Dwyer v Corliss - [2003] QSC 149

SUPREME COURT OF QUEENSLAND

CITATION:

Dwyer v Corliss & Anor [2003] QSC 149

PARTIES:

BEVERLEY CLARE DWYER
(applicant)
v
DENNIS BRUCE CORLISS and
PAMELA ANN CORLISS
(respondents)

FILE NO/S:

SC No. 2485 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

21 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2003

JUDGES:

Holmes J

ORDER:

1. The application is dismissed.

2. The interim injunction is discharged.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO AND PROPERTY PENDING DETERMINATION OF RIGHTS – OTHER CASES
Injunction sought by applicant to restrain the respondent from acting on notice to quit – whether serious question to be tried – whether agreement for further lease – whether acts of part performance – whether equitable estoppel – whether balance of convenience favours granting of injunction – strength of evidence as a factor in exercise of discretion.

Section 59 Property Law Act 1974

Cambridge Credit Corporation Ltd v Surfers Paradise Forests Ltd [1977] Qd R 261
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Darter Pty Ltd v Malloy [1993] 2 Qd R 615
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Maddison v Alderson (1883) 8 App. Cas. 467
Meehan v Jones (1982) 149 CLR 571
Sabre Corporation Pty Ltd v Laboratories Pharm-A-Care Pty Ltd (1995) 31 IPR 445
Seekers Nominees Ltd & Anor v Target Australia Pty Ltd & Anor (1995) 32 IPR 372
Shercliff &Anor v Engadine Acceptance CorporationPty Ltd [1978] 1 NSWLR 729
Trade Practices Commission v Santos Ltd (1992) 110 ALR 517 at 427
Upper Hunter County District Council v Australian Chilling & Freezing Co. Ltd (1968) 118 CLR 429
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

COUNSEL:

Mr Bowden for the applicant
Mr Martin for the respondents

SOLICITORS:

Creswicks Lawyers for the applicant
Hynes Lawyers for the respondents

The application

The applicant, Mrs Beverley Dwyer, seeks an interlocutory injunction, the effect of which would be to prevent the respondents from re-taking possession of hotel premises which she leased from them in August 2000. She argues that although a written lease agreement between the parties expired in February 2001, there existed another agreement between them, not reduced to writing, for a further three-year lease with an option to renew for a three-year period.

The applicant’s version

Mrs Dwyer and her daughter, Tracy Dwyer, have filed affidavits setting out what they say were their dealings with the respondents, Mr and Mrs Corliss, in relation to Mrs Dwyer’s purchasing the business of, and taking over the lease of, the Grand Hotel at Childers. Mrs Dwyer said she had initially consulted Mr Corliss as a hotel broker, but he recommended that she consider taking a lease of his own hotel, the Grand Hotel at Childers. She and her daughter in response to that suggestion looked at the hotel in April 2000, and formed the view that it was in poor condition. Mr Corliss…

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: [2003] QSC 149
Decision Date: 21 March 2003

CaseChat Overview and Summary

In the case of Dwyer v Corliss, the applicant sought an injunction to prevent the respondent from executing a notice to quit. The applicant claimed that there was a serious question to be tried regarding the existence of an agreement for a further lease, acts of part performance, and equitable estoppel. The applicant also argued that the balance of convenience favoured granting the injunction. The court was required to determine whether these claims were sufficient to warrant the granting of an interim injunction to preserve the status quo and the applicant's property pending the determination of their rights.

The court considered the evidence presented regarding the alleged agreement for a further lease, acts of part performance, and equitable estoppel. It assessed the strength of the evidence and the balance of convenience. The court found that the applicant had not provided sufficient evidence to establish a serious question to be tried. The court also considered the strength of the evidence, which it found to be weak, and determined that the balance of convenience did not favour granting the injunction. Consequently, the court exercised its discretion to dismiss the application and discharge the interim injunction.

The court's reasoning was based on the lack of sufficient evidence to establish a serious question to be tried and the weak evidence presented by the applicant. The court also considered the balance of convenience, which it found did not favour granting the injunction. The court's decision was in line with established legal principles regarding the granting of interim injunctions in property disputes. The court concluded that the applicant had not met the necessary threshold to warrant the granting of the injunction.

The final orders of the court were that the application for an injunction be dismissed and that the interim injunction be discharged. The court's decision highlighted the importance of providing sufficient evidence to establish a serious question to be tried and the need for a strong balance of convenience in favour of granting an injunction. The court's decision also emphasised the discretionary nature of the court's power to grant interim injunctions in property disputes.

Orders

Orders of the court

1. The application is dismissed.

2. The interim injunction is discharged.

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:	Dwyer v Corliss & Anor [2003] QSC 149
PARTIES:	BEVERLEY CLARE DWYER (applicant) v DENNIS BRUCE CORLISS and PAMELA ANN CORLISS (respondents)
FILE NO/S:	SC No. 2485 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	21 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 March 2003
JUDGES:	Holmes J
ORDER:	1. The application is dismissed. 2. The interim injunction is discharged.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO AND PROPERTY PENDING DETERMINATION OF RIGHTS – OTHER CASES Injunction sought by applicant to restrain the respondent from acting on notice to quit – whether serious question to be tried – whether agreement for further lease – whether acts of part performance – whether equitable estoppel – whether balance of convenience favours granting of injunction – strength of evidence as a factor in exercise of discretion. Section 59 Property Law Act 1974 Cambridge Credit Corporation Ltd v Surfers Paradise Forests Ltd [1977] Qd R 261 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Darter Pty Ltd v Malloy [1993] 2 Qd R 615 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Maddison v Alderson (1883) 8 App. Cas. 467 Meehan v Jones (1982) 149 CLR 571 Sabre Corporation Pty Ltd v Laboratories Pharm-A-Care Pty Ltd (1995) 31 IPR 445 Seekers Nominees Ltd & Anor v Target Australia Pty Ltd & Anor (1995) 32 IPR 372 Shercliff &Anor v Engadine Acceptance CorporationPty Ltd [1978] 1 NSWLR 729 Trade Practices Commission v Santos Ltd (1992) 110 ALR 517 at 427 Upper Hunter County District Council v Australian Chilling & Freezing Co. Ltd (1968) 118 CLR 429 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
COUNSEL:	Mr Bowden for the applicant Mr Martin for the respondents
SOLICITORS:	Creswicks Lawyers for the applicant Hynes Lawyers for the respondents