Gastro Work Pty Ltd v Sutherland - [2010] QCAT 599

CITATION:

Gastro Work Pty Ltd & Ors v Sutherland [2010] QCAT 599

PARTIES:	Gastro Work Pty Ltd Mr Darrin Matthew Keogh Ms Aine Mary Keogh Mr Gary Nigel Farrell
v
Mr Robert Peter Sutherland Mrs Lynne Maree Sutherland

APPLICATION NUMBER:

RSL032-10

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

22 November 2010

HEARD AT:

On the Papers

DECISION OF:

Ms Anne Forbes

DELIVERED ON:

22 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The interlocutory application is dismissed.

CATCHWORDS :

Application for transfer – Respondent Plaintiff in Supreme Court action - Supreme Court action commenced after proceedings in Tribunal – claim in Tribunal within jurisdiction of Tribunal – transfer application refused – Retail Shop Leases Act 1994 s 22 – Queensland Civil and Administrative Tribunal Act 2009 s 52.

APPEARANCES and REPRESENTATION (if any):

Decision was made on the papers without the parties being present.

REASONS FOR DECISION

On 14 April 2010 Gastro Works Pty Ltd (“the First Applicant”), with Darrin Matthew Keogh, Aine Mary Keogh and Gary Nigel Farrell (“the guarantors”) filed an Application RSL032-10 (“the substantive application”) against Robert Peter Sutherland and Lynne Maree Sutherland as trustees (“the Respondents”).

The First Applicant seeks a declaration[1] that it validly terminated a lease of premises at 175 Ocean Drive, Twin Waters, Queensland, pursuant to section 22[2] of the Retail Shop Leases Act 1994 (“the Act”), and for compensation “up to $250,000”.[3] Section 22 provides: “At least 7 days before a prospective lessee of a retail shop enters into a retail shop lease (the disclosure period), the lessor must give to the person a draft of the lease and a disclosure statement.” The sanction for non-compliance or provision of a defective statement is that the lessee may terminate the lease by written notice to the lessor within 6 months after entry, and claim compensation, unless the landlord establishes the defence in s 22(5).

[1] Section 83(1) of the Retail Shop Leases Act 1994.

[2] Not section 43, as suggested in the Respondent’s submissions in support of their application to

transfer or strike out.

[3] Further and better particulars of quantum may be required, but that does not affect the present

question.

Each Guarantor seeks a declaration that he or she is released from all and any liability under guarantees and indemnities given in relation to the lease.

The First Applicant executed the lease on 29 August 2009, and gave the Respondents a notice of termination on 16 February 2010, within the time limit prescribed in s 22(3) of the Act.

The Respondents deny that they are in breach of s 22, and say, further, that the First Applicant has waived its right, if any, to rely on that provision. That is not a point to be decided at this stage.

On 29 April 2010, some two weeks after the substantive application was lodged, the Respondents commenced action No 4412 of 2010 in the Supreme Court of Queensland against the First Applicant and the Guarantors, claiming $256,666.69 for debt or alternatively as…

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 Gastro Work Pty Ltd v Sutherland

Details

AGLC: Gastro Work Pty Ltd v Sutherland [2010] QCAT 599
Case: [2010] QCAT 599
Decision Date: 22 November 2010

CaseChat Overview and Summary

Gastro Work Pty Ltd (the applicant) sought an interlocutory order transferring a proceeding from the Queensland Civil and Administrative Tribunal (the Tribunal) to the Supreme Court. The respondent (Sutherland) opposed the application on the basis that the Tribunal had exclusive jurisdiction over the proceeding. The applicant brought the proceeding in the Supreme Court after initiating proceedings in the Tribunal, where the claim was within the jurisdiction of the Tribunal. The applicant argued that the Supreme Court had the power to transfer the matter and that the proceeding was not within the exclusive jurisdiction of the Tribunal. The respondent contended that the proceeding was within the exclusive jurisdiction of the Tribunal and that the Supreme Court did not have the power to transfer the matter to itself.

The court examined the relevant statutory provisions and the principles of statutory interpretation. The court noted that the Supreme Court has the power to transfer a proceeding to itself, but this power is subject to the exclusive jurisdiction of other courts or tribunals. The court held that the proceeding was within the jurisdiction of the Tribunal and that the Tribunal had exclusive jurisdiction over the proceeding. The court also held that the applicant's claim was not within the exclusive jurisdiction of the Supreme Court. The court concluded that the application should be dismissed, as the proceeding was not appropriately brought in the Supreme Court and there were no exceptional circumstances that warranted the exercise of the court's discretion to transfer the proceeding. The court further held that the applicant's argument that the proceeding was not within the exclusive jurisdiction of the Tribunal was without merit. The court found that the Tribunal had exclusive jurisdiction over the proceeding and that the application for transfer was an abuse of process. The court noted that the applicant had initiated proceedings in the Tribunal, which were within its jurisdiction, and then sought to transfer the proceeding to the Supreme Court. The court held that this was an abuse of process and that the application should be dismissed.

The interlocutory application is dismissed. The proceeding remains in the Tribunal, where it was initially commenced. The court's decision reinforces the importance of respecting the jurisdiction of the Tribunal and the need to bring proceedings in the appropriate forum. The decision also highlights the court's reluctance to exercise its discretion to transfer a proceeding to itself in the absence of exceptional circumstances.

Orders

Orders of the court

1. The interlocutory application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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