Jodaway Pty Ltd v Langton - [2003] QSC 79

SUPREME COURT OF QUEENSLAND

CITATION:

Jodaway Pty Ltd v Langton [2003] QSC 079

PARTIES:

JODAWAY PTY LTD ACN 099 765 036
(applicant)
v
ANNETTE MARIE LANGTON AND NOEL JOHN SEALEY
(first respondents)
and
KRISTIAN RAYMOND SCHLYDER and DEREK ALFRED SCHLYDER
(second respondents)
and
M G LOCKE, REGISTRAR OF TITLES
(third respondent)

FILE NO/S:

S1333 of 2003

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

28 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2003

JUDGE:

Mullins J

ORDER:

1. That the first respondents as personal representatives and the second respondents sign any necessary documents to procure the surrender of Lease No 601290827 on the certificate of title for Lots 6 and 7 on SP 150828 County of Stanley Parish of Tingalpa and thereafter deliver the documents to the office of John M O’Connor & Company, the solicitors for the applicant.

2. It is declared that the applicant as the owner of the Palm Springs Retirement Village is liable pursuant to s 71(1)(c)(ii) of the Retirement Villages Act 1999 to the first respondents as personal representatives and the second respondents for the repayment of the loan in the sum of $76,800 due under clause 3 of Lease No 601290827.

CATCHWORDS:

REAL PROPERTY – GENERAL PRINCIPLES – REGISTRATION – s 62 Land Title Act 1994 (Q) – where registered lease had terminated but right of lessee to enforce an obligation against lessor under lease to repay loan made under the lease had accrued – where lessor sold the land – lessee cannot rely on s 62 Land Title Act 1994 (Q) as obligation to repay the loan not a covenant that ran with the land

RETIREMENT VILLAGES - Retirement Villages Act 1999 – where original proprietor of retirement village land sold to a new owner – where personal representatives of deceased lessees sought declaration that the new owner was liable to repay a loan made under the lease by the lessees to the original proprietor – liability to repay the loan had accrued before the sale to the new owner and before the commencement of the Retirement Villages Act 1999 (Q) – where lease including the provisions relating to the loan was a “residence contract” – Retirement Villages Act 1999 (Q) applies to residence contracts entered into before or after commencement of the Act – representatives of deceased lessees can enforce repayment of loan by new owner pursuant to s 71 (1) Retirement Villages Act 1999 (Q)

Acts Interpretation Act 1954
Land Title Act 1994
Real Property Act 1861
Retirement Villages Act 1988
Retirement Villages Act 1999

Measures v McFadyen (1910) 11 CLR 723

COUNSEL:

K S Howe for the applicant
M J Byrne for the first and second respondents

SOLICITORS:

John M O’Connor & Company for the applicant
Hatzis Lawyers for the first and second respondents

MULLINS J: Jodaway Pty Ltd (“the applicant”) is the registered proprietor of the real property on which a retirement village is situated known as the Palm Springs Retirement Village (“the village”).…

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 Jodaway Pty Ltd v Langton

Details

AGLC: Jodaway Pty Ltd v Langton [2003] QSC 79
Case: [2003] QSC 79
Decision Date: 28 March 2003

CaseChat Overview and Summary

In Jodaway Pty Ltd v Langton, the primary dispute involved the enforcement of a loan repayment obligation following the termination of a lease and subsequent sale of the leased property. The case was heard in the Queensland Supreme Court. The plaintiff, Jodaway Pty Ltd, sought to enforce a repayment obligation under a terminated lease, while the defendants, Langton, who were the new owners of the property, contested this claim.

The legal issues before the court were whether the obligation to repay a loan under the lease was a covenant that ran with the land, and if so, whether it could be enforced against the new owner of the property under s 62 of the Land Title Act 1994 (Q). Additionally, the court had to determine if the obligation was enforceable under the Retirement Villages Act 1999 (Q) since the lease was a "residence contract". The court found that the obligation to repay the loan did not constitute a covenant running with the land, thus it could not be enforced under s 62 of the Land Title Act. However, the court ruled that the obligation was enforceable under the Retirement Villages Act 1999, as the lease was a residence contract and the liability to repay the loan had accrued before the commencement of the Act.

The court's reasoning was based on the distinction between a covenant that runs with the land and an accrued obligation to repay a loan. The court held that since the obligation to repay the loan had accrued before the sale to the new owner, the new owner was liable to repay the loan under s 71(1)(c)(ii) of the Retirement Villages Act 1999. The court declared that the applicant was liable to repay the loan in the sum of $76,800 to the personal representatives of the deceased lessees. The court ordered the personal representatives and the second respondents to sign any necessary documents to procure the surrender of the lease and deliver them to the applicant's solicitors.

Orders

Orders of the court

1. That the first respondents as personal representatives and the second respondents sign any necessary documents to procure the surrender of Lease No 601290827 on the certificate of title for Lots 6 and 7 on SP 150828 County of Stanley Parish of Tingalpa and thereafter deliver the documents to the office of John M O’Connor & Company, the solicitors for the applicant.

2. It is declared that the applicant as the owner of the Palm Springs Retirement Village is liable pursuant to s 71(1)(c)(ii) of the Retirement Villages Act 1999 to the first respondents as personal representatives and the second respondents for the repayment of the loan in the sum of $76,800 due under clause 3 of Lease No 601290827.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jodaway Pty Ltd v Langton [2003] QSC 079
PARTIES:	JODAWAY PTY LTD ACN 099 765 036 (applicant) v ANNETTE MARIE LANGTON AND NOEL JOHN SEALEY (first respondents) and KRISTIAN RAYMOND SCHLYDER and DEREK ALFRED SCHLYDER (second respondents) and M G LOCKE, REGISTRAR OF TITLES (third respondent)
FILE NO/S:	S1333 of 2003
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	28 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2003
JUDGE:	Mullins J
ORDER:	1. That the first respondents as personal representatives and the second respondents sign any necessary documents to procure the surrender of Lease No 601290827 on the certificate of title for Lots 6 and 7 on SP 150828 County of Stanley Parish of Tingalpa and thereafter deliver the documents to the office of John M O’Connor & Company, the solicitors for the applicant. 2. It is declared that the applicant as the owner of the Palm Springs Retirement Village is liable pursuant to s 71(1)(c)(ii) of the Retirement Villages Act 1999 to the first respondents as personal representatives and the second respondents for the repayment of the loan in the sum of $76,800 due under clause 3 of Lease No 601290827.
CATCHWORDS:	REAL PROPERTY – GENERAL PRINCIPLES – REGISTRATION – s 62 Land Title Act 1994 (Q) – where registered lease had terminated but right of lessee to enforce an obligation against lessor under lease to repay loan made under the lease had accrued – where lessor sold the land – lessee cannot rely on s 62 Land Title Act 1994 (Q) as obligation to repay the loan not a covenant that ran with the land RETIREMENT VILLAGES - Retirement Villages Act 1999 – where original proprietor of retirement village land sold to a new owner – where personal representatives of deceased lessees sought declaration that the new owner was liable to repay a loan made under the lease by the lessees to the original proprietor – liability to repay the loan had accrued before the sale to the new owner and before the commencement of the Retirement Villages Act 1999 (Q) – where lease including the provisions relating to the loan was a “residence contract” – Retirement Villages Act 1999 (Q) applies to residence contracts entered into before or after commencement of the Act – representatives of deceased lessees can enforce repayment of loan by new owner pursuant to s 71 (1) Retirement Villages Act 1999 (Q) Acts Interpretation Act 1954 Land Title Act 1994 Real Property Act 1861 Retirement Villages Act 1988 Retirement Villages Act 1999 Measures v McFadyen (1910) 11 CLR 723
COUNSEL:	K S Howe for the applicant M J Byrne for the first and second respondents
SOLICITORS:	John M O’Connor & Company for the applicant Hatzis Lawyers for the first and second respondents