Reinhold v Island Emporium Pty Ltd

[2014] QCAT 467

CITATION: Reinhold v Island Emporium Pty Ltd [2014] QCAT 467

PARTIES:	Christine Anna Reinhold & Peter John Reinhold t/as Cina Boutique (Applicant)
v
Island Emporium Pty Ltd (Respondent)

APPLICATION NUMBER: RSL075-14

MATTER TYPE: Retail shop leases matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Howard

DELIVERED ON: 17 September 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application by Christine Anna Reinhold & Peter John Reinhold trading as Cina Boutique for an interim injunction is dismissed.

2.    The application by Island Emporium Pty Ltd for an extension of time to file submissions is dismissed.

CATCHWORDS: RETAIL SHOP LEASE- APPLICATION FOR INTERIM ORDER- orders sought be lessee to restrain fit out and commencement of trading in other leased premises in the centre

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Christine Reinhold and Peter Reinhold trade as Cina Boutique. The boutique sells ladies clothing, accessories, jewellery, handbags and a range of other related products targeted at all age groups. They operate from premises in a centre leased to them by Island Emporium Pty Ltd (‘Emporium’). The lease is for the period 7 June 2013 to 6 June 2016.

2. Emporium has recently entered into a lease with Indigo & Me Pty Ltd (‘Indigo’).  According to the Reinholds, Indigo is the corporate entity of a relative of the directors of Emporium. Indigo is presently undertaking fit out of its leased premises and is expected to commence trading in early October 2014, offering for sale ladies clothing.

3. The Reinholds have lodged a Notice of Dispute with the Chief Executive under the Retail Shop Lease Act 1994 (RSL Act). The Notice of Dispute has not been referred to the Tribunal under the RSL Act at this stage. However, the Reinholds have also filed an application in the Tribunal for an interim injunction to prevent fit out or commencement of trading by Indigo until the ‘Tribunal can determine the substantive case’ raised in the Notice of Dispute. The claims in the Notice of Dispute relate primarily to alleged unconscionable conduct in entering into leasing arrangements with a family member or related entity where the business of such tenancy would involve selling ‘younger’ ladies fashion and accessories in direct competition with an existing tenant.

4. I made directions for the filing of submissions and statements by both parties concerning the interim injunction application. I also directed that unless otherwise ordered, the application for the interim injunction then be determined on the papers without an oral hearing.

5. Emporium, instead of filing its material as directed, has applied through its lawyers for an extension of time to file its material as its directors are overseas on a holiday. Its solicitors nevertheless have in the course of providing submissions about that application for an extension of time provided some information relating to the interim injunction application which is sufficient to allow me to determine it.

6. Section 59 of the QCAT Act provides that the Tribunal may grant an interim injunction if it is just and convenient to do so. In considering an application for an interim injunction, I must consider whether the Reinholds have an arguable case, and if so, where the balance of convenience lies.

7. The material provided to date reveals that it is common ground that a lease has been entered into by Emporium and Indigo. There appears on the material before me to be no proper basis upon which an interim injunction could be made against Emporium requiring it to prevent Indigo from fitting out its leased premises and commencing trading. Indigo has lawful possession of the property. 

8. As discussed earlier, the Notice of Dispute alleges unconscionable conduct in entering into the lease with Indigo. The Reinholds anticipate a loss because of the operation of another shop selling ladies clothing and accessories. However, at this point there can have been been no loss. If unconscionability is established, the Tribunal at a final hearing of the matters raised in the Notice of Dispute (assuming that it is referred to the Tribunal following mediation), can consider whether to order the payment of a sum of money to the Reinholds.

9. In the circumstances it would be unhelpful to grant an extension of time for Emporium to file further submissions. The application for an interim injunction cannot succeed and must be dismissed. In the circumstances I make orders dismissing the application for an interim injunction and the application of Emporium for an extension of time to file submissions.