Suttons Beach Pavilion Pty Ltd t/as Suttons Beach Pavilion v Moreton Bay City Council [2025] QCAT 135

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

• [1] The applicant, Suttons Beach Pavilion Pty Ltd t/as Suttons Beach Pavilion ('Suttons Beach Pavilion') commenced proceedings on 28 February 2022 by filing a Notice of Dispute - Retail Shop Lease and an application to stay a decision.
• [2] The stay application was dismissed by the Tribunal on 2 July 2024. In their submissions for the stay application, the respondent, Moreton Bay City Council, previously referred to as Morton Bay Regional Council ('MBCC') raised concerns that the Tribunal lacked jurisdiction to determine the matter.
• [3] On 30 September 2024 MBCC filed an application for miscellaneous matters seeking the application be dismissed, pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act').
• [4] Suttons Beach Pavilion filed submissions in response to the application for miscellaneous matters on 24 October 2024. MBCC filed further submissions in reply on 14 November 2024.

• [5] The Tribunal has jurisdiction to determine matters it is empowered to deal with under the QCAT Act or an enabling Act.[1] The enabling Act here is the Retail Shop Leases Act 1994 (Qld) ('RSLA'). Under the RSLA, the Tribunal has jurisdiction to hear 'retail tenancy disputes'.[2]
• [6] The phrase 'retail tenancy dispute' is defined in the RSLA[3] 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.

• [7] 'Retail shop lease' is defined in the RSLA[4] to mean "a lease of a retail shop". A number of exceptions as to what constitutes a 'retail shop lease' are contained in subsections 5A(2) and (3).
• [8] The key exception which is relevant to these proceedings is that a retail shop lease does not include a lease of a retail shop with a floor area of more than 1000 m2.
• [9] 'Retail shop' is defined in the RSLA,[5] which provides:

(a) situated in a retail shopping centre; or

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

• [10] 'Retail business' is defined in the RSLA[6] to mean "a business prescribed by regulation as a retail business".

• [11] Under section 47 of the QCAT Act, the tribunal can dismiss a proceeding if, among other things, it considers the proceeding to be frivolous, vexatious, misconceived or lacking in substance.
• [12] It is a significant step to dismiss or strike out a proceeding prior to a full hearing of a matter. However, where it is clear that the Tribunal has no jurisdiction then it is appropriate.
• [13] The Tribunal is a creature of statute and must derive its powers from the QCAT Act or an enabling Act such as the RSLA. Unlike some Courts, it has no inherent jurisdiction. The Tribunal's powers to make orders under the RSLA are contingent on the proceeding being one of a number of certain types of "retail tenancy disputes' which is defined by reference to the term "retail shop lease".

• [14] It is undisputed that Suttons Beach Pavilion engaged in a retail business on the premises, in line with Schedule 1 of the Retail Shop Lease Regulations 2016 (Qld) in that they ran a restaurant and a cafe.
• [15] It is also undisputed that the total area of the premise under the lease is 1736 m2.
• [16] MBCC's submissions are that the total floor area of the premise, in line with the lease, is 1736 m2 and therefore there is no jurisdiction to hear the dispute as this is not a retail lease dispute given the premise is over 1000 m2. Accordingly the proceedings should be dismissed for want of jurisdiction.
• [17] Suttons Beach Pavilion's submissions are that while the total area of the lease is 1736 m2, only one of the two buildings on the premise were used as a retail shop, being Pavilion 1 which is only 454 m2 and only the floor area of the retail shop should be considered, not the entire floor area of the premise.
• [18] Suttons Beach Pavilion also assert that the retail shop area in Pavilion 1 is the predominant activity. While it is not the predominant land area, it is the predominant income source, as the function centre in Pavilion 2 only provides 2% of the income source. The retail shop area in Pavilion 1 is open seven days a week, from 6am to 11pm, whereas Pavilion 2, the function centre, is only open for events, which are on average scheduled on one or two evenings a week and usually only in the evening.
• [19] In response, MBCC stated Suttons Beach Pavilion's position is incorrect and the reference to the floor area needs to be the entire premise on the lease, not just Pavilion 1, which means the floor area is in excess of 1000 m2.
• [20] MBCC also assert that even if Suttons Beach Pavilion's position was accepted, then the Tribunal would still lack jurisdiction as Pavilion 1 is 454m2 which is only 27% of the demised premise and as such it cannot be said that the premises are "wholly or predominately for carrying on of a retail business".
• [21] Section 5A of the RSLA states:

(1) A retail shop lease is a lease of a retail shop.

(2) However, a retail shop lease does not include a lease of any of the following-

(a) A retail shop with a floor area of more than 1000m2

• [22] A "retail shop " is defined in section 5B as meaning:

(a) situated in a retail shopping centre; or

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

• [23] Accordingly the definition of the retail shop refers to the whole premise of the lease, not just the specific parts of the premise which are used for the retail shop. It therefore follows that in determining whether a lease related to "a retail shop with a floor area of more than 1000m2" it is necessary to consider the total floor area of the premise under the lease.
• [24] A lessee cannot seek to circumvent this exception by choosing to use only part of the premise specifically for the retail shop, as it is the floor space of the entire premise that forms the lease that needs to be considered.
• [25] In most leases there will be parts of the premises which are used for purposes other than a retail shop, such as a storage room or to provide another service which does not fall within the definition of a retail shop. However in order to be a retail shop lease, the retail shop must be the whole or predominate use of the premise.
• [26] In this case, the premise which the lease pertains to is 1736 m2. Accordingly this is not a retail shop lease, given it falls within the exception under section 5A(2)(a), as the floor area of the premise is more than 1000m2.
• [27] Given the Tribunal has found that this is not a retail shop lease, due to the size of the floor space of the retail shop exceeding 1000m2, the dispute between the parties is not a retail tenancy dispute.[7] As the dispute is not a retail shop dispute, there is no jurisdiction under the RSLA for the Tribunal to determine this matter.
• [28] Where a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the Tribunal may dismiss the proceeding.[8] Because the Tribunal does not have jurisdiction, the application is misconceived and lacking in substance.
• [29] Accordingly the only appropriate order is this matter is that the Notice of Dispute is dismissed for want of jurisdiction, pursuant to section 47 of the QCAT Act.

• [30] The Notice of Dispute filed 1 March 2022 is dismissed for want of jurisdiction.