Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd

CITATION: Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd [2013] QCAT 159

PARTIES:	Crusty Devil Bakehouses Pty Ltd t/as Crusty Devil Bakery Carina (Applicant)
V
W.A.W. Developments Pty Ltd (Respondent)

APPLICATION NUMBER: RSL088-12

MATTER TYPE: Retail shop leases matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 26 March 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application is dismissed

2.    The application for costs is dismissed

CATCHWORDS:

RETAIL SHOP LEASE DISPUTE – application for miscellaneous matters – discontinuance where landlord sold the premises before determination of dispute - application for costs -  whether unnecessary disadvantage – whether actions prior to commencement of proceedings can be relied upon

Queensland Civil and Administrative Tribunal Act 2009 ss 48, 100,102
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No2) [2010] QCAT 412
Robertson and Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 120

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 (QCAT Act).

REASONS FOR DECISION

1. Crusty Devil operates on a boutique bakery business in leased premises at Carina.  W.A.W was the landlord of those premises until 28 September 2012, when it completed a contract of sale.

2. The parties resolved a previous Tribunal proceeding under the Retail Shop Leases Act 1994 (the Act) by entering into a deed dated 18 November 2011 (the Deed).

3. Crusty Devil claimed in the current proceeding that W.A.W did not comply with the terms of the Deed and brought this action to enforce the terms of the Deed and sought costs. The parties agree that the sale of the premises means that there is no utility in having the substantive issues decided. 

4. Crusty Devil filed a miscellaneous matters application seeking orders to discontinue the proceedings and for its costs.  W.A.W denies that it failed to comply with the Deed.  It has disputed non-compliance since at least 9 March 2012[1] but only put in material to support its position in these proceedings in response to the application for costs. W.A.W. contends that the appropriate order is no order as to costs.

   [1]        Affidavit Benjamin James Sindel sworn 30July 2012 BJS1 page 4.

5. The QCAT Act provides “Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings”.[2] The Act does not provide for the award of costs. The application is therefore to be decided under the QCAT Act.

   [2] Section 100 QCAT Act.

6. The Tribunal may make an order for costs if the interests of justice require it.[3]  The Tribunal may have regard to various factors.[4]  These include whether a party acted in a way that unnecessarily disadvantaged another; the nature and complexity of the dispute; the relative strengths of the claims; the financial circumstances of the parties and anything else the tribunal considers relevant.

   [3] Section 102(1) QCAT Act.

   [4]…