Tradiga Pty Ltd v Smada Projects Pty Ltd - [2019] QDC 184

DISTRICT COURT OF QUEENSLAND

CITATION:	Tradiga Pty Ltd v Smada Projects Pty Ltd [2019] QDC 184
PARTIES:	TRADIGA PTY LTD ACN 140 608 019 (plaintiff/respondent) v SMADA PROJECTS PTY LTD ACN 117 455 795 AS TRUSTEE UNDER INSTRUMENT 712033623 (defendant/applicant)
FILE NO/S:	87/18
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Cairns
DELIVERED ON:	24 September 2019 ex tempore
DELIVERED AT:	Cairns
HEARING DATE:	23 September 2019
JUDGE:	Fantin DCJ
ORDER:	1. Application dismissed. 2. Unless either party applies for, or the parties otherwise agree on, a different costs order, within 14 days of this judgment, the costs of the application are reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT – application for summary judgment on part of claim under r 293 Uniform Civil Procedure Rules 1999 (Qld) or, alternatively, a preliminary hearing – where part of the claim in question is the plaintiff’s action for damages for breach of contract – where the plaintiff claims the defendant breached obligations owed to the plaintiff by unreasonably withholding consent from the plaintiff to assign its lease to two separate purchasers – where the defendant seeks summary dismissal of the part of the plaintiff’s claim for damages for breach of contract – whether the plaintiff has no real prospect of success on that part of the action – whether there are no triable issues on that part of the claim Legislation Property Law Act 1974 (Qld) s 121 Uniform Civil Procedure Rules 1999 (Qld) r 292, r 293, r 483 Cases Ideal Film Renting Company Ltd v Neilsen [1921] 1 Ch 575 Ligon Sixty-Three Pty Ltd v ClarkeKann & Ors [2015] QSC 153 Outback Energy Hunter Pty Ltd v New Standard Energy PEL 570 Pty Ltd [2018] SASC 8 Scarcella v Linknarf Management Services Pty Ltd(in liq) [2004] NSWSC 360 Spencer v Cth (2010) 241 CLR 118 Treloar v Bigge (1874) LR 9 Exch 151 Yared v Spier [1979] 2 NSWLR 291
COUNSEL:	M Jonsson QC for the applicant B Hall for the respondent
SOLICITORS:	Preston Law for the applicant WGC Lawyers for the respondent

HER HONOUR: These proceedings concern a lease and the persistent refusal or failure of a landlord to consent to the assignment of the lease by the tenant. The lease is of shop premises in a suburban shopping centre near Cairns. They were let to the plaintiff for the purpose of conducting a convenience store business.

The provisions of the lease relating to assignment and subletting included a clause, clause 11.1, which had a heading “The tenant may assign the lease or sub-let the leased premises”. It then stated “The tenant may assign the lease or sub-let or part with possession of the whole or part of the leased premises but only after obtaining the landlord’s written consent. The landlord’s consent will not be unreasonably refused”.

That provision appeared under the heading “Section 11 Assignment Subletting and Mortgaging”. It was followed by a…

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: [2019] QDC 184
Decision Date: 24 September 2019 ex tempore

CaseChat Overview and Summary

In the matter of Tradiga Pty Ltd v Smada Projects Pty Ltd, the plaintiff, Tradiga, sought damages from the defendant, Smada, for breach of contract. The case was heard in the Queensland Civil and Administrative Tribunal, where the defendant applied for summary judgment under Rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) on part of the plaintiff’s claim, or alternatively, for a preliminary hearing. The plaintiff claimed that the defendant unreasonably withheld consent for Tradiga to assign its lease to two separate purchasers. The defendant argued that the plaintiff had no real prospect of success on the part of the claim for damages for breach of contract and that there were no triable issues on that part of the claim.

The court was required to decide whether the plaintiff had a real prospect of success on the part of the claim for damages for breach of contract and whether there were any triable issues on that part of the claim. The court considered the evidence provided by both parties and found that there were triable issues on the part of the claim for damages for breach of contract. The court held that it was not appropriate to grant summary judgment to the defendant on that part of the claim. The court also noted that a preliminary hearing would not be appropriate in this case as the issues raised were not complex and could be resolved at trial.

The court dismissed the defendant’s application for summary judgment on the part of the claim for damages for breach of contract. The court found that there were triable issues on that part of the claim and that it was not appropriate to grant summary judgment to the defendant. The court noted that a preliminary hearing would not be appropriate in this case as the issues raised were not complex and could be resolved at trial. The court reserved the costs of the application unless either party applied for, or the parties otherwise agreed on, a different costs order within 14 days of the judgment.

Orders

Orders of the court

1. Application dismissed.

2. Unless either party applies for, or the parties otherwise agree on, a different costs order, within 14 days of this judgment, the costs of the application are reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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