Keswick Developments Pty Ltd v Keswick Island Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Keswick Developments Pty Ltd & Anor v Keswick Island Pty Ltd & Ors [2011] QCA 379

PARTIES:

KESWICK DEVELOPMENTS PTY LTD
ACN 129 203 363
(first appellant)
QUEENSLAND MARINA DEVELOPMENTS PTY LTD
ACN 101 466 915
(second appellant)
v
KESWICK ISLAND PTY LTD
ACN 009 998 841
(first respondent)
VINCENT HARLEY ALEXANDER
(second respondent)
KESWICK ISLAND HOLDINGS PTY LTD
ACN 101 442 175
(third respondent)
CONNIE BAY DEVELOPMENT PTY LTD
ACN 101 466 791
(fourth respondent)

FILE NO/S:

Appeal No 6431 of 2011
SC No 12924 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2011

JUDGES:

Muir, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – APPLICATION TO LEASES – where there was a sublease of Crown land between the first appellant as sub-lessor and the fourth respondent as sub-lessee – where the sublease was for a term of over 90 years with a nominal rent – where the sublease provided strong protection for the sub-lessee upon default – whether the first appellant was entitled to terminate the sublease for repudiation by the fourth respondent

REAL PROPERTY – CROWN LANDS – QUEENSLAND – GENERALLY – where the respondents submitted that subleases under the Land Act 1994 (Qld) are statutory interests and are not governed by common law doctrines – where the respondents argued on appeal that a clause in the sublease excluded the application of the common law doctrine of repudiation – where the arguments were not raised or were raised and abandoned at first instance – whether the respondents should be permitted to rely on arguments not relied on at first instance – whether the common law doctrine of repudiation is applicable to subleases of Crown land under the Land Act 1994 (Qld)

Land Act 1962-1981 (Qld) (repealed)
Land Act 1994 (Qld), s 238, s 239, s 301, s 302, s 323, s 327, s 328, s 330, s 332, s 335, s 336, s 338, s 339, s 339A
Property Law Act 1974 (Qld), s 115, s 124

American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; [1981] HCA 65, applied
Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319; [2005] VSCA 139, cited
Batiste v Lenin (2002) 11 BPR 20,403; [2002] NSWCA 316, cited
Blacksheep Productions Pty Ltd v Waks (2008) 3 BFRA 148; [2008] NSWSC 488, cited
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, considered
Dainford Ltd v Smith (1985) 155 CLR 342; [1985] HCA 23, considered
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

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Details
Case
[2011] QCA 379
Decision Date

CaseChat Overview and Summary

The case involved Keswick Developments Pty Ltd (the appellant) and Keswick Island Pty Ltd (the respondent). The dispute centred on a sublease agreement for Crown land in Queensland, where the appellant was the sub-lessor and the respondent the sub-lessee. The appellant sought to terminate the sublease, alleging repudiation by the respondent. The respondent argued against termination, contending that the sublease was a statutory interest under the Land Act 1994 (Qld) and not subject to common law principles, including the doctrine of repudiation. The court was required to determine whether the appellant was entitled to terminate the sublease based on the respondent's alleged repudiation, and if the common law doctrine of repudiation applied to subleases of Crown land under the Land Act.

The court addressed several legal issues, including whether the appellant was justified in terminating the sublease due to the respondent's repudiation, and whether the common law doctrine of repudiation could be applied to the sublease in question. The court also considered whether the respondent could rely on arguments that were not raised at first instance, specifically the argument that a clause in the sublease excluded the application of the common law doctrine of repudiation. The court needed to decide if the sublease was a statutory interest governed by the provisions of the Land Act, or if it was also subject to common law principles.

The court found that the respondent was not entitled to rely on arguments that were not raised or abandoned at first instance. The court held that the doctrine of repudiation was applicable to subleases of Crown land under the Land Act. The court determined that the appellant was justified in terminating the sublease due to the respondent's repudiation, and dismissed the appeal with costs.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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