Perry atf Here2B Trust t/as the VIP Room v Pruchris Pty Ltd atf P&C Byrnes Family Superannuation Fund

[2021] QCAT 127

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Perry atf Here2B Trust t/as The VIP Room v Pruchris Pty Ltd atf P&C Byrnes Family Superannuation Fund [2021] QCAT 127

PARTIES:

BRIDGETTE MARIE PERRY ATF HERE2B TRUST T/AS THE VIP ROOM

(applicant)

v

PRUCHRIS PTY LTD ATF P&C BYRNES FAMILY SUPERANNUATION FUND

(respondent)

APPLICATION NO/S:

RSL115-20

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

13 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Notice of Dispute filed 27 August 2020 is dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION - GENERALLY – whether Tribunal has jurisdiction where dispute not referred to pre-proceeding mediation – where non-compliance with directions for the filing of submissions 

COVID-19 Emergency Response Act 2020 (Qld), s 23

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48
Retail Shop Leases Act 1994 (Qld), s 55, s 63, s 64, s 97

Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 5, s 9, 
s 12, s 21, s 26, s 41

A & C G Lee Pty Ltd v Collier & Anor [2019] QCAT 30

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Hindmarsh Property Services

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

1. Miss Perry as Trustee (Miss Perry) leased premises from Pruchris Pty Ltd as Trustee (the Landlord).  The lease in evidence before the Tribunal provided for:

   (a)commencement of the term on 5 September 2017;

   (b)expiry of the term on 4 September 2020;

   (c)a three-year option term;    

   (d)the permitted use of hair stylist.

2. Miss Perry filed a Notice of Dispute and an Application for interim order on 27 August 2020.  The Application for interim order seeking ‘to stop termination’ was dismissed by decision of the Tribunal on 4 September 2020. 

3. At that time the parties were directed to file submissions as to whether the Notice of Dispute should be dismissed.  The issue as to whether the Notice of Dispute should be dismissed was directed to be determined on the papers after 2 October 2020. 

4. The time by which submissions were to have been filed has expired.  The parties have not complied with the directions.  No submissions have been received by the Tribunal and no extension of time has been sought.

5. The Tribunal is a creature of statute and must find its power to determine disputes either in the QCAT Act or an enabling Act. The Retail Shop Leases Act 1994 (Qld) (‘RSL Act’) and the COVID-19 Emergency Response Act 2020 (Qld) (‘the COVID Act’), which is part of the State Government’s response to the pandemic, are enabling Acts. The COVID Act provides for the making of regulations in respect of relevant leases, including regulations providing for the conferral of jurisdiction to hear and decide disputes.[1] 

   [1]COVID-19 Emergency Response Act 2020 (Qld), s 23 (‘COVID Act’).

6. The RSL Act and the Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (‘the Regulations’)[2] provide the Tribunal power to make orders in specific circumstances. 

   [2]These were made pursuant to the COVID Act.

7. The Notice of Dispute sets out a list of claims alleging breach by the Landlord or its agent including failing ‘to negotiate reduced lease due to covid’. The Notice of Dispute did not clearly set out whether Miss Perry claimed breach of specific provisions of the lease, the RSL Act or the Regulations.

8. The RSL Act and the Regulations provide specific pathways to resolve certain disputes between certain tenants and landlords. Not all disputes between commercial tenants and landlords may be resolved by the Tribunal.

9. The RSL Act and the Regulations provide that a party to certain disputes may lodge a Notice of Dispute to commence mediation.[3] The mediator may refer the dispute to the Tribunal.[4] 

   [3]Retail Shop Leases Act 1994 (Qld), s 55, s 97 (‘RSL Act’); Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 26 (‘Regulations’).

   [4]RSL Act, s 63.

10. A party may apply to the Tribunal for an order to resolve the dispute in limited circumstances including that the other party has not complied with the agreement reached through mediation or the mediator refuses to refer the dispute to the Tribunal.[5] 

    [5]Ibid, s 64.

11. If the dispute is an ‘eligible lease dispute’[6] within the Tribunal’s jurisdiction under section 42 of the Regulations a party may apply to the Tribunal for an order to resolve the dispute in certain circumstances, including that the other party has not complied with the agreement reached through mediation or the dispute is not settled within 30 days after the dispute notice is given to the small business commissioner.[7] 

    [6]Regulations, s 21.

    [7]Ibid, s 41.

12. A lessee under an ‘affected lease’[8] may apply to the Tribunal or a court for an order requiring the lessor to comply with section 12(1) of the Regulations.[9] That provision prohibits a lessor under an affected lease from taking a prescribed action on specific grounds.  A prescribed action is defined to include an action for recovery of possession or termination of the lease.[10] 

    [8]Ibid, s 5.

    [9]Ibid, s 12(3)

    [10]Ibid, s 9.

13. The Notice of Dispute does not clearly seek to require the Landlord to comply with section 12(1) of the Regulations assuming it is contended that the lease is an affected lease as defined.  The other pathways to the Tribunal require the dispute to be referred to the chief executive or to the small business commissioner for a mediation.

14. There is no evidence before me that the dispute has been referred to mediation. The Tribunal has previously found in relation to claims under the RSL Act that the Tribunal has no jurisdiction in the absence of mandatory pre-proceeding mediation.[11]  There is evidence that the small business commissioner directed Miss Perry to the Tribunal as she was seeking urgent relief. 

    [11]A & C G Lee Pty Ltd v Collier & Anor [2019] QCAT 30.

15. In the absence of submissions addressing the basis upon which the Tribunal has power to determine the Notice of Dispute, as distinct from urgent orders under the Application for interim order, which has already been dismissed, I am not satisfied that the Tribunal currently has jurisdiction. 

16. Where a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.[12] Where the tribunal lacks jurisdiction to hear and determine a matter, the proceeding lacks substance. The Notice of Dispute should be dismissed. 

    [12]QCAT Act, s 47.

17. In the alternative, the Notice of Dispute should be dismissed due to non-compliance with the directions.[13]

    [13]Ibid, s 48(1)(a), s 48(2)(a).

18. The dismissal in these circumstances does not prevent Miss Perry from seeking to resolve a dispute within the Tribunal’s jurisdiction in future if the appropriate pathways are engaged.