Malmate Pty Ltd v ISPT Pty Ltd
[2012] QCAT 487
•12 October 2012
| CITATION: | Malmate Pty Ltd v ISPT Pty Ltd [2012] QCAT 487 |
| PARTIES: | Malmate Pty Ltd (Applicant) |
| V | |
| ISPT Pty Ltd (Respondent) |
| APPLICATION NUMBER: | RSL132-11 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Acting Senior Member |
| DELIVERED ON: | 12 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Unless otherwise ordered, that the application for transfer of the proceeding be heard on the papers without an oral hearing by a Judicial Member of the Tribunal. |
| CATCHWORDS: | APPLICATION FOR DISMISSAL – where Notice of Dispute referred lease the subject of retail tenancy dispute – where there is also a dispute concerning a second lease – where second lease ended more than 12 months before the Notice of Dispute was lodged Queensland Civil and Administrative Tribunal Act 2009, ss 47, 100, 102 Belmed Pty Ltd v Nichols Constructions Pty Ltd [2102] QCAT 452 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Malmate Pty Ltd lodged a Notice of Dispute under the Retail Shop Leases Act 1994 (the Act) with the Chief Executive on 21 December 2011. The Notice specifies that it is in relation to Shop E146 of the Wintergarden Centre and states that the lease between the parties commenced on 5 January 2010 and ended 31 December 2010. The Notice of Dispute was referred by a mediator to the Tribunal in February 2012.
ISPT filed a miscellaneous application on 30 May 2012, it says, for orders under ‘s47 or s 48’ of the QCAT Act to have Malmate’s ‘proceeding dismissed or struck out insofar as it relates to a lease by ISPT Pty Ltd to Malmate of Shop E166 of the Wintergarden Centre.’ Directions were subsequently made for the filing of submissions by both parties and for Malmate to file an application for transfer which is discussed below and for hearings of both applications on the papers. It is now apparent from ISPT’s submissions that it seeks to proceed under s 47 of the QCAT Act. It seeks its costs of the application under section 47. It suggests directions to the effect that Malmate be required to deliver replacement statements.
Malmate has filed an application to transfer the proceeding to the District Court, but it intends to proceed with that application only if the Tribunal finds that it lacks jurisdiction to award compensation or damages regarding the dispute concerning Shop E166. In that case, it would prefer to have the entire proceeding transferred rather than have two separate proceedings on foot.
Malmate has filed evidence in the proceeding which refers to both E146 and E166. Also, a report from forensic accountants which was lodged with the Notice of Dispute clearly refers to both and calculates compensation claimed in respect of both. Accordingly, ISPT has known since the Notice of Dispute was lodged that Malmate raises issues concerning both leased premises. Despite this, it was not until late May 2012 that it raised the issue about which it now complains. It then filed its application on 30 May 2012.
It appears uncontroversial that Malmate leased Shop E166 from ISPT from 1 July 2003. Its lease was due to expire on 30 June 2011. However, the tenancy only operated until December 2009, when it relocated to shop E146 during refurbishment of the Wintergarden Centre. Shop E146 was leased under an agreement which commenced on 5 January 2010 and concluded on 31 December 2010. A Deed of Surrender was executed for the lease over Shop E166 on 2 February 2012. Therefore the lease for Shop E166 came to an end at that time.
Section 47 provides for the Tribunal to dismiss or strike out a proceeding or part of it when a proceeding or part of it is frivolous, vexatious or misconceived; lacking in substance or otherwise an abuse of process. As an alternative, the Tribunal may also make an order for costs against the party who brought the proceeding to compensate another party for any reasonable costs, expenses, loss and inconvenience and embarrassment.
In essence, ISPT submits that a retail tenancy dispute can only come to QCAT under sections 63 or 64 of the Act. Section 63 of the Act provides for a mediator to refer to the Tribunal a retail tenancy dispute which meets the conditions set out, including that the retail shop lease has not ended more than 1 year before the notice of dispute was lodged. This, and the similar provision in s 64, relating to retail tenancy disputes in respect of which a party may apply direct to QCAT, which contains a similar requirement regarding the lease not having ended more than a year before the dispute notice was lodged were discussed in Stremo Pty Ltd v Opal Collections[1]. ISPT contends that the retail tenancy disputes as they relate to the leases for E146 and E166 are separate disputes and separate proceedings must be commenced. Because the lease for Shop E166 ended more than a year before any action was taken by Malmate, ISPT contends the dispute can not come to QCAT under either ss 63 or 64.
[1] [2011] QCATA 129.
Malmate argues that the definition of retail tenancy dispute is sufficiently wide to capture both leases in respect of the two shops. It points out that ISPT has been aware of the scope of the claim from the time to Notice of Dispute was filed. It says that the format of the Notice of Dispute led to the lease for shop E146 being referred to. Further, it says that once section 63 applies, s 63(2) requires the mediator to refer the whole dispute to QCAT and once it is before QCAT, it can deal with the whole of it.
Is the dispute about Shop E166 before QCAT?
A retail tenancy dispute is defined to mean ‘any dispute under or about a retail shop lease…’[2] There are two leases in this case. The lease in respect of Shop E166 ended in February 2010. A Notice of Dispute has not been lodged or filed in relation to it, and even if one had been at the same time as the Notice was lodged in respect of Shop E146, it could not have been transferred by the mediator to the Tribunal as the lease would have ended over 1 year before the lodgement.[3] Similarly, if Malmate could otherwise bring itself within s 64, it could not make an application to QCAT under that section for the same reason.[4] This is the issue discussed in the Stremo case.
[2] Schedule.
[3] Section 63(1)(b).
[4] Section 64(1)(b).
I make no comment about whether one Notice of Dispute could be lodged in respect of two retail tenancy disputes, both of which fall within QCAT’s jurisdiction and in respect of which neither lease has ended more than a year before the Notice was lodged.
In McDonald’s Australia Ltd v Emaas Pty Ltd[5] the learned President of QCAT, Wilson J, suggested that sections 63 and 64 may not be the only gateway to QCAT under the RSL Act. However, these comments were made in the context of considering whether the Tribunal had jurisdiction to make an injunction when the parties had not proceeded through a mediation process. However, His Honour specifically noted that different considerations may apply when the applications under consideration do not seek relief under sections 58 or 59 of the QCAT Act.
[5] [2011] QCAT 293.
In any event in this case, Malmate relies upon the referral of the Notice of Dispute lodged on 21 December 2011 by the mediator as adequate to result in both retail tenancy disputes in respect of both leases properly being before QCAT. However, it seems to me that the mediator only referred the dispute as contained in the notice of dispute, which referred only to the dispute concerning shop E146. Therefore, in my view, only the dispute regarding Shop E146 is before the Tribunal.
Is the proceeding, or part of it, misconceived or lacking in substance?
There is no controversy that the dispute regarding E 146 is properly before the Tribunal. It follows that the proceedings, or part of them, before the Tribunal are not misconceived, lacking in substance or an abuse of process.
Because I have not made a finding that the proceedings are misconceived, lacking in substance or an abuse of process, a costs order cannot be made under section 47 of the QCAT Act.[6] Despite the application for costs being made under s 47, some reference is also made in ISPT’s submissions to costs under the general provision in s 102.
[6] Belmed Pty Ltd v Nichols Constructions Pty Ltd [2102] QCAT 452, [14].
Generally, parties before QCAT bear their own costs.[7] However, orders for costs may be made in the Tribunal’s discretion if the interests of justice require it.[8] Factors which may be relevant in deciding whether to make an order are set out in section 102(3) of the QCAT Act.
[7] Section 100.
[8] Section 102(1).
This application was made within a week of ISPT sending correspondence to Malmate raising the issues it relies upon, despite it having been aware from the forensic report of the ambit of Malmate’s intended claim since December 2011. In its correspondence to Malmate raising the issues dated 23 May, it requires a response by close of business on 25 May, in the absence of which it is foreshadowed the miscellaneous application would be filed. A brief extension of time to respond was requested and granted in light of the advised absence of the lawyer with conduct of the matter for Malmate. The application was then filed the day after the extended timeframe expired and before any response had been received.
The reason for such urgency is not apparent. Perhaps the issues may have been differently dealt with if a less aggressive approach had been adopted, the proceedings may have taken a different course. In any event I consider it was unreasonable in the circumstances to proceed to file the application at the stage it was filed in the absence of a response. I am not satisfied that it is in the interests of justice to make an order for costs in favour of ISPT for the miscellaneous application.
Some of the evidence filed by Malmate in support of its Notice of Dispute, insofar as it relates to compensation sought regarding Shop E166, is no doubt irrelevant to the claim regarding Shop E146. I have not considered the extent to which this is so. However, if the proceeding is subsequently transferred to the District Court for both disputes to be determined, all of the evidence of Malmate might be expected to be relevant. Therefore, I am not satisfied that it is, at this time, in the interests of justice to make any orders for costs associated with the filing of material which may be unrelated to the dispute before the Tribunal.
In light of my conclusions, Malmate’s application for transfer of the proceedings to the District Court now needs to be determined. Both parties have filed submissions about the application. Under section 52 of the QCAT Act, it must be determined by a Judicial Member of the Tribunal. I make directions accordingly.
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