King v MEPC Australia Ltd

[1999] QCA 130

[1999] QCA 130

COURT OF APPEAL

McMURDO P
PINCUS JA
McPHERSON JA

Appeal No 11372 of 1998

MICHAEL KING  Appellant

v

MEPC AUSTRALIA LIMITED  Respondent

BRISBANE

DATE 15/04/99

JUDGMENT

THE PRESIDENT: The appellant applied for leave to appeal from a decision of a District Court Judge in Southport striking out paragraphs 3 to 8 inclusive of his plaint. Leave was granted under section 118(3) of the District Court Act 1967 on 22 February 1999.

The respondent now concedes that the appeal should be allowed and the parties have agreed as to the appropriate orders including the orders as to costs here and below.  The Judge below, contrary to the respondent's concession that the pleaded case in paragraphs 3 to 8 inclusive of the plaint was arguable, struck out paragraphs 3 to 8 inclusive of the plaint.

Those paragraphs largely deal with a claim that non-compliance with section 37 of the Retail Shop Leases Act 1994 renders the lease void and unenforceable. Consistent with the reasons of this Court on the application for leave to appeal, it seems that based on that concession and on the arguments advanced at the application for leave to appeal there is a reasonably arguable basis that the claim based on section 37 (2) (a) of the Retail Shop Leases Act 1994 was wrongly struck out by the learned District Court Judge.

It therefore seems appropriate to make the consent orders sought in this case.

The orders are: the appeal is allowed and the order of His Honour Judge Hall in the Southport District Court striking out paragraphs 3, 4, 5, 6, 7, 7A and 8 of the plaint is set aside.

The costs of and incidental to the defendant/respondent's summons in the Southport District Court dated 6 November 1998 be costs in the cause in the District Court action and there be no order as to costs of and incidental to the application for leave to appeal and the appeal.