Rustic Investments Pty Ltd ATF the Curtis Family Trust t/as Subway Airlie Beach v ABH Hotel Pty Ltd ATF ABH Hotel Trust [2025] QCAT 145

Insurance Contracts Act 1984 (Cth)

Property Law Act 1974 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Retail Shop Leases Act 1994 (Qld)

Retail Shop Leases Amendment Act 2016 (Qld)

Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Baxter & Fifties Food Pty Ltd atf the Ninja Bear Trust t/as Subway Wynnum Central v Subway Pty Ltd & Anor [2015] QCAT 83

Beswick v Beswick [1967] UKHL 2; [1968] AC 58

Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242

Dundral Pty Ltd v Orton [2013] QCAT 604

Felstead v Bundaberg Homes Pty Ltd [2016] QCAT 294

Fuller's Theatre and Vaudeville Co Ltd v Role [1923] AC 435;

Fumi Sushi Pty Ltd v Perpetual Nominees Ltd [2005] RSLT 18

Hobart International Airport Pty Ltd and Anor v Clarence City Council and Anor [2022] HCA 5; (2022) 276 CLR 519

Legal Services Commissioner v Leneham [2017] QCAT 96

Norman v Australian Red Cross Society (1998) 14 VAR 243

Osman v Juniper Property Holdings No 15 Pty Ltd [2008] QRSLT 16

PW& Co v Milton Gate / Investments Ltd [2003] EWHC 1994; [2004] 2 WLR 443

Rye v Rye [1962] AC 496

South of England Dairies Ltd v Baker [1906] UKLawRpCh 55; [1906] 2 Ch 631

Tweddle v Atkinson [1861] EngR 690; (1861) 1 B&S 393

D A Skennar of Counsel instructed by Morgan Conley Solicitors

• [1] The substantive proceeding for compensation under section 43 of the Retail Shop Leases Act 1994 (Qld) (RSL Act) was commenced in the name of Subway Airlie Beach, as applicant, against Airlie Beach Hotel Pty Ltd (Airlie Beach Hotel). Directions were made on 8 July 2024 correcting the name of the Applicant to Rustic Investments Australia Pty Ltd ACN 155 571 449 (Rustic) as Trustee for the Curtis Family Trust ABN 57 887 062 051 t/a Subway Airlie Beach and correcting the name of Airlie Beach Hotel Pty Ltd to ABH Hotel Pty Ltd ACN 622 296 011 as trustee for ABH Hotel Trust ABN 91 494 691 421.
• [2] ABH Hotel has filed an Application on 6 December 2023 seeking orders that the proceeding by Rustic be dismissed or struck out, pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
• [3] The Application is made on the basis that the substantive application is either misconceived or lacking in substance in that:

(a) Rustic does not have standing to seek compensation as it is not a "lessee" as defined by the relevant version of the RSL Act and is therefore not a "lessee" for the purposes of section 43 of the RSL Act.

(b) Rustic is not named as a "lessee", the actual lessee being Terry Curtis.

(c) The loss sought by Rustic does not fall within the ambit of section 43 of the RSL Act.

• [4] On 16 February 2024 Rustic filed the following separate applications:

(a) An application for Subway Realty Pty Ltd (Subway Realty) to be joined as a party to the proceeding; and

(b) An application to amend its Statement of Facts Issues and Contentions (SFICS) pursuant to section 64 of the QCAT Act.

• [5] ABH Hotel opposes the joinder application filed by Rustic. In the event the Tribunal dismisses ABH's application for summary dismissal, and orders the joinder of Subway Realty, the Respondent advises that it does not oppose the amendment of the SFICS.

• [6] On 29 May 2001, Airlie Beach Hotel and Subway Realty entered into a Lease[1] (Head Lease) for the premises at 1/297 Shute Harbour Road, Airlie Beach, QLD, 4802 (Premises). The Head Lease was amended on several occasions to extend the term to 2025.
• [7] By a contract[2] dated 17 April 2012 Rustic purchased the business Subway Airlie Beach operating at the Premises from the Lockwood Family Trust for the sum of $615,000. The sale was completed on 28 August 2012.
• [8] On 29 August 2012:

(a) Subway Realty entered into a sublease[3] with Terry Curtis (the Sublease);

(b) Subway Systems Australia Pty Ltd (Subway Systems) entered into a franchise agreement[4] with Mr Curtis.

• [9] On 21 August 2019 the property the subject of the Head lease was transferred from Airlie Beach Hotel to ABH Hotel.[5]
• [10] On 13 April 2023 the Premises were damaged as a result of a water leak, the leak being attributed to the air conditioning at the Premises.
• [11] On 14 April 2023, ABH Hotel requested a copy of the maintenance schedule for the air conditioning from Subway Realty. In response, Subway Realty indicated that Rustic's position was that the air conditioning was ABH Hotel's responsibility.
• [12] Between 19 April 2023 and 24 April 2023 ABH Hotel issued breach notices to Subway Realty.'
• [13] On 12 May 2023 ABH Hotel terminated the Head lease.

• [14] Rustic was represented by Mr Mason, its solicitor, at the hearing. Mr Mason in his oral submissions appeared to focus on the joinder application as being an answer to the jurisdictional issues raised by ABH Hotel that Rustic has no standing as lessee, and consequently, has suffered no loss.
• [15] The joinder application was brought by Subway Realty to have itself joined in the proceeding. Mr Mason acted as agent for Subway Realty in the application.
• [16] Rustic accepts that the relevant version of the RSL Act was the version in force as at the year 2000 being prior to the commencement of the head lease.
• [17] Subway Realty submits it should be joined for the following reasons:

(a) Due to its position and role in the broader context of the dispute Subway Realty should have the benefit of a decision in the proceedings;

(b) Subway Realty's interests (financial and proprietary) will be affected by the outcome of the proceeding.

• [18] Subway Realty submits it is and has always been, the lessee under the Head Lease. ABH Hotel is the lessor under the Head Lease and has been since 21 August 2019.
• [19] On 29 August 2012, Mr Terry Curtis, a director of the Rustic, entered into a sublease with Subway Realty under the terms of the Head Lease, as well as a franchise agreement with Subway Systems Australia Pty Ltd, a related entity to Subway Realty to operate a Subway Restaurant from the Premises.
• [20] Rustic claims:

(a) that its interests have merged with the Lessee's interests and thus the parties share the same claim against the ABH Hotel, and

(b) that its claim for compensation is derived from the Lessee's claim.

• [21] It is submitted that Subway Realty remains actively involved in the dispute the subject of this proceeding.

(a) Subway Realty was in direct communication with the Rustic and ABH Hotel regarding the damage to the Premises that occurred on 12 April 2023 that was the catalyst for the dispute ("the Damage Event"), which was summarised in the Applicant's statement of issues, facts and contentions dated 3 January 2024;

(b) Subway Realty was issued five breach notices by the ABH Hotel in respect of the Damage Event; and

(c) Subway Realty issued responses to the ABH Hotel contesting the breach notices issued to it in respect of the Damage Event.

• [22] Ultimately, the Head Lessor purported to terminate the Head Lease on the basis of the alleged breaches.
• [23] Subway Realty has disputed and continues to dispute both the validity and content of the breach notices issued to it under the Head Lease. It also disputes the ABH Hotel's termination of the Head Lease and takes the position that it was the ABH Hotel who breached the terms of the Head Lease, and that the Damage Event was ultimately a result of the ABH Hotel's breach.
• [24] As lessee, Subway Realty has standing to bring a claim for compensation against the Lessor pursuant to sections 43 and 83 of the RSL Act. It has a financial interest in the proceeding, as it would be entitled to compensation under section 43 of the RSL Act if it is found that ABH Hotel breached the terms of the Head Lease, thereby causing Subway Realty loss.
• [25] It is submitted by Subway Realty that the actions (and/or inaction) of ABH Hotel caused the Subway Realty to be in breach of terms of the Head Lease, which has caused Rustic to effectively relinquish its Subway Restaurant. This in turn has directly caused losses to be incurred by Subway Realty and its related entity Subway Systems Australia Pty Ltd, which includes the loss of fees generated from the Subway business of the Rustic via the franchise agreement. Subway Realty and its related entity Subway Systems Australia Pty Ltd will also incur costs they otherwise would not have incurred if Rustic is required to establish a Subway Restaurant at another location as a result of ABH Hotel s breach of the Head Lease.
• [26] In addition to the direct pecuniary losses flowing from ABH Hotel's breach, the closure of a Subway Restaurant also has the potential to negatively impact the Subway brand in the region. Subway Realty and its affiliate in addition to the direct pecuniary losses flowing from ABH Hotel's breach, the closure of a Subway Restaurant also has the potential to negatively impact the Subway brand in the region. Subway Realty and its affiliate Subway Systems Australia Pty Ltd therefore have an interest in demonstrating that such a closure was not a result of poor performance of one of its franchise restaurants, but rather due to the breach of ABH Hotel.
• [27] Subway Realty also submits that the dispute in the proceeding revolves principally around the construction of certain terms of the Head Lease which ABH Hotel relied upon when issuing the breach notices in respect of the Damage Event. Subway Realty submits that the nature of the dispute in this proceeding is such that a finding of breach under the Head Lease is binary - namely one party to the Head Lease (either the lessor or lessee) will be found to have been in breach of the Head Lease (and be responsible for the Damage Event). Therefore, if the Proceeding is heard and determined as between the Rustic and ABH Hotel without joining Subway Realty and it is found by QCAT that ABH Hotel was not in breach of the Head Lease, the corollary of that decision is that Subway Realty would be found to have breached the Head Lease, and would therefore effectively be bound by a decision of QCAT which may have negative impacts for Subway Realty.
• [28] It is therefore submitted that is appropriate that Subway Realty be joined as an applicant to the proceeding pursuant to section 42 of the QCAT Act, as in summary:

(a) the dispute the subject of the proceeding arises pursuant to the terms of the Head Lease, under which Subway Realty is lessee, and also head-lessee of a sublease with the Rustic under the terms of the Head Lease;

(b) the construction of the terms of the Head Lease are ultimately in issue in the proceeding, and either the ABH Hotel or Subway Realty will be found to have been in breach of the Head Lease, and Subway Realty will therefore be bound by or have the benefit of a decision of QCAT in the determination of the proceeding.

(c) Subway Realty and its affiliated entity Subway Systems Australia Pty Ltd have a proprietary and financial interest that will be affected by the outcome of the Proceeding.

ABH Hotel Pty Ltd response to the joinder application

(a) There is no contractual relationship between ABH Hotel and Rustic;

(b) The only contractual relationships entered into by Rustic (the Sublease and franchise agreement) are between Subway Realty and Rustic;

(c) The Head lease has been terminated.

• [30] Despite Mr Mason's submission that the joinder application would be an answer to the jurisdictional issue I think it is a case of putting the cart before the horse. If there is no jurisdiction for Rustic to bring the claim the joinder application is otiose.

(a) Compensation pursuant to section 43 of the RSL Act, in particular section 43(1)(a) or, alternatively, sections 43(1)(c), 43(1)(d)(i), 43(1)(d)(ii), 43(1)(e) or 43(1)(f) arising from termination of the Head lease;

(b) Alternatively, if the Tribunal finds that Rustic lacks standing to seek the compensation it claims, an order for compensation be paid to Rustic as a specified person under section 83(2)(b) of the RSL Act.[6]

• [32] The parties agree and I accept the Tribunal has jurisdiction under s. 103(1) of the RSL Act to hear and determine the issues.
• [33] It is agreed that the Head Lease is a retail shop lease. ABH Hotel submits that there is no privity of contract or privity of estate between ABH Hotel and Rustic.

Rustic was not a "lessee' of ABH Hotel within the meaning of the relevant version of the RSL Act

• [34] In the SFICS Rustic claims to be the sublessee and franchisee, however the documents referred to above clearly establish that Terry Curtis is both the sublessee and franchisee.
• [35] Despite those documents the SFICs makes the assertion as if Terry Curtis and Rustic were the same party. Indeed, it submits that the jurisdictional definition is agnostic to which party is carrying on business alleging that the definition for a Lessee expressly contemplates that it may not be the defined Lessee under the Head Lease.
• [36] Rustic submits that the dispute is a retail tenancy dispute within the meaning of the definition. It submits that the Lease was entered into by Subway Realty for the purpose of the operation of a Subway restaurant. It is then submitted that Rustic was carrying on the business of a Subway Restaurant in the premises.
• [37] The Schedule to the RSL Act as currently in force includes the following definitions:

lessee -

(a) in relation to a retail tenancy dispute or lease the subject of a small business dispute, includes the former lessee; and

(b) for part 6, division 7, includes -

(i) a lessee who is holding over under the lease or with the lessor's consent; and

(ii) a sublessee or franchisee entitled to occupy the retail shop under the lease or with the lessor's consent; and

(c) for part 6, division 9, subdivisions 1 and 2, does not include a lessee, sublessee or franchisee mentioned in paragraph (b).

lessor means the person who, under a lease, is or would be entitled to the rent payable for the leased premises regardless of the person's interest in the premises, and includes -

(a) a person acting under the lessor's authority; and

(b) in relation to a retail tenancy dispute or lease the subject of a small business dispute - the former lessor.

(emphasis added by ABH Hotel):

• [38] Counsel on behalf of ABH Hotel makes the following submissions in relation to the retail shop lease legislation in force at the time the head lease was entered into.

(a) Prior to the introduction of the Retail Shop Leases Amendment Act 2006 (Qld) (Amendment Act) sublessees and franchisees were not included in the definition of "lessee". The definition of "lessee" in the Act at the relevant time" was: "lessee in relation to a retail tenancy dispute includes the former lessee". The expanded definition of "lessee" (to include a lessee holding over and a sublessee or franchisee entitled to occupy the premises) was inserted into the RSL Act by section 4 of the Amendment Act. The Explanatory Note for the Amendment Act states that the "amended definition provides for tenants on holding over under a lease, sub-lessees and franchisees to access the compensation provisions of the Act".

(b) "Lessor" means the person who, under a lease, is or would be entitled to the rent payable for the leased premises regardless of the person's interest in the premises, and includes -

(a) the lessor's agent; and

(b) in relation to a retail tenancy dispute - the former lessor.

(emphasis added by ABH Hotel):

an agreement under which a person gives or agrees to give to someone else for valuable consideration a right to occupy premises whether or not the right is -

(a) an exclusive right to occupy the premises; or

(b) for a term or by way of a periodic tenancy or tenancy at will.

(d) An amendment was made in 2016, under the Retail Shop Leases Amendment Act 2016, which inserted a new section 41A to expand the definition of "lessee" further to include an assignee of the lease.

(e) Section 129 of the RSL Act provides:

129 Application of Act

(1) Subject to subsection (2), this Act, as in force immediately before the commencement, continues to apply to a retail shop lease entered into before the commencement, and any extension or renewal of the lease, as if the 2006 Act had not been enacted.

(2) On and from the commencement, sections 63, 64, 66, 70A, 71, 82A, 83, 88A, 91, 91A, 106 and 109, as amended or inserted by the 2006 Act, apply to a lease entered into before the commencement and any extension or renewal of the lease.

(3) This section does not affect the operation of section 8 of the 2006 Act.

Note -

The provisions inserted by section 8 of the 2006 Act include relevant provisions for the application of the provisions of this Act mentioned in the section.

In this section -

"2006 Act" means the Retail Shop Leases Amendment Act 2006. "commencement" means the commencement of this section.

(f) The head lease between ABH and Subway Realty was executed by Subway Realty on 16 May 2001 and ABH on 29 May 2001, approximately 5 years before the Amendment Act.

(g) Rustic was not a "lessee' of ABH Hotel within the meaning of the relevant version of the RSL Act, nor was it a sublessee nor franchisee of the lessee.

• [39] ABH Hotel submits that the practical effect of section 129 of the RSL Act is that Rustic is not entitled to compensation pursuant to section 43 of the RSL Act. Only Subway Realty (as lessee) had standing to claim compensation against ABH Hotel under the Head Lease.
• [40] Accordingly, it is submitted by ABH Hotel that Rustic's claim for compensation under section 43 of the RSL Act cannot succeed. It is either misconceived or lacking in substance.
• [41] Were the Tribunal:

(a) to hold that Rustic is not required to demonstrate it is a "lessee" for the purposes of section 43, but order compensation be paid to it anyway, it would effectively make section 43 otiose.

(b) to have jurisdiction to order compensation in favour of a person who does not fall within the definition of "lessee", the amendments to the RSL Act to expand the definition of "lessee" would not have been necessary. Assignees, sublessees and franchisees would have been able to apply pursuant to section 83 of the RSL Act for such compensation without the need for those amendments.

Interests of Rustic and Terry Curtis have merged

• [42] Subway Realty alleges its interest and Rustic's interest have been merged such that their interests (along with their losses and damages) should be taken as co-extensive. They rely upon the decision of Baxter & Fifties Food Pty Ltd atf the Ninja Bear Trust t/as Subway Wynnum Central v Subway Pty Ltd & Anor,[7] (Baxter).
• [43] In that case the Tribunal ordered compensation to a sublessee, notwithstanding that the sublessee may have been precluded from bringing a claim for compensation under s. 43 due to the head lease pre-dating the 2006 amendments.
• [44] Rustic submits that the decision involved a sublessee of a Subway lease with Subway Realty, where the terms also predated the 2006 amendments, the Tribunal found:

(a) Once its jurisdiction was established under the RSL Act it had jurisdiction to make orders pursuant to s.83 and 103 of the RSL Act.[8]

(b) Notwithstanding that the head lease predated the 2006 amendments to the RSL Act, the tribunal considered that when both the head lease and sublease were read together, contractual obligations were implied between their sublessee and the head lessor notwithstanding that there was no direct contractual relationship between them.[9]

(c) Although there was no direct contractual relationship between the head lessor and the sublessee, that there was no bar to the sublessee from bringing a claim directly against the head lessor, as the contractual obligations between the parties had "merged", and the head lease and sublease should have been read together, whereby the lessee's and sublessee's obligations coexisted as against the head lessor and vice versa.[10]

• [45] The doctrine of privity of contract means that a stranger to a contract cannot acquire rights or incur obligations arising under the contract.[11] In Hobart International Airport Pty Ltd and Anor v Clarence City Council and Anor[12] the Court recognised that the doctrine of privity would ordinarily prevent a person who is not a party to a contract being able to establish standing to seek a declaration about the content of a contractual obligation based on a legal interest. The Court recognised that exceptional circumstances may arise on the basis of an equitable interest such as a claim by a beneficiary under a trust or a clam by an equitable assignee. Neither is asserted here.
• [46] The doctrine, in many instances has been modified by legislation.[13] The issue is whether the applicable version of the RSL Act does modify the doctrine.
• [47] ABH Hotel makes the following submissions in relation to the decision of Baxter:

(a) The sub-lease was entered into in 2011. The Tribunal in Baxter observed that the amendments to the Act in 2006 removed the problem of lack privity of contract between a head lessor and a sublessee/franchisee.[14] While the Head lease was entered into in 2003, the Tribunal in Baxter, apparently, had no reference to the transitional provisions which require the application of the legislation prior to amendment. The Act, prior to 2006, did not refer to a sub-lessee. Entering into a sub-lease after the commencement of the Amendment Act did not cure the problem because

(i) Section 43 (prior to amendment) applied to make a "lessor" liable for compensation.

(ii) The definition of "lessor" was a person under a lease (as defined prior to the amendment) who was or would be entitled to the rent;

(iii) The definition of "lease" prior to the amendment did not include a sublease.

(b) Privity of contract prevents a lessor from commencing a proceeding directly against a sublessee for a breach of the terms of a lease (e.g. unpaid rent) and vice versa; it must pursue the lessee.[15] The lessee remains liable to the lessor regardless of whether the lessee pursues the sublessee or the sublessee pays;

(c) The basis for the finding in Baxter that the "contractual obligations between the parties merged, and the Head Lease and the sub-lease should be read together, whereby Subway and Ms Baxter obligations co-exist as against Kennion (the lessor) and vice versa"[16] is not apparent.

(d) Contractual obligations do not "merge" such that obligations in two separate contracts should be read together and is incorrect as a matter of law.

A "merger" will occur where a leasehold estate and leasehold reversion become vested in the same person in the same right. At common law the same person cannot be a lessor and a lessee of the same premises.[17] The common law position is altered by section 115 of the Property Law Act 1974, which provides that the surrender of the term or the merger of the head lease with the freehold does not put an end to the rights of the sub-lessees, but only operates as a grant subject to their rights. However, section 115 does not apply to termination of leases. Termination is not the same as surrender or merger, which is a pre-requisite to operation of the section. Where a lease is terminated, the sublease is also terminated."[18]

There is nothing in the RSL Act that changes the common law to create a legal relationship between a head lessor and a sub-lessee, other than that created by the 2006 amendments, which has no application to this proceeding by reason of section 129.

(e) The Tribunal in Baxter[19] appeared to support its conclusion by the notion that had Ms Baxter (as sublessee) brought an action against Subway Realty (as lessee), Subway Realty could have joined Kennion (as lessor). Similarly, had Kennion brought an action against Subway Realty, Subway Realty could have joined Ms Baxter. Paragraph [30] of Baxter suggests that Subway Realty joined Kennion to the proceeding after Ms Baxter commenced proceedings against Subway Realty. However, the joining of a party to proceedings, either by adding the party as a co-respondent or by way of a third-party claim, is distinct from that joined third-party being directly liable to the applicant in the proceeding. That is not a merger of interests and insofar as this is suggested in the decision in Baxter, it is incorrect.

(f) The Tribunal[20] erroneously concluded that it had jurisdiction because the "proceedings relate to the relationship of landlord and tenants". That is incorrect. The Tribunal's jurisdiction is set out in s.103 of the RSL Act and is limited to "retail tenancy disputes", not the "the relationship of landlord and tenants".

• [48] I agree with the submissions of ABH Hotel. Regretfully, I am unable to follow the decision of Baxter for the reasons submitted by Counsel for ABH Hotel.

(a) The Franchise business purchase agreement dated 17 April 2012 was executed by Terry Curtis as sole director of Rustic. Rustic asserts that the fact that it was signed by Terry Curtis as sole director/personal capacity was a misnomer and was capable of correction.

(b) Mr Curtis signed the Sublease Agreement and the Franchise Agreement in his capacity as sole director of Rustic;[21] and

(c) Mr Curtis signed the Sublease Agreement and the Franchise Agreement as agent of the Sublessee;[22]

(d) Rustic was entitled to occupy the (premises) under the lease, as the terms of the Sublease and franchise agreement permit it to do so;[23]

(e) Rustic has occupied the premises under the Head Lease with the lessors' consent, relying primarily on invoices issued to Rustic by ABH Hotel for rental payments and correspondence between ABH Hotel and Mr Curtis or Rustic;[24]

(f) The Respondent is estopped from asserting that Rustic did not hold the requisite consent to occupy the premises and carry on trade as a Subway Restaurant.

(g) In the amended SFIC's Rustic alleges that Terry Curtis had assigned his interest to Rustic as he was entitled to do so under the Franchise agreement.[25]There are no documents evidencing any such assignment.

• [50] In response ABH Hotel makes the following submissions to reject Rustic's assertions:

(a) Rustic has provided no evidence that Mr Curtis was executing the documents only in his capacity as director of Rustic. Rustic is not named in either document, only Mr Curtis is named.

(b) Rustic has provided no evidence to support the allegation. The documents were drafted by Subway. Subway granted the sublease and a franchise to Mr Curtis personally. Rustic doesn't allege mistake.

(c) Neither the terms of the Sublease nor franchise agreement permit any entity other than Mr Curtis personally, from occupying the premises as tenant. Clause 13 of the Sublease[26] states:

The Sub-lessee covenants not to mortgage, assign, transfer. sub-let, part with, or share possession or give to any person, firm, company or corporation a license to use of occupy the Premises or may part thereof without first obtaining the written consent of the Sub- lessor and the Landlord.

Rustic does not refer to any material to support the allegation.

(d) The issuing of invoices to Rustic does not establish that Rustic was the sub-lessee or that anyone other than Mr Curtis was occupying the premises with ABH Hotel's consent. Clause 4 of the Sublease provides that the sublessee is to make payment of all payments owing under the Head Lease directly to ABH Hotel. The issuing of invoices to an entity as directed by Mr Curtis does not establish the consent from ABH Hotel and Subway for Mr Curtis to be replaced as tenant with Rustic.

(e) Similarly, corresponding directly with Mr Curtis does not demonstrate any consent from either ABH Hotel or Subway to Rustic occupying the premises as tenant. At no time did Mr Curtis claim that he was corresponding with agents for ABH Hotel (or ABH) only as director of Rustic, and not in his personal capacity as sublessee of the premises.

(f) In respect to the claim of the estoppel arising from the matters alleged above and the allegation that ABH Hotel had by its conduct consented to the occupation of Rustic under the Head Lease Counsel for ABH Hotel submits that this is not supported by the above facts and nor by the fact that the Head Lease permitted Subway Realty to enter into a sublease with a franchisee without the head lessor's consent. In this case it did so. The sublease was with Mr Curtis personally.

• [51] I accept the submissions of ABH Hotel and find that Rustic was not a sublessee under the lease.

• [52] Irrespective of the lack of standing can the Tribunal make an order "as it sees fit" under s. 83 of the RSL Act?

83 QCAT orders

(1) Subject to subsection (3), QCAT may make the orders, including declaratory orders, QCAT considers to be just to resolve a retail tenancy dispute.

(2) Without limiting subsection t1),QCAT may make any I or more of the following orders -

(a) ...

(b) an order requiring a party to the dispute to pay an amount (including an amount of compensation) to a specified person;

(3) If QCAT finds a party to the dispute engaged in unconscionable conduct in connection with the retail shop lease, QCAT may only make 1 of the following orders based on the unconscionable conduct -

(a) an order requiring the party who engaged in the unconscionable conduct to pay an amount to a stated person;

(b) an order that the party who engaged in the unconscionable conduct is not required to pay any amount to any person.

• [53] ABH Hotel submits that Section 83(2) has no application to Rustic's claim because:

(a) The claim by Rustic is not a retail tenancy dispute. Rustic is not a lessee under a retail shop lease with ABH Hotel, for the reasons already enumerated.

(b) It does not operate independently to confer on the Tribunal inherent jurisdiction to make any order as it sees fit without regard to other provisions of the RSL Act.

• [54] Counsel for ABH Hotel referred to Fumi Sushi Pty Ltd v Perpetual Nominees Ltd, [27] Chairman Forbes considered the scope of s. 83(2) and held:

Does the Tribunal have jurisdiction to make such an order under s.83 or under any other provision? Under s. 83 the Tribunal has a general power to make the orders [it] considers to be just to resolve the retail tenancy dispute.

The explanatory notes to the 1999 amendments to the Act give several examples of orders under that section, none of which are in the nature of an injunction restraining the beneficiary of a bank guarantee from calling it up.

The Tribunal is a creature of statute and has no inherent jurisdiction. I am not required to decide whether it has any incidental jurisdiction. I accept the submissions of the respondent that no power to make an order in the nature of an injunction lies within s.83 or anywhere else in the Act.

• [55] Section 83(2)(b) of the RSL Act permits the Tribunal to direct that payment (including an amount of compensation) be made to specified person. However, an entitlement to such relief must be established before the Tribunal's jurisdiction to make an order is enlivened.[28] Section 83(2) does not create a new right of compensation or allow another party, other than the lessee, to seek its own compensation outside the provisions of the RSL Act.
• [56] ABH Hotel accepts that if Subway Realty can seek compensation if it has suffered a loss by reason of a breach of the provisions included in the Head lease pursuant to s.42 of the RSL Act. The compensation sought by Subway Realty in the Revised SFICS (assuming it is joined as a party), is $50. It is only that amount that could be the subject of an order under s.83(2).
• [57] To the extent that it alleges at paragraph 110 of the Revised SFICs that "the principal heads of compensation sought by the proposed Second Applicant are orders for compensation to the First Applicant, it is not clear how this is possible under the RSL Act.

• [58] ABH Hotel makes the following submissions:

(a) The only circumstance in which the RSL Act provides compensation after the termination of a lease is where there a lessee is required to vacate premises as a result of the "extension, refurbishment or demolition of the retail shopping centre or leased building containing the shop": s.43(1)(f) of the RSL Act.

(b) In paragraphs 69.1, 69.2 and 69.6 of the SFICS Rustic seeks compensation for loss and damage suffered by reason of the "termination" or "unlawful termination" of the lease. Leaving aside the fact that Rustic has no contractual or other relationship with ABH Hotel, loss and damage for unlawful termination is not recoverable pursuant to s.43 of the Act. Once the Head lease came to an end there was no "leased shop" to which Rustic's access was restricted, or equipment which was required to be maintained for the purposes of the lease.

(c) The compensation claimed by Rustic in paragraphs 69.3, 69.4 and 69.5 relates to maintenance of the air conditioning equipment. Once the Head lease came to an end, there was no equipment required to be maintained for the purposes of the lease.

(d) Even if ABH Hotel was obliged to maintain and repair the air conditioning equipment (which is denied), the loss that would flow from that failure would relate only to the operation of the business in the leased premises not the relocation of the business to other premises. The Revised SFICS does not identify any causal relationship between the failure to repair or maintain the air conditioning equipment and relocation of the business.

(e) In paragraphs 81 and following of the SFICS, Rustic appears to submit that it is entitled to the claimed compensation because the lease was unlawfully terminated as a separate ground of loss. However, for the reasons set out above, s.43(1)(a) - (e) does not permit a claim on this basis and section 43(1)(f) is not engaged.

(f) ABH Hotel did not cause Subway Realty (or Rustic, for that matter) to "vacate the leased shop before the end of the lease or renewal of it because of the extension, refurbishment or demolition of the retail shopping centre or leased building containing the shop". It issued a termination notice to Subway Realty for breaches of the lease by Subway Realty and terminated the lease as a result of the failure of Subway Realty to remedy the breaches.

(g) Rustic submits at paragraph 112.1 of its SFICS that the decision in Osman v Juniper Property Holdings No 15 Pty Ltd [29] supports a conclusion that compensation includes relocation costs. However, the claim in Osman was for compensation because the claimant was required to vacate the leased premises as a result of a proposed demolition of the retail shopping centre (that is pursuant to s.43(1)(f)) and it is submitted is irrelevant.

(h) The practical consequence of the termination of the Head lease is:

(i) At best, if Rustic has standing to apply for compensation (which it does not, for the reasons above), its right to compensation would be limited to disruption prior to the termination of the lease. No losses are claimed on this basis.

(ii) If there was an unlawful termination of the Head lease as alleged by Rustic it cannot recover loss and damage under s.43 of the Act.

• [59] At paragraphs 109 and 110 of the Revised SFICS, Subway Realty claims to have, independently of Rustic, suffered the following damage:

(a) "Reputational Damage' through the closure of a restaurant. However, there is no evidence of any goodwill or other brand ownership that is owned by Subway Realty that would be affected by the proceeding;

(b) Derivative and prospective and retrospective loss through the loss of ongoing franchise royalty fees paid to its affiliate', being Subway Systems. This claim is unclear. As above, franchise fees are paid to Subway Systems, not Subway Realty. Subway Systems has no direct interest in Subway Realty. Similarly, Subway Realty has no direct interest in Subway Systems.

(c) Loss of its rights as a lessee. This claim is also unclear. No further particulars nor any quantum are given. It is also unexplained how Subway Realty 's rights would be lost from a proceeding where it was not a party.

• [60] Despite its claim of suffering loss and damage as a result of ABH Hotel's termination of the Head Lease, Subway Realty only seeks compensation in the amount of $50.00.[30]
• [61] On or about 26 February 2024, without admission, ABH Hotel tendered to Subway Realty the sum of $50.00 on account of its claim for compensation. Subway Realty has refused the tender.
• [62] The claim of $50 compensation suggests that the claim is contrived to assist Rustic in its claim but does not overcome the difficulty arising from the absence of privity of contract or interest.

• [63] ABH Hotel submits that the application to join Subway Realty appears to be an attempt to overcome Rustic's lack of standing. It follows it submits that:

(a) given that Subway Realty 's loss is identifies as being $50 and ABH Hotel has offered to pay the $50, there is no purpose in the joinder of Subway Realty;

(b) Even if Subway Realty was joined to the proceeding, that would not resolve Rustic's lack of standing to claim compensation in its own right.

• [64] The Tribunal's power to join and remove parties from a proceeding is contained in section 42 of the QCAT Act.
• [65] Section 42(1) provides for the joinder of a party, stating that the Tribunal may make an order joining a person as a party to a proceeding if the Tribunal consider that:

(a) The person should be bound by or have the benefit of a decision of the Tribunal in the proceeding;

(b) The person's interests may be affected by the proceeding; or

(c) For another reason, it is desirable that the person be joined as a party to the proceeding.

• [66] The power to join a party is discretionary. The exercise of discretion is not enlivened unless the Tribunal is satisfied that one or of the criteria set out in section 42(1) is satisfied.
• [67] In Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2)[31] Senior Member Oliver (as he then was) also held, starting at:

[11] There must be some utility or purpose in the joinder. It might be that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the tribunal; there might be common question of fact or law involved in the proceeding; the joinder may enable all issues in dispute between affected parties to be finally determined; or it may be that the parties joined would be amenable to an order of the tribunal in the proceeding in the Tribunal. There are also questions of prejudice to the proposed parties in terms of costs, whether the process would be unnecessarily lengthened and, importantly, and whether the objects set out in s 3 of the QCAT would be achieved. These are some of the matters that might be taken into account in the exercise of discretion but are by no means exhaustive and each case would depend on its own particular circumstances.

...

[14] To include parties in contentious litigation without their consent is a serious matter and will not be done lightly. That is why the section confers a discretionary power on the Tribunal. The applicant for an order to join another party must demonstrate not only that the party may be affected by the proceeding but also there is, within that proceeding, here a review of an administrative decision, some utility or purpose in the joinder. This is particularly so given the broad basis upon which a person might have standing to bring an application to either be joined as a party to a proceeding or, to apply to join another party. The threshold to establish that their interest "may be affected" is easily crossed.

• [68] I am not convinced that there is a case for joinder of Subway Realty. It has not submitted evidence as to how it would benefit from joinder. It claims that its financial and proprietary interests will be affected by the outcome of the proceeding is not explained and the claim of $50 compensation suggests that it does not in realty have any claim. I note ABH Hotel's submission that Subway Realty's claim to "remain actively involved in the dispute" despite seeking to nominate Rustic to be its agent in the proceedings, suggest it will take no active role in the proceeding at all and calls into question Subway Realty's reasons for seeking to be joined.
• [69] Joinder of Subway Realty would add additional complexity to the proceedings particularly if it were to agitate its claim for reputational damage, derivative prospective and retrospective loss through the loss of ongoing franchise royalty fees paid to its affiliate and loss of its rights as lessee.
• [70] It is submitted by ABH Hotel on the other hand that the tender of $50 to Subway Realty in satisfaction of the amount it claimed in compensation has compromised its claim. Subway Realty therefore no longer has any claim for compensation, loss or damage, on which the Tribunal can adjudicate.
• [71] ABH further submits that Subway Realty's application should be viewed by the Tribunal for what it appears to be. That is, an attempt by Rustic, which does not have standing to seek compensation under the RSLA (as it is neither a sublessee nor franchisee), to circumvent the dismissal of the proceeding by attempting to join Subway Realty, who does have standing as lessee but has suffered no loss in which to compensate, as a proposed second applicant.
• [72] Section 47 of the QCAT Act the tribunal may order that the proceeding or part thereof be dismissed or struck out where it considers a proceeding or part of a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
• [73] The principles relevant to the exercise of the analogous power in s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) were set out in Norman v Australian Red Cross Society[32]:

VCAT should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.

• [74] The jurisdiction to strike out a proceeding has been considered on numerous occasions by the Tribunal. Examples are Dundral Pty Ltd v Orton,[33] Felstead v Bundaberg Homes Pty Ltd[34] and Legal Services Commissioner v Leneham.[35]
• [75] Although this case raises issue of some complexity the Applicant has not been able to demonstrate any evidence of entitlement to compensation. As it lacks jurisdiction to bring a claim for compensation it follows that there is no is no useful purpose in the joinder application.
• [76] The Application should be struck out. The parties to make submissions on costs by filing their respective submissions, if any, in the Tribunal within 21 days of receipt of the orders the subject of these reasons.

[7] [2015] QCAT 83.

[11] Tweddle v Atkinson [1861] EngR 690; (1861) 1 B&S 393 upheld by the House of Lords in Beswick v Beswick [1967] UKHL 2; [1968] AC 58.

[12] [2022] HCA 5; (2022) 276 CLR 519.

[13] Insurance Contracts Act 1984 (Cth).

[15] Fuller's Theatre and Vaudeville Co Ltd v Role [1923] AC 435; South of England Dairies Ltd v Baker [1906] UKLawRpCh 55; [1906] 2 Ch 631.

[17] Rye v Rye [1962] AC 496.

[18] PW& Co v Milton Gate / Investments Ltd[2003] EWHC 1994; [2004] 2 WLR 443 at [72].

[26] Applicant's Documents, AB10 page 314.

[29] [2008] QRSLT 16.

[31] [2012] QCATA 242.

[32] (1998) 14 VAR 243.

[33] 2013] QCAT 604.

[34] [2016] QCAT 294.

[35] [2017] QCAT 96.