Reelaw Pty Ltd as trustee v Freeman - [2013] QCAT 518

CITATION:

Reelaw Pty Ltd as trustee v Freeman [2013] QCAT 518

PARTIES:	Reelaw Pty Ltd as trustee (Applicant)
v
Janice Elizabeth Freeman (Respondent)

APPLICATION NUMBER:

RSL020-13; RSL021-13

MATTER TYPE:

Retail shop lease matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

30 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant Reelaw Pty Ltd shall pay to the respondent Janice Elizabeth Freeman, or her solicitors, by way of costs in the matters RSL020-13 and RSL021-13 the total sum of seven thousand eight hundred dollars ($7,800) by 4 pm on Monday 14 October 2013.

2. Leave is granted to the applicant Reelaw Pty Ltd to withdraw applications RSL020-13 and RSL021-13, such leave to take effect upon payment in full of the costs aforesaid.

CATCHWORDS:

RETAIL SHOP LEASES ACT 1994 – claims by landlord for arrears of rent and outlays – whether QCAT has jurisdiction to hear and determine those matters – whether proceedings unduly disadvantage respondent tenant - whether proceedings amount to non-compliance with enabling Act – whether proceedings vexatious – whether order for indemnity costs in the interests of justice – whether applicant should have leave to withdraw – order for costs – leave to withdraw effective on payment of costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 32, 46, 47, 48, 102
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rr 58, 59

Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld), s 1588

Property Law Act 1974 (Qld), s 131
Retail Shop Leases Act 1994 s 103

Henry v Henry (1996) 185 CLR 571
Draper v British Optical Association [1938] 1 All ER 115

Mellstrom v Garner [1970] 2 All ER 9
Luna Park Ltd v The Commonwealth (1923) 32 CLR 596
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481
J and C Cabot & Anor v City of Keilor & Anor [1994] 1 VR 220
Laccona v Beyer [2013] VSC 403

APPEARANCES and REPRESENTATION (if any):

These matters were jointly heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Notice of Dispute Number 020-13

By an instrument dated 29 September 2011 the applicant, (“the Landlord”), leased to the respondent (“the Tenant”) shops 1 and 2 in premises at 390 Flinders Street, Townsville, for a term of 2 years and 9 months, commencing on 15 April 2011 and due to expire on 14 January 2014.
On 2 October 2012, pursuant to the Property Law Act 1974[1] the Landlord served the Tenant with a notice of termination, alleging inter alia that she was in breach by vacating the premises prior to expiry of that lease, and by failing to pay rent.
[1] Section 131.
On 28 February 2013 the Landlord, in purported pursuance of the Retail Shop Leases Act 1994 (“the RSLA”), issued…

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] QCAT 518
Decision Date

CaseChat Overview and Summary

Reelaw Pty Ltd as trustee brought proceedings against Janice Elizabeth Freeman in the Queensland Civil and Administrative Tribunal (QCAT), seeking arrears of rent and outgoings from two separate retail shop leases. Freeman contested the jurisdiction of QCAT to hear the matter and sought indemnity costs. The central legal issue was whether QCAT had jurisdiction over claims for arrears of rent and outgoings under the Retail Shop Leases Act 1994. The Tribunal found that QCAT lacked jurisdiction over such claims, as they were explicitly excluded by section 103(1)(b) of the Act. The Tribunal also found that the Landlord's actions were vexatious and in breach of the enabling Act, justifying an order for indemnity costs. The Tribunal ordered Reelaw Pty Ltd to pay Freeman $7,800 in costs and granted leave to withdraw the proceedings upon payment of the costs.

The court reasoned that the Retail Shop Leases Act 1994 explicitly excludes claims for arrears of rent and outgoings from QCAT's jurisdiction, a point the landlord was well aware of but chose to ignore. The landlord's attempts to bring these matters to QCAT were deemed vexatious and an abuse of process, as they were knowingly brought in an inappropriate forum. This deliberate ignorance and misuse of the tribunal process warranted an order for indemnity costs. The court granted leave for the landlord to withdraw the proceedings, contingent upon the payment of the specified costs to Freeman. This decision underscores the importance of adhering to jurisdictional boundaries and the consequences of vexatious litigation.

Orders