Moore v Devanjul Pty Ltd

[2007] QDC 191

[2007] QDC 191

DISTRICT COURT
CIVIL JURISDICTION

JUDGE RACKEMANN

No 2189 of 2007

ROBYN GAIL MOORE and	Applicants
STANLEY GORDON WILLIAM MOORE
and
DEVANJUL PTY LTD	Respondent
BRISBANE ..DATE 17/08/2007

ORDER
HIS HONOUR: By an originating application, filed on the 2nd

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of August 2007, the applicants sought relief from the Court on
both an interim and final basis. The application insofar as

it related to interim relief was returnable the same day.

The dispute is between a landlord and a tenant. The	10
applicants are the lessees of land from the respondent. The
land leased is part of a larger area. The applicants have conducted the business of a water park on their land. The respondent operates a go kart track on other parts. The
relationship between the parties has obviously not been	20
amicable for some time and there have been previous proceedings, in this Court, in which the now applicants were granted relief against forfeiture in respect of a previous attempt by the respondent to terminate the lease.
30
The subject proceedings relate to a further attempt by the
respondent to terminate the lease and it has taken back possession of the land. The relevant notices under the Property Law Act included a Notice to Remedy Breach of
Covenant dated the 24th of April 2007 which attached a	40
schedule of alleged breaches which are numerous but which, in
the main, relate to matters of the maintenance and repair of
the premises, complying with laws and requirements in relation
to the premises and keeping up insurance. The Notice to
Terminate is dated 25th of May 2007 and the respondent relied	50

upon the service of those notices in order to terminate the
lease and re-enter and take possession.
The applicants dispute the entitlement to terminate. In 2 ORDER 60

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particular, the affidavit material upon which they rely says
that the relevant notices were never received and disputes the

alleged breaches. Further, if the process was properly followed by the respondent, the applicants claim relief against forfeiture.	10
On 2nd of August 2007, his Honour Judge Griffin SC granted interim orders restraining the respondent from removing or disposing of goods and chattels from the property, dealing with the land or improvements, or disposing of the land. Only	20
very short service had been possible in the circumstances. His Honour gave the interim relief only until 4.00 p.m. on the 17th August 2007 and adjourned the matter to today.
His Honour's orders said that the application was adjourned to	30
today for hearing. I take his Honour to mean the application
for interlocutory relief, which is the way it has been
approached by the applicants. The respondent approached the
matter somewhat differently, believing that today was the day
for the determination of the substantive matter.	40
Contrary to the directions which his Honour gave, the
respondent did not file and serve the material upon which it
intended to rely by the 10th of August, but sought and
obtained leave to read and file an affidavit this morning.	50

The affidavit contains a number of objectionable provisions - which I do not need to go into the detail of - and also some scandalous matters. For that reason, I will order that the 3 ORDER 60

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affidavit be sealed in an envelope and that it not be opened
save by order of a Judge. That is to prevent other people

seeing the scandalous allegations upon inspection of the file.

The affidavit material - at least, the admissible parts of it	10
- give evidence of service of Stanley Moore by leaving the
documents at his last known place of abode in conformity with
Section 347(1)(C). That evidence was produced for the first
time today and the applicants have not had the opportunity of
testing it, although it must be said that, in addition to	20
deposing to that, there's also a DVD recording which seems to support that.
What the applicants point to however, is that there is no
evidence of service on the other lessee, Robyn Moore, and the	30
applicants foreshadow an amendment to the originating application to seek also a declaration that the service of the notices was ineffectual for that reason.
Insofar as the substantive matters are concerned, it is not	40
possible for me, in the context of the hearing today, to
properly test the allegations and counter allegations of the various parties; that will require a trial. It is obviously in the interests of all parties that that occur at the
earliest possible time. The material shows that enquiries	50

have been made which suggest that the matter could be heard in
an expedited way before the Court in Bundaberg in October. I
am minded to make orders certifying the matter for a speedy 4 ORDER 60

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trial and setting it down for hearing in that sittings.

That means that the matter will be able to be determined in a
fairly short period of time. The question then becomes

whether the injunctions that were granted by his Honour Judge	10
Griffin should be extended pending trial so as to preserve the
status quo. The matters of importance in determining whether
that should occur is first of all whether the plaintiff has
made out a prima facie case and, secondly, where the balance
of convenience lies.	20
Insofar as a prima facie case is concerned, it is sufficient
that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial (see Australian Broadcasting Corporation	30
v O'Neill (2006) 229 ALR 457).
In this case, at this stage, it is certainly not possible to
reach a conclusion that it is probable that the plaintiff will
succeed at trial but I am nevertheless satisfied that there	40
is, at least, a sufficient likelihood of success to justify the preservation of the status quo for the relatively short period of time between now and when the trial is to occur.
The next matter is the balance of convenience. As matters	50

presently stand, that balance would appear to favour the
extension of the injunction. The applicants offer the usual
undertaking as to damages, in order to protect the respondent.
Insofar as the applicant is concerned, a failure to make these 5 ORDER 60

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orders may result in the land and the title thereto being
dealt with in a way which would prevent the reinstatement of their business even if they were successful. In considering the balance of convenience, I have also had regard to the

relatively short period of time between now and trial.	10
In relation to the balance of convenience, the representative
of the respondent who appeared today was at some disadvantage,
because she had attended today in the belief that this would
be a final determination of the matter. She claims, from the	20
Bar table, that there are respects in which the respondent would be disadvantaged if the injunction were extended until trial but those statements do not all find reflection in affidavit material before the Court.
30
Accordingly, I am satisfied that, as matters stand, the
injunction should be extended, however, it should be made
expressly subject to any further or earlier order of the
Court. In saying that, what I mean to make provision for, is
that if the respondent wishes to bring the matter back before	40
the Court prior to the trial to set aside or to discharge the injunctions, then it may do so, but obviously should do so on affidavit material going to the matter of the balance of
convenience.
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...

6 ORDER 60

HIS HONOUR: Whilst the balance of convenience issues of the

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respondent were not all deposed to in the affidavit material,
counsel for the applicant was prepared to accept some
variation to the terms of the injunction to make it clear that
the respondent will be at liberty to do such things as are

reasonably necessary to prevent access to the water park and	10
also will be permitted to do such things as are reasonably
necessary to gain access to and to render serviceable for use
facilities, such as toilets, which are shared with the go kart
track business, so as to limit the potential for impact upon
the respondent's business pending trial.	20
...
HIS HONOUR: The respondent is at liberty to do such things as
are reasonably necessary to:	30
(a) Access, render serviceable and use, such services and

facilities as are required to be used in connection with

its go kart business; and

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(b) Otherwise restrict access to the water park.

...

HIS HONOUR: I will make an order as per the amended draft and 50

as per this further order as to mediation, which I will annexe
to the draft.
... 7 ORDER 60

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HIS HONOUR: I will add to the draft a paragraph 6(A) and that will read:

"6(A) The affidavit of Vanessa Ruth Berthelsen filed by leave	10
today be placed in a sealed envelope and not opened save by order of a Judge."

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