Mackfitness 1 Pty Ltd v Salty

The matter concerns a lease of premises for the purpose of operating a gym. The lessor of the premises issued a notice to remedy a breach of covenant to the lessee, claiming that it owed rent and outgoings for periods prior to 29 March 2020. The lessee claims that the notice was invalid and that it was wrongfully deprived of a sufficient opportunity to remove its goods. The lessee has applied for interim orders and also commenced a Notice of Dispute in the Queensland Civil and Administrative Tribunal (QCAT) seeking orders that the notice was not valid and the lessor is not entitled to seize and sell its possessions. The lessor contends that it allowed the lessee to remove its possessions. The lessee has also filed an Amended Notice of Dispute which names a company as the lessor rather than the individuals who it originally named. The lessee has applied for an order that the Notice of Dispute be transferred to the Supreme Court.

The primary issue was whether the Tribunal had jurisdiction to hear and determine the Notice of Dispute and the Application for interim order. The Tribunal found that the Notice of Dispute was not a retail tenancy dispute as it did not relate to a retail shop lease or about the use or occupation of a retail shop lease. However, the Tribunal had jurisdiction to hear and determine a claim for an order that the lessor of an affected lease comply with section 12(1) of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld). The Tribunal was also satisfied that it was arguable that the lease was an affected lease and that the lessor’s actions were taken in reliance upon a failure to pay outgoings for a period occurring partly during the response period. It was not satisfied that the lessor was entitled to seize and sell the lessee’s possessions or that the lessee was entitled to relief against forfeiture of the lease. The Tribunal was not satisfied that the lessee had shown that it was appropriate to make the interim orders sought.

The Tribunal ordered that Stella Mavis Salty be joined as a respondent. It ordered that the lessor be restrained from taking any further prescribed actions relying upon the Notice pending determination of the Notice of Dispute. It made directions for further submissions to be filed as to whether the company should be joined as an additional respondent or sole respondent and to remove the lessors as respondents. It also made directions to obtain submissions as to whether the Notice of Dispute should be transferred to the Supreme Court.