Gembane Pty Ltd v Daher; Daher v Gembane Pty Ltd

This case involved an appeal to the Full Court of the Supreme Court of Queensland concerning an agreement for a lease. Gembane Pty Ltd (the lessor) appealed against a judgment ordering specific performance of the agreement in favour of Mr Daher (the lessee), while Mr Daher cross-appealed against the dismissal of his claim for damages. The central dispute revolved around whether the trial judge had erred in his findings of fact, particularly regarding the reliability of witnesses, and in his interpretation of the agreement's terms.

The legal issues before the Full Court included whether the trial judge's findings concerning the credibility of two key witnesses were flawed and ought to be reversed on appeal. Further, the Court was required to determine whether a requirement for written approval constituted an essential term of the agreement to lease, and whether there had been a material departure from an approved development plan. Finally, the Court had to consider whether it should assess the damages itself or remit the assessment to the trial judge, and whether the trial judge's award of costs was appropriate.

The Full Court, per Gray J (with Sulan and David JJ concurring), dismissed the lessor's appeal and allowed the lessee's appeal. The Court found that the trial judge's findings of fact were fully supported by the evidence and therefore should be sustained. It held that the need for written approval was not an essential term of the agreement and that there had been no material departure from the approved development plan. Consequently, the order for costs made by the trial judge was set aside.

The proceedings were remitted to the trial judge to assess the damages, if any, to be awarded to Mr Daher for the unlawful termination of the agreement to lease, and for the judge to reconsider the appropriate orders as to costs following the conclusion of the remitted proceedings. The parties were to be heard as to the costs of the appeals.