King v MEPC Australia Ltd

[1999] QCA 28

COURT OF APPEAL	[1999] QCA 028
DAVIES JA McPHERSON JA WILSON J
Appeal No 11372 of 1998
MICHAEL KING	Applicant
and
MEPC AUSTRALIA LIMITED	Respondent
BRISBANE
..DATE 22/02/99 220299 T7/RAG23 M/T COA25/99

DAVIES JA: This is an application for leave to appeal from an order by a District Court Judge striking out paragraphs 3 to 8 of an amended claim. Those paragraphs constitute the substance of the claim of the applicant against the respondent. Without them one of two causes of action in the plaint cannot proceed.

The claim was for return of moneys paid by the applicant lessee to the respondent lessor on the basis of moneys had and received to the applicant's account. The moneys were, according to the plaint, paid by the applicant to the respondent pursuant to a representation by the latter that they were due and owing under a retail shop lease between the parties made in April 1997.

There were two bases alleged for the claim. The first was that the moneys paid were outgoings within the meaning of section 37 of the Retail Shop Leases Act 1994, that the lease did not specify the matters referred to in section 37(2)(a), and that because the lease was thereby inconsistent with section 37(2)(a) in that respect it was void to the extent of that inconsistency - see section 20 - and that the moneys paid were therefore recoverable.

As to that basis of the claim the respondent conceded below that it was arguable. Compare Re C R J Pty Ltd [1996] 2 QdR 147. However, the respondent contended that the applicant should have pleaded section 20 of the Act. It is now asserted by the respondent that in two respects the applicant should

re-plead his case. First it was submitted that he should identify the provisions in the lease which are alleged to be inconsistent with section 37(2)(a), and secondly it is said that he should properly plead the claim based on mistake.

Neither of these points, as I have mentioned, was raised below. There section 20 was the only matter asserted by the respondent as a matter to be re-pleaded, and as I have also mentioned a concession was made that there was a cause of action based on section 37(2)(a). Accordingly it

seems to me that, based on the concession and on the arguments advanced, there is a reasonably
arguable basis that the claim based on section 37(2)(a) was wrongly struck out by the learned
District Court Judge, and because the claim for return of the money is a substantial one, and as I
have mentioned, one of the two major causes in the action pleaded in the plaint, I think it is
appropriate to grant leave to appeal in respect of that.

The other basis for the claim was subsections (2)(b) and (c) of the Act. It was submitted that the respondent did not give to the lessee an annual estimate in the approved form of its outgoings in accordance with paragraph (b), and did not give him an audited annual statement in the approved form and in accordance with paragraph (c). It was submitted in effect that each of these duties was taken to be included in the lease pursuant to section 18, that it was a condition of payment, and that consequently on that basis also the money was recoverable.

This is a more contentious argument and there is certainly some substance in matters raised by Mr
Keane QC before us today for the respondent, but in my view it is a matter on which as well leave
to appeal should be granted. I cannot be satisfied that it is so unarguable that leave should be
refused. It is not appropriate in an application of this kind to enter into the substance of the
argument on this question.
220299 T7/RAG23 M/T COA25/99

This Court invited the parties to agree that the application for leave should be treated as the hearing of the appeal. Mr Couper QC for the applicant agreed to that course, but Mr Keane QC for the respondent declined our invitation. Accordingly the only orders which I would propose would be to grant the application for leave to appeal and to order that the costs of today be costs in the appeal.

McPHERSON JA: I agree.

WILSON J: I agree.

DAVIES JA: Unless someone wants to argue about the costs, those are the orders.

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