To v Choi

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.