Demtear P/L v Abelian P/L - [2004] QSC 103

SUPREME COURT OF QUEENSLAND

CITATION:

Demtear P/L v Abelian P/L & Anor [2004] QSC 103

PARTIES:

DEMTEAR PTY LTD (ACN 087 268 782)
(plaintiff)
v
ABELIAN PTY LTD (ACN 088 938 229) and
PIER PROPERTIES PTY LTD (ACN 102 983 111)

(defendants)

FILE NO/S:

S1806 of 2004

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

30 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2004

JUDGE:

Muir J

ORDER:

The plaintiff pay the defendants’ costs of and incidental to the trial of the separate issues of the construction and validity of clause 12.7 of the sub-lease and the validity of the notice dated 13 January 2004 given by the defendants to the plaintiff. Such costs including reserved costs, if any, to be assessed on the standard basis.

CATCHWORDS:

LANDLORD AND TENANT – FORM AND CONTENTS OF SUB-LEASE – CONSTRUCTION OF CONTRACTS – ENFORCEABILITY– UNCERTAINTY – where the defendants sought to enforce the relocation clause in the sub-lease – whether the relocation clause is void for uncertainty – whether the relocation clause is capable of any definite or precise meaning – whether the promise of the defendants in the relocation clause is illusory – principles to be applied in construing the sub-lease and in determining uncertainty – whether any part of the relocation clause is capable of severance if void.

Retail Shop Leases Act 1994, s 43

Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191
Attorney-General v Barker Bros Ltd (1976) 2 NZLR 495
Australian Broadcasting Commissioner v Australasian Performing Right Association Ltd (1972-73) 129 CLR 99
Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
Godecke v Kirwan (1973) 129 CLR 629
Harvey v Pratt [1965] 2 All ER 786
Hide and Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Hillas & Co Ltd v Arcos Ltd (1932) LT 503
Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950
Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
McFarlane v Daniel (1938) 38 SR NSW 337
Meehan v Jones (1982) 149 CLR 571
Placer Development Ltd v The Commonwealth (1969) 121 CLR 353
Reardon Smith Line Ltd v Yng Van Hansen-Tangen [1976] 1 WLR 989
Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 Lombard Tricity Finance Ltd v Paton (1989) 1 All ER 918
The Queensland Electricity Generating Board v New Hope Collieries Pty Ltd (1989) 1 Ll Rep 205
Thorby v Goldberg (1964) 112 CLR 597
Upper Hunter County District Council v Australia Chilling and Freezing Co Ltd (1967-1968) 118 CLR 429
Whitlock v Brew(1968) 118 CLR 445
York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235

COUNSEL:

PA Keane…

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: [2004] QSC 103
Decision Date: 30 April 2004

CaseChat Overview and Summary

Demtear P/L commenced proceedings against Abelian P/L in the Supreme Court of New South Wales seeking a declaration that clause 12.7 of the sub-lease between the parties was void for uncertainty. The defendants sought to enforce the relocation clause in the sub-lease. The court was required to decide whether the relocation clause was void for uncertainty, whether it was capable of any definite or precise meaning, and whether the promise made by the defendants in the clause was illusory. The court also needed to consider the principles to be applied in construing the sub-lease and in determining uncertainty, and whether any part of the relocation clause was capable of severance if void.

The court held that the relocation clause was not void for uncertainty. The court found that the clause was capable of a definite and precise meaning, and that the promise made by the defendants was not illusory. The court applied the principles of construction of contracts and found that the clause was not uncertain, as it provided a clear and definite standard for the relocation of the premises. The court also found that any part of the relocation clause that was void could be severed, and that the rest of the clause remained valid and enforceable.

The court ordered that the plaintiff pay the defendants’ costs of and incidental to the trial of the separate issues of the construction and validity of clause 12.7 of the sub-lease and the validity of the notice dated 13 January 2004 given by the defendants to the plaintiff. The costs, including reserved costs if any, were to be assessed on the standard basis.

No further orders were made by the court.

Orders

Orders of the court

The plaintiff pay the defendants’ costs of and incidental to the trial of the separate issues of the construction and validity of clause 12.7 of the sub-lease and the validity of the notice dated 13 January 2004 given by the defendants to the plaintiff. Such costs including reserved costs, if any, to be assessed on the standard basis.

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:	Demtear P/L v Abelian P/L & Anor [2004] QSC 103
PARTIES:	DEMTEAR PTY LTD (ACN 087 268 782) (plaintiff) v ABELIAN PTY LTD (ACN 088 938 229) and PIER PROPERTIES PTY LTD (ACN 102 983 111) (defendants)
FILE NO/S:	S1806 of 2004
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	30 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2004
JUDGE:	Muir J
ORDER:	The plaintiff pay the defendants’ costs of and incidental to the trial of the separate issues of the construction and validity of clause 12.7 of the sub-lease and the validity of the notice dated 13 January 2004 given by the defendants to the plaintiff. Such costs including reserved costs, if any, to be assessed on the standard basis.
CATCHWORDS:	LANDLORD AND TENANT – FORM AND CONTENTS OF SUB-LEASE – CONSTRUCTION OF CONTRACTS – ENFORCEABILITY– UNCERTAINTY – where the defendants sought to enforce the relocation clause in the sub-lease – whether the relocation clause is void for uncertainty – whether the relocation clause is capable of any definite or precise meaning – whether the promise of the defendants in the relocation clause is illusory – principles to be applied in construing the sub-lease and in determining uncertainty – whether any part of the relocation clause is capable of severance if void. Retail Shop Leases Act 1994, s 43 Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 Attorney-General v Barker Bros Ltd (1976) 2 NZLR 495 Australian Broadcasting Commissioner v Australasian Performing Right Association Ltd (1972-73) 129 CLR 99 Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Godecke v Kirwan (1973) 129 CLR 629 Harvey v Pratt [1965] 2 All ER 786 Hide and Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Hillas & Co Ltd v Arcos Ltd (1932) LT 503 Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 McFarlane v Daniel (1938) 38 SR NSW 337 Meehan v Jones (1982) 149 CLR 571 Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 Reardon Smith Line Ltd v Yng Van Hansen-Tangen [1976] 1 WLR 989 Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 Lombard Tricity Finance Ltd v Paton (1989) 1 All ER 918 The Queensland Electricity Generating Board v New Hope Collieries Pty Ltd (1989) 1 Ll Rep 205 Thorby v Goldberg (1964) 112 CLR 597 Upper Hunter County District Council v Australia Chilling and Freezing Co Ltd (1967-1968) 118 CLR 429 Whitlock v Brew(1968) 118 CLR 445 York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11 Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235
COUNSEL:	PA Keane…