Griffiths v Williams

Case [2021] QDC 338

DISTRICT COURT OF QUEENSLAND

CITATION:

Griffiths v Williams [2021] QDC 338

PARTIES:

JOHN MINTO GRIFFITHS

(Appellant)

v

WARREN KENNETH WILLIAMS

(First Respondent)
and
ANNETTE JOY WILLIAMS

(Second Respondent)

FILE NO:

8/21

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

18 November 2021 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

18 November 2021

JUDGE:

Jackson QC DCJ

ORDER:

The appeal is dismissed

CATCHWORDS:

APPEAL – APPEAL BY WAY OF RE-HEARING – Where the appellant submits that the learned Magistrate erred in not ordering that rent be payable on the basis of a market review – Where the market review was completed almost three years after the expiration of the lease – Where the respondent submits that the learned Magistrate made no appealable error – Whether the appeal should be allowed.

LEGISLATION:

District Court of Queensland Act1967 (Qld)
Magistrates Courts Act1921 (Qld)
Queensland Civil and Administrative Tribunal Act2009 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Allesch v Maunz (2000) 203 CLR 172
Backa Australia Pty Ltd & Anor v HNT Builders Pty Ltd [2017] QDC 255
Callaghan v Merivale Pty Ltd [2005] NSWSC 985
Clambake Pty Limited v Tipperary Projects Pty Ltd [2009] WASC 52
Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455
GR Mailman & Associates v Wormald (Australia) Pty Ltd (1991) 24 NSWLR 80
JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272
Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2013] QCA 271
Maritime Services Board of New South Wales v Australian Shipping Commission (1991) 27 NSWLR 258
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Paice Newland v Maunder [2019] VSC 33
Parsons v Raby [2007] QCA 98
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Properties Pty Ltd v BBC Hardware Pty Ltd [1999] NSWSC 968
Trading & Promotion Services Ltd (1983) 47 PCR 607
Teelow v Commissioner of Police [2009] 2 Qd R 489
Tormister Properties v Green [1983] 1 WLR 676
Trustees of Henry Smith’s Charity v AWADA
Tournament Parking Ltd v The Wellington Company [2010] NZHC 1096
United Scientific Holdings Limited v Burnley Borough Council [1978] AC 904
Wing Crawford Holdings Pty Ltd v Lion Corporation [1989] 1 NZLR 562

COUNSEL:

L D Bowden for the appellant

D V Ferraro for the respondents
SOLICITORS:

Provest Law for the appellant
Gall Stanfield & Smith solicitors for the respondents

Introduction

  1. This is a civil appeal from part of the order of the Magistrates Court at Southport made on 11 December 2020. 

  2. The learned Magistrate on that date gave judgment dismissing the appellant’s claim and entering judgment for the respondents on their counterclaim.  The only aspect which is appealed is the dismissal of the claim for rent said to be payable on the basis of a market review completed a little less than three years after the expiration of the term of a 3 year lease between the appellant as lessor and the respondents as…

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Griffiths v Williams [2021] QDC 338
Case
[2021] QDC 338
Decision Date

CaseChat Overview and Summary

The appeal in Griffiths v Williams was brought by the appellant against the respondent regarding a dispute over rent payable post the expiration of a lease. The case was heard in the Supreme Court of Queensland. The appellant contended that the Magistrate had erred by not ordering rent to be payable based on a market review, which was completed nearly three years after the lease's expiration. The respondent argued that the Magistrate had not made any appealable error.

The central legal issue in this case was whether the Magistrate had erred in not ordering the rent to be payable based on a market review, despite the review being conducted years after the lease's termination. The appellant argued that the lease's terms allowed for a rent review even after the lease's expiration. However, the court had to determine if the time stipulations in the lease made the timing of the review crucial to its enforceability. The court considered whether the presumption that time was not of the essence in rent review clauses could be rebutted by the lease's terms or surrounding circumstances.

The court found that the Magistrate was correct in deciding that time was of the essence for the rent review. The court reasoned that the lease provided alternatives for determining the rent if a market review was not possible, and these alternatives made the timing of the review crucial. The court concluded that the presumption that time was not of the essence could be rebutted by the lease's terms and circumstances. Therefore, the Magistrate did not err in not ordering the rent to be payable based on a late market review. The appeal was dismissed, and the decision of the Magistrate was upheld.

Orders

Orders of the court

The appeal is dismissed

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

Her Honour took the view that there was no need to have recourse to the Current Market Review after the expiration of the lease (or ask whether any right to appoint a valuer had been waived) because of the alternatives in subclauses 4.1(b) or (c), which indicated that time was of the essence. Her Honour expressed the view that, as there was no agreed or valued Current Market Rent the rent was varied to the greater of the amounts provided for in subclauses 4.1(b) and (c). Her Honour expressed the view that while there might be an accrued right if the only means of establishing the rent for the second year was by valuation, that was not so because of the alternatives in 4.1(b) and (c). Those statements were made in response to the appellant’s submission relying on Clambake which I will deal with shortly for the proposition that “in the absence of agreement to the contrary, the rent review power may be exercised notwithstanding that the lease has concluded”.I pause to mention at this point that when speaking of accrued rights and obligations it is important to identify with some precision the right or obligation which is said to have accrued. The appellant submits that the right which had accrued was the right to proceed with the valuation process after the lease came to an end. ConsiderationTime of the essence? Her Honour concluded that time was of the essence on the basis that the presumption in United Scientific was rebutted in circumstances where there were the contra indications I have referred to above. In United Scientific Lord Salmon (at [1978] AC 904 at page 950) said:“The time provision in a rent revision clause of the present kind, even in a lease concerning a commercial transaction is however different in character and I regard it as not being of the essence of the contract unless it is made so expressly or by necessary implication.” At page 951 his Honour went on to say:“I do not regard the leases in either of the present appeals, nor in Samuel Properties (Developments) Ltd v. Hayek [1972] 1 W.L.R. 1296 (to which I shall return), as vesting any option in the landlord to have the rent revised. In my opinion each lease constitutes, amongst other things, an agreement between the parties that, at stated intervals, the rents shall be revised so as to bring them into line with the then open market rent. The rent revision clauses specified the machinery or guidelines for ascertaining the open market rent. These provisions as to time are not, in my opinion, mandatory or inflexible; they are only directory.” The effect of the decision in United Scientific was summarised by Slade LJ in Trustees of Henry Smith’s Charity v AWADA Trading & Promotion Services Ltd (1983) 47 P & CR 607 at 619 as cited by Gleeson CJ in Mailman at [88] in the following terms:“(1)Where a rent review clause confers on a landlord or tenant a right for his benefit or protection, as part of the procedure for ascertaining the new rent, and that right is expressed to be exercisable within a specified time, there is a rebuttable presumption of construction that time is not intended to be of the essence in relation to any exercise of that right.(2)In a case where the presumption applies, the other party concerned may, if he wishes to bring matters to a head after the stipulated time for the exercise of the right has expired, give to the owner of the right a notice specifying a period within which he requires the right to be exercised, if at all; the period thus specified will if it is reasonable then become the essence of the contract.(3)The presumption is rebuttable by sufficient ‘contra indications in the express words of the lease or in the interrelation of the rent review clause itself and other clauses or in the surrounding circumstances.’ …(4)Though the best way of rebutting the presumption is to state expressly that stipulations as to the time by which steps provided for by the rent review clause are to be taken is to be treated as being of the essence (as to which see United Scientific Holdings Ltd v Burnley Borough Council v Lord Diplock [[1978] AC] at 936, and per Lord Salmon [[ 1978] AC] at 947), this is not the only way. Any form of expression which clearly evinces the concept of finality attached to the end of the period or periods prescribed will suffice to rebut the presumption. The parties are quite free to contract on the basis that time is to be of the essence if they so wish.”