Bill John Real Estate Pty Ltd as trustee for the John Family Superannuation Trust v Housego
[2013] QCAT 317
•3 June 2013
| CITATION: | Bill John Real Estate Pty Ltd as trustee for The John Family Superannuation Trust v Housego & Anor [2013] QCAT 317 |
| PARTIES: | Bill John Real Estate Pty Ltd as trustee for The John Family Superannuation Trust (Applicant/Appellant) |
| v | |
| Vanessa Joan Housego Stuart Anthony McGregor as trustee for the Housego McGregor Family Trust (Respondents) |
| APPLICATION NUMBER: | RSL085-12 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 3 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The notice of dispute is dismissed. |
| CATCHWORDS: | RETAIL TENANCY DISPUTE- where lessees are bankrupt - where proceeding can not continue Bankruptcy Act 1966 (Cth), s 58(3) |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
A notice of dispute was lodged with the chief executive under the Retail Shop Lease Act 1994 (Qld) (RSL Act) on 19 July 2012.[1] It was lodged by Bill John Real Estate Pty Ltd as trustee for The John Family Superannuation Trust, the lessor. The application was then referred to the Tribunal under RSL Act in September 2012 after unsuccessful mediation.[2] It seeks orders about the payment of rent and outgoings, and makes a non-specific claim regarding reinstatement of the premises.
[1] As provided for in s 55 of the RSL Act.
[2] As provided for in s 63 of the RSL Act.
The lessees are both bankrupt and were respectively declared so on 11 and 13 July 2012.
I made directions for the parties to file and serve submissions about whether the application could proceed having regard to the provisions of the Bankruptcy Act 1966 (Cth) and the Tribunal’s jurisdiction for retail tenancy disputes. I also directed that the lessor provide a copy of any court order granting leave for the proceeding to be instituted or continue. Submissions have been provided. There is no court order granting leave.
Under the Bankruptcy Act 1966 (Cth), a creditor may only commence a legal proceeding or, if proceedings were on foot when the bankruptcy occurred, take any fresh step against a bankrupt person with the leave of a court.[3] In this instance, the notice of dispute was lodged after the bankruptcy of both named lessees. It was subsequently referred to the Tribunal for determination. The notice of dispute commenced a legal proceeding. The lessor does not have a court order entitling it to commence or continue with the proceeding.
[3] Bankruptcy Act 1966 (Cth), s 58(3).
Having regard to the provisions of the Bankruptcy Act 1966 (Cth), it can not proceed. Under s 47 of the QCAT Act, the Tribunal may dismiss a proceeding which is misconceived. In light of the Bankruptcy Act 1966 (Cth) provisions, I am satisfied that the application is misconceived. The application should be dismissed. I make orders dismissing it.
In view of the finding and order made, I do not need to decide whether the claim is within the Tribunal’s jurisdiction. However, by way of observation, I also note that the Tribunal has only the jurisdiction to determine retail tenancy disputes as provided for in the RSL Act. The Tribunal does not have jurisdiction to determine disputes about arrears of rent[4] (unless there is a claim by the lessee for compensation)[5] or the amount of outgoings.[6]
[4] RSL Act, s 103(1), especially s 103(1)(b)(i).
[5] RSL Act, s 103(2)(d).
[6] RSL Act, s 103(1)(b)(iii).
Therefore, it appears that in any event, the claim was at least largely, if not entirely, outside of the Tribunal’s jurisdiction.
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