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?

1. 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).

2. 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.

3. 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.  

4. 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.

5. 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.

6. 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?

1. 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.

2. The preliminary concern for the tribunal is therefore whether the dispute is, in fact a retail tenancy dispute.   

3. Relevant definitions include:

   (a)A retail tenancy dispute is “any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into”.[4]

   [4]Schedule, ibid.

   (b)A retail shop lease is a lease of a retail shop, with identified exclusions.[5]  

   [5]Section 5A, ibid.

   (c)A lease is an agreement under which a person gives to someone else for valuable consideration a right to occupy premises whether:

   (i)      an exclusive right to occupy the premises; or

   (ii)      for a term or by way of a periodic tenancy or tenancy at will.[6]

   [6]Schedule, ibid.

   (d)A retail shop describes premises situated in a retail shopping centre or that are used wholly or predominantly for the carrying on of one or more retail businesses.[7]

   [7]Section 5B, ibid.

   (e)A retail shopping centre is a cluster of premises having all of the following attributes (relevantly):

   (i)      five or more of the premises are used wholly or predominantly for carrying on retail businesses;

   (ii)      all the premises—

   A.are owned by the 1 person;…or

   B.all the premises are located in:

   I.1 building;…

   (iii)     the cluster of premises is promoted, or generally regarded, as constituting a shopping centre, shopping mall, shopping court or shopping arcade.[8]

   (f)Retail businesses are those whose whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in the Schedule to the Retail Shop Leases Regulation 1994 (Qld) (‘RSLR’).[9]  

   [8]Section 5D, ibid.

   [9]Section 5C of the RSLA and regulation 2 of the RSLR.

Is the tenant’s business a ‘retail business’?

1. According to the Lease signed by the parties on 21 November 2017:[10]

   (a)The premises leased is described as “the whole of the first floor of the building erected on the land and hatched on the plan attached in the second appendix to this lease”.[11]

   (b)The land is described as “Lot 2 on RP 711236”.[12]

   (c)The permitted use of the premises is “consulting rooms and offices”.[13]

   [10]Attachment 4, respondent’s evidence filed 17 June 2022.

   [11]Item 5, Reference schedule to Form 7 Lease.

   [12]Item 2, Reference schedule to Form 7 Lease.

   [13]Item 1.13, Part A – Reference Schedule to Form 20 to Lease.

2. Professional offices and consulting rooms for counselling or psychology services are not prescribed retail businesses according to the schedule to the RSLR.

3. I find that the tenant’s business is, therefore, not a retail business.

Is the premises situated in a retail shopping centre?

1. Businesses that are not retail businesses can be captured by the RSLA if located in retail shopping centres, which, among other things, must feature five or more businesses used wholly or predominantly for carrying on retail businesses.

2. Although there is no direct evidence as to what business or businesses operate from the ground floor of the tenancy, it is noted that:

   (a)A photograph of the building tendered by the lessor[14] establishes that:

   (i)      the first floor tenancy comprises an area of 104m2; and 

   (ii)      signage for the ground floor tenancy advertises ‘The Edge Hill Hairdressers”.

   (b)Outgoings calculations for the premises indicate that the first floor tenancy comprises one half of the lettable area of the building (read with clause 6 of the Lease).[15]

   (c)A Cairns Regional Council rates notice for the property filed by the lessor on 3 August 2022 describes the improvements to the property as “freehold offices”.

   (d)An email from the tenant to the lessor dated 27 January 2021 references “smoking by the lower tenancy”[16] (emphasis added).

   [14]Attachment 1, respondent’s evidence filed 17 June 2022.

   [15]Attachment 5, respondent’s evidence filed 17 June 2022.

   [16]Attachment H to the applicant’s evidence filed 27 May 2022.

3. The tribunal infers that there is one other business operating from the building and that it is a hairdresser, which is a retail business.  It is unlikely, given the size of the lettable area of the ground floor (104m2) and from the tenant’s own references to one rather than plural ground floor tenants, that there are other retail businesses operating from the building in which the premise are situated and, if there are, that there are four retail businesses in addition to the hairdresser operating from the building.

4. The tenant has not established that its business is in a retail shopping centre, and I find that it is not.

Decision

1. As the tenancy is not of a retail business, and is not located in a retail shopping centre, the lease between the parties it not a retail shop lease, and, therefore, the dispute is not a retail tenancy dispute over which the tribunal has jurisdiction. [17] 

   [17]Schedule, ibid.

2. Giving the timing of the dispute, I have considered whether the tribunal’s jurisdiction may have been engaged by the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (‘COVID RSLR’) that was introduced by the COVID-19 Emergency Response Act 2020 (Qld). The COVID RSLR commenced a response period from 29 March 2020 to 30 September 2020 that was later extended until 31 December 2020.

3. During the response period, the tribunal’s jurisdiction extended to ‘eligible lease disputes’, if sections 11 and 25 of the COVID RSLR were complied with.[18] I am satisfied that the dispute the subject of these proceedings did not fall within the response period (or the extended period) and therefore that jurisdiction was not enlivened by any application of the COVID RSLR to this dispute.

   [18]COVID RSLR, s 42.

4. The application is dismissed because the dispute is not a retail tenancy dispute over which the tribunal has jurisdiction.