Curtin v Meadlow Holdings Pty Ltd

[2000] QCA 259

[2000] QCA 259

COURT OF APPEAL

DAVIES JA
McPHERSON JA
THOMAS JA

Appeal No 4907 of 2000

RUSSELL CURTIN  Applicant

and

MEADLOW HOLDINGS PTY LTD  Respondent

BRISBANE

..DATE 03/07/2000

JUDGMENT

DAVIES JA: This is an application for leave to appeal under section 118 of the District Court Act 1967 from the judgment of the District Court dismissing an appeal by the applicant from the judgment against him in the Magistrates Court. The applicant had been a tenant of shop premises owned by the respondent, his tenancy having been terminated upon default by him in payment of rent.

In the Magistrates Court there were issues as to the amount owing by the applicant on the respondent's claim for rent and other outgoings and as to the applicant's counterclaim for conversion of property.  No question arises now upon the respondent's claim, the questions being sought to be litigated in this court being confined to the applicant's counterclaim.

The counterclaim was for items of stock in trade and for items described generally as items of equipment and a question arose in the Magistrates Court as to whether in fact these items, both of stock in trade for that matter and also equipment, came within the description of moveable fixtures, fittings and furnishings within the meaning of clause 4(d) of the agreement for lease.

The applicant had originally argued that all of those items which he claimed had been converted came within the ambit of that clause and that within the meaning of that clause a request had been made within the time limited by that clause for the return of those goods and chattels. 

By the time the matter came on before the Magistrate, however, it is conceded by Mr Atkinson for the respondent that the applicant argued before the Magistrate that that clause had no application and that neither his stock in trade nor his equipment as identified came within the provisions of clause 4(d) and that consequently the respondent became an involuntary bailee of that equipment and that it, the respondent, threw out part of the stock in trade, gave credit for a small part of the balance and sold, it appears, the equipment.

It seems to me that there is an arguable question as to whether the stock in trade and the equipment properly came within the provisions of clause 4(d) and for that reason I think it is an appropriate matter for this Court to grant leave and I would grant leave accordingly.

McPHERSON JA:   Yes, I agree.  The language of the clause in question is wide.  Whether it is wide enough to comprehend mere chattels on the leased premises seems to me to be fairly arguable.  From the standpoint of both the landlord and tenant the matter is one in which it appears desirable that there should be a degree of certainty.

We do not know whether a clause of this kind is used very commonly in leases; but the lease in this case was of premises in a shopping centre.  In any event, I agree with what Mr Justice Davies has said and agree that there should be leave to appeal in this case.

THOMAS JA:   I also agree that leave to appeal should be granted but limited to the extent to which the counterclaim may be affected by the issue of the proper application of clause 4(d).

DAVIES JA:   The order is as I have indicated.

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