Burke v Turina

[2011] QCATA 75

CITATION: Burke v Turina [2011] QCATA 075

APPELLANT:	Anthony Burke (Appellant)
v
RESPONDENT:	Rocco and Mara Turina (Respondents)

APPLICATION NUMBER:  APL303-10

MATTER TYPE:        Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham
Deputy President

DELIVERED ON: 29 March 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    The application for leave to appeal is granted.

2.    The appeal is allowed.

3.    The decision in Minor Civil Dispute 25 of 2010 made on 15 October 2010 in Hervey Bay is set aside.

4.    Mr Burke must pay Mr and Mrs Turina the sum of $1,861.71.

CATCHWORDS : 

Queensland Civil and Administrative Tribunal Act 2009, ss 201(1)-(2), 142(3)(a)(i)

Retail Shop Leases Act 1994, ss 48(1)(a), 19, 20, sch

Queensland Civil and Administrative Tribunal Rules 2009, r 84

To v Choi [2011] QSC 2 applied

Vivlios v Votino [2010] QCATA 42 cited

REASONS FOR DECISION

1. Mr and Mrs Turina are the owners and lessors of 3 shops in Torquay.  Mr Burke was their lessee.  The Turinas commenced proceedings against Mr Burke in the Minor Civil Dispute jurisdiction of QCAT to recover renovation costs, for alleged damages to the premises and the surveying, registration and legal costs associated with the preparation of a lease and sub-lease over the common area outside the restaurant shop.

1. On 15 October 2010 in Hervey Bay, a Magistrate, acting in his capacity as a Member of QCAT, ordered Mr Burke to pay Mr and Mrs Turina $3,498.90.

1. Mr Burke has applied for leave to appeal (and if successful appeal) the decision of the learned Magistrate.  Specifically, Mr Burke disputes the inclusion of the Turinas’ solicitors’ costs associated with the lease and sublease ($1,114.69 and $522.50 respectively) over a common area outside the restaurant.

1. Mr Burke’s ground for appeal is that the learned Magistrate erred in law by ordering Mr Burke (the lessee) to pay legal costs associated with the preparation of the lease by the Body Corporate, to the Turinas over the common area outside the shop premises and their subsequent sublease to him.  Mr Burke argues that this is in contravention of the Retail Shop Leases Act 1994.

1. Leave is necessary to appeal from a decision in the QCAT Minor Civil Dispute jurisdiction.[1]  Leave to appeal is not normally granted unless there is an error in the decision or there is some question of general importance on which a decision of the Appeal Tribunal would be to the public advantage.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).

   [2]        Vivlios v Votino [2010] QCATA 42.

1. Mr Burke’s argument is based on the assumption that the lease over the common area is a retail shop lease for the purposes of the Act.  This raises questions about the interpretation of that Act.  Given this appeal raises questions of law, leave is granted.

1. The lease of the common area formalised an arrangement already in place.  Mr Burke took possession of the premises in July 2008.  He operated a restaurant business, using part of the outside…