Something Easy Steak & Seafood Restaurant v Pinemere Family Trust
[2013] QCAT 514
| CITATION: | Something Easy Steak & Seafood Restaurant v Pinemere Family Trust [2013] QCAT 514 |
| PARTIES: | Mark Rheinberger trading as Something Easy Steak & Seafood Restaurant and Irene Rheinberger as a beneficiary of the Rheinberger Family Trust v Pinemere Pty Ltd (Applicant/Appellant) |
| v | |
| Pinemere Family Trust (Respondent) |
| APPLICATION NUMBER: | RSL119-12 |
| MATTER TYPE: | Retail shop leases matters |
| HEARING DATE: | On the papers and Directions hearings on 13 August 2013 and 27 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 27 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Irene Rheinberger as a beneficiary of the Rheinberger Family Trust is joined as an applicant; 2. Mark Rheinberger trading as Something Easy Steak & Seafood Restaurant is removed as an applicant; 3. The application for strike out of the notice of dispute is dismissed. |
| CATCHWORDS: | APPLICATION FOR JOINDER- where a beneficiary of a family trust seeks to be joined as an applicant- whether exceptional circumstances in which a beneficiary may bring application- where trustee a now deregistered company- where trustee not replaced CAPACITY OF ORIGINAL APPLICANT TO BRING APPLICATION- where original applicant bankrupt- whether brought in another capacity on behalf of family trust- where applicant removed STRIKE OUT APPLICATION- where issues of contested fact Bankruptcy Act 1966 (Cth) Dey v Victorian Railway Commissioners (1949) 78 CLR 62 |
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 (QCAT Act).
REASONS FOR DECISION
This proceeding concerning an alleged retail shop lease dispute is listed for hearing on 5 September 2013.
A notice of dispute was lodged with the Chief Executive under the Retail Shop Lease Act 1994 (RSL Act) on 16 November 2012, and subsequently referred to the Tribunal for determination after mediation failed to resolve the issues.
The notice of dispute lists the applicant as follows:
The notice appears, consistent with this to be signed by Mark Rheinberger. The named respondent was Mr Tony Pennisi, the Property Hub. The file was made up by the tribunal as Mark Rheinberger trading as Something Easy Steak and Seafood Restaurant against Tony Pennisi trading as the Property Hub.
Directions were made for the filing of material by the parties, as well as a compulsory conference and directions hearing. At the conclusion of the compulsory conference on 9 May 2013, directions were made which included that the proper respondent was Pinemere Pty Ltd and removing Tony Pennisi trading as the Property Hub as respondent. The proceeding was also listed for hearing on 5 September 2013.
Further material was subsequently filed by the parties, including material filed by Pinemere Pty Ltd which suggested that Mr Rheinberger was personally bankrupt. Bankruptcy impacts on a persons ability to initiate and progress proceedings.[1] Essentially, the trustee in bankruptcy must decide whether to commence or (depending on when the bankruptcy occurred) progress proceedings.
[1] Bankruptcy Act 1966 (Cth).
At a directions hearing on 16 July 2013, the applicant was directed to file any election of the trustee in bankruptcy to prosecute or discontinue the proceeding by 19 July. Correspondence and email was received from the trustee confirming appointment on 26 October 2011 as trustee in bankruptcy for Mr Mark Rheinberger.
The trustee further advised that if, as it appeared from the documents, that the claim was made by Mr Rheinberger personally, that it had not provided any authority for the prosecution of any claim, and that any such proceedings are to be discontinued. However, the trustee also referred to the somewhat vague reference to ‘Family Trust’ on the notice of dispute. A subsequent letter from the trustee in bankruptcy to Mr Rheinberger confirms that the trustee in bankruptcy has no interest in any proceedings brought by Mr Rheinberger in his capacity as trustee of a trust. As far as I could ascertain from the available material Mr Rheinberger is not a trustee of the trust. It appeared on the available material that he is a primary beneficiary.
On 23 July 2013, the applicant was further directed to provide written submissions setting out any basis on which he claimed to be entitled to proceed with his application and why it should not be struck out by 31 July 2013. Pinemere Pty Ltd was directed to respond. The Tribunal was then to make a determination on the papers about whether the application should be struck out.
In response to my request for clarification in a directions hearing held today 27 August 2013, Mr Rheinberger confirmed that he is not the trustee of the Rheinberger Family Trust. He advised that Something Easy Pty Ltd (the now deregistered company) had not been replaced as trustee.[2]
[2]He later in the directions hearing handed up a copy of a letter from Diamond Conway lawyers dated 20 August 2013, which he stated he had forwarded to the Tribunal, but which was not on file, confirming his evidence regarding the trustee.
Mr Rheinberger submits, as I understand it, that at no previous time was he told he could not commence the proceedings for himself or the Rheinberger Family Trust and that he seeks the inclusion of Irene Rheinberger as the second applicant, as she is a beneficiary of the trust and not bankrupt. He relies upon letters from solicitors acting for him some time ago which refer to the family trust as demonstrating its involvement. However, these are letters, which he recently supplied to the Tribunal,[3] addressed ‘To whom it may concern’ and to Jason Luckhardt, not Pinemere or its representatives alerting them to any involvement by the family trust.
[3]Correspondence from Diamond Conway Lawyers dated 1 December 2011 and 7 December 2011 handed up at directions hearing on 13 August 2013.
Mr Rheinberger alleges that assets worth in excess of $250,000 owned by the trust ‘and other parties’ have been withheld as a result of Pinemere’s actions in locking Something Easy out of the retail premises concerned. He suggests that QCAT’s failure to respond to his detailed submission is also causing hardship. This appears to relate to the material filed upon which he relies for final hearing, which will be considered on 5 September, if the application proceeds. He has also expressed confusion about how he can be required to respond to directions if he is unable to bring proceedings because he is bankrupt.
Because of the issues raised by the submissions, I make the observation that the purpose of the directions has been to give Mr Rheinberger the opportunity to respond to the allegations about bankruptcy, and also given events, to ascertain the capacity in which the application was intended to be brought. That is, by him personally or, in some way, on behalf of the trust.
The applicant’s material for hearing includes a copy of the trust deed for the Rheinberger Family Trust which nominates Something Easy Pty Ltd as trustee. It is dated 11 February 2009 and was executed by Mark Rheinberger as sole director of Something Easy Pty Ltd. Mark and Irene Rheinberger are both beneficiaries. Mr Rheinberger states in material provided to the Tribunal dated 29 April 2013 that the business operated through a trading trust, being the Rheinberger Family Trust, and that Something Easy Pty Ltd was the trustee of the trust but was deregistered on 1 July 2012. As noted earlier, it has today been confirmed that the trustee has not been replaced.
An ASIC search dated March 2012 provided as part of Pinemere’s material states that at that time the sole director was Jason Paul Luckhardt. It also provides a copy of an agreement to lease dated June 2010, which was executed by Mr Rheinberger and Mr Pennisi between Something Easy Pty Ltd and Pinemere Pty Ltd.
The fact that Pinemere took action locking the business out of the premises appears to be common ground. Pinemere appears to allege that no rent was paid at any time under the agreement to lease, and so a notice to remedy breach was given to Something Easy Pty Ltd, it appears in November 2011. A copy of a document executed by Mr Luckhardt on behalf of Something Easy surrendering the lease in favour of the lessor is provided. It is unfortunately undated, but Mr Pennisi says it was received from him on 14 November 2012. As I understand it, Mr Rheinberger says Mr Luckhardt was not entitled to surrender it, but he does not seem to disagree that Mr Luckhardt became director of Something Easy Pty Ltd about the time he became bankrupt.
A variety of applications have been filed in the intervening period since the allegation of Mr Rheinberger’s bankruptcy came to my attention during a directions hearing. Irene Rheinberger, as a beneficiary of the Rheinberger Family Trust has now made application seeking to be joined as an applicant. Pinemere Pty Ltd filed an application seeking orders striking out the application on the basis that at no stage was the Rheinberger Family Trust mentioned and the only parties to the retail shop leasing transaction were Something Easy Pty Ltd and Pinemere Pty Ltd.
My Conclusions
There is clearly a dispute. The application filed is purported to be for a retail tenancy dispute under the RSL Act.
If Mr Rheinberger made the application in his personal capacity, he did not have capacity as a bankrupt to make it. It is undoubtedly the case that upon bankruptcy the trustee in bankruptcy notifies bankrupt persons of what they can and can not do. Despite Mr Rheinberger’s protestations, it is not for the Tribunal to alert all potential applicants to the restrictions applicable to bankrupt persons. Once the allegation of his bankruptcy became known to me, I made directions with a view to dealing with the issue. All parties are entitled to natural justice, therefore, the Tribunal affords them the opportunity to respond to allegations made against them. Mr Rheinberger was therefore entitled to respond to the allegations of bankruptcy.
In this case, the submissions revealed the possibility also that Mr Rheinberger believed that he was bringing the application on behalf of the Rheinberger Family Trust. This did not become apparent at the compulsory conference, it seems, despite identifying at that time that the incorrect respondent had been named, at the first comprehensive discussion of the issues. In any event, Mr Rheinberger is not the trustee of the Rheinberger Family Trust and is therefore not entitled to bring application in the capacity of trustee.
Even now that Irene Rheinberger as a beneficiary of the trust seeks to be joined as an applicant, Mr Rheinberger supports her inclusion as ‘second applicant’. This suggests to me that, Mr Rheinberger intended to personally bring the application, relating to the trust, rather than the application having been made by Mr Rheinberger on behalf of the trust in the first instance.
The notice of dispute does not name as a party the ‘Rheinberger Family Trust,’ despite the vague inclusion of the words ‘family trust’ amongst others. Further, it is not apparent whether there is a retail shop lease dispute between the Rheinberger Family Trust and Pinemere Pty Ltd. It may be that the real dispute is between the beneficiaries of the trust and another party, and may well be a dispute which QCAT does not have jurisdiction to determine.
That aside, I may make orders to join another person as an applicant. Irene Rheinberger as a beneficiary now proposes to be joined.
A trust can not sue or bring proceedings: the trustee is usually the proper party to bring an application on behalf of a trust.[4] However, in some circumstances beneficiaries can do so. If a trustee does not act to protect trust property, the beneficiary may bring proceedings to do so in exceptional circumstances.[5] Exceptional circumstances were held to exist when a trustee began proceedings but became bankrupt before completion and the trustee in bankruptcy did not continue the proceedings.[6]
[4] Ford’s Principles of Corporations Law (LexisNexis, March 2013), paragraph [1.370].
[5] Lidden v Composite Buyers Ltd (1996) 139 ALR 549.
[6] Scott v McMahon [2004] NSWCA 327.
Irene Rheinberger, a solvent beneficiary of the trust seeks to be an applicant in the proceeding and to proceed with the claim. There is no trustee competent to prosecute the claim. I accept that there are exceptional circumstances and that Irene Rheinberger as a beneficiary of the trust is entitled to be joined as an applicant. As Mr Rheinberger can not bring the application personally, or as trustee of the trust, I make a direction removing him as an applicant. Usually the trustee of the trust should be joined as a party in the proceedings. However, in this case, the trustee is a now unregistered company which is not competent to sue or be sued.
I turn to the strike out application. The Tribunal’s jurisdiction for retail tenancy disputes is not at large. It is defined by the RSL Act.[7] It is not immediately apparent whether the Rheinberger Family Trust has or can have a retail tenancy dispute with Pinemere. Pinemere says it was unaware of the existence of a trust, that it dealt only with Something Easy Pty Ltd, (it seems initially through Mr Rheinberger and later, Mr Luckhardt); and that it was entitled to do so. This could be tested at a hearing and findings of fact made.
[7]A retail tenancy dispute is any dispute about a retail shop lease or about the use or occupation of a leased shop under a retail shop lease: RSL Act Schedule ‘retail tenancy dispute’. A lease means any agreement under which a party gives another party a right to occupy premises for valuable consideration: RSL Act Schedule ‘lease’.
There are clearly real issues of fact to be determined as well as a variety of legal issues. Summary dismissal is not appropriate where there are real questions of fact or law to be determined.[8] Although some questions of law may be determined on a strike out, difficult or important questions should not be determined.[9]
[8]Dey v Victorian Railway Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
[9] Goodson v Grierson [1908] 1 KB 761.
Therefore, although I have reservations whether the real dispute is with Pinemere, and whether it is in fact a retail tenancy dispute, I am not prepared to strike the matter out. The various issues can be considered at the contested hearing listed for 5 September, 2013.
I make orders accordingly joining Ms Rheinberger as a beneficiary of the family trust as an applicant, removing Mr Rheinberger as an applicant, and dismissing the strike out application.
I make the observation that if the application is successful, that the trustee in bankruptcy for Mr Rheinberger should be provided with a copy of any orders so that he may consider the relevance to Mr Rheinberger’s bankruptcy. I also direct that a copy of these orders be provided to the trustee in bankruptcy.
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