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 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 regulation that applied when the lease was entered into;
(2) If not, whether the premises are situated in a ‘retail shopping centre’ given that the lease plan shows 5 premises, one of which is occupied by the Laundromat.
Gary Wolfe filed submissions on the issue of jurisdiction on 30 May 2012.
Exocoet did not file submissions on the issue of jurisdiction.
Jurisdiction of Tribunal
The matter has come back to me to determine whether or not the Tribunal has jurisdiction to deal with the proceeding.
The Tribunal has jurisdiction under Section 103 of the RSL Act to hear retail tenancy disputes.
The phrase “retail tenancy dispute” is defined as follows :
“retail tenancy dispute” means 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.[1]
[1] Retail Shop Leases Act 1994 (Qld) Schedule (definition of retail tenancy dispute)
Assuming the tenant entered into possession on the commencement date the lease was entered into on 1 October 2002 or at the latest on 15 November 2002 when the lease was signed.
The key definitions of the RSL Act[2] which applied when the lease was entered into are:
[2] Retail Shop Leases Act 1994 (Qld) s 5
“retail business” means a business prescribed by regulation as a retail business.
“retail shop” means premises that are –
(a) situated in a retail shopping centre; or
(b) used wholly or predominantly for the carrying on of 1 or more retail businesses.“retail shop lease” means a lease of a retail shop...
A “retail shopping centre”[3] is a cluster of premises-
(a) 5 or more of which are used wholly or predominantly for carrying on retail businesses; and
(b) for which 1 person is, or would be if the premises were leased the head lessor.
[3] Ibid s 8
The Retail Shop Leases Regulation 1994 (Qld) was amended by the RetailShop Leases Amendment Regulation (No.1) 2000 (Qld) which commenced on 1 July 2000 (Regulation 2000).
Section 2 of the Regulation [4] headed “businesses prescribed as retail businesses” provides:
(1) A business whose whole or predominant activity is, or is a combination of the sale, hire or supply of goods or services mentioned in the Schedule is a retail business.
(2) The wholesale sale of goods is not a retail business.
Applicant’s submissions
Gary Wolfe submitted that:
(1) at all relevant times, the lease came under the jurisdiction of the Retail Shop Leases Act as when the Lease was made, on or about 15 December 2002, the Regulations ( Retail Shop Leases Regulation 1994) to the Act provided, in the Schedule thereto, that “Dry Cleaning or Laundry Services” were goods and services to which the Act applied.
(2) the use prescribed in the lease namely “Laundromat” falls within the common meaning of the definition contained in the Regulations, namely Laundry Services.
(3) the tribunal has jurisdiction to hear and determine this claim.
Is the Laundromat a retail business?
The schedule of goods or services (the Schedule)[5] was replaced in Amendment Regulation 2000.
[5] Ibid – Schedule- Section 2
The Schedule lists a wide range of goods or services.
Laundromat is not listed in the Schedule.
Laundromat is defined in the Macquarie Dictionary as: “a commercial premises with coin-operated washing machines, spin-dryers, hot-air dryers and often dry-cleaning machines.”[6]
[6] Macquarie Dictionary (Macquarie Dictionary Publisher,5th ed,2009)
I consider that the dictionary definition of laundromat accords with the common understanding of a laundromat.
Consideration of Applicant’s Submissions
Gary Wolfe’s first submission is that when the lease was made Dry Cleaning or Laundry Services were listed in the Schedule. This is not correct. “Dry cleaning or laundry services” was listed in the former Schedule that was replaced by Regulation 2000.
“Dry cleaning and laundry” is listed in the Schedule under the heading miscellaneous retailing.
Gary Wolfe’s second submission is that laundromat falls within the common meaning of laundry services.
The question is whether the whole or predominant activity of the laundromat is, or is a combination of the sale, hire or supply of dry cleaning and laundry services.
The relevant definitions of service in the Macquarie Dictionary are:
1. an act of helpful activity
2. the supplying or supplier of any articles, commodities, activities etc., required or demanded.
12.(often plural) the performance of any duties or work for another; helpful activity: medical services.[7]
[7] Ibid.
I consider the common meaning of a laundry service to be a service where laundry tasks such as washing, drying and folding are performed for a customer.
Despite the submission that a laundromat is a laundry service, there is no evidence to suggest that the laundromat offers services such as laundry or dry-cleaning.
I conclude that the laundromat does not sell, hire or supply dry cleaning and laundry services.
Even if the terms “dry cleaning” and “laundry” can be considered separately I do not consider that the laundromat provides either a dry cleaning service or a laundry service.
Although not raised in the submissions I have also considered if the whole and predominant activity of a laundromat is the hire or supply of goods mentioned in the Schedule.
The only relevant goods are washing machines and possibly household appliances such as dryers listed in the Schedule under domestic appliance retailing.
Is the provision of coin-operated washing machines and dryers for in situ use at a laundromat the hire or supply of those goods?
The definition of hire in the LexisNexis Concise Australian Legal Dictionary is: “To lend to another for consideration the possession and use of goods for a particular period or purpose ”[8]
[8] Butt, Peter and Hamer, David (eds),Lexis Nexis Concise Australian Legal Dictionary
The relevant definition of hire in the Macquarie Dictionary is: “to engage the temporary use for payment: to hire a car.” [9]
[9] The Macquarie Dictionary ( Macquarie Dictionary Publishers,5th ed,2009).
In Kwon v Kim [2005] NSWADT 167 Fox J in considering the use of premises as an internet cafe commented that:
The Applicant’s strongest argument is that the use falls within equipment hire shop. The Respondent responded saying that the concept of hiring involves a true bailment, a taking away involving surrender of actual possession. That is actually the definition used in Butterworth’s Property Law Dictionary, although the ordinary use of the word “hire” may not be so narrow. The Macquarie Dictionary does not include “taking away” in its definition, but then uses “hire car” as the only illustration and that is certainly not in situ hiring.[10]
[10] Kwon v Kim [2005] NSWADT 167 at [14].
Fox J concluded that:
…the in situ hiring of computer equipment, which might best be described as the hire of the use of the machine, rather than the hire of the machine, was not within the “equipment hire” business listed in the Schedule. It seems to me that the use of this term, within the context of the Schedule, means a taking away of goods.[11]
[11] Ibid [15].
Fox J commented:
Although not argued in written submissions, it does appear to me to be apposite to compare with a Laundromat. That appears to be correctly described as an establishment where there is traded a temporary right of access to a machine for it to carry out its functions. Whilst that may well be seen as a place where equipment is hired, I adhere to my view that the ordinary meaning of equipment hire shop involves a concept of taking hired items away.[12]
[12] Ibid [22].
A laundromat owner does not surrender possession of a washing machine or dryer when it is being used by a customer.
I have considered the comments of Fox J regarding laundromats. I am satisfied that when a customer uses a washing machine or dryer in situ at a laundromat the owner is not hiring or supplying goods to the customer but rather “granting a temporary right of access”[13] to the goods by permitting the customer to use those goods on the premises.
[13] Ibid.
I find that the laundromat is not a retail business prescribed by the relevant regulation as a retail business.
Is the Laundromat situated in a retail shopping centre?
The lease plan attached to the lease (marked attachment “A” to the Notice of Dispute) shows 5 separate premises in the ground level brick building, common toilets and an exclusive use area for an adjoining shop at the end of the building.
The subject premises of 47 m2 (Shop 2) are described as hachured on the plan.
There is no evidence of the nature or number of the businesses conducted from other premises when the lease was entered into, so I rely on the accuracy of the lease plan.
The lease plan identifies 5 premises including the laundromat.
As the laundromat premises are not used for a retail business there cannot be a cluster of 5 or more premises used for retail businesses.
The laundromat premises are not premises that are situated in a retail shopping centre.
Conclusion
As the premises are not used for carrying on a retail business and are not situated in a retail shopping centre they are not a retail shop.
As the premises are not a retail shop, the lease is not a retail shop lease and the dispute is not a retail tenancy dispute under the RSL Act.
The Tribunal does not have jurisdiction to deal with the dispute.
Dismissal under Section 47 QCAT Act
Under s 47(2) of the QCAT Act the Tribunal may order that the proceeding be dismissed if the Tribunal considers a proceeding is, amongst other things, misconceived.[14]
[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s47(1)(a).
The Tribunal’s power to act under s 47(2) is exercisable by a legally qualified member if the Tribunal has not been constituted for the proceeding, which is the case in this proceeding.[15]
[15] Ibid s 47(4)(b).
As the Tribunal does not have jurisdiction I consider that the proceeding is misconceived and order under s 47 (2) (a) QCAT Act that the proceeding be dismissed.
Orders
The application is dismissed.
Regulation ( No 1) 2000 (Qld)
(Lexis Nexis Butterworths,4th ed,2011).
1