Susanna and John Pty Ltd v Trident Ashgrove JV Pty Ltd (No 2)
[2011] QCATA 260
•14 September 2011
| CITATION: | Susanna and John Pty Ltd v Trident Ashgrove JV Pty Ltd (No 2) [2011] QCATA 260 |
| PARTIES: | Susanna and John Pty Ltd t/as HighPoint Seafood Cafe (Applicant/Appellant) |
| v | |
| Trident Ashgrove JV Pty Ltd as Trustee for Tribune Properties Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL117-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 14 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – RETAIL SHOP LEASES – UNCONSCIONABLE CONDUCT – COMPENSATION – FINDINGS OF FACT – CONFLICTS OF INTEREST –where the applicant leases a shop from the respondent – where the applicant claimed that its visibility had been impaired which had restricted access by customers; and, that the respondent’s action in offering a new lease constituted unconscionable conduct under the Retail Shop Leases Act 1994 – where the Tribunal dismissed the application at first instance – where the applicant seeks leave to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act2009, s 142 Fox v Percy (2003) 214 CLR 118, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Susanna and John Pty Ltd leases shops 29 and 30 at HighPoint Plaza Centre Ashgrove, where it operates the HighPoint Seafood Café. Trident Ashgrove JV Pty Ltd is the landlord. The lease began on 1 July 2006, and continues.
Susanna and John Pty Ltd, whose directors are Mr and Mrs Huang, brought proceedings in November 2009 by lodging a Notice of Dispute under the Retail Shop Leases Act 1994 (RSL Act). Eventually the proceedings came on for hearing before a QCAT Tribunal constituted in accordance with that Act.
In those proceedings Susanna and John Pty Ltd claimed that Trident had constructed a coffee shop in a kiosk in the vicinity of its business which had compromised its visibility and substantially restricted access by customers, or altered the flow of potential customers past the shop; and, that Trident’s action in offering a new lease constituted unconscionable conduct under the RSL Act.
Under s 42 of the RSL Act every retail shop lease carries an implied right to compensation, which may be payable to the tenant for loss or damage if the lessor takes action that substantially restricts or alters the flow of potential customers past the shop. That is what Susanna and John Pty Ltd alleged here.
Under s 46A(1) a lessor is also prohibited from engaging in conduct that is, in all the circumstances, unconscionable. That was the tenant’s second allegation.
The Tribunal conducted a hearing on 8 March 2011 and each side called a number of witnesses. Its experienced presiding Member, Ms Anne Forbes, delivered its decision dismissing the application on 16 March 2011. At the same time she published the Tribunal’s Reasons, in eight pages.
Susanna and John Pty Ltd seeks leave to appeal that decision. Leave is necessary unless the appeal is brought on a question of law.[1] In the course of its Reasons the learned presiding Tribunal Member expressed regret that Susanna and John Pty Ltd had not sought professional assistance to prepare its case which would, the Reasons observed, have spared the Tribunal the task of dealing with extravagant propositions and prolix, sometimes trivial complaints. Unfortunately, the same comment applies to its written submissions filed, by direction in this appeal, which are 29 pages long and revisit matters which, as the Tribunal observed, were not relevant to the proceeding before it; or, seek relief which the Tribunal cannot grant.
[1] QCAT Act, s 142.
Doing the best I can with the submissions it appears that Susanna and John Pty Ltd seeks leave to appeal on the grounds that it was prevented from properly raising or arguing the issue of unconscionable conduct in the Tribunal proceedings; the Tribunal failed to properly apply s 43; the decision was based on ‘uncreditable evidence and misinterpreted information’; and, two of the panel members and the lessor were committee members of the same organisation, something which ‘… is dubious of conflict of interest and put integrity of the hearing in doubt’.
Unconscionable Conduct
The Reasons specifically address this issue at [18], and [33]–[35]. The evidence of Mr Huang, a director of Susanna and John Pty Ltd, was that he received notice from Trident’s solicitors in November 2009 inviting the tenant to surrender its lease in exchange for a new one. At para [33] and following the learned presiding Member properly referred to case authority for the meaning of the word ‘unconscionable’, as it is used in s 46A of the RSL Act and concluded that there was not, here, any evidence of oppressive or deceptive conduct on the part of the lessor.
[10] The transcript of the proceeding shows that the learned Members of the Tribunal were careful to ensure that Mr and Mrs Huang had every opportunity to present their case. They allowed Mr Liu, a friend of theirs, to appear for them although he was not a lawyer. An interpreter assisted Mrs Huang. There is nothing in the transcript from which it could be inferred that Mr and Mrs Huang were not offered a proper opportunity to advance any submissions or evidence they wished.
[11] Their submissions in support of the application for leave to appeal appear to raise an additional ground: that they had been exploited by the lessor in ways connected with their difficulties with English. In their Reasons the learned Members observed, however, that the lessor had made consistent attempts to placate and assist Mr and Mrs Huang, something which was corroborated by 200 pages of correspondence between the parties after 2007.
[12] The transcript of the hearing occupies 137 pages. It is plain that Mr Liu took an active role in the proceedings and made submissions at the end of them, assisted by the learned presiding Member. Nothing in the submissions for Susanna and John suggest any error in the Tribunal’s conduct of the proceedings, whether in respect of the issue of unconscionable conduct or in any other respect; or, that Mr and Mrs Huang were not allowed a proper opportunity to put whatever case they wished about that issue; or, for the sake of completeness, that any aspect of the proceedings themselves was unconscionable; or, again, for the sake of completeness, that any conduct of the lessor could be described in that way.
Section 43
[13] The transcript, and the Reasons, show that the Tribunal heard from a number of witnesses about changes in the design and structure of the shopping centre after Trident took over, and the question whether or not this had substantially restricted or altered access by customers to Susanna and John Pty Ltd’s shop or substantially altered or restricted the flow of potential customers past it.
[14] In particular, the learned Members refer to the considerable assistance they had, independent of that evidence, from photographs and plans provided by the parties.[2]
[2] Reasons, [36].
[15] The Reasons analyse the evidence presented for both parties and then, at [36]–[40], explain their finding that Susanna and John Pty Ltd had failed to establish anything that would attract a right to compensation under s 43. That explanation includes an analysis of the location and layout of the shop, and nearby premises, and methods of access.
[16] As the Tribunal also observed, there were other possible explanations for a decline in the tenant’s turnover from its business – in particular, its decision not to open on Saturdays and, of course, the global financial crisis which, as the chartered accountant Susanna and John Pty Ltd called was prepared to concede, may both have had an adverse effect.
[17] Nothing in the submissions lodged in support of the application for leave to appeal reveals any error in the way the learned Tribunal Members analysed the evidence presented to them, or assessed its weight, or the process by which they reached their findings.
Conflict of Interest
[18] It is alleged, in Susanna and John Pty Ltd’s submissions, that during the hearing Mr or Mrs Huang observed some ‘uncommonly friendly interaction between the panel Members and the lessor …’. Nothing of that kind can be discerned from a reading of the transcript of the hearing and no attempt has been made, in their submissions, to refer to any particular passages or identifiable events.
[19] Nevertheless it is then said that two of the panel Members are committee members of the Property Council of Australia, an organisation with which the lessor has, it is said, also been actively involved, with its director and staff taking major roles in different committees.
[20] The RSL Act requires that, for the purposes of a dispute of this kind, the Tribunal must be constituted by QCAT Members who are a legally qualified member, a person representing lessors in retail shop leases, and a person representing lessees.[3] This is the only one of QCAT’s many jurisdictions in which the Tribunal is required to be comprised of industry representatives in this way – something that appears to be anomalous and inconsistent with the QCAT Act.
[3] Section 102.
[21] That said, it is hardly surprising that the lessor and lessee representatives on the Tribunal should be members of an organisation like the Property Council or, for that matter, that lessors or lessees who appear before it may not also be Members. Absent anything in the transcript, or the Reasons, which suggests that favouritism, bias or prejudice flowing from any relationship of that kind affected or influenced either the proceedings or the decision, this complaint is groundless.
Uncreditable Evidence and Misinterpreted Information
[22] The submissions for Susanna and John Pty Ltd contain criticisms of aspects of the evidence of five of the witnesses called by the lessor. In each case the criticism concerns an aspect of the witness’ evidence and an allegation of inconsistency, or dishonesty. Nothing in the transcript supports, however, these assertions. The learned Tribunal Members had the opportunity to see and hear each witness give evidence. In his final submissions for Susanna and John Pty Ltd, Mr Liu did point to some of the matters upon which it now seeks to rely but, as the Reasons show at [36] and [37], the learned Members largely made up their own minds by reference to photographs and plans. Even if the allegations are true – and they were not fully tested in cross-examination – it does not appear that the outcome would have been different.
[23] This aspect of the application for leave to appeal involves an attempt to revisit the evidence before the learned Tribunal, and does not raise any question of law.
Leave to Appeal
[24] As argued in its written submissions, Susanna and John Pty Ltd’s grounds of appeal focus upon the Tribunal’s factual findings under-pinning, in particular, its conclusions about the allegations of a right to compensation under s 43, and unconscionable conduct. It is not claimed, as I understand the submissions, that the Tribunal’s analysis of the law which should be applied to those findings was in any way mistaken.
[25] The assertions raised in support of the claim that two of the Members had a conflict of interest could, conceivably, involve a question of law but, as explained earlier, have no apparent factual foundation. The final submission – that the Tribunal relied upon evidence which was, in truth, unreliable – also involves an attack upon findings of fact.
[26] As the High Court has observed there will be some, generally rare, cases in which findings of fact are shown on appeal to be glaringly improbable or contrary to compelling inferences and, in such a case, it may be necessary for the appeal court to intervene, despite the traditional acknowledgement that courts and tribunals at first instance (whose members actually see and hear the witnesses) have the advantage.[4]
[4] Fox v Percy (2003) 214 CLR 118.
[27] Nothing in the submissions for Susanna and John Pty Ltd is persuasive, however, that a serious error of that kind has occurred here. Again, the learned Tribunal Members’ Reasons show that, on the s 43 question, they largely reached their conclusion in reliance upon evidence independent of the witnesses called by each party – that is, photographs and plans. There is no apparent basis for criticism of that course of action, or their finding in reliance upon it.
[28] It follows that nothing in the submissions for the applicant suggests that the Tribunal’s decision involves an error or law. For the sake of completeness, it can also be said that nothing in the transcript suggests that Mr and Mrs Huang, and their representative Mr Liu, were not afforded procedural fairness; or, that any other error or injustice is apparent. For these reasons, leave to appeal should be refused.
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