Australian Prime Fibre Pty Ltd v ISIS Central Sugar Mill Co Ltd
[2017] QDC 186
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- Unreported Judgment
- Australian Prime Fibre Pty Ltd v ISIS Central Sugar Mill Co Ltd[2017] QDC 186
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Australian Prime Fibre Pty Ltd v ISIS Central Sugar Mill Co Ltd[2017] QDC 186
Australian Prime Fibre Pty Ltd v ISIS Central Sugar Mill Co Ltd[2017] QDC 186
DISTRICT COURT OF QUEENSLAND
CITATION: | Australian Prime Fibre PL v ISIS Central Sugar Mill Co Ltd [2017] QDC 186 |
PARTIES: | AUSTRALIAN PRIME FIBRE PTY LTD (Appellant) v ISIS CENTRAL SUGAR MILL CO LTD (Respondent) |
FILE NO/S: | 3049/2016 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 29 June 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 November 2016 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – lease – where parties entered into a deed of settlement of a lease dispute – where issue on construction of deed heard in Magistrates court – where Magistrate held lease was a periodic tenancy – where a warrant for possession was issued – where decision appealed – whether a periodic or fixed term tenancy – whether notice of termination pursuant to s. 130 of the PLA valid – whether “other cause” for refusing warrant shown – appeal dismissed |
COUNSEL: | J W Lee for the Appellant M T de Waard for the Respondent |
SOLICITORS: | Aitken Whyte Lawyers for the Appellant M R H Lawyers for the Respondent Barwick & Ors v TA Field (Brisbane) Pty Ltd; Ex Parte TA Field (Brisbane) Pty Ltd [1960] Qd. R. 388 Sorensen v Animanto Pty Ltd [2008] QDC 219 Property Law Act 1974 (Qld), sections 124, 130, 131, 132, 134, 141, 143 and 145 |
Introduction
- [1]Isis Central Sugar Mill Company Limited (“ISIS”) leased premises to Australian Prime Fibre Pty Ltd (“APF”) pursuant to a lease of 13 November 2011. A dispute arose related, inter alia, to non-payment of rent and to the construction of a clause of the lease relating to expiration of the lease. On 26 February 2016 the parties entered into a Deed of Settlement in relation to that dispute. The construction of that deed was the subject of a decision of a learned magistrate on 28 July 2016.
- [2]ISIS had applied pursuant to s. 141 of the Property Law Act (“the Act”) for a warrant of possession under s 144 of the Act. Central to the dispute was the determination of whether the ongoing occupation of the land by APF was pursuant to a periodic, or to a fixed term, tenancy. Only if it was a periodic tenancy could ISIS proceed under s 141 of the Act, as it had. If it was not a periodic tenancy, the parties agreed the complaint should have been dismissed.
- [3]On 25 February 2016, ISIS had sent to APF rental invoices for arears of rental, payable under the deed, and for each of the months from February to August 2016, marked as being due on the first day of each month. Those sums were not paid as required. In particular, when the April invoice was not paid as required ISIS gave APF notice of termination of the ongoing tenancy on 5 April 2016. In fact the rental had been paid by APF and accepted by ISIS prior to that date. ISIS proceeded on the basis the tenancy was a month to month tenancy and gave its notice under s. 130 of the Act. APF refused to vacate the premises and ISIS sought recovery of possession pursuant to s. 143 of the Act.
- [4]Before the Learned Magistrate APF argued that:
- (a)APF at the time of the notice occupied the land under a tenancy for a fixed period.
- (b)Upon execution of the deed ISIS gives notice of termination of the tenancy so as to expire on 30 August 2016.
- (c)ISIS thereby executed “the only right it had to terminate under the Deed … and that termination was thereby to be operative on 30 August 2013. It has no residual power… to purport to re-exercise the right of termination. That right has been used and has been exhausted.
- [5]The learned magistrate however determined that the continued occupation of the property by APF was as a periodic tenant and determined that ISIS was entitled to possession. He ordered a warrant for possession be issued and ordered that APF pay the costs of ISIS on an indemnity basis, other than with respect to an appearance on 16 June 2016, for which no order as to costs was made.
- [6]The Learned Magistrate also rejected other matters on which APF relied – namely whether ISIS was entitled to rely on a Notice of Termination given pursuant to s. 130 of the Act, and whether the warrant ought to have been refused pursuant to the discretion to do so under s 145 of the Act.
- [7]APF appeals that decision.
S 141 of PLA
- [8]The importance of determining whether the ongoing lease was one for a fixed term (albeit a fixed term APF could foreshorten by giving notice of termination) or a periodic tenancy arises because of various provisions of the Act.
- [9]The proceedings below were by way of complaint and summons, seeking a warrant for the possession of the premises. The proceedings were brought pursuant to s 141(1) of the Act which provides:
- (1)When the term or interest of the tenant of any land held by the tenant as tenant for any term of years or for any lesser estate or interest whether with or without being liable for payment of rent—
(a)has expired by effluxion of time; or
(b)has been determined by notice to terminate or demand of possession;
and the tenant or any person claiming under the tenant and in actual occupation of the land or any part of the land fails to deliver up possession of such land or part, the landlord may by complaint under this division proceed to recover possession of that land or part of it.
- [10]In Sorensen v Animanto Pty Ltd [2008] QDC 219, Rackemann DCJ accepted (in circumstances where the respondent’s counsel conceded) that the use of a complaint and summons to recover possession of land under s 141 was of limited application. His Honour noted at [3] of his judgment the submission of the appellant in that matter which set out commentary from Property Law and Practice (Qld) in relation to Part 8 Division 5 of the Act (which encompasses s 141 thereof) as follows:
The situation regarding summary recovery of possession may be thus summarised:
- (1)Residential tenancies’ ejectment proceedings are covered by Pts 5 and 6 of the Residential Tenancies Act 1994.
- (2)All other tenancies are covered by this Division. Relief against forfeiture must still be sought in the Supreme Court or District Court.
- (3)This division does not apply to any tenancy determined by forfeiture. The Division only applies to the holding over of fixed tenancies where notice to quit has been given or where a periodic tenancy has been determined in accordance with this Act.
- (4)Where the tenancy has been determined by forfeiture for breach of condition a landlord must proceed by way of claim in the Supreme Court or District Court…
As noted in the introductory commentary, this Division has limited application. It does not apply where a tenancy has been determined by way of forfeiture, but it does apply to tenancies by attornment created by mortgages. Its basic application is to:
- (a)the holding over of fixed term tenancies which have expired by effluxion of time, where notice has been given; or
- (b)periodic tenancies which have been determined by notice.
- [11]His Honour noted the respondent’s concession that the proceedings in that case, by complaint under s 141, had no legal justification because the tenancy was not of the sort described in [10], (a) or (b) above, was “rightly conceded”.
- [12]So too in this case was it accepted by the parties that subject to consideration of the further grounds referred to in [6] hereof, if the tenancy was not a periodic tenancy, the complaint ought to have been dismissed and the appeal should be allowed.
Provisions of Deed and Lease
- [13]The Deed of 26 February 2016 relevantly provides:
“1 EXPIRY OF LEASE
1.1 The parties acknowledge that the lease expires, (notwithstanding any other provision contained within the lease or any other correspondence between the parties) on 28 February 2016.
1.2 Notwithstanding clause 1.1 of this Deed, ISIS consents to occupation by APF of the premises after 28 February 2016 as a monthly tenant on the terms of clause 1.2.1 of the lease.
1.3 Clause 1.2.2.2 of the lease is deemed to be varied by deletion of the words “on the date which is nine (9) calendar months or such longer time as we, in our discretion, think fit from the Expiry Date (‘The Concession’)” and in lieu thereof the following words are deemed inserted “on 30 August 2016”.
1.4 This Deed is deemed to be notice by ISIS to APF of termination of the monthly tenancy so as to expire on 30 August 2016. For the avoidance of doubt, APF may terminate the monthly tenancy earlier than 30 August 2016 by complying with clause 1.2.1 of the lease.
- VACATING THE PREMISES
2.1 APF must remove the plant and equipment and repair the premises and otherwise vacate the property by 30 August 2016 or by expiry of the monthly tenancy if APF gives earlier notice of termination under the monthly tenancy, whichever date is earlier.
2.2 All other obligations of APF under the terms of the lease shall continue in full force and effect, …
2.3 APF acknowledges that notwithstanding any other provision in the lease, if APF fails to vacate the premises by 30 August 2016 (or by expiry of the monthly tenancy if APF terminates the monthly tenancy earlier), ISIS may immediately and without further notice to APF re-enter and re-take possession of the premises and APF will not injunct or otherwise resist ISIS’ re-entry and re-taking of possession under the lease unless ISIS is in breach under the terms of this Deed.
2.4 For the avoidance of doubt, clauses 1.2.2.3(a) and (b) in the lease in relation to the concession shall continue to apply …
- VARIATION OF LEASE
3.1 In addition to the variations of the lease referred to above, clause 1.3 “Mutual Discussions” is deemed deleted from the lease.
3.2 All remaining terms of the lease continue to apply during the monthly tenancy varied only in accordance with this Deed.
- CONDITION SUBSEQUENT
6.1 As a condition subsequent to this Deed, APF must pay all arrears of rental up to and including 28 February 2016 together with the additional rental attributable to CPI increases calculated in accordance with clause 4 above by four weekly instalments with the first such instalment payable on 1 March, 2016.
6.2 Should APF fail to comply with clause 6.1 in any respect, this Deed shall be of no effect and APF shall be in breach of the lease without the requirement for a further notice to remedy to be provided by ISIS such that the concession referred to in clause 1.2.2.2 of the lease as varied above shall not apply.
- FAILURE TO COMPLY
7.1 Any failure to by APF to comply with the terms of this Deed and with the leases as varied by this deed, without further notice required to be given to (sic) by Isis to APF shall, in addition to other rights which Isis may have under the lease, result in the automatic ending of the concession (under clause 1.2.2.2 of the lease or as varied by this Deed).”
- [14]Having regard to those matters, it is also necessary to set out various clauses of the lease, some of which were varied by the terms of the deed. The lease relevantly provided:
“1.2 Monthly Tenancy when Lease Expires
1.2.1 If you occupy the Premises after the end of the lease with our consent, you do so as a monthly tenant on the terms of this Lease which apply on the expiry date. We or you may terminate the monthly tenancy on any day by giving one month’s written notice to the other. The tenancy terminates at midnight on the same day of the next month as the day on which the termination notice was served.
1.2.2 Notwithstanding the terms of Clause 1.2.1, the following provisions shall apply during any period of Monthly Tenancy pursuant to Clause 1.2.1: -
1.2.2.1 A CPI increase will apply with effect from 1 October 2015 and annually thereafter should the Monthly Tenancy continue for that period.
1.2.2.2 We acknowledge that time may be required for you to remove your goods and comply with the Provisions of Clause 8.9 (Repair at the End of the Lease) and Clause 8.10 (Your Property at the End of the Lease) and accordingly, provided that You comply with the provisions below, we will not exercise our rights under the Monthly Tenancy to terminate the Lease except that we may give termination of that monthly tenancy so as to expire on the date which is nine (9) calendar months or such longer time as we, in our discretion, think fit from the Expiry Date (“the Concession”).
1.2.2.3 The Concession only applies however, if you comply with the following obligations:-
- (a)That you continue to comply with and do not commit an event of default in respect of the Lease;
- (b)That you work with us during the monthly tenancy to ensure an orderly hand over of the Premises.
- (c)That, pursuant to the Deed of Variation of Filter Press Supply Agreement, Cordalba Composting Pty Ltd A.C.N. 139 754 439 (to be a wholly owned subsidiary of You) take, during the monthly tenancy, an additional 58,400 tonnes minimum of filter press for the crushing period that falls within the 2015 calendar year.
- PAYMENTS BY YOU UNDER THE LEASE
2.1 Base Rent
You must pay the base rent in Item 7 without demand by monthly instalments equal to 1/12th of the base rent in advance on the first day of each month during the lease.
- DEFAULT
11.1 Essential Terms
The essential terms of the lease are Clauses 2.1,…
11.2 Our Right to Terminate
In addition to any other rights and remedies of the lessor, if:
11.2.1 …
…
11.2.7 The rent or any part of it at any time is unpaid for fourteen (14) days after becoming due (whether it has been formally or legally demanded or not).
Then we may at any time (subject to compliance with any applicable law) by any of its servants or other agents re-renter upon the Land at which time the Lease will terminate absolutely but without prejudice to any right of action by us or you in respect of any antecedent breach of the Lease.
Consideration
- [15]It seems clear from the terms of the deed of settlement that the parties themselves considered that APF, after 28 February 2016, occupied the premises as a monthly tenant. Whether that characterisation was legally correct is of course not necessarily determined by the parties’ belief.
- [16]What is clear in relation to the original lease is that:
It expired on 28 February 2016;
It provided that if APF continued to occupy the premises after the end of the lease with the consent of ISIS it did so as a monthly tenant and that either party could terminate that monthly tenancy by giving 1 month written notice.
ISIS acknowledged APF might require some time to remove its goods and make good the tenancy so “provided you comply with the provisions below” ISIS agreed to give 9 months’ notice of termination(my emphasis).
The “provision below” used in that clause was a reference to clause 1.2.2.3 of the lease set out earlier.
The provisions that APF must comply with to get the benefit of the 9 month notice provision, were, inter alia, not to commit an “event of default in respect of the lease”
The term “event of default” is not defined in the lease but
- (a)Clause 11.1 provided that, the terms of Clause 2.1 (to pay monthly rental on the first day of each month) was an essential term of the lease, and
- (b)In addition to any other rights of ISIS if any part of the rent was unpaid for 14 days after becoming due, ISIS had a right to enter upon the land at which time the lease was determined.
- [17]Pursuant to the Deed:
- (i)ISIS and APF acknowledged the lease expired on 28 February 2016.
- (ii)Notwithstanding that expiration, ISIS agreed to APF occupying the premises after that date “as a monthly tenant on the terms of clause 1.2.1 of the lease”. I interpose the consequence of such provision, in my view, is that the parties agreed that APF occupied the premises as a monthly tenancy on the terms of the lease, which provided that either party could terminate the tenancy by giving 1 months’ written notice to the other.
- (iii)Notwithstanding that provision, the effect of clause 1.3 of the Deed was that ISIS acknowledged APF might require time to remove its goods and make good the tenancy, so provided APF complies with “the provisions below” (which as I earlier said is a reference to clause 1.2.2.3 of lease), ISIS would not terminate the lease except that it might give notice of termination of the tenancy on 30 August 2016. I again interpose that such a concession, not to terminate until 30 August, was thus subject to APF complying with clause 1.2.2.3 of the lease.
- (iv)Furthermore, the Deed was deemed to be notice by ISIS to APF of termination of the tenancy on that day, namely 30 August 2016.
- [18]It is important to note that under clause 1.3 of the deed, the words in 1.2.2.2 of the lease “provided that (APF) comply with the provisions below” remained part of the lease agreement. Thus, contrary to the submission of APF, ISIS retained a right to terminate the tenancy by giving 1 months’ notice in writing to APF if APF did not comply, inter alia, with its obligation not to commit an act of default by failing to pay monthly rental on the 1st day of each month. Contrary to the appellant’s submission (at [19] of its counsel's written submission) ISIS did not exhaust its power to terminate the tenancy by exercising its right to terminate on 30 August 2016, a right exercised by the signing of the deed itself. The wording of the deed which I have set out, and of clause 1.2 of the lease as varied by the deed, make that clear.
- [19]If clause 1.3 of the deed is to be given efficacy, clause 1.2.2.2 of the lease, as varied by clause 1.3 of the Deed, applies to the ongoing lease (whether it be a periodic or fixed-term tenancy). Clause 1.2.2.2 of the lease, as amended by clause 1.3 of the deed, must in my view be construed to mean that because of difficulties associated with removal of property of APF from the leased premises, that provided APF, inter alia, paid all due rental as required, ISIS agreed not to exercise its rights to terminate the lease earlier than 30 August 2016. Notice to then terminate was, of course, given by means of clause 1.4 of the Deed itself. The deed thus specifically recognised the right of ISIS to terminate the lease earlier than 30 August if APF did not pay rental as required.
- [20]The words of clause 1.2.2.2 of the lease as varied by the deed, namely, “accordingly, provided that you comply with the provisions below, we will not exercise our right under the Monthly Tenancy to terminate the lease” means that ISIS preserved to itself under the terms of the deed an entitlement to give notice of termination prior to 30 August 2016 only in the event of APF’s default, inter alia, in making rental payments as required. Were that to occur, as did in fact occur, then, pursuant to Clause 7.1 of the deed, the concession under clause 1.2.2.2 of the lease as varied by the deed was ended.
- [21]Despite the fact that the words “the concession”, used in the original clause 1.2.2.2 to describe the agreement by ISIS to give APF 9 months’ notice of termination were part of the words taken from that clause by the deed, nevertheless the words “the concession” were still used in clause 1.2.2.3 of the lease, which continued to apply during the ongoing tenancy, pursuant to clause 3.2 of the deed. That concession could in the circumstances only mean ISIS’ agreement not to terminate until 30 August provided APF complied, inter alia, with its obligation to pay rental on the 1st day of each month.
- [22]The appellant’s counsel submitted that the short-term lease, created for the period post 26 February 2016, was not a tenancy at will but a fixed-term tenancy to 30 August 2016. Counsel submitted it is important to understand the tenancy was one created by the deed and not the lease. He submitted that clauses 1.1 to 1.4 of the deed clearly created a tenancy for a fixed term.
- [23]There is some support for that argument in the provisions of clause 1.4 of the Deed which specifically provides that APF could terminate the “monthly tenancy” earlier than 30 August, but made no similar provision for ISIS to do so. So too clause 2.1 refers to APF’s obligation to remove and repair “by 30 August 2016” or by expiry of the monthly tenancy if APF gives earlier notice of termination” (my underlining). There was no specific provision for earlier termination by ISIS giving such a notice, except in the event of default by APF, as here occurred. A similar reference to APF earlier terminating the tenancy is contained in clause 2.3 of the Deed, set out above.
- [24]The respondent’s counsel submitted that the words of clause 1 of the deed had the following effect:
The original lease expired on 28 February 2016, a point that is not in dispute;
APF thereafter occupied the premises as a monthly tenant and could be given one month’s notice of termination on the terms provided for in clause 1.2.1 of the terminated Lease document, except that if APF complied with the provisions of the Deed (including paying rent as due) ISIS agreed not to exercise its right to terminate earlier than 30 August;
The Deed itself operated as notice of termination of the tenancy on 30 August 2016. On its proper construction the monthly tenancy could not extend past that date, but ISIS retained a right to give written notice of termination earlier than 30 August in the event of breach by APF, by then giving written notice on the terms provided for in clause 1.2.1 of the lease document;
Magistrates Hearing and Decision
- [25]The Learned Magistrate correctly identified that the central issue was whether the ongoing occupation of the land by APF was as a periodic or monthly tenancy, or was as a fixed term tenancy.
- [26]In rejecting the submissions made on behalf of APF, the learned Magistrate said “clause 6.1, 6.2 and 7.1 of the deed clearly contemplates that ISIS could hold APF in breach without further notice if there was a failure to comply with the deed terms.” In my view that finding is consistent with the terms of the deed. His Honour held that the deed meant that, after expiration of the lease, APF would occupy the land on a monthly or periodic basis during what he called the concession period, as long as it wasn’t in breach of the deed. He held that the provision of the concession period did not create a fixed term tenancy. He found the provisions merely provided some outer limit that the month to month arrangement would not go past. He said the parties had the ability to terminate within the concession period. In my view that last statement, whilst true in relation to APF, was subject to a significant limitation in relation to ISIS. Its ability to terminate earlier only arose if APF defaulted in some way e.g. by not paying rental when due. If that occurred then in my view, pursuant to clause 6.2 or 7.1 of the deed, the affect was that APF could, as it did, give notice of termination because the occupation by ISIS was then as a month to month tenant.
- [27]The Learned Magistrates reference to concession period was a reference to the ongoing period of occupation after the cessation of the lease in February up to, potentially, 30 August 2016.
- [28]His Honour then held that the words used in clauses 1.2.1, 1.2.2, 1.2.2.1 and 1.2.2.2 of the lease and clauses 1.2, 1.4, 2.1, 2.3 and 3.2 of the deed “are clear” and “refer to a monthly tenancy;” thus creating a periodic, not a fixed term tenancy.
- [29]His Honour’s reasons could appear to suggest that because the deed, and also correspondence of APF’s solicitor 20 April 2016, refer to a monthly or periodic tenancy that is determinative of the issue. He did however consider the relevant terms of the deed and lease and determined that “the proper construction of the lease and deed in that… when the lease expired, APF would occupy the land on a monthly or periodic basis after the concession period, as long as it wasn’t in breach.”
- [30]Ultimately I accept the conclusion the Magistrate had reached, though I would express it differently. In my view, the effect of APF’s not paying the April rental when due, was that pursuant to clause 7.1 of the deed, the entitlement of APF to occupy the premises up to 30 August 2016 was at an end. Pursuant to clause 1.2 of the deed APF thereafter occupied the premises as a monthly tenant. The proper characterisation of the lease is, as the Learned Magistrate found, that it was a periodic monthly tenancy. To hold otherwise, in my view, ignores the clear wording of the deed and of the lease. The appellant could thus terminate at any time in the event of the non-payment of rent by APF.
Other issues
- [31]There are a number of remaining issues. One of the grounds of appeal was that the Learned Magistrate erred in holding that the notice of termination given by ISIS to APF on 5 April 2016 remained effective, notwithstanding that APF paid, and ISIS accepted, the April payment. This ground is associated with a further ground that His Honour erred in holding that the landlord was not required to provide a notice under s 124 of the Act.
- [32]Section 124 restricts a landlord’s right of re-entry or forfeiture under a lease where the landlord relies on a tenant’s breach of an obligation under the lease as giving the landlord a contractual right of re-entry or forfeiture.
- [33]The Learned Magistrate, however, found that the non-payment of rent as required “brought about an end to any concession found in clause 1.2.2.2 of the lease or its altered form in the deed. And that gave rise to an ability to terminate upon one months’ notice. The termination was valid.” His Honour said that ISIS’s acceptance of overdue rental, prior to service of the notice of termination did not “take the form of some waiver and no notice of breach was required.”
- [34]The basis for this finding was that the failure to pay rental as required meant that pursuant to the terms of the deed “the concession (under clause 1.2.2.2 of the lease or as varied by (the) deed)” automatically ended.
- [35]Consequently, the party’s contractual entitlements were governed by clause 1.2.1 of the lease, in accordance with clause 1.2 of the deed. Those provisions provided that APF occupied the premises as a monthly tenant.
- [36]The requirements of a notice of termination of a monthly tenancy are governed by s 130 of the Act. The effect of that section is that ISIS was able to terminate by notice in compliance with ss 131, 132 and 134 of the Act. The notice to quit given on 5 April required vacant possession from 31 May. There was no allegation the notice did not comply with the requirements of the Act in the event, as I have found, that it was a monthly tenancy.
- [37]The Learned Magistrate’s determination that ISIS did not need to comply with the provisions of s 124 of the Act was in my view entirely correct. The effect of the breach by APF was that ISIS did not need to proceed under that section. Rather, it effectively restored APF to its position prior to the deed, that is, occupying as a monthly tenant. The notice to quit was validly given and did not depend upon APF then (that is, on 5 April) being in breach.
- [38]A further ground of appeal relates to the following finding of the Learned Magistrate:-
“The difficulties in transferring APF property from the site where (sic) obviously contemplated in the lease and the deed and it seems apparent that a period of 9 months would be required to transfer the property from the site to some new site. APF has found a new site and now has development approval but says this approval was stymied by ISIS. APF says that this has led to a delay in moving the property and will take at least 3 months from 10 June 2016 to do this.
If that is so, then that would take APF’s occupation of the land past 30 August 2016, the date they contend is the time at which the lease would have ended. Mr Gorringe for ISIS says moving the property would take one week to move. No one was cross-examined on this point and it is difficult to resolve.
…
If this is the cause to be shown to enliven the discretion not to issue the warrant, then I’m not satisfied that reasonable cause has been shown. These matters are not too complicated to be dealt with summarily and I find that I can deal with these matters in the way that this matter has proceeded.”
- [39]APF appeals on the basis that his Honour erred in law in holding that the conduct of APF was such as to amount to “other grounds” why the complaint should be dismissed. In fact it appears to me that what his Honour really found was that APF had not demonstrated “other grounds” as to why the warrant should not issue.
- [40]Each of the parties had filed affidavits dealing with this issue in the proceedings below. None of the deponents was cross-examined, a point noted by the Learned Magistrate.
- [41]The appellant submits that the material before His Honour showed “a strong case that ISIS had deliberately frustrated the attempts by APF to locate alternate premises and move there.” It was submitted that it was sufficient for APF to have showed that the conduct of ISIS was such as to be the cause, in whole or in part, of the inability of APF to depart from the property.
- [42]In considering the submission it is important to note the provisions of s 145(1):
“145Hearing and determination
- (1)At the hearing and upon proof of—
- (a)the tenancy; and
- (b)the expiry or determination, by notice to terminate or demand of possession, of the tenancy; and
- (c)the lawful right of the landlord as against the defendant to possession; and
- (d)the failure of the defendant to deliver up possession; and
- (e)(where the defendant does not appear in person or by counsel or solicitor) due service of the summons upon the defendant a reasonable time (being in no case less than 7 days) before the time appointed for the defendant’s appearance;
it shall be lawful for the court, unless the defendant appears and shows to its satisfaction reasonable cause why such a warrant should not be issued, or the court is otherwise satisfied that there is such cause, to order that a warrant be issued against the defendant requiring and authorising any person to whom it is addressed to take and give possession of the land the subject of the complaint to the landlord or, where the complaint was made by an agent, the agent.”
- [43]APF submits that the Learned Magistrate ought to have been satisfied that APF had shown to the court’s satisfaction “reasonable cause why such a warrant should not be issued.”
- [44]I have set out already what his Honour found about these matters. No doubt the fact that none of the deponents was cross-examined about the issues made the determination of whether ISIS’s conduct could have justified the Learned Magistrate in refusing to issue the warrant difficult. One suspects that the parties were significantly more concerned about issues associated with construction of the contractual arrangements than with the contested factual matters concerning APF moving from the subject premises, to alternate premises.
- [45]Before the Learned Magistrate, APF’s counsel submitted that what will amount to “cause” to refuse a warrant was considered by the Full Court in Barwick & Ors v TA Field (Brisbane) Pty Ltd; Ex Parte TA Field (Brisbane) Pty Ltd [1960] Qd. R. 388 where Mansfield CJ, with whom Philp and Hanger JJ agreed said:
“I therefore hold that ‘reasonable cause’ means something which affects the landlord’s right to possession, and if the claim of the tenant raises matters affecting that right which the magistrate considers are too complicated to be determined in summary proceedings, or which will involve the exercise of a jurisdiction which he lacks, the magistrate would be justified in refusing to make an order.”
- [46]Counsel for APF submitted that the conduct of ISIS “amounts to representation to the effect that whatever words are used to describe the occupation by APF of the land, ISIS would allow a reasonable time to move, and that time has been set at 30 August 2016… this argument could not be conveniently held in the Magistrates Court, and for that reason, the relief should not be granted.”
- [47]It must be noted however that the Magistrate specifically said that in his opinion the matter was not too complicated to be determined summarily. His decision to issue the warrant and to refuse APF’s contention that in the exercise of his discretion he should not do so, was not because it was too complicated, but was because the parties had determined not to cross-examine the deponents, and in that circumstance, he found APF had not shown that a warrant should not issue.
- [48]It should be noted that under the notice of termination of 5 April, APF was given to 31 May, a period of 8 weeks, to move.
- [49]Furthermore, pursuant to the deed the 9 month notice stipulated in clause 1.2.2.2 of the lease, provided the tenant complied with relevant provisions of the lease, was, by agreement, varied. Pursuant to the deed, as I have previously set out, the agreed date beyond which APF would have no right of occupancy was 30 August 2016, (significantly less than 9 months after the deed was entered into) but that right was itself subject to APF’s compliance with its obligations under the deed. The parties in fact agreed, as I have found, that if APF defaulted it occupied the premises only as a monthly tenant, with the limited security that such a tenancy gave. Accordingly, any argument that the parties knew APF required time to vacate and that should be recognised by refusing the warrant flies in the face of what the parties specifically agreed upon.
- [50]The appellant’s reliance on the passage from Barwick’s case earlier set out suggests that APF considered that the Magistrate ought to have considered the matter was “too complicated” to be determined in summary proceedings. Why that is so is not apparent to me. The Learned Magistrate specifically disavowed such a suggestion, saying “these matters are not too complicated to be dealt with summarily.” His decision also refers to the affidavit of Mr Gorringe, the CEO of ISIS, who was familiar with APF’s business, and also stated that it would take one week to move from the premises. The Learned Magistrate referred to the failure to cross-examine those who had provided affidavits on this point.
- [51]In such circumstances, His Honour held that he was “not satisfied that reasonable cause had been shown” not to issue the warrant.
- [52]Having regard to the way that APF conducted its case below, it seems to me that his Honour was correct in so concluding. There was no demonstrated basis for exercising his Honour’s discretion to refuse the warrant.
Conclusion
- [53]In the circumstances, the appeal should be dismissed.
- [54]I order that the appellant pay the respondent’s costs of and incidental to the appeal, to be assessed on the standard basis. In so concluding I have had regard to the approach of courts to the award of indemnity costs, as sought by the respondent’s counsel, but do not think that this is a case where the appellant’s argument was so obviously incorrect or untenable that indemnity costs ought to be awarded.