Harro Group Pty Ltd v Aspire Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Harro Group Pty Ltd v Aspire Pty Ltd [2019] QSC 189

PARTIES:

HARRO GROUP PTY LTD ACN 108 581 353
(plaintiff)

v

ASPIRE PTY LTD ACN 600 332 063
(first defendant)

BRADLEY CHARLES HOPPER
(second defendant)

FILE NO/S:

BS 13208/18

DIVISION:

Trial Division

PROCEEDING:

Claim

DELIVERED ON:

8 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2019

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.    The application is dismissed.

2.    The costs of the application are reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the defendants applied to strike out paragraphs of the statement of claim – where the defendants alleged no reasonable cause of action or that the causes of action were made without reasonable grounds – where the disputed question was a question of law – where the matter would proceed to trial even if defendants were successful on application – where the application was dismissed to allow the question to be decided at trial 

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where the plaintiff claimed an implied term existed in a lease requiring the defendant to pay market rent if the defendant did not trade from the property – whether the implied term was necessary to give business efficacy to the contract – where the alleged implied term is inconsistent or contradicts an express term of the contract – where the alleged implied term does not satisfy the requirements of obviousness and clarity

RESTITUTION – REMEDIES – GENERALLY – where the contract is legally effective and remains on foot – where the plaintiff claims damages for breach of contract up to the present time – where rent is to be determined as a percentage of turnover – where trading never commenced - whether a restitutionary cause of action is available

Common Law Practice Act 1867 (Qld)

Distress for Rent Act 1737

Uniform Civil Procedure Rules 1999 (Qld), r 171

Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, cited
Australian Provincial Assurance Association Ltd v Rogers (1943) 43 SR (NSW) 202, cited

Barnes v Eastenders Cash & Carry [2015] AC 1, cited

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, cited

BP Refinery (Westernport) v Shire of Hastings (1977) 180 CLR 266, applied

Breen v Williams (1996) 186 CLR 71, cited
Broadway Pty Ltd v Lewis [2012] WASC 373, cited

CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd (2017) 55 VR 62, cited

Clark v Macourt (2013) 253 CLR 1, cited

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, considered

Collett v Curling (1847) 10 QB 785, cited

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, considered

Con-Stan Industries of…

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Details
Case
[2019] QSC 189
Decision Date

CaseChat Overview and Summary

Harro Group Pty Ltd initiated proceedings against Aspire Pty Ltd in the Supreme Court of Victoria, seeking damages for breach of a lease agreement. Aspire applied to strike out certain paragraphs of Harro's statement of claim, arguing that there was no reasonable cause of action or that the causes of action were made without reasonable grounds. The dispute centred on the interpretation of the lease, specifically whether an implied term requiring Aspire to pay market rent if it did not trade from the property existed, and the potential for restitutionary remedies despite the non-commencement of trading.

The court considered the criteria for striking out pleadings, emphasising that such applications should only be granted when the case is plainly unarguable. The court found that the issues raised were complex questions of law and fact, particularly regarding the implied term's necessity for business efficacy and its consistency with express terms. The court also considered whether a restitutionary cause of action was available given the contract remained legally effective and the non-commencement of trading. Since the matter would proceed to trial regardless of the outcome of the striking-out application, the court dismissed the application to allow the issues to be determined at trial.

The court held that the questions of implied terms and restitution were not so plainly unarguable as to warrant striking out the claims. The order of the court was that the application to strike out was dismissed, and the costs of the application were reserved for further consideration.

Orders

Orders of the court

The order of the court is that:

1. The application is dismissed.

2. The costs of the application are reserved.

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

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