Micrac Pty Ltd v Collins - [2021] QCAT 23

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Micrac Pty Ltd v Collins & Ors [2021] QCAT 23

PARTIES:

MICRAC PTY LTD T/AS BEACHES OFF TEDDER

(applicant)

v

PAUL COLLINS AS TRUSTEE UNDER INSTRUMENT 705402535

ALICIA COLLINS AS TRUSTEE UNDER INSTRUMENT 705402535

FLYING FAST INVESTMENTS PTY LTD AS TRUSTEE UNDER INSTRUMENT 705402535

(respondents)

APPLICATION NO/S:

RSL093-20

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

20 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1. The Application for miscellaneous matters filed 20 November 2020 is dismissed.

2. There is no order as to costs in the proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DISCONTINUANCE OF OR WITHDRAWAL FROM PROCEEDING – whether costs should be awarded where proceeding withdrawn at early stage but after Response filed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38, s 46, s 100, s 102, s 105, s 106

Queensland Civil and Administrative TribunalRegulation 2019 (Qld), s 5, s 8
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 57A

Retail Shop Leases Act 1994 (Qld), s 55, s 56, s 57, s 63

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Barnett & Anor v Pirrone & Anor [2019] QCATA 166
Booth v Helensvale Golf Club Ltd [1997] 2 Qd R 141.
Clarence Property Corporation Limited v Sentinel Robina Office Pty Ltd [2019] QSC 13
Coral Homes QLD Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority [2014] QCAT 93
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Rathie v ING Life Ltd [2003] QSC 429
Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101
Terera & Anor v Clifford [2016] QCAT 82

Valuers Registration Board v Murphy (No. 2) [2019] QCAT 332

APPEARANCES & REPRESENTATION:

Applicant:

E Milton of Delaneys Lawyers

Respondent:

B Ledger of Barron & Allen Lawyers

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’)

REASONS FOR DECISION

Micrac Pty Ltd (‘the Lessee’) lodged a Notice of Dispute with the chief executive under the Retail Shop Leases Act 1994 (Qld) (‘the RSL Act’) on 18 March 2020.[1] The Notice of Dispute sought orders against Paul and Alicia Collins as Trustee and Flying Fast Investments Pty Ltd as Trustee (‘the Landlords’), including for declaratory orders in respect of the validity of the Lessee’s purported exercise of an option under the lease between them and certain Notices to remedy breach delivered by the Landlords.
[1]Retail Shop Leases Act 1994 (Qld), s 55 (‘the RSL Act’).
The chief executive nominated a mediator[2] and the mediation was conducted by telephone on 24 June 2020. The mediator granted leave to the parties to be legally represented at the mediation.[3]
[2]Ibid, s 56.
[3]Ibid, s 57.
On 24 June 2020…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Micrac Pty Ltd v Collins

Details

AGLC: Micrac Pty Ltd v Collins [2021] QCAT 23
Case: [2021] QCAT 23
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to determine whether Micrac Pty Ltd (the Lessee) should be ordered to pay the legal costs of Paul and Alicia Collins as Trustee and Flying Fast Investments Pty Ltd as Trustee (the Landlords) after the Lessee withdrew their application. The application was made under the Retail Shop Leases Act 1994 (Qld) and related to the validity of an option exercised by the Lessee and certain Notices to remedy breach delivered by the Landlords. The Tribunal considered the application on the papers and determined that the Lessee should not be ordered to pay the Landlords’ costs. The Tribunal noted that the Lessee had withdrawn the application at an early stage after referral and that there was no evidence of unreasonable conduct by the Lessee that would justify an award of costs. The Tribunal also considered the factors set out in section 102(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and found that none of them favoured an award of costs. The Tribunal concluded that it was not in the interests of justice for an award of costs to be made and that each party should bear their own costs of the proceedings. The application for costs was dismissed and there was no order as to costs in the proceedings.

Orders