McMahon v Donnelly
[2024] QCAT 502
•8 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
McMahon v Donnelly [2024] QCAT 502
PARTIES:
LEICHELLE MCMAHON (applicant)
v
ROBERT LYNDON GRAY DONNELLY (respondent)
STEVEN SCOTT DONNELLY (respondent)
KYLIE AMANDA DONNELLY (respondent)
TRISHIA ANN DONNELLY (respondent)
APPLICATION NO/S:
RSL011-23
MATTER TYPE:
Retail shop leases matter
DELIVERED ON:
8 November 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
The application for a retail tenancy dispute is dismissed.
CATCHWORDS:
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNAL – JURISDICTION GENERALLY – where the applicant applied to the Tribunal for determination of a retail tenancy dispute – where there had been mediation at the Queensland small business Commissioner but there had been no referral from the mediation to the Tribunal – where the retail shop lease had ended more than one year prior to the mediation – where the Tribunal therefore had no jurisdiction to determine the dispute
Retail Shop Leases Act 1994 (Qld), s 63, s 64, s 103
Stremo Pty Ltd v Opal Collections Pty Ltd [2011] QCATA 129
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
Applicant:
Self-represented
Respondents:
Self-represented
REASONS FOR DECISION
The applicant Ms McMahon leased commercial premises at Kallangur from the respondents as lessors under a lease commencing 10 October 2015 and expiring on 9 October 2025.
Though it is not clear, it appears Ms McMahon vacated the premises on or about 31 July 2019.
On 15 February 2023 Ms McMahon filed a notice of dispute concerning a retail shop lease in the Tribunal. By the application she sought $77,846 from the lessors in respect of a number of items of claim.
The application in the Tribunal was not referred by a mediator to the Tribunal pursuant to s 63 of the Retail Shop Leases Act 1994 (Qld) (‘the Act’).
The Tribunal made the following directions on 18 September 2023:
The Tribunal notes the existence of an email from Leichelle McMahon dated 27 June 2019 to Robert Donnelly reporting to terminate the lease with effect from close of business on 31 July 2019. The parties must file in the Tribunal and give to each other a copy of any submissions as to why the Notice of Dispute should not be dismissed having regard to the provisions of sections 63 (1b) and 64 (1b) of the Retail Shop Leases Act 1994, which requires any dispute in the Tribunal to have been Commenced not more than one (1) year after the retail shop lease has ended, by: 4:00pm on 15 November 2023.
Ms McMahon filed submissions on 15 November 2023 in which she stated the lease was cut short when the building was robbed and burnt on 18 November 2018. She was asked by “Bob”, presumably Robert Lyndon Gray Donnelly, whether she wanted to continue with the lessor ended. Ms McMahon said she could not continue to trade and she sent a termination letter and handed back the keys at the end of July 2019.
She added registered agents had started advertising the premises in after she had sent a letter to the lessors advising of her decision.
The letter she refers to is apparently that of 27 June 2019 addressed to Mr Robert Donnelly in which she states:
Dear Mr Donnelly
leased premises – Lot 1 on SP 270637
reference is made to our recent conversation where you indicated that we can terminate the lease due to the fire and the inability to operate our business from the premises.
In terms of this recommendation and clauses 14.1 and 19.1, we will to (sic) take you your offer to terminate the current lease and vacate the premises by the close of business 31.070.19 (sic).
Thank you for working with us during this difficult time and we wish you well for the future.
Yours faithfully
Leichelle McMahon
Clause 14.1 of the lease provided:
If the leased premises or any part thereof shall at any time during the Term be destroyed or damaged by an Act of God so as to render the leased premises wholly unfit for occupation and use by the lessee then in such case the lessor may within one calendar month thereafter by notice in writing to the lessee terminate this lease. If the lessor does not do so and does not:
(a) advise the lessee within that one month period that the lessor intends to reconstruct or restore the leased premises; and, further
(b) does not thereafter proceed with reasonable diligence to do so
then the lessee shall have the right to terminate this lease. If this lease remains on foot then the lessee shall not be liable to pay rent so long as the leased premises remain unfit for occupation by the lessee due to the damage or destruction referred to above.
After the letter of 27 June 2019 the parties, through solicitors, appear to have discussed financial matters such as the security bond, outgoings and rent.
Ms McMahon states the lessors refused to return her bond. This became an expensive exercise between solicitors “and then Covid hit”. She states she wrote to the Small Business Commissioner seeking mediation and a Mediation Conference took place on 7 September 2021.
The tribunal requested information from the Queensland Small Business Commissioner and a Notice of mediation outcome has been provided. The Notice is dated 8 September 2021 on the outcome of the mediation is “No agreement was reached between the parties.”
There is no referral of the dispute by the mediator to the Tribunal noted in the Notice of mediation outcome document.
This is probably because the application to the Queensland Small Business Commissioner was more than one year after the lease ended.
The legislation
By s 103 of the Act, the Tribunal has jurisdiction to hear retail tenancy disputes save for those few matters listed in that provision, the exceptions not being relevant to the matter at hand.
The dispute comes to the Tribunal in either of two ways, via s 63 referral from a mediator appointed by the Queensland Small Business Commissioner, or directly to the Tribunal by the party under s 64.
By s 63:
63 Reference of retail tenancy disputes and applications to QCAT Reference of dispute—by mediator
(1) This section applies if—
(a)a retail tenancy dispute is within QCAT’s jurisdiction and—
(i)the parties can not reach a mediated solution to the dispute; or
(ii)a party to the dispute does not attend the mediation conference for the dispute; or (iii) the dispute is not settled within 4 months after the dispute notice is lodged; and
Note— See section 103 for QCAT’s jurisdiction.
(b)the retail shop lease has not ended (whether by expiry, surrender or termination) more than 1 year before the dispute notice was lodged.
(2) The mediator must—
(a)refer the dispute, as provided under the QCAT Act, to QCAT; and
(b)give the commissioner written notice of the referral.
(Emphasis added)
By s 64:
64 Application to QCAT—by party
(1) A party to a retail tenancy dispute may apply, as provided under the QCAT Act, to QCAT for an order to resolve the dispute if—
(a)any of the following provisions apply—
(i)the party claims that another party to a mediation agreement has not complied with the agreement within the time stated in it or, if no time is stated, within 2 months after the agreement is signed;
(ii)a mediator refuses to refer the dispute to QCAT because the mediator is of the opinion that the dispute is not within QCAT’s jurisdiction;
(iii)a court has ordered that a proceeding started in the court for the dispute be removed to QCAT or another tribunal; and
(b)the retail shop lease has not ended (whether by expiry, surrender or termination) more than 1 year before the dispute notice was lodged.
(Emphasis added)
Consideration
In the matter at hand the lease ended on 31 July 2019. Ms McMahon applied to the Queensland Small Business Commissioner for mediation on 4 August 2021. That was two years after the lease had ended.
Ms McMahon does not argue that the lease remained on foot after she vacated on about 31 July 2019. In responding to the direction to show cause why the application for a retail tenancy dispute should not be dismissed she said “the lease at … Kallangur was tragically cut short when the building was robbed and arsoned (sic) 18 November 2018.”
The correspondence between the solicitors after July 2019 was on the basis the lease had ended.
A similar problem arose in the matter of Stremo Pty Ltd v Opal Collections Pty Ltd [2011] QCATA 129 where the Appeal Tribunal said:
[21] On a plain construction of the words in s 63(1)(b), the dispute must be referred to the Tribunal by a mediator if the section applies. Where the requirements of the section are not met, relevantly, when the lease has ended more than one year before the dispute notice was lodged, the section does not apply. There is no residual discretion which allows a mediator to refer the proceeding to the Tribunal if the section is not met. The provision is mirrored in 64(1)(b), whereby a party must apply to the Tribunal for orders to resolve a dispute either during the term of a lease, or within one year of it coming to an end.
[22] In this case, there is no dispute between the parties that the lease expired on 10 September 2005. The dispute notice was filed by Stremo in the Tribunal in 2010. That is, the lease between the parties had expired more than one year before the dispute notice was lodged. The mediator referred the dispute to the Tribunal although s 63 did not apply because the lease had expired more than one year before the dispute notice was lodged. The mirror provision in s 64(1)(b) supports an interpretation that outside of these time frames, the Tribunal has no jurisdiction to deal with the matter. It is my view that the Tribunal does not have jurisdiction to determine the dispute before it.
As mentioned, there has been no referral of the dispute from the Queensland Small Business Commissioner to the Tribunal. That is because the application to the Queensland Small Business Commissioner was made by Ms McMahon more than one year after the lease ended. The Commission could not refer it.
Though Ms McMahon has applied directly to the Tribunal, that cannot help her. The same problem arises of the lease having expired more than 1 year before she lodged her dispute notice with the Queensland Small Business Commissioner.
Disposition
The Tribunal has no jurisdiction to determine Ms McMahon’s retail tenancy dispute.
Her application must be dismissed.
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