Bagata Pty Ltd & Anor v Sunstorm Pty Ltd - [2024] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

Bagata Pty Ltd & Anor v Sunstorm Pty Ltd [2024] QCA 17

PARTIES:

BAGATA PTY LTD
ACN 010 431 820
(first appellant)
RUNNER PTY LTD
ACN 053 149 698
AS TRUSTEE FOR THE RUNNER UNIT TRUST
(second appellant)
v
SUNSTORM PTY LTD
ACN 010 887 591
(respondent)

FILE NO/S:

Appeal No 7112 of 2023
SC No 14424 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2023] QSC 104 (Applegarth J)

DELIVERED ON:

16 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2023

JUDGES:

Morrison JA and Martin SJA and Williams J

ORDERS:

Appeal dismissed with costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where dispute between Landlord and Tenant referred to an Expert under a dispute resolution clause – where determination of the Expert is conclusive and binding on the parties in the absence of manifest error – whether the primary judge erred in the construction of the term ‘manifest error’

LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – OTHER MATTERS – where the Landlord and Tenant had entered into a lease of premises – where the Landlord and Tenant came into dispute over Landlord’s storage of property on the premises and over Tenant’s manufacturing activities – where dispute referred to an Expert under a dispute resolution clause – where primary judge held that manifest error had not been demonstrated – whether primary judge erred in construction of the Lease in holding that Landlord required to deliver vacant possession of the premises at the commencement of the lease – whether primary judge erred in construction of the Lease in holding that Tenant’s activities were within Permitted Use

Byrnes v Jokona Pty Ltd [2002] FCA 41, considered
Civil Mining & Construction Pty Ltd v State of Queensland [2013] QSC 214, applied
Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264, considered
Funtastic Ltd v Madman Film and Media Pty Ltd [2016] VSC 708, cited
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, considered
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14, cited
Trampoline Enterprises Pty Ltd v Fresh Retailing Pty Ltd [2019] VSCA 74, cited
TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 4, cited
Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37, applied

COUNSEL:

P J Dunning KC, with S J Carius, for the appellants
S P Colditz for the respondent

SOLICITORS:

AJ & Co Lawyers for the appellants
JML Rose for the respondent

MORRISON JA: I agree with the reasons of Martin SJA and the orders his Honour proposes.
MARTIN SJA: This is an unusual case in which landlords left chattels (significant in both number and size)…

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: [2024] QCA 17
Decision Date: 16 February 2024

CaseChat Overview and Summary

Bagata Pty Ltd and another appellant brought an appeal against the respondent, Sunstorm Pty Ltd, to the New South Wales Supreme Court. The appellants and the respondent had entered into a lease agreement for premises, which included a dispute resolution clause referring matters to an Expert. The primary issues in this case revolved around the interpretation of the lease agreement, particularly the terms relating to vacant possession and the permitted use of the premises. The appellants argued that the primary judge had erred in his interpretation of the lease by concluding that the respondent was required to deliver vacant possession of the premises and that the appellants' manufacturing activities were within the permitted use of the premises.

The court examined the construction of the lease agreement and the interpretation of the term ‘manifest error’ within the context of the dispute resolution clause. The court held that the primary judge did not err in his interpretation of the lease. The court found that there was no manifest error in the primary judge's determination that the respondent was required to deliver vacant possession at the commencement of the lease. Furthermore, the court held that the primary judge did not err in finding that the appellants' manufacturing activities were within the permitted use of the premises. The court found that the primary judge's interpretation of the lease agreement was consistent with the terms of the contract and did not contain any manifest error.

The appeal was dismissed with costs, affirming the primary judge's decision. The court's ruling upheld the binding nature of the Expert's determination in the absence of manifest error, and confirmed the construction of the lease agreement as interpreted by the primary judge.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bagata Pty Ltd & Anor v Sunstorm Pty Ltd [2024] QCA 17
PARTIES:	BAGATA PTY LTD ACN 010 431 820 (first appellant) RUNNER PTY LTD ACN 053 149 698 AS TRUSTEE FOR THE RUNNER UNIT TRUST (second appellant) v SUNSTORM PTY LTD ACN 010 887 591 (respondent)
FILE NO/S:	Appeal No 7112 of 2023 SC No 14424 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2023] QSC 104 (Applegarth J)
DELIVERED ON:	16 February 2024
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2023
JUDGES:	Morrison JA and Martin SJA and Williams J
ORDERS:	Appeal dismissed with costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where dispute between Landlord and Tenant referred to an Expert under a dispute resolution clause – where determination of the Expert is conclusive and binding on the parties in the absence of manifest error – whether the primary judge erred in the construction of the term ‘manifest error’ LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – OTHER MATTERS – where the Landlord and Tenant had entered into a lease of premises – where the Landlord and Tenant came into dispute over Landlord’s storage of property on the premises and over Tenant’s manufacturing activities – where dispute referred to an Expert under a dispute resolution clause – where primary judge held that manifest error had not been demonstrated – whether primary judge erred in construction of the Lease in holding that Landlord required to deliver vacant possession of the premises at the commencement of the lease – whether primary judge erred in construction of the Lease in holding that Tenant’s activities were within Permitted Use Byrnes v Jokona Pty Ltd [2002] FCA 41, considered Civil Mining & Construction Pty Ltd v State of Queensland [2013] QSC 214, applied Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264, considered Funtastic Ltd v Madman Film and Media Pty Ltd [2016] VSC 708, cited Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, considered Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14, cited Trampoline Enterprises Pty Ltd v Fresh Retailing Pty Ltd [2019] VSCA 74, cited TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 4, cited Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37, applied
COUNSEL:	P J Dunning KC, with S J Carius, for the appellants S P Colditz for the respondent
SOLICITORS:	AJ & Co Lawyers for the appellants JML Rose for the respondent