Look Melbourne Pty Ltd v Chevron Developments Pty Ltd
[2003] QDC 223
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- Look Melbourne Pty Ltd v Chevron Developments Pty Ltd[2003] QDC 223
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Look Melbourne Pty Ltd v Chevron Developments Pty Ltd[2003] QDC 223
Look Melbourne Pty Ltd v Chevron Developments Pty Ltd[2003] QDC 223
DISTRICT COURT | No 352 of 2003 |
CIVIL JURISDICTION
JUDGE ALAN WILSON SC
LOOK MELBOURNE PTY LTD | Applicant |
and
CHEVRON DEVELOPMENTS PTY LTD | Respondent |
SOUTHPORT
.. DATE 04/07/2003
JUDGMENT
HIS HONOUR: This is an application by a lessee for relief from forfeiture under section 124 of the Property Law Act 1974 or in the alternative, an injunction restraining the respondent, the lessor, from interfering with the applicant's quiet enjoyment of the property which is at the Chevron Renaissance Shopping Centre at Surfers Paradise on the Gold Coast.
The application was filed in this Court on the 1st of July and is supported by affidavits from a member of the applicant company and its solicitor, also filed on that day. Yesterday, the respondent's solicitor, Mr Fitzgerald, filed an affidavit.
When the matter came on for hearing before me this morning, Mr Molloy for the respondent, raised a preliminary issue concerning this Court's jurisdiction to deal with the questions touching relief from forfeiture under section 124. He told me and the applicant's counsel, Mr Tolton, has not demurred from this proposition that if I reach the conclusion the Court did not have that jurisdiction, the applicant would not be proceeding with the alternative application for an injunction today.
The power to grant relief from forfeiture under section 124 of the Property Law Act 1974 is, on the face of the Act, vested in the Supreme Court. That can readily be discerned from section 124 sub-section 2 and 3 and schedule 6 of the Act.
Under section 70 of the District Court of Queensland Act, this Court can only exercise jurisdiction in relation to matters arising under section 124 of the Property Law Act and I quote:
“In relation to proceedings instituted or threatened to be instituted pursuant to section 68(1)(b)(XI) for the recovery of possession of land where the value of the land does not exceed the monetary limit.”
That seems tolerably clear from those sections themselves and I take some comfort from the fact that a similar conclusion is reached by the learned authors of the Property Law and Practice, Messrs Duncan and Vann, set out at paragraph 40.250.
The reference in section 70 of the District Court Act to proceedings instituted or threatened to be instituted under the relevant part of section 68 of that Act, means instituted or threatened by, in this case, the lessor. But there are, as the affidavit material shows, no proceedings or any threat of proceedings, presently from the lessor. In fact, it has acted pre-emptorily. I do not for a moment suggest illegally that being, I think, a matter to be decided elsewhere, in terms of section 124 by, re-entering without action. I think it is clear, in those circumstances, that I do not have jurisdiction.
Mr Tolton, for the applicant, has referred me to some remarks of the Honourable Mr Justice Thomas in HR and CE Griffiths Pty Ltd v. Rock Bottom Fashion Market Pty Ltd, 1999, 1 Queensland Reports 496 at 503-504 in which his Honour makes a comment to the effect that even this Court has wide powers of relief in ejectment under section 68 of the District Courts Act. And under section 70, express powers and authorities in relation to sections 124, 125 and 127 of the Property Law Act that those remarks do not seem to me to have been intended to reflect a concluded and a mutable view on his Honour's part that this Court will always have jurisdiction under the Property Law Act, release the parts of it to which I have been referred.
It seems to me there is a small but discernable hold in this Court's jurisdiction which Mr Molloy has identified and in the circumstances, I think I must accede to his application. In anticipation of that, I raised with him the question whether the matter might not be dealt with, hopefully with some expedition, by my referring the matter to the Supreme Court under section 85 of the District Court Act.
It applies, if this Court considers it does not have jurisdiction to hear and decide proceeding started here. That is the conclusion that I have reached. I therefore intend, subject to any further submissions from the parties, simply ordering that this proceeding be transferred to the Supreme Court at Brisbane.
Mr Molloy, do you want to say anything else about that?
MR MOLLOY: No. Not about the proposal to transfer, your Honour.
HIS HONOUR: All right. Mr Tolton?
MR TOLTON: No, your Honour. Thank you.
HIS HONOUR: The only hesitation I have, Mr Tolton, is in the nature of administrative things and in light of the fact that your client may wish to seek relief speedily whether it may not achieve a speedier result simply by bringing its application in the Supreme Court. But I will leave the matter to you and your advisors for the moment. All right. Anything else?
MR MOLLOY: Yes, your Honour. I seek the costs of today. If it be relevant, the applicant's solicitors were advised yesterday that jurisdiction was disputed. But in the circumstances, that may or may not be relevant. In view of the order and the costs should follow that event.
HIS HONOUR: All right. Mr Tolton?
MR TOLTON: Your Honour, it would be my submission that costs are not appropriate to order against the applicant in these circumstances. The only challenge to jurisdiction, we have had was at 4 - my solicitors were served at 4.20 p.m. last night. I first became notified of a challenge of jurisdiction this morning. So, we have had little or no time to prepare or reconsider our position in relation to the jurisdiction. Also your Honour, you have pointed to a large hole in the legislation there, where on a literal interpretation of those clauses, it would be reasonable, on the parts of my clients, to institute proceedings in this jurisdiction. Your Honour, there is nothing further I can assist you with.
HIS HONOUR: Thank you, Mr Tolton. I do not find the question of costs, an easy one. On the one hand, the reporting decision of his Honour The Honourable Mr Justice Thomas to which I have referred, might encourage a party to proceed confidently for relief under section 124 in the Court.
On the other, however, as the thoughtful arguments of Mr Molloy have shown, through what might be suspected to be an unintended combination of the pieces of legislation to which I have referred, it does seem that jurisdiction does not vest in me.
Ultimately, I think I have to decide the case principally by reference to its outcome and in that sense, the respondent has successfully raised a preliminary point upon which it has succeeded. In the circumstances or in those circumstances, I think I am compelled to order that the applicant pay the respondent's costs of and incidental to the hearing today, assessed on the standard basis.
Nothing else, gentlemen?
MR MOLLOY: No, your Honour.
MR TOLTON: No, your Honour.
HIS HONOUR: All right. We will adjourn.
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