Orsay Holdings Pty Ltd v Mecanovic - [2013] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232

PARTIES:

ORSAY HOLDINGS PTY LTD trading as WHALE BAY MARINA
ACN 002 616 382
(applicant)
v
NADA MECANOVIC & ZVONKO MECANOVIC
(first respondents)
DIANNE MAREE CREA & DOMINIC CREA
(second respondents)
CHAS STRAKER PTY LTD ACN 100 943 600 as trustee for the DIANNE CREA FAMILY TRUST & NADMEC NOMINEES PTY LTD ACN 114 366 415 as trustee for the N & Z MECANOVIC FAMILY TRUST trading as THE DECK RESTAURANT
(third respondents)

FILE NO/S:

Appeal No 1173 of 2013
QCAT No 187 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

23 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2013

JUDGES:

Holmes JA and Atkinson and Philip McMurdo JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for extension of time to apply for leave to appeal is granted.1.

The application for leave to appeal is refused.2.

The applicant is to pay the respondents their costs (if any) of these applications.3.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – where tenant brought action against landlord for damages for breach of the covenant for quiet enjoyment – where tenant alternatively sought compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) – where damages and compensation sought for periods before and after the expiry of the lease – where landlord argued QCAT did not have jurisdiction to award compensation under s 43 after expiry of the lease – where lease remained a “retail shop lease” after its expiry – where tenant’s claim for damages for breach of covenant was a “retail tenancy dispute” – whether QCAT has jurisdiction to award compensation under s 43 after expiry of the lease – whether QCAT has jurisdiction to award damages for breach of covenant for quiet enjoyment after the expiry of the lease

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – APPEALS – where tenant brought action against landlord in QCAT for breach of covenant for quiet enjoyment – where tenant was successful – where landlord appealed unsuccessfully to the QCAT appeal tribunal – where landlord applies for leave to appeal from the decision of the appeal tribunal – where landlord argued appeal tribunal overlooked legal principle – where legal principle had been considered in original QCAT decision – whether question of law or fact – whether application for leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 150(3), 151(2)
Retail Shop Leases Act 1994 (Qld), s 42, s 43, s 83

Budd-Scott v Daniell [1902] 2 KB 351, applied
Southwark London Borough Council v Tanner [2001] 1…

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.

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Details

Case: [2013] QCA 232
Decision Date: 23 August 2013

CaseChat Overview and Summary

Orsay Holdings Pty Ltd, the tenant, brought an action against Mecanovic, the landlord, seeking damages for breach of the covenant for quiet enjoyment. The tenant also sought compensation under section 43 of the Retail Shop Leases Act 1994 (Qld) for periods before and after the expiry of the lease. The landlord argued that the Queensland Civil and Administrative Tribunal (QCAT) did not have jurisdiction to award compensation under section 43 after the expiry of the lease. The landlord further contended that even if the lease remained a “retail shop lease” after its expiry, the QCAT did not have jurisdiction to award damages for breach of the covenant for quiet enjoyment after the lease had expired. The tenant was successful in QCAT, and the landlord subsequently appealed to the QCAT appeal tribunal. The appeal was dismissed, and the landlord applied for leave to appeal from the decision of the appeal tribunal.

The legal issues that the court was required to decide included whether QCAT had jurisdiction to award compensation under section 43 after the expiry of the lease and whether QCAT had jurisdiction to award damages for breach of the covenant for quiet enjoyment after the expiry of the lease. The court also had to determine whether the application for leave to appeal should be granted, considering whether the matter was one of law or fact.

In its reasoning, the court held that the lease remained a “retail shop lease” after its expiry and that the tenant’s claim for damages for breach of the covenant was a “retail tenancy dispute.” Therefore, QCAT had jurisdiction to award compensation under section 43 after the expiry of the lease. The court also found that QCAT had jurisdiction to award damages for breach of the covenant for quiet enjoyment after the expiry of the lease. Regarding the application for leave to appeal, the court held that the legal principle had already been considered in the original QCAT decision and that the matter was one of fact rather than law. Consequently, the application for leave to appeal was refused.

In its final orders, the court granted the application for extension of time to apply for leave to appeal. However, it refused the application for leave to appeal itself. The landlord was ordered to pay the respondents their costs of these applications.

Orders

Orders of the court

The application for extension of time to apply for leave to appeal is granted.1.

The application for leave to appeal is refused.2.

The applicant is to pay the respondents their costs (if any) of these applications.3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232
PARTIES:	ORSAY HOLDINGS PTY LTD trading as WHALE BAY MARINA ACN 002 616 382 (applicant) v NADA MECANOVIC & ZVONKO MECANOVIC (first respondents) DIANNE MAREE CREA & DOMINIC CREA (second respondents) CHAS STRAKER PTY LTD ACN 100 943 600 as trustee for the DIANNE CREA FAMILY TRUST & NADMEC NOMINEES PTY LTD ACN 114 366 415 as trustee for the N & Z MECANOVIC FAMILY TRUST trading as THE DECK RESTAURANT (third respondents)
FILE NO/S:	Appeal No 1173 of 2013 QCAT No 187 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	23 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2013
JUDGES:	Holmes JA and Atkinson and Philip McMurdo JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for extension of time to apply for leave to appeal is granted.1. The application for leave to appeal is refused.2. The applicant is to pay the respondents their costs (if any) of these applications.3.
CATCHWORDS:	LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – where tenant brought action against landlord for damages for breach of the covenant for quiet enjoyment – where tenant alternatively sought compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) – where damages and compensation sought for periods before and after the expiry of the lease – where landlord argued QCAT did not have jurisdiction to award compensation under s 43 after expiry of the lease – where lease remained a “retail shop lease” after its expiry – where tenant’s claim for damages for breach of covenant was a “retail tenancy dispute” – whether QCAT has jurisdiction to award compensation under s 43 after expiry of the lease – whether QCAT has jurisdiction to award damages for breach of covenant for quiet enjoyment after the expiry of the lease LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – APPEALS – where tenant brought action against landlord in QCAT for breach of covenant for quiet enjoyment – where tenant was successful – where landlord appealed unsuccessfully to the QCAT appeal tribunal – where landlord applies for leave to appeal from the decision of the appeal tribunal – where landlord argued appeal tribunal overlooked legal principle – where legal principle had been considered in original QCAT decision – whether question of law or fact – whether application for leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 150(3), 151(2) Retail Shop Leases Act 1994 (Qld), s 42, s 43, s 83 Budd-Scott v Daniell [1902] 2 KB 351, applied Southwark London Borough Council v Tanner [2001] 1…