Hookey v Whitelaw - [2020] QSC 147

SUPREME COURT OF QUEENSLAND

CITATION:

Hookey & Anor v Whitelaw & Ors [2020] QSC 147

PARTIES:

SCOTT GREGORY HOOKEY

(first plaintiff)

KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST
(second plaintiff)
v
JOHN BRUCE WHITELAW
(first defendant)
KA ESTATES PTY LTD
ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST
(second defendant)
JBW ESTATES PTY LTD
ACN 600 612 819 AS TRUSTEE OF THE JBW FAMILY TRUST

(third defendant)

FILE NO/S:

8477 of 2018

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATES:

On the papers. Submissions filed 17 April 2020, 24 April 2020 and 29 April 2020

JUDGE:

Flanagan J

ORDER:

The Court declares that the lease registered at the Queensland Department of Natural Resources Mines and Energy with dealing number 717067584 (“the Registered Lease”) was lawfully terminated by the second defendant by the filing of its defence and counterclaim on 11 September 2018.

The judgment of the Court is that:

1.    The plaintiffs’ second further amended originating application (“the Originating Application”) is dismissed.

2.    The plaintiffs’ claim for damages in subparagraph 82A(c) of the fourth further amended statement of claim is dismissed.

3.    The plaintiffs’ claim in subparagraph 85(m) of the fourth further amended statement of claim for a declaration that the notice served by the second defendant as lessor and second plaintiff as lessee in purporting to terminate the Registered Lease is invalid is dismissed.

4.    The plaintiffs’ claim in paragraph 82C of the fourth further amended statement of claim for a declaration that the termination of the Registered Lease was invalid is dismissed.

5.    The second plaintiff pay to the second defendant the amount of $3,712.65 (being interest on rental arrears under the Registered Lease).

6.    The plaintiffs pay the defendants’ costs of the proceeding on the Originating Application.

7.    The plaintiffs pay the defendants’ costs of the counterclaim to be assessed on the indemnity basis.

The Court further orders that:

8.    The second plaintiff shall, within twenty-one (21) days of the date of this order, deliver to the second defendant, care of its solicitors, a banker’s undertaking for the sum of $524,389.10 pursuant to clause 36.1 of the Registered Lease (“the Bank Guarantee”), such undertaking to be:

(a)   addressed to the second defendant;

(b)  either unlimited in time or expressed to expire no earlier than 1 August 2035; and

(c)  otherwise in the form required by the schedule to the Registered Lease (page 38).

9.    The second plaintiff is at liberty to arrange for the transfer of the funds held by the plaintiffs’ solicitors in their trust account pursuant to the undertakings to the Court of 12 September 2018 (“the Trust Security”):

(a)  for the sole purpose of obtaining the Bank Guarantee, if need be; and

(b)  direct to the bank which issues the Bank Guarantee and only in exchange therefor.

10.  IF within twenty-one (21) days of this…

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.

Continue reading Hookey v Whitelaw

Details

AGLC: Hookey v Whitelaw [2020] QSC 147
Case: [2020] QSC 147
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the matter of Hookey v Whitelaw, the plaintiffs sought to challenge the termination of a lease by the defendants. The dispute arose under a lease registered in Queensland, with the defendants asserting that the lease had been lawfully terminated. The Supreme Court of Queensland was tasked with determining the validity of the lease termination and several related claims by the plaintiffs. The central legal issues before the court included whether the lease had been correctly terminated, the validity of various notices served, and the relief sought by the plaintiffs, including declarations and damages. The court examined the terms of the lease, the procedures followed in terminating the lease, and the plaintiffs' entitlement to the relief they sought. The court concluded that the lease had been lawfully terminated, and dismissed all claims by the plaintiffs. It also ordered the plaintiffs to pay the defendants' costs and for the second plaintiff to provide a bank guarantee within a specified period to avoid forfeiture of the lease. If the second plaintiff met these conditions, the lease would be relieved from forfeiture, and the second defendant would not take steps to enforce the earlier notices of termination. Failure to meet these conditions would allow the second defendant to recover possession of the land and seek further remedies.

Orders

Orders of the court

The Court declares that the lease registered at the Queensland Department of Natural Resources Mines and Energy with dealing number 717067584 (“the Registered Lease”) was lawfully terminated by the second defendant by the filing of its defence and counterclaim on 11 September 2018.

The judgment of the Court is that:

1. The plaintiffs’ second further amended originating application (“the Originating Application”) is dismissed.

2. The plaintiffs’ claim for damages in subparagraph 82A(c) of the fourth further amended statement of claim is dismissed.

3. The plaintiffs’ claim in subparagraph 85(m) of the fourth further amended statement of claim for a declaration that the notice served by the second defendant as lessor and second plaintiff as lessee in purporting to terminate the Registered Lease is invalid is dismissed.

4. The plaintiffs’ claim in paragraph 82C of the fourth further amended statement of claim for a declaration that the termination of the Registered Lease was invalid is dismissed.

5. The second plaintiff pay to the second defendant the amount of $3,712.65 (being interest on rental arrears under the Registered Lease).

6. The plaintiffs pay the defendants’ costs of the proceeding on the Originating Application.

7. The plaintiffs pay the defendants’ costs of the counterclaim to be assessed on the indemnity basis.

The Court further orders that:

8. The second plaintiff shall, within twenty-one (21) days of the date of this order, deliver to the second defendant, care of its solicitors, a banker’s undertaking for the sum of $524,389.10 pursuant to clause 36.1 of the Registered Lease (“the Bank Guarantee”), such undertaking to be:

(a) addressed to the second defendant;

(b) either unlimited in time or expressed to expire no earlier than 1 August 2035; and

9. The second plaintiff is at liberty to arrange for the transfer of the funds held by the plaintiffs’ solicitors in their trust account pursuant to the undertakings to the Court of 12 September 2018 (“the Trust Security”):

(a) for the sole purpose of obtaining the Bank Guarantee, if need be; and

(b) direct to the bank which issues the Bank Guarantee and only in exchange therefor.

10. IF within twenty-one (21) days of this judgment, the second plaintiff has delivered the Bank Guarantee to the second defendant, then:

(a) the plaintiffs shall thereupon be discharged from their undertakings as to damages given to the Court on 12 September 2018;

(b) the plaintiffs’ written authority and direction given by the plaintiffs to their solicitors pursuant to paragraph 3 of Schedule A to the order made on 12 September 2018 is discharged; and

(c) the plaintiffs and their solicitors shall thereupon be at liberty to deal with the said sum of $524,389.10 and any accretions thereon as the plaintiffs direct.

11. For the avoidance of doubt, the solicitors for the plaintiffs are, upon the making of this order, at liberty to deal with the Trust Security in accordance with paragraph 8 hereof, to enable the second plaintiff to deliver the Bank Guarantee to the second defendant within the said period of twenty-one (21) days.

12. IF-

(a) within twenty-one (21) days of this judgment, the second plaintiff has paid the sum of $3,712.65 referred to in paragraph 5 to the second defendant; and

(b) within twenty-one (21) days of this judgment, the second plaintiff has delivered the Bank Guarantee to the second defendant; and

THEN subject to paragraph 13 of this order:

(c) the second plaintiff shall thereupon be relieved from forfeiture of the Registered Lease under the notices dated 11 June 2018, 16 October 2018 and 13 March 2019;

(d) the second defendant shall take no step to enforce any of the said notices.

13. IN THE EVENT of any default on the part of either of the plaintiffs in the satisfaction of any of the conditions set out in subparagraphs 12(a) and 12(b) hereof THEN the second defendant shall thereupon be entitled:

(a) to recover possession of the land the subject of the Registered Lease;

(b) to issue an Enforcement Warrant for possession of the said land and/or for the recovery of any sums payable under these orders; and

(c) to request the Registrar of Titles (in Form 14 – General Request, Land Title Practice Manual (Queensland)) to register its re-entry under the Registered Lease.

14. The parties shall have liberty to apply on three days’ notice in writing to the others.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hookey & Anor v Whitelaw & Ors [2020] QSC 147
PARTIES:	SCOTT GREGORY HOOKEY (first plaintiff) KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST (second plaintiff) v JOHN BRUCE WHITELAW (first defendant) KA ESTATES PTY LTD ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST (second defendant) JBW ESTATES PTY LTD ACN 600 612 819 AS TRUSTEE OF THE JBW FAMILY TRUST (third defendant)
FILE NO/S:	8477 of 2018
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 May 2020
DELIVERED AT:	Brisbane
HEARING DATES:	On the papers. Submissions filed 17 April 2020, 24 April 2020 and 29 April 2020
JUDGE:	Flanagan J
ORDER:	The Court declares that the lease registered at the Queensland Department of Natural Resources Mines and Energy with dealing number 717067584 (“the Registered Lease”) was lawfully terminated by the second defendant by the filing of its defence and counterclaim on 11 September 2018. The judgment of the Court is that: 1. The plaintiffs’ second further amended originating application (“the Originating Application”) is dismissed. 2. The plaintiffs’ claim for damages in subparagraph 82A(c) of the fourth further amended statement of claim is dismissed. 3. The plaintiffs’ claim in subparagraph 85(m) of the fourth further amended statement of claim for a declaration that the notice served by the second defendant as lessor and second plaintiff as lessee in purporting to terminate the Registered Lease is invalid is dismissed. 4. The plaintiffs’ claim in paragraph 82C of the fourth further amended statement of claim for a declaration that the termination of the Registered Lease was invalid is dismissed. 5. The second plaintiff pay to the second defendant the amount of $3,712.65 (being interest on rental arrears under the Registered Lease). 6. The plaintiffs pay the defendants’ costs of the proceeding on the Originating Application. 7. The plaintiffs pay the defendants’ costs of the counterclaim to be assessed on the indemnity basis. The Court further orders that: 8. The second plaintiff shall, within twenty-one (21) days of the date of this order, deliver to the second defendant, care of its solicitors, a banker’s undertaking for the sum of $524,389.10 pursuant to clause 36.1 of the Registered Lease (“the Bank Guarantee”), such undertaking to be: (a) addressed to the second defendant; (b) either unlimited in time or expressed to expire no earlier than 1 August 2035; and (c) otherwise in the form required by the schedule to the Registered Lease (page 38). 9. The second plaintiff is at liberty to arrange for the transfer of the funds held by the plaintiffs’ solicitors in their trust account pursuant to the undertakings to the Court of 12 September 2018 (“the Trust Security”): (a) for the sole purpose of obtaining the Bank Guarantee, if need be; and (b) direct to the bank which issues the Bank Guarantee and only in exchange therefor. 10. IF within twenty-one (21) days of this…