M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors
[2010] QCAT 454
•15 September 2010
| CITATION: | M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454 |
| PARTIES: | M & J Gray Investments Pty Ltd (Applicant) |
| v | |
| AMP Pacific Fair Pty Ltd, Kent Street Pty Ltd and Westfield Management Limited (Respondents) |
APPLICATION NUMBER: RSL037-10
| MATTER TYPE: | Interlocutory Application, Retail Shop Leases |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 15 September 2010
DELIVERED AT: Brisbane
ORDERS MADE: The application filed in QCAT by the applicant on 22 April 2010 is dismissed.
| CATCHWORDS : | RETAIL SHOP LEASES DISPUTE – JURISDICTION – COMPENSATION – Retail Shop Leases Act 1994, ss 43, 103 – MEANING AND EFFECT – where parties entered into retail shop lease agreement – where applicant unilaterally terminated agreement prior to expiry of lease – where applicant commenced proceedings in QCAT for reimbursement of bond, damages and compensation – where respondents commenced proceedings in the Supreme Court of Queensland for damages for breach of lease – where respondents allege applicant’s claim for compensation is misconceived and not within jurisdiction of QCAT – where applicant’s monetary claims exceed QCAT’s jurisdiction under the District Court of Queensland Act 1968 – whether QCAT has jurisdiction to hear the matter – whether proceedings should be dismissed RETAIL SHOP LEASES DISPUTE – JURISDICTION – STRIKE OUT PROCEEDINGS – Queensland Civil and Administrative Tribunal Act 2009, s 47 – where respondents seek to have the applicant’s claims in QCAT struck out for want of jurisdiction – whether applicant’s application should be struck out pursuant to s 47 RETAIL SHOP LEASES DISPUTE – JURISDICTION – TRANSFER TO SUPREME COURT – Queensland Civil and Administrative Tribunal Act 2009, s 52 – where applicant commenced proceedings in QCAT – where respondents commenced proceedings in the Supreme Court of Queensland – where respondents seek to transfer QCAT proceedings to the Supreme Court – whether appropriate case to transfer proceedings to Supreme Court District Court of Queensland Act 1967, s 68 Metropolitan Bank v Pooley (1885) 10 AC 210, cited |
REASONS FOR DECISION
This dispute concerns retail shop premises at Pacific Fair shopping centre, on the Gold Coast. In 2008 M & J Gray Investments Pty Ltd (M & J) signed a six year lease, but quit the premises around the end of March 2010. The respondents, who operate the centre, subsequently issued Supreme Court proceedings against M & J and the guarantors under the lease, Mr and Mrs Gray claiming, among other things, damages said to arise from M & J’s alleged breach of the lease in an amount of over $1,200,000.
Separately, M & J began proceedings in QCAT seeking reimbursement of a bond it had paid in the sum of $91,800, damages of $22,000 for losses on the sale of stock, $190,000 for the cost of “fitout”, and $130,000 for alleged losses relating to the sale of equipment. There is also a claim for “fees incurred as a result of the respondent’s breach (to be advised)”.
The respondents have brought an application to strike out M & J’s QCAT proceeding on the grounds that this Tribunal does not have jurisdiction or, in the alternative, to transfer it to the Supreme Court.
QCAT’s jurisdiction to deal with matters generally hinges upon what the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) calls an “enabling Act”[1]. For the purposes of M & J’s proceedings the jurisdiction arises under the Retail Shop Leases Act 1994 (RSL Act). Section 103 of that Act gives QCAT jurisdiction to hear “retail tenancy disputes”, a term defined in the Schedule to the RSL Act as:
… any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.
[1] s 9(1)
Section 103(1) specifically provides, however, that QCAT does not have jurisdiction to hear retail tenancy disputes about arrears of rent under a retail shop lease, the amount of rent, or the amount of a lessor’s outgoings; or, a dispute in which the amount, value or damages in dispute is more than the ‘monetary limit’, as that term is used in the District Court of Queensland Act 1967, s 68.
QCAT does have jurisdiction to hear matters concerning the arrears of rent payable under a shop lease if the dispute is also about the payment of compensation by the lessor to the lessee under the lease: s 103(2)(d).
The respondents/lessors contend that M & J’s claims are not for “compensation”, as that word is used in the RSL Act. It is not defined in the dictionary in the Schedule to that Act, but Part 6, Division 7 (“Implied provisions for compensation”) and, in particular, s 43 signify the intended meaning of the term. That provision refers to “reasonable compensation for loss or damage suffered by the lessee because the lessor …” limits access to the premises or disrupts the tenant’s business, fails to maintain equipment or premises, or induces the lessee to enter into the lease on the basis of a false or misleading statement or misrepresentation.
M & J’s proceedings[2] claim loss and damage allegedly arising from the sale of stock, the cost of fitout and the sale of equipment but do not appear to rely upon any alleged statement or misrepresentation made before or at the time M & J entered into the lease, or any of the other grounds arising under s 43. In those circumstances it is not apparent how QCAT’s jurisdiction is attracted or enlivened.
[2] Annexures B and C to its notice filed in QCAT on 22 April 2010
Secondly, s 103 only invests jurisdiction in QCAT if the amount, value or damages in dispute is less than the monetary limit under the District Court of Queensland Act 1967. Under s 68(2) of that Act the monetary limit is presently $250,000. On its face M & J’s application seeks damages, and a reimbursement of a bond it allegedly paid, in an amount totalling over $400,000. M & J’s lawyers have, in submissions to this Tribunal, offered to abandon the excess. For the reasons already discussed, however, it is the nature of the claims and not the amount of them which appears to fall outside QCAT’s jurisdiction.
The question of jurisdiction is also touched by the lessor’s Supreme Court proceedings which claim damages against M & J, and Mr and Mrs Gray, in amounts currently exceeding $1,200,000. As the submissions for M & J point out, the figure is probably inflated because the lessors are claiming rent up to the end of the lease term in March 2014 when, it might be expected, that loss will ultimately be mitigated if and when a new tenant for the leased premises takes over. It cannot be said, however, that the lessor’s claim is improperly and inappropriately inflated. In any event the proceedings in the Supreme Court are not limited to a dispute about arrears of rent, such that QCAT might have ancillary jurisdiction to determine them under s 103(2).
Section 47 of the QCAT Act gives this Tribunal power to dismiss or strike out a proceeding if the proceeding is misconceived, or lacking in substance, or “otherwise, an abuse of process”. The term “misconceived” is apt to describe a proceeding which lacks substance, force or effect because the court or tribunal in which it is brought lacks the jurisdiction to determine it. QCAT is a court of record[3], entitled to act independently[4] and, as may readily be inferred from the QCAT Act, has power to control proceedings brought to it: Chapter 2, Part 5. Where, as here, a proceeding cannot succeed for want of jurisdiction and is, therefore, bound to fail, the Tribunal has an inherent jurisdiction to stay or dismiss proceedings.[5]
[3] QCAT Act, s 164(1)
[4] s 162
[5]Metropolitan Bank v Pooley (1885) 10 AC 210 per Lord Blackburn at 220-221; and see, generally, Cairns Australian Civil Procedure (7th ed) at 391-396
When the proceeding filed by an applicant in QCAT does not clearly establish jurisdiction under the relevant enabling Act, makes a claim which on its face exceeds the monetary jurisdiction permitted under that Act, and has fallen within the parameters of a dispute which, as is apparent under a cross claim filed in respect of it, is also outside of or exceeds the Tribunal’s jurisdiction, the circumstances referred to in s 47 will be attracted and the proceedings should be struck out, or dismissed.
Section 52 of the QCAT Act provides that if the Tribunal considers it does not have jurisdiction to hear all matters in a proceeding it may transfer all or parts of it to a court of competent jurisdiction. An order may also be made if QCAT considers the subject matter of the proceeding may more appropriately be dealt with by a court or other entity. In their submissions, the lawyers for the lessors suggest the transfer of all of M & J’s proceedings to the Supreme Court. Although M & J’s lawyers filed submissions in response they did not address that submission.
Under s 52 QCAT may, if inclined to order a transfer, also give directions to “…facilitate the transfer, including an order under an Act or other law for starting a proceeding before the relevant entity”. Procedural difficulties will arise here if M & J’s application to QCAT is transferred to the Supreme Court. Despite substantial verbiage and attachments, it is not in a form which would constitute an adequate pleading. Because it was filed before the lessors’ action was commenced in the Supreme Court, it is also unresponsive and on any view M & J, or both parties, would be required to re-plead if the QCAT application was simply transferred to the Court.
It is not, then, a matter in which a transfer to the Court can be readily or comfortably facilitated. It is not impossible that, had M & J’s legal representatives turned their minds to the matter, appropriate directions may have been fashioned but, in the absence of any attempt to do that, the better course is to simply dismiss the QCAT proceeding and allow M & J to seek its relief in the present Supreme Court action (or elsewhere if it chooses).
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