Brakar Pty Ltd v Sunshine Developments (Vic) Pty Ltd

Brakar Pty Ltd (Brakar) leased premises from Sunshine Developments (Vic) Pty Ltd (the Landlord). After Brakar vacated, disputes arose with the Landlord over the return of the security bond under the lease. Brakar commenced these proceedings seeking the return of its full bond and various costs including the filing fee. The matter was heard and determined on the papers by the Queensland Civil and Administrative Tribunal (QCAT) in Brisbane. The Tribunal was required to determine whether it had jurisdiction to hear and determine the dispute. The Tribunal considered whether the dispute was a retail tenancy dispute or an eligible lease dispute. The Tribunal found that the dispute was not a retail tenancy dispute because the premises were not a retail shop and the permitted use of the premises was for a finance broker, which is not prescribed as a retail business. The Tribunal also found that the dispute was not an eligible lease dispute under the COVID-19 Emergency Response Act 2020 (Qld) and the Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) because the dispute arose prior to the response period and Brakar had not taken the necessary steps to establish jurisdiction under the COVID Act and Regulations. The Tribunal concluded that it did not have jurisdiction to hear and determine the dispute and dismissed the proceeding as misconceived or lacking in substance. The Tribunal also found that Brakar was non-compliant with directions made at a directions hearing and dismissed the proceeding for non-compliance. The Tribunal ordered that the Notice of dispute be dismissed.