Ligon Sixty-Three Pty Ltd v ClarkeKann - [2015] QSC 153

SUPREME COURT OF QUEENSLAND

CITATION:

Ligon Sixty-Three Pty Ltd v ClarkeKann & Ors [2015] QSC 153

PARTIES:

LIGON SIXTY-THREE PTY LTD
ACN 002 954 065

(plaintiff/applicant)

v
CLARKEKANN

(defendant/first respondent)

BEAZLEY SINGLETON LAWYERS

(second respondent)

HAMILTON ISLAND ENTERPRISES LIMITED

(third respondent)

FILE NO/S:

SC No 7108 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2015; Further submissions heard on the papers 19 March 2015; 25 March 2015

JUDGE:

Philip McMurdo J

ORDER:

1.   The plaintiff’s application to join Beazley Singleton Lawyers as a defendant be refused.

2.   The plaintiff’s application to join Hamilton Island Enterprises Ltd as a defendant be refused.

3.   Paragraphs 35 through 47 and 48 through 60 of the Amended Defence be struck out.

CATCHWORDS:

LANDLORD AND TENANT – COVENANTS – NOT TO ASSIGN OR SUBLET – LESSOR’S CONSENT – NOT TO BE UNREASONABLY WITHHELD ETC – where the plaintiff had acted upon the defendant’s advice to sue the purchaser in a contract to sell its sub-lease, that claim had been dismissed and the plaintiff sought to recover its losses and costs – where the defendant pleaded that the plaintiff’s sub-lessor was a concurrent wrongdoer under the proportionate liability provisions of the Civil Liability Act 2003 (Qld) – where the plaintiff sought to have the sub-lessor joined as a defendant in the proceedings – where the defendant claimed the sub-lessor breached obligations owed to the plaintiff by unreasonably withholding consent from the plaintiff to assign its sub-lease to the purchaser – whether s 121 of the Property Law Act 1974 (Qld) imposes an obligation on the sub-lessor, gives rise to implied contractual obligations or is the basis for imposition of a common law duty of care upon the lessor – a lessee’s covenant not to assign without consent does not give rise to an implied covenant by the lessor not to unreasonably withhold consent or to liability on the part of the lessor – s 121 acts as a proviso on the lessee’s covenant not to assign without consent that consent would not be arbitrarily withheld – where the lessor’s alleged unreasonable refusal of consent to assign the sub-lease would not have prevented the plaintiff from assigning it – where the pleaded bases for the sub-lessor’s liability to the plaintiff were wrong in law, the sub-lessor was not a concurrent wrongdoer and the plaintiff’s application to join the sub-lessor as a defendant was refused

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND ITS PREDECESSORS – PARTIES – OTHER MATTERS – where the plaintiff applied to join two other parties as defendants in the proceeding, prompted by the defendant’s amendments its Defence pleading the other parties were concurrent wrongdoers for the purpose of the proportionate liability provisions of the Civil Liability Act 2003 (Qld) – where the second respondent could not be joined as a defendant in the proceeding as it was immune…

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: [2015] QSC 153
Decision Date: 5 June 2015

CaseChat Overview and Summary

Ligon Sixty-Three Pty Ltd brought an action against ClarkeKann seeking damages for losses and costs incurred in relation to a failed sub-lease assignment. The plaintiff had followed the defendant’s advice to sue the purchaser in a contract to sell its sub-lease, which resulted in a dismissed claim. The defendant argued that the plaintiff’s sub-lessor, Hamilton Island Enterprises Ltd, was a concurrent wrongdoer under the Civil Liability Act 2003 (Qld) and that the plaintiff’s application to join the sub-lessor as a defendant should be dismissed. The plaintiff also sought to join another legal firm, Beazley Singleton Lawyers, as a defendant, alleging that the firm had negligently failed to advise the plaintiff against prosecuting the failed claim. The court had to determine whether the sub-lessor could be considered a concurrent wrongdoer and whether the legal firm, which was immune from suit, could be joined as a defendant under the Civil Liability Act.

The court examined whether section 121 of the Property Law Act 1974 (Qld) imposed an obligation on the sub-lessor or gave rise to implied contractual obligations or a common law duty of care. The court found that a lessee’s covenant not to assign without consent did not imply a covenant by the lessor not to unreasonably withhold consent or impose liability on the lessor. The court held that section 121 acted as a proviso on the lessee’s covenant not to assign without consent, ensuring that consent would not be arbitrarily withheld. The court also held that the sub-lessor’s alleged unreasonable refusal of consent to assign the sub-lease would not have prevented the plaintiff from assigning it, and therefore, the sub-lessor was not a concurrent wrongdoer. The plaintiff’s application to join the sub-lessor as a defendant was dismissed. Furthermore, the court found that a party that was never liable for the loss or damage could not be a concurrent wrongdoer under the Civil Liability Act. The application to join the legal firm as a defendant was also dismissed.

The court dismissed the plaintiff’s applications to join the sub-lessor and the legal firm as defendants in the proceeding. The court struck out certain paragraphs of the defendant’s amended defence. The court held that the sub-lessor was not a concurrent wrongdoer and that the legal firm, being immune from suit, could not be joined as a defendant. The plaintiff was not entitled to join the sub-lessor or the legal firm as defendants in the proceeding. The court's decision clarified the legal obligations of lessors and lessees under the Property Law Act and the application of the Civil Liability Act in relation to concurrent wrongdoers.

Orders

Orders of the court

1. The plaintiff’s application to join Beazley Singleton Lawyers as a defendant be refused.

2. The plaintiff’s application to join Hamilton Island Enterprises Ltd as a defendant be refused.

3. Paragraphs 35 through 47 and 48 through 60 of the Amended Defence be struck out.

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:	Ligon Sixty-Three Pty Ltd v ClarkeKann & Ors [2015] QSC 153
PARTIES:	LIGON SIXTY-THREE PTY LTD ACN 002 954 065 (plaintiff/applicant) v CLARKEKANN (defendant/first respondent) BEAZLEY SINGLETON LAWYERS (second respondent) HAMILTON ISLAND ENTERPRISES LIMITED (third respondent)
FILE NO/S:	SC No 7108 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2015; Further submissions heard on the papers 19 March 2015; 25 March 2015
JUDGE:	Philip McMurdo J
ORDER:	1. The plaintiff’s application to join Beazley Singleton Lawyers as a defendant be refused. 2. The plaintiff’s application to join Hamilton Island Enterprises Ltd as a defendant be refused. 3. Paragraphs 35 through 47 and 48 through 60 of the Amended Defence be struck out.
CATCHWORDS:	LANDLORD AND TENANT – COVENANTS – NOT TO ASSIGN OR SUBLET – LESSOR’S CONSENT – NOT TO BE UNREASONABLY WITHHELD ETC – where the plaintiff had acted upon the defendant’s advice to sue the purchaser in a contract to sell its sub-lease, that claim had been dismissed and the plaintiff sought to recover its losses and costs – where the defendant pleaded that the plaintiff’s sub-lessor was a concurrent wrongdoer under the proportionate liability provisions of the Civil Liability Act 2003 (Qld) – where the plaintiff sought to have the sub-lessor joined as a defendant in the proceedings – where the defendant claimed the sub-lessor breached obligations owed to the plaintiff by unreasonably withholding consent from the plaintiff to assign its sub-lease to the purchaser – whether s 121 of the Property Law Act 1974 (Qld) imposes an obligation on the sub-lessor, gives rise to implied contractual obligations or is the basis for imposition of a common law duty of care upon the lessor – a lessee’s covenant not to assign without consent does not give rise to an implied covenant by the lessor not to unreasonably withhold consent or to liability on the part of the lessor – s 121 acts as a proviso on the lessee’s covenant not to assign without consent that consent would not be arbitrarily withheld – where the lessor’s alleged unreasonable refusal of consent to assign the sub-lease would not have prevented the plaintiff from assigning it – where the pleaded bases for the sub-lessor’s liability to the plaintiff were wrong in law, the sub-lessor was not a concurrent wrongdoer and the plaintiff’s application to join the sub-lessor as a defendant was refused PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND ITS PREDECESSORS – PARTIES – OTHER MATTERS – where the plaintiff applied to join two other parties as defendants in the proceeding, prompted by the defendant’s amendments its Defence pleading the other parties were concurrent wrongdoers for the purpose of the proportionate liability provisions of the Civil Liability Act 2003 (Qld) – where the second respondent could not be joined as a defendant in the proceeding as it was immune…