QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Aqualine Pty Ltd v Ponticello Properties Pty Ltd [2019] QCAT 393
PARTIES: AQUALINE PTY LTD ACN 010556493 ATF THE HOUGHTON INVESTMENT TRUST (applicant)
V
PONTICELLO PROPERTIES PTY LTD ACN 010070934 AS TRUSTEE UNDER INSTRUMENT NUMBER 70758827 (respondent)
APPLICATION NO/S:
RSL033-18
MATTER TYPE:
Retail shop leases matter
DELIVERED ON:
7 May 2019
HEARING DATE:
25 March 2019
HEARD AT:
Brisbane
DECISION OF:
Member Vass Poteri
ORDERS:
Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust is not entitled to claim compensation from Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827 under Section 43 of the Retail Shop Leases Act 1994 for loss or damage allegedly suffered by Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust because of an action by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or a failure by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or another event of the kind described in Section 43 of the Retail Shop Leases Act 1994 that occurred before 25 November 2016.
CATCHWORDS: LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTIONS FOR LESSEES – OTHER MATTERS – implied right to compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) - where no implied right to compensation under a periodic tenancy existed prior to legislative amendment – whether a lessee on a periodic tenancy created by holding over is entitled to claim compensation under section 43 of the Retail Shop Leases Act 1994 for an action, failure to act or an event that occurred prior to the legislative amendment – whether the amendment operates retrospectively
Acts Interpretation Act 1954 (Qld), s 20
Legislative Standards Act 1992 (Qld), s 4
Retail Shop Leases Act 1994 (Qld), s 13, s 42, s 43
Retail Shop Leases Amendment Act 2016 (Qld)Coleman v The Shell Company of Australia Limited (1943) 45 SR (NSW) 27
Colonial Sugar Refining Company Limited v Irving [1905] AC 369
D’Arro v Queensland Building and Construction Commission [2017] QCA 90
Doro v Victorian Railway Commissioners [1960] VR 84
Laldy Pty Ltd v Archer & Ors [2016] QSC 257
Maxwell v Murphy (1957) 96 CLR 261
Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232
Ozibar Pty Ltd v Leroar Holdings Pty Ltd [2015] QSC345
Project Bluesky v Australian Broadcasting Authority (1998) 194 CLR 355
Smith v Ash [2010] QCA 112
Worrall v Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28
APPEARANCES & REPRESENTATION:
Applicant:
S C Fischer of Counsel
Respondent:
M Cooke of Counsel instructed by Thynne & McCartney Lawyers
Material
Exhibit 1 - Order of Senior Member Brown dated 10 September 2018
Exhibit 2 – Applicant’s Submissions dated 24 September 2018
Exhibit 3 – Applicant’s Reply Submissions dated 15 October 2018
Exhibit 4 – Respondent’s Submissions dated 8 October 2018
Exhibit 5 – Respondent’s Response to New Submissions raised by…
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- AGLC
- Aqualine Pty Ltd v Ponticello Properties Pty Ltd [2019] QCAT 393
- Case
- [2019] QCAT 393
- Decision Date
CaseChat Overview and Summary
The court considered the arguments presented by both parties and examined the relevant statutory provisions, including section 42(2)(a) of the Retail Shop Leases Act 1994 (Qld) which provides a right to periodic tenants (holding over under the lease or with the lessors consent) to claim compensation. The court noted that this right did not exist before the Amending Act was proclaimed on 25 November 2016. The court also referred to section 20 of the Acts Interpretation Act 1954 (Qld) which states that the repeal or amendment of an Act does not revive anything not in force or existing at the time the repeal or amendment takes effect. Additionally, the court considered the policy objectives outlined in the Explanatory Notes to the Bill and section 4(3)(g) of the Legislative Standards Act (Qld) 1992, which states that legislation should not adversely affect rights and liberties, or impose obligations, retrospectively.
After examining the relevant legislation and the arguments presented by both parties, the court concluded that the amendment to the Retail Shop Leases Act 1994 (Qld) does not operate retrospectively. The court found that the Amending Act was not intended to revive anything that was not in force or existing at the time of its proclamation, and that the policy objectives outlined in the Explanatory Notes did not include any mention of retrospective effect. Therefore, the court held that Aqualine Pty Ltd was not entitled to claim compensation from Ponticello Properties Pty Ltd for an action, failure to act, or an event that occurred prior to the legislative amendment on 25 November 2016.
Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust is not entitled to claim compensation from Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827 under Section 43 of the Retail Shop Leases Act 1994 for loss or damage allegedly suffered by Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust because of an action by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or a failure by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or another event of the kind described in Section 43 of the Retail Shop Leases Act 1994 that occurred before 25 November 2016.
Orders
Orders of the court
Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust is not entitled to claim compensation from Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827 under Section 43 of the Retail Shop Leases Act 1994 for loss or damage allegedly suffered by Aqualine Pty Ltd ACN 010556493 as Trustee For The Houghton Investment Trust because of an action by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or a failure by Ponticello Properties Pty Ltd ACN 010070934 as Trustee under Instrument Number 70758827, or another event of the kind described in Section 43 of the Retail Shop Leases Act 1994 that occurred before 25 November 2016.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 20 of the Acts Interpretation Act 1954 (Qld) (“AIA”) also provides:20 Saving of operation of repealed Act etc.(1)In this section—Act includes a provision of an Act.repeal includes expiry.(2)The repeal or amendment of an Act does not—(a) revive anything not in force or existing at the time the repeal or amendment takes effect; … Section 42 of the RSLA provides for certain compensation provisions to be implied into particular leases. Section 42(2)(a) of the RSLA now gives a right to periodic tenants (holding over under the lease or with the lessors consent) to claim compensation under the compensation provisions. This right did not exist before the Amending Act was proclaimed on 25 November 2016. Section 4 of the Legislative Standards Act (Qld) 1992 sets out the meaning of the “fundamental legislative principles” that parliament should observe when enacting legislation. Section 4(2) of this Act states as follows,The principles include requiring that legislation has sufficient regard to (a) the rights and liberties of individuals; and …Section 4(3)(g) of this Act states, Where the legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation…(g) does not adversely affect rights and liberties, or impose obligations, retrospectively; and … The Explanatory Notes set out the policy objectives of the Bill. These objectives are set out as follows:- “excluding certain leases from the operation of the Act where its application cannot be justified;- clarifying the application of the disclosure provisions in Part 5 of the Act for key lease categories;- enhancing protection for lessees, including prospective purchasers of retail businesses and the release from liability for assignors and their guarantors on assignment of lease where the assignor has complied with its disclosure obligation;- providing for exclusions from lessor's liability for compensation to the lessee for business disruption in certain circumstances;- providing for liability as to certain legal costs related to a retail shop lease; and- simplifying procedural requirements and clarifying the operation of various provisions.”These objectives clearly benefit both lessors and lessees. Further there is no mention in the Explanatory Notes of any of the provisions of the Bill having retrospective effect. Also on page 5 of the Explanatory Notes there is a statement that the Bill is consistent with fundamental legislative principles.Applicant’s Submissions I will now comment on the Applicant’s Submissions which generally promote the view that the Amending Act was remedial legislation and enacted solely for the benefit of the lessees. In paragraphs 22, 23 and 24 of the Applicant’s Submissions dated 24 September 2018 (Exhibit 3), the Applicant refers to section 14A of the AIA and sections 3 and 4 of the RSLA. Section 14A of the AIA provides:14A Interpretation best achieving Act’s purpose(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act . (3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.Example—There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.