Bar and restaurant tenant’s $750,000 retail lease appeal dismissed over missing proof of loss (QCAT, 2026)

What happened

In February 2018 a hospitality company took over a lease of shop premises in Little Stanley Street, South Brisbane, and ran a bar and restaurant there. The lease ran for ten years and ended on 2 December 2024, with no option to renew. The landlord was South Bank Corporation.

The relationship broke down. The tenant lodged a notice of dispute with the Small Business Commissioner, mediation failed, and the matter went to the Queensland Civil and Administrative Tribunal as a retail shop lease dispute. The tenant's list of complaints was long: water coming in from ceilings, drains and the street when it rained; an approval process it called weaponised, inconsistent and discriminatory, including over a furniture upgrade and over a change in who owned the company; rent it said was above market and not abated; a disputed turnover rent clause; construction noise and renovations next door; security staff it said harassed it in the name of compliance and put patrons off; kitchen air-conditioning that did not cool; a breach of confidentiality about its financial figures; marketing money it said was spent on another part of the precinct; and the return of its rental bond.

The tribunal that heard the dispute was made up of three people, as the Retail Shop Leases Act 1994 (Qld) requires: a legally qualified member, a member representing lessors and a member representing lessees. One director gave evidence for the tenant and one officer gave evidence for the landlord. Neither side's written statement had been signed. The hearing ran for one day on 28 November 2024 and the decision dismissing the claim came on 12 December 2024.

The first tribunal found the claims were "no more than bare allegations made without credible supporting evidence" of either the substance or the amount, noted the tenant accepted it could not put a figure on each part of its claim, and found no credible evidence that the landlord's conduct was unconscionable. It also relied on two deeds the parties had signed, including a 2020 confidentiality deed that reduced rent and in which the tenant accepted the reduction as "reasonable and final compensation" and released the landlord from claims, including compensation claims under the Act.

What each side wanted

The tenant asked the Appeal Tribunal to overturn the dismissal on five grounds: that the hearing was rushed, that it was not allowed to expand on its written evidence or cross-examine the landlord's witnesses, that the tribunal got the law on unconscionable conduct wrong, that it was wrongly required to itemise its losses, that the claim for disruption to trading under section 43 was not dealt with, and that the reasons were inadequate. It also argued the tribunal was not properly made up, which would be a jurisdictional error, and asked to rely on new material: summary documents of its BAS turnover against rent and outgoings, and video of water around the premises in wet weather. The landlord denied every complaint and had filed submissions answering each one.

What the tribunal decided

The Appeal Tribunal refused leave to appeal and dismissed the appeal. No money was ordered either way.

The application to rely on the new video footage was refused. The summary documents were held to be neither fresh nor new evidence, because they were simply an analysis of material already in the first proceeding, and would be treated as submissions only if the matter were ever reheard.

Why the tribunal decided it that way

Leave to appeal is needed where an appeal involves questions of fact, or mixed law and fact. The Appeal Tribunal weighed whether there was a reasonably arguable error, a reasonable prospect of substantive relief, a substantial injustice to correct, and a question of general importance.

On the make-up of the tribunal, section 102(1) of the Retail Shop Leases Act requires a legally qualified member and a representative of lessors and of lessees. The Appeal Tribunal found the presiding member was in fact legally qualified and had been appointed before the hearing, and that the other two were duly appointed members chosen by the President under section 165 of the QCAT Act. The Act does not require industry members to hold retail leasing credentials, only to represent lessors or lessees. There was no merit in that ground.

On the hearing itself, the Appeal Tribunal read the transcript and did not accept it was rushed or truncated: both sides were asked to explain and answer each claim, and the panel questioned and tested the evidence in an inquisitorial way. But because QCAT must give each party a reasonable opportunity to cross-examine witnesses, and neither side was ever invited to do so, the Appeal Tribunal held the first tribunal erred in law in not offering the tenant that opportunity. It also held there was an error of law in the reasons: although section 46A bans unconscionable conduct in connection with a retail shop lease and section 46B lists matters the tribunal may consider, the reasons did not set out the specific allegations, did not refer to the section 46B matters, made no findings of fact to support the conclusion, and did not explain why the tenant's evidence was not believed. Reasons are meant to show the important evidence, the material findings and the law applied, so that appeal rights mean something.

The ground that failed outright was proof of loss. The Appeal Tribunal held that the power in section 83(3) to order one party to pay "an amount" is a power to compensate a proven loss, so a claimant must establish loss or damage caused by the unconscionable conduct. Unconscionable conduct itself needs more than unfairness: it means taking unconscientious advantage of a special disadvantage, conduct well outside accepted commercial norms. The transcript showed the tenant's answers on quantifying loss were, repeatedly, that it could not, that it was very difficult, that no monetary value could be put on it, and that it expected the tribunal simply to order $750,000. A court or tribunal will do its best where the facts make damages hard to measure, but not where a party has simply failed to produce evidence that was reasonably available. That was a failure of how the claim was run, and there was no error by the first tribunal. The published text stops partway through the discussion of the section 43 disruption ground, so the final step in the reasoning that leads to the orders is not available here.

What this means if you are in a similar position

If you are in a similar position as a shop, cafe or bar tenant in a dispute with your landlord, this decision shows how much weight a tribunal puts on evidence of actual loss. Describing what went wrong is only half of a compensation claim. The other half is a figure, a method for reaching it, and records that back it up, such as trading figures, invoices for extra cleaning, repair costs or proof of lost bookings tied to the period complained about.

It also shows that a finding of unconscionable conduct is a serious one that is not made out by a list of grievances about slow approvals, inconsistent treatment or heavy-handed compliance. The decision describes it as conduct that takes unconscientious advantage of a special disadvantage, or conduct well outside accepted commercial standards. And it shows that a deed signed along the way, such as one giving a rent reduction in return for a release, can be treated as settling the claims it covers.

On the process side, the decision confirms that a tribunal must give each side a real chance to cross-examine, and must give reasons that show what evidence it relied on and what it found. In this kind of dispute most people start with a written notice of dispute to the landlord and a request for mediation, then an application to the tribunal if that does not resolve it.

How to apply: our step-by-step guide to a QCAT application. More decisions: QCAT cases and other civil disputes.

Source: RGM Hospitality Pty Ltd v South Bank Corporation [2026] QCATA 151 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.