Klooster v Sticky Fingers (Qld) Pty Ltd - [2011] QCATA 282

CITATION:

Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282

PARTIES:	Frank Mark Klooster (Applicant/Appellant)
v
Sticky Fingers (Qld) Pty Ltd (Respondent)

APPLICATION NUMBER: APL001-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President
Michelle Howard, Member

DELIVERED ON: 8 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: 1. That the appeal be allowed, but only to the extent that the Order number 1 of the Orders of 3 November 2010 be set aside;
2. That the claim for compensation and/or payment for unconscionable conduct be returned to the Tribunal for reconsideration according to law; and
3. That, in reconsidering the matter, the Tribunal allow such further evidence, cross-examination and submissions as may be necessary to consider the claims relating to compensation and/or unconscionable conduct.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – RETAIL SHOP LEASE – where the respondent operated a cafe at premises which it leased from the applicant under a Deed of Extension and Variation of lease – where the respondent entered into an agreement to sell the café but the applicant refused an assignment of the lease, and informed the respondent that it was in breach of a covenant of the lease – where the respondent sought compensation for the loss of the sale of the café, for unconscionable conduct, and other expenses – where the Tribunal ordered that the applicant pay compensation to the respondent in the amount of $31,133.50 – where the applicant seeks leave to appeal that decision on the grounds that the Tribunal erred in law and fact – whether leave to appeal should be granted for alleged errors of fact – whether appeal should be granted for alleged errors of law

Queensland Civil and Administrative Tribunal Act2009, s 142
Retail Shop Leases Act 1994, ss 4, 13, 42-44, 46B, 50-50A, 83, 94, pt 4, pt 6, pt 6 subdiv 3, pt 6 div 7, pt 6 div 8A

Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557, cited Canon Australia Pty Ltd v Patton [2007] NSWCA 246, cited
Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 214 CLR 118, cited
Harvey v Walker (1945) 46 SR (NSW) 180, cited
Hurley v McDonald’s Australia [1999] FCA 1728, cited
Krysnev Nominees Pty Ltd v Osterley Pty Ltd and Ors [1998] QRSLT 14, cited
Logan City Shopping Centre Pty Ltd v Retail Shop Leases Tribunal & Anor [2006] QSC 172, cited
Maclag (No 11) Pty Ltd as Trustee for the Burns Family Trust v Chantay Too Pty Ltd as Trustee for the Chantay Trust [2010] QSC 299, cited
M & H Noble v Paulmarg Pty Ltd [2009] QSC 265, cited
Re Malsons Pty Ltd [1991] 2 Qd R 61, cited
Sticky Fingers (QLD) Pty Ltd v Klooster [2010] QCAT 611, cited
Sussana and John Pty Ltd v Trident Ashgrove JV Pty Ltd as Trustee and Tribune Properties Pty…

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: [2011] QCATA 282
Decision Date: 8 September 2011

CaseChat Overview and Summary

Klooster, the owner of a property, leased the premises to Sticky Fingers, who operated a café at the site. Sticky Fingers entered into an agreement to sell the café but was refused an assignment of the lease by Klooster. As a result, Sticky Fingers claimed compensation for the loss of the sale, for unconscionable conduct, and for other expenses. The Queensland Civil and Administrative Tribunal (QCAT) ordered Klooster to pay Sticky Fingers $31,133.50 in compensation. Klooster now seeks leave to appeal the QCAT decision, claiming that the Tribunal erred in law and fact.

The primary legal issues in this case were whether the QCAT erred in fact and law when it ordered Klooster to pay compensation to Sticky Fingers. The appeal centred on the interpretation of the lease agreement and the applicability of the statutory provisions. The appeal also examined whether the QCAT correctly assessed the evidence and applied the law in arriving at its decision. The key issue was whether the Tribunal's decision was legally sound and supported by the evidence.

The Court held that the appeal should not be granted, as the errors alleged by Klooster were not sufficient to warrant an appeal. The Court found that the QCAT had correctly interpreted the lease agreement and applied the relevant statutory provisions. The Court also found that the QCAT's assessment of the evidence was not unreasonable. The Court held that the appeal was unlikely to succeed and that the QCAT's decision was supported by the evidence. As such, the Court dismissed the appeal and refused leave to appeal.

Orders