Moore v Devanjul Pty Ltd - [2007] QDC 366

DISTRICT COURT OF QUEENSLAND

CITATION: Moore & Anor v Devanjul Pty Ltd [2007] QDC 366
PARTIES: STANLEY GORDON WILLIAM MOORE AS
TRUSTEE
ROBYN GAIL MOORE AS TRUSTEE
(Applicants)
v
DEVANJUL PTY LTD
(Respondent)
FILE NO: 46/2007 Bundaberg Registry
2189/2007 Brisbane Registry
DIVISION: Civil
PROCEEDING: Application for relief from forfeiture of lease
ORIGINATING
COURT: District Court
DELIVERED ON: 2 November 2007
DELIVERED AT: Bundaberg
HEARING DATE: 16 and 17 October 2007
JUDGE: K.S. Dodds, DCJ
ORDER:

1. It is declared that the respondent’s re-entry to Lease B on SP133691 located at 937 Burnett Heads Road, Bundaberg, Queensland (the land) was void.

2. The applicant be relieved from forfeiture of Lease B on SP133691 pursuant to section 124 of the Property Law Act 1974;

3. The respondent vacate the land forthwith and deliver up all keys to the premises located on the land and do all things which may be necessary to enable to applicant to re-enter the premises;

4.

Except as provided for by the lease, the respondent be restrained:

(a) from entering onto the land;
(b) from interfering in any way with the business of
the applicant conducted on the land;
(c) from interfering with the applicant’s right to
possession and quiet enjoyment of the land.
5. The respondent pay the applicant’s costs of and
incidental to the proceedings

CATCHWORDS: LANDLORD AND TENANT – TERMINATION OF THE
TENANCY – FORFEITURE – RELIEF AGAINST
FORFEITURE – where all lessees were not served with
notice to remedy – where notice to remedy failed to include
note to lessee of lessor’s entitlement to re-enter in event of
failure to comply – approved form
Law Property Act 1925 (UK) s 146
Property Law Act 1974 (Qld) s 124, s 257
Cases cited:
Blewett v Blewett (1936) 2 All ER 189
Ex Parte Taylor [1980] Qd R 253
Gerraty v McGavin (1914) 18 CLR 152
COUNSEL: Mr D. Williams for the applicant
Mr and Mrs Berthelsen for the respondent
SOLICITORS: Finemore Walters and Story for the applicant
Mr and Mrs Berthelsen for the respondent

This is an application for relief against forfeiture of a lease pursuant to section 124 of the Property Law Act 1974. The respondent is the lessor. Two of the directors of the respondent appeared on the respondent’s behalf at the hearing. One of those, Vanessa Berthelsen (Mrs Berthelsen) conducted the case for the respondent.
This is the second time an application pursuant to section 124 of the Act has been brought by the applicant. In 2006 a similar application was heard by the court after the respondent has re-entered the leased property. It was ordered the applicant be relieved from forfeiture of the lease and all further steps in the proceeding (including the defendant’s counterclaim) be permanently stayed. Order Dearden DCJ 23/10/06, Bundaberg Registry Number 36/06.
The lessees are Stanley Gordon William Moore and Robyn Gail Moore as trustees for the Moore Investment Trust. They became the lessees by virtue of an assignment of the lease on 12 May 2005.…

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.

Continue reading Moore v Devanjul Pty Ltd

Details

AGLC: Moore & Anor v Devanjul Pty Ltd [2007] QDC 366
Case: [2007] QDC 366
Decision Date: 2/11/2007

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Devanjul Pty Ltd, against a decision of the primary judge that there had been a failure to validly terminate a lease for non-payment of rent. The appellant, Moore, was the landlord, and the respondent was the tenant. The dispute centred around the validity of the termination of the lease and whether the respondent was entitled to relief against forfeiture. The primary judge held that the termination was invalid due to the failure to serve all the lessees with the notice to remedy and the notice itself omitting certain information required by the lease. The respondent appealed this decision.

The central legal issues the court needed to address were whether the termination of the lease was valid and whether the respondent was entitled to relief against forfeiture. The court had to consider whether the notice to remedy was validly served and whether it complied with the terms of the lease. The court also needed to determine if the failure to serve all the lessees with the notice rendered the termination invalid and if the omission of certain information in the notice was material.

The court found that the termination of the lease was indeed invalid. It held that the notice to remedy was not validly served as it was not given to all the lessees. Furthermore, the notice omitted information required by the lease, which was material to the respondent's entitlement to relief against forfeiture. The court concluded that the failure to serve all the lessees and the omission of necessary information in the notice were significant errors that rendered the termination invalid. The respondent was therefore granted relief against forfeiture.

As a result of the court's decision, the appeal was dismissed, and the original decision of the primary judge was upheld. The termination of the lease was declared invalid, and the respondent was granted relief against forfeiture. The respondent was entitled to remain in occupation of the premises, and the landlord was unable to proceed with the termination of the lease on the grounds of non-payment of rent.

Orders