Merlin Maritime International v Lyndon & Kelly Morrow ATF's Morrow Family Trust [2025] QCAT 107

Retail Shop Leases Act 1994 (Qld) s 5A, s 5B, s 5C, s 5D, s 103

Retail Shop Leases and Other Commercial Leases (COVID-19) Emergency Responses) Regulation 2020 (Qld) s 21, 42, Schedule 1

Retail Shop Leases Regulation 2016 (Qld) s 8, Schedule

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

• [1] By application for an order to resolve a retail tenancy dispute filed 31 January 2022 the applicant, Merlin Maritime International, seeks compensation from the respondents, Lyndon & Kelly Morrow ATF's Morrow Family Trust[1] who are the lessor/landlord, due to a dispute about access to carparks and renewal of the lease.
• [2] The respondents, Lyndon & Kelly Morrow ATF's Morrow Family Trust filed an application for miscellaneous matters (strike out or dismissal) in April 2022 seeking the application be dismissed. One of the basis raised by the respondents was that the tribunal does not have the jurisdiction to hear this matter as it is a commercial tenancy lease, not a retail lease and it is not an affected lease under COVID legislation.

• [3] The tribunal is a creature of statute and has no inherent jurisdiction so must find its power to determine disputes either in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') or an enabling Act.[2]
• [4] The enabling Act is the Retail Shop Leases Act 1994 (Qld) ('RSLA'). The RSLA and the Retail Shop Leases Regulation 2016 (Qld) ('the Regulation') provide specific pathways to resolve certain disputes between certain tenants and landlords. Not all disputes between commercial tenants and landlords may be resolved by the tribunal.
• [5] Under the RSLA, the Tribunal has jurisdiction to hear 'retail tenancy disputes'.[3]
• [6] The phrase 'retail tenancy dispute' is defined in the RSLA to mean:

any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.[4]

• [7] 'Retail shop lease' is defined in the RSLA to mean "a lease of a retail shop".[5] A number of exceptions as to what constitutes a 'retail shop lease' are contained in subsections 5A(2) and (3), however, none of which apply in this matter.
• [8] 'Retail shop' is defined in the RSLA to mean premises that are:

(a) situated in a retail shopping centre; or

(b) used wholly or predominantly for the carrying on of a retail business.[6]

• [9] 'Retail business' is defined in the RSLA to mean "a business prescribed by regulation as a retail business."[7]
• [10] Section 8 of the Regulation provides:

(1) For section 5C of the Act, a business is a retail business if -

(a) it is a business mentioned in schedule 1; or

(b) its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in schedule 1.

(2) The wholesale sale of goods is not a retail business.

• [11] In the present case, the primary question is whether this is a retail shop lease, in that was the premise used for a 'retail shop'?
• [12] The premise was not situated in a retail shopping centre. While the applicant has stated that they are situated in a centre surrounded by retail and small businesses with a large retail shopping centre nearby, this is not sufficient evidence to demonstrate that it was a retail shopping centre and simply being surrounded by retail businesses does not meet the definition as set out in s 5D of the RSLA.
• [13] Therefore, in order for this to be a retail tenancy dispute, the applicant needs to demonstrate that the premise is used wholly or predominantly for the carrying on of a retail business.

• [14] A retail business means a business prescribed by the Regulation to be a retail business.
• [15] The respondents state that the applicant is not a retail business as the permitted use is a training centre.
• [16] The applicant states that the purpose of Merlin Maritime International is to run a teaching training centre and facility and they believe their business meets the definition of a retail business prescribed by the Regulation.
• [17] There are two lease documents provided by the applicant. Both lease documents are on a commercial tenancy agreement which states at the top of the lease in bold "Do not use this document ... for premises covered by the Retail Shop Lease Act 1999 (Qld)".
• [18] The first is a lease from 27 June 2020 to 27 September 2021 and the permitted use section is empty. The second lease is from 28 September 2021 to 27 September 2024. The permitted use is as a "training school".
• [19] In support of their position that their business is a retail business, the applicant states that they sell small boat licences, radio licences, first aid courses, maritime courses and merchandise for personal/business consumption direct to the public.[8]
• [20] The difficulty for the applicant is that the provision of training courses or the sale of maritime qualifications, boat licences or first aid certificates are not business, goods or services under Schedule 1 of the Regulation.
• [21] While the merchandise the applicant sells, which is understood to be books and maps, may fall under the goods in Schedule 1 of the Regulation, in order for the sale of these items to constitute a retail business, they need to be the whole or predominate activity of the business.[9]
• [22] These sales are however only ancillary use or supplementary income, and the applicant has been clear that their business is used predominantly for carrying on a training centre,[10] which is not a retail business.
• [23] As the premises is not used wholly or predominantly for the carrying on of a retail business and is not situated in a retail shopping centre; the lease in this matter is not a 'retail shop lease'

• [24] The applicant also asserts that the tribunal has jurisdiction to deal with the dispute under the Retail Shop Leases and Other Commercial Leases (COVID-19) Emergency Responses) Regulation 2020 (Qld) ('COVID Regulation") that was introduced by the COVID-19 Emergency Response Act 2020 (Qld) ('the COVID Act').[11]
• [25] The COVID Regulation confers the tribunal with jurisdiction to deal with specific eligible lease disputes[12] arising over a specific period of time from 29 March 2020 to 31 December 2020.[13] The regulation was repealed on 1 May 2024.
• [26] The applicant states that they signed the lease during the COVID period and have been impacted by lockdowns so they should be entitled to protection under the Covid Regulation. The applicant's agreed to the lease in June 2020 and had a 6-month rent-free period, meaning they were not required to start paying rent until January 2021.[14] From April 2021 until January 2022, the director of Merlin Maritime International, who was also the head trainer, was unable to return to Queensland from New Zealand and was in lock down for most of 2021 due to the COVID mandated international lockdown. As such, their business was directly affected and impacted by the mandated COVID-19 lockdown issues from March 2021 through to January 2022.[15]
• [27] The applicant however failed to provide any information as to their employee numbers to demonstrate that they are a small business or a SME or to provide any evidence of their eligibility for the job keeper scheme, as is required to meet the criteria of an affected lease.
• [28] The respondents state that the tribunal does not have jurisdiction to hear and decide the dispute under the COVID Regulation as this is not an 'eligible lease dispute'.[16]
• [29] The difficulty for the applicant in their reliance on this legislation is that not only is the legislation revoked, but the issues in dispute do not arise during the required response or extension period.
• [30] The applicant states the main dispute with the landlord about the carpark started in early 2021 (approximately March 2021) and the dispute in relation to the extension of the lease commenced in September 2021. Both are outside the period the COVID Regulation covers, which ended on 31 December 2020.
• [31] I am satisfied that the dispute the subject of these proceedings did not fall within the response period or the extended period and therefore there is no jurisdiction under the COVID Regulation or COVID Act to determine the applicant's dispute.
• [32] As this is not a retail shop lease and there is no jurisdiction for the tribunal to determine this dispute under any COVID legislation, the proceeding is misguided and lacking in substance and has failed to invoke this tribunal's jurisdiction.
• [33] Where a proceeding is frivolous, vexatious, or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.[17] Because the tribunal does not have jurisdiction, the application is misconceived and lacking in substance. Accordingly, the only appropriate order in this matter is to order that the Notice of Dispute is dismissed for want of jurisdiction, pursuant to s 47 of the QCAT Act.

• [34] The Notice of Dispute filed 31 January 2022 is dismissed for want of jurisdiction.

[1] The application was initially filed naming "Collagen Clinic" as the respondent. The name of the respondent was corrected to the correct legal name of the lessor during the proceedings.

[8] Applicant's submissions dated 12 April 2023, para 14.

[10] Statement of Kim Donnell dated 4 August 2022, para 3.

[13] Ibid, schedule 1 (response period means 29 March 2020 to 30 September 2020) and Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Amendment Regulation 2020 (Qld) s 13 (extension period means 1 October 2020 to 31 December 2020).

[14] Statement of Kim Donnell dated 10 June 2022, para 2.

[15] Statement of Kim Donnell dated 4 August 2022 para 4.