Hookey v Whitelaw

Case [2020] QSC 63

SUPREME COURT OF QUEENSLAND

CITATION:

Hookey & Anor v Whitelaw & Ors [2020] QSC 63

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:

7 April 2020

DELIVERED AT:

Brisbane

HEARING DATES:

22, 23, 24, 25, 28 and 31 October 2019
Further submissions 5 November 2019 and 15 November 2019

JUDGE:

Flanagan J

ORDER:

1.    The plaintiffs’ second further amended originating application is dismissed.

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

3.    The plaintiffs’ claim in para 85(m) of the fourth further amended statement of claim for a declaration that the notice served by the second defendant as lessor and Kids Academy as lessee in purporting to terminate the lease registered at the Queensland Department of Natural Resources with dealing number 717067584 is invalid is dismissed. 

4.    The plaintiffs’ claim in para 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 Court declares that registered lease number 717067584 was lawfully terminated by KA Estates by the filing of its defence and counterclaim on 11 September 2018.

6.    Kids Academy be granted relief against forfeiture as claimed in para 84D of the fourth further amended statement of claim.

7.    I will hear the parties further as to the terms of the grant of relief against forfeiture.

8.    I will hear the parties as to costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – where the parties were engaged in the ownership and operation of a childcare centre – where the plaintiffs alleged the existence of an oral joint venture agreement, breach of which entitled the plaintiffs to relief – where the defendants denied that any such agreement was entered into – whether the parties had entered into an oral joint venture agreement – whether the conduct of the parties otherwise gave rise to estoppel or fiduciary duties

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – FORFEITURE – NOTICE AND DEMAND BEFORE RE-ENTRY – where the plaintiff argued that the rent demanded was excessive – where the plaintiff argued that the notice did not allow a reasonable time to remedy the breach – whether the notice was valid

LANDLORD AND TENANT – TERMINATION OF THE TENANCY – FORFEITURE – RELIEF AGAINST FORFEITURE – RELIEF UNDER STATUTE –GENERALLY – where the plaintiff had paid all arrears of rent and continued to pay rent – where the…

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AGLC
Hookey & Anor v Whitelaw & Ors [2020] QSC 63
Case
[2020] QSC 63
Decision Date

CaseChat Overview and Summary

The plaintiffs, Mr Hookey and Mr Whitelaw, engaged in the ownership and operation of a childcare centre, with the plaintiffs alleging the existence of an oral joint venture agreement, breach of which entitled them to relief. The defendants denied any such agreement. The court was tasked with determining whether the parties had entered into an oral joint venture agreement and whether the conduct of the parties otherwise gave rise to estoppel or fiduciary duties. Additionally, the court had to decide on the validity of a notice demanding rent, the reasonableness of the time allowed to remedy the breach, and whether the plaintiff was entitled to relief against forfeiture.

The court concluded that there was no written or oral joint venture agreement between the parties. The conduct of the parties did not give rise to estoppel or fiduciary duties. The court found that the notice demanding rent was valid, and the time allowed to remedy the breach was reasonable. The court granted relief against forfeiture to the plaintiff, as the plaintiff had paid all arrears of rent and continued to pay rent, despite the defendants' contentions about the plaintiff's delay in paying the arrears, unlawful use of the premises, and wilful defaults.

The court dismissed the plaintiffs' second further amended originating application and their claims for damages, declarations regarding the invalidity of the notice and termination of the lease, and relief against forfeiture. The court declared that the registered lease was lawfully terminated and ordered Kids Academy to be granted relief against forfeiture. The court directed the parties to further discuss the terms of the grant of relief against forfeiture and to be heard as to costs.

Orders

Orders of the court

1. The plaintiffs’ second further amended originating application is dismissed.

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

3. The plaintiffs’ claim in para 85(m) of the fourth further amended statement of claim for a declaration that the notice served by the second defendant as lessor and Kids Academy as lessee in purporting to terminate the lease registered at the Queensland Department of Natural Resources with dealing number 717067584 is invalid is dismissed.

4. The plaintiffs’ claim in para 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 Court declares that registered lease number 717067584 was lawfully terminated by KA Estates by the filing of its defence and counterclaim on 11 September 2018.

6. Kids Academy be granted relief against forfeiture as claimed in para 84D of the fourth further amended statement of claim.

7. I will hear the parties further as to the terms of the grant of relief against forfeiture.

8. I will hear the parties as to costs.

Background

Background to the litigation

The defendants deny that Mr Hookey and Mr Whitelaw made the joint venture agreement because no such agreement was made.[7][7]Fourth Further Amended Defence, para 6(a).(a) Mr Hookey and Mr Whitelaw’s background and friendship As at January 2013, Mr Hookey had been involved in the development and operation of childcare centres for approximately 20 years. He owned nine childcare centres in New South Wales and one in Queensland. He owned six parcels of land on which seven of the Kids Academy Centres were located. He did not own the land on which the Kids Academy Childcare Centres at Hornsby, Spring Hill and Wadalba were situated.[8][8]Exhibit 1, affidavit of Scott Gregory Hookey sworn 1 August 2019, para 5 (“First Hookey affidavit”). As at April 2014, Mr Hookey considered Mr Whitelaw to be a close friend.[9] Mr Hookey had heard Mr Whitelaw refer to themselves as “best friends”. Mr Hookey agreed with this description.[10] They both lived in houses at Sanctuary Cove and were both members of the Sanctuary Cove Golf and Country Club. They would ordinarily meet at the club five or six times per week and would have morning coffee about four times each week. They were regular golf partners.[11][9]First Hookey affidavit, para 62.[10]T 1-39, lines 10-12.[11]First Hookey affidavit, paras 63-64. Mr Whitelaw was born in Australia. After leaving school, he undertook a number of jobs which included managing shops, selling insurance and tennis coaching. He moved to London in 1987 and traded cars for approximately three years. In 1990, he started a property venture in central London which proved successful and profitable. He undertook a number of developments over a 17-year period and still has interests in the property market in central London. He returned to Australia in 2007 and as at 2014 was semi-retired.[12][12]Exhibit 1, affidavit of John Whitelaw sworn 11 September 2019, paras 7-10 (“Whitelaw affidavit”). Mr Whitelaw first met Mr Hookey at Sanctuary Cove in or about 2008 or 2009. He spent a lot of time socially with Mr Hookey and also playing golf with him. He describes their relationship as “good friends”.[13] Mr Hookey had informed Mr Whitelaw that he owned and operated several childcare centres in New South Wales.[14][13]Whitelaw affidavit, para 16.[14]Whitelaw affidavit, para 17.(b) Mr Hookey’s original contract to purchase the Hope Island land On or about 2 April 2013, Mr Hookey entered into a contract for the purchase of land at Hope Island. On 8 July 2013, he obtained an approval from the Gold Coast City Council to construct a childcare centre on the land. On or about 17 July 2013, he caused Kids Academy to be incorporated. On 20 August 2013, Mr Hookey and Kids Academy caused the Kids Academy Hope Island Unit Trust (“KAHI Unit Trust”) to be established with the intent that this unit trust would own and operate the childcare business to be established on the land. On or about 8 October 2013, Mr Hookey and the vendor under the original purchase contract entered into a deed by which, inter alia, completion of the original purchase contract was made conditional upon Mr Hookey obtaining finance by 31 March 2014, and the date for completion was varied to the twenty-first day after the date on which the finance condition was satisfied.

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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