BS Investments Pty Ltd v Contempree

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DISTRICT COURT OF QUEENSLAND

CITATION:

BS Investments Pty Ltd & Anor v Contempree & Ors [2020] QDC 29

PARTIES:

BS INVESTMENTS PTY LTD (ACN 135 819 939) AS TRUSTEE FOR B ENTITIES SMITH INVESTMENT TRUST
(First plaintiff)

and

TIRLEY HOLDINGS PTY LTD (ACN 135 942 862) AS TRUSTEE FOR GODDARD FAMILY TRUST
(Second plaintiff)

v

MARK CONTEMPREE
(First defendant)

and

PAUL DAVID POWER
(Second defendant)

and

FIONA POWER
(Third defendant)

FILE NO/S:

586/18

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

12 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

3-4 December 2019; 10 February 2020

JUDGE:

Kent QC DCJ

ORDER:

1.   Judgment for the plaintiffs against the defendants in the sum of $528,555.40

2.   I will hear the parties as to costs

CATCHWORDS:

GUARANTEE AND INDEMNITY – ASSIGNMENT – Whether the lease was a valid lease capable of assignment – Where the 10 year lease was not registered at the time of assignment – Whether the assignment document was ineffective because of lack of proper definition of the interest to be assigned, such as to be in breach of s10 of the Property Law Act 1974 (Qld)

GUARANTEE AND INDEMNITY – ENFORCEMENT OF GUARANTEE AND RELATED MATTERS – Whether a right to payment can be assigned or guaranteed on a tenancy at will or equitable lease – Whether the first defendant was free of his guarantee because the guarantee operated only in respect of a legal lease – Where the lease was imperfectly executed.

GUARANTEE AND INDEMNITY – LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – SUBJECT MATTER OF LEASE – OTHER MATTERS – Whether the lease was not properly defined in the guarantee so as to render it ineffective – Whether the guarantee was so indecipherable as to contravene s 56 of the Property Law Act 1974 (Qld).

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – FORFEITURE – RE-ENTRY AND PROCEEDINGS – WHAT CONSTITUTES RE-ENTRY – Whether the presence of a caretaker on the premises constituted a re-entry by the lessor – Where the keys were not returned to the lessor – Where the lessee’s chattels remained on the premises.

LANDLORD AND TENANT - TERMINATION OF THE TENANCY – GENERALLY – Whether the plaintiff elected to terminate the lease for breach – Where the lessee fell into arrears – Whether the delay in registering the lease constituted a repudiation/termination – Whether the defendants affirmed the lease – Whether the parties’ conduct was consistent with maintaining the lease.

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – SURRENDER – SURRENDER BY OPERATION OF LAW – PARTICULAR CASES – Whether the plaintiff surrendered the lease by operation of law – Whether the plaintiffs re-entered the premises or otherwise terminated the lease – Whether the presence of a caretaker was reasonable in protecting the first plaintiff’s position and maintaining the property while maintaining their rights against the defendants.

ESTOPPEL – ESTOPPEL BY JUDGMENT – ANSHUN ESTOPPEL – GENERALLY – Whether the plaintiff was estopped from bringing…

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Details
Case
[2020] QDC 29
Decision Date

CaseChat Overview and Summary

BS Investments Pty Ltd sued Contempree in the District Court of Queensland, seeking damages for breach of a guarantee and indemnity. The dispute arose from a commercial lease of a property in Queensland, which the defendants had assigned to the plaintiffs. The plaintiffs claimed that the defendants had breached the guarantee by failing to pay the lease payments. The defendants argued that the assignment was ineffective, and that the guarantee was unenforceable due to the lease not being properly defined.

The court had to decide whether the assignment of the lease was valid and enforceable. It also needed to determine whether the guarantee was properly defined in the assignment document and whether the guarantee was enforceable. The court had to consider whether the lease was a valid lease capable of assignment, and whether the guarantee operated only in respect of a legal lease. Additionally, the court had to decide whether the plaintiffs had terminated the lease for breach, whether the defendants affirmed the lease, and whether the presence of a caretaker constituted a re-entry by the lessor.

The court found that the assignment was valid and enforceable, and that the guarantee was properly defined. The court held that the guarantee was enforceable, and that the defendants were liable for the unpaid lease payments. The court found that the plaintiffs had not terminated the lease for breach, and that the defendants had affirmed the lease. The court also held that the presence of a caretaker did not constitute a re-entry by the lessor. Finally, the court held that the plaintiff was not estopped from bringing the proceedings because of an earlier action commenced in the Magistrates Court.

The court ordered judgment for the plaintiffs against the defendants in the sum of $528,555.40. The court will hear the parties as to costs.

Orders

Orders of the court

1. Judgment for the plaintiffs against the defendants in the sum of $528,555.40

2. I will hear the parties as to 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

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