Berry & Anor v Jolkem Pty Ltd - [2024] QCAT 131

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BERRY & ANOR V JOLKEM PTY LTD [2024] QCAT 131

PARTIES: LAINE BERRY AND STACEY LANZA

(applicant)

V

JOLKEM PTY LTD

(respondent)

APPLICATION NO/S:

RSL033-22

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

11 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application for an order to resolve a retail tenancy dispute filed on 8 March 2022 is dismissed.

CATCHWORDS:

LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS - where dispute as to term of a settlement agreement reached at mediation – whether dispute is a retail tenancy dispute

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Retail Shop Leases Act 1994 (Qld) s 5A, s 5B, s 5C, s 5D, s 103, schedule

Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) s 11, s 25

Retail Shop Leases Regulation 1994 (Qld) r 2, schedule

Penfold v Firkin & Balvius [2023] QCATA 11

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

What is the application about?

The tribunal is being asked by Ms Berry and Ms Lanza who traded as North Cairns Clinical Psychology (the tenant) to make money orders including a bond refund and compensation arising from the ending of their tenancy of premises leased from Jolkem Pty Ltd (the lessor).
The tenant filed a ‘Notice of Dispute – Retail Shop Leases Act 1994 (Qld)’ on 8 June 2021[1] which triggered a mediation that took place on 6 September 2021.
[1]RSL085-21.
Following the mediation, the parties signed a Terms of Settlement on 9 September 2021 that purported to settle their dispute and to permit the tenant to vacate the tenancy under certain conditions. The parties remain in dispute as to whether those conditions were satisfied.
The current proceeding was initiated by the filing of the tenant’s ‘Application for an order to resolve a retail tenancy dispute - Retail Shop Leases Act 1994 (Qld)’ on 8 March 2022.
The onus is upon the party seeking relief to establish their case, including the jurisdiction of the tribunal to hear the dispute. The applicants made no submissions and did not file any evidence to establish jurisdiction.
The Appeal Tribunal have observed that, nonetheless, there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it.[2]
[2]Penfold v Firkin & Balvius [2023] QCATA 11.

Is the dispute a retail tenancy dispute?

The Retail Shop Leases Act 1994 (Qld) (‘RSLA’) governs retail tenancy disputes and vests the tribunal with jurisdiction, subject to exceptions, to hear them.[3]
[3]Section 103 of the RSLA.
The preliminary concern for the tribunal is therefore whether the dispute is, in fact a retail tenancy dispute.
Relevant definitions include:
(a)A retail tenancy dispute is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCAT 131
Decision Date: 11 March 2024

CaseChat Overview and Summary

Berry and Anor v Jolkem Pty Ltd involved a dispute over the terms of a settlement agreement reached at mediation. The applicants sought to resolve a dispute concerning the term of the settlement agreement, which was filed as a retail tenancy dispute. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the court was whether the dispute was properly categorised as a retail tenancy dispute under the Retail Tenancies and Other Legislation Amendment Act 2016 (Qld). The applicants argued that the dispute fell within the definition of a retail tenancy dispute, while the respondent contended that the dispute was not a retail tenancy dispute and therefore outside QCAT's jurisdiction.

The court considered the statutory framework and the relevant case law to determine whether the dispute fell within QCAT's jurisdiction. It examined the nature of the dispute, which centred on the interpretation of a settlement agreement reached during mediation, and whether this fell within the definition of a retail tenancy dispute. The court found that the dispute did not relate to the terms of the tenancy itself but rather the interpretation of a settlement agreement that had been reached. As such, the dispute was not a retail tenancy dispute and did not fall within QCAT's jurisdiction to hear. Consequently, the application for an order to resolve a retail tenancy dispute was dismissed.

Orders

Orders of the court

1. The application for an order to resolve a retail tenancy dispute filed on 8 March 2022 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	*BERRY & ANOR V JOLKEM PTY LTD* [2024] QCAT 131
PARTIES:	LAINE BERRY AND STACEY LANZA
(applicant)
V
JOLKEM PTY LTD
(respondent)
APPLICATION NO/S:	RSL033-22
MATTER TYPE:	Retail shop leases matter
DELIVERED ON:	11 March 2024
HEARD AT:	Brisbane
DECISION OF:	Member Lember
ORDERS:	1. The application for an order to resolve a retail tenancy dispute filed on 8 March 2022 is dismissed.
CATCHWORDS:	LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS - where dispute as to term of a settlement agreement reached at mediation – whether dispute is a retail tenancy dispute *Queensland Civil and Administrative Tribunal Act* 2009 (Qld) s 32 *Retail Shop Leases Act 1994* (Qld) s 5A, s 5B, s 5C, s 5D, s 103, schedule *Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation* 2020 (Qld) s 11, s 25 *Retail Shop Leases Regulation* 1994 (Qld) r 2, schedule *Penfold v Firkin & Balvius* [2023] QCATA 11
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).