Wyles v Health Pathways P/L

DISTRICT COURT OF QUEENSLAND

CITATION:

Wyles & Anor v Health Pathways P/L [2010] QDC 398

PARTIES:

GWENDA MAY WYLES and JAMES FRANCIS WYLES  
(Plaintiffs)

And

HEALTH PATHWAYS PTY LTD ACN 101 359 835
(Defendant)

FILE NO/S:

D66/08

DIVISION:

Civil Jurisdiction

PROCEEDING:

Hearing

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

26 October 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

11 October 2010

JUDGE:

Robertson DCJ

ORDER:

Judgment for the plaintiffs for $9703.91

CATCHWORDS:

LEASES, CONTRACT- Defendant leased premises from plaintiffs which did not include a lot plan or real property description, where defendant abandoned premises alleging breaches by the plaintiffs for not including a garage space in leased premises-

DAMAGES- whether plaintiffs are entitled to damages including a rent free period offered to new tenant.

Legislation

Fair Trading Act 1989 (Qld)

Cases Cited

Commonwealth v Amann Aviation Pty Ltd [1992] 174 CLR 64

Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27

Pohlmann v Harrison and Anor [1993] QCA 1.

Povey & Matthews Pty Ltd v Paul [1987] 162 CLR 221

COUNSEL:

Mr S.M Gerber for the plaintiffs

Mr D. Topp for the defendant

SOLICITORS:

Chris Suttons Law for the plaintiffs

Greenhalgh Pickard Solicitors for the defendant

1. In 2002 Mr and Mrs Wyles (the plaintiffs) owned unit 11/100 Burnett Street, Buderim described as Lot 11 on BUP103680 which included a 76m² office space with balcony and two garage spaces of 18m² each.  They engaged Mr Trevor Hicks of Trevor Hicks Realty in Buderim to lease the premises and Mr Hicks caused an advertisement to be placed in the Buderim Chronicle which described the premises as “70m² + Balcony + storage”.  David Taylor, a director of Health Pathways Pty Ltd (the defendant) responded, either to the advertisement or to a notice in the window of the agency and, in due course applied to lease “Suite 11/100 Burnett Street”.  A “Commercial Tenancy Agreement” was prepared by one of Mr Hicks’ staff between the plaintiffs and the defendant which commenced on 8 August 2002.  The “premises” were described in the lease as “11/100 Burnett Street Buderim 4556”. 

1. Prior to the lease being signed, Mr Hicks had shown Mr Taylor and another director of the defendant Lucille Humphries the premises to be leased.  It is common ground that Mr Hicks showed Mr Taylor and Ms Humphries the office space and balcony and only one garage.

1. Mr Hicks was aware at this time that the plaintiffs had already leased the second garage to another entity.  Mr Taylor says that he viewed the premises twice and it was on the second occasion when Ms Humphries was present that he was first shown the garage area.  He says he noticed that there were two garages marked “11” and he asked Mr Hicks why there were two.  He says Mr Hicks responded “that has nothing to do with you”.  Mr Hicks has no recollection of saying this and doubts he would have spoken in this way to a prospective tenant.  Ms Humphries, who…