Gary Wolfe Properties Pty Ltd v Exocoet Pty Ltd - [2013] QCAT 513

CITATION:

Gary Wolfe Properties Pty Ltd v Exocoet Pty Ltd [2013] QCAT 513

PARTIES:	Gary Wolfe Properties Pty Ltd (Applicant)
V
Exocoet Pty Ltd (Respondent)

APPLICATION NUMBER:

RSL026-11

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Susan Sullivan, Member

DELIVERED ON:

27 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

RETAIL SHOP LEASE MATTERS - Jurisdiction of Tribunal - Retail Tenancy Dispute - Laundromat - Dry Cleaning and Laundry - Meaning of Services – In situ hire of goods

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s47
Retail Shop Leases Act 1994 (Qld) ss 103, 5, 8
Retail Shop Leases Regulation 1994 (Qld)

Retail Shop Leases Amendment Regulation (No 1) 2000 (Qld)

Kwon v Kim [2005] NSWADT 167

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

Background

In 2002 Gary Wolfe Properties Pty Ltd entered into a lease with a former landlord of premises described as Shop 2 being part of a ground level brick building located at Cleveland for a term of 3 years commencing on 1 October 2002. The lease contained four 3 year options.

The lease was executed by both the landlord and tenant on 15 November 2002.

By an amendment to lease dated 2 August 2005 Gary Wolfe and the former landlord extended the lease term for 3 years expiring on 30 September 2008. The only other change to the Lease was to the rent and the deletion of the first option term.

Exocoet Pty Ltd became registered owner of the subject property and landlord of the premises between 2005 and 2008.

By an undated deed between Gary Wolfe and Exocoet entered into in 2008 acknowledging the exercise of option, the lease was extended for a term commencing on 1 October 2008 and terminating on 30 September 2011. The only other change to the lease was to the rent.

The permitted use of the premises set out in item 5 schedule of lease details is laundromat.

Laundromat is not defined in the lease.

Clause 2.1.1 of the lease provides that the tenant may use the shop only for the permitted use.

Notice of Dispute

On 3 March 2011 Gary Wolfe filed a Notice of Dispute under the Retail Shop Leases Act 1994 (Qld) (the RSL Act) seeking: “A declaration that the Tenant is not required under the terms of the lease to pay “Trade Waste.”

Direction for Filing of Submissions on Jurisdiction

On the Tribunal’s own initiative Directions were made by me on 19 April 2012 for the filing of submissions about the jurisdiction of the Tribunal to deal with the proceeding.

Gary Wolfe and Exocoet were asked to address the following points in their submissions:

(1) Whether the Laundromat is a ‘retail business’ meaning a business prescribed by regulation as a retail business, under the…

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.

Continue reading Gary Wolfe Properties Pty Ltd v Exocoet Pty Ltd

Details

AGLC: Gary Wolfe Properties Pty Ltd v Exocoet Pty Ltd [2013] QCAT 513
Case: [2013] QCAT 513
Decision Date

CaseChat Overview and Summary

The decision in this case involved a dispute between Gary Wolfe Properties Pty Ltd (the applicant) and Exocoet Pty Ltd (the respondent) concerning a retail tenancy matter under the Retail Shop Leases Act 1994 (Qld). The applicant, Gary Wolfe Properties Pty Ltd, sought a declaration and direction regarding a claim that the respondent was not required to pay "Trade Waste." The Tribunal was required to determine whether it had jurisdiction over the matter, specifically whether the premises in question were a "retail shop" under the Act and whether the dispute constituted a "retail tenancy dispute."

The central legal issue was whether the premises, which were described as a laundromat, qualified as a retail shop and whether the dispute was therefore within the jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT). This required an examination of whether the laundromat constituted a retail business under the Retail Shop Leases Regulation 1994 (Qld) and whether it was situated in a retail shopping centre. The Tribunal needed to interpret the relevant statutory definitions and apply them to the specific facts of the case.

The Tribunal found that the laundromat did not qualify as a retail business because it did not predominantly engage in the sale, hire, or supply of goods or services listed in the relevant regulation. Additionally, the Tribunal determined that the laundromat was not part of a retail shopping centre as there were not at least five premises used for retail businesses in close proximity. Consequently, the Tribunal concluded that the premises were not a retail shop, and the lease was not a retail shop lease. As such, the dispute did not fall within the definition of a retail tenancy dispute, and the Tribunal lacked jurisdiction to hear the matter.

Under Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal dismissed the application as misconceived, given its lack of jurisdiction. Consequently, the Tribunal ordered the proceeding to be dismissed.

Orders