Juju Club Pty Ltd v Cromwell Group
[2011] QCATA 308
•10 November 2011
| CITATION: | Juju Club Pty Ltd v Cromwell Group [2011] QCATA 308 |
| PARTIES: | Juju Club Pty Ltd t/a Teppan King and Sushi Gallery (Applicant/Appellant) |
| v | |
| Cromwell Group (Respondent) |
| APPLICATION NUMBER: | RSL067-10 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 10 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. It is declared that the proceedings proposed to be brought by the Applicant, Juju Club Pty Ltd, will start if and when an appropriate notice of dispute is accepted by the principal registrar. 2. Leave is granted to commence the said proceedings. 3. Order that the Applicant Juju Club Pty Ltd pay the Respondent’s costs of and incidental to the proceedings dismissed by the Tribunal on 3 May 2011, and withdrawn by the Applicant on 21 June 2011 on a standard basis, on the District Court scale of costs, as agreed, or if not agreed, as assessed by a duly accredited costs assessor nominated by the principal registrar. |
| CATCHWORDS: | RETAIL SHOP LEASES – where the applicant sought to commence proceedings upon the same grounds as those in a previous application which was dismissed for want of jurisdiction – where a proceeding of the same kind, relating to the same matter as one that has been dismissed or struck out, may not be started before the Tribunal without leave of the President or Deputy President – whether proposed proceedings a continuation of proceedings commenced before the coming into operation of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 – whether leave should be granted to start a proceeding of the same kind, relating to the same matter as one dismissed – costs of abandoned proceedings Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010, ss 68, 145 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
On 20 July 2010 the Applicant Juju Club Pty Ltd (the Club) filed an application (the first application) under the Retail Shop Leases Act 1994, seeking compensation in the amount of $250,000, which was then the monetary jurisdictional limit for this Tribunal’s predecessor. On 21 December 2010 the Club purported to amend its claim to $750,000, the new jurisdictional limit set by s 68 of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (the Reform Act). But, according to s 145 of the Reform Act, the new limit does not apply to proceedings commenced before 1 November 2010.
On 8 April 2011 the Respondent, relying on s 145, sought an order dismissing the amended application for want of jurisdiction. The Tribunal so ordered on 3 May 2011. On 21 June 2011, pursuant to leave granted on 3 May 2011, the Club withdrew the first application.
On 22 June 2011 the Club sought to commence proceedings (the proposed proceedings) upon the same grounds as those in the first application, seeking an award of $750,000. The fresh application is in abeyance, pending this decision.
As the Tribunal indicated in its decision of 3 May 2011 a proceeding of the same kind, relating to the same matter as one that has been dismissed or struck out, may not be started before the Tribunal without leave of the President or Deputy President.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 49.
On 4 August 2011 I directed that ‘the issue raised in paragraph [11] of the Reasons for Decision [of 3 May 2011] be determined on the papers’, including submissions in writing by the parties. Each party has filed submissions.
The issue raised in paragraph [11] is whether a recommencement after 1 November 2010 is to be deemed a commencement after that date (emphasis in original).
Logically that question should be answered before the s 49 issue is addressed. The latter issue can only arise if the ‘commencement issue’ is decided in the affirmative.
It can readily be seen that the substantial increase in jurisdiction was not intended to be retrospective, but it does not necessarily follow that a proceeding started before 1 November 2010, dismissed on a jurisdictional point (as distinct from the merits) and filed afresh after 1 November 2010 is indistinguishable, as a matter of law, from a claim on the same factual and legal bases presented to the Tribunal after 1 November 2010.
The answer to that question, in my view, is to be found in two sections of the QCAT Act, namely s 36 and sub-s 49(4). Section 36 explicitly states that ‘a proceeding starts when the principal registrar accepts an application or referral, whether or not on conditions’. Subsection 49(4) implies the same principle in its reference to ‘... leave to start another proceeding’ (emphasis added).
Accordingly, I hold that the Club’s proposed proceeding is not caught by s 145 of the Reform Act.
The next question is whether leave should be granted to commence the proposed proceeding. There is an unfettered discretion to grant leave ‘in the interests of justice’. If the Club has a grievance that warrants a substantial award – which, of course, remains to be decided – I do not consider that it should be precluded from doing so by a technicality arising from s 145 of the Reform Act. The spirit of the QCAT Act does not require that every application for amendment (and by analogy, every application under s 49) should be refused because it wastes costs and causes some delay.[2] If, as the Respondent contends, the proposed claim is speculative, inflated or otherwise abusive of the Tribunal’s process, those are matters for the final decision-maker, and may well raise a question of costs.
[2]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [102].
The question of an extension of time to institute fresh proceedings does not arise.[3] The subject lease is current.
[3] See Retail Shop Leases Act 1994, s 63(1)(b); QCAT Act, s 49(4).
However, the interests of justice require consideration of the position of each party. The Respondent seeks an order for costs of the aborted proceedings.[4] That application is commendable for the degree of its particularity, often missing in such applications.
[4] Application filed 10 June 2011.
It is well settled that costs thrown away by a party’s major change of direction may be awarded against that party.[5] There was nothing to prevent the Club from proceeding with the first claim; the termination of that application is entirely due to its decision to triple the amount of compensation sought, and for that purpose, to start new proceedings.
[5]Hodges v New South Wales (1988) 77 ALR 1; Batt as Trustees for the Gerard Batt Superannuation Fundv Clipse (Caloundra) Pty Ltd & Anor [2011] QSC 192 at [2]; Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264; Aqua Blue (Noosa) Pty Ltd v Soil Surveys Engineering Pty Ltd & Ors [2010] QSC 176 at [39]; Skabaw Pty Ltd v Morphett & Ors [2011] VSC 489. Rule 386 of the Uniform Civil Procedure Rules 1999 makes costs occasioned by an amendment to a statement of claim the responsibility of the party amending, absent an order to the contrary.
It is not to the point for the Club to contend, as it does, that the costs sought by the Respondent are due to its raising ‘technical and jurisdictional arguments’. Even if the Respondent had not done so, the Tribunal could not have entertained the first claim, as amended.
I consider that the interests of justice warrant an order under s 102 of the QCAT Act. The Club’s insistence upon claiming an amount far exceeding the amount of the first claim, and its abandonment of that claim and institution of fresh proceedings, will undoubtedly add to the cost and complexity of this matter.
I propose to order that the Club pay the Respondent’s costs, on a standard basis, of the proceedings terminated by the Tribunal’s decision on 3 May 2011. At the same time I envisage that a considerable amount of the Respondent’s preparation for the first claim will be applicable to its defence of the proposed new proceedings.
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