[8]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, [8] (Gibbs CJ, Aickin, Wilson and Brennan JJ).

Close

Editorial Notes

  • Published Case Name:

    Gold Coast Jet Boating Pty Ltd T/AS Paradise Jet Boating v Mariner's Cove Holdings Pty Ltd

  • Shortened Case Name:

    Gold Coast Jet Boating Pty Ltd T/AS Paradise Jet Boating v Mariner's Cove Holdings Pty Ltd

  • MNC:

    [2023] QCATA 166

  • Court:

    QCATA

  • Judge(s):

    A/Senior Member Fitzpatrick

  • Date:

    15 Nov 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 C.L.R 170
2 citations
Jump To
Cite 1 - (1981) 148 C.L.R 170
Cite 2 - (1981) 148 C.L.R 170
Gobus v Cairns Hinterland Hospital and Health Service [2018] QCATA 121
2 citations
Jump To
Cite 1 - [2018] QCATA 121
Cite 2 - [2018] QCATA 121
Gold Coast Jet Boating Pty Ltd v Ridong (Australia) International Pty Ltd [2022] QCAT 3
2 citations
Jump To
Cite 1 - [2022] QCAT 3
Cite 2 - [2022] QCAT 3
Metro South Hospital and Health Service & Leighton v Luthje [2015] QCATA 145
2 citations
Jump To
Cite 1 - [2015] QCATA 145
Cite 2 - [2015] QCATA 145
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Reihana v Beenleigh Show Society [2019] QCATA 91
2 citations
Jump To
Cite 1 - [2019] QCATA 91
Cite 2 - [2019] QCATA 91

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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