Gotze v Ylitalo - [2005] QSC 12

SUPREME COURT OF QUEENSLAND

CITATION: Gotze v Ylitalo [2005] QSC 012

PARTIES: PAUL GOTZE and MARIANNE GOTZE
(Plaintiff)
v
VAINO HENRIK YLITALO
(Defendant)

FILE NO: S44/2003
DIVISION: Trial Division

DELIVERED ON: 8 Feb 2005

DELIVERED AT: Mackay

HEARING DATES: 20-24 Sep, 18-19 Oct and 22 Nov 2004.

JUDGE: Dutney J

ORDERS:1)   Judgment for the plaintiffs against the         defendant in the sum of $139,562.50;
2)The monies held in the Capricornia Credit Union account “51083S2B – Gotze and            Ylitalos Account, Grant & Simpson as      trustee for” be paid out to the Plaintiffs in      partial satisfaction of the judgment;
3) A copy of the final statement of the aforesaid          account      showing the amount paid out to the plaintiffs be provided to the solicitors on the      record for the           defendant;
4)Judgment for the second named plaintiff      against the defendant in the further sum of $8,175.

CATCHWORDS: NEGLIGENCE – BREACH OF DUTY – REASONABLE FORESEEABILITY OF DAMAGE – where Defendant built premises with inherent defects – Plaintiffs leased premises from the Defendant – whether Defendant liable

LANDLORD AND TENANT – LEASE CONSTRUCTION – BREACHES – TERMINATION OF LEASE – RECOVERY – whether action lies for landlord’s failure to repair structural defects – whether maintenance
DAMAGES – MEASURE OF – PERSONAL INJURIES – whether plaintiffs entitled to damages for stress

Haines v Bendall (1991) 172 CLR 60 at 63, applied.
Hill v Harris [1965] 2 QB 601, cited.
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 (12 November 2004), considered.
Perre v Apand (1999) 198 CLR 180, applied.
Toteff v Antonas (1952) 87 CLR 647 at 654, applied.
Defamation Act 1889, ss5 and 7
Personal Injuries Proceedings Act 2002, s18(b)

COUNSEL:In person

Brian Harrison SC for the Defendant

SOLICITORS: MS Kelly & Co Solicitors for the Defendant

Mr Gotze was born in East Germany. He first came to Australia in 1972 as a young man and worked in a variety of manual occupations. For a time he worked at Groote Eylandt in the mining industry. Later he was a meatworker. Mr Gotze met his wife in Australia. Mrs Gotze was born in Switzerland.

In 1990, being unable to find work, the Gotzes returned to Europe and lived for six years in Switzerland. Mr Gotze had no difficulty finding work in Switzerland but he suffered from the cold weather. Mrs Gotze worked in a clerical and book-keeping role with a financial institution.

Mr and Mrs Gotze saved sufficient money in Switzerland to return to Australia in 1996. Mr Gotze again had difficulty finding work so the Gotzes decided to invest their capital in a business.

Ultimately they decided to buy the Clairview Creek Driveway which is the subject of these proceedings.

The Clairview Creek Driveway (“the business”) consisted of a service station driveway, a kiosk and a fairly rudimentary caravan park. It was located at a locality, called Kalarka, about 20 km south of Clairview on the Bruce Highway. The nearest highway businesses were a service station about 50k to…

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.

Continue reading Gotze v Ylitalo

Details

AGLC: Gotze v Ylitalo [2005] QSC 12
Case: [2005] QSC 12
Decision Date: 8 February 2005

CaseChat Overview and Summary

The Supreme Court of Queensland was asked to decide whether a landlord was liable for damages for the loss of a tenant's business due to the landlord's negligence in constructing the premises. The Gotzes leased premises from Ylitalo for the purpose of operating a roadside food business. The Gotzes claimed that the premises were negligently constructed and that the landlord was liable for the loss of their business due to the defective premises. Ylitalo argued that he was not liable for the tenants' economic loss. The Court held that the landlord was liable for the foreseeable economic loss flowing from his negligent construction of the premises. The Court found that the landlord's negligence in constructing the septic system and the kitchen exhaust and ventilation hood caused the tenants' business to fail. The Court awarded the tenants damages for the loss of their business, the cost of repairs to the septic system, the loss of perishable stock, and the tenants' pain and suffering. The Court rejected the tenants' claims for damages for harassment, loss of reputation, and the cost of acquiring the business. The Court also rejected the landlord's counterclaim for unpaid rent. The Court ordered the landlord to pay the tenants' damages and costs of the action.

Orders