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

1. 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”).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 damages for breach of lease, interests and costs against the First Applicant, and $256,666.69 for debt or alternatively for breach of guarantee and indemnity, interest and costs against the Guarantors and each of them. Subsequently the Respondents, by an amended Statement of Claim, increased the amounts claimed to $433,340.76.

7. On 19 October 2010 the Respondents filed an application (“the interlocutory application”) in this Tribunal, asking that the substantive application be struck out or dismissed, or alternatively that it be transferred to the Supreme Court. Section 52 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act) provides that the Tribunal may (not must) transfer a proceeding to a competent court if considers that the proceeding, or part of it, would be more appropriately heard in the court, or if the Tribunal considers that it does not have jurisdiction to deal with all matters in the proceeding. For the purposes of the QCAT Act, “proceeding” means a proceeding before the Tribunal, and the only relevant proceeding in this forum is the s 22 dispute delineated in Application RSL032-10.

8. The grounds of the interlocutory application are that the dispute is now before the Supreme Court, that the Respondents (in what is effectively a counterclaim) are suing for an amount well in excess of the Tribunal’s jurisdiction, that the court is a more appropriate forum, and that the relief sought by the Guarantors is not a “retail tenancy dispute” and is therefore beyond the Tribunal’s jurisdiction.

9. It is not necessary to decide the status of the Guarantors’ claims at this stage. The First Applicant’s claim, based on s 22 of the Act, is clearly within the Tribunal’s jurisdiction.[4]

[4]           Contrast  Logan City Shopping Centre Pty Ltd v Blarney’s Irish Tavern Pty Ltd RSL041-2010.

10. Section 94(1) of the Act provides that, once a notice of dispute is lodged, the dispute must not be heard by a court. The dispute before the tribunal is whether the First Applicant (and its Guarantors) are entitled to rely on s 22 of the Act. But be that as it may, the jurisdiction of the Tribunal to determine (at least) the First Applicant’s claim is not ousted by, or necessarily stayed by the Respondents’ action in the Supreme Court. Quite apart from s 94, there is no obligation upon an inferior court or tribunal to decline to proceed, simply because a related matter is pending in a superior court. In Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249 McPherson J observed at 252:

“[I]t … is ... quite clear that the existence of ... concurrent proceedings in a superior and inferior court does not itself operate to ‘oust’ or to deprive the inferior court of jurisdiction in a matter in which, apart from the pendency of the concurrent proceeding in the [superior] court, the inferior court would certainly have jurisdiction to determine the matter before it.”

11. That decision was followed by the NSW Court of Appeal in Tiufino v Warland (2000) 50 NSWLR 104; [2000] NSWCA 110. See also Attorney-General of the ACT v Eastman [2008] ACTCA 6 at [37].

12. The Respondent’s Supreme Court claims are causes of action quite distinct from the First Applicant’s claim under s 22 of the Act. The manifest policy of the Retail Act and the QCAT Act is to provide a process of dispute resolution that is relatively speedier, less expensive and less formal than the regular court system. I do not consider that the Tribunal, presented with a claim within its jurisdiction, should be rendered impotent whenever a respondent asserts a counterclaim in excess of the Tribunal’s monetary jurisdiction.

13. Insofar as the issues in the Supreme Court action relate to the s 22 issue they will be determined, one way or the other by an estoppel arising from the Tribunal’s decision.[5] QCAT is a tribunal of record: QCAT Act s 164.[6]

“[If] in the [inferior tribunal] it is decided that the lease has been terminated, then the decision will, subject to appeal, presumably create an issue estoppel binding in the proceedings in this Court … that is not in this case a compelling reason for staying the proceedings [below]. In conferring jurisdiction to entertain and determine such proceedings, and to do so summarily, the legislature must have had in mind that issue estoppels might arise, which would bind the parties and so preclude them from re-litigating the same issues. If it did not intend that result, either generally or in a case where the same issue was before a superior court, then it is reasonable to expect that it would have said so. Nothing of that kind appears … from the provisions of the Act”: Boyd v Halstead ex parte Halstead [1985] 2 Qd R 249 at 257 per McPherson J.

[5]As to estoppels by record at common law, based on decisions of tribunals see Victorian Professional Group Management Pty Ltd v The Proprietors “Surfers Aquarius” Building Units Plan No 3881 [1991] 1 Qd R 487; McNair v Press Offshore Ltd (1997) 17 WAR 191; Basser v Medical Board of Victoria [1981] VR 953; Isaacs v Cachia [1981] 2 NSWLR 92; Bartucciotto v Euro Printing Pty Ltd

6 [1999] WASCA 1011; Milojevic v ROH Industries Pty Ltd (1991) 56 SASR 78; Tiufino v Warland (2000) 50 NSWLR 104 at [27]; [2000] NSWCA 110.

14. And, so far as I can see, nothing of that kind is to be found in the QCAT Act.

15. If the substantive application is successful, neither the First Applicant nor the Guarantors will be indebted to the Respondents, and there will be an estoppel which will effectively dispose of the Supreme Court proceedings.  On the other hand, if the substantive application fails, the Respondents’ task in the Supreme Court will be simplified.

16. I conclude that the Tribunal has a lawful discretion, if not exclusive jurisdiction to deal with the substantive application, and that it should proceed to do so.

17. The interlocutory application is dismissed.

18. According to s 52(7) of the QCAT Act, the Tribunal’s power to transfer a proceeding to a court is exercisable only by a judicial member. There is no explicit requirement to observe that procedure when, as here, the Tribunal refuses to order a transfer. However, for abundant caution, and as a matter of courtesy if not necessity, I propose to refer this decision to the President of the Tribunal.