Oasis JV Pty Ltd v Armstrong & Anor
[2017] QDC 142
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- Unreported Judgment
- Oasis JV Pty Ltd v Armstrong & Anor[2017] QDC 142
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Oasis JV Pty Ltd v Armstrong & Anor[2017] QDC 142
Oasis JV Pty Ltd v Armstrong & Anor[2017] QDC 142
DISTRICT COURT OF QUEENSLAND
CITATION: | Oasis JV Pty Ltd v Armstrong & Anor [2017] QDC 142 |
PARTIES: | OASIS JV PTY LTD ACN 603 854 913 (plaintiff) v MARK ARMSTRONG (first defendant) and TIARNA ARMSTRONG (second defendant) |
FILE NO/S: | BD3807/16 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 2 June 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 April 2017 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE- SUMMARY JUDGMENT – JUDGMENT ON ADMISSIONS- Whether summary judgment should be ordered – whether judgment on admissions should be ordered Competition and Consumer Act 2010 (Cth) ss 18, 20, 87 Australian Consumer Law ss 18, 20 Retail Shop Leases Act 1994 (Q) ss 43, 46A Uniform Civil Procedure Rules 1999 (Q) rr 166, 190, 293 Agar v Hyde (2000) 201 CLR 552 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Coco v Ord Minnett Ltd [2012] QSC 324 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83 Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq) [2011] QCA 162 Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 Spencer v The Commonwealth (2010) 241 CLR 118 |
COUNSEL: | Mr S Lane for the plaintiff Self-represented defendants |
SOLICITORS: | HWL Ebsworth Lawyers for the plaintiff Self-represented defendants |
Introduction
- [1]This is an application by the plaintiff for judgment pursuant to r 190 of the UCPR; alternatively that various parts of the amended defence be struck out ; alternatively, judgment be entered against the defendants pursuant to r 293 UCPR in respect of the defendants’ counter-claim or alternatively the whole of the amended counter-claim be struck out and costs.
- [2]There is a cross application by the defendants for judgment on the counter-claim.
- [3]When considering the strikeout application I bear in mind that which was stated by Fraser JA in Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq)[1]where his Honour said:
“Issues in proceedings should ordinarily be decided at trial and should not be decided summarily unless there is a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’or a ‘demonstrated certainty of outcome’.”
- [4]The court needs to consider whether the facts pleaded are capable in law of giving rise to the relief sought (Coco v Ord Minnett Ltd).[2]
- [5]As to the applications for summary judgment I bear in mind that which was stated by the French CJ and Gummow J in Spencer v The Commonwealth:[3]
“The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd[4] said:
‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.’
More recently, in Batistatos v Roads and Traffic Authority (NSW)[5] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[6] which included the following:
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’”
The pleadings
Claim
- [6]The plaintiff’s claim is for $226,399.19, being $66,313.99 as a debt due and owing pursuant to a lease; $10,436.25 as a debt due and owing pursuant to an incentive deed and $149,638.95 as damages for breach of the lease.
- [7]The statement of claim alleges that the plaintiff was from 11 March 2015 the registered owner of the Oasis shopping centre located at Broadbeach.
- [8]Prior to 11 March 2015, Sovereign Goldsea Pty Ltd (hereinafter known as “Sovereign”), also formerly known as Goldsea Pty Ltd, was the registered owner of the land. On 28 June 2013, Sovereign as lessor and the first and second defendants as lessees agreed to lease the premises for a period 1 June 2013 to 31 May 2018.[7]
- [9]It was an express term of the lease that:
- (a)“Lessor” meant Sovereign and its successors and assigns;
- (b)The defendants agreed to pay to the lessor rent, namely $37,950 for the first rental year, $39,468 for the second rental year, $41,046.72 for the third rental year, $42,688.59 for the fourth rental year and $44,396.13 for the fifth rental year.[8]
- [10]
- [11]Further, it is alleged that the defendants had to keep the premises open for trade during trading hours as defined in the lease (clause 8.3(a)),[12]they were in breach of the lease if they did not pay the rent or the lessees’ contributions to outgoings in full (clause 15.8(a))[13]and prior to termination, they were obliged to reinstate the premises. It was further agreed that the lease would be breached if they abandoned, vacated or otherwise surrendered the premises (clause 15.4(i)).[14]
- [12]It was further agreed that if the defendants breached an essential term of the lease then the lessor could recover damages and/or terminate the lease (clause 15.9),[15]but further at clause 15.9 provided that if the lease was terminated by the lessor for breach of an essential term by the lessee the lessor would be entitled to recover from the lessee the difference between rent and monies payable by the defendants for the unexpired residue of the term, less any amount the lessor was able to obtain or could in the lessor’s opinion reasonably be expected to obtain (clause 15.9).[16]By clause 15.8(a),[17]the defendants agreed that the covenants to pay rent and outgoings were essential terms of the lease, as was the part of the covenant to pay the promotion contribution and the make good obligation.
- [13]It is further alleged[18]that by written agreement dated 28 June 2013, Sovereign as lessor agreed to grant to the first defendant as lessee a rent concession in connection with the lease subject to certain terms and conditions which is specified in paragraph 8 of the Statement of Claim.
- [14]On or about 11 March 2015, a transfer was registered to the Queensland Land Registry transferring ownership of the land from Sovereign to the plaintiff.[19]By written agreement dated 13 February 2015, Sovereign agreed to assign its rights pursuant to the lease and the incentive deed to the plaintiff.
- [15]It was an express term of the contract of sale that Sovereign’s rights to claim from the defendants any rent, contributions, and power charges were assigned to the plaintiff.[20]Notice of attornment was given to the defendants on 9 March 2015.[21]As a result, the plaintiff became the lessor of the lease.
- [16]On or about 1 March 2015, Sovereign issued a March 2015 invoice with respect to payments due.[22]It is alleged the defendants have failed to pay rent in the period 1 March 2015 to 31 March 2015 and 1 July 2015 to 19 July 2016 (a total of $48,574.91);[23]failed to pay outgoings contributions (a total of $19,398.38);[24]failed to pay promotion contributions (a total of $2,559.83)[25]and failed to pay power charges (a total of $1,835.82).[26]
- [17]It is alleged that the defendants abandoned the premises on or about 30 January 2016 and did not pay the rent when due in full and without deduction.[27]Total rent claimed was $48,574.95;[28]contribution to outgoings claimed at $19,398.38;[29]promotions contributions were $2,559.83l;[30]power charges at $1,835.92.[31]
- [18]It is further alleged that the defendants did not refit and make good the premises prior to termination. In the circumstances it was alleged that the defendants breached the lease.[32]
- [19]It is further alleged that on 4 November 2015, the plaintiff served a s 124 Property Law Act notice which was not complied with and on or about 6 June 2016 the plaintiff re-entered and took possession of the premises.
- [20]The total sum of $66,313.99 is sought as a debt due and owing.[33]In addition, $149,638.95 is claimed as damages for breach of the lease, calculated as:
- (a)$81,307 being the monthly amount from 20 July 2016 until 31 May 2018 for rent;
- (b)$29,372.56 being the monthly amount for outgoings between 20 July 2016 to 31 May 2018;
- (c)Promotion contributions in the sum of $4,067.39 being for the period 20 July 2016 to 31 May 2018; and
- (d)$28,842 to make good the premises.
Defence
- [21]The defendants have filed an amended defence dated 27 February 2017.[34]
- [22]In the defence and counter-claim, the defendants allege in paragraph 2A(b):
“The plaintiff is the lessor at all times based on the due diligence undertaken and that all rights, title and interest in the lease where [sic] assigned to the plaintiff. The plaintiff became the lessor for the purposes of the lease and within the meaning of that term as defined in the lease. The plaintiff became the “landlord” for the purposes of the incentive deed and within the meaning of that term as defined in the incentive deed.”
- [23]A similar allegation is made in paragraph 1(a) of the defence.
- [24]Then, in paragraph 3 it alleged:
“The first and second defendant deny the allegations in paragraphs 21 to 23 of the statement of claim as they did not break the lease and no payment is payable to the plaintiff as the defendants alleged that the contract was breach by the plaintiff with regard to the Retail Shop Leases Act 1994 under the Business Disturbance provisions in s 43.1(b)(i)(ii), (c), (d)(i)(ii) and (e). The plaintiff’s breaches of these acts cause significant loss of income and potential income to the defendants. The defendants also allege that false or misleading statements relating to s 43AA of the Retail Shop Leases Act 1994, an unconscionable conduct relating to ss 48A(1) and 46B(1)(a), (b), (d), (e), (g), (h), (i) and (k) of the Retail Shop Leases Act 1994 caused the defendant significant loss of income and potential income. The material facts are that the lease release date was set by the plaintiffs for 31 January 2016 and would cease the remainder of the lease being 2.5 years. The debt at the time was $36,305.71, plus the bank guarantee to the value of $10,436.25 that was agreed to be kept by the plaintiff as part payment of the outstanding amount. The plaintiff, after agreeing to “I’m sure that we can strike a passage that allows you to trade through the better returns from your business” quoted in an email from the plaintiff on 10 June 2014 then delayed the defendants intentionally or not until October 2014, meanwhile the debt continued to increase at the full rental rate.”
- [25]Later, in paragraph 3(a) the defendants alleged that the contract was breached by the plaintiff and the plaintiff breached the provisions of the Retail Shop Leases Act 1994 by substantially restricting and altering customer access past the shop for about 15 months from 5 October 2013 to 18 December 2014 and in particular, 5 months after the lease was signed the monorail between the shopping centre and Jupiter’s Hotel and Casino was closed down and as a result it is alleged that the contract was breached by the plaintiff with regard to the Retail Shop Leases Act 1994.
- [26]It is further alleged that this led to a disruption of the plaintiff’s business which caused damage.[35]
- [27]It is further alleged in paragraph 3(iv) of the defence that issues concerning the monorail were raised with the plaintiff.
- [28]It is further alleged in paragraph 3(v) that there was a lack of reinvestment into the shopping centre which showed it was neglected and run-down which was a breach by the plaintiff of the Retail Shop Leases Act 1994, s 43.1.
- [29]It is further alleged in paragraph 3(vi) that misrepresentations were made prior to the defendant entering into the lease. Issues concerning the monorail are further pleaded in paragraphs 3(vii) and (b).
- [30]It is then alleged in paragraph 5 that extensive telephone conversations were had with Mr McSpadden who worked for the plaintiff and during this conversation it was assured that no action would proceed with the notice to remedy breach letter. It is alleged that the leave date was nominated by the plaintiff to be 31 January 2016. The monorail allegations were repeated in paragraph 13 of the defence.
- [31]The amended counter-claim bases an action on the grounds that misrepresentations were made prior to the defendants entering the lease[36]primarily relating to the monorail issue, which allegations are repeated in paragraph 2. It is alleged in paragraph 3 that this resulted in the loss of potential customers.
- [32]It is also alleged that the plaintiff failed to provide adequate signage but I note this is not linked in to any clause in the lease. Monorail allegations were repeated in paragraphs 4 and 5.
- [33]It is further alleged that s 43 of the Retail Shop Leases Act 1994 was breached by the plaintiff as they neglected cleaning, maintenance or repainting, but not link between any particular damages and this breach is pleaded in the counter-claim. The monorail allegations are repeated in paragraph 7 of the defence.
The plaintiff’s evidence
- [34]Jenny To, in an affidavit filed 17 March 2017,[37]affirms she is employed by the solicitors for the plaintiff. Her affidavit encloses the relevant contractual documents, invoices, letters and notices to the defendants. Clearly enough these prove the amounts sued for by the Plaintiff and the documents relied on in the Statement of Claim.
- [35]Gerard McSpadden, in an affidavit dated 28 March 2017,[38]alleges that he is the national asset manager of Abacus Funds Management Limited, a wholly owned subsidiary of AFML which managed the Oasis Shopping Centre. He gives evidence of the acquisition of the plaintiff by the plaintiff of the centre. He also gives evidence of the Notice to Remedy breach of covenant and the alleged abandonment of the lease. He alleges that in relation to the lease being released on 31 January 2016 this is untrue.
- [36]On 22 December 2015, Michael Tree sent an email to the defendants offering early surrender of the lease on 31 January 2016, subject to a condition that the defendants clear all the arrears owing pursuant to the lease by the surrender date, 31 January 2016 and the defendants pay the plaintiff’s legal costs in the sum of $2,202.[39]
- [37]It is alleged that the defendants did not accept this offer and did not comply with the surrender conditions.[40]Paragraph 20 refers to email correspondence regarding this.
- [38]
- [39]Ms To alleges that the defendants admitted at the hearing they were liable for rent until 31 January 2016. I might say my impression is that the defendants indicated they were prepared to pay this amount “back then” but were not after the plaintiff “reneged” on the termination date proposal. She further says that Sovereign and the plaintiff are unrelated companies. This does not seem to be in dispute.
- [40]Mr McSpadden in his affidavit swears that:
- (a)EX GM2 is the relevant email correspondence between the parties.
- (b)The defendants rejected Mr Tree’s offer of early surrender.
- (c)The offer of surrender included a condition that $36,305.71 outstanding was to be paid and this amount was not paid.
- (d)The defendants’ offer was rejected by the plaintiff.
Defendants’ evidence
- [41]Mr and Mrs Armstrong have sworn an affidavit dated 6 April 2017.[44]In that affidavit, they refer to the pleadings and allege that the contract was breached by the plaintiff under the business disturbance provisions of the Retail Shop Leases Act 1994. It is also alleged that false and misleading statements and unconscionable conduct occurred.
- [42]At paragraph 6 it is said:
“We allege unconscionable conduct has occurred by way of silence when we were not informed about the lack of reinvestment of the monorail and that it had not been properly serviced or maintained over 25 years before be signed the lease, although the management were aware of this major negligence.”
- [43]It is alleged that the amended defence and counter-claim is true and factual.
- [44]It is further alleged that paragraphs 9 and 21-23 in the affidavit of Gerard McSpadden are untrue. It is alleged with respect to the Notice to Remedy dated 4 November 2015:
“Gerard McSpadden did not give a further 14 days to comply to the Form 7 Remedy Notice as written in his affidavit. He told Tiarna Armstrong that he would not action the notice and that they would meet in a few weeks when he returned to the Gold Coast and they would work on a plan to resolve things, including a possible exit strategy and/or rent relief. This is in fact what did happen, a follow-up meeting and follow-up emails for the next three months. This is all supported by Exhibit GN1 and Exhibit ARN1 with emails that detail there was a follow-up meeting and ongoing discussions.”
- [45]It is said in paragraph 13:
“The lease release date was given to us by the plaintiff for 31 January 2016 when we could leave the lease. Leave or stay they wanted us to make full payment of the outstanding amounts, as this could not be done we have no choice but to leave on the day they nominated.”
- [46]It is also alleged that the change of signage to “style” had, as a direct result, a diminution in traffic flow passing their business which was already suffering from the extent of closure of the monorail.[45]
- [47]
- (a)The Plaintiff did not provide adequate rent relief.
- (b)Mr Tree worked for Sovereign and the plaintiff and in an email dated 26 August 2014 acknowledged he was considering the issue of rent relief.
- (c)As to the agreement to vacate, there was a phone call between Ms Armstrong and Mr McSpadden on 6 November 2015 in relation to the Form 7 notice. Mr McSpadden was sympathetic to the defendants’ situation and he said he would not action the Form 7.
- (d)There was then a meeting on 18 November 2015 during which the defendants raise their concerns as to the breaches of contract namely the bad signage, unsatisfactory maintenance and negative news reports and that the plaintiff had not addressed any of these issues.
- (e)Mr McSpadden initially said he would not give rent relief but after further discussion agreed that the best decision would be to end the business in January especially if the outstanding amounts could not be repaid.[47]
- (f)In an email dated 29 January 2016 the defendants advised they could not pay $36,305.71 and requesting release.[48]
- (g)Mr Tree replied on 1 February 2016 by email denying details of a conversation concerning the monorail, but noting they had vacated the shop and stating “You will need to settle the outstanding debt” and asking for a meeting.[49]
- (h)There is an email from the defendants dated 5 February 2016 pointing out issues concerning the monorail and alleging the plaintiff significantly disrupted the defendants’ trading activity.[50]
Submissions
Plaintiff’s submissions[51]
- [48]The plaintiff submits that there are admissions and deemed admissions by the defendants.
- [49]The plaintiff submits that the action is clear. It submits the defendants breached the lease by abandoning the premises, failing to pay rent when due, failing to pay the outgoings, failing to pay the promotions contribution, failing pay the power charges and failing to make good the premises prior to termination of the lease. A Notice to Remedy was served on 4 November 2015 and these breaches have not been remedied.
- [50]With respect to the admissions, it is alleged that the amended defences made deemed and express admissions in the amended defence. It is alleged that no application for leave to withdraw the admissions has been made. It alleges in the circumstances, bearing in mind there is no reason provided for the admissions, the plaintiff is entitled to judgment.
- [51]It is further submitted that even if leave was sought to withdraw the admissions leave ought not to be granted.[52]It is further submitted that there is no defence to the plaintiff’s claims. It is submitted in essence that any claim for misrepresentation, breaches of the Retail Shop Leases Act and non-disclosure concerning the monorail are matters not relevant to the plaintiff which became the owner after such conduct. It is submitted that the plaintiff was not involved in such contraventions.
- [52]It is submitted in no circumstances that summary judgment should be given to the plaintiff. Alternatively, it is submitted that various paragraphs of the amended defence and counter-claim should be struck out as they do not show any reasonable cause of action.
Submissions by the defendants
- [53]The defendants, in their outline,[53]allege that the amended defence counter-claim and affidavit are true. They oppose the plaintiff’s applications and indeed seek judgment on their claim. It is submitted that the court would not accept Mr McSpadden’s affidavit. It is submitted that the plaintiff is responsible for acts or omissions of Sovereign by reason of the provisions of the lease. Further, regardless it is submitted that the plaintiff breached s 43 of the Retail Shop Leases Act by substantially restricting, allowing and altering customer access by the rebranding of level 1 as “style” and calling the ground level “retail”. It is alleged the defendants suffered loss and damage as a result.
- [54]It is further alleged the plaintiff breached its obligations by failing to clean and maintain the building.
- [55]In oral submissions the defendants alleged that they were released from obligations under the lease in oral conversations whereby the plaintiff agreed for a termination date and they would not be further liable for rent payments.
Disposition
- [56]In my view, this is a case where the amended defence needs to be regularised. It is insufficient in its present form. I appreciate obviously enough that the defendants are not qualified lawyers but that does not obviate the need for the pleadings to be in their proper form.
- [57]With respect to allegations concerning non-disclosure of the monorail and alleged misrepresentations prior to entering into the lease, I strike out this cause of action as against the plaintiff. The plaintiff was not involved in these and cannot be held responsible for such misrepresentations or breaches. I am satisfied on the material there is no evidence upon which to suggest the Plaintiff was involved with this.
- [58]
- [59]However I consider the defendants do raise some other triable issues.
- [60]I do not strike out the cause of action relating to alleged breaches of s 43 of the Retail Shop Leases Act insofar as it concerns the rebranding of the first floor from retail to “style” and failure to clean and maintain the building. However, the allegation needs to be completely re-pleaded so that the defendants can show:
- (a)What parts of the lease and act were breached.
- (b)How they were breached by the Plaintiff or its agents.
- (c)When they were breached.
- (d)What loss or damage (if any) was caused by reason of the rebranding and failure to clean and maintain the building. Ordinarily, an expert accountant’s report proving such losses would be necessary.
- (e)What relief is sought.
- [61]With respect to the allegation of a release, this is not properly pleaded. Presumably the defendants are alleging an agreement, estoppel and/or unconscionable conduct. The pleading needs to be substantially recast in this regard. If true then that may provide a substantial defence to the action. At the moment though on the material the defence does seem marginal on the issue of the agreement although unconscionable conduct may be more arguable.[56]
- [62]The pleading is insufficient at present. It would need to plead insofar as contract is concerned:
- (a)The details of the agreement.
- (b)Who were parties to the agreement.
- (c)Whether it was in writing or oral or partly oral or in writing.
- (d)As to estoppel and/unconscionable conduct – details of representations made and how they were relied on.
- (e)Also with respect the unconscionable conduct they would need to plead disadvantage.[57]
- (f)What relief is sought.
- [63]With respect to the alleged unconscionable conduct it may be relevant that the Centre Manager employed by Sovereign was knowingly concerned in misrepresentations/non-disclosure concerning the monorail. He then became an employee of the plaintiff and was concerned in allegations the defendants breached the lease and abandoned the premises. The abandonment and breaches of the lease may be proved to be the direct result of the business’ failure because of the closure of the monorail. It may be the defendants can mount a case of unconscionable conduct in those circumstances. However, I express no concluded view on this.
- [64]In all of the circumstances because I propose to strike out the amended defence and counter-claim in its present form, there is no need to deal with the question of admissions.
- [65]The defendants will need to give careful consideration to how they plead the new pleading to avoid any deemed or express admissions unless intended. They need to appreciate that unless denied an admission may be deemed and if denied reasons for the denial need to be pleaded.[58]
- [66]Clearly enough I am not satisfied at this time that summary judgment should be awarded in favour of either party.
- [67]I recommend that the defendants obtain the assistance of LawRight or from a barrister on the pro bono list held by the Bar Association.
Conclusion
- [68]In conclusion for the reasons given I make the following orders:
- I dismiss the plaintiff’s application for judgment on admissions.
- I dismiss the plaintiff’s application for summary judgment against the defendants.
- I dismiss the defendants’ application for summary judgment against the plaintiff.
- I order the defence and counter-claim be struck out.
- I strike out the claim by the defendants against the plaintiff concerning alleged misrepresentations, non-disclosure, breaches of lease and breaches of the Retail Shop Leases Act 1984 (Q) by Sovereign Goldsea Pty Ltd.
- I allow the defendants 28 days to re-plead.
- I will hear the parties on the question of costs
Footnotes
[1] [2011] QCA 162 at [13].
[2] [2012] QSC 324 [18].
[3] (2010) 241 CLR 118; [2010] HCA 28 at [24].
[4] (1983) 154 CLR 87, 99.
[5] (2006) 226 CLR 256, 275 [46].
[6] (2000) 201 CLR 552, 575-576 [57].
[7] Document 1, Claim and Statement of Claim filed 20 September 2016, para 5.
[8] Document 1, para 6(c).
[9] Document 1, para 6(f).
[10] Document 1, para 6(g).
[11] Document 1 para 6(h).
[12] Document 8, Affidavit of Jenny Ming Mei To, JMT-4, p 114.
[13] Document 8, Affidavit of Jenny Ming Mei To, JMT-4, p 146.
[14] Document 8, Affidavit of Jenny Ming Mei To, JMT-4, p 145.
[15] Document 8, Affidavit of Jenny Ming Mei To, JMT-4, p 146.
[16] Document 8, Affidavit of Jenny Ming Mei To, JMT-4, p 146.
[17] Document 8, Affidavit of Jenny Mind Mei To, JMT-4, p 146.
[18] Document 1, para 7.
[19] Document 1, para 11.
[20] Document 1, para 13.
[21] Document 1, para 15.
[22] Document 1, para 17.
[23] Document 1, para 21(b).
[24] Document 1, para 21(c).
[25] Document 1, para 21(d).
[26] Document 1, para 21(e).
[27] Document 1, para 21(e).
[28] Document 1, para 21(b).
[29] Document 1, para 21(c).
[30] Document 1, para 21(d).
[31] Document 1, para 21(e).
[32] Document 1, para 22.
[33] Document 1, para 33.
[34] Document 6, Amended Defence and Counter-claim filed 27 February 2017.
[35] Document 6, para 3(iii).
[36] Document 6, para 1 of the Amended Counter-Claim.
[37] Document 8, Affidavit of Jenny To filed 17 March 2017.
[38] Document 11, Affidavit of Gerard McSpadden filed 28 March 2017.
[39] Document 11, Affidavit of Gerard McSpadden filed 28 March 2017, para 17.
[40] Document 11, Affidavit of Gerard McSpadden filed 28 March 2017, para 18.
[41] Document 15, Affidavit of Mark and Tiarna Armstrong filed 20 April 2017.
[42] Document 16, Affidavit of Jenny Ming Mei To, filed 12 May 2017.
[43] Document 17, Affidavit of Gerard McSpadden, filed 17 May 2017.
[44] Document 12, Affidavit of Mark and Tiarna Armstrong, filed 6 April 2017.
[45] Document 12, Affidavit of Mark and Tiarna Armstrong filed 6 April 2017, para 16.
[46] Document 15, Affidavit of Mark and Tiarna Armstrong filed 20 April 2017.
[47] Document 15, Affidavit of Tiarna and Mark Armstrong filed 20 April 2017, para 12.
[48] Document 15, Affidavit of Tiarna and Mark Armstrong filed 20 April 2017, ARM1, p 7.
[49] Document 15, Affidavit of Tiarna and Mark Armstrong filed 20 April 2017, ARM1, p 8.
[50] Document 15, Affidavit of Tiarna and Mark Armstrong filed 20 April 2017, ARM1, p 9.
[51] Exhibit 1, Plaintiff’s List of Materials and Authorities.
[52] See Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455.
[53] Exhibit 3, Defendant/Respondent’s Outline of Submissions.
[54] Such as under section 87 of the Competition and Consumer Act 2010 (Cth).
[55] Competition and Consumer Act 2010 (Cth), Australian Consumer Law, sch 2, ss 18, 20. Also see the recent discussion in Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83.
[56] Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 or possibly section 46A of the Retails Shop Leases Act 1994 (Q) or possibly under the Australian Consumer Law.
[57] Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25
[58] UCPR, r 166.