The Estate of Sonia Tubaro (Deceased) v Ratakhin [2026] QCATA 30

Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1

McDonalds Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293

Robinson Helicopter company Incorporated v McDermott [2016] HCA 22

Tringas v Quach [2007] NSWADT 24, considered

Wagner Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 40

[1] This is an application for leave to appeal or appeal a decision made on 12 September 2023 whereby the late Sonia Tubaro was ordered to pay Sergey Ratakhin the sum of $5,000.00 compensation for business disturbance and to refund a bond of $2,600.

[2] The estate of the late Ms Tubaro has been substituted as the applicant in the proceeding, upon advice by an executor of the estate, Ernesto Tubaro, that the estate will pursue the appeal in the place of the deceased. Mr Tubaro is a solicitor and I rely upon the advice he has given the Tribunal as to the status of the estate and his authority to request that the appeal proceed.

Relevant considerations in the appeal proceeding

[3] Insofar as a question of law only is raised the matter will be determined under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). No leave to appeal is required on a question of law only.

[4] Insofar as questions of fact or mixed law and fact are raised the Appeal Tribunal will proceed under s 147 of the QCAT Act, provided leave to appeal is granted.

[5] For leave to appeal to be granted the applicant must show:

(a) there is a reasonable argument that there is an error to be corrected; and

(b) the appeal is necessary to correct a substantial injustice.[1]

[6] The appeal proceeding has thrown up an important question as to whether the Tribunal had jurisdiction to deal with the matter in any event. I address that question first and conclude that the Tribunal does have jurisdiction. Thereafter I consider the grounds of appeal raised by the late Ms Tubaro and pressed by her estate.

[7] The Tribunal file contains records which give the background to the appeal proceeding.

[8] On 13 April 2023, Mr Ratakhin filed an application for an order to resolve a retail tenancy dispute under the Retail Shop Leases Act 1994 (Qld) ('RSL Act'). The Form 34 records that the shop is a stand-alone shop, the lease has not expired and that another party to a mediation agreement has not complied with the agreement.

[9] In a written statement attached to the application, Mr Ratakhin said that he had applied for mediation with Queensland Small Business Commissioner (QSBC) (two weeks previously), but that he will not proceed with it as they are unable to make a determination and force the other party to adhere to the contract terms.

[10] On 15 May 2023, a Tribunal Registry officer sent an email to Mr Ratakhin seeking a QSBC letter and completed Form 41 for the application to move forward. A letter from the QSBC usually refers to the results of a mediation. Mr Ratakhin responded on 16 May 2023 attaching emails from the QSBC and advising the mediation did not proceed because the required fee was not paid.

[11] In an email dated 20 February 2023, the QSBC acknowledged an application for mediation which had been assigned matter number QSBC-6271. It is noted that the matter was submitted as a 'retail tenancy dispute' under the RSL Act.

[12] The author of the email, a Business Liaison Officer/Assistance said:

As the respondent (Alexandra Dapontes) has provided a copy of the lease and does not consider the lease to be a retail shop lease, and given that either the RSL Act or SBC Act would cover the lease and the subsequent dispute, the commissioner is willing to consider the application for mediation under Part 3 of the SBC Act (as opposed to Part 8 of the RSL Act).

[13] The parties were told that the change "may affect access to QCAT following the mediation if necessary and we encourage both parties to seek their own independent legal advice as to their further options should a mediation not find a resolution to the issues/s."

[14] I note that Ms Dapontes, not a lawyer, has represented the landlord Ms Tubaro at all stages of this matter.

[15] Subsequently Ms Tubaro refused to participate in the proposed mediation under the Small Business Commissioner Act 2022 (Qld) ('SBC Act').

[16] On 29 March 2023 Mr Ratakhin asked that a QSBC mediator refer the case to the Tribunal.

[17] On 31 March 2023 the Commissioner advised Mr Ratakhin that the Director is seeking legal advice on the matter, and it was recommended that Mr Ratakhin seek legal advice as to whether the lease comes under the RSL Act and to understand "pathway options".

[18] No evidence is before the Tribunal as to any further communication with Mr Ratakhin from the QSBC. Mr Ratakhin went ahead and filed his application to determine the dispute.

[19] The first question for the Appeal Tribunal is whether the Tribunal had jurisdiction to determine the matter, given:

(a) no mediation occurred under Part 8 of the RSL Act, and no referral of the dispute was made by a mediator under s 63 of the Act; and

(b) because no mediator was appointed there was no opinion expressed by a mediator that the dispute is not within QCAT's jurisdiction, so as to provide a basis for an application to the Tribunal under s 64(1)(a)(ii) of the RSL Act.

[20] Relevant to the question of how the Tribunal is given jurisdiction in the matter is whether s 103 of the RSL Act is an independent source of jurisdiction.

[22] The parties were given an opportunity to provide written submissions on the question of jurisdiction. The submissions filed by both parties address the significance of there being no mediation. The written submissions go further than just the question of jurisdiction and also address some of the grounds of appeal. I will set out a summary of all the submissions most recently made and return to the remaining issues relating to the grounds of appeal, after the question of jurisdiction has been dealt with. The grounds of appeal are addressed in the submissions and response submissions filed in the appeal proceeding and in submissions made at the oral hearing.

(a) his business involves retail activity - laptop repairs, sale of refurbished computers and accessories and customer-facing services, all listed in Schedule 1 of the Retail Shop Leases Regulation 2016 (Qld) ('RSL Regulation') so that the lease is a retail shop lease.

(b) Because the lease is a retail shop lease the Tribunal has jurisdiction to determine a retail tenancy dispute under ss 103 and 104 of the RSL Act.

(c) Mediation of the dispute under the SBC Act was sought but did not proceed because Ms Tubaro did not participate. However, seeking mediation under that Act gives a pathway to determination of the dispute by the Tribunal.

(d) The RSL Act and the SBC Act are both enabling Acts giving the Tribunal jurisdiction to determine the dispute. At the outset I reject this submission. The SBC Act gives no jurisdiction to the Tribunal.

(e) To dismiss the case for lack of a QSBC referral would be procedural unfairness and inconsistent with QCAT's statutory obligations to resolve disputes that are accessible, quick and inexpensive under s 3(b) of the QCAT Act.

(f) Recent Tribunal commentary acknowledges that where QSBC has mishandled a referral or failed to progress it QCAT may treat that as sufficient to enliven its jurisdiction, rather than penalising the applicant for a process failure outside their control. I note that no authority is given for this proposition.

(g) Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd ('Wagners')[2] case is authority that s 64 of the RSL Act is not the only gateway to the Tribunal's jurisdiction and that the Tribunal may determine its own jurisdictional facts as to whether the lease is a retail shop lease and whether the dispute is a retail tenancy dispute as preliminary to its substantive jurisdiction.

[24] Mr Ratakhin also seeks to revisit the question of compensation by reference to additional evidence. During the appeal hearing rulings were made that no additional evidence can be relied upon. In any event Mr Ratakin has filed no application for leave to appeal or appeal the Member's orders for the payment of compensation to him.

Submissions on behalf of the applicant - Estate of the late Ms Tubaro

(a) the lease agreement refers to the permitted use as "office" only. The landlord did not intend to enter a retail shop lease and did not permit the sale of computers from the premises. It is not possible to imply a term into the lease that there is a different permitted use.

(b) The business is not located in a retail shopping centre.

(c) There is no finding that the business carried on activities of sale of computers or accessories - "wholly or predominantly".

(d) The Member's reasons for finding that there was a retail shop lease are inadequate to explain on what evidence such a finding was based.

(e) There was no documentary evidence before the Tribunal on which such a finding could be based.

(f) The Tribunal made orders in circumstances where it lacked jurisdiction to do so, because the lease in question was not a retail shop lease.

(g) Alternatively, if the Tribunal did have jurisdiction, the reasons for such a finding are inadequate.

(h) The proceeding was not properly commenced, and the Tribunal has no jurisdiction to determine the application where no mediation occurred under Part 8 of the RSL Act, no referral of the dispute was made by the mediator under s 63 of the RSL Act and none of the provisions in s 64(1) apply. Further no jurisdiction is given by s 103 of the RSL Act.

(i) Sections 63 and 64 of the RSL Act are intended under the RSL Act to provide the only gateway to the Tribunal.

(j) Part 3 of the SBC Act does not provide a means of commencing in the Tribunal.

(k) Mr Ratakhin ticked a box in his application to the Tribunal alleging mediation had occurred when in fact no mediation had occurred.

(l) Referring to an email of 31 March 2023, the Small Business Commissioner did not "get back to Mr Ratakhin".

[26] By s 55 of the RSL Act, a party to a retail tenancy dispute that is within a mediator's jurisdiction under s 97 of the Act may lodge a notice of the dispute with the Small Business Commissioner.

[27] Section 97 provides that a mediator has jurisdiction to mediate a "retail tenancy dispute". Exclusions not relevant to this matter are then set out. At s 97(3) specific matters a mediator has jurisdiction to mediate are set out. The mediator's jurisdiction is not limited to matters in s 97(3). There is a broader jurisdiction dependent on the definition of a "retail tenancy dispute".

[28] The Schedule to the RSL Act defines a retail tenancy dispute as: 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.

[29] A retail shop lease is defined in s 5A(1) of the RSL Act as a lease of a retail shop. Relevant to this matter, by s 5B(b) a retail shop means premises used wholly or predominantly for the carrying on of a retail business.

[30] A retail business is defined in s 5C of the RSL Act as a business prescribed by regulation as a retail business.

[31] Schedule 1 to the RSL Regulation sets out all the business, goods or services which may be a retail business, including computers, computer accessories and household appliance repairs.

[32] By s 56 of the RSL Act the Commissioner must as soon as practicable after the dispute notice is lodged nominate a mediator and allocate a time for the mediation, at least 7 days after the notice is given.

[33] By s 61A of the RSL Act the mediator must notify the outcome of the mediation.

[34] By s 63 of the RSL Act the mediator must refer the retail tenancy dispute to the Tribunal:

(a) provided the retail tenancy dispute is within the Tribunal's jurisdiction and

(i) the parties cannot reach a mediated solution; or

(ii) a party does not attend the mediation conference; or

(iii) the dispute is not settled within 4 months after the dispute notice is lodged; and

(b) the retail shop lease has not ended more than 1 year before the dispute notice was lodged.

[35] By s 64 a party to a retail tenancy dispute may apply to the Tribunal for an order to resolve the dispute if, relevantly, by s 64(1)(a)(ii) a mediator refuses to refer the dispute to QCAT because the mediator is of the opinion that the dispute is not within the Tribunal's jurisdiction.

[36] Section 103 of the RSL Act provides under the heading QCAT's jurisdiction:

(1) QCAT has jurisdiction to hear retail tenancy disputes, other than a retail tenancy dispute...

[37] The section goes on to give specific excluded matters not relevant in this matter. Specific matters are set out which the Tribunal has jurisdiction to hear, again not relevant to this matter. However, the Tribunal's jurisdiction is not limited to the matters for which it has jurisdiction set out in s103(2) of the RSL Act, it has a broader jurisdiction by reference to the definition of a retail tenancy dispute.

[38] At every step the pathway to the Tribunal has been muddied. First, the Commissioner could have appointed a mediator so that Mr Ratakhin could apply to the Tribunal under s 64 if the mediator (rather than the Commissioner) formed the view that the dispute is not a retail tenancy dispute. That did not occur. The result is that neither s 63 nor s 64 of the RSL Act are available to Mr Ratakhin as a pathway to the Tribunal.

[39] Next, Mr Ratakhin filed an application suggesting a mediation had occurred and that his application was made under s 64 of the RSL Act. That was wrong. As a lay person Mr Ratakhin may be forgiven for not understanding the significance of the Commissioner's refusal to appoint a mediator under the RSL Act. In his recent submissions Mr Ratakhin says that an attempted mediation under the SBC Act enables the Tribunal to proceed to determine the dispute. That view is misconceived.

[40] The Principal Registrar did not persist with a request for evidence of the appointment of a mediator and the outcome of a mediation or attempted mediation. That may possibly be because Mr Ratakhin also sought an interim injunction. The Tribunal has been prepared to hear an interim injunction application in this jurisdiction without a substantive application having been filed.[3]

[41] The Member who decided the application for an interim injunction was not alerted to any possible lack of jurisdiction. That may be because the substantive application purportedly made under s 64 of the RSL Act appears on the Tribunal file with no indication that it had not been accepted by the Principal Registrar.

[42] Finally, the substantive matter was set down for a hearing as a matter of urgency and was heard in September 2023 without any notification to the Member that there may be an issue as to jurisdiction. Nor did the Member seek to satisfy himself as to the basis on which the matter came before the Tribunal.

[43] It was not until the hearing of the appeal proceeding that the question was raised for clarification.

[44] The applicant submits that the Tribunal does not have jurisdiction to deal with this matter because of the lack of pre-proceeding mediation. Mr Ratakhin says that the Tribunal has jurisdiction under s 103 of the RSL Act.

[45] The fact is that there was no appointment of a mediator. As a result, proceedings could not be commenced in the Tribunal under ss 63 or 64 of the RSL Act. The only remaining pathway is under s 103 of the RSL Act.

[46] It is possible for procedural requirements as to the correct form of application to be waived under s 61 of the QCAT Act so that the application is treated as if it were an application filed under s 103 of the RSL Act.

[47] The utility of that step depends on the Tribunal having jurisdiction under s 103 of the RSL Act to determine a residential tenancy dispute without the need for a mediation or attempted mediation under Part 8 of the RSL Act.

[48] Apart from dealing with interim injunctions brought on an urgent basis to the Tribunal, many cases decided by the Tribunal have found that compliance with the mediation provisions of the RSL Act is a mandatory pre-condition to the Tribunal having jurisdiction to determine a retail tenancy dispute.[4] Without that compliance the matter would need to be determined in a Court.

[49] However, there is some basis for thinking that s 103 does offer a means of determining retail tenancy disputes which have not been referred to a mediator first.

[50] In Wagners' case, a tenant filed in the Tribunal a substantive application in Form 34 to resolve a retail tenancy dispute about renewal of a lease, and an application for interim order. The application made in Form 34 referenced ss 33 and 64 of the RSL Act. The applicant did not note on the application form that mediation had occurred or been attempted, because no mediator had been appointed.

[51] In Wagners' case, an interim order was made by the Tribunal, subject to an undertaking as to damages being given and pending a determination of the application following receipt of submissions. The landlord said that the Tribunal did not have jurisdiction to deal with the substantive application because the property was not a retail shop, the lease was not a retail shop lease and there was no retail tenancy dispute under the RSL Act. These issues were all disputed questions of fact, or mixed law and fact.

[52] So far Wagners' case is similar to the facts of this matter.

[53] Before any final determination in the Tribunal, the landlord applied to the Supreme Court of Queensland for an order for ejectment of the tenant. Justice Kelly considered the jurisdiction of the Supreme Court in the matter where proceedings were underway in the Tribunal.

[54] The landlord raised in the Supreme Court proceeding that whilst the Tribunal was seized with jurisdiction to deal with the interim application, the substantive application had not been filed in accordance with procedural requirements, meaning that the Tribunal did not have jurisdiction to deal with the final relief sought by the tenant. It was said that the substantive application had not been commenced through s 55 of the RSL Act, accordingly the substantive application had not been referred to the Tribunal in accordance with the provisions of the legislation.

[55] His Honour considered the reasoning of Justice Wilson in McDonalds Australia Ltd,[5] from which I note:

It is not apparent...that ss63 and 64 are intended under the [Retail Shop Leases Act] to provide the only gateway to QCAT. Those provisions do not expressly qualify the broad jurisdiction given to QCAT under s 103.

[56] Justice Kelly went on to say that he rejects the landlord's submissions:

Section 103 of the Retail Shop Leases Act confers a broad jurisdiction upon QCAT and, subject to some exceptions which are not presently relevant, empowers QCAT to deal with the matter of a retail tenancy dispute. Section 64 of the Retail Shop Leases Act is not the only gateway to QCAT's original jurisdiction. Rather, s15 of the QCAT Act provides that QCAT may exercise its broad jurisdiction conferred by s103 of the Retail Shop Leases Act, where a person has, under the QCAT act, applied to QCAT to exercise that jurisdiction. Section 33 of the QCAT Act does not restrict or limit when a party can apply to QCAT but is a procedural provision directed to formal requirements of applications. QCAT may do all things necessary and convenient for exercising its jurisdiction and may waive compliance with a procedural requirement under the QCAT Act.

[57] His Honour found that the tenant had used the correct Form 34 to apply to QCAT. Non-compliance with the requirements of Part D when suggesting a dispute notice had been lodged was procedural and His Honour said would appear to have been waived when the Principal Registrar accepted the application. He found that the tenant has applied to QCAT to exercise its original jurisdiction conferred by s 103 of the RSL Act.

[58] His Honour found that the questions of jurisdictional fact as to whether the lease is a retail shop lease and whether the dispute is a retail tenancy dispute are within the Tribunal's jurisdiction to decide.

[59] Following the reasoning in Wagner's case I conclude that despite there being no mediation or attempted mediation the Tribunal nevertheless has jurisdiction under s 103 of the RSL Act to hear and determine a retail tenancy dispute.

[60] I consider it important that as Justice Wilson said, ss 63 and 64 do not expressly qualify the broad jurisdiction under s 103 of the RSL Act. The mediation process appears in a different division of the RSL Act to the provision giving QCAT its jurisdiction to determine retail tenancy disputes. No words say that mediation is a mandatory pre-condition to the exercise of the Tribunal's jurisdiction. If that was intended the legislature could have said so, as it has in other legislation.[6]

[61] I find that the application was commenced by application in the only available Form, being Form 34. The application was not rejected by the Principal Registrar. A file was opened, and the matter proceeded to a hearing.

[62] To the extent that the application purports to be made under s 64 of the RSL Act, the Appeal Tribunal will treat the application as made under s 103 of the RSL Act.

[63] The applicant does not succeed on the ground of appeal that the Tribunal lacks jurisdiction to determine the matter.

[64] Whether the Member erred in finding that the lease in question was a retail shop lease and by proceeding to determine the dispute between the parties falls to be determined in this appeal.

[65] The evidence as to the lease between the applicant and Mr Ratakhin reveals a Deed of Consent to Assignment of Lease signed on 15 and 16 December 2022. I assume the Deed was signed by counterparts because of the absence in evidence of a document signed by all parties. A copy of the commercial lease for a 5-year term to expire on 1 September 2026 was filed by Mr Ratakhin. The evidence at the hearing below is that the Deed of Assignment and the Lease were not registered by Mr Ratakhin, nor stamped.

[66] These failings do not affect the validity of the legal arrangement between the parties.[7] I observe that a lack of registration meant the lease was enforceable in equity as between the late Ms Tubaro and Mr Ratakhin.[8] However the failure to submit the documents for payment of stamp duty inhibits the use that can be made of the documents in proceedings in this Tribunal.

[67] By s 487 of the Duties Act 2001 (Qld), unless an instrument is properly stamped it is not available for use in law or equity or for any purpose; and must not be received in evidence in a legal proceeding, other than a criminal proceeding. However a court may receive an instrument in evidence if after it is received in evidence, the instrument is given to the commissioner as required by arrangements approved by the court or if the person who produces the instrument is not the person liable to pay the duty, the name and address of the person so liable and the instrument is given to the commissioner as required by arrangements approved by the court.

[68] No such arrangements were made. I conclude that the lease documents could not be relied upon in the hearing below, nor can I have reference to the lease documents because there is no evidence that they have been stamped to this day.

[69] In any event, neither party contested that even apart from the documentation, there was a lease between the landlord and Mr Ratakhin. I consider that is sufficient for the Tribunal to have proceeded with the hearing.

Ground: The lease was not a retail shop lease because of the permitted use in the lease**

[70] The Member below did not make an express finding on the permitted use of the premises. He found that the lease was a retail shop lease. He did so on the basis of the evidence of Mr Ratakhin. Implicitly the submission by the Landlord that the permitted use was of an "office" was rejected. The finding was made without reference to the lease documents.

[71] Insofar as the Landlord relies on what is recorded in the lease document as to permitted use, I cannot have reference to the document as it is unstamped.

[72] The uncontested evidence at the hearing is that the previous tenant carried on a computer repair business at the premises and the landlord has permitted the conduct of a computer repair business from its premises by Mr Ratakhin.

[73] No error of law and fact can be discerned in the decision of the Member with respect to the permitted use of the premises. The ground of appeal does not succeed.

Ground: The lease is not a retail shop lease used wholly or predominantly as a retail business

[74] The ground raises a question of mixed law and fact.

[75] Extracts from the RSL Act set out earlier must be read together to determine if a particular lease is a retail shop lease which is used wholly or predominantly as a retail business.

[76] The Member below found that it became abundantly clear in the course of the evidence that the tenant's business did include sales of computers and accessories from the premises. On that basis he concluded that the arrangement between the parties was a retail shop lease.

[77] Mr Ratakhin submits that his business fell within Schedule 1 of the RSL Regulation, noting the reference to computers and computer accessories under the heading "Domestic appliance retailing" and the later reference to household appliance repairs under the heading "Household appliance installation and repair services - electrical".

[78] At the hearing below there was reference to some limited financial accounts to demonstrate sales of computers and accessories. Mr Ratakhin also gave evidence of the fact of sales. The Member did not make an express finding that the sales amounted to the whole or predominant part of the business. In fact, the Member seems to have ignored that requirement in concluding that Mr Ratakhin conducted a retail shop.

[79] Insofar as that amounts to an error of mixed law and fact and I am conducting a rehearing under s 147 of the QCAT Act I am able to consider the evidence myself to make a finding of fact.[9]

[80] I note from the transcript of the hearing that it was put to Mr Ratakhin that "this is not a retail shop lease because the majority of your business is to repair computers..."[10]

[81] Mr Ratakhin responded: "Eighty per cent of my business is, yes, repairing computers. However, there are some occasions when a computer is not repairable and these cases I actually stock computers - computers for resale to customers."[11]

[82] Mr Ratakhin confirmed to the Member that he sold computers and accessories.[12] He went on to say: "Plus also, even the previous owner, he did not sell computers. That's correct. I started doing it on my own. The previous owner sold computer chargers and all kinds of accessories."[13]

[83] On the basis of Mr Ratakhin's evidence I find that his predominant business was computer repair. Sales of computers and accessories formed a relatively small component. Computer repair is not expressly referred to in the Schedule to the Regulation. One would have to find that computer repair is electrical repair of a household appliance for the predominant part of Mr Ratakhin's business to be captured by the list of businesses, goods or services which define a retail business.

[84] The Member had no submissions before him as to the meaning of "household appliance - electrical repair".

[85] Whether Mr Ratakhin's business fell within the Schedule involves interpretation of words used in their ordinary meaning. That task involves a question of fact.[14] I consider that is a task which I can undertake in the appeal proceeding.[15]

[86] I adopt the approach taken by Judicial Member Molloy in Tringas v Quach,[16] that is first, ask what is the common use of the words used in the Schedule which sets out the prescribed businesses, and secondly are the words which describe the actual use of premises "totally different" from a relevant descriptor in the Schedule. By this mode of reasoning the Judicial Member found that although "bait and tackle" is not a specified business under the cognate New South Wales Schedule, it fell within the description of "sporting goods" within the Schedule.

[87] The Schedule in the RSL Regulation does not refer to a business of computer repair. I take judicial notice of common experience that a computer is present in most Australian households. Common household tasks such as paying accounts, connecting utilities, ordering grocery deliveries and booking tradesmen are usually conducted online. Computer repair involves finding the cause of a fault, replacing or repairing parts and restoring functionality. Because a computer is an electrical device that is an electrical repair. I find that computer repair is not totally different from household appliance repairs and falls within the business of household appliance repairs.

[88] I find that Mr Ratakhin was conducting a retail business within the terms of the RSL Act and that his business was wholly or predominantly comprised of the sale of goods and provision of services mentioned in Schedule 1.[17]

[89] The Member was in error and on that basis leave to appeal is granted. The appeal ground succeeds. The findings of the Appeal Tribunal are substituted for the Member's findings.

Ground: Failure to give adequate reasons for a finding that the business is a retail business

[91] I have earlier found that the Member misdirected himself as to the basis of his finding that Mr Ratakhin conducted a retail business.

[92] I accept that the Member did not address whether the business he found to have been conducted was the whole or predominant part of the business, to come within the definition of a retail business under the RSL Act.

[93] The ground of appeal succeeds but given the earlier finding made by the Appeal Tribunal as to the nature of the retail business, the ground of appeal is otiose.

[95] The applicant asserts that profit and loss evidence relied on at the hearing to establish the extent of sales by the business was not provided to the late Ms Tubaro's representative until the hearing was underway.

[96] The assertion as to late delivery of evidence is correct. I note that the evidence was limited in size and scope and the applicant had a proper opportunity to consider the evidence, in fact calling a witness to address the evidence. The representative for the applicant appears from the transcript to have ably challenged the evidence.

[97] I do not consider there has been a lack of procedural fairness in the course of the hearing.

[98] Given that I have found in the course of a rehearing under s 147 of the QCAT Act that a retail business was conducted by the provision of the service of household appliance repair, not sale of computers and accessories, the material as to sales turns out to be of limited relevance.

[101] The representative for the late Ms Tubaro asserts that the Member commenced the hearing by saying words to the effect: "I know all about you". I cannot locate that comment on the transcript of the hearing. I note that during the course of the hearing there was an exchange between the Member and the representative about her familiarity with the Tribunal because she appears in other matters in the Tribunal.

[102] I do not think the ground is made out. The ground of appeal does not succeed.

Ground: The Tribunal lacked jurisdiction in the matter because the RSL Act does not apply to assigned leases.

[103] The ground raises a question of mixed law and fact.

[104] The applicant submits that by ss13 and 14 of the RSL Act if a business becomes a retail shop after commencement of the lease the RSL Act does not apply to the lease or an assignment of the lease.

[105] In this case the same business has been carried on by the previous tenant and Mr Ratakhin. The sections do not apply to the facts before the Tribunal.

Ground: Panel of three members did not sit in the hearing

[108] The Member addressed the point in his decision noting Schedule 3 of the QCAT Act sets the prescribed amount at $25,000. The amount claimed by Mr Ratakhin was less than that amount. By s 102(2) of the RSL Act where the amount, value or damages in dispute is less than the prescribed amount the Tribunal may be constituted by a legally qualified member.

Ground: the Tribunal ordered a bond refund which was not part of the application

[111] When addressing any damages to which Mr Ratakhin might be entitled, he informed the Member that he had not been repaid a bond of $2,600.00.

[112] The amount ordered was within the orders available to be made by the Tribunal under s 83(2) of the RSL Act.

[113] I do not consider that there has been an error of law. The appeal ground does not succeed.

Ground: Failure to deal with the landlord's losses/ failure to give weight to the response and counter-application

[114] The ground raises a question of law or possibly a question of mixed law and fact.

[115] The late Ms Tubaro filed a response and counter-application in this dispute seeking rental arrears for the months of February to June 2023 in an amount of $7007.00, and unspecified costs incurred in changing locks and storing Mr Ratakhin's uncollected goods.

[116] The cross claim was referred to at the hearing. The Member noted that there was no supporting material for the cost of lock changes and storage of goods. He did not take that part of the claim any further.[18] I do not consider that to be an error.

[117] The Member applied conventional contractual principles to the facts to conclude that the Landlord was not entitled to claim for loss.

[118] I do not think an error is demonstrated. Insofar as it is necessary no leave to appeal is granted. The ground of appeal does not succeed.

Ground: Error in finding that the air conditioner was not working

[119] I do not think this alleged error of fact can be sustained. There was sufficient evidence detailed in the Member's reasons, on which the Member relied that the air conditioner was not working.

Ground: Reliance on the evidence of Mr Ratakhin was misplaced

[121] The ground goes to the exercise of the Member's discretion. It does not raise a question of law alone.

[122] It is submitted that the evidence of Mr Ratakhin should not have been accepted because he lacked credibility as a result of his conduct in forcing entry to the premises to take his possessions.

[123] Credibility of witnesses is best determined by the Member hearing a matter, who has the benefit of observing witnesses give evidence. The Member went to some pains in his decision to explain why he preferred the evidence of Mr Ratakhin. The conclusions he reached were all open to him and should not be disturbed on appeal.

[124] Leave to appeal is not granted. The appeal ground does not succeed.

[125] The applicant has succeeded in establishing error in the finding that Mr Ratakhin conducted a retail business comprised of the sale of computers and accessories. The appeal is also successful with respect to a failure to give adequate reasons for that finding.

[126] The Appeal Tribunal substitutes its finding as to the nature of the retail business and finds that on the evidence at the hearing below 80% of the business was the repair of computers.

[127] The business falls within the Schedule of retail businesses, that is electrical repair of household appliances.

[128] Accordingly, the business is predominantly related to a retail business as defined.

[129] The effect of the Appeal Tribunal's finding is that the orders made in the Tribunal below as to compensation stand and are confirmed, subject to the following amendments.

[130] Because of the death of Ms Tubaro and the conduct of the appeal by the Estate, the Orders made by the Member below are amended and are now made as follows:

1. The Estate of Sonia Tubaro pay Sergey Ratakhin trading as Fix My Laptop the sum of $5,000.00 compensation within 21 days of the date of this Order.
2. The Estate of Sonia Tubaro refund Sergey Ratakhin trading as Fix My Laptop the bond of $2,600.00 within 21 days of the date of this Order.

[1] Rintoul v State of Queensland & Ors [2018] QCA 20, [10].

[2] Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 40 ('Wagners').

[3] McDonalds Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293 ('McDonalds Australia Ltd').

[4] Burinpipat Pty ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100, [14]-[15].

[5] McDonalds Australia Ltd (n 4) [17]-[26].

[6] For example: Queensland Building and Construction Commission Act 1991 (Qld), s77(2).

[7] Burnitt & Anor v Pacific Paradise Resort Pty Ltd [2004] QDC 218 followed subsequently in superior court decisions.

[8] Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, 27.

[9] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43] ('Robinson Helicopter Company Incorporated').

[10] Transcript of Proceedings, Sergey Ratakhin t/as Fix My Laptop v Sonia Tabaro (Queensland Civil and Administrative Tribunal, Member King-Scott, 5 September 2023) 1-25, 12. T1.25, line 12.

[14] Chopra v Department of Education and Training [2019] VSCA 298; (2019) 60 VR 505, 527; Allen v QBCC [2024] QCA 24, [50].

[15] Robinson Helicopter Company Incorporated (n 11) [43].

[16] Tringas v Quach [2007] NSWADT 24, 44.

[17] Retail Shop Leases Regulation 2016 (Qld), s 8.

[18] Transcript of Proceedings (n 12) T132, 21-48.