SUPREME COURT OF QUEENSLAND
CITATION:
Grepo & Anor v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131
PARTIES:
FRANK GREPO & BERYL DOROTHY GREPO
(appellants)
v
JAM-CAL BUNDABERG PTY LTD
ACN 089 493 550
(respondent)FILE NO/S:
Appeal No 6131 of 2014
SC No 514 of 2013DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Cairns – [2014] QSC 119DELIVERED ON:
17 July 2015
DELIVERED AT:
Brisbane
HEARING DATE:
24 February 2015
JUDGES:
Holmes and Morrison JJA and Douglas J
Separate reasons for judgment of each member of the Court, Holmes JA and Douglas J concurring as to the orders made, Morrison JA dissenting in partORDERS:
1. The appeal is allowed.
2. The judgment below is set aside, and it is ordered that there be judgment for the appellants for recovery of possession of premises at 1 Ray Road Mareeba described as Lot 874 on CP NR 4546, County of Nares, Parish of Tinaroo, Title Reference 20945056.
3. The respondent is to pay the appellants’ costs of the appeal and the proceeding at first instance.
CATCHWORDS:
LANDLORD AND TENANT – RENT – PROVISIONS AS TO RENT IN AGREEMENT FOR LEASE OR LEASE – RENT REVIEW CLAUSES – where the lease provided for rent review after the first year, either by way of market review or review based on the consumer price index – where the lessee paid rent at the base rate for the whole of the three year term – where the lessor argued that the lessee was required to calculate the rent payable in accordance with the consumer price index – where the lessee argued that the obligation to pay any increase was dependent on a determination being made by the lessors – whether the terms of the lease required a determination to be made – whether the trial judge erred in failing to find that the lessee was in breach of its obligation to pay rent
LANDLORD AND TENANT – COVENANTS – OTHER COVENANTS – where the lease prohibited the accumulation of rubbish on the premises – where the lessors argued that there was photographic evidence of an unacceptable accumulation of tyres – where there was no evidence as to when the photographs were taken – whether the trial judge erred in failing to find that the lessee was in breach of the lease
LANDLORD AND TENANT – COVENANTS – NOT TO ASSIGN OR SUBLET – LESSOR’S CONSENT – where the lease prohibited the lessee from underletting the premises without the lessors’ prior consent – where the permitted use of the premises was as a wrecking business – where the lessee rented a granny flat which was part of the premises to an employee without the lessors’ permission – where the lessee argued that the tenant was a caretaker and that his occupation of the flat was ancillary to the permitted use of the premises – whether the trial judge erred in failing to find that the lessee’s underletting of the…
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- Case
- [2015] QCA 131
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the tenants were required to calculate rent based on the consumer price index, whether the tenants breached the lease by accumulating rubbish, whether the tenants breached the lease by subletting without permission, whether the tenants breached the lease by failing to address a pest infestation, and whether the tenants were entitled to relief from forfeiture despite breaches of the lease. Additionally, the court needed to determine the point at which the option to renew the lease was exercised and whether the protective provisions of s 128 of the Property Law Act 1974 (Qld) applied to breaches occurring after the tenants gave notice of their intention to exercise the option.
The court found that the tenants were indeed required to calculate the rent based on the consumer price index as outlined in the lease agreement. The court also held that the tenants breached the lease by accumulating rubbish, subletting without permission, and failing to address a pest infestation. The court further determined that the option to renew the lease was exercised at the time the tenants gave notice, but before the expiration of the lease term. The court concluded that s 128 of the Property Law Act 1974 (Qld) did not apply to breaches that occurred after the tenants gave notice of their intention to exercise the option. The court found that while certain equitable rights were created by the notice of intention to exercise the option, these rights were limited and contingent upon the tenants fulfilling their obligations under the lease.
ORDERS:
1. The appeal is allowed.
2. The judgment below is set aside, and it is ordered that there be judgment for the appellants for recovery of possession of the premises at 1 Ray Road Mareeba.
3. The respondent is to pay the appellants’ costs of the appeal and the proceeding at first instance.
4. The respondent is to pay the appellant $3,893.43 (including GST) for arrears of rent.
Orders
Orders of the court
1. The appeal is allowed.
2. The judgment below is set aside, and it is ordered that there be judgment for the appellants for recovery of possession of premises at 1 Ray Road Mareeba described as Lot 874 on CP NR 4546, County of Nares, Parish of Tinaroo, Title Reference 20945056.
3. The respondent is to pay the appellants’ costs of the appeal and the proceeding at first instance.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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