Zheng v Teki - [2023] QCAT 32

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Zheng v Teki [2023] QCAT 32

PARTIES:

nan zheng

(applicant)

v

elwyn teki

(respondent)

APPLICATION NO/S:

RSL037-21

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

25 January 2023

HEARING DATE:

10 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The notice of dispute filed by Nan Zheng on 27 April 2020 is dismissed because the tribunal has no jurisdiction to hear it.

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – where the leasehold interest under a retail shop lease passed to ASIC on deregistration of the lessee company – where the applicant had no implied retail shop lease – whether the tribunal had jurisdiction to hear and determine the notice of dispute filed by the applicant

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION – where the applicant seeks compensation for disrepair of a part of the premises used as a residence – where the applicant may have an implied residential tenancy agreement – where there was no dispute resolution request as required by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether the tribunal has jurisdiction to hear and determine the matter without the request

Corporations Act 2000 (Cth), s 601AD(2)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 12, s 53, s 416(1), s 419

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B

Mayer v Holmes [2014] QCATA 121

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

This matter concerns commercial and residential premises at 144 Lascelles Street, Brighton, which has come before me as a proceeding under the Retail Shop Leases Act 1994 (Qld) (RSLA).
Mr Zheng originally had five heads of claim. There was a hearing on 10 November 2022 in which hearing I expressed reservations about whether Mr Zheng could bring the claims in the circumstances of the case, and at the end of the hearing I gave both parties an opportunity to make submissions about this before I reached my final decision.
In his submissions Mr Zheng has withdrawn all claims except claim 3 and 4.
Claim 3 is for compensation of $9,306 relying on alleged disrepair of a part of the premises that was used residentially by Mr Zheng and his family.
Claim 4 is for compensation of $7,579 arising from alleged substantial business disruption because of a ‘for sale’ sign erected by or on behalf of the lessor.
A preliminary issue arises in both these claims. In the RSLA jurisdiction there is an issue whether Mr Zheng had a right to occupy the premises, and whether the premises were a retail shop as defined in the RSLA bearing in mind that a substantial part of the premises was used for residential purposes only. My conclusion is that Mr Zheng has no right to occupy the premises sufficient to bring him within the RSLA, so the tribunal has no jurisdiction to hear…

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: [2023] QCAT 32
Decision Date

CaseChat Overview and Summary

The decision in Zheng v Teki involved a dispute between Nan Zheng, the applicant, and Elwyn Teki, the respondent. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT) concerning a retail shop lease at 144 Lascelles Street, Brighton. The primary issues were whether Nan Zheng had a right to occupy the premises under the Retail Shop Leases Act 1994 (Qld) and whether the tribunal had jurisdiction to hear and determine the claims made by Nan Zheng. Initially, Nan Zheng had five heads of claim, but during the proceedings, he withdrew all but two claims. The remaining claims were for compensation for alleged disrepair of the residential part of the premises and for business disruption due to a ‘for sale’ sign.

The tribunal determined that Nan Zheng had no right to occupy the premises under a retail shop lease as defined by the RSLA, as a substantial part of the premises was used for residential purposes. This conclusion rendered the tribunal without jurisdiction to hear and determine the claims under the RSLA. The tribunal further considered whether Nan Zheng had an implied residential tenancy agreement for the residential part of the premises under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). While it was arguable that such an agreement existed, the tribunal found that it lacked jurisdiction to hear the claim because Nan Zheng had not made a dispute resolution request as required by that Act.

Ultimately, the tribunal dismissed the notice of dispute filed by Nan Zheng because it had no jurisdiction to hear the matter. The tribunal found that Nan Zheng did not have a right to occupy the premises as a tenant under either the RSLA or the RTRAA. The tribunal's final orders were that the notice of dispute filed by Nan Zheng on 27 April 2020 is dismissed.

Orders