Ashton v Hunt

[1998] QCA 190

COURT OF APPEAL	[1998] QCA 190
McPHERSON JA PINCUS JA AMBROSE J
CA No 7214 of 1997

GREGORY MAXWELL ASHTON, LINDSAY COLIN McCLELLAND, BERENICE BOLTON, LENORE McCLELLAND Applicants

v.

MARGARET WINIFRED HUNT	Respondent
BRISBANE
DATE 25/05/98 250598 T2/TW12 M/T COA115/98

McPHERSON JA: This is an application for leave to appeal against the decision in the District Court dismissing an action by the plaintiffs on the ground that it disclosed no reasonable cause of action. The basis for doing so was the decision of the High Court in Chan v. Cresdon Pty Ltd (1989) 168 CLR 242 holding that a claim against the guarantor in that case under a guarantee of rent "under this lease" was not maintainable where, as was so there, it was contemplated that the lease, which was for a term of five years, would be, but had not been, registered.

The terms of the guarantee and lease in the present case are similar, if not materially indistinguishable. However, since 1989, the Land Titles Act has replaced the Real Property Act 1861 under which that decision of the High Court was given. There are obvious similarities between the two Acts. For example, s.181 of the Act of 1994 corresponds with s.43 of the 1861 Act, on which some reliance was placed in Chan's case or in the judgments in that case; but there are also some differences in structure and in the provisions of the two Acts. In particular, s.71 of the later Act did not appear in its predecessor. It is, perhaps, capable of making a difference to the result arrived at in Chan's case. If so, it might also mean that some change had been brought about in the approach to unregistered long leases under the current system as it applies in Queensland. That is plainly a consideration of some weight.

Although, therefore, the decision below is, or is said to be, interlocutory, its consequences may go beyond the immediate point in issue, which is the construction of the particular lease or agreement for lease in question. A substantial sum of money is also involved. In my view leave should be granted to appeal in this case, even if the judgment below is technically only interlocutory.

There is also, I should say, an application to amend the notice of appeal by adding additional
grounds numbered 5 and 6 in what is paragraph 3 of the notice of motion filed dated 13 March
1998.

In my view, leave to amend as sought in paragraph 3 of the notice of motion should be granted. This should not be taken as in any way determining or pre-empting the question whether or not further evidence may be adduced at the hearing of the appeal, which is a separate matter for the Court that will be confronted with the appeal for which we have given leave.

There is also an application for leave to appeal against the order of the primary Judge dismissing a summons filed by the plaintiffs for discovery in the action. That dismissal appears to have followed logically from the order dismissing the action. In consequence, it would appear that we ought also to

give leave to appeal against that order, so that, if the application or appellants in this matter are in the
end successful, there will be no difficulty about obtaining the discovery sought.

I would for my part make the costs of this application, the costs of and incidental to this application costs in the appeal.

All necessary extensions of time are also granted to enable the appeal to proceed.

PINCUS JA: I agree.

AMBROSE J: I agree.

McPHERSON JA: The orders will be as I have stated them.

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