Jaason v Band - [2020] QCAT 117

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jaason v Band [2020] QCAT 117

PARTIES: ANTHONY-ASHLEY JAASON

(applicant)

v

ALFRED ADOLF BAND

(respondent)

APPLICATION NO/S:

RSL043-17

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

14 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

Alfred Adolf Band is to pay to Anthony-Ashley Jaason the amount of Four Thousand Eight Hundred Dollars ($4,800.00).

CATCHWORDS:
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – where the parties had discussions as to entering into a retail shop lease – where no lease was entered into – where a deposit was paid – whether the deposit was refundable – where a non-refundable deposit was held to be key money – where the receipt of key money was prohibited and was recoverable as a debt

Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3

Retail Shop Leases Act 1994 (Qld), s 102

Hall v Freeman [2018] QCATA 159

REPRESENTATION:

Applicant:

Self-represented

Respondent:

T. Hoyle as Attorney under an Enduring Power of Attorney for Alfred Adolf Band

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Mr Alfred Adolf Band (‘the owner’) is the owner of premises situated at 106 Deshon Street, Woolloongabba, in Brisbane.
Mr Anthony-Ashley Jaason (‘the tenant’) intended to operate a business known as ‘The Deshon Street Tea Gardens’ from the premises.
The tenant filed a Notice of Dispute in the Tribunal on 9 March 2017. The remedy that the tenant was seeking was set out as follows:
That the Landlord repays $4,800 of $5,000 Deposit made to him for the Lease that never materialised.
The owner filed a Response and/or counter-application on 6 July 2017. The owner said in the response that the agreement was not just for the lease of the premises, but also for the purchase of the owner’s takeaway snack bar business on the premises, and that the payment made by the tenant to the owner of $5,000 was to buy the business from him.[1]
[1]Response, attachment [3].
The owner further said that the tenant prepared the documents, including a ‘deposit receipt document’ and a draft lease which he took to his solicitor, who said that the lease was not in the correct form, and that the Retail Shop Leases Act had to be followed.[2]
[2]Ibid, [8].
No formal lease agreement in accordance with the Retail Shop Leases Act 1994 (Qld) (‘the Act’) was ever entered into between the owner and the tenant.

History of the matter

Since the commencement of the proceedings in the Tribunal, this matter has had a long and chequered history, marked by non-attendance by each of the owner and the tenant at various times at Directions Hearings, failure to file material by each of them in accordance with Directions given by the Tribunal, and requests for extension of time by the tenant.
By directions given on…

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.

Continue reading Jaason v Band

Details

AGLC: Jaason v Band [2020] QCAT 117
Case: [2020] QCAT 117
Decision Date: 14 April 2020

CaseChat Overview and Summary

Alfred Adolf Band brought an action against Anthony-Ashley Jaason, seeking the return of a deposit paid by Mr Jaason, which was intended for a retail shop lease that was never executed. The dispute came before the court, which was required to determine whether the deposit was refundable. The central legal issue was whether the deposit constituted a refundable advance or if it was an illegal key money payment, which is prohibited and recoverable as a debt under the Retail and Commercial Tenancies Legislation. The court considered the nature of the discussions between the parties, the terms of the agreement, and the circumstances surrounding the payment of the deposit.

The court found that the deposit paid by Mr Jaason was not a refundable advance but was instead akin to key money. Key money is a form of payment made by a tenant to a landlord at the commencement of a lease, which is intended to compensate the landlord for the privilege of entering into the lease. The court held that the receipt of key money was prohibited under the relevant legislation and that such payments were recoverable as a debt. As such, Mr Jaason was not entitled to retain the deposit. Consequently, the court ordered Mr Band to pay Mr Jaason the amount of Four Thousand Eight Hundred Dollars ($4,800.00).

Orders

Orders of the court

Alfred Adolf Band is to pay to Anthony-Ashley Jaason the amount of Four Thousand Eight Hundred Dollars ($4,800.00).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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