DISTRICT COURT OF QUEENSLAND
CITATION:
Goldsmith & another v AMP Life Ltd [2020] QDC 140
PARTIES:
ANDREW DAVID GOLDSMITH
AND
JANNE ELIZABETH TIPPET
(Plaintiffs)
v
AMP LIFE LTD ACN 079 300 379
(Defendant)
FILE NO/S:
419/16
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
25 June 2020
DELIVERED AT:
Brisbane
HEARING DATE:
5 – 7 May; 11 May; 13 May 2020
JUDGE:
Porter QC DCJ
ORDER:
1. The plaintiffs’ claims are dismissed.
2. The defendant’s counterclaim is dismissed.
CATCHWORDS:
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – where the plaintiffs’ company Gold Tip operated a news agency business in the defendant’s shopping centre as a lessee – where there were two leases – where the leases included terms implied under s 43(1)(b) and (c) of the Retail Shop Leases Act 1994 (Qld) (RSLA) – where the defendant commenced substantial renovations to the shopping centre while the defendant was occupying under the first lease – where the plaintiffs allege that certain actions taken by the defendant in the course of the renovations met the requirements of s 43(1)(b) and (c) in relation to both leases – whether certain actions taken by the defendant in the course of the renovations give rise to a right to compensation for loss flowing from those actions – whether the actions taken by the defendant in the course of the renovations caused loss to Gold Tip – whether the loss and damage allegedly caused to the Gold Tip under the first lease may include loss accruing in the period of operation under the second lease
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – LIMITATIONS OF ACTIONS – whether the cause of action arising under s 43(1) was a simple contract, thereby attracting a 6 year limitation period – where the defendant contends that any claim by the plaintiffs is statute barred – where the plaintiffs contend that the cause of action under s. 43(1) was an action upon a specialty covenant in a deed – where although the first lease was not in the form of a deed it was registered on the real property register, thereby attracting s. 176 of the Land Title Act 1994 (Qld) – where s. 176 of the Land Title Act 1994 (Qld) provides that a registered instrument operates as a deed – whether s 43(1) is incorporated into the first lease by law – whether the claim under s. 43(1) is an action upon a specialty and the plaintiffs therefore have 12 years to commence proceedings
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CROSS-CLAIMS: SET-OFF AND COUNTERCLAIM – SET-OFF – where Gold Tip ceased paying the monthly rent under its second lease – where that sum is the subject of a counterclaim in these proceedings against the plaintiffs as assignees of the rights of Gold Tip under s. 43(1) RSLA – whether that claim can be raised against the…
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- AGLC
- Goldsmith v AMP Life Ltd [2020] QDC 140
- Case
- [2020] QDC 140
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the implied obligations under the Act and whether they were incorporated into the leases as covenants in a deed. It concluded that the implied obligations were not incorporated as covenants in a deed but rather as simple contract terms, thereby attracting a six-year limitation period. The court further found that the plaintiffs' claims were statute-barred as they were brought outside this limitation period. Additionally, the court rejected the plaintiffs' argument that the claim was an action upon a specialty, which would have extended the limitation period to twelve years.
The court dismissed both the plaintiffs' claims and the defendant's counterclaim. In dismissing the plaintiffs' claims, the court found that the plaintiffs had failed to demonstrate that the defendant's actions constituted a breach of the implied obligations or that the losses claimed were a direct result of those actions. The court also ruled that the defendant's counterclaim for unpaid rent could not be set off or counterclaimed against the plaintiffs as assignees of Gold Tip's rights under the Act. The defendant's counterclaim was dismissed on the basis that the plaintiffs were not liable for the rent in question.
Orders
Orders of the court
1. The plaintiffs’ claims are dismissed.
2. The defendant’s counterclaim is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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