Malmate Pty Ltd v ISPT Pty Ltd (No 2)

[2012] QCAT 615

CITATION: Malmate Pty Ltd v ISPT Pty Ltd (No 2) [2012] QCAT 615

PARTIES:	Malmate Pty Ltd (Applicant)
v
ISPT Pty Ltd (Respondent)

APPLICATION NUMBER: RSL132-11

MATTER TYPE: Retail shop lease matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 27 November 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The proceeding initiated by Malmate Pty Ltd by a Notice of Dispute under the Retail Shop Leases Act 1994 in this Tribunal on 21 December 2011 is transferred to the District Court of Queensland at Brisbane.

2.    The Respondent’s application for costs is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – JURISDICTION – where the Applicant sought to put before the Tribunal an action relating to damages alleged to have been suffered under a previous lease with the Respondent – where the Tribunal found that the Tribunal does not have jurisdiction to deal with the previous lease – whether proceedings should be transferred to the District Court of Queensland – whether there are grounds that warrant an order for costs

Queensland Civil and Administrative Tribunal Act 2009, ss 4, 32, 52
Retail Shop Leases Act 1994

Malmate Pty Ltd v ISPT Pty Ltd [2012] QCAT 487

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

1. The facts and circumstances surrounding this proceeding, which relates to retail premises in the Wintergarden Centre in Brisbane, are set out in the decision of QCAT Member Ms Michelle Howard (or, as she then was, an Acting Senior Member) of 12 October 2012: Malmate Pty Ltd v ISPT Pty Ltd [2012] QCAT 487.

2. In short, Malmate commenced proceedings in this Tribunal by lodging a Notice of Dispute under the Retail Shop Leases Act1994 (‘RSL Act’) on 21 December 2011 which, on its face, relates to a dispute about premises called Shop E146 at the Wintergarden Centre, and the lease of those premises which began on 5 January 2010 and ended on 31 December 2010. The Notice of Dispute was referred by a mediator under the RSL Act to QCAT in February 2012.

3. Between 2003 and 2010 Malmate had leased other premises in the Centre, namely shop E166.  In its evidence in the proceedings in this Tribunal Malmate disclosed material relating to, and suggesting a claim for, damage it allegedly suffered as a tenant during the course of the separate, earlier lease, for shop E166.

4. ISPT brought a miscellaneous application in QCAT seeking to strike out anything relating to the lease for shop E166, and it was that matter that was addressed in the learned Member’s earlier decision.  She concluded that QCAT lacked jurisdiction to deal with anything relating to the lease for shop E166, and only a dispute relating to shop E146 could proceed before the Tribunal.

5. Anticipating that outcome, Malmate had separately applied to transfer the entire proceeding to the District Court. The learned Member directed that the application for transfer be heard on the papers and, as required by s 52 of the QCAT Act, determined by a judicial member.

6. Both parties are legally represented and, through their lawyers, have filed written submissions.  ISPT does not object to the transfer, but seeks costs.

7. As explained in the learned Member’s decision it is arguable that, because of certain provisions of the RSL Act and the QCAT Act this Tribunal lacks, but the District Court may have, jurisdiction to deal with a claim for compensatory damages concerning a lease that had ended more than one year before a Notice of Dispute was filed in QCAT.

8. The reason for this is, with respect, well explained in the decision of the learned Member, and it does not require repetition. Section 52 of the QCAT Act empowers this Tribunal to refer a proceeding in circumstances where it considers it does not have jurisdiction to hear all matters in the proceeding to a ‘Court of competent jurisdiction’. Both parties appear to agree that this District Court is such a court. It is appropriate then to make an order transferring the proceedings begun by Malmate’s Notice of Dispute on 21 December 2011.

9. ISPT seeks costs.  It also applied for costs in proceedings before the Member.  As she pointed out at [15]-[17] of her decision, the general rule in this Tribunal is that parties will bear their own costs, but orders can be made, at the Tribunal's discretion, if the interests of justice so require.  The learned Member refused costs because, in the exercise of her discretion, she concluded that ISPT’s application (to strike out part of Malmate’s proceedings in QCAT) was brought with excessive haste and unnecessarily.

10. The same may be said here.  ISPT has now, reasonably, conceded that there can be no sound basis for opposing to the transfer of the proceedings.  This Tribunal must exercise its functions in a manner that ensures proceedings are conducted in an informal way that minimises costs to parties.[1]  As the learned Member observed, the issues might have been differently dealt with if ‘… a less aggressive approach had been adopted’ by ISPT.  Indeed, time for reflection and a greater emphasis upon the need to ensure that proceedings in the Tribunal are not distracted or deflected, or delayed or made more costly, by precipitate applications should have led to a circumstance in which the parties might, for example, have simply filed consent orders.

    [1]        Queensland Civil and Administrative Tribunal Act 2009, s 4(c).

11. In the circumstances, there is no basis for departing from the usual rule in the Tribunal, and, accordingly, no order as to costs will be made.