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  • Unreported Judgment

Nooravi v Maytrend Pty Ltd

 

[2002] QSC 333

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MOYNIHAN J

No S28 of 2002

FARZAD NOORAVI AND HOMA NOORAVI

Plaintiffs (Applicants)

and

 

MAYTREND PTY LTD

Defendant (Respondent)

CAIRNS

DATE 01/10/2002

JUDGMENT

HIS HONOUR: This is an application for final judgment in respect of a claim relating to identified leased premises. In short, the case for the plaintiffs is that the defendant became lessee of what is conveniently identified as Shop 16 in premises called the Ark for a period of five years, commencing 15 March 1999. It is alleged that the defendant defaulted on payment of rent due on 1 November, failed to comply with a notice to remedy and that a cheque in payment of the relevant rent was stopped and the lease was thereupon terminated.

Insofar as the defence relates or purports to raise or is to be understood as raising an equity dependent on a fraudulent acquisition, I have disposed of that in dealing with the previous action, Action 78 of 2000.

The defendant's case seems to be, doing the best I can to extract it from the pleadings and the mass of material, that the rent in fact was not in arrears and, in fact, may have been paid in advance. I have not been taken to anything in the material which adequately meets the affidavit material in support of the application. I have been taken to payments that related, clearly enough, to periods some time before.

It is the case that relief against forfeiture was granted and there is affidavit material that that was on terms of rental payments of $440 a week, which apparently reflects a reduction of what otherwise would be the rent. But I have not been directed to any material which controverts a basis which sustains that the position with the rent was not as is deposed to in Mr Boston's second affidavit filed in support of the matter.

There was raised at the very last minute a suggestion that the defendant company might have the benefit of the provisions of section 124 of the Property Law Act because the premises were to be used as a shooting gallery and that unique quality might bring the tenancy into the protection of that provision. The facts giving rise to that are not pleaded, notwithstanding the fact that the defence was amended, pursuant to an intimation by a judge who previously dealt with the matter that the pleadings should be brought in line with the matters relied on. Again, beyond assertion, there is little or nothing by way of material to the facts or submissions which would justify it being considered that there was any prospect of that case being successfully made out.

So, the circumstances are that the defence is unsatisfactory as a pleading. I have not been directed to anything in the mass of material which meets the precisely sworn material in support of the application indicating that there was a default, which is now relied on as a basis for granting the relief sought.

It seems to me that when one bears in mind the effect which has been given to the provision of Uniform Civil Procedure Rule 292, in the cases, it has not been demonstrated that the defendant has any real prospect of successfully defending the plaintiff's claim. There is no need for a trial of the claim of this action. I therefore give judgment for the plaintiffs in terms of paragraph (1) of the claim.

I order forfeiture of the lease identified in paragraph (4) of the statement in claim in respect of the premises, the subject of the lease identified in that paragraph.

I order that the defendant pay rent in accordance with the calculations, in what I will mark Exhibit 1, for a total arrears of rent of $4,377.14 and, in respect of mean profits, in the amount of $9,617.13 and $4,317.15 in respect of the periods calculated in Exhibit 1. I order that the defendant pay interest pursuant to section 47 of the Supreme Court Act and that the defendant pay the plaintiffs' costs of the action and this application to be assessed on a standard basis.

HIS HONOUR: By consent, I give leave to withdraw the defendant's application based on alleged conflict of interest. I order the defendant to pay the plaintiffs' costs of and incidental to the application fixed in the sum of $500.

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Editorial Notes

  • Published Case Name:

    Farzad Nooravi and Homa Nooravi v Maytrend Pty Ltd

  • Shortened Case Name:

    Nooravi v Maytrend Pty Ltd

  • MNC:

    [2002] QSC 333

  • Court:

    QSC

  • Judge(s):

    Moynihan J

  • Date:

    01 Oct 2002

Litigation History

No Litigation History

Appeal Status

No Status