National Mutual Life Nominees Pty Limited as Custodian for Wholesale Australia Property Fund v Hatch & Co Group Pty Ltd atf Mm Gas Trust & Ors (No.2)

[2022] QCAT 193

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

National Mutual Life Nominees Pty Limited as Custodian for Wholesale Australia Property Fund v Hatch & Co Group Pty Ltd atf MM Gas Trust & Ors (No.2) [2022] QCAT 193

PARTIES:

NATIONAL MUTUAL LIFE NOMINEES PTY LIMITED AS CUSTODIAN FOR WHOLESALE AUSTRALIA PROPERTY FUND

(applicant)

v

HATCH & CO GROUP PTY LTD AS TRUSTEE FOR MM GAS TRUST
MELHAM MOUBAREK
MOUBMENT GROUP PTY LTD

(respondents)

APPLICATION NO/S:

RSL056-20

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

24 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane, Presiding
Member Judge
Member McBryde

ORDERS:

The Notice of dispute as against Melham Moubarek is dismissed.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY –claim for misleading and deceptive conduct where amount claimed is more than minor civil disputes monetary jurisdiction – where it is declared the claim is not a retail tenancy dispute – whether the proceedings should be transferred to a Court – whether the proceedings should be dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 52

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

National Mutual Life Nominees Pty Limited as Custodian for Wholesale Australia Property Fund v Hatch & Co Group Pty Ltd atf MM Gas Trust & Ors [2022] QCAT 140

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

REASONS FOR DECISION

1. National Mutual Life Nominees Pty Limited as Custodian for Wholesale Australia Property Fund (National Mutual) leased premises to Hatch & Co Group Pty Ltd as trustee for MM Gas Trust (Hatch) from which Hatch conducted a restaurant.   

2. National Mutual lodged a Notice of dispute on 18 November 2019.[1]  Following an unsuccessful mediation on 7 February 2020, the Notice of dispute was referred to the Tribunal.[2]  Mr Moubarek filed a Response seeking the Notice of dispute be dismissed as against Moubment Group Pty Ltd and himself.[3]  The Response, on its face, was not filed on behalf of Hatch.  Mr Moubarek admitted many of the factual matters set out in the Notice of dispute.  The Notice of dispute as against Moubment Group Pty Ltd was dismissed on 7 August 2020 and directions made for the parties to file statements and for the matter to be determined on the papers. 

   [1]Retail Shop Leases Act 1994 (Qld), s 55 (RSL Act).

   [2]Ibid, s 56, s 63.

   [3]Response filed 6 May 2020.

3. By decision dated 19 April 2022[4] we dismissed the Notice of dispute against Hatch, declared that the claim set out in the Notice of dispute against Mr Moubarek is not a retail tenancy dispute and invited the parties to make submissions as to whether:

   (a)the Tribunal ought to make orders transferring the Notice of dispute to a court of competent jurisdiction; or

   (b)National Mutual agrees to limit its claim to $25,000, whether it is a relevant person as defined in section 12 of the QCAT Act such that the matter would be a minor civil dispute and is to be decided by the Tribunal on that basis on the papers; or

   (c)the Notice of dispute be dismissed for want of jurisdiction.

   [4]National Mutual Life Nominees Pty Limited as Custodian for Wholesale Australia Property Fund v Hatch & Co Group Pty Ltd atf MM Gas Trust & Ors [2022] QCAT 140.

4. The time allowed for submissions has expired.[5] No submissions have been received from either party. 

   [5]National Mutual was ordered to file submissions by 4 pm on 3 May 2022.  Mr Moubarek was ordered to file submissions by 4 pm on 13 May 2022.

5. For the reasons set out in our reasons for decision of 19 April 2022,[6] as National Mutual has not agreed to limit its claim to $25,000 the Tribunal has no jurisdiction to decide the claim as a minor civil dispute and the Tribunal also lacks jurisdiction under the Retail Shop Leases Act 1994 (Qld) as the claim against Mr Moubarek is not a retail tenancy dispute.

   [6][2022] QCAT 140.

6. Although the Tribunal may act on its own initiative to transfer a proceeding to a court of competent jurisdiction[7] we are not inclined to do so where National Mutual is non-compliant with not only the decision requesting submissions[8] but also the previous directions for submissions[9] and has failed to date to provide any reasonable excuse for either non-compliance.[10] 

   [7]QCAT Act, s 52(6).

   [8][2022] QCAT 140.

   [9]Directions 8 June 2021.

   [10]QCAT Act, s 48(1)(a).

7. The Notice of dispute as against Mr Moubarek is dismissed for want of jurisdiction.[11]

   [11]Ibid, s 47.