SUPREME COURT OF QUEENSLAND
CITATION:
Nashvying P/L & Ors v Giacomi [2007] QCA 454
PARTIES:
NASHVYING PTY LTD ACN 058 373 390
(first plaintiff/first respondent)
CQ INNOVATIONS PTY LTD ACN 112 207 646
(second plaintiff/second respondent)
MOHAMMED VALI YOUSEFPOUR
(third plaintiff/third respondent)
v
LILLIAN MARY GIACOMI
(In her own right as executrix of the estate of the late ALDO GIACOMI)
(defendant/appellant)FILE NO/S:
Appeal No 4251 of 2007
SC No 98 of 2006DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
21 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
31 October 2007
JUDGES:
McMurdo P, Muir JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1. The appeal be allowed, but only to the extent that the declarations in paragraphs 1.1, 1.2 and 1.3 of the order of 23 April 2007 be set aside and that the following declaration be substituted therefor:
"Neither the lease nor the licence referred to respectively in paragraphs 2 and 7 of the statement of claim filed on 1 March 2005 were terminated by the appellant as alleged by the appellant in the amended defence and counterclaim being exhibit 13 in these proceedings."
2. That the appellant pay one half of the respondents’ costs of and incidental to the appeal
CATCHWORDS:
LANDLORD AND TENANT – CREATION OF RELATIONSHIP – DISTINCTION BETWEEN LEASE AND LICENCE – GENERALLY – where appellant agreed to permit the third respondent to quarry land – where third respondent obliged to obtain permits – where appellant entitled to terminate if work not commenced within stipulated time – where third respondent unable to obtain permits – where third respondent transferred its interest to first respondent, which transferred interest to second respondent – where further permit applications refused – where appellant purported to terminate agreement – where respondents successful at first instance in claim for declaration that the appellant was not entitled to terminate – whether instrument was a lease or licence – whether instrument a profit a prendre
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – OFFER AND ACCEPTANCE – MATTERS NOT GIVING RISE TO BINDING CONTRACT – VAGUENESS AND UNCERTAINTY – LEASES – where appellant agreed to permit the third respondent to quarry land – where third respondent obliged to obtain permits – whether the contract was uncertain through not providing for ascertainable rent or royalties and a certain leased area – whether contract illusory
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where appellant agreed to permit the third respondent to quarry land – whether the respondents were in breach of the agreement due to their failure to obtain permit within a reasonable time – whether other terms breached
TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION –CONSUMER PROTECTION – MISLEADING AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING AND DECEPTIVE CONDUCT GENERALLY – where appellant agreed to permit…
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- Case
- [2007] QCA 454
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court had to decide were whether the agreement between the parties constituted a lease or a licence, and if the contract was sufficiently certain to be enforceable. The court also had to determine if the respondents were in breach of the agreement due to their failure to obtain the necessary permits within a reasonable time. Additionally, the court considered whether the third respondent made misleading representations to gain the appellant's consent to the transfer of interests.
The court found that the agreement between the parties was not a lease but rather a licence, as the third respondent was not bound to pay rent or royalties for the use of the land. The court also held that the contract was not uncertain, as it was clear that the third respondent had to obtain permits within a reasonable time. The court further found that the respondents were not in breach of the agreement, as they had taken reasonable steps to obtain the necessary permits. The court also rejected the appellant's claim that the third respondent had made misleading representations, as there was no evidence to support this claim.
The appeal was allowed to the extent that the declarations in paragraphs 1.1, 1.2 and 1.3 of the order of 23 April 2007 were set aside, and a new declaration was substituted. The new declaration stated that neither the lease nor the licence referred to in the statement of claim were terminated by the appellant. The appellant was ordered to pay one half of the respondents' costs of and incidental to the appeal.
Orders
Orders of the court
1. The appeal be allowed, but only to the extent that the declarations in paragraphs 1.1, 1.2 and 1.3 of the order of 23 April 2007 be set aside and that the following declaration be substituted therefor:
"Neither the lease nor the licence referred to respectively in paragraphs 2 and 7 of the statement of claim filed on 1 March 2005 were terminated by the appellant as alleged by the appellant in the amended defence and counterclaim being exhibit 13 in these proceedings."
2. That the appellant pay one half of the respondents’ costs of and incidental to the appeal
Background
Background to the litigation
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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
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