Lightbrim Pty Ltd v Speed Rise Pty Ltd - [2003] QSC 334

[2003] QSC 334

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
MULLINS J
No BS7266 of 2003
LIGHTBRIM PTY LTD Plaintiff
ACN 093 289 224
and
SPEED RISE PTY LTD Defendant
ACN 097 050 354
BRISBANE
..DATE 29/09/2003
JUDGMENT

29092003 cml (Mullins J)

HER HONOUR: By lease dated 11 February 2002 the plaintiff 1
as lessor leased the whole of the building on the land

situated at 18 Fox Street, Wynnum to the defendant as lessee for a term of four years, commencing on 1 June 2001, with an option for a further term of four years.

10

The defendant operates a fish and chip shop and fishmongery from the premises. Prior to the commencement of the lease the plaintiff had been operating such a business from the premises.

20
Ms Wong, a director of the defendant, asserted that in June
2001 the defendant purchased the goodwill of the business
from the plaintiff for the price of $40,000. Miss Hardy, 30
the employee of the plaintiff, who swore an affidavit on
behalf of the defendant, asserted that the payment of
$40,000 was "an upfront goodwill payment" for the grant of
the lease. 40

Whatever the exact characterisation of the payment the defendant paid a capital sum of $40,000 in connection with commencement of the business from the premises.
50
Clause 3.1 of the lease relevantly provides:
"The tenant will pay to the landlord (including by

JUDGMENT

2 60

29092003 cml (Mullins J)

way of periodic bank transfer if the landlord so 1
requires) in each lease year the rent without any
formal or other demand by equal monthly instalments
in advance on the dates specified in item 4 C of the
reference data."

Item 4 C provides for the rent due date to be the first day
of every month. Other relevant clauses of the lease are
clauses 13.1 (1), 13.1 (4) and 15.1 which respectively

provide: 20
"13.1 Default by Tenant
(1) Events of Default Right to Re-Enter

If: 30

(a) The Rent or any part of it is unpaid for
seven (7) days after it has become due whether
any formal or legal demand is made for it or
not; or

...

THEN subject to the Landlord giving notice under
s.124 of the Property Law Act 1974 the Landlord or
any person duly authorised by the Landlord may at

any time on one (1) days written notice or without 50
notice re-enter the whole or part of the Premises in
the name of the whole and determine this Lease but
without prejudice to the right of action or other

JUDGMENT

3 60

29092003 cml (Mullins J)

remedy of the Landlord in respect of any antecedent 1
breach of the Tenant's covenants stipulations or
agreements contained or implied in this Lease.

13.1 (4) Reservation of Rights 10
The rights and powers conferred on the Landlord by
this clause 13.1 are in addition to any other right
or power which may be conferred upon the Landlord at
law or in…

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.

Keep reading for free

Create a free CaseChat account to read Lightbrim Pty Ltd v Speed Rise Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] QSC 334
Decision Date: 29/09/2003

CaseChat Overview and Summary

Lightbrim Pty Ltd, the plaintiff, sued Speed Rise Pty Ltd, the defendant, seeking possession of a commercial property at 18 Fox Street, Wynnum, Queensland, due to alleged breaches of the lease by the defendant. The lease, dated 11 February 2002, stipulated the defendant would pay rent on the first day of every month, with a clause allowing the plaintiff to re-enter and terminate the lease if the rent was unpaid for seven days after it became due. The plaintiff alleged the defendant failed to pay the July 2003 rent installment within the required timeframe, leading to the issuance of a Notice to Quit. The defendant contended the Notice to Remedy, which required the defendant to remedy the breach by paying the rent within 14 days, was invalid as it was issued prematurely. The defendant sought a declaration that the lease remained valid and enforceable and relief from forfeiture under section 124 of the Property Law Act 1974.

The court examined whether the Notice to Remedy was validly issued under section 124 of the Property Law Act 1974. The court found that the Notice to Remedy was invalid as it was issued before the seven-day period for payment had expired. Additionally, the court considered whether the plaintiff could rely on the common law right to rescind the lease for fundamental breach, bypassing the statutory relief from forfeiture under section 124. The court concluded that the plaintiff could not rely on the common law right to rescind since the Statement of Claim did not plead such a cause of action. The court also highlighted the impracticality of making time of the essence for all tenant obligations under the lease, as it would negate the purpose of providing a tenant with an opportunity to remedy a breach before exercising the right of re-entry. The court declared the Notice to Remedy invalid and refrained from considering relief from forfeiture at that stage.

The court ordered that the costs of the application be borne by the defendant, considering the limited success achieved and the potential for the plaintiff to succeed in the matter.

Orders