Madam t/as Demellzas Collections v Laroar Holdings Pty Ltd
[2011] QCAT 416
•5 September 2011
| CITATION: | Madam t/as Demellzas Collections v Laroar Holdings Pty Ltd [2011] QCAT 416 |
| PARTIES: | Ms Donna Madam t/as Demellzas Collections |
| v | |
| Laroar Holdings Pty Ltd Ozibar P/L t/as Main Street Nite Club |
| APPLICATION NUMBER: | RSL047-11 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | 5 September 2011 |
| HEARD AT: | On the papers |
| DECISION OF: | Ms Anne Forbes, Member |
| DELIVERED ON: | 5 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1 I direct that Ozibar Pty Ltd be joined as a Third Party to these proceedings, in the place of a Respondent to any claim against it by Laroar Holdings Pty Ltd in consequence of the Applicant’s claim against the latter company. 2 No order as to costs. 3 Liberty to apply. |
| CATCHWORDS: | Dictionary “retail shop lease dispute – claim against landlord – contingent claim by landlord against second tenant – order for joinder of second tenant Retail Shop Leases Act 1994, ss 42, 43, 44 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard and determined on the papers in the absence of the parties.
REASONS FOR DECISION
The Applicant, Donna Madam (trading as Demellzas Collections) is lessee of a retail shop in The Dome, Victoria Street, Mackay. Her landlord is the Respondent Laroar Holdings Pty Ltd (“Laroar”).
On 20 May 2011 the Applicant commenced these proceedings against Laroar, claiming compensation under the Retail Shop Leases Act 1994 (“the RSLA”), alleging that:
“I commenced occupation of Shop 3 at the Dome in late October 2009. Shortly after occupation, all of my stock and fitout was damaged by a substantial mould infestation ... I drew the landlord’s attention to this but they [sic] failed to take any meaningful steps to remedy the infestation. I have been unable to trade at the property and my business has been seriously damaged as a result.”
The relief sought is simply “compensation”, without specification of any particular ground recognised in the RLSA. However, a remedial amendment may be made.
On 27 June 2011 the Respondent filed an interlocutory application seeking these directions:
1 That the Respondent Laroar Holdings Pty Ltd be substituted with Ozibar Pty Ltd t/a Main Street Nite Club (“Ozibar”) in these proceedings.
2 In the alternative, that Ozibar Pty Ltd t/a Main Street Nite Club be joined to these proceedings as Second Respondent.
The same application asserts:
“The damage suffered by the Applicant resulted from a cold room which is located directly above the Applicant’s premises, being the premises of Main Street Nite Club. The leaking water combined with the humidity in January and February have [sic] led to condensation which in turn has resulted in high readings of mould spores. The Respondent is in no way responsible for the damage suffered by the Applicant.”
The responses to the interlocutory application may be summarised as follows:
Applicant
The Applicant does not oppose the request for joinder, but says that if it is granted, there should be transfer to a more appropriate forum, pursuant to section 52 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
Respondent
The Respondent submits that:
(a) the Tribunal does not have jurisdiction to hear and determine these proceedings, as presently framed, but could lawfully do so if Ozibar were substituted for the present Respondent; alternatively
(b) Ozibar should be joined as Second Respondent, pursuant to section 42 of the QCAT Act,[1] so as to secure the Respondent (Laroar’s) rights of recovery against Ozibar, in the event of an award against Laroar in this forum; and further and alternatively,
(c) the proceedings should be transferred to the District Court at Mackay, pursuant to section 52 of the QCAT Act.
[1]Citing Phil Martyn Constructions Pty Ltd v Bamwell and Anor [2007] QCCTB 105 at [37]; MGM Containers Pty Ltd v Wockner [2006] QCA 502.
Ozibar
Ozibar asserts that it is not a party to the subject lease and has no contract with the Applicant. There is no jurisdiction to make a compensation order against it. Ozibar’s liability, if any, is not a dispute under or about a retail shop lease. If joinder is granted the proceedings must be transferred.
Consideration
[10] For present purposes I need only find that the Applicant has an arguable case against the Respondent under the RSLA, and that the Respondent has such a case against the proposed Second Respondent. It is unnecessary to find, and I do not find, the nexus of an RSLA action between the Applicant and Ozibar. The matter should proceed as an action between the Applicant and Laroar, and (contingently) between Laroar and Ozibar in the form of third party proceedings.[2]
[2] Compare Uniform Civil Procedure Rules 1999, r 60.
[11] In relation to the Applicant’s claim against Laroar it is at least arguable that Laroar failed to exercise its authority over Ozibar so as to ensure the Applicant’s right of quiet enjoyment[3], or to comply with terms implied by section 42(1)(c) and/or 42(1)(d)(ii) of the RSLA. Those terms override any contrary provision of the lease, such as Clauses 16.5 or 17.2.[4] Furthermore, I do not consider that a fungal infestation is within the terms of Clause 16.5.
[3] Laroar-Madam lease Ch 17.1.
[4] RSLA, ss 18-20, lease Cl 23.4,
[12] The implied rights to compensation in sections 42-44 are not an exhaustive list of possible bases of a retail shop lease dispute. Decisions of the Tribunal, including decisions under the RSLA, may be effected by a monetary award.[5]
[5] QCAT Act, s 131.
[13] With respect to Laroar and Ozibar, the provisions of Clauses 11.2(b)(i) and (ii), and 12.1(e) of the lease confer rights upon Laroar, and impose duties upon Ozibar that arguably create the landlord’s “authority” over Ozibar, to which I have just referred. (Here I assume that Ozibar’s lease is not materially different from the Applicant’s.) If Laroar is found liable to compensate the Applicant, Laroar has an arguable and related claim against Ozibar, also under the RSLA – provided, of course, that neither claim exceeds the jurisdictional limit of the District Court.
Decision
[14] There will be an order for joinder of Ozibar Pty Ltd as a Third Party in these proceedings.
ORDER
I direct that Ozibar Pty Ltd be joined as a Third Party to these proceedings, in the place of a Respondent to any claim against it by Laroar Holdings Pty Ltd in consequence of the Applicant’s claim against the latter company.
No order as to costs.
Liberty to apply.
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