Belmont Medical Centre Pty Ltd v Nichols Constructions Pty Ltd

[2012] QCAT 341

CITATION: Belmont Medical Centre Pty Ltd v Nichols Constructions Pty Ltd [2012] QCAT 341

PARTIES:	Belmont Medical Centre Pty Ltd (Applicant/Appellant)
v
Nichols Constructions Pty Ltd (Respondent)

APPLICATION NUMBER: RSL086-11

MATTER TYPE: Retail shop leases matters

HEARING DATE: 11 July 2012

HEARD AT: On the papers

DECISION OF: Michelle Howard, Member

DELIVERED ON: 2 August 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.   The application to dismiss/strike out the claim is refused.

2.   Leave is granted to Belmont Medical Centre to file four (4) copies in the Tribunal and serve one (1) copy of an amended application by 4pm on 6 July 2012.

CATCHWORDS:

RETAIL SHOP LEASE – APPLICATION TO DISMISS OR STRIKE OUT – where notice of dispute incorrectly named lessee – where submissions regarding substantive merits of the claim relied upon to support strike out application

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 26, 47, 48
Retail Shop Lease Act 1994

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. After a Notice of Dispute was lodged with the chief executive under the Retail Shop Lease Act 1994 on 9 August 2011, by Belmont Medical Centre Pty Ltd against Nichols Constructions Pty Ltd, the parties went through a mediation process.  As the dispute did not resolve in mediation, the Notice of Dispute was subsequently referred to the Tribunal.  The parties attended several directions hearings and a compulsory conference prior to a strike out application being filed on 28 May 2012 by Nichols Constructions.

2. Nichols Constructions Pty Ltd seeks the dismissal or striking out of the Notice of Dispute. The bases relied upon by Nichols Constructions for the strike-out application are twofold. It appears, but is not articulated, that they seek to proceed under section 47 of the QCAT Act, which provides for the Tribunal to make orders including to dismiss or strike out proceedings which are, amongst other things, misconceived or lacking in substance.

3. Firstly, it is submitted that the lessee was not Belmont Medical Centre Pty Ltd, but Belmed Pty Ltd, as the lease document attached to the application discloses.  Belmont Medical Centre Pty Ltd submits that Belmont Medical Centre Pty Ltd is the trading entity of the lessee, Belmed Pty Ltd.  It says that the entities are associated, and the incorrect naming of the lessee is a technical deficiency which can be easily rectified.  It argues that striking out the Notice of Dispute and making the applicant start again would waste time and money.

4. The Tribunal is to conduct proceedings in a manner which is fair, just, economical, informal and quick.[1] It must ensure that proceedings are conducted in a manner which minimises costs to parties,[2] and with as little formality and technicality as a proper consideration of the matter permits.[3]  In the current circumstances, it is clear that Nichols Constructions is not surprised that the lessee is Belmed Pty Ltd.  It points out that the lease document attached to the Notice of Dispute makes this apparent.  There is no prejudice to it because of the incorrect naming of the lessee.  It has waited until the proceedings are significantly progressed before making the application.  Granting the application on this first ground would place the lessee in a position of having to, in effect, start again.

   [1] QCAT Act, s 3(b).

   [2] QCAT Act, s 3(a) and 4(c).

   [3] QCAT Act, s 28(3)(d).

5. Nichols Constructions seeks on technical grounds to bring the proceedings to an end at this stage because of the incorrect naming of the lessee, when an amended application can be filed which rectifies this issue.  If the strike out application is granted, the parties and the Tribunal[4] will occasion significant wasted effort and associated expense in advancing the proceedings to the point they have reached, without finalising the dispute. The clear intention of the QCAT Act to avoid acting with unnecessary formality and technicality, and for the Tribunal to act in a manner which minimises costs. Striking the application out on the basis proposed would, in the circumstances, be contrary to the objectives set out in the QCAT Act.

   [4]Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, in which the High Court of Australia held that the resources of courts serve not only the parties but the public as a whole and parties should not expect to conduct proceedings in an unduly technical manner.

6. Secondly, Nichols Constructions submitted that the evidence filed by the lessee does not support the claims made by it, addressing issues concerning the standard of proof and the sufficiency of the evidence filed to date by the Applicant. These submissions go to the substantive merits of the claim. These are for determination at the hearing of the proceeding. In my view, the submissions made do not support a basis for dismissal of the claim under section 47 of the QCAT Act.

7. The application for strike out or dismissal is refused.  Belmont Medical Centre Pty Ltd is granted leave to file and serve an amended application, namely an amended Notice of Dispute.