iCatch Guttering v Chagoury Family Super Fund

[2014] QCAT 156

CITATION: iCatch Guttering v Chagoury Family Super Fund
[2014] QCAT 156

PARTIES:	Emmelline Asquith (Snow) t/as iCatch Guttering (Applicant)
v
Chagoury Family Super Fund (Respondent)

APPLICATION NUMBER: RSL006-14

MATTER TYPE: Retail shop leases matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Howard

DELIVERED ON: 17 April 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The applications of the applicant for miscellaneous matters and an interim order are dismissed.

2.    The application to resolve a retail tenancy dispute is struck out.

CATCHWORDS:

RETAIL SHOP LEASE- APPLICATION TO STRIKE OUT – whether the dispute is a retail tenancy dispute – whether the premises constitute a retail shop – whether the application is misconceived

 Queensland Civil and Administrative Tribunal Act 2009 (Qld) 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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Asquith (Snow) filed an application for an order to resolve a retail tenancy dispute. She seeks, amongst other orders, an order recognising her occupation of premises as a retail shop lease and for compensation for various alleged conduct of a representative of the landlord.

2. Chagoury Family Super Fund has filed a miscellaneous application seeking orders dismissing or striking out the application filed by Ms Asquith (Snow).

3. In response Ms Asquith (Snow) has filed two further miscellaneous applications opposing the application for strike out and most recently a further application for an interim order in which she seeks orders to allow her time to remove her chattels.

4. The application made by Ms Asquith (Snow) was made under the Retail Shop Lease Act 1994 (Qld) (‘the RSL Act’).

5. The Tribunal’s jurisdiction is not at large. It has jurisdiction only in respect of those matters which Parliament has prescribed. Under the RSL Act the Tribunal has jurisdiction, broadly speaking, for retail tenancy disputes, that is, disputes under or about retail shop leases or about the use or occupation of a leased shop under a retail shop lease. The Schedule defines a retail shop to mean:

   …..premises that are-

   (a)situated in a retail shopping centre; or

   (b)used wholly or predominantly for the carrying on of 1 or more retail businesses.

6. The premises formerly occupied by Ms Asquith are not situated in a retail shopping centre. It is apparent from photographs provided to the Tribunal that the premises are located in an industrial complex. It is also apparent from the material filed by the parties and in particular from the photographs that the premises are not used either wholly or predominantly for the carrying on of one or more retail businesses.

7. The photographs reveal that despite the premises being located in an industrial complex that they were being used by Ms Asquith (Snow) as a residence. They show a large variety of unkempt domestic items scattered around and piled up within the premises, as well as clear signs of persons living in the premises. It is also apparent that the landlord advised Ms Asquith (Snow) that the local authority did not permit the premises to be used for residential purposes, and that he had entered discussions with Ms Asquith on the basis that they were to be used for storage purposes.

8. There is no written lease agreement between the parties, although it is clear that there were discussions between the parties about occupation of the premises. Whatever that agreement or agreement to lease may have been, I am satisfied that it was not an agreement in respect of a retail shop and that there is no retail shop lease in existence. It appears from Ms Asquith (Snow)’s material that she argues that because she has a business name, that is, iCatch Guttering, that this somehow converts this arrangement into a retail shop lease and the dispute into a retail tenancy dispute. This is not so.

9. Under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), the Tribunal may order that a proceeding be dismissed or struck out where an application is misconceived. For the reasons I have explained there is no retail tenancy dispute. The application is misconceived. The application should be struck out.

10. The Tribunal therefore has no jurisdiction to make the various miscellaneous and interim orders sought by Ms Asquith (Snow).

11. Accordingly, I make orders dismissing the miscellaneous and interim applications of Ms Asquith and striking out her application for an order to resolve a retail tenancy dispute.