Tyrrell v Jesbro Enterprise Pty Ltd - [2017] QSC 55

SUPREME COURT OF QUEENSLAND

CITATION:

Tyrrell & Anor v Jesbro Enterprise Pty Ltd [2017] QSC 55

PARTIES:

MICHAEL JAMES TYRRELL AND JAN-MAREE TYRRELL
(Applicants)

v

JESBRO ENTERPRISE PTY LTD ACN 087 534 030
(Respondent)

FILE NO/S:

S167 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 April 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

7 April 2017. Final submissions received 11 April 2017

JUDGE:

McMeekin J

ORDER:

Application dismissed

CATCHWORDS:

APPLICATION – TERMINATION OF LEASE – BREACH OF LEASE AGREEMENT – FAILURE TO REMEDY BREACH – NOTICE TO REMEDY BREACH – where the Notice served on the respondent failed to contain the “Note” which appears in the approved form – whether despite the non-compliance with the approved form, the Notice remains valid.

Acts Interpretation Act 1954 s 48A

Property Law Act 1974 s 124

Nashvying P/L & Ors v Giacomi [2007] QCA 454, cited

Ex parte Taylor [1980] Qd R 253, cited

Forsyth v Gibbs [2009] 1 Qd R 403, cited

Re Forest Enterprises Ltd v FEA Plantation Ltd (2011) 195 FCR 97; [2011] FCAFC 99, cited

COUNSEL:

TA Arnold for the applicant

Mr McDonald (Director) for the respondent (self-represented)

SOLICITORS:

McCarthy Durie Lawyers for the applicant

Mr McDonald for the respondent (self-represented)

McMEEKIN J: The applicants apply for a declaration that the lease between the parties was validly terminated on 13 February 2017 and for consequential orders. Mr McDonald, who is the sole director of the respondent, appeared in person.

The basis of the applicant’s claim to be entitled to the declaration that they seek is that the respondent has failed to remedy its breach of the lease (identified as a failure to pay rent and council rates) following service of a Notice to Remedy Breach of Covenant (“the Notice”) delivered pursuant to, and purportedly complying with, s 124 of the Property Law Act 1974. Section 124(8) provides that “the notice mentioned in this section shall be in the approved form”.

After argument in the matter Mr Arnold, counsel for the applicants, provided supplementary submissions in which he brought to my attention that the Notice served on the respondent failed to contain the “Note” which appears in the approved form:

"[NOTE: The lessor will be entitled to re enter or forfeit the lease in the event of the lessee failing to comply with this notice within a reasonable time – see s 124 of Property Law Act 1974]"

It has long been accepted that a failure to include the note was fatal to the validity of a notice given under s 124: Nashvying P/L & Ors v Giacomi [2007] QCA 454 at [62]-[63] per Muir JA, McMurdo P and Dutney J agreeing; Ex parte Taylor [1980] Qd R 253.

In those supplementary submission the applicants argue that despite that non-compliance the Notice remains a valid one. It is contended that the Notice contained the essential information conveyed by the note and that substantial compliance was sufficient. It was…

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: [2017] QSC 55
Decision Date: 12 April 2017

CaseChat Overview and Summary

In the case of Tyrrell v Jesbro Enterprise Pty Ltd, the lessor sought to terminate a lease agreement with the lessee on the basis of the lessee's failure to remedy breaches of the lease. The dispute was heard in the Supreme Court of Queensland, where the primary issue was whether the Notice served on the respondent, Jesbro Enterprise, was valid despite the omission of a specific note from the approved form.

The court was required to determine whether the failure to include the note in the Notice to Remedy Breach meant that the Notice was invalid, and whether the lessor could still lawfully terminate the lease. This involved examining the statutory provisions regarding the form and content of the Notice and interpreting the requirements of the legislation in the context of the specific circumstances of the case.

The court held that the omission of the note from the Notice did not render the Notice invalid. The court found that the purpose of the note was to provide additional guidance and did not form an essential part of the Notice itself. The court emphasised that the core elements of the Notice, which were present, were sufficient to satisfy the statutory requirements. Consequently, the application to terminate the lease was dismissed, and the lessor was not permitted to proceed with the termination based on the Notice served.

Orders

Orders of the court

Application dismissed

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:	Tyrrell & Anor v Jesbro Enterprise Pty Ltd [2017] QSC 55
PARTIES:	MICHAEL JAMES TYRRELL AND JAN-MAREE TYRRELL (Applicants) v JESBRO ENTERPRISE PTY LTD ACN 087 534 030 (Respondent)
FILE NO/S:	S167 of 2017
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	12 April 2017
DELIVERED AT:	Rockhampton
HEARING DATE:	7 April 2017. Final submissions received 11 April 2017
JUDGE:	McMeekin J
ORDER:	Application dismissed
CATCHWORDS:	APPLICATION – TERMINATION OF LEASE – BREACH OF LEASE AGREEMENT – FAILURE TO REMEDY BREACH – NOTICE TO REMEDY BREACH – where the Notice served on the respondent failed to contain the “Note” which appears in the approved form – whether despite the non-compliance with the approved form, the Notice remains valid. Acts Interpretation Act 1954 s 48A Property Law Act 1974 s 124 Nashvying P/L & Ors v Giacomi [2007] QCA 454, cited Ex parte Taylor [1980] Qd R 253, cited Forsyth v Gibbs [2009] 1 Qd R 403, cited Re Forest Enterprises Ltd v FEA Plantation Ltd (2011) 195 FCR 97; [2011] FCAFC 99, cited
COUNSEL:	TA Arnold for the applicant Mr McDonald (Director) for the respondent (self-represented)
SOLICITORS:	McCarthy Durie Lawyers for the applicant Mr McDonald for the respondent (self-represented)