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YJ Pty Ltd v Huang's Properties Pty Ltd[2018] QDC 240

YJ Pty Ltd v Huang's Properties Pty Ltd[2018] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:

YJ Pty Ltd & Ors v Huang’s Properties Pty Ltd [2018] QDC 240

 

PARTIES:

YJ PTY LTD ACN 158 506 186

(first appellant)

and

JUDY LEE & HAE JUNG YOON

(second appellants)

v

HUANG’S PROPERTIES PTY LTD ACN 136 043 519

(respondent)

 

FILE NO/S:

D203 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal – s 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Hearing on 16 February 2018, further written submissions exchanged on 2 March 2017, 2 August 2018 and 6 August 2018.  Further oral hearing on 7 September 2018.

JUDGE:

Muir DCJ

ORDER:

1.The appeal is allowed.

2.Orders 1 and 2 of the Magistrates Court Orders dated 7 July 2017 are set aside.

CATCHWORDS:

APPEAL – APPEAL AGAINST ORDERS OF MAGISTRATE FOR RECOVERY OF POSSESSION AND DELIVERY OF POSSESSION – where parties entered into a fixed term written lease terminated by forfeiture – where appellants were in arrears of rent – where appellants were served with a notice to remedy – where appellants were served with a notice to tenant – whether notice to tenant was valid – whether lease was validly executed – whether Magistrate had jurisdiction to make summary orders for recovery and possession – where first appellant vacated premises as a result of orders – where new tenants now occupying premises – whether there is utility in the appeal.

LEGISLATION:

Corporations Act 2001 (Cth), ss 127, 129

District Court of Queensland Act 1967 (Qld), s 68

Justices Act 1886 (Qld), ss 222, 223, 225

Magistrates Court Act 1921 (Qld), ss 14, 45

Property Law Act 1974 (Qld), ss 46, 124, 131, 137, 141, 142

Summary Ejectment Act of 1867, s 2

CASES:

Attorney General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342

Australian Prime Fibre PL v ISIS Central Sugar Mill Co Ltd [2017] QDC 186

Black & Decker Inc v GMCA Pty Ltd (No 2) [2008] FCA 504

Bode v Commissioner of Police [2018] QCA 186

Bond University Ltd v Limgold Pty Ltd & Ors [1997] QSC 227

Bond University Ltd v Limgold Pty Ltd & Ors [1998] QCA 214

Boz One Pty Ltd v McLellan & Ors [2015] VSCA 68

Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153

Brown v Salkall [1923] QWN 7

Bruton v London and Quadrant Housing Trust [1999] 3 WLR 150

Canas Property Co Ltd v KL Television Services Ltd [1970] 2 QB 433

Commissioner of Police v Al Shakarji [2013] QCA 319

Edwards v Horrigan [1923] St R Qd 8

Fox v Percy (2003) 214 CLR 118

Kumaragamage v Rallis [2001] NSWSC 466

Leisure Kart City Pty Ltd v Professional Auction & Valuation Services Pty Ltd [2013] QCA 298

Loynes v Hanman [1922] St R Qd 220

Mansergh v Rimell 1884 W.N. 34

Martin v New South Wales [2011] NSWLEC 50

McDonald v Tinbilly Travellers Pty Ltd (2008) 168 IR 468

Munro v Dare [1934] St R Qd 332

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435

Powell v Queensland University of Technology [2017] QCA 200

Pozzan v Gibbons (2006) 200 FLR 287

Richard Clarke & Co Ltd v Widnall [1976] 1 WLR 845

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

Sorensen v Animanto Pty Ltd [2008] QDC 219

United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323

Warren v Coombes (1979) 142 CLR 531

COUNSEL:

J Lovel (sol) for the first appellant

G Radcliff for the respondent

SOLICITORS:

Byrne & Lovel Lawyers for the first appellant

Whitehead Crowther for the respondent

Introduction

  1. [1]
    This is an appeal under s 222 of the Justices Act 1886 (Qld) (“the JA”) against a decision of a learned Magistrate made on 7 July 2017. The appealed Orders[1] are for the summary recovery of possession and the issuing of a warrant for the first appellant to deliver up possession of Premises leased from the respondent Huang’s Properties Pty Ltd, under a written Lease agreement dated 17 October 2012. 
  1. [2]
    The primary ground of appeal is that the summary recovery of possession provisions of the Property Law Act 1974 (Qld) (“the PLA”) (ss 141,142) do not apply to the facts of this case. During the hearing before me, a further ground that the purported notice of termination of the Lease was invalid was raised by the first appellant.[2]  This ground was premised on the notice to terminate failing to stipulate a reasonable period and a date of termination, in breach of ss 137 and 131(2)(c) of the PLA respectively.
  1. [3]
    The primary ground of appeal is contested by the respondent on two bases.[3]  First, that the learned Magistrate had jurisdiction to make the Orders as the Lease was a fixed term lease that had been determined by a notice to terminate and a demand of possession under s 141 of the PLA. Second, if the Magistrate did not have the jurisdiction to make the Orders, there is no utility in the appeal because [in compliance with the Orders] the first appellant vacated the Premises on 12 July 2017.
  1. [4]
    As to the second ground of appeal, the respondent maintained that the termination was valid and within the express terms of the Lease.

Nature of the appeal

Jurisdictional question

  1. [5]
    The respondent initially argued that the appeal ought to have been made under s 45(1)(b) of the Magistrates Court Act 1921 (Qld) because it concerned a decision in relation to the recovery of possession of land where the value of the land exceeds the minor civil dispute limit.[4]
  1. [6]
    Where the issue of jurisdiction is raised, a court must be satisfied of its jurisdictional power before it may proceed.[5] At the hearing before me this jurisdictional point was not pressed.[6]  In my view, for the reasons discussed below, this belated concession was properly made.
  1. [7]
    Section 222 of the JA relevantly states:

“If a person feels aggrieved as a complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [8]
    The expression “breach of duty” is defined by s 4 of the JA to mean:

“Any act or omission (not being a simple offence or a non-payment of a mere debt) on a complaint of which a Magistrates Court may make an order on any person for the payment of money or for doing or refraining from doing any other act.” 

  1. [9]
    In the present case, the complaint for recovery of possession and the summons for complaint sought orders that the first appellant quit and deliver up possession of the Premises. The summons also sought judgment against the first appellant (as lessor) and Ms Lee and Ms Yoon (as guarantors) for outstanding rent and mesne profits. Whilst the learned Magistrate was prepared to make orders for the summary recovery of possession, he was not satisfied that summary judgment for the monetary amounts claimed should be granted and he made directions for the exchange of pleadings in relation to that aspect of the dispute between the parties.[7]
  1. [10]
    The appealed Orders were plainly for the first appellant to do an act that is to vacate and deliver the Premises to the respondent. Such orders fall squarely within the “breach of duty” definition in the JA referred to above.
  1. [11]
    It follows, and I am satisfied, that the appeal was correctly brought under s 222 of the JA.

Appeal by way of rehearing

  1. [12]
    This appeal is by way of rehearing on the original evidence given in the proceeding before the Southport Magistrates Court.[8]  A “real review” of the proceedings below and the Magistrate’s reasons, giving due respect and weight to the Magistrate’s decision must be conducted.[9]
  1. [13]
    Recently, McMurdo JA in Bode v Commissioner of Police [2018] QCA 186[10] restated the task of a court conducting an appeal by way of rehearing, as described by the High Court in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 as follows:[11]

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.” [footnotes omitted] [emphasis added]

  1. [14]
    On appeal, this court may confirm, set aside, or vary the appealed order or make any other order considered just.[12] 

Factual context

The Lease

  1. [15]
    At the hearing below, a 23 page written document entitled Lease/Sub Lease document was tendered into evidence by the respondent (without objection) and relied upon by all parties as being the lease agreement between them. Evidence about the execution of the document was not before the court. The Lease was signed on behalf of the respondent on 22 October 2012, by a person who printed their name under the signature as “L. X Huang” as a director stating it was “signed pursuant to section s 127 of the Corporations Act 2001 (Cth)”.  Two different people appear to have signed the document on behalf of the first appellant on 12 October 2012 (as two different signatures are apparent), although the names of these individuals are not printed under their signatures. They too have executed the document as directors and “pursuant to section s 127 of the Corporations Act 2001 (Cth)”.
  1. [16]
    The final page of the Lease provided that the document is being executed as a Deed. Despite a space for a witnessing officer, the signatures were not witnessed, and the Lease was never registered.
  1. [17]
    On the rehearing, I raised an issue about whether the Lease was properly executed, and if not, the effect of such a finding on the appeal.[13]
  1. [18]
    The respondent submitted that I should proceed on the basis that the Lease was validly executed because the hearing below proceeded on that basis. The first appellant conceded that the hearing below proceeded on such a basis but referred to the obligation of this court on appeal to conduct a “real review’ of the evidence and reach its own conclusions, including on the issue of execution.[14]  In my view, on this rehearing, I must turn my mind to whether the Lease was validly executed and, if not, the effect (if any) of an invalid execution.

Was the Lease validly executed?

  1. [19]
    At common law, there are numerous formal requirements for a deed to be validly executed. Relevant to this case is not the lack of any witness but the requirement that a deed must be sealed. The Lease has not been sealed nor expressed to be sealed. In Queensland, the common law requirements for a deed are displaced if the method of execution complies with either s 46 of the PLA or s 127 of the Corporations Act 2001 (Cth).
  1. [20]
    None of the methods of execution under s 46 of the PLA are argued in the present case and there is no evidence of a resolution by either company authorising execution under s 46(6).
  1. [21]
    Section 127 of the Corporations Act provides for execution of documents including deeds by the company itself as follows:

“Execution of documents (including deeds) by the company itself

  1. (1)
    A company may execute a document without using a common seal if the document is signed by:

(a)2 directors of the company; or

  1. (b)
    a director and a company secretary of the company; or
  1. (c)
    for a proprietary company that has a sole director who is also the sole company secretary - that director.

Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.

….

  1. (3)
    A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).
  1. (4)
    This section does not limit the ways in which a company may execute a document (including a deed).”
  1. [22]
    Under s 129(5):

“A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1).  For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices.”

  1. [23]
    Under s 128(1) and (4):

“(1) A person is entitled to make the assumptions section 129 in relation to dealings with a company. The company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

….

  1. (3)
    A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.”
  1. [24]
    At the time of the execution of the document in October 2012:[15]
  1. (a)
    The first appellant had three directors and no appointed company secretary.  Ms Lee was appointed on 25 September 2012; Kyunghee Jeong was appointed on 22 May 2012 and ceased being a director on 29 June 2016; and Hae Jung Yoon was appointed on 22 May 2012 and ceased being a director on 7 February 2013;
  1. (b)
    The respondent had two directors, both of whom were also company secretaries during their directorships.  Mrs Luan Xiang Huang was appointed 24 March 2009 and ceased being a director on 24 December 2012 and Xiao Feng Huang was appointed on 18 June 2009 and ceased being a director on 15 August 2013.
  1. [25]
    In my view, the clear inference to be drawn in this case is that the Lease was executed on behalf of the respondent by L. X Huang who was also a company secretary at the time. Arguably, there has not been strict compliance with s 127(1)(b) of the Corporations Act, as on a plain and ordinary reading it requires that there be two signatures, one of a director and one of a company secretary. But in my view, an alternative reading is that it allows for the document to be signed by one person who is a director and a company secretary. I prefer the latter interpretation. It follows in my view, and I find, that the Lease was validly executed by the respondent.
  1. [26]
    From the first appellant’s perspective, whilst there is no evidence of who signed as a director, there is a reasonable inference open (and I find accordingly), that the signatures were of two of its then three directors and the Lease was validly executed by the first appellant.
  1. [27]
    If I am wrong in my analysis and findings above, and there are deficiencies in the execution of the Lease, it remains my view for the further reasons discussed below, that the Lease is binding and enforceable.
  1. [28]
    Section 127(1) of the Corporations Act is not mandatory. Section 127(4) provides that the section does not limit the way in which a company may execute a document including a deed.[16]
  1. [29]
    In Pozzan v Gibbons (2006) 200 FLR 287, Perry J observed that s 127(4) of the Corporations Act makes it plain that a company may execute a document in any way other than that prescribed in s 127(1) so long as it is “legally efficacious”.[17]  In doing so, he held that a loan agreement which had not been “executed as a deed” contrary to s 127(3) of the Corporations Act, was nevertheless binding because another statute provided that notwithstanding the defective execution, the execution would be taken to be valid if it appeared from evidence external to the deed that the party intended to be bound by it.[18]
  1. [30]
    In McDonald v Tinbilly Travellers Pty Ltd (2008) 168 IR 468, the Queensland Court of Appeal upheld the decision of the Queensland Industrial Relations Commission that a deed of settlement entered into by the respondent was not invalid despite having been signed by only one of the respondent’s directors because the director who executed the document had implied (actual) authority to do so. 
  1. [31]
    In Martin v New South Wales [2011] NSWLEC 50, Preston CJ observed that the benefit of a company executing a document in accordance with s 127(1) or (2) was that people would be able to rely on the assumptions in s 129(5) or (6) of the Corporations Act.[19]  Relevantly, the Chief Justice also observed that s 127(4) expressly provided that s 127 did not require a company to execute a document in one of the ways specified in s 127(1) or (2) and, therefore, a failure to comply with those sections would not cause the execution of the document to be ineffective at law.[20]
  1. [32]
    In the present case, both the first appellant and the respondent acted at all relevant times on the basis that a validly executed lease had been entered into. All the evidence points to the parties intending to be bound by the terms of the Lease and in fact acting accordingly. Further, under s 129(5), each of the parties were entitled to and in this case did assume that those executing the Lease had the authority to do so pursuant to s 127 of Corporations Act.
  1. [33]
    It follows and I find that the Lease is valid.

Terms of the Lease

  1. [34]
    The Lease was a fixed term lease for five years, commencing on 17 October 2012 and expiring on 16 October 2017 (with a further five year option). The terms of the Lease included the payment of rent of $105,530.88 for the first year to be paid in monthly instalments. The rent was subject to an increase of 4% per annum which did not occur.
  1. [35]
    From October 2012, the first appellant ran a Korean barbeque restaurant called Yi Dynasty from the Premises and paid rent and outgoings in accordance with its obligations under the Lease. Subject to an alleged right to a set-off, as at 20 June 2017, the respondent had not paid rent or outgoings since about 6 April 2017.

Notice to Remedy

  1. [36]
    On 9 May 2017, the respondent’s solicitor served the first appellant with a Form 7 Notice to Remedy Breach of Covenant under s 124 of the PLA requiring it to pay the sum of $47,955.26 for outstanding rent and outgoings “as set out in the annexed schedule” and a further sum of $550 for legal costs, within 14 days. There was no schedule attached to the Notice to Remedy in any of the material before the Magistrate.[21] The Notice to Remedy was sent by registered post to the registered office of the first appellant. 
  1. [37]
    On 22 May 2017, the first appellant wrote to the respondent’s solicitors in response to the Notice to Remedy, denying it owed the amount alleged (or any amount at all) and stating that the Notice to Remedy was ineffective, improper, excessive and unprofessional. The crux of the first appellant’s articulated position was an alleged entitlement to set-off the amount owing against an amount of $102,810.45 said to be owing to the first appellant for rectification work required for water leakage problems, business disruption due to this water leakage and the nuisance of illegal accommodation above the restaurant and excessive council and water rates. This letter also threatened to report the respondent’s solicitor to the Legal Services Commissioner.

By a letter of response dated 2 June 2017 the respondent’s solicitors denied any entitlement to such a set-off. This letter also referred to the threatened complaint to the Legal Services Commissioner as being made for the ulterior purpose of trying to obtain a strategic advantage against someone else which “….only has the effect of aggravating your landlord’s lawyer.”

 Notice to Tenant (of termination of the Lease)

  1. [38]
    At an unknown time on 5 June 2017, the respondent’s solicitor Mr Crowther attended at the Premises with Ms Huang and posted a Form 8 Notice to Tenant under s 131 of the PLA dated 5 June 2017 on the front door of the restaurant. The Notice to Tenant relevantly stated that “your lease is terminated” and “I give you notice to deliver up possession of the Premises which you hold as tenant, on 5 June 2017.”  At the same time, a locksmith opened the Premises and changed the locks in the presence of Ms Huang and Mr Crowther.  At 1.41pm on 5 June 2017, the respondent’s solicitors emailed a letter to Ms Lee enclosing the Notice to Tenant, advising that a copy had been affixed to the front door and that all the locks had been changed. This letter also stated that “we place you on notice that it is a criminal offence for you or anyone on your behalf to attempt to regain entry to the property without our client’s consent.  If that occurs, our client will immediately report the matter to the Southport police to have charges laid.” 

Is the Notice to Tenant valid?

  1. [39]
    It is necessary at this point to address the belated issue raised by the first appellant as to the alleged invalidity of the Notice to Tenant.[22]
  1. [40]
    The Notice to Tenant is dated 5 June 2017 and, after identifying the Premises, relevantly sets out “Your lease is terminated” and below that, “I give you notice to deliver up possession of the Premises which you hold as tenant, on 5 June 2017.”
  1. [41]
    The first appellant submits that the Notice to Tenant is invalid and of no effect because:
  1. (a)
    it did not give a reasonable period of notice of termination as required by s 137 of the PLA; and
  1. (b)
    it did not specify a date of termination as required by s 131(2)(c) of the PLA.
  1. [42]
    The first appellant submits that in the absence of a valid termination of the Lease, the Lease continued.
  1. [43]
    The appellants submit that the Notice to Tenant did not provide any period of notice whatsoever and resulted in the immediate forfeiture of the first appellant’s Lease including the remaining five year option and the immediate closure of the first appellant’s restaurant without notice in circumstances where the respondent knew (through the correspondence) that there were reasons why the rent had not been paid. The first appellant also argued that the lack of any period of notice deprived the first appellant of an opportunity to seek relief against forfeiture before termination.
  1. [44]
    In arguing that there was not reasonable notice under s 137 of the PLA, the first appellant relied on the decisions of Bond University Ltd v Limgold Pty Ltd & Ors [1997] QSC 227 and Bond University Ltd v Limgold Pty Ltd & Ors [1998] QCA 214 where it was upheld on appeal that three years notice of termination was a reasonable period of notice to be given to terminate the tenancy at will of the tenant’s university campus.  This decision, as the respondent correctly submits in my view, is distinguishable from the present proceeding because it concerned a tenancy at will and further, the lease involved did not contain a clause such as clause 5.1 of the present Lease. 
  1. [45]
    Section 137 of the PLA relevantly provides as follows:

“137 Notice to terminate other tenancies

  1. (1)
    A notice to terminate a tenancy, including a tenancy at will, must be for a reasonable period.
  1. (2)
    What constitutes a reasonable period of notice depends on the circumstances, including the nature of the tenancy, the circumstances surrounding the creation of the tenancy, the terms (if any) of the tenancy, and any proper implications from the agreement (if any) of the parties with respect to the tenancy.
  1. (3)
    Subsection (1) does not apply to—
  1. (a)
    a tenancy for which a period of notice has, expressly or impliedly, been agreed on by the parties; and
  1. (b)
    a weekly, monthly, yearly or other periodic tenancy subject to this Act with respect to notices to terminate; and
  1. (c)
    a tenancy at will arising because of the abolition by this Act of the implication of a tenancy from year to year.” [emphasis added]
  1. [46]
    The first appellant submits that s 137(3) does not apply because there is no evidence the first appellant expressly or impliedly agreed on a period of notice for the purpose of ss (1)(a).
  1. [47]
    This submission, in my view, overlooks the express terms of the Lease between the parties in particular clause 5.1 which relevantly states:

“5. TERMINATION:

5.1 TERMINATING EVENTS

  1. (a)
    Breach of Lease:

The following will be a breach of this Lease”

  1. (i)
    Failure to Pay Rent:

If the Lessee fails to pay any instalment of rent on the due date;

  1. (ii)
    Unremedied Breaches of other Terms of this Lease:

If the Lessee in any other case apart from paragraph (a) above, the Lessee has breached this Lease, but has failed to remedy that breach within twenty eight (28) days after the service of a written notice by the Lessor upon the Lessee to that effect;

  1. (iii)
    Bankruptcy:

If

  1. (1)
    the Lessee becomes bankrupt or assigns its estate for the benefit of its creditors;
  2. (2)
    in the case of a company a liquidator, provisional liquidator, receiver or receiver and manager, is appointed.
  1. (b)
    Consequences:

Where there is a breach of the Lease pursuant to paragraph (a) above it will be lawful for the Lessor (notwithstanding he will have failed to take advantage of a previous default of a like nature) by a notice of fourteen (14) days to the Lessee that unless the said breach is remedied within the said fourteen (14) days to immediately:

  1. (i)
    Termination:

terminate the lease; and

  1. (ii)
    Entry into possession:

enter by force if necessary into and upon the Premises in the name of the whole and the same to have again repossess and enjoy as of its former estate notwithstanding anything to the contrary herein contained or implied and ownership and possession of all the plant, equipment and associated chattels of the Lessee shall be automatically transferred to the Lessor. 

The provisions of this Clause are in substitution for the powers of re-entry under Section 107 of The Property Law Act 1974 and the provisions of the said section are expressly excluded from this Lease.” 

  1. [48]
    On the uncontroverted evidence, the rent or part of it was unpaid. On 9 May 2017, the first appellant was served with a notice under s 124 of the PLA (the Notice to Remedy) requiring it to pay outstanding rent and outgoings within 14 days. This notice also stated “NOTE: The lessor will be entitled to re-enter or forfeit the lease in the event of the lessee failing to comply with this notice within a reasonable time – see section 124 of the Property Law Act 1974.” The first appellant did not comply with the Notice to Remedy.
  1. [49]
    By the terms of clause 5.1 of the Lease, the parties expressly agreed that the respondent was entitled to immediately terminate the Lease and take possession of the Premises.
  1. [50]
    I find that the Lease expressly gave the Landlord the right to terminate immediately after giving 14 days’ notice. I also find that the respondent gave such notice by the Notice to Remedy issued under s 124 of the PLA. As the parties had agreed that no notice was required to terminate after service of the Notice to Remedy, the issue about what a reasonable period was in the circumstances falls away. The period of notice agreed upon under s 137(3)(a) was effectively no notice.
  1. [51]
    It follows and I find that the Notice to Tenant complied with s 137 of the PLA and was a valid notice of termination.
  1. [52]
    The first appellant asserts that the alleged lack of notice of termination deprived the first appellant of an opportunity to seek relief against forfeiture. Given my findings that no notice was necessary under the Lease, it is not necessary to determine this ground. But in my view it is relevant to observe that the first appellants did not lose its right to seek relief against forfeiture after the Lease was terminated. The evidence was that after the termination and the notice to deliver up possession on 5 June 2017, the first appellant re-entered and remained in the Premises until shortly after the Orders were obtained on 7 July 2017. The first appellant was given an adjournment to obtain legal advice before the Orders were made. There is no evidence of the first appellant’s capacity or willingness to pay moneys owing in respect of rent or to pay the moneys into court which is usually a necessary requirement to successfully obtaining an order for relief of forfeiture.
  1. [53]
    The first appellant also argued that the Notice to Tenant was invalid because it did not identify any date on which the Lease was said to terminate in breach of s 131(2)(c) of the PLA. This section provides that the termination shall state the date on which the tenancy is to terminate or that the tenancy is to terminate on the last day of the period of the tenancy next following the giving of the notice. The form of notice of termination is discretionary under s 131(4). The content in s 131(2) is mandatory.[23]
  1. [54]
    The Notice to Tenant is dated 5 June 2017. It clearly states (in the present tense): “Your lease is terminated.” It also states the Premises are to be delivered up on 5 June 2017.
  1. [55]
    There is nothing ambiguous or misleading about the Notice to Tenant. In my view there is no force to the appellants’ submission that the Notice to Tenant did not identify the date of termination. The date of termination of the Lease is clear on the face of the Notice to Tenant to be 5 June 2017 and I find that the Notice to Tenant is not invalid for a breach of s 131(2)(c).
  1. [56]
    It follows and I find the Lease was validly terminated by a notice to terminate given by the Notice to Tenant on 5 June 2017.
  1. [57]
    It is relevant at this juncture to characterise such a determination.

Was the Lease determined by forfeiture?

  1. [58]
    A lease may be determined by forfeiture. Forfeiture has been described as a mode of determination not often appropriate to tenancies other than leases for a fixed period.[24]  The meaning of ‘forfeiture’ was considered in Richard Clarke & Co Ltd v Widnall [1976] 1 WLR 845. In that case, a lease for a commercial premises provided for two ways in which the lessor could re-enter upon a breach occurring: by immediately repossessing the premises, or alternatively, by giving the tenant three months’ notice in writing to determine the tenancy unless the breach was remedied.  The Court agreed with the landlord’s submission that, “the essence of a forfeiture, in the law of landlord and tenant, is that it takes effect immediately: not immediately upon the breach of covenant occurring, but immediately upon the landlord’s giving an unequivocal indication, by words or conduct, to the tenant of the landlord’s intent to treat the breach as a forfeiture of the tenant’s right to continuing possession”.[25]
  1. [59]
    As outlined above, on 9 May 2017, the respondent’s solicitor served the first appellant with a Form 7 Notice to Remedy Breach of Covenant under s 124 of the PLA, requiring the first appellant to pay the sum of $47,955.26 for outstanding rent and outgoings “as set out in the annexed schedule” and a further sum of $550 for legal costs, within 14 days.
  1. [60]
    On 5 June 2017, the respondent’s solicitor attended at the Premises and posted a Form 8 Notice to Tenant under s 131 of the PLA. As discussed above, in my view, the Lease was validly terminated by notice to terminate given by the Notice to Tenant on 5 June 2017.
  1. [61]
    It follows that by terminating the Lease in reliance on the first appellant’s failure to remedy the breach of covenant as required under the s 124 notice, the respondent determined the tenancy by forfeiture and exercised its right to immediately re-enter the Premises upon identification of a breach of covenant under the Lease.
  1. [62]
    This conclusion is hardly controversial. Both parties agree that the first appellant had a right to relief against forfeiture in this case.

Events after the Notice to Tenant

  1. [63]
    At an unknown time but later on 5 June 2017, the first appellant broke the locks and re-entered the Premises. Ms Huang reported the matter to the Queensland police that day but there was no evidence of any charges being laid.
  1. [64]
    Following a contested hearing for summary possession of the Premises discussed under that heading below, the first appellant vacated the Premises on 12 July 2017. Whilst there is no direct evidence as to why the first appellant vacated, the first appellant’s opposition to the application and the evidence about what had occurred prior to the Orders being made, easily lead to an inference that the first appellant did not want to vacate the Premises. It follows and I find that the first appellant vacated the Premises as a result of the Orders for it to do so.
  1. [65]
    On 1 October 2017, the respondent entered into a three year lease with a third party.[26]    

The contested summary application for recovery of possession of the Premises

  1. [66]
    On 20 June 2017, the respondent filed a Form 10 Version 1 Complaint for Recovery of Possession under s 143 of the PLA and a Form 11 Version 1 Summons for Complaint under s 144 of the PLA, returnable in the Southport Magistrates Court on 30 June 2017.
  1. [67]
    The Complaint for Recovery of Possession was premised on the Notice to Tenant and the subsequent failure by the first appellant to quit and deliver up possession of the Premises.
  1. [68]
    The Summons for Complaint commanded the appellants to show cause why inter alia:
  1. (a)
    a warrant to eject the first appellant from the Premises should not be issued; and
  1. (b)
    the respondent should not have judgment in the sum of $59,035.23 for rent and mesne profit against the first appellant pursuant to the Lease and the second appellant pursuant to the Guarantee.

The hearing before the Magistrate

  1. [69]
    The Magistrate heard the matter summarily relying on the uncontroverted submissions of the respondent’s solicitor both in writing and orally that the Magistrates Court had the requisite jurisdiction. The issue of jurisdiction was not challenged by the then unrepresented first appellant.
  1. [70]
    The hearing before the learned Magistrate commenced on 30 June 2017 and was adjourned at the Magistrate’s instigation until 7 July 2017 to allow the first appellant the opportunity to obtain legal advice and to provide further “information” to the Court to show reasonable cause as to why a warrant should not be issued.[27] 
  1. [71]
    The respondent’s case against the first appellant was relatively simple. The first appellant was in arrears in respect of rent and outgoings to the sum of $59,035.23. The relevant notices under the PLA had been served. The first appellant failed to deliver up possession and the respondent was entitled to judgment for payment of the amount outstanding and an order for recovery of possession of the Premises. Ms Lee and Ms Yoon had guaranteed the obligations of the first appellant under the Lease, so the respondent also submitted that it was entitled to a judgment for payment of the amount outstanding against them.
  1. [72]
    The first appellant’s case was that it did not owe any monies to the respondent because it was entitled to a set-off for a number of reasons including: the respondent had in effect “double dipped” on outgoings under the Lease by directing the first appellant to pay bills issued by the Gold Coast City Council for water and rates, whilst the respondent unilaterally applied the first appellant’s rent payment to the same bills; that the respondent was unlawfully renting an upstairs part of the building as a residence and those tenants were consuming water that the first appellant was being charged for; that a shower used upstairs had leaked causing the first appellant to incur a loss of business and repair costs; and the respondent had failed to issue the a tax invoice so a tax credit could be claimed.
  1. [73]
    During the course of the hearing it appears to have been accepted by the parties that it was not appropriate for judgment to be entered on a summary basis for the outstanding rent and outgoings under the Lease.

Magistrate’s Reasons

  1. [74]
    In his ex-tempore Reasons delivered on 7 July 2017, the learned Magistrate referred to the concessions made before him by the parties and observed that even accepting the first appellant’s alleged entitlement to several set-offs, there remained a substantial amount of money outstanding to the respondent.
  1. [75]
    The Magistrate also referred to clause 2.1(d) of the Lease which states as follows:

“Payment must be made to the lessor or in such other manner as the lessor may from time to time in writing direct. Except as otherwise provided in this Lease. Rent must be paid without any deduction or abatement whatsoever and without prior demand made by the Lessor.”

  1. [76]
    The Magistrate found there was no evidence that the respondent had agreed with the first appellant that it could pay money directly to the Council to be set-off against the rent. He also observed that even if the first appellant had stopped receiving invoices, the obligation to pay rent under the Lease was clear. The first appellant must continue to pay the rent.
  1. [77]
    The learned Magistrate identified the only issue for his determination was whether or not a warrant to eject the first appellant from the Premises should be ordered.
  1. [78]
    Having satisfied himself that rent remained outstanding under the Lease, the Magistrate turned his mind to a consideration of s 145 of PLA which provides for the hearing and determination of an application for the recovery of possession of land referred to in s 141 as follows:

“145Hearing and determination

  1. (1)
    At the hearing and upon proof of—
  1. (a)
    the tenancy; and
  1. (b)
    the expiry or determination, by notice to terminate or demand of possession, of the tenancy; and
  1. (c)
    the lawful right of the landlord as against the defendant to possession; and
  1. (d)
    the failure of the defendant to deliver up possession; and
  1. (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.

  1. (2)
    Where a defendant does not, at least 3 days before the day on which the defendant is required by the summons to appear, give written notice to the clerk of the court before which the defendant is summoned to appear, that the defendant wishes to appear to answer the complaint, and proof is made to the court upon oath, or by deposition made in manner prescribed by the Justices Act 1886, or by admission of the defendant, of 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, then—
  1. (a)
    an affidavit or affidavits, made by some person or persons having personal knowledge of the facts deposed to and deposing to all or any of the matters prescribed in subsection (1), shall, until the contrary is shown, be accepted by the court as prima facie evidence of all or, as the case may be, each of such matters; and
  1. (b)
    the court shall hear and determine the matter of the complaint upon all the evidence properly adduced at the hearing or any adjourned hearing of the complaint, including any evidence adduced by or on behalf of the defendant, and any further evidence (which the complainant shall be at liberty to adduce) in rebuttal or in support of the complaint.” [emphasis added]
  1. [79]
    The Magistrate specifically referred to the extract from s 145 emphasised above and noted that “a lot of the discussion” before him had been directed towards the Court’s discretion and the obligation (on the first appellant) to show reasonable cause as to why a warrant should not be issued.
  1. [80]
    The Magistrate referred to having a concern that the Notice to Remedy contained a number of breaches but was ultimately satisfied that there was authority that the notice was valid if any of the breaches relied upon were made out.[28]
  1. [81]
    The Magistrate found that a breach of the Lease as identified in the Notice to Remedy had been established namely that the first appellant had failed to pay outstanding rent. He also found the respondent “has otherwise complied with the provisions of the PLA in seeking to recover possession’ and he made orders for recovery accordingly. As stated above, the Magistrate was not prepared to summarily grant judgment for the monies said to be outstanding under the Lease and Guarantee and made directions for the exchange of pleadings for that part of the application.
  1. [82]
    The orders made were:

“1. That the Plaintiff recover possession of Shops 1 and 2, 3 Nerang Street, Southport from the First Defendant.

  1. That a warrant be issued against the First Defendant requiring it to give up possession of Shops 1 and 2, 3 Nerang Street, Southport to the Plaintiff.  The issue of that warrant be postponed until 5.00pm on 14 July 2017.
  1. That the Plaintiff have leave to file and serve a Statement of Claim in respect of its claim for rent or mesne profits within 14 days.
  1. The Defendants file and serve any defence or counterclaim within 28 days of service of the Statement of Claim.
  1. That the Plaintiff’s costs of the complaint be costs in the cause.”

Issues

  1. [83]
    Having resolved the nature of the Lease between the parties there remain two issues for this court’s determination:
  1. (a)
    First: Do the summary provisions for recovery of possession of land under the PLA apply to a lease determined by forfeiture?[29] 
  1. (b)
    Second: If the answer to the first question is no and it follows that the learned Magistrate did not have jurisdiction to make the Orders, is there any utility in the appeal?

Do the summary provisions for recovery of possession of land under the PLA apply to a lease determined by forfeiture?

  1. [84]
    At the hearing below, the respondent relied on the provisions of s 141 and s 142 of the PLA as entitling it to a summary order for recovery of possession of the Premises. These sections state as follows:

“141Summary proceedings for recovery of possession

  1. (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—
  1. (a)
    has expired by effluxion of time; or
  1. (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.

  1. (2)
    The power to recover possession of any land or part of land conferred by this division shall be in addition to, and not, except where otherwise provided, in derogation from, any other power, right, or remedy of the landlord.

142Mode of proceeding

  1. (1)
    Subject to this Act proceedings under this division for the recovery of possession of any land referred to in section 141 may be heard and determined by a Magistrates Court in a summary way under the Justices Act 1886, upon the complaint in writing of the landlord or the landlord’s agent.
  2. (2)
    The complaint shall be heard and determined at a place where it could be heard and determined were it a complaint for a breach of duty committed in the Magistrates Courts district within which the land concerned is situated or, where the land concerned is situated in more than 1 such district, in any of those districts.”
  1. [85]
    The first appellant relied on the decision of this court in Sorensen v Animanto Pty Ltd [2008] QDC 219[30] to support its submission that the Magistrate lacked jurisdiction in this case.  Sorensen concerned an appeal under s 222 of the JA against a decision of a Magistrate to order the issue of a warrant for possession upon proceedings commenced under s 141(1) of the PLA. The facts of the case are not set out in any relevant detail.  In dealing with the jurisdictional question the learned Judge referred to the appellant’s written outline (footnotes omitted) as follows[31]:

“6.The critical grounds are of a narrow compass:

  1. (a)
    The Respondent brought proceedings under Division 5 of the Property Law Act 1974.
  1. (b)
    The grounds were brought by way of complaint and summons under s. 141 of the Property Law Act 1974.
  1. (c)
    The use of a complaint and summons to obtain recovery of possession and the s. 141 procedure is of limited application.
  1. It has always been maintained and still is maintained, that there was no jurisdiction for the complaint procedure to be used under the Property Law Act 1974.
  1. The learned authors of Property Law and Practice (Qld) make the following comments in relation to Part 8, Division 5 of the Property Law Act 1974:-

‘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.
  1. All other tenancies are covered by this Division. Relief against forfeiture must still be sought in the Supreme Court or District Court.
  1. 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.
  1. 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:

  1. (a)
    the holding over of fixed term tenancies which have expired by effluxion of time, where notice has been given; or
  1. (b)
    periodic tenancies which have been determined by notice.”
  1. In short there was no lease or tenancy which had expired by effluxion of time (this is conceded). Further, the tenancy was not a periodic tenancy.
  1. It is therefore submitted there was no jurisdiction to hear and entertain the matter and make the order for recovery of possession.” [Emphasis added]
  1. [86]
    Immediately after this passage in Sorensen, the learned Judge observed that “[u]pon the hearing of the appeal, counsel for the respondent rightly conceded that the appellant’s ground of appeal with respect to jurisdiction was soundly based and that the appeal should succeed on that ground.”[32]
  1. [87]
    In Australian Prime Fibre P/L v ISIS Central Sugar Mill Co Ltd [2017] QDC 186, Reid DCJ also observed that the parties had (rightly) conceded that if the tenancy was not a periodic tenancy the summons for recovery complaint under s 141 of the PLA ought to have been dismissed.[33]
  1. [88]
    The respondent submitted that the comments in Sorenson about the point being rightly conceded are wrong and ought not to be followed.  Given the issue now raised by the respondent was not ventilated in either of the above decisions, the resolution of the issue falls to be determined upon a consideration of the relevant sections of the PLA.

Background to the Property Law Act 1974 

  1. [89]
    The PLA was given assent on 1 November 1974 and commenced on 1 December 1975. Explanatory notes were not used at this time. Weight was given to the Queensland Law Reform Commission’s reports. The QLRC report at this time was “Report no. 16 dated February 1973: A bill to consolidate, amend, and reform the law relating to conveyancing, property, and contract and to terminate the application of certain imperial statutes.”
  1. [90]
    This report relevantly stated under the heading Division 5 – Summary recovery of possession as follows:[34]

“140. Interpretation.   Prior to the Termination of Tenancies Act 1970 proceedings to recover possession of premises in respect of which the lease had expired or the tenancy had been determined by notice to quit could be taken under The Summary Ejectment Act of 1867, a statute which was based upon an earlier English enactment, the Small Tenements Recovery Act, 1838 (as to which, see Woodfall, op.cit, at p. 1032).

The procedure for summary ejectment under the statute of 1867 was available only in the cases mentioned above and not where, for example, a lease was determined by the lessor by forfeiture for breach of condition or covenants followed by entry, whether actual or constructive: see, e.g., Loynes v Hanman [1922] St R Qd 220. 

The Act of 1970 repealed The Summary Ejectment Act of 1867 and substituted a procedure and a series of provisions scarcely distinguishable in substance from those of the earlier enactment.  It enables a court exercising jurisdiction under The Justices Acts to issue a warrant for possession upon a complaint by a landlord against a tenant who is “unlawfully holding over” – an expression which, although it appears in the title to the Act of 1867, is not particularly happily chosen, since it has connotations of criminality on the part of the tenant, whereas the jurisdiction exercised under both statutes is in fact entirely civil in character.  In the course of defining land unlawfully held over, however, s. 3(2) of the Act of 1970 refers to the determination of the interest of a tenant “otherwise” than by effluxion of time or notice to quit and so, possibly unwittingly, brought within the scope of the summary ejectment remedy cases of leases determined by forfeiture.  In our view this step was neither necessary nor wise.  It was not necessary because the kind of tenancy principally within the scope of the Act is short periodic tenancies, which are seldom if ever in the form of written instruments embodying conditions of forfeiture.  It was unwise because only the Supreme Court has power to relieve against forfeiture for breach of condition, and the effect of the extension effected by the Act is to oblige a tenant to commence separate proceedings for relief in the Supreme Court, during the pendency of which the ejectment proceedings before the magistrate are necessary stayed. 

We are therefore opposed to an extension of the summary jurisdiction in respect effected by the Act of 1970 and our present proposals contemplate a reversion to the limitations which in this respect existed under the Act of 1867.

We have also thought it preferable to dispense with the use of the description ‘unlawfully held over’ and to provide simply for a procedure, without descriptive epithet, for summary recovery of possession of land held by a tenant whose tenancy has expired or been determined by notice to quit.  Apart from this, the alterations proposed for Part II of the Act of 1970 are matters of detail rather than of substance.

141. Summary recovery of possession.  As explained above, in expressing this section we have chosen the language of s. 2 of the Act of 1867 in preference to that of s. 3(2) of the 1970 Act, although cl. 141(2) is based upon s. 3(3) of the latter Act.  It should be observed that procedures for obtaining summary judgment for recovery of possession of leased land also exist both under the Rules of the Supreme Court and Rule 153 of the District Court Rules.” [Emphasis added]

  1. [91]
    It is readily apparent that there was a deliberate choice by the legislature to limit the application of the summary recovery of possession provisions in the PLA in the way the Summary Ejectment Act of 1867 had done.  Section 2 of the Summary Ejectment Act provided as follows:

“2.Possession of tenements may be recovered before justices of the peace

When the term of interest of the tenant of any land held by him for any term of years or for any less estate or interest either with or without being liable to the payment of any rent shall have expired by effluxion of time or shall have been determined by notice to quit or demand of possession and such tenant or any person claiming under him who shall actually occupy such land or any part thereof shall neglect to quit and deliver up possession of such land or of such part thereof respectively it shall be lawful for the landlord of such land or his agent to exhibit his information before any justice of the peace.” 

Discussion

  1. [92]
    The express provisions of s 141 of the PLA are in almost identical terms and in my view, were clearly intended to be of the same effect as s 2 of the Summary Ejectment Act.
  1. [93]
    The decision of Loynes v Hanman [1922] St R Qd 220 was expressly referred to in the extract from Report No 16 as an example of circumstances where the summary procedure was not available.  In that case, a contract of sale was entered into between a returned soldier and the War Services Homes Commissioner.  This contract provided that the soldier would purchase certain land on which there was a dwelling, and would  pay the purchase money and interest by equal monthly payments extending over twenty-five years.  He failed to make payments regularly, and being in default in regard to three instalments, the Commissioner gave him a notice to quit and deliver up possession. On his refusal to do so, the Commissioner took proceedings under the Summary Ejectment Act, to recover possession of the land.  The Full Court of Appeal held that assuming the creation of a monthly tenancy and a determination thereof by way of forfeiture in consequence of the soldier’s default, s 2 of the Summary Ejectment Act did not apply, as the tenancy had not been determined within the meaning of the section. The Full Court found that the Court of Petty Sessions had no jurisdiction to order possession of the house be given to the Commissioner.  Lukin J[35] referred to the observations of Matthew J in Mansergh v Rimell 1884 W.N. 34, that: “The term in this case has come to an end by forfeiture.  That is not within the rule.  The rule is confined to the case specified of a tenant whose term has expired or has been duly determined by notice to quit.”
  1. [94]
    Other cases that have considered the summary power of ejectment under the Summary Ejectment Act support the principle that there must be evidence that a tenancy has expired by effluxion of time or has been determined by a proper notice to quit and otherwise than by reason of a forfeiture before such power can be exercised. In other words, the summary powers do not apply to a lease determined by forfeiture.[36]
  1. [95]
    As the tenancy in this case was determined by forfeiture, it follows on the above analysis that the summary provisions for recovery of possession do not apply. I therefore find that the learned Magistrate had no power to make the Orders.

Is there any utility in the appeal?

  1. [96]
    The respondent submitted that if I find (as I have) that the learned Magistrate did not have jurisdiction, there is no utility in the appeal because:
  1. (a)
    The Orders required the first appellant to vacate the Premises on or before 5.00pm on 14 July 2017 and the first appellant vacated the Premises at some time on 12 July 2017;
  1. (b)
    The first appellant has never retaken possession or applied to stay the operation of the orders;
  1. (c)
    As the tenancy was never registered under the provisions of the Land Title Act 1994 (Qld), it constitutes a mere equity and upon vacation of the Premises, any rights which the first appellant had evaporated;
  1. (d)
    The respondent has granted a new Lease of the Premises to a third party;
  1. (e)
    The tenancy pursuant to the Lease would have expired on 16 October 2017 and the first appellant had not exercised its entitlement to the option, by written notice, not less than 3 months prior to the expiration of the term.
  1. [97]
    Having found that there was no jurisdiction for the Orders to have been made, I accept that they are a nullity and can be disregarded.[37]
  1. [98]
    The effect of the orders being a nullity is that they have no effect even absent an order by this court to set them aside.[38]
  1. [99]
    In United Telecasters Sydney Ltd v Hardy,[39] Samuels AP (with whom Clarke and Meagher JJA agreed), adopted the approach of McHugh JA in Attorney General for New South Wales v Mayas Pty Ltd[40] in relation to orders made without authority or improperly made:

“If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a content.  Such an order is a nullity.  Any person may disregard it.  Different considerations arise, however, if the order is of a kind within the tribunal’s power which was improperly made.  In that case, the order is good until it is set aside by a superior tribunal.  While it exists it must be obeyed.” [Emphasis added]

  1. [100]
    In Powell v Queensland University of Technology [2017] QCA 200, the Queensland Court of Appeal considered orders that were made beyond the power of the Queensland Civil and Administrative Tribunal.  Sofronoff P identified the Tribunal’s status as a court of record and that it was undesirable that its record should contain an order it did not have the jurisdiction to make.  In doing Sofronoff P relevantly observed that:

“[92] There may be cases in which the Tribunal ought not to have made an order, as distinct from cases in which it could not make an order. In the former, the discretion conferred upon this Court by the Act to hear appeals based upon errors of law might be properly exercised, in particular circumstances, by refusing relief. However, when the orders made were orders that were beyond the power of the Tribunal to make, it would, at least generally, be inappropriate to refuse relief and to leave the Tribunal’s record in its imperfect state.” [Emphasis added]

  1. [101]
    Where an order is a nullity it is susceptible to an appeal in which the court can determine whether the order was made in excess of jurisdiction and set it aside upon that basis.[41]  In Powell, Gotterson JA considered it both appropriate and necessary that the record be corrected by the orders being set aside as nullities.[42]
  1. [102]
    Pursuant to s 14 of the Magistrates Court Act 1921 (Qld), the Magistrates Court is a court of record.
  1. [103]
    The respondent submitted that I ought not to be concerned about correcting the record because other Magistrates were not bound by the learned Magistrate’s decision. In my view if the Orders are not set aside, their existence is conducive to misunderstanding and confusion. In such circumstances it is important to correct the record.
  1. [104]
    It follows that there is utility in this appeal. I find that it is both appropriate and necessary that the record be corrected by the setting aside of the Orders.

Conclusion

  1. [105]
    Upon the above analysis, the Appeal is allowed and I set aside the Orders (i.e. Orders 1 and 2 of the Orders made on 7 July 2017).

Costs

  1. [106]
    The first appellant has been successful in his appeal and ordinarily costs should follow the event.
  1. [107]
    I will allow the parties until 4.00pm 30 November 2018, to provide short written submissions (of no more than two pages) as to the appropriate costs orders in this case. Alternatively, if consent orders can be agreed, they should be forwarded to my Associate. If neither of these things occur within the time allowed, I will order that the respondent pay the first appellant’s costs of the appeal.

Footnotes

[1]The Magistrate made five orders. Orders 1 and 2 are the Appealed Orders and relate to the first appellant only. The remainder of the orders related to the filing of pleadings for the respondent’s claim for rent and the first appellant’s (and Ms Lee and Ms Yoon as guarantors) alleged counterclaim/set-off.  Those orders have not been appealed.  

[2]The parties exchanged and filed written submissions addressing this issue on 2 March 2018.

[3]Notice of Contention filed 12 February 2018.

[4]There was no evidence of the value of the Premises at the hearing below or on appeal. The respondent’s appeal outline of argument filed 20 October 2017 referred to an affidavit of Xiao Feng Huang sworn 20 October 2017 as to the value of the land. There was some confusion about the tender of this affidavit on the appeal but ultimately it was objected to and its tender was not pressed due to the concession that the appeal had been properly made under s 222 of the Justices Act. 

[5]Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153 per Finklemann J at [239].

[6]T1-11 line 13.

[7]These directions have not been appealed.

[8]Justices Act 1886 (Qld), s 223(1). 

[9]Fox v Percy (2003) 214 CLR 118. 

[10]At [42]. These observations were made in his dissenting judgment where his Honour considered that the District Court Judge hearing an appeal from the Magistrates Court against conviction after trial did not conduct a rehearing as was required by s 223 of the Justices Act 1886 (Qld).

[11](2016) 90 ALJR 679, 686-687; [2016] HCA at [43].

[12]Justices Act 1886 (Qld), s 225(1)-(2). 

[13]On 27 July 2018, I sent the parties an email raising a number of issues which had come to my attention during my review of the material below. The first of these issues was whether any issues relevant to the appeal arose by the manner of execution of the Lease. Written submissions were filed on behalf of both parties in response to the matters raised by me and further oral hearing took place on 7 September 2018.

[14]With reference to Fox v Percy (2003) 214 CLR 118 at [25]; Warren v Coombes (1979) 142 CLR 531; Commissioner of Police v Al Shakarji [2013] QCA 319.

[15]A non-historical search of the first appellant was in evidence before the Magistrate (exhibited to the affidavit of Mr Crowther sworn 19 June 2017). This search revealed Ms Lee to have been a director from 25 September 2012 and at that point in time she was the only director.  The company did not have a company secretary. There was no company search of the respondent before the Magistrate. At the hearing on 7 September 2018, I admitted historical searches of both of companies into evidence.  

[16]This approach is consistent with the approach taken by Heerey J in Black & Decker Inc v GMCA Pty Ltd (No 2) [2008] FCA 504 at [144].

[17]Pozzan v Gibbons (2006) 200 FLR 287 at [61]: cited with approval in Boz One Pty Ltd v McLellan & Ors [2015] VSCA 68 at 207.

[18]Ibid Pozzan at [60]-[65].

[19]At [118]-[120].

[20]Ultimately, Preston CJ determined that a deed executed only by a sole director had been validly executed. 

[21]Both parties agreed that this omission did not render this notice invalid.

[22]As set out in the appellants’ supplementary submissions filed 2 March 2018.

[23]Leisure Kart City Pty Ltd v Professional Auction & Valuation Services Pty Ltd [2013] QCA 298 at [3], [6], [42]-[43].

[24]Although ooccasionally a periodic tenancy is granted on terms which enable it to be determined by forfeiture.

[25]Richard Clarke & Co Ltd v Widnall [1976] 1 WLR 845 at 849, with reference to Canas Property Co Ltd v KL Television Services Ltd [1970] 2 QB 433 where it was held that the service on the tenant of proceedings for possession effected a forfeiture.

[26]In an email to the parties on 27 July 2018, I asked the parties a series of questions including whether it was uncontroversial that the first appellant vacated the Premises on 12 July 2017 pursuant to the Orders and that the respondent’s subsequently entered into a new lease with a third party. In written responses to these questions both parties accepted that the first appellant had complied with the Orders but the respondent submitted that there was no direct evidence as to why the first appellant had vacated. As to the second issue, the first appellant did not concede a new lease had been entered into and the respondent submitted it was an uncontroversial proposition. At a further oral hearing on 7 September 2018, despite having earlier rejected (at the appeal hearing on 16 February 2018) the admission of such an affidavit and in light of the responses to my email, I heard further argument from the parties about the admission of evidence of any further lease.  In the resolve I allowed the respondent leave to file the affidavit of Xiao Feng Huang sworn 20 October 2017 which exhibited a 3 year lease with another tenant for a term of 3 years from 1 October 2017.   

[27]At both hearings before the Magistrate the respondent was represented by its solicitor Mr Crowther and Ms Lee appeared on behalf of the appellants.

[28]With reference to Kumaragamage v Rallis [2001] NSWSC 466 at [42].

[29]This jurisdictional issue was not raised before the learned Magistrate below. Nothing turns on that.

[30]The respondent maintained that it was entitled to proceed under s 141 and s 142 of the Property Law Act 1974 (Qld) and that the Judge in Sorensen was lead into error and it was wrongly decided.

[31]Sorensen v Animanto Pty Ltd [2008] QDC 219 at [3].

[32]Ibid at [4]. The decision in Sorensen was referred to and followed in Australian Prime Fibre PL v ISIS Central Sugar Mill Co Ltd [2017 QDC 186, a case where s 141 PLA was not considered in any great detail as there was a concession that if the tenancy was not a periodic tenancy the complaint ought to have been dismissed.

[33] Australian Prime Fibre P/L v ISIS Central Sugar Mill Co Ltd [2017] QDC 186 at [12].

[34]Report No 16: Queensland Law Reform Commission February 1973: A bill to consolidate, amend, and reform the law relating to conveyancing, property, and contract and to terminate the application of certain imperial statutes at 91.

[35]At 229. 

[36]Brown v Salkall [1922] QN 7; Edwards v Horrigan; ex parte Harrigan [1922] St R Qd 8.

[37]Attorney General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 (per McHugh JA) cited with approval in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 335 (per Samuels JA) with whom Clarke JA and Meagher JA agreed; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 162 ALR 336 at 343.

[38]Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [27]-[28].

[39](1991) 23 NSWLR 323 at 335.

[40](1988) 14 NSWLR 342 at 357.

[41]See the discussion by McMurdo JA in Powell v Queensland University of Technology [2017] QCA 200 at [156]-[158].

[42]Ibid at [102].

Close

Editorial Notes

  • Published Case Name:

    YJ Pty Ltd & Ors v Huang's Properties Pty Ltd

  • Shortened Case Name:

    YJ Pty Ltd v Huang's Properties Pty Ltd

  • MNC:

    [2018] QDC 240

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    16 Nov 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342
3 citations
Jump To
Cite 1 - (1988) 14 NSWLR 342
Cite 2 - (1988) 14 NSWLR 342
Cite 3 - (1988) 14 NSWLR 342
Australian Prime Fibre Pty Ltd v ISIS Central Sugar Mill Co Ltd [2017] QDC 186
4 citations
Jump To
Cite 1 - [2017] QDC 186
Cite 2 - [2017] QDC 186
Cite 3 - [2017] QDC 186
Cite 4 - [2017] QDC 186
Black & Decker Inc v GMCA Pty Ltd (No 2) [2008] FCA 504
2 citations
Jump To
Cite 1 - [2008] FCA 504
Cite 2 - [2008] FCA 504
Bode v Commissioner of Police [2018] QCA 186
3 citations
Jump To
Cite 1 - [2018] QCA 186
Cite 2 - [2018] QCA 186
Cite 3 - [2018] QCA 186
Bond University Limited v Limgold Pty Ltd and Nista Pty Ltd and The Long-Term Credit Bank of Japan Limited [1997] QSC 227
2 citations
Jump To
Cite 1 - [1997] QSC 227
Cite 2 - [1997] QSC 227
Bond University Limited v Limgold Pty. Ltd. [1998] QCA 214
2 citations
Jump To
Cite 1 - [1998] QCA 214
Cite 2 - [1998] QCA 214
Boz One Pty Ltd v McLellan [2015] VSCA 68
2 citations
Jump To
Cite 1 - [2015] VSCA 68
Cite 2 - [2015] VSCA 68
Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153
2 citations
Jump To
Cite 1 - [2003] FCAFC 153
Cite 2 - [2003] FCAFC 153
Brown v Salkall [1922] QN 7
1 citation
Jump To
Cite 1 - [1922] QN 7
Brown v Salkall; ex parte Salkall [1923] QWN 7
1 citation
Jump To
Cite 1 - [1923] QWN 7
Canas Property Co. Ltd v K.L. Television Services Ltd [1970] 2 QB 433
2 citations
Jump To
Cite 1 - [1970] 2 QB 433
Cite 2 - [1970] 2 QB 433
Commissioner of Police v Al Shakarji [2013] QCA 319
2 citations
Jump To
Cite 1 - [2013] QCA 319
Cite 2 - [2013] QCA 319
Edwards v Horrigan [1922] St R Qd 8
1 citation
Jump To
Cite 1 - [1922] St R Qd 8
Edwards v Horrigan; ex parte Horrigan [1923] St R Qd 8
1 citation
Jump To
Cite 1 - [1923] St R Qd 8
Fox v Percy (2003) 214 CLR 118
3 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Kumaragamage v Rallis [2001] NSWSC 466
2 citations
Jump To
Cite 1 - [2001] NSWSC 466
Cite 2 - [2001] NSWSC 466
Leisure Kart City Pty Ltd v Professional Auction & Valuation Services Pty Ltd [2013] QCA 298
2 citations
Jump To
Cite 1 - [2013] QCA 298
Cite 2 - [2013] QCA 298
Loynes v Hanman [1922] St R Qd 220
4 citations
Jump To
Cite 1 - [1922] St R Qd 220
Cite 2 - [1922] St R Qd 220
Cite 3 - [1922] St R Qd 220
Cite 4 - [1922] St R Qd 220
Martin v New South Wales [2011] NSWLEC 50
3 citations
Jump To
Cite 1 - [2011] NSWLEC 50
Cite 2 - [2011] NSWLEC 50
Cite 3 - [2011] NSWLEC 50
McDonald v Tinbilly Travellers Pty Ltd (2008) 168 IR 468
2 citations
Jump To
Cite 1 - (2008) 168 IR 468
Cite 2 - (2008) 168 IR 468
Munro v Dare; ex parte Dare [1934] St R Qd 332
1 citation
Jump To
Cite 1 - [1934] St R Qd 332
Pelechowski v Registrar (1999) 198 CLR 435
2 citations
Jump To
Cite 1 - (1999) 198 CLR 435
Cite 2 - (1999) 198 CLR 435
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 162 ALR 336
1 citation
Jump To
Cite 1 - (1999) 162 ALR 336
Powell v Queensland University of Technology[2018] 2 Qd R 234; [2017] QCA 200
4 citations
Jump To
Cite 1 - [2017] QCA 200
Cite 2 - [2017] QCA 200
Cite 3 - [2017] QCA 200
Cite 4 - [2017] QCA 200
Pozzan v Gibbons (2006) 200 FLR 287
4 citations
Jump To
Cite 1 - (2006) 200 FLR 287
Cite 2 - (2006) 200 FLR 287
Cite 3 - (2006) 200 FLR 287
Cite 4 - (2006) 200 FLR 287
QWN 7 Bruton v London and Quadrant Housing Trust [1999] 3 WLR 150
1 citation
Jump To
Cite 1 - [1999] 3 WLR 150
Richard Clarke & Co Ltd v Widnall [1976] 1 WLR 845
3 citations
Jump To
Cite 1 - [1976] 1 WLR 845
Cite 2 - [1976] 1 WLR 845
Cite 3 - [1976] 1 WLR 845
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
2 citations
Jump To
Cite 1 - (2016) 90 ALJR 679
Cite 2 - (2016) 90 ALJR 679
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
1 citation
Jump To
Cite 1 - (2016) 331 ALR 550
Robinson Helicopter Company Incorporated v McDermott & Ors [2016] HCA 22
1 citation
Jump To
Cite 1 - [2016] HCA 22
Sorensen v Animanto Pty Ltd [2008] QDC 219
4 citations
Jump To
Cite 1 - [2008] QDC 219
Cite 2 - [2008] QDC 219
Cite 3 - [2008] QDC 219
Cite 4 - [2008] QDC 219
Southwest (1884) WN 34
2 citations
Jump To
Cite 1 - (1884) WN 34
Cite 2 - (1884) WN 34
United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323
3 citations
Jump To
Cite 1 - (1991) 23 NSWLR 323
Cite 2 - (1991) 23 NSWLR 323
Cite 3 - (1991) 23 NSWLR 323
Warren v Coombes (1979) 142 CLR 531
2 citations
Jump To
Cite 1 - (1979) 142 CLR 531
Cite 2 - (1979) 142 CLR 531

Cases Citing

Case NameFull CitationFrequency
Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd [2020] QCAT 2153 citations
HDI v HJQ [2020] QDC 832 citations
1

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