Ratakhin v Tubaro - [2023] QCAT 256

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ratakhin v Tubaro & Anor [2023] QCAT 256

PARTIES:

SERGEY RATAKHIN T/A FIX MY LAPTOP

(applicant)

v

SONIA TUBARO
TUBARO LAWYERS

(respondent)

APPLICATION NO/S:

RSL023-23

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

4 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.     Tubaro Lawyers be removed as a party to the proceeding.

2.     Alexandra Dapontes has leave to represent the applicant in the proceeding.

3.     The application filed on 3 May 2023 is dismissed.

4.     The application file on 30 May 2023 is dismissed.

5.     The application be listed for a directions hearing on a date to be advised to the parties.

6.     The application be listed for a one-day hearing on a date to be advised to the parties.

CATCHWORDS:

LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION – where dispute about the use of the subject premises as a retail shop – where lessee locked out of premises – where applicant included the second respondent as a party – where respondent advertising premises for lease – whether business conducted is a retail business – whether respondent should be restrained from advertising the premises for lease – whether the second respondent is a party to the proceeding respondent.

Retail Shop Leases Act 1994 s 5A & 5C

Retail Shop Regulations 1994 s 5 Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 ss 27 and 28

General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125

Peter James Spencer v Commonwealth of Australia (2010) 241 CLR 118

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)

REASONS FOR DECISION

On 21 August 2021 Sonia Tubaro entered into a Commercial Lease Agreement with a company, Fix My Laptop Pty Ltd, for premises at 38 Hudson Rd Albion. The lease was for 5 years.
On 16 December 2022 Mr Ratakhin purchased the business from Fix My Laptop Pty Ltd, and kept the business name, but there was no transfer of shares in the company it seems. A deed of Consent to Assign the Lease was entered into between Sonia Tubaro, Fix My Laptop Pty Ltd and Mr Ratakhin. Mr Ratakhin commenced conducting the business at the leased premises in December 2022.
Subsequently, a dispute arose between Mr Ratakhin and Ms Tubaro concerning the lessor’s obligations under the lease. The first was the failure to repair an air conditioner in the leased premises. There was a failure by Ms Tubaro to remove a broken down vehicle in the carparking area which, according to Mr Ratakhin was an eyesore and detracted from the amenity of the presentation of the business to customers.
The was exchanges of emails and correspondence between Mr Ratakhin and Alexandra Dapontes, concerning these matters. Ms Dapontes represents the lessor, Ms Tubaro who is a lady of advanced years and has health issues. Tubaro Lawyers also represent her, but it is a little unclear just what role Ms Dapontes plays within Tubaro Lawyers, whether she is a principal or employee. However, she is the one communicating with Mr Ratakhin.
Because of the dispute developing between Ms Tubaro and Mr Ratakhin, he decided to withhold rent in January which caused Ms Tubaro or Ms Dapontes to lock Mr Ratakhin out of the premises. A resolution was sought, and he would be allowed to re-enter if he paid the outstanding rent, the locksmith fee and accepted responsibility for the air conditioner. Also, he would raise no objection to the dumped Volvo car in the carpark. Mr Ratakhin agreed to the first three conditions but not in relation to the car. He continues to be locked out.
He filed an application for an order to resolve a retail tenancy dispute in the Tribunal on 13 April 2013. Evidence has been filed, with both parties asserting their various positions with the lease.
On 3 May 2023 Mr Ratakhin filed an application seeking what appears to be an injunction to restrain Ms Tubaro from re-leasing the premises pending the outcome of the substantive application.
On 30 May 2023 Ms Tubaro filed an application seeking orders that the claim against Tubaro Lawyers be struck out as is it not a party to the lease or the dispute; and that the application be dismissed on the grounds it is not a retail shop lease dispute under the Retail Shop Leases Act 1994 (“the Act”).
I will deal with the 30 May 2023 application first. If successful, then Mr Ratakhin’s application must be dismissed.
Firstly, there is no basis for joining Tubaro Lawyers in the proceeding. The original lease and the assignment of the lease only nominate Ms Tubaro as the lessor and the party consenting to the assignment. Mr Ratakhin has not provided any basis for including Tubaro Lawyers in the application as a party. I propose to allow that part of the application
As for the second part, whether this is a retail shop lease, involves a consideration of the business being conducted and the definitions under the Act and Retail Shop Lease Regulations. Essentially, this is a factual finding. The meaning of a retail shop lease is contained in Part 3 Division 2 of the Act, which is the lease of a retail shop. A retail shop is defined in s 5D as premises that are:
(a) Situated in a retail shopping centre; or
(b) Used wholly or predominantly for the carrying on or a retail business.
To determine what a retail business is, one has to go to the Regulations, in particular s 8 which provides:
For section 5C of the Act, a business is a retail business if—
(a) it is a business mentioned in schedule 1; or
(b) its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in schedule 1
Schedule 1 refers to “Business, goods and services”. Under the heading “Domestic Appliance Retailing” there is reference to “computer” and “computer accessories”. By reference to s 8(b) it is unclear on the material the actual mix of the business carried on by Mr Ratakhin. It certainly involved the repair of computers as the business names suggest but in his email correspondence with Ms Dapontes the Mr Ratakhin signs of as “Your Computer Guy – Service Repair and Sales”. It is the “sales” part of the business which might satisfy the definition.
Mr Ratakhin is unrepresented. Therefore, pursuant to discharging the obligations on the Tribunal under s 28 and 29 of the Queensland Civil and Administrative Tribunal Act 2009, I undertook a search of “Fix my Laptop” on the internet. The services advertised are more than just laptop repairs, they include selling refurbished computers, new computers and also presumably accessories.
There is enough evidence here to raise at least a prima facie case that the business conducted is a retail business which falls within the Act. That can be fully considered at the final hearing. In considering whether to strike out an application, the principles espoused in General Steel Industries Inc v Commissioner for Railways NSW[1]must be at the forefront in considering whether there a justiciable cause of action. As Barwick CJ said:
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense.
[1](1964) 112 CLR 125 at 129
Also, as the High Court observed in Peter James Spencer v Commonwealth of Australia that the exercise of powers to summarily terminate proceedings must always be attended with caution, and that the same approach applies whether the application suggests that the pleadings failed to disclosure a reasonable cause of action or that such a disposition is sought in a summary judgement application supported by evidence.[2]
[2](2010) 241 CLR 118 at [24]
I appreciate that there are no pleadings in the Tribunal but that makes little difference, if there were and reliance was placed on the Act as the foundation of jurisdiction, then they would be susceptible to being struck.
Therefore, reliance on the facts referred to above as to the nature of the business, and the cautious approach that must be taken on a strike out application, I propose to dismiss the application filed 30 May 2023 by Ms Tubaro insofar as it involves the jurisdictional question.
That leaves Mr Ratakhin’s application filed on 3 May 2023. In the application he refers to the fact that Ms Tubaro is advertising the premises for lease. He goes onto say:
Ideally, I’d like to keep the premises and get my lease reinstated however it will be impossible to do so if there is another tenant. I want the premises to be unoccupied while our case is under consideration.
Rent on the premises continue to accrue and Mr Ratakhin remains locked out. His position is the obvious one, why pay rent when he does not have access to the premises. Neither party has sought to formally terminate the lease, although it could be argued that the conduct by Ms Tubaro amounts to a repudiation of the lease.
The granting of an interlocutory injunction depends on three things. Firstly, is there a serious question to be tried, secondly, the balance of convenience and thirdly, whether damages are an adequate remedy.
As for the first, the rights or wrongs of each parties position in this dispute cannot be determined on this application. That must be left to a final hearing. I am satisfied there is a serious issue to be tried.
As for the second, the balance of convenience does favour Mr Ratakhin who is the beneficiary of the lease but the difficulty here is he has not paid rent, but by the same token, has not had access to the premises. However, the application is not for an order that he be given access to the premises, even if the arrears of rent were paid. Furthermore, there is as I have said, an argument that the contract is no longer on foot.
Given the nature of the dispute, it seems to me that damages, for either party, would be the appropriate remedy even if ultimately there was an order that Mr Ratakhin was entitled to specific performance of the lease.
I am not persuaded that, in the circumstances, a restraining order against Ms Tubaro should be granted. Therefore, the application filed on 3 May 2023 is dismissed.
Just recently, on 30 June 2023 Ms Tubaro filed an application seeking the Tribunal’s leave that she be represented by Ms Dapontes. It is evident from the material that Ms Dapontes is the driving force behind this dispute. The application provided Ms Tubaro’s authority for her to continue to act in that capacity. Accompanying the application is a medical certificate from her medical practitioner addressing her incapacities. In view of this, and the manner in which the dispute has been conducted, I propose to make and order in terms of the application.
This application needs to be listed for hearing at the earliest opportunity. Having read the material, I am not confident any alternate resolution process would be successful. Both parties are entrenched in their position and a final determination by the Tribunal is necessary.
The orders of the Tribunal are:
1That Tubaro Lawyers be removed as a party to the proceeding;
2Alexandra Dapontes has leave to represent the applicant in the proceeding.
3The application filed on 3 May 2023 is dismissed;
4The application filed on 30 May 2023 is dismissed.
5The application be listed for a one-day hearing on a date to be advised to the parties.