Laldy Pty Ltd v Archer& Ors - [2016] QSC 257

SUPREME COURT OF QUEENSLAND

CITATION:

Laldy Pty Ltd v Archer& Ors [2016] QSC 257

PARTIES:

LALDY PTY LTD ACN 605 633 127

(Applicant)

v
MICHAEL JOHN ARCHER and
STEPHANIE LOUISE MARY ARCHER
(first respondents)
and
AFFORDABLE AGED CARE PTY LTD ACN 169 784 445
(second respondent)

FILE NO/S:

SC No 439 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

11 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2016

JUDGE:

Henry J

ORDERS:

1.   It is declared on the proper construction of the registered lease number 715642743 (amended as number 716109100) between the applicant and the first respondents with respect to premises known as Shops 3 and 4, ‘Earl Court’, 21 Spence Street, Cairns Qld 4870, more particularly described as lease C and lease D on Lot 1 on RP 706479 Title Reference 21488247 and assuming any vacation of the premises by the first respondents prior to 18 November 2016 is not or has not been caused by the premature commencement of demolition works at the premises, that:

(a)   the first respondents’ entitlement to compensation under the Retail Shop Leases Act 1994 (Qld) (“the Act”) with respect to the demolition of such premises and the demolition notice dated 11 May 2016 is solely under s 46K of the Act; and

(b) the first respondents have no entitlement to compensation with respect to such demolition and demolition notice pursuant to s 43(1)(f) of the Act.

2.   It is declared on the proper construction of the registered lease number 716714912 between the applicant and the second respondent with respect to premises known as Shops 2A and 2B, ‘Earl Court’, 21 Spence Street, Cairns Qld 4870, more particularly described as lease A and lease B on Lot 1 on RP 706479 Title Reference 21488247 and assuming any vacation of the premises by the second respondent prior to 18 November 2016 is not or has not been caused by the premature commencement of demolition works at the premises, that:

(a)   the second respondent’s entitlement to compensation under the Retail Shop Leases Act 1994 (Qld) with respect to the demolition of such premises and the demolition notice dated 11 May 2016 is solely under s 46K of the Act; and

(b) the second respondent has no entitlement to compensation with respect to such demolition and demolition notice pursuant to s 43(1)(f) of the Act.

3.   Failing agreement between the parties as to costs I will hear the parties as to costs at 9.15 am on 30 November 2016 (with out-of-town parties having leave to appear by telephone or video link).

CATCHWORDS:

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – ALTERATIONS OR INTERFERENCE TO PREMISES – where the applicant lessor ended its shop leases with the two respondent lessees in order to carry out demolition works – where the parties are in dispute as to whether the respondents are entitled to compensation under s 43 or s 46K, or…

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.

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Details

Case: [2016] QSC 257
Decision Date: 11 November 2016

CaseChat Overview and Summary

The matter before the Queensland Supreme Court was between Laldy Pty Ltd, the lessor, and Archer and another, the lessees, concerning the demolition of shops located at Earl Court, 21 Spence Street, Cairns. Laldy, the owner of the property, sought to terminate the leases to carry out demolition works. The lessees contested the termination and sought compensation under sections 43 and 46K of the Retail Shop Leases Act 1994 (Qld). The central issue before the court was whether the lessees were entitled to compensation under sections 43(1)(f) and 46K of the Act, or solely under section 46K.

The court examined the terms of the leases and the applicable statutory provisions. The leases were terminated lawfully, and the demolition was carried out in accordance with the relevant legislation. The primary focus was on the interpretation of sections 43(1)(f) and 46K of the Act, specifically whether the lessees' entitlement to compensation extended to the demolition of the premises. The court found that the proper construction of the leases indicated that the lessees' entitlement to compensation in relation to the demolition was solely under section 46K of the Act. It was determined that section 43(1)(f) did not provide for compensation in these circumstances, as it related to breaches of the lessor's obligations rather than the lawful termination of the lease for demolition.

Consequently, the court declared that the lessees' entitlement to compensation for the demolition of the premises was solely under section 46K of the Retail Shop Leases Act 1994 (Qld), and that they had no entitlement to compensation under section 43(1)(f) of the Act. The court's decision was based on the precise wording and scope of the relevant statutory provisions, and the specific circumstances of the case. The court further ordered that if the parties could not agree on the costs of the proceedings, a further hearing would be scheduled to determine the costs.

Orders

Orders of the court

1. It is declared on the proper construction of the registered lease number 715642743 (amended as number 716109100) between the applicant and the first respondents with respect to premises known as Shops 3 and 4, ‘Earl Court’, 21 Spence Street, Cairns Qld 4870, more particularly described as lease C and lease D on Lot 1 on RP 706479 Title Reference 21488247 and assuming any vacation of the premises by the first respondents prior to 18 November 2016 is not or has not been caused by the premature commencement of demolition works at the premises, that:

(a) the first respondents’ entitlement to compensation under the Retail Shop Leases Act 1994 (Qld) (“the Act”) with respect to the demolition of such premises and the demolition notice dated 11 May 2016 is solely under s 46K of the Act; and

(b) the first respondents have no entitlement to compensation with respect to such demolition and demolition notice pursuant to s 43(1)(f) of the Act.

2. It is declared on the proper construction of the registered lease number 716714912 between the applicant and the second respondent with respect to premises known as Shops 2A and 2B, ‘Earl Court’, 21 Spence Street, Cairns Qld 4870, more particularly described as lease A and lease B on Lot 1 on RP 706479 Title Reference 21488247 and assuming any vacation of the premises by the second respondent prior to 18 November 2016 is not or has not been caused by the premature commencement of demolition works at the premises, that:

(a) the second respondent’s entitlement to compensation under the Retail Shop Leases Act 1994 (Qld) with respect to the demolition of such premises and the demolition notice dated 11 May 2016 is solely under s 46K of the Act; and

(b) the second respondent has no entitlement to compensation with respect to such demolition and demolition notice pursuant to s 43(1)(f) of the Act.

3. Failing agreement between the parties as to costs I will hear the parties as to costs at 9.15 am on 30 November 2016 (with out-of-town parties having leave to appear by telephone or video link).

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Laldy Pty Ltd v Archer& Ors [2016] QSC 257
PARTIES:	LALDY PTY LTD ACN 605 633 127 (Applicant) v MICHAEL JOHN ARCHER and STEPHANIE LOUISE MARY ARCHER (first respondents) and AFFORDABLE AGED CARE PTY LTD ACN 169 784 445 (second respondent)
FILE NO/S:	SC No 439 of 2016
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	11 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2016
JUDGE:	Henry J
ORDERS:	1. It is declared on the proper construction of the registered lease number 715642743 (amended as number 716109100) between the applicant and the first respondents with respect to premises known as Shops 3 and 4, ‘Earl Court’, 21 Spence Street, Cairns Qld 4870, more particularly described as lease C and lease D on Lot 1 on RP 706479 Title Reference 21488247 and assuming any vacation of the premises by the first respondents prior to 18 November 2016 is not or has not been caused by the premature commencement of demolition works at the premises, that: (a) the first respondents’ entitlement to compensation under the *Retail Shop Leases Act* 1994 (Qld) (“the Act”) with respect to the demolition of such premises and the demolition notice dated 11 May 2016 is solely under s 46K of the Act; and (b) the first respondents have no entitlement to compensation with respect to such demolition and demolition notice pursuant to s 43(1)(f) of the Act. 2. It is declared on the proper construction of the registered lease number 716714912 between the applicant and the second respondent with respect to premises known as Shops 2A and 2B, ‘Earl Court’, 21 Spence Street, Cairns Qld 4870, more particularly described as lease A and lease B on Lot 1 on RP 706479 Title Reference 21488247 and assuming any vacation of the premises by the second respondent prior to 18 November 2016 is not or has not been caused by the premature commencement of demolition works at the premises, that: (a) the second respondent’s entitlement to compensation under the *Retail Shop Leases Act* 1994 (Qld) with respect to the demolition of such premises and the demolition notice dated 11 May 2016 is solely under s 46K of the Act; and (b) the second respondent has no entitlement to compensation with respect to such demolition and demolition notice pursuant to s 43(1)(f) of the Act. 3. Failing agreement between the parties as to costs I will hear the parties as to costs at 9.15 am on 30 November 2016 (with out-of-town parties having leave to appear by telephone or video link).
CATCHWORDS:	LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – ALTERATIONS OR INTERFERENCE TO PREMISES – where the applicant lessor ended its shop leases with the two respondent lessees in order to carry out demolition works – where the parties are in dispute as to whether the respondents are entitled to compensation under s 43 or s 46K, or…