Dodd and Dodd v Levina Office Services Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Dodd & Dodd v Levina Office Services Pty Ltd [2017] QDC 262

PARTIES:

JOHN JOSEPH DODD

(first plaintiff)

and

GAIL MAREE DODD

(second plaintiff)

v

LEVINA OFFICE SERVICES PTY LTD

(defendant)

FILE NO/S:

D5 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

24 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2017

JUDGE:

Butler DCJ

ORDER: 

1.   The plaintiffs’ claim is dismissed.

2.   No order as to costs.

CATCHWORDS:

CONTRACT – CONSTRUCTION OF TERMS – Lease – Ambiguity – Recourse to background or surrounding circumstances – whether term commercially absurd

COUNSEL:

W McMillan for the plaintiff.

B Bedford, Director of the defendant appeared on its behalf.

SOLICITORS:

Dodd Bedford & Associates for the plaintiff.

B Bedford, Director of the defendant appeared on its behalf.

1. In early 2014 the plaintiffs purchased a legal practice in Bundaberg from Brian Bedford.  The plaintiffs also leased from the defendant company the premises from which Mr Bedford had previously carried on his legal practice.  Mr Bedford is the principal of the defendant company, Levina Office Services Pty Ltd.

1. This case involves a dispute in relation to that lease.  The leased premises are located on the ground floor of a building owned by the defendant, the first floor of which comprises Mr Bedford’s residence. The leased premises comprise only part of the ground floor of the building and the building is situated on a larger area of land which includes a garden, driveways and parking area.

1. The issue to be determined is whether, upon a true construction of the lease, the plaintiffs were liable to pay 100 per cent of the local government charges levied on the whole of the block of land on which the leased premises are situated.  The plaintiffs contend that they should only pay rates in the proportion the leased premises bear to the area of the land. 

The pleadings

1. The plaintiffs’ claim seeks relief by way of a declaration. They assert that on a true construction of the lease they should not be required to pay rates levied on the whole of the lot.  In the alternative the equitable remedy of rectification was also sought.  The claim for rectification, which was based in mistake, was not pursued at trial.  The plaintiffs’ case is now solely directed to the construction it contends should be given to the terms of the lease.

1. Paragraph 3 of the Statement of Claim, which is admitted, reads as follows:

“On 24 April, 2014, the plaintiffs agreed to lease (the lease) from the defendant the premises.  Material terms of the lease are as follows -

(i)          the term of the lease was three years;

(ii)        the commencement date of the lease was 12 May 2014;

(iii)        the plaintiffs were to pay rent in the sum of $46,560 per annum plus GST (item 1 of the schedule to the lease);

(iv)       the plaintiffs were to pay outgoings in accordance with clause 4.5 of the lease (item 5…