Tabaro v Ratakhin - [2023] QCATA 143

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Tabaro v Ratakhin [2023] QCATA 143

PARTIES:

SONIA TABARO

(applicant)

v

SERGEY RATAKHIN

(respondent)

APPLICATION NO/S:

APL326-23

ORIGINATING APPLICATION NO/S:

RSL023-23

MATTER TYPE:

Appeals

DECISION MADE:

31 October 2023

REASONS DELIVERED ON:

8 November 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application to stay a decision is granted. Unless otherwise ordered, the decision made on 12 September 2023 in RSL023-23 is stayed pending the outcome of the application for leave to appeal or appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought of a decision made in the retail lease jurisdiction – where jurisdiction disputed –where stay granted

LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS - where dispute as to whether the lease was a retail shop lease – whether there was jurisdiction to make orders

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143, s 145, Schedule 3
Retail Shop Leases Act 1994 (Qld) s 5A, s 5B, s 5C, s 5D, s 83, s 103, Schedule
Retail Shop Leases Regulation 1994 (Qld) r 2, Schedule

Camden v McKenzie [2007] QCA 136

Day v Humphrey [2017] QCA 104
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Penfold v Firkin & Balvius [2023] QCATA 11
Ratakhin v Tubaro & Anor [2023] QCAT 256

Simonova v Department of Housing and Public Works [2018] QCA 60

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

What is this application about?

Ms Tubaro[1] owns a commercial property at Albion, Queensland from which “Fix My Laptop” (the business) traded. Mr Ratakhin purchased the business from its former proprietors on 16 December 2022 and became Ms Tubaro’s lessee by assignment from that time until he was locked out on 22 January 2023 for non-payment of rent.
[1]There appears to be a misspelling of her name, that carried through to all matters before the tribunal.
By a decision made 12 September 2023 the Tribunal ordered that Ms Tubaro pay Mr Ratakhin $5,000.00 as compensation for business disturbance (namely, failure to remove an abandoned vehicle from the shared carpark and failing to replace broken down air-conditioning equipment that was not capable of repair). The Tribunal also ordered that Ms Tubaro refund Mr Ratakhin’s bond held in the sum of $2,600.00 (the decision).
Ms Tubaro has applied to appeal the decision[2] and to stay it pending the outcome of the appeal. She says, among other things, that the Tribunal did not have jurisdiction to decide the dispute because the dispute is not a retail tenancy dispute.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143.

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.

Continue reading Tabaro v Ratakhin

Details

AGLC: Tabaro v Ratakhin [2023] QCATA 143
Case: [2023] QCATA 143
Decision Date: 31 October 2023

CaseChat Overview and Summary

In the case of Tabaro v Ratakhin, the applicant, Mr. Tabaro, sought a stay of a decision rendered in a retail lease matter, which was initially decided by the Queensland Civil and Administrative Tribunal (QCAT). The respondent, Mr. Ratakhin, was the party against whom the decision was made. The dispute centred around the jurisdiction of QCAT to make orders concerning a retail lease and whether the lease in question was, in fact, a retail shop lease. The matter was heard in the Queensland Court of Appeal, where the primary issue was whether the stay of the QCAT decision should be granted.

The central legal issue before the court was whether the QCAT had the jurisdiction to make orders in a retail lease matter, particularly in light of the dispute over whether the lease was indeed a retail shop lease. Additionally, the court had to consider the general principles that govern the grant or refusal of a stay of proceedings. This included evaluating the merits of the appeal, the likelihood of success on appeal, and the potential prejudice that could result from either granting or refusing the stay.

The court examined the principles that guide the grant or refusal of a stay of proceedings and found that the application to stay the QCAT decision was well-founded. The court recognised that if the lease was not a retail shop lease, QCAT would lack jurisdiction to make orders in the matter, and thus, it was appropriate to stay the proceedings. The court also considered the merits of the appeal, the likelihood of success, and the potential prejudice that could result from either granting or refusing the stay. It concluded that the applicant had demonstrated a reasonable prospect of success on appeal and that the balance of convenience favoured granting the stay. Consequently, the court granted the stay of the QCAT decision pending the outcome of the appeal.

Accordingly, the court ordered that the decision made by QCAT on 12 September 2023 in the matter of RSL023-23 be stayed, unless otherwise ordered, pending the outcome of the application for leave to appeal or the appeal itself. This decision ensures that the jurisdictional issue is resolved before any further proceedings in the matter.

Orders

Orders of the court

1. The application to stay a decision is granted. Unless otherwise ordered, the decision made on 12 September 2023 in RSL023-23 is stayed pending the outcome of the application for leave to appeal or appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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