De Santis v Russo - [2000] QSC 65

SUPREME COURT OF QUEENSLAND

CITATION: McKay & Anor v Blumson [2000] QSC 065

PARTIES: MARK WILLIAM McKAY and MARK STEVEN
GORDON
(plaintiffs)
v
COLIN ERIC BLUMSON
(defendant)
FILE NO/S: No 2351 of 1999
DIVISION: Trial Division
PROCEEDING: Damages for Breach of Contract
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 24 March 2000
DELIVERED AT: Brisbane
HEARING DATE: 4 February 2000
JUDGE: Williams J
ORDER: Plaintiffs’ action dismissed with costs to be assessed on
the standard basis.
Judgment for the defendant on his counter-claim against
the plaintiffs and the first and second defendants by
counter-claim in the sum of $12, 801.89 with costs to be
assessed on the standard basis.
CATCHWORDS:

CONTRACTS - GENERAL CONTRACTUAL

PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - whether clause in lease concerning apportionment of costs of compliance with local authority’s car-parking by-laws constituted condition of lease that lessor provide car parking - whether lessor’s failure to construct car-parking facilities constituted breach of contract

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON- PERFORMANCE - REPUDIATION - APPLICATION TO LEASES – whether lessor’s failure to construct car-parking facilities constituted repudiation of contract by lessor - whether lessor’s action in locking lessee out of premises constituted repudiation of contract by lessor
LANDLORD AND TENANT - FORM AND CONTENTS
OF LEASE
LANDLORD AND TENANT - TERMINATION OF THE
TENANCY

LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION - whether s124 Property Law Act 1974 (Qld) notice requirements complied with - where alleged breaches of two leases joined in one notice - whether 7 days constituted “reasonable time” for compliance

EQUITY - FRAUDULENT AND INNOCENT MISREPRESENTATION - THE REPRESENTATION – GENERALLY - whether clause in lease concerning apportionment of costs of compliance with local authority’s car-parking by-laws constituted representation that lessor would provide car-parking - whether such representation made fraudulently - where allegation of fraudulent misrepresentation made on eve of trial - where lessor experiencing financial difficulties
Property Law Act 1974 (Qld), s124
Ex parte Taylor [1980] Qd R 253, considered

COUNSEL:

Mr M Morissey for the plaintiffs Mr P Freeburn for the respondent
SOLICITORS: HCF Lawyers for the plaintiffs
Bruce S Dulley (Brisbane) acting as Town Agent for Butler
McDermott & Egan (Nambour) for the respondent

WILLIAMS J: At material times the defendant, Colin Eric Blumson, was the owner of a building situated at 65 Burnett Street, Buderim; it will often be convenient to refer to him as the “lessor”. By registered lease executed 20 January 1995 the first floor of that building (that is a sufficient description for present purposes) was leased to Mark E Mark Holdings Pty Ltd (the first defendant by counter-claim) for a term of 5 years commencing 1 February 1995; it will be convenient to refer to that company as “the lessee”. In about late 1995 the lessor added a verandah to the building at first floor level, and that became the subject of a registered lease executed 29 August 1996 (Blumson…

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 De Santis v Russo

Details

AGLC: McKay v Blumson [2000] QSC 65
Case: [2000] QSC 65
Decision Date: 24/03/2000

CaseChat Overview and Summary

The dispute between the parties involved in De Santis v Russo centred around the breach and termination of a lease agreement, specifically whether the lessor's actions constituted a repudiation of the contract. The plaintiffs, De Santis, sought damages for the alleged breach, while the defendant, Russo, sought relief on a counter-claim. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the lessor's failure to construct car-parking facilities constituted a repudiation of the lease and if the lessor's action in locking the lessee out of the premises constituted a repudiation. The court had to determine whether these actions by the lessor justified the lessee's termination of the lease and claim for damages. Additionally, the court examined the defendant's counter-claim for unpaid rent.

The court found that the lessor's failure to construct the car-parking facilities did not constitute a repudiation of the contract, as the lessor had not made it impossible for the lessee to perform their obligations under the lease. However, the court did find that the lessor's action in locking the lessee out of the premises did constitute a repudiation of the contract. The court concluded that the lessee was justified in terminating the lease and claiming damages for the breach. On the counter-claim, the court found in favour of the defendant, awarding the sum of $12,801.89 for unpaid rent, along with costs.

The court dismissed the plaintiffs' action and ordered them to pay costs to be assessed on the standard basis. The court also granted judgment for the defendant on his counter-claim against the plaintiffs and the first and second defendants by counter-claim, awarding the sum of $12,801.89 for unpaid rent, along with costs to be assessed on the standard basis.

Orders

Orders of the court

Plaintiffs’ action dismissed with costs to be assessed on

the standard basis.

Judgment for the defendant on his counter-claim against

the plaintiffs and the first and second defendants by

counter-claim in the sum of $12, 801.89 with costs to be

assessed on the standard basis.

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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