Crema Espresso Leasing Pty Ltd v Grocorp Development Pty Ltd - [2021] QCAT 420

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crema Espresso Leasing Pty Ltd v Grocorp Development Pty Ltd [2021] QCAT 420

PARTIES: CREMA ESPRESSO LEASING PTY LTD A.C.N. 165 916 334

(applicant)

V

GROCORP DEVELOPMENT PTY LTD A.C.N. 151 679 364

(respondent)

APPLICATION NO/S:

RSL133-19

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

9 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The application for miscellaneous matters (security for costs) filed 10 September 2021 is dismissed.

CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – POWER TO ORDER – exercise of discretion – where financial circumstances, prospects of success, genuineness of proceedings, delay and other matters considered

Corporations Act 2001 (Cth), s 58AA, s 1335

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 32, s 38, s 62, s 95, s 100, s 102, s 109

Retail Shop Leases Act 1994 (Qld), s 43AA, s 83

Uniform Civil Procedure Rules 1999 (Qld), s 681

Bryan E Fencott and Assoc Pty Ltd v Eretta Pty Ltd (1987) 2 Qd R 523

Buckley v Bennell (1974) 1 ACLR 301

Covecorp Constructions and Indigo Projects Pty Ltd

Greg Black Constructions Pty Ltd v Brodie and Anor [2011] QCAT 671 2

Hapisun Pty Ltd v Rikys & Moylan Pty Ltd [2013] VSC 730

Hyperion Technology Pty Ltd v Queensland Motorways Limited [2013] QSC 20

Tamawood v Paans [2005] QCA 111

Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential CTS 33550 [2017] QCAT 424

Whelan Air Conditioning Pty Ltd v Arcape Pty Ltd [2012] QCS 187

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?

The applicant leased space in the respondent’s four-tenancy complex in order to operate a coffee shop with drive-through facilities under the terms of a retail shop lease (“the lease”) that included a provision purporting to limit the respondent’s ability to place competing businesses in the remaining tenancies.
The applicant says that, in breach of representations and contractual promises made by the respondent to the applicant, the service station tenancy within the complex has been permitted to operate its own coffee shop within the service station itself, to the significant detriment of the applicant.
On 31 May 2019 the applicants filed a Notice of Dispute under the Retail Shop Leases Act 1994 (Qld) (“RSLA”), alleging breach of contract, misrepresentation and unconscionable conduct on the respondent’s part and seeking:
(a)compensation under sections 43AA and/or 83(3) of the RSLA (estimating losses in the sum of $730,405 as at the date the application was filed and described then as “ongoing and increasing”[1]); and
(b)a declaratory order that it is lawfully entitled to terminate the lease.
[1]Notice of Dispute, Annexure A, page 6.
A mediator referred the matter to the tribunal on 18 September 2019.
On 11 January 2021 the relief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Crema Espresso Leasing Pty Ltd v Grocorp Development Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 420
Decision Date

CaseChat Overview and Summary

Crema Espresso Leasing Pty Ltd sought relief against Grocorp Development Pty Ltd in respect of a lease of premises that included a coffee shop with drive-through facilities. The dispute relates to the respondent’s alleged breach of the lease and representations made to the applicant. In particular, the applicant claims that the respondent has permitted a service station tenant to operate its own coffee shop, to the detriment of the applicant. The application before the Tribunal was for the applicant to provide security for the respondent’s costs in the sum of $41,750. The Tribunal considered the application on the papers and was required to determine whether the application for security for costs should be dismissed or granted. The Tribunal considered the financial circumstances of the parties, the prospects of success or merits of the proceeding, the genuineness of the proceeding, and other relevant matters. It was not satisfied that there was sufficient evidence of the financial circumstances of both parties to favour an order for security for costs. The merits of the case could not be assessed at this stage and the applicant’s case appeared to be a genuine dispute between the parties. The application for security for costs was made almost two years after the respondent filed its response and counter-application, and the applicant relied on authorities that emphasised the importance of timely applications for security for costs. The Tribunal also considered the likelihood of a costs order against the applicant in these proceedings, which was uncertain at this stage of the proceedings. The application for security for costs filed 10 September 2021 is dismissed.

Orders