Harbour Day Spa Pty Ltd v Three Harmony Australia Pty Ltd
[2012] QCAT 140
•2 April 2012
| CITATION: | Harbour Day Spa Pty Ltd v Three Harmony Australia Pty Ltd [2012] QCAT 140 |
| PARTIES: | Harbour Day Spa Pty Ltd |
| v | |
| Three Harmony Australia Pty Ltd |
| APPLICATION NUMBER: | RSL081-11 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | 2 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Michelle Howard, Member |
| DELIVERED ON: | 2 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | STRIKING OUT – where tribunal does not have jurisdiction – where application misconceived Queensland Civil and Administrative Tribunal Act 2009, s 47 |
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
Harbour Day Spa Pty Ltd filed a notice of dispute about a retail shop lease, between itself as tenant, and Three Harmony Australia Pty Ltd, as landlord, on 8 August 2011. Mediation was scheduled, but did not result in the resolution of the dispute. The mediator then referred the notice of dispute to the QCAT.
The notice of dispute seeks orders for a 20% reduction of rent for a 12 month period because of difficult economic times.
The parties were notified that a directions hearing was scheduled for 28 September 2011. A representative for Three Harmony Australia attended the directions hearing. There was no appearance for Harbour Day Spa.
Directions were made that both parties provide written submissions within 14 days as to why the application should or should not be struck out under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). It was also directed that issue be determined on the papers.
Neither party has complied with the directions.
Under section 47 of the QCAT Act, an application may be dismissed or struck out if it is frivolous, vexatious or misconceived; lacking in substance; or is otherwise an abuse of process. The tribunal may act under the section on its own initiative.
Under section 103(1) of the Retail Shop Leases Act 1994 (the RSL Act), QCAT may not hear a retail tenancy dispute about the amount of rent payable under a retail shop lease.
The orders sought by Harbour Day Spa are for a rent reduction. The dispute is a dispute about the amount of rent payable. As provided in section 103 of the RSL Act, the tribunal does not have jurisdiction to hear the dispute.
As the tribunal does not have jurisdiction to hear the dispute, the application is misconceived. It should be struck out.
I make orders accordingly.
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