To v Choi - [2011] QSC 2

SUPREME COURT OF QUEENSLAND

CITATION:

To v Choi [2011] QSC 2

PARTIES:

MEE WAH TO
(plaintiff/respondent)

v

EUGENE CHOI
(defendant/applicant)

FILE NO/S:

BS 10123 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 January 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 and 3 December 2010

JUDGE:

Fryberg J

ORDER:

1. The claim (save the relief sought in sub-paragraphs 1(a), (c), (d) and (g) of the Claim filed 21 September 2010) be transferred to the Queensland Civil and Administrative Tribunal pursuant to s 53(1) of the Queensland Civil and Administrative Tribunal Act 2009.

2.   The Plaintiff is taken to have complied with the      requirements under the Queensland Civil and      Administrative Tribunal Act 2009, the Retail and Shop      Leases Act 1994 and the Regulations and Rules made      thereunder for starting a proceeding before the      Queensland Civil and Administrative Tribunal.

3.   Each party have the liberty to apply to the Supreme      Court on two clear days notice in writing to the other      party.

4.   The Plaintiff is to pay the Defendant’s costs to be      assessed.

5.   The order made in paragraph 4 hereof be stayed until      final orders are made by the Queensland Civil and      Administrative Tribunal in Case No. RSL 047-10.

CATCHWORDS:

Landlord and tenant – Retail and commercial tenancies legislation – Definitions – Retail shop lease or lease – “Lease” includes an agreement for lease

Landlord and tenant – Retail and commercial tenancies legislation – Jurisdiction, powers and appeals of courts and tribunals – Jurisdiction generally – Exclusions – Claim for de facto rectification – Exclusivity of jurisdiction of tribunals – Whether jurisdiction of courts ousted – Identification of dispute – Importance of prayer for relief – Mediator’s jurisdiction – “issue … before a court” – Time for assessment of jurisdiction

District Court of Queensland Act 1967 (Qld), s 68
Land Title Act 1994 (Qld), s 184, s 185, s 187
Property Law Act 1974 (Qld) ), s 124
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52, s 53
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 44
Retail Shop Leases Act 1994 (Qld), s 55, s 63, s 83, s 94, s 97, s 103
Uniform Civil Procedure Rules, r 144, r 16

Banque Nationale de Paris v Cardil Pty Ltd [1995] 1 VR 229, distinguished
CAC Pty Ltd v Diamond Hill International Pty Ltd (1996) 7 BPR 14, cited
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, cited
Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47, cited
Moweno Pty Limited v Stratis Promotions Pty Ltd [2002] NSWSC 1151, cited
South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1, cited

COUNSEL:

P G Bickford for the plaintiff/respondent
J S Wright (sol) for the defendant/applicant

SOLICITORS:

Gerard Batt Lawyers for the plaintiff/respondent
Colwell Wright for the…

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 To v Choi

Details

AGLC: To v Choi [2011] QSC 2
Case: [2011] QSC 2
Decision Date: 24 January 2011

CaseChat Overview and Summary

To commenced proceedings against Choi in the Supreme Court of Queensland seeking relief under the Retail and Shop Leases Act 1994, as well as for de facto rectification and other equitable remedies. To alleged that Choi had breached the lease of a retail shop and sought relief under the Act, as well as seeking an order for de facto rectification to correct the lease. Choi argued that the Supreme Court lacked jurisdiction to hear the claim for de facto rectification and that the matter should be transferred to the Queensland Civil and Administrative Tribunal (QCAT). The central legal issues were whether the Supreme Court had jurisdiction to hear claims for de facto rectification and, if not, whether the matter should be transferred to QCAT.

The Court considered the definition of “lease” under the Retail and Shop Leases Act 1994 and noted that it includes an agreement for lease. The Court held that the relief sought by To for de facto rectification was not available under the Act, but rather was an equitable remedy. The Court further held that the Supreme Court’s jurisdiction to hear claims for de facto rectification was ousted by the exclusivity of QCAT’s jurisdiction over retail and commercial tenancies. The Court found that the dispute was one that fell within the jurisdiction of QCAT and that the claim should be transferred to QCAT, save for the relief sought in sub-paragraphs 1(a), (c), (d) and (g) of the claim. The Court held that the claim should be transferred to QCAT as it was a dispute within the exclusive jurisdiction of QCAT.

The Court made orders transferring the claim to QCAT, save for the relief sought in sub-paragraphs 1(a), (c), (d) and (g) of the claim. The Court also ordered that To be taken to have complied with the requirements for starting a proceeding before QCAT and ordered each party to have the liberty to apply to the Supreme Court on two clear days notice in writing to the other party. The Court further ordered that To pay Choi’s costs to be assessed and that the order be stayed until final orders are made by QCAT.

Orders

Orders of the court

1. The claim (save the relief sought in sub-paragraphs 1(a), (c), (d) and (g) of the Claim filed 21 September 2010) be transferred to the Queensland Civil and Administrative Tribunal pursuant to s 53(1) of the Queensland Civil and Administrative Tribunal Act 2009.

2. The Plaintiff is taken to have complied with the requirements under the Queensland Civil and Administrative Tribunal Act 2009, the Retail and Shop Leases Act 1994 and the Regulations and Rules made thereunder for starting a proceeding before the Queensland Civil and Administrative Tribunal.

3. Each party have the liberty to apply to the Supreme Court on two clear days notice in writing to the other party.

4. The Plaintiff is to pay the Defendant’s costs to be assessed.

5. The order made in paragraph 4 hereof be stayed until final orders are made by the Queensland Civil and Administrative Tribunal in Case No. RSL 047-10.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	To v Choi [2011] QSC 2
PARTIES:	MEE WAH TO (plaintiff/respondent) v EUGENE CHOI (defendant/applicant)
FILE NO/S:	BS 10123 of 2010
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 January 2011
DELIVERED AT:	Brisbane
HEARING DATE:	2 and 3 December 2010
JUDGE:	Fryberg J
ORDER:	1. The claim (save the relief sought in sub-paragraphs 1(a), (c), (d) and (g) of the Claim filed 21 September 2010) be transferred to the Queensland Civil and Administrative Tribunal pursuant to s 53(1) of the Queensland Civil and Administrative Tribunal Act 2009. 2. The Plaintiff is taken to have complied with the requirements under the Queensland Civil and Administrative Tribunal Act 2009, the Retail and Shop Leases Act 1994 and the Regulations and Rules made thereunder for starting a proceeding before the Queensland Civil and Administrative Tribunal. 3. Each party have the liberty to apply to the Supreme Court on two clear days notice in writing to the other party. 4. The Plaintiff is to pay the Defendant’s costs to be assessed. 5. The order made in paragraph 4 hereof be stayed until final orders are made by the Queensland Civil and Administrative Tribunal in Case No. RSL 047-10.
CATCHWORDS:	Landlord and tenant – Retail and commercial tenancies legislation – Definitions – Retail shop lease or lease – “Lease” includes an agreement for lease Landlord and tenant – Retail and commercial tenancies legislation – Jurisdiction, powers and appeals of courts and tribunals – Jurisdiction generally – Exclusions – Claim for de facto rectification – Exclusivity of jurisdiction of tribunals – Whether jurisdiction of courts ousted – Identification of dispute – Importance of prayer for relief – Mediator’s jurisdiction – “issue … before a court” – Time for assessment of jurisdiction District Court of Queensland Act 1967 (Qld), s 68 Land Title Act 1994 (Qld), s 184, s 185, s 187 Property Law Act 1974 (Qld) ), s 124 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52, s 53 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 44 Retail Shop Leases Act 1994 (Qld), s 55, s 63, s 83, s 94, s 97, s 103 Uniform Civil Procedure Rules, r 144, r 16 Banque Nationale de Paris v Cardil Pty Ltd [1995] 1 VR 229, distinguished CAC Pty Ltd v Diamond Hill International Pty Ltd (1996) 7 BPR 14, cited Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, cited Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47, cited Moweno Pty Limited v Stratis Promotions Pty Ltd [2002] NSWSC 1151, cited South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1, cited
COUNSEL:	P G Bickford for the plaintiff/respondent J S Wright (sol) for the defendant/applicant
SOLICITORS:	Gerard Batt Lawyers for the plaintiff/respondent Colwell Wright for the…