QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Woody Point News Pty Ltd v Strydom; Strydom v Woody Point Newsagency Pty Ltd [2022] QCATA 51	
PARTIES:	In APL270-19:	
	Woody Point News Pty Ltd	

(applicant/appellant)	

	v	
	yvonne strydom	

(respondent)	

	
In APL089-20:	
	YVONNE STRYDOM
(applicant/appellant)
v
WOODY POINT NEWSAGENCY PTY LTD
(respondent)
	
APPLICATION NO/S:	APL270-19 and APL089-20	
ORIGINATING APPLICATION NO/S:	RSL208-18	
MATTER TYPE:	Appeals	
DELIVERED ON:	20 April 2022	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	A/Senior Member Howe	
ORDERS:	1.	Appeal in matter APL270-19 allowed.
2.	Appeal in matter APL089-20 allowed.
3.	The decision of the Tribunal made 13 August 2019 is set aside.
4.	Woody Point Newsagency Pty Ltd must pay Yvonne Strydom the sum of $5,408.25 within 14 days.
5.	If a party seeks an order for costs the party shall file submissions in the Tribunal in support of the claim and serve a copy on the other party within 14 days of this order. The other party must file and serve any submissions in response within a further 14 days.
6.	Any application for costs shall be determined on the papers.	
CATCHWORDS:	APPEAL – APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR FAILURE TO GIVE REASONS FOR DECISION – EXTENT OF OBLIGATION TO GIVE REASONS -  where a lessee vacated after two terms of three years in premises – where the lessor claimed from the lessee unpaid outgoings in respect of the first term – where the lessee commenced proceedings seeking a declaration that the outgoings were not payable – where the lessor claimed the outgoings by counter application – where the lessee relied on provisions of the  Retail Shop Leases Act 1994 (Qld) requiring outgoings to first be audited and they were not – where the provisions relied on were enacted post lease and did not apply to the subject provisions – where the Tribunal failed to address a claim by the lessee that part of the outgoings were statute barred – where the time of commencement of proceedings for the purpose of the statute of limitations was the date of referral to the Tribunal – where all errors made below were errors of law – where it was appropriate that the Appeal Tribunal make final orders 
Limitation of Actions Act 1974 (Qld) s 10, s 42
Retail Shop Leases Act 1994 (Qld) s 38B, s 38C
Burinpipat Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100 
Gold Coast Jet Boating Pty Ltd v Ridong (Australia) International Pty Ltd [2022] QCAT 3 
McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293
Oxford Architects Partnership v Cheltenham Ladies College [2006] EWHC 3156 (TCC)
Price v Spoor [2021] HCA 20
Woody Point Newsagency Pty Ltd v Strydom [2019] QCAT 285	
APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	From February 2011 Woody Point Newsagency Pty Ltd conducted a newsagency business from rented premises at Woody Point. Mr Zhan effectively ran the business. The lessor was Ms Strydom.
[2]	Mr Zhan’s company leased the premises for three years from 28 February 2011 until 27 February 2014 (‘the first term’). The parties then negotiated a further three year term through to 27 February 2017. After that Mr Zhan held over as a monthly tenant until 10 September 2018.
[3]	Mr Zhan’s company did not pay outgoings in respect of the first three year term. After Mr Zhan vacated Ms Strydom claimed them for the first term and Mr Zhan denied they were due. He said it was agreed as a condition of his exercise of a second term of three years that he would not pay the outgoings for the first term.
[4]	Mr Zhan commenced proceedings in the Tribunal seeking a declaration that the outgoings for the first term were not payable and to recover legal fees of $660 paid by his company to Ms Strydom’s solicitors for work done which could not be charged his company as lessee.
[5]	Ms Strydom filed a response to the claim in which she also claimed payment of the first term’s outgoings.
[6]	The dispute was heard before a three member panel (‘the panel’) and the panel ordered Woody Point Newsagency Pty Ltd as trustee for Zhan Family Trust t/a Woody Point News to pay Ms Strydom the sum of $3,637.32.
[7]	Both parties are unhappy with the award. Both filed separate appeals. The appeals are appropriately dealt with together.
The grounds of appeal
[8]	Mr Zhan has three grounds of appeal. He says they are errors of law:
(a)	The panel erred in allowing Ms Strydom’s claim to the first term outgoings where the outgoings had not been audited and that was a required prerequisite to any claim for payment;
(b)	The panel erred in awarding the outgoings in circumstances where they were statute barred and that had been raised by Mr Zhan in the proceedings but ignored by the panel;
(c)	The panel erred in failing to allow him recovery of the $660 he had paid for Mrs Strydom’s legal costs in circumstances where those fees were not payable by his company as lessee by virtue of the provisions of the Retail Shop Leases Act 1994 (Qld).
[9]	 Ms Strydom has one ground of appeal. She says it is an error of fact:
(a)	The panel erred in awarding her outgoings for the first term in the amount of $4,297.32 where the outgoings were in fact $15,850.51.
The award of outgoings
[10]	I deal with Ms Strydom’s ground of appeal first. She says the Tribunal made an error of fact about the amount of the award in her favour.
[11]	The panel said this in their reasons for decision:
[5] However, as a concession to Zhan, Strydom allowed him to postpone payment of outgoings until the end of the first lease. By that time Zhan’s indebtedness on that account amounted to $4,297.32 (including $47.32 GST), of which Strydom now requires payment in full. Strydom has other claims, which will be considered below.
[12]	There was no evidence led by either party that the outgoings claimed were $4,297.32 (including $47.32 GST). Ms Strydom claimed $15,850.51 for outgoings. She relied on evidence from an accountant in support of her claim, and the panel accepted the evidence of the accountant’s figures to verify the amount of the outgoings. But the accountant’s figures do not mention an amount of $4,297.32 (including $47.32 GST) for outgoings, in total or part. 
[13]	There is no explanation given in the reasons for decision how the panel came to the amount awarded for outgoings. They mention the figure of $4,297.32 in two subsequent paragraphs, therefore it is doubtful it is a typographical error. There is no suggestion in the reasons for decision that the award is for part of the total claimed. 
[14]	A failure to explain the basis of an award is an error of law, not fact.
[15]	I determine the failure to explain how the amount was calculated was an error of law and Ms Strydom’s appeal must succeed as far as it concerns challenging the award of $4,297.32 to her for outgoings. I deal further with her true entitlement below.
Legal Costs
[16]	I proceed to deal with Mr Zhan’s ground of appeal concerning the panel’s claimed failure to allow him recovery of the $660 he had paid for Ms Strydom’s legal costs first.
[17]	Mr Zhan is mistaken. The panel did allow him that amount. They reduced the award of outgoings to Ms Strydom by the amount of $660. 
[18]	This ground of appeal fails.
Audited outgoings necessary
[19]	Mr Zhan says Ms Strydom was not entitled to recover any of the first term outgoings because they had to be audited by a registered auditor before any claim could be made. She had not done that and therefore she had no valid claim for the money.
[20]	Mr Zhan relies on the following provisions of the Retail Shop Leases Act 1994 (Qld) (RSL Act) in support of his contention:
38B Audited annual statement of outgoings 
(1)	The lessor under a retail shop lease must give the lessee a statement in the approved form of the lessor’s apportionable outgoings (the audited annual statement). 
(2)	The audited annual statement must be given to the lessee within 3 months after the end of the period to which the outgoings relate. 
(3)	The audited annual statement must— 
(a)	be prepared by a registered auditor in accordance with auditing standards generally accepted in the Australian accounting profession; …

38C Lessor does not give outgoings estimate or audited annual statement 
(1)	This section applies if a lessor does not give the lessee an outgoings estimate or an audited annual statement. 
(2)	The lessee may withhold payments in relation to apportionable outgoings until the lessor gives the outgoings estimate or audited annual statement to the lessee.
[21]	The subject lease commenced on 28 February 2011. As at that date the RSL provisions were different and stipulated only as follows:
37 Requirements when lessee to pay lessor’s outgoings 
(1)	In this section— outgoings include maintenance and promotion amounts.
(2)	…
(c)	the lessor must give the lessee an audited annual statement in the approved form of the outgoings within 3 months after the end of the period to which the outgoings relate. 
Maximum penalty—60 penalty units
[22]	As at the end of the first term of three years in 2014 there was no provision for the lessee to withhold payment of outgoings until an audited annual statement was given. If the lessor failed to give an audited report there was simply potential for a monetary penalty to be imposed.
[23]	Ms Strydom’s claim relates to outgoings falling due well before s 38B and s 38C were introduced into the RSL legislation. Sections 38B and 38C were introduced into the RSL Act on 12 September 2016. As at that date Ms Strydom was entitled to sue for outgoings due with respect to the first three years of the lease and Mr Zhan was not entitled to withhold payment simply on the basis an audited statement had not been given.
[24]	This ground of appeal fails.
Statute barred
[25]	Mr Zhan says he pleaded this defence in the Application he filed and in his company’s Response to the Respondent’s Defence. He said he also raised the issue at the hearing below but the panel did not address it.
[26]	A perusal of the transcript of the hearing shows no mention made by either party or the panel of a limitation issue in the matter.
[27]	I take Mr Zhan’s reference to his Application to be a reference to the Notice of Dispute he filed in the registry on 13 September 2018 which was referred to the Tribunal for determination on 18 November 2018.
[28]	There are no pleadings in Tribunal proceedings. Pleadings are often utilised on a voluntary basis by legal representatives acting, usually in more complex matters such as building or body corporate matters, and sometimes retail shop lease disputes. Rather in the Tribunal the issues for determination in any matter are derived from the statements of evidence filed by the parties.
[29]	There were no formal pleadings in this matter.
[30]	Whilst a statute of limitations defence was not raised in the Notice of Dispute, Mr Zhan did raise it in the document he described as his Response to the Respondent’s Defence filed in the Tribunal on 27 May 2019. 
[31]	In that document Mr Zhan repeated his primary contention that there was an agreement between the parties whereby, in exchange for him exercising the option for a second term, Ms Strydom agreed she would waive her claim to outgoings in respect of the first term. Then he adds:
Further, if the outgoings would otherwise be recoverable (which I deny), any right which Ms Strydom had to recover outgoings has expired under the Limitation of Actions Act 1974, as follows:
a.	The right to recover the outgoings in respect of the period ended 30 June 2011 expired on 30 June 2017;
b.	The right to recover the outgoings in respect of the period ended 30 June 2012 expired on 30 June 2018.
Section 10 of the Limitations of Actions Act 1974 provides that [an] action to recover the outgoings shall not be brought after the expiration of 6 years from the date on which the cause of action arose. Under the lease, the cause of action arose at the latest at the end of the financial year in which the outgoings were incurred.
[32]	The limitation issue was therefore clearly raised as an issue to be determined in the proceedings.
[33]	Ms Strydom submits the limitation point was dealt with by the panel with their conclusion that there was a postponement of payment of the outgoings until the end of the first lease in 2014. She issued a tax invoice for the outgoings on 30 August 2018, which was therefore within the six year limitation period. 
[34]	Ms Strydom may be referring to the letter dated 30 August 2018 referred to by the panel in their reasons for decision as evidence of what is described as Ms Strydom’s firm belief that the outgoings in respect of the first term remained payable. In the letter Ms Strydom referred to Mr Zhan having acknowledged and requested that the payment of the outgoings be delayed over the years.
[35]	The panel did not consider the limitation issue. The panel only considered Mr Zhan’s contention that there was an agreement between the parties that Ms Strydom would forego any claim for outgoings due in respect of the first term in consideration of Mr Zhan renewing the lease for an additional three years. On that point they found against him.
[36]	The basis of Ms Strydom’s contention that the panel did consider the limitation period issue is not explained well or at all.
[37]	In so far as Ms Strydom is submitting that the limitation period was extended by agreement between the parties, that submission must fail.
[38]	The High Court recently addressed the issue of parties contracting out of limitation periods in Price v Spoor [2021] HCA 20. 
[39]	The High Court found an agreement not to plead a limitations defence, entered into for consideration, is not void as against public policy, and the benefit conferred by statute on a defendant to plead a limitation period can be given up.
[40]	Kiefel CJ and Edelman J said:
… the statutory bar is not raised for the court's consideration unless and until a defence is pleaded and that a defendant has a choice whether to do so. A defendant may bargain away the statutory right and that bargain may be enforced.
[41]	The High Court decision appears to be of general application and authority for the proposition that parties are permitted to contract out of limitation periods.
[42]	Having said that, it cannot reasonably be challenged that any such agreement needs to be clearly established, as observed by Ramsay J in the UK authority Oxford Architects Partnership v Cheltenham Ladies College [2006] EWHC 3156 (TCC):
The Limitation Act 1980 provides a statutory defence which a party may rely on. A party is not obliged to rely on a statutory limitation defence but is generally entitled to do so. It is possible for a party to agree that it will not rely on a statutory limitation defence or for the parties to agree that a statutory limitation defence will apply from an agreed date, for instance in a standstill agreement. In certain circumstances a party may be precluded from relying on a statutory defence because of an estoppel. However, absent such an agreement or an estoppel a party is entitled to rely on a statutory limitation defence. In common with all other such rights any provision which seeks to exclude a party's right to rely on a statutory limitation defence must do so in clear terms.
[43]	There was certainly no such clear agreement established on the evidence before the panel that the limitation period would be extended or not apply to the first term outgoings. Indeed there was no evidence suggesting the limitation issue was an issue to mind between the parties at any time.
[44]	In so far as Ms Strydom’s submission is that the panel found the date the outgoings became payable was at the end of the first term and that was the date from which the limitation period ran, the reasons for decision do not support such interpretation, particularly given no mention was made in the reasons for decision of the limitation period defence being raised. The panel stated:
[4]	The first lease provided inter alia: 
Before any Accounting Period the Landlord may give the tenant an estimate of the amount which must be paid to the landlord under clause 5.1 for that Accounting Period. The tenant must pay the estimated amount by equal periodic payments during that Accounting Period when the Annual Rent is due. Any deficiency or excess will be adjusted at the end of the Accounting Period. 
[5]	However, as a concession to Zhan, Strydom allowed him to postpone payment of outgoings until the end of the first lease. By that time Zhan’s indebtedness on that account amounted to $4,297.32 (including $47.32 GST), of which Strydom now requires payment in full. Strydom has other claims, which will be considered below.
[45]	The postponement of payments otherwise due under the lease by agreement of the parties, without more, does not affect statutory time limits applying to their recovery.
[46]	Ms Strydom was well aware of the obligation of Mr Zhan to pay outgoings each month through the first term of the lease. In her Response document filed 1 May 2019 she states:
Over many years I allowed Mr Zhan to get himself sorted when I waited to compile the Outgoings bill. I could have given it annually, or actually monthly, I have carried this debt since 2011.
[47]	Rent and outgoings for the first term of the lease was payable on the first day of each month. That is stated in the schedule to the lease in respect of rent and as noted by the panel clause 5.2 of the lease makes similar provision with respect to outgoings. Outgoings were to be paid periodically throughout the accounting periods when annual rent was paid which was on a periodic basis on the first day of each month.
[48]	The limitation period applied to all such payments. The monthly rent was paid but not the monthly payments of outgoings.
[49]	By s 10 of the Limitation of Actions Act 1974 (Qld):
Actions of contract and tort and certain other actions 
(1)	The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose— 
(a)	subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person; …
[50]	The effect of this is that those unpaid monthly amounts of outgoings that accrued due to Ms Strydom more than six years before she commenced proceedings to recover them, are now statute barred. 
[51]	It is necessary to determine when she commenced action to recover them to determine whether all or some of the monthly payments of outgoings are affected by the limitation period.
[52]	Ms Strydom claimed them in her response to Mr Zhan’s claim in matter RSL208-18. The parties and the panel treated that document as constituting both a response and counter application.
[53]	By s 42 of Limitation of Actions Act 1974:
Provisions as to set-off or counterclaim 
For the purposes of this Act, a claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.
[54]	Ms Strydom’s claim to recover the outgoings is therefore the date of commencement of the action brought by Mr Zhan. That date must be determined.
[55]	Mr Zhan filed a Notice of Dispute in the Tribunal on 13 September 2018. The Registrar referred the dispute to a mediator for mediation. The mediation was given the case number RSL177-18. The mediator referred the matter back to the Registrar on 12 November 2018 under s 63 of the RSL Act on the basis the parties could not reach a mediated solution and the Registrar referred the matter to the Tribunal under case number RSL208-18.
[56]	In Gold Coast Jet Boating Pty Ltd v Ridong (Australia) International Pty Ltd [2022] QCAT 3 Member Deane determined that the date of commencement of proceedings in the Tribunal is the date of referral to the Tribunal by the Registrar. 
[57]	Whilst the possibility that the lodgement of the Notice of Dispute itself constituted a proceeding before the Tribunal was raised before Justice Alan Wilson in the matter of McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293, his Honour did not have to decide that issue given the circumstances that applied there:
It is also suggested, for McDonald’s, that the Notice of Dispute itself is a proceeding because it is now ‘lodged’ in QCAT. In light of the conclusion just set out it is unnecessary to express a view about that submission but, certainly, the fact that the chief executive under the RSL Act is now the Principal Registrar of QCAT creates an obvious harmony between the RSL Act and QCAT proceedings. 
[58]	Despite the newly introduced harmony of roles of the chief executive and the registrar when the jurisdiction was granted the Tribunal as mentioned in Emaaas, in my opinion the Tribunal is seised of jurisdiction in respect of the dispute only after it has been referred by the registrar to the Tribunal from the mediator who attempted to mediate the dispute.
[59]	Prior to the referral to the Tribunal by the registrar, the Tribunal has limited power to become involved in matters between the parties, and then only in very narrow circumstances which had no application here.
[60]	In Burinpipat Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100 Senior Member Brown identified the mediation process as procedural. He said:
[14]	The conduct of the pre-proceedings mediation under the RSL Act is, with a limited exception, a procedural step which must be undertaken before a party may commence proceedings in the Tribunal. The RSL Act creates a framework to encourage the pre-proceeding resolution of disputes.
[61]	The date of commencement of the action by the referral of the matter to the Tribunal was therefore 12 November 2018. By virtue of s 42 of the Limitation of Actions Act 1974 Ms Strydom’s claim for unpaid outgoings from the first term is to be considered as at that date for the purpose of the Limitations Act, any monthly outgoings payable prior to 12 November 2012 are statute barred and cannot be recovered. The outgoings recoverable by Ms Strydom are therefore as follows: 
1 December 2012 to 30 June 2013 (on a pro rata basis) 	$3,392.71
1 July 2013 to 27 February 2014				$2,675.54
Total							$6,068.25
Determination
[62]	Both appeals succeed. Mr Zhan’s appeal on the ground that the Tribunal below failed to address the issue raised in his material that Ms Strydom’s claim to outgoings in respect of the first term was affected by the limitation period of six years from date of accrual. Ms Strydom’s appeal on the ground that the Tribunal erred in awarding outgoings without explanation as to the basis of award or calculation of the amount.
[63]	Both errors are errors of law only. On that basis the Appeal Tribunal may do a number of things. One is to set aside the decision and substitute its own decision. That is appropriate here. There is no utility in returning the matter to the Tribunal for reconsideration.
[64]	Ms Strydom is entitled to recover an amount of $6,068.25 for outgoings unpaid and recoverable in respect of the first term of the lease. From that amount Mr Zhan is entitled to retain the amount of $660 in respect of payment of Ms Strydom’s legal costs, leaving a balance in favour of Ms Strydom of $5,408.25.
Orders
[65]	The decision of the Tribunal made 13 August 2019 is set aside.
[66]	Woody Point Newsagency Pty Ltd must pay Yvonne Strydom the sum of $5,408.25 within 14 days.
[67]	If a party seeks an order for costs the party shall file submissions in the Tribunal in support of the claim and serve a copy on the other party within 14 days of this order. The other party must file and serve any submissions in response within a further 14 days.