Hsu v Graham Retailers Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:	Hsu & Anor v Graham Retailers Pty Ltd & Ors [2004] QDC 230
PARTIES:	STEVE FU-LAI HSU and JOYCE HSUEH-HUA CHIU

Plaintiffs

v

GRAHAM RETAILERS PTY LTD (ACN 009 696 379)

First Defendant

DAVID FREDERICK GRAHAM

Second Defendant

PETER ALLAN GRAHAM

Third Defendant

FILE NO/S:	D5723/2001
DIVISION:
PROCEEDING:	Trial
ORIGINATING  COURT:	District Court, Brisbane
DELIVERED ON:	10 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23, 24 September 2003
JUDGE:	McGill DCJ
ORDER:	The defendants to pay the plaintiffs $89,613.10, together with costs of the action, to be assessed, except to the extent those costs have already been dealt with.
CATCHWORDS:	LANDLORD AND TENANT – Termination of Lease – whether lease repudiated by lessor or lessee – lessee vacating premises and lessor then changing locks and offering to re-let premises – not re-entry or repudiation.
Property Law Act 1974 s 124.
Progressive Mailing House v Tabali Pty Ltd (1985) 157 CLR 17 – applied.
Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 1 NSWLR 105 – applied.
COUNSEL:	P A Kronberg for the plaintiffs J W Peden for the defendants
SOLICITORS:	Marie Vidas for the plaintiffs Hopgood Ganim Lawyers for the defendants

1. This is an action for damages for breach of covenant in a lease. The plaintiffs who were the lessors claim that the first defendant lessee[1] repudiated the lease, which repudiation was accepted by the plaintiffs’ entering into possession and terminating the lease on 22 February 2001. In the alternative, the plaintiffs say that the lease was validly terminated by them subsequently in November 2001 by notice in writing, because of a failure of the first defendant to remedy breaches of covenant. The latter is the principal allegation of the plaintiffs, although the lease could only have been validly terminated then if it had not been previously terminated. If the principal case is made out, the plaintiffs also claim further rent payable under the lease before it was terminated. The second and third defendants are guarantors of the first defendant in respect of its obligations under the lease. The defendants say that the lease was repudiated by the plaintiffs in February 2001, in response to which the first defendant terminated the lease in March 2001. If that is correct, the plaintiffs are not entitled to any further relief in this action.

   [1]            The name of the first defendant has subsequently changed to “ACN 009696379 Pty Ltd”. On the first day of the trial an order was made to amend the proceeding accordingly.

History of the action

1. I say further relief because there has already been judgment under r 282 in respect of part of the plaintiffs’ claim, namely rent and other moneys payable under the lease up to 14 March 2001.[2] In respect of the balance of the plaintiffs’ claim the matter proceeded to trial. The action was originally commenced on 30 November 2001 and the initial pleadings closed by the end of February 2002; the pleadings have been much amended since. The…