Burke v Turina
[2011] QCATA 75
•29 March 2011
| 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
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.
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.
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.
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.
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.
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.
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 common area for seating. It is unclear precisely when discussions commenced between the Turinas and Mr Burke about the need for a formal arrangement governing the use of the common area but it appears to have been some time after Mr Burke took possession.
Though Mr Burke had been making use of the common area for the purposes of the restaurant throughout the lease, it became evident that in order to ensure that public liability would extend over that area and to formally recognise the right to use the common area for the purposes of the restaurant, a formal lease was necessary.
Mr Burke placed his business on the market in 2009. The following facts are not in dispute:
a) The parties agreed the lease over the common area would be finalised prior to Mr Burke selling his business.
b) Prior to the sale, the Turinas and Mr Burke discussed the cost of securing a lease over the common area being no more than $1,000. Following discussions with the Body Corporate it became evident that the drawing up of the lease would be more complex than first thought, and consequently, more expensive.
c) The Turinas required Mr Burke to pay all expenses associated with the Lease and Sub-lease over the common area, before they would assign the lease over the 3 shops to Mr Burke’s purchaser.
d) In an email dated 2 September 2009 Mr Burke agreed to pay the costs as requested.
e) The Turinas signed the Assignment Deeds before Mr Burke paid the costs. The Turinas subsequently sought payment of the costs as agreed.
The Act explicitly states that a lessee under a retail shop lease is not liable to pay any amount for the lessor’s legal or other expenses in relation to preparing, renewing or extending the lease.[3]
[3] Retail Shop Leases Act 1994, s 48(1)(a).
A retail shop lease is defined to mean a lease of a retail shop.[4] A retail shop is defined as premises used wholly or predominantly for carrying on 1 or more retail businesses.[5] A lease is defined to mean an agreement under which a person gives or agrees to give to someone else for valuable consideration a right to occupy premises.[6]
[4] Retail Shop Leases Act 1994, sch.
[5] Retail Shop Leases Act 1994, sch.
[6] Retail Shop Leases Act 1994, sch.
The head lease of the common area is a retail shop lease for the purposes of the Act. The Body Corporate leased the common area to the Turinas for $1. The terms of that lease granted exclusive occupation to the restaurant and for the stated purpose of securing public liability over the area. The Turinas sub-let the common area to Mr Burke.
Although Mr Burke agreed to pay the solicitors’ costs, the Act prohibits parties from contracting out of the Act. Their agreement even if not formally included in the terms of the sub-lease, forms part of the arrangement between the parties and, properly is considered to be within the scope of the definition of a retail shop lease.[7] A provision of a retail shop lease is void if it purports to exclude the application of a provision of the Act that applies.[8] Furthermore, the Act prevails over any inconsistency in a retail shop lease.[9]
[7] To v Choi [2011] QSC 2 [22].
[8] Retail Shop Leases Act 1994, s 19.
[9] Retail Shop Leases Act 1994, s 20.
Whilst it may not have been their express intention to contract out of a provision of the Act, effectively this is what the Turinas and Mr Burke did.
To the extent the agreement provides for payment of the Turinas’ solicitors costs it is void and unenforceable. The learned Magistrate erred in ordering Mr Burke to pay the Turinas those costs.
Mr Burke also submits that costs in the form of filing fees should not have been awarded against him but did not present a cogent reason for disturbing the order made by the learned Magistrate. This ground of appeal is rejected.
The appeal is allowed. The decision in Minor Civil Dispute 25 of 2010 made on 15 October 2010 in Hervey Bay is set aside. If the amount ordered for legal costs is deducted from the total, the figure arrived at is $1,861.71. The order substituted will be: Mr Burke must pay Mr and Mrs Turina the sum of $1,861.71.
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