Gillion v Casserly and Casserly

SUPREME COURT OF QUEENSLAND

CITATION:

Gillion & Anor v Casserly and Casserly & Anor [2005] QSC 144

PARTIES:

GRAHAM BRUCE GILLION
(first applicant)
and
AKUITY PTY LTD ACN 071 202 947
(second applicant)
v
PETER MICHAEL CASSERLY and CATHERINE MARY CASSERLY as trustees under Instrument Number 703983829
(first respondents)
and
JOHN RICHARD SALKELD
(second respondent)

FILE NO:

BS No 2565 of 2005

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2005

JUDGE:

White J

ORDER:

1.    Dismiss the application

2.    The applicants to pay the respondents’ costs to be assessed on the standard basis

CATCHWORDS:

LANDLORD AND TENANT - ASSIGNMENT, SEVERANCE AND UNDERLEASE – ASSIGNMENT OF LEASE – BY OPERATION OF LAW – BY ACT OF PARTIES – EFFECT OF ASSIGNMENT – where purported assignment of lease - where covenant in lease not to assign without consent of lessor- where lessor refused to consent to assignment of lease – where clearly no legal assignment of lease - where applicant argued that certain acts of the lessees amounted to an equitable assignment of the lease – whether equitable assignment of lease

LANDLORD AND TENANT - COVENANTS – FOR RENEWAL – RIGHT TO EXERCISE OPTION – GENERALLY – RELIEF AGAINST LOSS OF OPTION FOR RENEWAL – where applicants seek declaration that there was a valid exercise of an option to renew a lease – where lease specified that option was to be exercised by all the lessees specified in the lease – where option only exercised by two of the lessees – whether there was a valid exercise of option to renew lease

Property Law Act 1974 (Qld), s 128(3), (4), (5) and (6)

Chaplin v Smith [1926] 1 KB 198, cited
Churcher v Danes Hotels Pty Ltd (1980) 8 BPR 15863, cited
Gentle v Falkner [1900] 2 QB 267, cited
JA McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121, cited
Lam Kee Ying v Lam Shes Tong [1975] AC 247, cited
Leask v Molina CA 40095/98 BC 9901576, 1 February 1999, cited
MacDonald v Robins (1953) 90 CLR 515, cited
Molina v Leask [1998] ANZ Conv Rep 361, no 2293/93, cited
Re Tabtide Pty Ltd [1989] 1 Qd R 604, cited

COUNSEL:

AJH Morris QC with C Jennings for the applicants
J Webb for the first respondents
S Sheaffe for the second respondent

SOLICITORS:

Ramsden Faes for the applicants
Robbins Watson for the first respondents
McLaughlins for the second respondent

1. The applicants seek declarations that on its true construction and in the events that have occurred they validly exercised an option to renew a lease dated 18 October 2000 and consequential orders.  The second respondent and co-lessee and the lessors deny that the option has been exercised.

Background

1. From 18 October 1995 until 1 July 1999 the second respondent (“Dr Salkeld”) and Robert John Weiss (“Dr Weiss”), both medical practitioners, operated a medical practice…