Sandra Field v Neville Pape - [2023] QCAT 40

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Sandra Field v Neville Pape [2023] QCAT 40

PARTIES:

Sandra Field

(applicant)

v

Neville Pape

(respondent)

APPLICATION NO/S:

REO015-21

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

1 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     The application to extend time is refused.

2.     The application for reopening, correction, renewal or amendment is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS -AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – doctrine of functus officio – reopening of decision under QCAT Act – application to extend time to file the reopening application – grounds for reopening – reasonable excuse or substantial injustice – principles when considering to extend or shorten a time limit fixed by the Act – failure to comply with Tribunal directions – notice of dispute may be dismissed – delay causing unnecessary disadvantage – entitlement to expect the litigation to be progressed to finalisation expeditiously – proceeding dismissed

Retail Shop Leases Act 1994 (Qld), s 5A(a), s 5B(a), s 5B(b), s 5C, s 103(1), sch

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 48, s 48(2)(a), s 48(4), s 61(1)(b), s 61(3), s 133, s 135, s 138
Queensland Civil and Administrative Tribunal Rules, r 92, Schedule Dictionary

Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417

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 3 August 2021 I dismissed the Notice of Dispute referred to the Tribunal on 13 July 2020. On 29 November 2021, Ms Field filed an application for reopening, correction, renewal or amendment. On 16 February 2022 Ms Field filed an application to extend the time to file the reopening application. The application to extend time falls for determination.
The following issues must be determined:
(a)Is the application by Ms Field for reopening or renewal?
(b)Is an extension of time required to file the application?
(c)Should time be extended?
The background to the dispute and the dismissal of the proceeding
Ms Field was the tenant of premises from which she operated a gym and fitness centre. Mr Pape was the lessor of the premises. The parties entered into a lease for a period of 1 year commencing on 5 October 2018. Ms Field vacated the premises on 11 July 2019, prior to the end of the lease period claiming that Mr Pape had breached the lease by, among other things, failing to provide Ms Field with quiet enjoyment.
Ms Field lodged a Notice of Dispute in accordance with the provisions of the Retail Shop Leases Act 1994 (Qld) (RSL Act). The parties attended a mediation. The issues in dispute could…

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 40
Decision Date

CaseChat Overview and Summary

Sandra Field brought an application to the Queensland Civil and Administrative Tribunal (QCAT) against Neville Pape regarding a retail shop lease dispute. Ms Field was the tenant of a gym and fitness centre, and Mr Pape was the lessor. Ms Field vacated the premises early and claimed that Mr Pape breached the lease by failing to provide her with quiet enjoyment. The QCAT dismissed Ms Field's Notice of Dispute, and she subsequently filed an application to reopen the decision and an application to extend the time to file the reopening application. The court was required to determine whether the application was a reopening application, whether an extension of time was required, and whether time should be extended.

The court found that the application was a reopening application, which is one of the exceptions to the doctrine of functus officio. A reopening application can be made if the party did not appear at the hearing and had a reasonable excuse for not attending or if the party would suffer substantial injustice due to significant new evidence that was not reasonably available when the proceeding was first heard and decided. The court found that neither of these grounds applied in this case. Additionally, the court found that there was no satisfactory explanation for the delay in filing the reopening application, and the prospects of success in the reopening application were poor. The court also found that there was no significant prejudice to Mr Pape if the extension of time was allowed.

The court refused the application to extend time to file the reopening application, and dismissed the reopening application. The court observed that there may be a significant question as to whether the dispute between the parties was a retail tenancy dispute, which is within the jurisdiction of the Tribunal. However, the court made these observations only and did not make a substantive determination on this issue.

The court dismissed the application for reopening, correction, renewal, or amendment, and refused the application to extend time to file the reopening application.

Orders