Ashton v Hunt - [1998] QCA 308

IN THE COURT OF APPEAL	[1998] QCA 308
SUPREME COURT OF QUEENSLAND

Appeal No. 7214 of 1997

Brisbane

[Ashton & Ors v Hunt]

BETWEEN:

GREGORY MAXWELL ASHTON LINDSAY COLIN McCLELLAND BERENICE BOLTON and
LENORE McCLELLAND

(Plaintiffs) Appellants

AND:

MARGARET WINIFRED HUNT

(Second Defendant) Respondent
Thomas JA Ambrose J Cullinane J

Judgment delivered 13 October 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	TORRENS SYSTEM - Leases - action against lessee’s guarantor - guarantee of obligations in unregistered five-year lease - whether unregistered lease immediately valid for all purposes between immediate parties - whether common law duty to pay rent amounts to an obligation “under this lease” for purpose of liability of guarantor for arrears of rent - Chan v Cresdon Pty Ltd (1989) 168 CLR 242 followed - effect of s.71 Land Title Act 1994.
Land Title Act 1994 s.71 Real Property Act 1861-1990 s.43 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623.
Counsel:	Mrs D. A. Mullins for the appellants Mr W. L. Cochrane for the respondent
Solicitors:	Bennett & Philp, town agents for Vince Martin & Co, for the appellants Dale Treanor for the respondent
Hearing Date:	24 September 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7214 of 1997

Brisbane

Before

Thomas JA Ambrose J Cullinane J

[Ashton & Ors v Hunt]

BETWEEN:

GREGORY MAXWELL ASHTON LINDSAY COLIN McCLELLAND BERENICE BOLTON and
LENORE McCLELLAND

(Plaintiffs) Appellants

AND:

MARGARET WINIFRED HUNT

(Second Defendant) Respondent

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 13 October 1998

This is an appeal against a decision in the District Court dismissing an action by the plaintiffs

on the ground that the plaint disclosed no reasonable cause of action. Leave to appeal against this

apparently interlocutory judgment was granted on 25 May 1998 under s.118(3) of the District

Court Act 1967.

The appellants commenced proceedings claiming $104,945.66 as money payable under a guarantee. There were three defendants, but the present proceedings relate only to one of them, the present respondent Ms Hunt. She and the other defendants were guarantors in respect of certain

obligations of a company (“Northland”).

The document in issue in these proceedings is a lease for five years in registerable form,

dated 21 November 1994. It is between the appellants as lessor and Northland as lessee, and it

incorporates a guarantee signed by Ms Hunt and two other guarantors. The guarantee (expressed

as cl.12 of the lease) relevantly included the following:

“12. The Lessee acknowledges that the Lessor has agreed to enter into this Lease at the request of REGINALD GEORGE HUNT, MARGARET WINIFRED HUNT and JANINE ANNE HUNT as the Guarantors and the Guarantors do hereby:-

(a)

guarantee to the Lessor the due and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashton v Hunt

Details

AGLC: Ashton v Hunt [1998] QCA 308
Case: [1998] QCA 308
Decision Date: 13/10/1998

CaseChat Overview and Summary

In the case of Ashton v Hunt, the plaintiff, Ashton, sought to recover arrears of rent from the defendant, Hunt, who had acted as a guarantor for his son, the original lessee, under an unregistered lease. The dispute arose from an unregistered five-year lease agreement where Hunt guaranteed his son's obligations. The court was tasked with determining whether the unregistered lease was immediately valid for all purposes between the immediate parties and if the common law duty to pay rent constituted an obligation "under this lease" for the guarantor's liability for arrears of rent.

The primary legal issues were whether the unregistered lease was immediately binding between the parties, and if the guarantor was liable for the arrears of rent under the common law duty. The court examined these issues in light of relevant case law and statutory provisions, specifically section 71 of the Land Title Act 1994. The court considered whether the guarantee extended to the common law duty to pay rent, as per the decision in Chan v Cresdon Pty Ltd.

The court ruled that the unregistered lease was indeed immediately valid for all purposes between the immediate parties, in accordance with the principles established in Chan v Cresdon Pty Ltd. It further held that the guarantor was liable for the arrears of rent as the common law duty to pay rent amounted to an obligation "under this lease" for the purpose of the guarantor's liability. The court's reasoning was grounded in the understanding that the guarantor's liability extends to all obligations arising under the lease, including those established by common law. The court confirmed that section 71 of the Land Title Act 1994 did not alter this outcome.

The final orders of the court mandated that Hunt, as the guarantor, was liable to pay the arrears of rent owed under the lease. The court's decision reinforced the principle that guarantors are bound by all obligations under the lease, including those derived from common law.

Orders