Aussie Traveller Pty Ltd v Marklea Pty Ltd - [1997] QCA 2

IN THE COURT OF APPEAL	[1997] QCA 002
SUPREME COURT OF QUEENSLAND
Brisbane
Before	Fitzgerald P McPherson JA Thomas J

[Aussie Traveller P/L v. Marklea P/L]]

Appeal No. 2777 of 1996

BETWEEN:

AUSSIE TRAVELLER PTY LTD

(Plaintiff) Appellant

AND:

MARKLEA PTY LTD

(Defendant) Respondent

Appeal No. 2781 of 1996

BETWEEN:

MARKLEA PTY LTD

(Defendant) Appellant

AND:

AUSSIE TRAVELLER PTY LTD

(Plaintiff) Respondent

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Thomas J.

[Aussie Traveller P/L v. Marklea P/L]

Appeal No. 2777 of 1996

BETWEEN:

AUSSIE TRAVELLER PTY LTD

(Plaintiff) Appellant

AND:

MARKLEA PTY LTD

(Defendant) Respondent

Appeal No. 2781 of 1996

BETWEEN:

MARKLEA PTY LTD

(Defendant) Appellant

AND:

AUSSIE TRAVELLER PTY LTD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 11 February 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of the other

members of the Court.

The substantial issue for determination on this appeal is whether Aussie Traveller Pty Ltd

established that Marklea Pty Ltd is liable to it for breach of the lease agreement by reference to the effect on Aussie Traveller of the activities conducted in the adjoining premises by another of

Marklea’s tenants, Top Flight. It was not in dispute that Marklea’s liability was the same as it would

have been if it, not Shonafield Pty Ltd, had made the agreement with Aussie Traveller.

Apart from an option of renewal, the lease agreement did not contain any express promises by

Marklea except “... to let ... the ... premises ... to be held by ... Aussie Traveller Pty Ltd as Tenant

...”. However, cl. 4, contained a promise by Aussie Traveller “[n]ot to use or permit to be used the

premises or any part hereof for any purpose other than a manufacturing and sale of new/repaired

caravan awnings/annexes and camping equipment”; by implication, Marklea promised that Aussie

Traveller might use the premises for that purpose, as it did. For Aussie Traveller to hold its

judgment against Marklea, it must establish that there was a further implied promise by Marklea that

Aussie Traveller’s permitted use of the premises would not be unreasonably disturbed by Marklea

or another of its tenants.[1]
There are two possible bases for the implication of such a promise; one is an implication by law

[1] cf. cl. 20 of sch. 3 to the Property Law Act.

arising from the nature of the contract between Aussie Traveller and Marklea, i.e., a lease

agreement; the other is an implication of fact, based on the presumed intention of the parties because

it was necessary to give business efficacy to their contract.[2] Even if the cases, a number of which

[2] See Breen v. Williams (1996) 186 C.L.R. 71, 80, 90-91, 102-103, 123-124.

are referred to by the other members of the Court, leave it open to question whether such a…

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.

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Details

Case: [1997] QCA 2
Decision Date: 11/02/1997

CaseChat Overview and Summary

In the case of Aussie Traveller Pty Ltd v. Marklea Pty Ltd, the dispute centred around a tenant’s right to quiet enjoyment in a leased property. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Aussie Traveller Pty Ltd, claimed that their quiet enjoyment of the premises was disturbed by the defendant, Marklea Pty Ltd, due to the defendant’s actions or inactions regarding another tenant's activities. Aussie Traveller sought compensation for the disturbances, arguing that Marklea had breached implied obligations under the lease agreement.

The court was required to determine whether the defendant, as the landlord, had breached any implied obligations to ensure the plaintiff's quiet enjoyment. The key legal issue was whether the defendant was responsible for the disturbances caused by another tenant on the property. This required the court to consider the principles established in Gordon v. Lidcombe Development Pty. Ltd. and O’Keefe v. Williams, both of which addressed the responsibilities of a landlord in maintaining quiet enjoyment for tenants. The court needed to assess whether Marklea had control over the disturbances and if they had failed to take reasonable steps to prevent them.

The court found that the defendant, Marklea Pty Ltd, had an implied obligation to ensure that the plaintiff's quiet enjoyment was not disturbed. It held that the defendant's failure to address the disturbances caused by another tenant constituted a breach of this obligation. The court considered the precedent set by Gordon v. Lidcombe Development Pty. Ltd. and O’Keefe v. Williams, concluding that the defendant had not taken sufficient action to prevent the disturbances. Consequently, the court ruled in favour of the plaintiff, Aussie Traveller Pty Ltd, awarding damages for the loss of quiet enjoyment. The exact amount of damages was to be determined in further proceedings.

Orders