SUPREME COURT OF QUEENSLAND
CITATION:
Boss & Ors v Hamilton Island Enterprises Ltd [2009] QCA 229
PARTIES:
HAMILTON ISLAND ENTERPRISES LIMITED
(appellant)
v
LESLIE JOSEF BOSS
(first respondent)
DEBORAH ANN OWEN
(second respondent)
NORTHAUST LEISURE PTY LTD
(third respondent)FILE NO/S:
Appeal No 12951 of 2008
Appeal No 13093 of 2008
SC No 4035 of 2008DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
11 August 2009
DELIVERED AT:
Brisbane
HEARING DATE:
16 April 2009
JUDGES:
Fraser and Chesterman JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS: 1. Appeal dismissed
2. Appellant to pay each respondent’s costs of the appeal
CATCHWORDS: LANDLORD AND TENANT – COVENANTS – NOT TO ASSIGN OR SUBLET – LESSOR’S CONSENT – NOT TO BE UNREASONABLY WITHHELD ETC – where owners of a property on Hamilton Island contracted to sell the property to the third respondent – where sale was subject to the appellant consenting to the assignment of the relevant sub-lease in relation to the land – where a clause in the sub-lease stated that such consent was not to be ‘arbitrarily or capriciously’ withheld – where appellant would consent only on the condition that the third respondent sign a deed of consent binding it to the appellant’s various regulations – where regulations contained, inter alia, clauses whereby the appellant controlled the entry of persons, traffic and building and development on the island – where third respondent refused to be bound by these regulations and the appellant refused to consent to the assignment – whether the appellant’s regulations eroded the rights conveyed by the sub-lease – whether the appellant considered the individual characteristics of the third respondent in refusing consent – whether the appellant’s insistence upon its regulations was reasonable – whether the appellant’s withholding of consent was unreasonable under s 121 Property Law Act 1974 (Qld)
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – where appellant argued that it did have regard to certain characteristics of the third respondent in deciding whether it would consent to the assignment – where appellant argued that the Hamilton Island community generally adhered to the regulations – where third respondent argued that these points were not run at trial and are not available on the pleadings – whether the appellant could rely on these points in the appeal
LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – where appellant sought to rely in part on an agreement for lease made between the appellant and the previous sub-lessee of the land in question – whether this previous agreement for lease was relevant to the construction of the subsequent sub-lease
Property Law Act 1974 (Qld), s 105(1)(b), s 121
Allmere Pty Ltd v Burbank Trading Pty Ltd [2008] VSC 139, cited
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Keep reading for free
Create a free CaseChat account to read Boss v Hamilton Island Enterprises Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2009] QCA 229
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appellant's regulations eroded the rights conveyed by the sub-lease, whether the appellant considered the individual characteristics of the third respondent in refusing consent, whether the insistence upon its regulations was reasonable, and whether the withholding of consent was unreasonable under section 121 of the Property Law Act 1974 (Qld). The court also needed to determine whether the appellant could rely on points and objections that were not taken below, specifically whether the appellant had considered the community's adherence to the regulations in deciding whether to consent to the assignment, and whether an agreement for lease between the appellant and the previous sub-lessee was relevant to the construction of the subsequent sub-lease.
The court found that the appellant had not unreasonably withheld its consent. It held that the appellant's regulations did not erode the rights conveyed by the sub-lease and that the appellant had considered the individual characteristics of the third respondent in refusing consent. The court also found that the appellant's insistence upon its regulations was reasonable. As for the points and objections not taken below, the court held that the appellant could not rely on them. The court further found that the agreement for lease between the appellant and the previous sub-lessee was not relevant to the construction of the subsequent sub-lease. The appeal was dismissed, and the appellant was ordered to pay each respondent's costs of the appeal.
Orders
Orders of the court
1. Appeal dismissed
2. Appellant to pay each respondent’s costs of the appeal
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.