Grist v Lenan

[2019] QSC 325

SUPREME COURT OF QUEENSLAND

CITATION:

Grist & Ors v Lenan & Anor [2019] QSC 325

PARTIES:

GARY PATRICK GRIST

(first plaintiff)
and
MARGARET IRENE GRIST
(second plaintiff)
and
ALISTAIR GARY GRIST
(third plaintiff)

v

ANTHONY LENAN

(first defendant)
and
FRANK MESIANO
(second defendant)

FILE NO:

11981 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

20 December 2019

JUDGE:

Ryan J

ORDERS:

1.  Judgment for the defendants;

2.  The plaintiffs pay the defendants’ costs of the application on the standard basis.

COUNSEL:

Mr G Grist for the plaintiffs

Mr N J Derrington for the defendants

SOLICITORS:

Mr G Grist for the plaintiffs

MBA Lawyers for the defendants

[1]           This is an application by the defendants for summary judgment of the plaintiffs’ claim, or in the alternative, an application to strike out the plaintiffs’ statement of claim.

[2]           The context for this application is as follows.  A company called Boldmount was, until November 2016, the lessee, under a written lease, of retail premises in Carrara owned by Firestar Convenience Retail Developments Pty Ltd.  The first and third plaintiff guaranteed the company’s obligations under the lease.  The company operated a “Foodworks” store in the premises.

[3]           Boldmount failed to pay rent as required under the lease.  Ultimately, in November 2016, Firestar exercised its rights of termination under the lease by way re-entering and taking possession of the leased premises.  It was one of Firestar’s directors who, after receiving a telephone call that the Foodworks operation had been closed, and having found the premises in what he considered to be an abandoned state, padlocked them.  

[4]           In February 2017, Firestar commenced proceedings in the Magistrates Court against Boldmount, and Gary and Alistair Grist, for the recovery of amounts due under the lease. 

[5]           On 16 June 2007, Magistrate Sinclair delivered his reasons in an application for summary judgment of those proceedings, brought by Firestar against Boldmount and Gary and Alistair Grist. 

[6]           In considering the application for summary judgment, the learned magistrate identified two real issues to be tried.  One of those issues was whether Boldmount had abandoned the lease, and Firestar had therefore lawfully terminated it, or whether Firestar was in breach of the lease agreement for terminating it when it did.

[7]           The learned magistrate dismissed the application for summary judgment.  He could not conclude that the defendants had no real prospect of defending any or all of the claim.  In particular, he said, at [22] of his reasons, that he found himself unable to find that the premises were abandoned by the defendant.  He continued:

“The plaintiff could have validly taken possession on 29 November 2016 for non payment of rent but until that time had no right to exclude the defendant from the premises or prevent it from taking those fixtures and fittings it wanted to.”

[8]           However, his Honour’s reasons, read in context, explain that he was unable to give summary judgment…