Boss v Hamilton Island Enterprises Ltd

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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 2008

DIVISION:

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 made

ORDERS:

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

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Details
Case
[2009] QCA 229
Decision Date

CaseChat Overview and Summary

The case of Boss v Hamilton Island Enterprises Ltd involved the owners of a property on Hamilton Island who had contracted to sell the property to a third respondent. The sale was subject to the appellant, Boss, consenting to the assignment of the relevant sub-lease. A clause in the sub-lease stipulated that such consent was not to be 'arbitrarily or capriciously' withheld. Boss would only consent to the assignment on the condition that the third respondent signed a deed of consent binding it to various regulations set by the appellant. These regulations included provisions that allowed the appellant to control the entry of persons, traffic, and building and development on the island. The third respondent refused to be bound by these regulations, and Boss refused to consent to the assignment, leading to the dispute.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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