Wilson v LP and MJ Pty Ltd - [2019] QCATA 82

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wilson & Anor v LP & MJ Pty Ltd [2019] QCATA 82

PARTIES:

ALAN GORDON WILSON AS TRUSTEE UNDER INSTRUMENT 71417844

(first appellant)

PAMELA HELEN CASWELL AS TRUSTEE UNDER INSTRUMENT 71417844
(second appellant)

v

LP & MJ PTY LTD

(respondent)

APPLICATION NO/S:

APL187-18

ORIGINATING APPLICATION NO/S:

MCDO448-18 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

10 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The order made 25 May 2018 dismissing the appellant’s application to strike out proceedings set aside.

4.   Minor Civil Dispute – minor debt application 448-18 dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where parties to a retail shop lease fell into dispute – where the tenant commenced minor civil dispute-minor debt proceedings in the Tribunal to recover money – where the respondent lessors filed an application to strike out the claim – where the application to strike out dismissed – where the lessors filed an application for leave to appeal against the dismissal of the strike out application – where parties had not undertaken requisite mediation prior to commencement of the minor debt application – whether there was jurisdiction in the Tribunal to hear the minor debt application

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, schedule 2 definitions
Retail Shop Leases Act 1994 (Qld) s 63, s 64, s 103

Burinpipal Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100
Pickering v McArthur [2005] QCA 294

REPRESENTATION:

Appellants:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

On about 31 July 2017 the parties entered into an agreement to lease cafe premises located at the Redlands Business Park complex.
The parties signed a lease on 27 September 2017. There were immediate difficulties that arose with respect to the conduct of the business and whether or not a restaurant business could also be conducted from the leased premises.
The next day on 28 September 2017 the respondent corporate tenant advised the appellant lessors that the tenant terminated the lease because of misleading and deceptive conduct and misrepresentations on the part of agents acting for the lessor.
The respondent commenced proceedings in the Tribunal by way of application for minor civil dispute – minor debt on 27 March 2018 claiming the amount of $24,801.79 plus interest and costs.
On 4 May 2018 the appellant lessors filed an application to strike out the respondent’s claim pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) on the basis that it was frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
The appellants claimed the Tribunal had no jurisdiction to hear the matter as a minor…

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.

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Details

Case: [2019] QCATA 82
Decision Date: 10 June 2019

CaseChat Overview and Summary

In the case of Wilson v LP and MJ Pty Ltd, the tenant, Wilson, had commenced proceedings in the Civil and Administrative Tribunal (Tribunal) to recover a minor debt under the Retail Shop Leases Act 2003 (NSW). The respondent, LP and MJ Pty Ltd, filed an application to strike out the claim which was dismissed. The lessors then sought leave to appeal against the dismissal of the strike-out application, arguing that the Tribunal lacked jurisdiction because the parties had not engaged in the requisite mediation prior to the proceedings. The central issue before the court was whether the Tribunal had jurisdiction to hear the minor debt application when the parties had not completed the required mediation process.

The court found that the failure to undertake the mandatory mediation prior to the minor debt application was a jurisdictional error. The legislation explicitly requires mediation before initiating minor debt proceedings in the Tribunal. Since this condition was not met, the court concluded that the Tribunal did not have the requisite jurisdiction to hear the case. Consequently, the appeal was allowed, and the order dismissing the application to strike out was set aside. The minor debt application was also dismissed.

In light of the findings, the court granted the leave to appeal and allowed the appeal. The order dismissing the application to strike out was set aside, and the minor debt application was dismissed. The court’s decision underscores the importance of adhering to the mandatory mediation requirement before initiating minor debt proceedings in the Tribunal.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The order made 25 May 2018 dismissing the appellant’s application to strike out proceedings set aside.

4. Minor Civil Dispute – minor debt application 448-18 dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wilson & Anor v LP & MJ Pty Ltd [2019] QCATA 82
PARTIES:	ALAN GORDON WILSON AS TRUSTEE UNDER INSTRUMENT 71417844 (first appellant) PAMELA HELEN CASWELL AS TRUSTEE UNDER INSTRUMENT 71417844 (second appellant)
v
LP & MJ PTY LTD (respondent)
APPLICATION NO/S:	APL187-18
ORIGINATING APPLICATION NO/S:	MCDO448-18 Brisbane
MATTER TYPE:	Appeals
DELIVERED ON:	10 June 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. The order made 25 May 2018 dismissing the appellant’s application to strike out proceedings set aside. 4. Minor Civil Dispute – minor debt application 448-18 dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where parties to a retail shop lease fell into dispute – where the tenant commenced minor civil dispute-minor debt proceedings in the Tribunal to recover money – where the respondent lessors filed an application to strike out the claim – where the application to strike out dismissed – where the lessors filed an application for leave to appeal against the dismissal of the strike out application – where parties had not undertaken requisite mediation prior to commencement of the minor debt application – whether there was jurisdiction in the Tribunal to hear the minor debt application Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, schedule 2 definitions Retail Shop Leases Act 1994 (Qld) s 63, s 64, s 103 Burinpipal Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100 Pickering v McArthur [2005] QCA 294
REPRESENTATION:
Appellants:	Self-represented
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).