Broben v Hatfield - [2016] QCAT 341

CITATION:

Broben & Anor v Hatfield [2016] QCAT 341

PARTIES:	Paul Anthony Broben & Jason Warren Boland As Trustee (Applicant)
v
Darren Hatfield (Respondent)

APPLICATION NUMBER:

RSL061-15

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

28 July 2016

HEARD AT:

Southport

DECISION OF:

Member Steven Holzberger
Member McBryde
Member Kairl

DELIVERED ON:

19 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Darren Hatfield must pay to Paul Anthony Broben & Jason Warren Boland As Trustees the sum of $5,268.75 by 4:00 pm on 30 October 2016.

2. The application and counter-application are dismissed.

CATCHWORDS:

RETAIL SHOP LEASE-ABANDONMENT OF PREMISES - whether Lessee’s conduct amounted to wrongful repudiation of lease under lease or at common law

Property Law Act 1974 (Qld) ss 124, 130
Retail Shop Leases Act 1994 (Qld) s 64

The Progressive Mailing House Pty Ltd v Tabali (1985) 157 CLR 17
Walsh Investments Pty Ltd & Ors v SCK Properties Pty Ltd & Ors [2016] QDC 77

APPEARANCES:

APPLICANT:

Paul Anthony Broben and Jason Warren Boland as Trustees

RESPONDENT:

Darren Hatfield

REPRESENTATIVES:

APPLICANT:

Represented by Janine Broben

RESPONDENT:

Represented by Darren Hatfield

REASONS FOR DECISION

From the 1 November 2007 until 8 October 2014, Mr Hatfield was the tenant of a property situated at 3 Sportsman Avenue, Mermaid Beach. For the whole of that time, the premises were owned by Mr Broben and Mr Boland as trustees (‘the Trust’) and were used by Mr Hatfield to conduct his business of the sale of aquarium fish and aquarium products.
Initially he occupied the premises pursuant to a three-year lease commencing on 1 November 2007. On its expiry on the 31 October 2010 he continued to occupy the premises as a monthly tenant until a new lease commencing on 1 December 2011 and terminating on 30 November 2014 was put into place at his request.
The Trust retained L J Hooker Surfers Paradise as managing agents for the property at least for the time which is relevant to these proceedings. The terms of that appointment and the duties of the agent were not disclosed but it appears from the evidence that most if not all of Mr Hatfield’s queries and issues were directed to that agent. It is the evidence of Ms Janine Broben, who was granted leave to appear as the Trust’s representative, that many of those queries or issues were not passed on to the Trust. As a consequence, communication between the parties was poor.
There was throughout Mr Hatfield’s occupation of the property a large fig tree growing at the rear of the property. The tree was a source of ongoing aggravation for Mr Hatfield and according to his evidence the neighbours of the property. Among other things, it was home to a large colony of bats but more significantly shed large quantities of fruit and foliage, apparently blocking gutters and drains of the premises.
It was contended by Mr Hatfield that the trimming of the fig tree was the responsibility of the Trust and in her…

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.

Continue reading Broben v Hatfield

Details

AGLC: Broben v Hatfield [2016] QCAT 341
Case: [2016] QCAT 341
Decision Date: 19 September 2016

CaseChat Overview and Summary

The case of Broben v Hatfield arose from a dispute concerning a retail shop lease. The plaintiff, Paul Anthony Broben and Jason Warren Boland as Trustees, sought damages from the defendant, Darren Hatfield, for alleged wrongful abandonment of the leased premises. The matter was heard in the District Court of Queensland.

The primary legal issue before the court was whether the defendant's conduct amounted to a wrongful repudiation of the lease, either under the terms of the lease agreement or under the common law. The court was also required to consider the implications of relevant statutory provisions, specifically sections 124 and 130 of the Property Law Act 1974 (Qld) and section 64 of the Retail Shop Leases Act 1994 (Qld). The court examined whether the defendant's actions warranted termination of the lease and if the plaintiffs were entitled to the claimed damages.

The court determined that the defendant's actions constituted a wrongful repudiation of the lease. Drawing from established case law, including The Progressive Mailing House Pty Ltd v Tabali and Walsh Investments Pty Ltd & Ors v SCK Properties Pty Ltd & Ors, the court found that the defendant's failure to maintain the premises in a tenant-like manner amounted to a repudiation. Consequently, the court held that the plaintiffs were entitled to the damages claimed. The court ordered that the defendant must pay the plaintiffs the sum of $5,268.75 by 4:00 pm on 30 October 2016, and dismissed both the application and counter-application.

Orders

Orders of the court

1. Darren Hatfield must pay to Paul Anthony Broben & Jason Warren Boland As Trustees the sum of $5,268.75 by 4:00 pm on 30 October 2016.

2. The application and counter-application are dismissed.

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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