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…

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: [2023] QCAT 256
Decision Date

CaseChat Overview and Summary

In the matter of Ratakhin v Tubaro, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to address several issues arising from a dispute between a tenant, Sergey Ratakhin trading as Fix My Laptop, and his landlord, Sonia Tubaro, also known as Tubaro Lawyers. The central dispute revolved around the use of leased premises as a retail shop, the landlord's failure to maintain the property, and the tenant's decision to withhold rent. This led to the tenant being locked out of the premises, prompting legal action to be taken. The tenant sought an order to resolve a retail tenancy dispute, an injunction to prevent the landlord from re-leasing the premises, and permission for a new lawyer to represent him. The landlord, on the other hand, sought to have Tubaro Lawyers removed as a party and for her application to be dismissed on jurisdictional grounds.

The primary legal issues before the Tribunal were whether Tubaro Lawyers should be a party to the proceeding, whether the business conducted by the tenant constituted a retail business under the Retail Shop Leases Act 1994, and whether an interlocutory injunction should be granted to prevent the landlord from advertising the premises for lease. Additionally, the Tribunal had to determine if there was a serious question to be tried, whether damages would be an adequate remedy, and the balance of convenience in granting the injunction.

The Tribunal found that there was no basis for including Tubaro Lawyers as a party to the proceeding as the original lease and assignment documents only listed Sonia Tubaro as the lessor. The Tribunal also determined that there was enough evidence to suggest that the business conducted by the tenant involved the sale of computers and accessories, which could potentially satisfy the definition of a retail business under the Act. However, the Tribunal declined to strike out the application on jurisdictional grounds, noting the cautious approach required when considering such applications. Regarding the interlocutory injunction, the Tribunal found that while there was a serious issue to be tried, the balance of convenience favoured the tenant, and damages would be an adequate remedy. The Tribunal did not grant the injunction as the tenant had not paid rent and had been locked out of the premises, and there was an argument that the contract was no longer on foot.

The final orders of the Tribunal were that Tubaro Lawyers be removed as a party to the proceeding, Alexandra Dapontes be granted leave to represent the tenant, and both applications filed by the parties be dismissed. The Tribunal also ordered that the matter be listed for a one-day hearing to resolve the dispute.

Orders