Cornerstone Properties Pty Ltd v Crisp-Air Ltd - [2013] QDC 147

DISTRICT COURT OF QUEENSLAND

CITATION:

Cornerstone Properties Pty Ltd v Crisp-Air Ltd [2013] QDC 147

PARTIES:

CORNERSTONE PROPERTIES PTY LTD
ACN 084 212 831 AS TRUSTEE FOR THE COLEBARD STREET TRUST
(Applicant)

v

CRISP-AIR PTY LTD ACN 010 323 305
(Respondent)

FILE NO/S:

DC No 4455 of 2011

PROCEEDING:

Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2013, 8 July 2013

JUDGE:

Devereaux SC DCJ

ORDER:

1. Application dismissed

2. Costs reserved

CATCHWORDS:

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – FORFEITURE – NOTICE AND DEMAND BEFORE RE-ENTRY – where plaintiff leased to the defendant land on which there was a warehouse – where lease ran for a period of three years – where lease was effectively extended until 25 June 2012 – where plaintiff sent two notices to remedy breaches of lease – where a notice of termination was sent to defendant – where plaintiff re-entered premises – whether the plaintiff lawfully terminated the lease and whether the plaintiff took steps to mitigate damage

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS-CIVIL JURISDICTION – PRACTICE – TRIAL AND JUDGMENT – where plaintiff brought interlocutory application to amend the claim substantially and adduce evidence in proof - whether leave should be granted to the plaintiff to file and serve a reply to the second further amended defence and to re-open its case and adduce further evidence

Property Law Act 1974 (Qld), s 124

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149(1)(c), r 153, r 375, r 380

Aon Risk Services Aust Pty Ltd v ANU (2009) 239 CLR 175

EB v CT (No. 2) [2008] QSC 306

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17

COUNSEL:

RN Traves QC and RJ Anderson for the Applicant/Plaintiff

GW Dietz for the Respondent/Defendant

SOLICITORS:

Broadley Rees Hogan for the Applicant/Plaintiff

Dowd and Company for the Respondent/Defendant

Introduction

This is an application by the plaintiff, brought after trial before judgment, for leave to file and serve a reply to the second further amended defence and to re-open its case and adduce further evidence. I will refer to the parties as plaintiff and defendant, not applicant and respondent.

In the proceeding, the plaintiff claims damages for breach of a lease. The plaintiff leased to the defendant land at Acacia Ridge on which there was a warehouse. The lease commenced 26 June 2006 for a term of three years. By a deed of variation, the lease was effectively extended so that it ran from 26 June 2009 to 25 June 2012.

The plaintiff sent two notices to remedy breach of lease, as required by the terms of the lease and s. 124 of the Property Law Act 1974 (PLA). The first notice was dated 24 June 2010; the second notice, 2 July 2010.[1] The defendant did not remedy the alleged breaches and the plaintiff purported to end the lease, pursuant to its terms, by…

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.

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Details

Case: [2013] QDC 147
Decision Date: 10 July 2013

CaseChat Overview and Summary

Cornerstone Properties Pty Ltd (the plaintiff) sought to terminate a lease of land to Crisp-Air Ltd (the defendant) and claimed damages for breach of the lease. The case was heard in the District Court of Queensland. The plaintiff alleged that the defendant had breached the terms of the lease, and after sending notices to remedy the breaches, terminated the lease and re-entered the premises. The defendant argued that the plaintiff did not comply with the requirements of the Property Law Act 1974 (Qld) to lawfully terminate the lease and that the plaintiff did not take steps to mitigate damages.

The court needed to decide whether the plaintiff had properly terminated the lease and complied with the notice requirements before re-entering the premises, and whether the plaintiff took reasonable steps to mitigate damages. The court also needed to determine whether the plaintiff should be granted leave to amend the claim substantially and adduce further evidence in response to the defendant's second further amended defence.

The court held that the plaintiff did not lawfully terminate the lease as it had not provided the required notice before re-entering the premises. The court also held that the plaintiff had not taken reasonable steps to mitigate damages. The court further held that the plaintiff was not entitled to leave to amend the claim substantially and adduce further evidence as it had not demonstrated that the amendment was necessary or that the evidence would be relevant.

The court dismissed the plaintiff's application and reserved costs. The court found that the plaintiff's termination of the lease was invalid due to the lack of proper notice and that the plaintiff had not taken reasonable steps to mitigate damages. The court also held that the plaintiff was not entitled to amend the claim and adduce further evidence.

Orders

Orders of the court

1. Application dismissed

2. Costs reserved

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.

CITATION:	Cornerstone Properties Pty Ltd v Crisp-Air Ltd [2013] QDC 147
PARTIES:	CORNERSTONE PROPERTIES PTY LTD ACN 084 212 831 AS TRUSTEE FOR THE COLEBARD STREET TRUST (Applicant) v CRISP-AIR PTY LTD ACN 010 323 305 (Respondent)
FILE NO/S:	DC No 4455 of 2011
PROCEEDING:	Civil
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 March 2013, 8 July 2013
JUDGE:	Devereaux SC DCJ
ORDER:	1. Application dismissed 2. Costs reserved
CATCHWORDS:	LANDLORD AND TENANT – TERMINATION OF THE TENANCY – FORFEITURE – NOTICE AND DEMAND BEFORE RE-ENTRY – where plaintiff leased to the defendant land on which there was a warehouse – where lease ran for a period of three years – where lease was effectively extended until 25 June 2012 – where plaintiff sent two notices to remedy breaches of lease – where a notice of termination was sent to defendant – where plaintiff re-entered premises – whether the plaintiff lawfully terminated the lease and whether the plaintiff took steps to mitigate damage PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS-CIVIL JURISDICTION – PRACTICE – TRIAL AND JUDGMENT – where plaintiff brought interlocutory application to amend the claim substantially and adduce evidence in proof - whether leave should be granted to the plaintiff to file and serve a reply to the second further amended defence and to re-open its case and adduce further evidence Property Law Act 1974 (Qld), s 124 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149(1)(c), r 153, r 375, r 380 Aon Risk Services Aust Pty Ltd v ANU (2009) 239 CLR 175 EB v CT (No. 2) [2008] QSC 306 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
COUNSEL:	RN Traves QC and RJ Anderson for the Applicant/Plaintiff GW Dietz for the Respondent/Defendant
SOLICITORS:	Broadley Rees Hogan for the Applicant/Plaintiff Dowd and Company for the Respondent/Defendant