Perl & Anor t/a Salads & More v Macarthur Central Shopping Centre Pty Ltd

[2010] QCAT 600

CITATION: Perl & Anor t/a Salads & More v Macarthur Central Shopping Centre Pty Ltd [2010] QCAT 600

PARTIES:	Alfred Perl and Jung Hee Lee T/A Salads & More
v
Macarthur Central Shopping Centre Pty Ltd as trustee

APPLICATION NUMBER:   RSL082-10  

MATTER TYPE: Retail shop leases matters

HEARING DATE:     23 November 2010

HEARD AT:  On the Papers

DECISION OF: Ms Anne Forbes

DELIVERED ON: 23 November 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    The Applicants have leave to be represented at the hearing by a member or legally qualified employee of Plastiris Lawyers of 99 Creek Street, Brisbane. The Respondent have leave to be represented at the hearing by Ronald Zucker, general counsel for the Respondent

CATCHWORDS :  – applications for legal representation – assignment of lease – reasonableness of landlord’s refusal – legally complex – each party seeking leave – Queensland Civil and Administrative Tribunal Act 2009 section 43

APPEARANCES and REPRESENTATION (if any):

Decision was made on the papers without the parties being present.

REASONS FOR DECISION

1. The Applicant lessees Alfred Perl and Jung Hee Lee operate a business known as “Salads and More” at 255 Queen Street, Brisbane.  Their landlord is Macarthur Central Shopping Centre Pty Ltd, as trustee (“the Respondent”).  In or about August 2010 the Applicants sought the Respondent’s consent to an assignment of their lease to a company, Young Chain Pty Ltd.  That consent has not been forthcoming.

2. On 9 September 2010 the Applicants filed a Notice of Dispute under the Retail Shop Leases Act 1994 alleging unreasonable refusal to grant consent, and seeking an order that consent be given.

3. The present question is whether the Applicants should have leave to be represented by a legal practitioner at the hearing of the dispute.   Their application for such leave (“the interlocutory application”) was filed on 12 November 2010.

4. The general rule is that parties should represent themselves unless the interests of justice require otherwise: Queensland Civil and Administrative Tribunal Act 2009 s 43(1), (2)(b)(iv). In deciding whether to grant leave the Tribunal is to consider, inter alia, whether the proceeding is likely to involve complex questions of fact or law, whether another party is represented, and whether all parties consent to the applicant’s being represented: s 43(3)(b),(c) and (d).

Complexity

5. While the reasonableness of a refusal is ultimately a question of fact, litigation on the point has generated a great deal of persuasive or illustrative authority in superior courts: see for examples Bates v Donaldson [1896] 2 QB 241; Houlder Bros & Co Ltd v Gibbs [1925] Ch 575; Swanson v Foxton [1949] Ch 143; Shanly v Ward (1913) 29 TLR 714 (unsatisfactory references); Balfour v Kensington Gardens Mansions Ltd (1932) 49 TLR 29; Goldstein v Sanders [1915] 1 Ch 549; Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1990] VR 646; Secured Income Real Estate Pty Ltd v St Martin’s Investments Pty Ltd (1979) 144 CLR 596; J A McBeath Nominess Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121. It would be quite unrealistic and unreasonable to require the Applicants to find their way through such a thicket of legal learning without the professional assistance they wish to engage.

Another Party Represented

6. The Respondent, as a body corporate, will necessarily be represented, and on 15 November 2010 it sought leave to appear by its in-house counsel Ronald Zucker.   I note that Mr Zucker has already represented the Respondent at Mediation and a Directions Hearing.

All Parties Agree

1. The Applicants have no objection to an appearance by the Respondent’s legal representative: email Burke to Danielle Brown, QCAT, 17 November 2010. While s 43 does not recognise consent as requiring leave as a matter of course, the absence of objection on the Applicants’ part fortifies the considerations noted above.

Language Difficulty

8. In their Notice of Dispute the Applicants state that an interpreter is not required.  However, in a later document it is claimed that the Applicant Lee has “a limited understanding of English”: email Burke to Danielle Brown 17 November 2010. While it does not follow from that submission that a legal, as distinct from lay agent is needed, I consider that the other factors noted above are suffice to support the interlocutory application.

Representation of Respondent

9. I propose to treat Mr Zucker’s email to the Tribunal, dated 15 November 2010, as an application that the Respondent be given leave to be represented by him at the hearing.   I shall grant both applications.

ORDERS

1That the Applicants have leave to be represented at the hearing by a member or legally qualified employee of Plastiris Lawyers of 99 Creek Street, Brisbane.

2That the Respondent have leave to be represented at the hearing by Ronald Zucker, general counsel for the Respondent.