Stremo Pty Ltd v Opal Collections Pty Ltd
[2011] QCATA 129
•19 May 2011
| CITATION: | Stremo Pty Ltd v Opal Collections Pty Ltd [2011] QCATA 129 |
| PARTIES: | Stremo Pty Ltd (Applicant/Appellant) |
| v | |
| Opal Collections Pty Ltd (Respondent) |
APPLICATION NUMBER: APL344-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Michelle Howard, Member |
DELIVERED ON: 19 May 2011
DELIVERED AT: Brisbane
ORDERS MADE: Appeal dismissed.
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – RETAIL SHOP LEASE – where a lease provided for a rent review to current market rent for the fourth year of the original lease – where the lease expired without a review having been completed – where Stremo Pty Ltd filed a dispute notice seeking that an independent specialist retail valuer determine market rent for the relevant lease year – where the Tribunal dismissed an application on a preliminary issue about whether Stremo was entitled to rent review on the basis that the rent review clause did not comply with s 27 of the Retail Shop Leases Act 1994, and was void pursuant to s 36 of the Act – where Stremo now seeks leave to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act2009, s 146 Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers in the absence of the parties pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
PRESIDENT:
I have had the advantage of reading Ms Howard’s Reasons in draft. I agree with them, and the conclusions she reaches and the order she proposes. I also adopt her concerns about the current form, structure and content of the Retail Shop Leases Act 1994.
MEMBER MICHELLE HOWARD:
Stremo Pty Ltd (as lessor) and Opal Collections Pty Ltd (as lessee) entered into a five year lease of premises for the period 11 September 2000 to 10 September 2005. Opal Collections vacated the premises at the end of the term.
The lease provided for a rent review to current market rent for the fourth year of the original lease. During 2003 and 2004, Stremo wrote to Opal Collections advising of its progress in the market rent review. The lease expired without the market rent review having been completed. Subsequently, from time to time, there was correspondence between the parties about the issue, but it remained unresolved.
In 2010, Stremo filed a dispute notice seeking that the Chief Executive nominate an independent specialist retail valuer, appointed by the Chief Executive, to determine market rent for the lease year commencing 11 September 2003. Mediation was not successful and the mediator referred the dispute to the Tribunal.
The Tribunal determined a preliminary issue about whether Stremo was entitled to a rent review. It dismissed the application on the basis that the rent review clause does not comply with s 27 of the Retail Shop Leases Act 1994 (the Act) and is therefore void under s 36(c) of the Act.
Stremo appeals the Tribunal’s decision on the grounds that the Tribunal erred in law in finding that the rent review clause does not comply with s 27.
Neither party has been granted leave for legal representation. However, both parties have conducted the proceedings through legal representatives, who have provided the material and submissions upon which each of them has relied both in the original proceeding, and in this appeal.
Grounds of appeal
Under the QCAT Act, errors of law may generally be appealed without leave.[1] A party may appeal to the Appeal Tribunal against a decision of the Tribunal on a question of fact, or a mixed question of law and fact, but only if the party has first obtained the Appeal Tribunal’s leave.[2] Also, whether the ground of appeal involves a question of mixed fact and law, or a question of law only, determines the manner of deciding the appeal.[3]
[1] QCAT Act, s 142.
[2] QCAT Act, s 142, especially s 142(3)(b).
[3] QCAT Act, ss 146 and 147.
In Collector of Customs v Pozzolanic Enterprises Pty Ltd[4] the Full Federal Court observed that the distinction between matters of law and fact, in a statutory context, rests upon a value judgment about the scope of the legislative provisions.[5] Whether facts as found fall within the provision of a statutory enactment properly construed is, generally, a question of law.[6]
[4] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
[5] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 289.
[6]Ibid, 287, relying upon Hope v Bathurst City Council (1980) 144 CLR 1, 7; and Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 274, 277.
The issue raised in this appeal is whether the rent review clause meets the requirements of the Act for making provision for an enforceable rent review as between the lessor, and lessee. Having regard to the observations of the Full Federal Court in Pozzolanic, I am satisfied that the question falls within the provisions of the statutory enactment as properly construed, is a question of law.
Accordingly, the appeal must be decided under s 146 of the QCAT Act which provides that the Appeal Tribunal may confirm or amend the decision; set aside the decision, and substitute its own; or, set aside the decision and return the matter to the Tribunal for reconsideration, as directed by the Appeal Tribunal.
Threshold issue
Before turning to the grounds of appeal it is necessary, however, to consider a threshold issue.
Sections 63 and 64 in Part 8 of the Act provide for the circumstances in which retail tenancy disputes may be referred to the Tribunal by a mediator and applications may be made to the Tribunal. Under s 63, if the section applies, a mediator must refer a dispute to the Tribunal. Some limitations are set out in s 63(1)(a). However, by virtue of s 63(1)(b), the section only applies if the retail shop lease has not ended, by expiry, surrender or termination, more than one year before the dispute notice was lodged.
Similarly, s 64 of the Act provides for the circumstances in which a party to a retail tenancy dispute may apply to the Tribunal for orders to resolve the dispute. Section 64(1)(b) provides that the retail shop lease must not have ended, by expiry, surrender or termination, more than one year before the filing of the dispute notice.
Further provision is made in s 103 in Part 9 of the Act concerning the Tribunal’s jurisdiction, the limits of which are not relevant for these purposes.
Given the limitations on proceedings which may come to the Tribunal for determination, the Appeal Tribunal directed both parties to make submissions about the jurisdiction of the Tribunal to determine the dispute. The parties were also directed to provide submissions about any orders sought for the transfer of the dispute to another forum, and the jurisdictional basis for any such orders proposed, in the event that the Appeal Tribunal determines that the Tribunal does not have jurisdiction.
Stremo submits, essentially, that if the Tribunal is to carry out the duties of the chief executive to appoint a specialist retail valuer as provided for in s 28(2) in circumstances when the parties cannot agree about the appointment of a specialist retail valuer, the Tribunal must be able to exercise these duties at anytime, notwithstanding the time limitations.
If the Appeal Tribunal does not accept that the Tribunal has jurisdiction, Stremo seeks orders for the transfer of the matter ‘to another suitable forum’ and for directions to be made directing that forum to appoint a specialist valuer and determine any preliminary issues in relation to the appointment of a valuer.
The legal representatives for Opal Collections advise that their client, despite the Appeal Tribunal’s direction, has not provided them with instructions to file submissions about these issues.
Stremo is legally represented and has been alerted to the Appeal Tribunal’s concerns about the jurisdiction of the Tribunal. Stremo does not advance a cogent argument about that issue; indeed, its submissions implicitly concede that by virtue of the requirement that the lease must not have ended more than one year before the dispute notice was lodged, the Act does not appear to provide QCAT with jurisdiction in these circumstances.
On a plain construction of the words in s 63(1)(b), the dispute must be referred to the Tribunal by a mediator if the section applies. Where the requirements of the section are not met, relevantly, when the lease has ended more than one year before the dispute notice was lodged, the section does not apply. There is no residual discretion which allows a mediator to refer the proceeding to the Tribunal if the section is not met. The provision is mirrored in 64(1)(b), whereby a party must apply to the Tribunal for orders to resolve a dispute either during the term of a lease, or within one year of it coming to an end.
In this case, there is no dispute between the parties that the lease expired on 10 September 2005. The dispute notice was filed by Stremo in the Tribunal in 2010. That is, the lease between the parties had expired more than one year before the dispute notice was lodged. The mediator referred the dispute to the Tribunal although s 63 did not apply because the lease had expired more than one year before the dispute notice was lodged. The mirror provision in s 64(1)(b) supports an interpretation that outside of these time frames, the Tribunal has no jurisdiction to deal with the matter. It is my view that the Tribunal does not have jurisdiction to determine the dispute before it.
In the event that the Appeal Tribunal considers that it does not have jurisdiction, Stremo submits that the Appeal Tribunal should transfer the application to a ‘suitable forum’. It does not indicate which forum it considers appropriate, nor provide submissions about associated jurisdictional issues, as directed by the Appeal Tribunal.
Section 52 of the QCAT Act provides, among other things, that the Tribunal may transfer a proceeding, or part of it, for which it considers it does not have jurisdiction to a court of competent jurisdiction or another Tribunal or entity with jurisdiction for the matter. The power is only exercisable by a judicial member.[7]
[7] QCAT Act, s 52(7).
The High Court of Australia recently observed that the ‘… resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.[8] For present purposes, the observation has relevance because it means that parties must take care in their dealings in Tribunal matters, and act in their own interests throughout the proceeding. Specifically, the QCAT Act places obligations on the Tribunal to act expeditiously,[9] and on parties themselves to do so.[10]
[8]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
[9] QCAT Act, ss 3(b), 4(c) and 28.
[10] QCAT Act, s 45.
Stremo has been given the opportunity to advance submissions about whether there should be any transfer to another court or other body with jurisdiction, in the event that the Appeal Tribunal considers that QCAT does not have jurisdiction. Stremo has not made any submission about another court, or body, which may be competent to decide the proceeding.
Stremo has a responsibility to act in its own best interests and provide submissions about the orders it seeks, as it was directed to do. In the absence of submissions from Stremo requesting transfer to any particular forum, I do not consider the proceeding should be transferred to another forum which may then compel it to proceed in a manner which it does not intend to take. It is a matter for Stremo to consider whether there are other possible avenues it may pursue and to make any appropriate application.
The Tribunal made orders dismissing the application, although for reasons which do not relate to the jurisdiction of the Tribunal to determine the matter. If the Tribunal had considered the jurisdictional issue, according to my analysis of the law, the application should have been dismissed in any event. Hence, although the Tribunal made its decision without reference to a critical question, its orders do not require amendment.
The appeal, for these reasons, must be dismissed.
I am also compelled to note that the Act contains provisions which affect the Tribunal’s jurisdiction in a variety of, on the face of it, unrelated provisions. It is unwieldy, and may lead to confusion, and would benefit from review and amendment.
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