Goldvista Holdings Pty Ltd v J & L Branca Investments Pty Ltd
[2012] QCAT 257
•19 June, 2012
| CITATION: | Goldvista Holdings Pty Ltd and Anor v J & L Branca Investments Pty Ltd [2012] QCAT 257 |
| PARTIES: | Goldvista Holdings Pty Ltd Canehawk Pty Ltd |
| v | |
| J & L Branca Investments Pty Ltd |
| APPLICATION NUMBER: | RSL128-11 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick, Member |
| DELIVERED ON: | 19 June, 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicants and respondent are to file and serve written submissions, in relation to the jurisdiction of the Tribunal to deal with the proceedings and set out any order they seek by 29 June 2012. 2. The applicants and the respondent are to file and serve any written submissions in reply by 11 July 2012. 3. The directions made on 22 May, 2012 are vacated pending further orders. |
| CATCHWORDS: | Retail shop leases dispute – arrears of rent – jurisdiction of Queensland Civil and Administrative Tribunal |
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
This is an application made by the Respondent, J & L Branca Investments Pty Ltd (Branca), for leave to use a Form 4 for the application and for an order that Godfrey Rutland Harris, Demise Mary Puggioni and Luciano Puggioni be joined in the proceedings in this Tribunal as respondents.
The proposed respondents signed a guarantee and indemnity with respect to the obligations of the lessee, and applicants in the principal proceeding, Goldvista Holdings Pty Ltd and Cenehawk Pty Ltd, pursuant to a lease entered by those companies with Branca, dated 21 August, 2008.
A Notice of Dispute was filed by the applicants, pursuant to the Retail Shop Leases Act 1994, on 16 December, 2011. The applicants seek orders that the respondent consent to the assignment of the lease, return bank guarantees and pay costs. Since the application was filed the bank guarantees have been called up by the respondent, making this part of the application redundant.
The applicants were tenants of the respondent, pursuant to a lease of premises at 1712 Gold Coast Highway, Burleigh Heads.
On 17 December, 2010 the applicants sold the business carried on by them, known as IGA Express to Baha Corp Pty Ltd (Baha).
The applicants assert that the respondent consented to assignment of the lease on a number of conditions which they satisfied. They say that they forwarded a Deed of Covenant and Variation of Lease to the solicitors for the respondent on 17 December, 2010 and forwarded a bank guarantee for Baha and for the respondents with respect to a “security bond” and “rental bond on site”, respectively, totalling $44,889.60.
The applicants assert that as all the respondent’s conditions were met, its failure to consent to assignment of the lease has been unreasonable, under s 50(2)(b) of the Retail Shop Leases Act 1994 (RSL Act).
The applicants say that by imposing a bond of $44,889.60 the Respondent has imposed an obligation upon the assignee which was not the obligation of the assignor under the lease in contravention of s 50(2)(a) of the RSL Act.
Further, they say that they should be released from their obligations in accordance with s 50A of the RSL Act and/or that the respondent engaged in unconscionable conduct, prohibited by s 46A of the RSL Act by demanding the applicants provide a bank guarantee and a personal guarantee to supplement those provided by the assignee on the day of settlement before the respondent would provide their consent to the assignment of lease.
The respondent denies any unreasonable or unconscionable conduct. It says that although the Deed of Covenant and Variation was received by it, the document was amended by the respondent and returned to the applicants. Further, issues were raised in relation to discrepancies in the bank guarantees.
The respondent denies that any valid assignment of lease has been effected. In particular, the respondent says that discrepancies in the bank guarantees were not rectified and the conditions of assignment were not met. It says no executed Deed of Covenant and Variation of Lease was returned to it and no Transfer of Lease or Assignment was received by it.
The respondent has filed a counter-application. It asserts that the applicants and the guarantors remain liable pursuant to the lease to the applicants.
The respondent submits that Baha vacated the premises on 7 December, 2011, leaving the premises in a condition which required considerable make good costs. The respondent has now negotiated an agreement to lease with another tenant, at a lower rental.
The respondent claims $76,787.90 plus interest, being outstanding rental to 29 February, 2012; rental to 24 March, 2012; rental difference caused by default; reinstatement of premises, cost of reletting premises; legal costs and interest under the lease.
The respondent seeks orders that the application be dismissed, that the applicant pay the respondent damages for breach of the lease in the sum of $76,787.90 or alternatively that the guarantors pay damages in that sum.
Mr Puggione filed a submission dated 23 April, 2012 in response. It is not clear whether his submission is made on behalf of the applicants or on behalf of the applicants and the proposed respondents. I note that he is one of the guarantors in question. Mr Puggione puts in issue the validity of the guarantee and objects to the respondent’s application.
Jurisdiction
Neither party has raised the jurisdiction of QCAT to deal with either the principal application not the counter-application and current application for joinder.
This issue must be addressed before QCAT can make any of the orders sought by the parties.
QCAT is vested with jurisdiction to deal with retail tenancy disputes by the RSL Act, which is an enabling Act. A retail tenancy dispute is defined in the RSL Act as: “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.”
Section 103 of the RSL Act provides, relevantly, that QCAT has jurisdiction to hear retail tenancy disputes, other than a retail tenancy dispute about arrears of rent under a retail shop lease.
Section 83 of the RSL Act provides that QCAT may make orders, including declaratory orders, which it considers to be just to resolve a retail tenancy dispute.
It would appear that the applicants are seeking an order, in the nature of an enforcement order that the respondent consent to the assignment of the lease to Baha, although the lease has now terminated. They are also seeking declaratory orders in relation to the alleged unreasonable or unconscionable conduct of the respondent and an order that they be released from any obligations under the lease.
The relief sought by the applicants would have the effect of relieving them from any liability for arrears of rent or damages arising out of the occupation of the premises by Baha and its subsequent vacation of the premises.
As to the respondent’s relief, a part relates to arrears of rent, which is outside the jurisdiction of QCAT. If the guarantors are joined as parties to the proceedings, it is intended by the respondent that they be held liable for the arrears of rent and other claimed damages.
It would not appear to me to be practical to separate the issue and require the parties to litigate in more than one place in with respect to matters which are closely inter-related.
QCAT has the power pursuant to section 52 of the Queensland Civil and Administrative Tribunal Act 2009 to transfer a matter to a court of competent jurisdiction if it considers it does not have jurisdiction to hear all matters in a proceeding. It may be that a transfer to the District Court of the application and counter-application is an appropriate order.
As neither party has addressed the question of jurisdiction I require submissions from the applicant and the respondent before any final orders are made.
Orders
The applicant and respondent are to file and serve written submissions, by 29 June 2012 in relation to the jurisdiction of the Tribunal to deal with the proceedings and set out any orders the seek.
The applicant and the respondent are to file and serve any written submissions in reply, by 11 July 2012.
The Directions made by the Tribunal on 22 May 2012 are vacated pending further order.
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