Hansen v Kalymnios

[2011] QCAT 428

CITATION: Hansen v Kalymnios [2011] QCAT 428

PARTIES:	Ms Gemma Mai Hansen t/as The Stove
v
Mrs Carolyn Kalymnios

APPLICATION NUMBER:   RSL069-11

MATTER TYPE: Retail shop leases matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Ms Anne Forbes, Member

DELIVERED ON: 14 September 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.       Until trial of this matter, or further order, the Respondent Carolyn Kalymnios is ordered to refrain from calling in the bank guarantee of the Westpac Banking Corporation in favour of Dimitri George Kalymnios and Carolyn Kalymnios, obtained by the Applicant on 29 November 2010.

2.       If and when Dimitri George Kalymnios is joined as a respondent to these proceedings, the terms of Order 1 shall extend to him, without the necessity of a further order to that effect.

3.       Cost of this application reserved.

CATCHWORDS: Application for interim order or injunction – Retail Shop Leases Act 1994, s 83 – Queensland Civil and Administrative Tribunal Act 2009 compared – order to refrain from certain action – non-joinder of proper co-respondent

APPEARANCES and REPRESENTATION (if any):

This proceeding was heard and determined on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. These proceedings are brought under the Retail Shop Leases Act 1994 (“RSLA”).

1. In a Notice of Dispute filed on 26 July 2011 the Applicant Gemma Mai Hansen (Hansen) accuses the Respondent Carolyn Kalymnios (Kalymnios) of unconscionable conduct.  The relief sought by Hansen includes the return of a bank guarantee to a maximum of $10,567.50 issued to Kalymnios and Dimitri George Kalymnios by Westpac Banking Corporation at Hansen’s request on 29 November 2010.  For present purposes it is unnecessary to detail the remaining allegations or claims for relief.

1. One particular of the alleged unconscionability is “failing to return a valid signed copy” of a lease document signed by Hansen on 1 December 2010, with respect to shop premises at Jane Street, West End, Brisbane.  While both Mr and Mrs Kalymnios appear as lessors in that document, and defaults are alleged against each of them, only Carolyn Kalymnios is named as Respondent in the Notice of Dispute.

1. However, both Mr and Mrs Kalymnios are described as Respondents in the application for an interim order or injunction filed by Hansen on the same day as the Notice of Dispute, namely 26 July 2011.  The technical defect in the Notice of Dispute should be remedied by the Applicant forthwith.

1. The interim application relates to the bank guarantee referred to above.  But in her submissions in support of that application Hansen refers to “key monies” as well as the guarantee.  It may be noted that section 39 of the RLSA forbids a lessor to seek or accept key money and makes any such payment recoverable as a debt.

1. In response to the interim application, Kalymnios states that she holds no bond monies, and that no such payment was made.  With respect to the bank guarantee, Kalymnios does not oppose an interim order not to resort to that security.

1. According to section 59 of the Queensland Civil and Administrative Tribunal Act 2009 an injunction, including an interim injunction, may be granted only by a judicial member. But section 83 of the RLSA imposes no such restriction. It provides (subject to an exception immaterial at this stage) that in proceedings under the latter Act, QCAT may “make an order a party to a dispute to do, or not to do, anything” – an order tantamount to a mandatory or negative injunction.

1. In absence of opposition by the Respondent, I propose to grant the order sought, provided that, unless and until Dimitri George Kalymnios is joined as a respondent, the order shall apply to Carolyn Kalymnios only.

ORDERS

1. Until trial of this matter, or further order, the Respondent Carolyn Kalymnios is ordered to refrain from calling in the bank guarantee of the Westpac Banking Corporation in favour of Dimitri George Kalymnios and Carolyn Kalymnios, obtained by the Applicant on 29 November 2010.

2. If and when Dimitri George Kalymnios is joined as a respondent to these proceedings, the terms of Order 1 shall extend to him, without the necessity of a further order to that effect.

1. Cost of this application reserved.