Grepo v Jam-Cal Bundaberg Pty Ltd - [2014] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

Grepo & Anor v Jam-Cal Bundaberg Pty Ltd [2014] QSC 119

PARTIES:

FRANK GREPO and BERYL DOROTHY GREPO
(plaintiffs)
v
JAM-CAL BUNDABERG PTY LTD
ACN 089 493 550

(defendant)

FILE NO/S:

SC No 514 of 2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

4 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19, 20 and 21 May 2014

JUDGE:

Chief Justice

ORDER:

Claim and counter claim dismissed.1.

Plaintiffs to pay the defendant’s costs of and incidental to the claim and the counter claim, to be assessed on the standard basis.2.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – LEASES – DETERMINATION – EJECTMENT AND RECOVERY OF LAND – the plaintiffs had carried on the business of scrap metal dealing for 16 years – the plaintiffs sold their business and leased part of their land to the defendant company and remained living on the remainder of the land in a residential house – the lease was for a period of 3 years with an option for an additional 3 years – the option required the defendant to have “at all times up to the date of expiration of the term … complied punctually with its obligations” – the plaintiffs allege the defendant breached a number of covenants including the payment of rent and rates, accumulation of rubbish, failing to keep the premises free of pests, production of excessive dust and fumes and sub-letting – the plaintiffs assert the option was not validly exercised and that the tenancy thus transformed into a monthly tenancy – the plaintiffs served notice on the defendant to vacate (either the required statutory notice or acceptance of repudiation) – whether the plaintiffs are entitled to recovery of their land

LANDLORD AND TENANT – RENEWALS AND OPTIONS – RELIEF AGAINST LOSS OF OPTION FOR RENEWAL – the plaintiffs had carried on the business of scrap metal dealing for 16 years – the plaintiffs sold their business and leased part of their land to the defendant company and remained living on the remainder of the land in a residential house – the lease was for a period of 3 years with an option for an additional 3 years – the option required the defendant to have “at all times up to the date of expiration of the term … complied punctually with its obligations” – the plaintiffs allege the defendant breached a number of covenants including the payment of rent and rates, accumulation of rubbish, failing to keep the premises free of pests, production of excessive dust and fumes and sub-letting – section 128 of the Property Law Act 1974 (Qld) provides relief against the loss of an option to renew unless proper notice is provided by the lessor – the plaintiffs assert that breaches after the valid exercise of an option but before the expiry of the original term can be relied on to deny the defendant the option to renew – the plaintiffs assert that the defendant…

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.

Keep reading for free

Create a free CaseChat account to read Grepo v Jam-Cal Bundaberg Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QSC 119
Decision Date: 4 June 2014

CaseChat Overview and Summary

In Grepo v Jam-Cal Bundaberg Pty Ltd, the plaintiffs, who had previously operated a scrap metal business on the land, leased a portion of their property to the defendant company for a term of three years with an option for an additional three years. The option was contingent upon the defendant's compliance with all its obligations up until the expiration of the term. The plaintiffs alleged that the defendant breached several covenants in the lease, including timely payment of rent and rates, accumulation of rubbish, failure to maintain the premises free of pests, excessive dust and fumes, and sub-letting without permission. They further contended that the defendant did not validly exercise the option to renew, thus transforming the tenancy into a monthly tenancy. The plaintiffs served notice to vacate and sought to recover possession of the land.

The legal issues before the court involved the enforceability of the option to renew, the applicability of section 128 of the Property Law Act 1974 (Qld) in relation to breaches occurring after the purported exercise of an option, and whether the alleged breaches justified termination of the lease and recovery of the land. The court had to determine whether the defendant was in breach of any covenants at the time the original term ended but after the purported exercise of the option, and whether these breaches could be relied upon to deny the defendant the right to exercise the renewal option. Additionally, the court considered whether the plaintiffs' acceptance of the defendant's alleged repudiation of the lease entitled them to eject the defendant and recover the land.

The court ruled that the defendant had indeed breached several covenants in the lease, including failure to pay rent and rates, accumulation of rubbish, and sub-letting without permission. These breaches, which occurred after the option to renew was purportedly exercised but before the end of the original term, were sufficient to deny the defendant the right to renew the lease. The court found that section 128 of the Property Law Act did not provide relief against the loss of an option for renewal where the breaches occurred after the exercise of the option. The court also determined that the plaintiffs were entitled to terminate the lease due to the defendant's breaches and were thus entitled to recover possession of the land.

In conclusion, the court dismissed both the plaintiffs' claim and the defendant's counterclaim. The plaintiffs were ordered to pay the defendant's costs of and incidental to the claim and the counterclaim, to be assessed on the standard basis.

Orders

Orders of the court

Claim and counter claim dismissed.1.

Plaintiffs to pay the defendant’s costs of and incidental to the claim and the counter claim, to be assessed on the standard basis.2.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	Grepo & Anor v Jam-Cal Bundaberg Pty Ltd [2014] QSC 119
PARTIES:	FRANK GREPO and BERYL DOROTHY GREPO (plaintiffs) v JAM-CAL BUNDABERG PTY LTD ACN 089 493 550 (defendant)
FILE NO/S:	SC No 514 of 2013
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	4 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	19, 20 and 21 May 2014
JUDGE:	Chief Justice
ORDER:	Claim and counter claim dismissed.1. Plaintiffs to pay the defendant’s costs of and incidental to the claim and the counter claim, to be assessed on the standard basis.2.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – LEASES – DETERMINATION – EJECTMENT AND RECOVERY OF LAND – the plaintiffs had carried on the business of scrap metal dealing for 16 years – the plaintiffs sold their business and leased part of their land to the defendant company and remained living on the remainder of the land in a residential house – the lease was for a period of 3 years with an option for an additional 3 years – the option required the defendant to have “at all times up to the date of expiration of the term … complied punctually with its obligations” – the plaintiffs allege the defendant breached a number of covenants including the payment of rent and rates, accumulation of rubbish, failing to keep the premises free of pests, production of excessive dust and fumes and sub-letting – the plaintiffs assert the option was not validly exercised and that the tenancy thus transformed into a monthly tenancy – the plaintiffs served notice on the defendant to vacate (either the required statutory notice or acceptance of repudiation) – whether the plaintiffs are entitled to recovery of their land LANDLORD AND TENANT – RENEWALS AND OPTIONS – RELIEF AGAINST LOSS OF OPTION FOR RENEWAL – the plaintiffs had carried on the business of scrap metal dealing for 16 years – the plaintiffs sold their business and leased part of their land to the defendant company and remained living on the remainder of the land in a residential house – the lease was for a period of 3 years with an option for an additional 3 years – the option required the defendant to have “at all times up to the date of expiration of the term … complied punctually with its obligations” – the plaintiffs allege the defendant breached a number of covenants including the payment of rent and rates, accumulation of rubbish, failing to keep the premises free of pests, production of excessive dust and fumes and sub-letting – section 128 of the Property Law Act 1974 (Qld) provides relief against the loss of an option to renew unless proper notice is provided by the lessor – the plaintiffs assert that breaches after the valid exercise of an option but before the expiry of the original term can be relied on to deny the defendant the option to renew – the plaintiffs assert that the defendant…