SUPREME COURT OF QUEENSLAND
CITATION:
Carter v Mackey Motels Pty Ltd [2023] QSC 128
PARTIES:
GARY JOHN CARTER AND WENDY MAREE KLEIN-CARTER AS TRUSTEES FOR THE CARTER FAMILY TRUST
(plaintiffs)
v
MACKEY MOTELS PTY LTD(defendant)
FILE NO:
7 of 2016
DIVISION:
Trial
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
22 June 2023
DELIVERED AT:
Brisbane
HEARING DATES:
23, 24, 27, 28 February, 1, 2, 6, 7 March and 20 April 2023. Further written submissions were received from the plaintiffs on 27 April 2023
JUDGE:
Freeburn J
ORDERS:
1. The plaintiffs’ claims are dismissed.
2. The defendant is entitled to judgment on the counterclaim in the sum of $7,016.13 plus interest (to be calculated).
3. I will hear the parties on the form of the orders (including the calculation of interest) and costs.
CATCHWORDS:
PROPERTY LAW – LEASE – INSURANCE – OUTGOINGS – where the plaintiffs were the lessees of a motel – where the plaintiffs dispute their obligation to pay insurance premiums as ‘outgoings’ under the lease – where it is argued that having the insurance policy under the sole name of the defendant is in breach of the lease – where the defendant has a counterclaim for the outstanding outgoings – whether the defendant obtained insurance which was substantially different to insurances held by the landlord prior to the commencement of lease – whether the higher cost of the insurance policy makes the policy substantially different to insurances held by the landlord prior to the commencement
PROPERTY LAW – LEASE – MAINTENANCE AND REPAIR – where the plaintiffs had an obligation to keep the motel in good and substantial repair as a high quality motel – where the plaintiffs argue that the defendant had an obligation under the lease to keep the motel and landlord’s property in good and substantial repair – where the defendant’s actual obligation under the lease was to take reasonable action to ensure that the motel and landlord’s property is in good and substantial structural state and condition – whether the defendant was required under the lease to expend on capital works – whether the defendant was in breach of the lease because of the failure to expend on capital works – whether there is evidence of structural damage to the motel
PROPERTY LAW – LEASE – REPUDIATION – TRESPASS – where the plaintiffs failed to pay rent – where failure to pay rent was an essential term of the lease – where a notice to remedy breach of covenant was not complied with by the plaintiffs and QCAT proceedings were initiated by the defendant – where the plaintiffs allege that the conduct of the defendants was a repudiation of the lease – where the plaintiffs allege that the defendants entered the motel without consent – where the defendant diverts the phone line of the motel after the plaintiffs were required to deliver up possession – whether the plaintiffs were given a reasonable time to comply with the notice to remedy breach of…
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- AGLC
- Carter v Mackey Motels Pty Ltd [2023] QSC 128
- Case
- [2023] QSC 128
- Decision Date
CaseChat Overview and Summary
The court found that the Carters were not obligated to pay insurance premiums as outgoings, as the insurance policy obtained by Mackey Motels was not substantially different from prior policies. Regarding maintenance, the court held that Mackey Motels was required to take reasonable action to ensure the motel was in good and substantial structural state and condition, but was not obligated to expend on capital works. The court found that there was no evidence of structural damage to the motel. Regarding repudiation and trespass, the court found that the Carters were given a reasonable time to comply with the notice to remedy breach of covenant and there was no sufficient evidence to demonstrate repudiation or establish the cause of action of trespass. The court found that there was no discernible cause of action in the plaintiffs’ pleadings concerning the diversion of the phone line. Regarding loss of profits, the court found that there was no evidence that the alleged breaches caused loss or that the Carters would have exercised the option but for the alleged breaches of lease. Finally, the court found that a compulsory purchase of chattels was still required by the lease in absence of the annexed inventory.
The court dismissed the Carters’ claims and ordered that Mackey Motels was entitled to judgment on the counterclaim in the sum of $7,016.13 plus interest. The court will hear the parties on the form of the orders, including the calculation of interest, and costs.
Orders
Orders of the court
1. The plaintiffs’ claims are dismissed.
2. The defendant is entitled to judgment on the counterclaim in the sum of $7,016.13 plus interest (to be calculated).
3. I will hear the parties on the form of the orders (including the calculation of interest) and costs.
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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