Mooloolaba Slipways Pty Ltd v Cashlaw Pty Ltd - [2011] QSC 236

SUPREME COURT OF QUEENSLAND

CITATION:

Mooloolaba Slipways Pty Ltd & anor v Cashlaw Pty Ltd & ors [2011] QSC 236

PARTIES:

MOOLOOLABA SLIPWAYS PTY LTD AS TRUSTEE FOR THE SLIPWAYS TRUST
ACN 180 975 916
(first plaintiff)
MOOLOOLABA ENGINEERING SERVICES PTY LTD AS TRUSTEE FOR THE ENGINEERING TRUST
ACN 121 643 598
(second plaintiff)
v
CASHLAW PTY LTD
ACN 101 574 008
(first defendant)
LESLIE BROWN
(second defendant)
ANTHONY GUY BROWN
(third defendant)
LESLIE ROY APPS

(first defendant by counterclaim)

FILE NO:

SC No 9311 of 2009

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 August 2011

DELIVERED AT:

Brisbane

HEARING DATES:

16 , 17, 18, 19, 20, 23, 24, 25 and 26 May 2011

JUDGE:

Atkinson J

ORDERS:

1.   The orders will be:

a)   The defendants pay the first plaintiff the sum of $704,656 less rent and outgoings owing to the first defendant by the first plaintiff, together with interest at 5 per cent per annum on the net amount of $637,406 less outstanding rent and outgoings.

b)     The defendants pay the second plaintiff the sum of $1,081,264.

2.   I shall hear submissions as to the calculation of the amount to be awarded under paragraph 1 (a) and as to costs.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – STATEMENTS AS TO FUTURE MATTERS AND PROMISES – where the first plaintiff entered into a sublease with the first defendant for slipway premises located on the Mooloolah River – where the defendants made representations that they would repair and make various improvements to the slipway premises – where in reliance on those representations the plaintiffs were induced to enter into the lease, occupy the premises and commence business – whether the representations were in fact made

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON-DISCLOSURE – GENERALLY – where, in reliance on the defendants’ misrepresentations, the plaintiffs incurred expenditure in performing capital works to the site and sustained losses in operating the slipway and engineering business – where the defendants alleged the plaintiffs’ loss and damage should be assessed on a much narrower basis – whether the plaintiffs were entitled to damages – on what basis the damages should be calculated

DAMAGES – GENERAL PRINCIPLES – MITIGATION OF DAMAGES – PLAINTIFF’S DUTY TO MITIGATE – where the defendants failed to carry out the works the subject of the representations – where the plaintiffs endeavoured to come to some kind of commercial arrangement – where the plaintiffs sought a developer interested in buying the site – where the plaintiffs proposed the development of a boat stacker on the site – whether the plaintiffs are entitled to recover their losses in pursuing their attempts to mitigate their loss

LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSENT OF THIRD…

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 Mooloolaba Slipways Pty Ltd v Cashlaw 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: [2011] QSC 236
Decision Date: 12 August 2011

CaseChat Overview and Summary

Mooloolaba Slipways Pty Ltd and another sued Cashlaw Pty Ltd and another over alleged misrepresentations made in relation to subleases for premises on the Mooloolah River. The plaintiffs alleged that the defendants made representations that they would repair and make various improvements to the slipway premises. In reliance on those representations, the plaintiffs were induced to enter into the lease, occupy the premises and commence business. The plaintiffs claimed damages for the losses they incurred as a result of the alleged misrepresentations. The defendants argued that the plaintiffs' losses should be assessed on a much narrower basis and denied liability for the losses claimed. The defendants also argued that the plaintiffs were not entitled to recover their losses in pursuing their attempts to mitigate their loss.

The court held that the defendants were liable for the losses claimed by the plaintiffs. The court found that the representations were made with the intention that they be acted upon and were in fact acted upon by the plaintiffs. The court held that the plaintiffs were entitled to recover their losses in pursuing their attempts to mitigate their loss. The court also held that the sublease was valid as the plaintiffs' consent was not required for amendments to the sublease. Finally, the court held that the defendants' application for leave to amend the defence was untimely and should not be granted.

The orders of the court were that the defendants pay the plaintiffs the sum of $704,656 and $1,081,264 respectively, together with interest. The court will hear submissions as to the calculation of the amount to be awarded and as to costs.

Orders

Orders of the court

1. The orders will be:

a) The defendants pay the first plaintiff the sum of $704,656 less rent and outgoings owing to the first defendant by the first plaintiff, together with interest at 5 per cent per annum on the net amount of $637,406 less outstanding rent and outgoings.

b) The defendants pay the second plaintiff the sum of $1,081,264.

2. I shall hear submissions as to the calculation of the amount to be awarded under paragraph 1 (a) and as to costs.

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:	Mooloolaba Slipways Pty Ltd & anor v Cashlaw Pty Ltd & ors [2011] QSC 236
PARTIES:	MOOLOOLABA SLIPWAYS PTY LTD AS TRUSTEE FOR THE SLIPWAYS TRUST ACN 180 975 916 (first plaintiff) MOOLOOLABA ENGINEERING SERVICES PTY LTD AS TRUSTEE FOR THE ENGINEERING TRUST ACN 121 643 598 (second plaintiff) v CASHLAW PTY LTD ACN 101 574 008 (first defendant) LESLIE BROWN (second defendant) ANTHONY GUY BROWN (third defendant) LESLIE ROY APPS (first defendant by counterclaim)
FILE NO:	SC No 9311 of 2009
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	12 August 2011
DELIVERED AT:	Brisbane
HEARING DATES:	16 , 17, 18, 19, 20, 23, 24, 25 and 26 May 2011
JUDGE:	Atkinson J
ORDERS:	1. The orders will be: a) The defendants pay the first plaintiff the sum of $704,656 less rent and outgoings owing to the first defendant by the first plaintiff, together with interest at 5 per cent per annum on the net amount of $637,406 less outstanding rent and outgoings. b) The defendants pay the second plaintiff the sum of $1,081,264. 2. I shall hear submissions as to the calculation of the amount to be awarded under paragraph 1 (a) and as to costs.
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – STATEMENTS AS TO FUTURE MATTERS AND PROMISES – where the first plaintiff entered into a sublease with the first defendant for slipway premises located on the Mooloolah River – where the defendants made representations that they would repair and make various improvements to the slipway premises – where in reliance on those representations the plaintiffs were induced to enter into the lease, occupy the premises and commence business – whether the representations were in fact made TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON-DISCLOSURE – GENERALLY – where, in reliance on the defendants’ misrepresentations, the plaintiffs incurred expenditure in performing capital works to the site and sustained losses in operating the slipway and engineering business – where the defendants alleged the plaintiffs’ loss and damage should be assessed on a much narrower basis – whether the plaintiffs were entitled to damages – on what basis the damages should be calculated DAMAGES – GENERAL PRINCIPLES – MITIGATION OF DAMAGES – PLAINTIFF’S DUTY TO MITIGATE – where the defendants failed to carry out the works the subject of the representations – where the plaintiffs endeavoured to come to some kind of commercial arrangement – where the plaintiffs sought a developer interested in buying the site – where the plaintiffs proposed the development of a boat stacker on the site – whether the plaintiffs are entitled to recover their losses in pursuing their attempts to mitigate their loss LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSENT OF THIRD…