Indulge Pty Ltd v Rowe - [2021] QCAT 262

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Indulge Pty Ltd v Rowe & Anor [2021] QCAT 262

PARTIES: INDULGE PTY LTD ATF THE HINDS FAMILY TRUST T/AS EMERAUDE HAMPTON

(applicant/first respondent by counter-application)

v

BRUCE ROWE
LORRAINE FRANCIS ROWE

(respondents/applicants by counter-application)

v

LARRY HINDS
AMANDA HINDS
(second respondents by counter-application)

APPLICATION NO/S:

RSL112-20

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

22 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Application for miscellaneous matters filed 29 March 2021 is dismissed.

CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – POWER TO ORDER - exercise of discretion - where financial circumstances, prospects of success, genuineness of proceedings and other matters considered

Corporations Act 2001 (Cth), s 58AA, s 1335

COVID-19 Emergency Response Act 2020 (Qld), s 23
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38, s 100, s 102, s 109
Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 5, s 8

Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), s 12, s 41, s 44

Greg Black Constructions Pty Ltd v Brodie and Anor [2011] QCAT 671

Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential CTS 33550 [2017] QCAT 424

APPEARANCES & REPRESENTATION:

Applicant:

R Schulte instructed by Bakers Lawyers

Respondent:

M Smith instructed by John Davies & Co, Solicitors

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

In 2017 Indulge Pty Ltd leased premises from the Rowes to conduct a coffee shop/restaurant. Disputes arose in relation to the septic system servicing the premises. Indulge says that the increase in operating costs imposed by the septic system ‘destroyed’ Indulge’s business. Issues also arose between the parties in relation to negotiating rent relief as a result of the COVID-19 pandemic, with restaurants being required to cease trading in March 2020 and when trading was permitted restrictions being imposed. On 4 August 2020 the parties participated in a mediation conducted by the Queensland Small Business Commissioner. As no agreement was reached Indulge commenced these proceedings.[1] Indulge vacated the premises at the end of the first term as it contended that conducting its business at the premises was unsustainable.
[1]Application for an order to resolve a retail tenancy dispute, filed 18 August 2020.
The Rowes seek security for costs in the amount of $31,810 or such other amount as the Tribunal determines (‘the Application’).[2] The Rowes’ solicitor gave evidence of his estimate of the costs as had been provided to Indulge’s solicitors prior to making the Application.[3]
[2]Application for miscellaneous matters filed 29 March 2021 (‘the Application’).
[3]Affidavit of Kim Gregory Jubb filed 29 March 2021, annexure B.
The Rowes’ submissions claim to seek an order for security for their costs in relation to the claim brought against them by Indulge and in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 262
Decision Date

CaseChat Overview and Summary

Indulge Pty Ltd leased premises from the Rowes to conduct a coffee shop/restaurant. Disputes arose in relation to the septic system servicing the premises, and Indulge contends that the increase in operating costs imposed by the septic system 'destroyed' Indulge's business. Issues also arose between the parties in relation to negotiating rent relief as a result of the COVID-19 pandemic, with restaurants being required to cease trading in March 2020 and when trading was permitted restrictions being imposed. On 4 August 2020 the parties participated in a mediation conducted by the Queensland Small Business Commissioner. As no agreement was reached Indulge commenced these proceedings. The Rowes seek security for costs in the amount of $31,810 or such other amount as the Tribunal determines. The Rowes’ submissions claim to seek an order for security for their costs in relation to the claim brought against them by Indulge and in relation to the counter-application. The Tribunal has power to require a party to provide security for another party’s costs against whom a claim is made or a decision sought, if under the QCAT Act or an enabling Act the Tribunal may award a party’s costs for a proceeding. The Tribunal may have regard to the financial circumstances of the parties, the prospects of success or merits of the proceeding or part of the proceedings, the genuineness of the proceeding or part of the proceedings and anything else the tribunal considers relevant. The Tribunal has a broad discretion to require security which must be exercised judicially. It is too early in the proceedings to form a view about whether a costs order is likely to be made. The financial circumstances of Indulge are not in favour of an order for security. The prospects of success are not in favour of an order for security. The genuineness of the proceeding is not in favour of an order for security. Weighing all of the above matters the Tribunal is not satisfied that security should be ordered.

The Application for miscellaneous matters filed 29 March 2021 is dismissed.

Orders