Farmers Arms Tavern Pty Ltd v Barns

Case •

[2025] QCAT 134

•

3 April 2025

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Farmers Arms Tavern Pty Ltd v Barns [2025] QCAT 134

PARTIES:
FARMERS ARMS TAVERN PTY LTD

(applicant)

v
LYNETTE JOY BARNS

(respondent)

APPLICATION NO/S:

RSL002-25

MATTER TYPE:

Residential tenancy matters

DELIVERED ON:

3 April 2025

HEARING DATE:

On Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

1.       The respondent’s name is corrected to Lynette Joy Barns.

2.       The application for an order to resolve a retail tenancy dispute is dismissed.

3.       The application for interim orders is dismissed.

4.       The application for leave to be represented is dismissed.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – whether proceedings properly commenced – whether entitlement to interim relief where pre-proceedings dispute resolution has not occurred – whether ‘retail tenancy dispute’ – whether floor area more than 1000 square metres

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 55, s 63, s 64, s 103

Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

  1. On 21 January 2025,[1] the applicant, Farmers Arms Tavern Pty Ltd (‘Farmers Arm Tavern’) who are the lessee, filed an application for an order to resolve a retail tenancy dispute and an application for interim orders.

    [1]Correspondence was received by the Tribunal prior to this date on 12 January 2025, but it contained no application.

  2. The application for interim orders seeks orders to:

    (a)Prevent the respondent, Lynette Joy Barns, as the lessor from enforcing eviction or other punitive actions while the Tribunal considers the substantive matter.

    (b)Preserve the terms of the original lease agreement, including the right to a 5x5 renewal, until a final decision is reached.

    (c)Prohibit Lynette Barns from introducing or enforcing unilateral changes to the lease or financial obligations.

    (d)Provide protection from further intimidation, coercion, or unfair treatment by Lynette Barns or her representatives.

  3. No mediation has been undertaken between the parties. Farmers Arm Tavern state that this is due to the urgency of the matter.

  4. The respondent was incorrected named on the application to be “Lynette Joy Barnes”. The correct spelling of the  surname, as per the lease agreement is “Barns”. Accordingly, the first order of the Tribunal is to correct the name of the respondent.

Jurisdiction of QCAT to decide retail tenancy disputes

  1. The Tribunal is a creature of statute and must find its power to determine disputes either in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an enabling Act.[2]

    [2]QCAT Act, s 9(1).

  2. The enabling Act here is the Retail Shop Leases Act 1994 (Qld) (‘RSLA’). The RSLA and the Retail Shop Leases Regulation 2016 (Qld) (‘the Regulation’) provide specific pathways to resolve certain disputes between certain tenants and landlords. Not all disputes between commercial tenants and landlords may be resolved by the Tribunal.

  3. Under the RSLA, the Tribunal has jurisdiction to hear ‘retail tenancy disputes’.[3] The phrase ‘retail tenancy dispute’ is defined in the RSLA[4] to mean:

    any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.

    [3]RSLA, s 103(1).

    [4]Ibid, Schedule.

  4. ‘Retail shop lease’ is defined in the RSLA[5] to mean “a lease of a retail shop”. A number of exceptions as to what constitutes a ‘retail shop lease’ are contained in subsections 5A(2) and (3).

    [5]Ibid, s 5A.

  5. The key exception which is relevant to these proceedings is that a retail shop lease does not include a lease of a retail shop with a floor area of more than 1000 m2.

  6. ‘Retail shop’ is defined in the RSLA,[6] which provides:

    Retail shop means premises that are —

    (a)    situated in a retail shopping centre; or

    (b)    used wholly or predominantly for the carrying on of a retail business.

    [6]Ibid, s 5B.

  7. ‘Retail business’ is defined in the RSLA[7] to mean “a business prescribed by regulation as a retail business”.

    [7]Ibid, s 5C.

  8. The RSLA provides two specified pathways to the Tribunal for a party to a retail tenancy dispute. The first pathway is the referral of a retail tenancy dispute by a mediator.[8] That did not occur in this occasion as the application was made by the lessee and not a mediator.

    [8]Ibid, s 63.

  9. The second pathway is an application to the Tribunal by a party only in circumstances where a mediation agreement has not been complied with, or a mediator refuses to refer a dispute to the Tribunal, or a court has ordered the transfer of a proceeding to the Tribunal.[9] The applicant has not asserted that any of these circumstances arise in this case.

    [9]Ibid, s 64.

  10. Common to both pathways[10] is the requirement for a party to a retail tenancy dispute who wishes to apply to the Tribunal to resolve the dispute to comply with the provisions relating to pre-proceedings dispute resolution with the Queensland Small Business Commissioner ('QSBC').[11]

    [10]Other than those circumstances where a court orders the transfer of a proceeding for a retail tenancy dispute to QCAT.

    [11]RSLA, s 55(1).

  11. In this case, the provisions are not complied with. Farmers Arm Tavern asserts that they did apply for mediation through QSBC on 13 December 2024[12], however, given the time of the year, QSBC advised that mediation could not be scheduled before late January 2025.

    [12]The applicant provided a case number of QSBC-11154 to support this claim.

Interim orders

  1. Section 58(1) of the QCAT Act provides that the Tribunal may, before making a final decision in a proceeding, make an interim order it considers appropriate in the interests of justice.

  2. Section 59(1) of the QCAT Act provides that the Tribunal may, by order, grant an injunction, including an interim injunction, in a proceeding if it is just and convenient to do so.

Determination

  1. The respondent, Lynette Barns, states that there is no jurisdiction for the Tribunal to make the orders sought by Farmers Arm Tavern as:

    (a)This is not a retail lease, as the premise is in excess of 1000 m2 and the applicant’s business of Hotel/Tavern is not a retail shop.

    (b)The applicant has not complied with the obligation to undergo mediation so there is no jurisdiction to hear the matter.

  2. Farmers Arm Tavern state there is jurisdiction to make the orders sought as:

    (a)The size of the land does not exclude the lease from the RSLA protections, as the RSLA applies based on the building where the retail business is conducted, not the land size or area. While the land size is over 1000 m2, the building used for the retail shop is much less and is approximately 765 m2.

    (b)They run a nationally branded Bottle Mart retail store, restaurant, and bar serving the public on the leased premise. Given they sell food, beverages, and packaged alcohol directly to the public, this meets the definition of a retail business under the RSLA.

    (c)They acknowledge that the RSLA requires mediation before lodging a retail tenancy dispute. However, due to the urgent nature of this matter, mediation was not a viable remedy.

  3. Considering first whether this is a retail shop lease dispute, it is undisputed by the parties that the lease states the premises being leased is the whole of the land and the land area of the whole of the land is 2659 m2.

  4. Relevant to the consideration is section 5A of the RSLA which states:

    (1)     A retail shop lease is a lease of a retail shop.

    (2)     However, a retail shop lease does not include a lease of any of the following–

    (a)A retail shop with a floor area of more than 1000m2

  5. Farmers Arm Tavern’s position is that the definition of retail shop in section 5A(2)(a), for the purpose of assessing the floor area, is determined by considering only the buildings or areas specifically used for the purpose of the retail business and not the whole leased premises.

  6. ‘Retail shop’ is defined in the RSLA,[13] to mean premises that are situated in a retail shopping centre; or used wholly or predominantly for the carrying on of a retail business.

    [13]Ibid, s 5B.

  7. Accordingly, the definition of the retail shop refers to the entire leased premises, not just the part of the building used for the purpose of conducting the retail business.

  8. It, therefore, follows that in determining whether a lease is related to “a retail shop with a floor area of more than 1000 m2” it is necessary to consider the total floor area of the premises under the lease.

  9. As I noted in Suttons Beach Pavilion Pty Ltd t/as Suttons Beach Pavilion v Moreton Bay City Council, in most leases there will be parts of the premises which are used for purposes other than a retail shop, such as a storage room or to provide another service which do not fall within the definition of a retail shop and a lessee cannot seek to circumvent the exception under section 5A(2)(a) by choosing to use only part of the premise which is under 1000 m2 for the retail shop, as it is the floor space of the entire premise that forms the lease that needs to be considered.

  10. In this case, the premises which the lease pertains to is 2659 m2 and accordingly, regardless of whether the nature of the applicant’s business would meet the definition of a retail business prescribed by the Regulation, this is not a retail shop lease, given it falls within the exception under section 5A(2)(a).

  11. As this is not a retail shop lease, due to the size of the floor space of the retail shop exceeding 1000 m2, the dispute between the parties is not a retail tenancy dispute.[14] Accordingly, there is no need for the Tribunal to determine the issue as to whether there is jurisdiction for the Tribunal to hear the application for interim orders in circumstances where the parties have not participated in mediation, as given it is not a retail shop dispute, there is no jurisdiction under the RSLA for the Tribunal to hear or determine the application to resolve a retail tenancy dispute or the application for an interim order, regardless of whether there was compliance with the pre-proceeding mediation requirements.

    [14] Ibid, Schedule.

  12. In the circumstances, as the tribunal lacks jurisdiction to hear these matters,  the only appropriate order is that the application for an order to resolve a retail tenancy dispute and the application for an interim order are dismissed for want of jurisdiction.

Application for miscellaneous matters

  1. The respondent has brought an application for leave to be represented. Given the substantive proceedings are dismissed, there is no need to determine this application and  accordingly the application for leave to be represented is dismissed.

Orders

  1. The orders of the Tribunal are:

    1.The respondent’s name is corrected to Lynette Joy Barns.

    2.The application for an order to resolve a retail tenancy dispute is dismissed.

    3.The application for interim orders is dismissed.

    4.The application for leave to be represented is dismissed.


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

3