Bentley v Chang Holdings Pty Ltd [ - [2012] QSC 366

SUPREME COURT OF QUEENSLAND

CITATION:

Bentley v Chang Holdings Pty Ltd [2012] QSC 366

PARTIES:

MICHAEL LOUIS BENTLEY AND LINDA ROSEMARY BENTLEY ATF THE BENTLEY FAMILY TRUST
(applicants)
v
CHANG HOLDINGS PTY LTD ACN 071 724 233
(respondent)

FILE NO/S:

BS 11582 of 2011

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24 August 2012

JUDGE:

Philip McMurdo J

ORDER:

It is declared that the applicants have validly exercised an option granted under clause 13.01 of Registered Lease 705116939 (“the lease”) granted by the respondent as lessor to the applicants as lessees of land described as Lot 1 on RP 612483, County of Livingstone, Parish of Rockhampton, Title Reference 30430174 and are entitled to possession of that land under a further lease in accordance with clause 13.01.1.

The respondent is restrained from taking any steps to:2.

terminate (or act on any purported termination of) the lease; and(a)

recover possession of the land,(b)

in reliance on:

any purported failure of the applicants to exercise that option; or(i)

either of the documents described as “Notice to Remedy Breach” dated 7 September 2010 and 5 July 2011.(ii)

It is declared that the respondent is liable to pay to the applicants pursuant to cl 2.14 of the lease an amount of $43,561.80.3.

It is declared that:4.

the elevators in the premises constructed on the land are not “appurtenances” as that term was defined in the lease; and(a)

(b)the applicants are not liable for the costs of effecting the repair which is now required to be made to the elevator situated on the northern side of the demised premises.

CATCHWORDS:

LANDLORD AND TENANT – RENEWALS AND OPTIONS – EXERCISE OF OPTION – RIGHT TO EXERCISE OPTION – where the applicant lessees exercised their option to renew the lease under the relevant provisions of the original lease – where the respondent lessor argues that the applicants have determined any renewed lease due to their breaches of several provisions of the lease – where the respondent sent the applicant two notices in purported compliance with s 124 of the Property Law Act 1974 (Qld) – where the alleged breaches occurred after the exercise of the option to renew but before the expiry of the term of the original lease – whether the alleged breaches in the s 124 notice gives the respondent the right of forfeiture of the lease

LANDLORD AND TENANT – COVENANTS – AS TO REPAIR – FAIR WEAR AND TEAR EXCEPTION – where one of the lifts in the building required repair – where the applicants claim that the breakdown of the lift amounted to fair wear and tear which is an exception to the obligation of the lessee under the lease to maintain the demised premises – where the respondent claims that the lift is an appurtenance, not the subject of the fair wear and tear exception and therefore the…

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: [2012] QSC 366
Decision Date: 22 November 2012

CaseChat Overview and Summary

Bentley v Chang Holdings Pty Ltd involved the applicants, Bentley, seeking a declaration that they had validly exercised their option to renew their lease with the respondent, Chang Holdings Pty Ltd. The dispute centred on the respondent's assertion that Bentley had breached the lease terms, thereby invalidating the renewal. The case was heard in the Queensland Civil and Administrative Tribunal. The legal issues before the court revolved around the validity of the lease renewal and the respondent's right to terminate the lease based on alleged breaches. Specifically, the court had to determine whether the breaches notified by the respondent under section 124 of the Property Law Act 1974 (Qld) justified forfeiture of the lease and whether the lift repairs were covered by the fair wear and tear exception.

The court found that the applicants had indeed exercised their option to renew the lease in accordance with clause 13.01 of the original lease. It was noted that the breaches cited by the respondent occurred after the exercise of the renewal option but before the expiry of the original lease term. The court held that these breaches did not entitle the respondent to forfeit the lease. Regarding the lift repairs, the court concluded that the elevators were not considered appurtenances and were thus subject to the fair wear and tear exception, relieving the applicants of the obligation to maintain them.

The court's final orders declared that Bentley had validly exercised their renewal option and were entitled to possession under a further lease. It restrained Chang Holdings from terminating the lease or recovering possession based on the alleged breaches. Additionally, the court ordered Chang Holdings to pay Bentley $43,561.80 in accordance with clause 2.14 of the lease and declared that the elevators were not appurtenances, thus exempting Bentley from the repair costs.

Orders

Orders of the court

It is declared that the applicants have validly exercised an option granted under clause 13.01 of Registered Lease 705116939 (“the lease”) granted by the respondent as lessor to the applicants as lessees of land described as Lot 1 on RP 612483, County of Livingstone, Parish of Rockhampton, Title Reference 30430174 and are entitled to possession of that land under a further lease in accordance with clause 13.01.1.

The respondent is restrained from taking any steps to:2.

terminate (or act on any purported termination of) the lease; and(a)

recover possession of the land,(b)

in reliance on:

any purported failure of the applicants to exercise that option; or(i)

either of the documents described as “Notice to Remedy Breach” dated 7 September 2010 and 5 July 2011.(ii)

It is declared that the respondent is liable to pay to the applicants pursuant to cl 2.14 of the lease an amount of $43,561.80.3.

It is declared that:4.

the elevators in the premises constructed on the land are not “appurtenances” as that term was defined in the lease; and(a)

(b)the applicants are not liable for the costs of effecting the repair which is now required to be made to the elevator situated on the northern side of the demised premises.

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:	Bentley v Chang Holdings Pty Ltd [2012] QSC 366
PARTIES:	MICHAEL LOUIS BENTLEY AND LINDA ROSEMARY BENTLEY ATF THE BENTLEY FAMILY TRUST (applicants) v CHANG HOLDINGS PTY LTD ACN 071 724 233 (respondent)
FILE NO/S:	BS 11582 of 2011
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	22 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23, 24 August 2012
JUDGE:	Philip McMurdo J
ORDER:	It is declared that the applicants have validly exercised an option granted under clause 13.01 of Registered Lease 705116939 (“the lease”) granted by the respondent as lessor to the applicants as lessees of land described as Lot 1 on RP 612483, County of Livingstone, Parish of Rockhampton, Title Reference 30430174 and are entitled to possession of that land under a further lease in accordance with clause 13.01.1. The respondent is restrained from taking any steps to:2. terminate (or act on any purported termination of) the lease; and(a) recover possession of the land,(b) in reliance on: any purported failure of the applicants to exercise that option; or(i) either of the documents described as “Notice to Remedy Breach” dated 7 September 2010 and 5 July 2011.(ii) It is declared that the respondent is liable to pay to the applicants pursuant to cl 2.14 of the lease an amount of $43,561.80.3. It is declared that:4. the elevators in the premises constructed on the land are not “appurtenances” as that term was defined in the lease; and(a) (b)the applicants are not liable for the costs of effecting the repair which is now required to be made to the elevator situated on the northern side of the demised premises.
CATCHWORDS:	LANDLORD AND TENANT – RENEWALS AND OPTIONS – EXERCISE OF OPTION – RIGHT TO EXERCISE OPTION – where the applicant lessees exercised their option to renew the lease under the relevant provisions of the original lease – where the respondent lessor argues that the applicants have determined any renewed lease due to their breaches of several provisions of the lease – where the respondent sent the applicant two notices in purported compliance with s 124 of the Property Law Act 1974 (Qld) – where the alleged breaches occurred after the exercise of the option to renew but before the expiry of the term of the original lease – whether the alleged breaches in the s 124 notice gives the respondent the right of forfeiture of the lease LANDLORD AND TENANT – COVENANTS – AS TO REPAIR – FAIR WEAR AND TEAR EXCEPTION – where one of the lifts in the building required repair – where the applicants claim that the breakdown of the lift amounted to fair wear and tear which is an exception to the obligation of the lessee under the lease to maintain the demised premises – where the respondent claims that the lift is an appurtenance, not the subject of the fair wear and tear exception and therefore the…