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  4. Furniture Funk Pty Ltd v Brisbane River Pty Ltd & Anor - [2023] QSC 248

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Furniture Funk Pty Ltd v Brisbane River Pty Ltd & Anor[2023] QSC 248

Furniture Funk Pty Ltd v Brisbane River Pty Ltd & Anor[2023] QSC 248

SUPREME COURT OF QUEENSLAND

CITATION:

Furniture Funk Pty Ltd v Brisbane River Pty Ltd & Anor [2023] QSC 248

PARTIES:

FURNITURE FUNK PTY LTD as trustee for

FUNK FURNITURE TRADING TRUST trading as THE PRAWNSTER

ACN 112 105 656

(Applicant)

v

BRISBANE RIVER PTY LTD as trustee for

THE DOCKSIDE MARINA TRUST

ACN 611 362 639

(First Respondent)

STATE OF QUEENSLAND

(Second Respondent)

FILE NO:

BS 4863 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2023

JUDGE:

Crowley J

ORDER:

  1. Paragraphs 1 to 4 of the Originating Application filed 21 April 2023 are dismissed. 

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – LEASES – DETERMINATION – FORFEITURE AND RELIEF AGAINST FORFEITURE – where the Applicant runs a floating restaurant from a site at a marina pursuant to an agreement with the First Respondent – where the First Respondent manages the marina under a Crown lease – where the State notified the First Respondent the presence and operation of the floating restaurant breached the use conditions of the Crown lease – where the First Respondent gave notice to the Applicant that it was terminating their agreement – where the Applicant refused to vacate the marina – whether the Applicant is entitled to relief against forfeiture

REAL PROPERTY – LICENCES – LICENCE DISINGUISHED FROM OTHER INTERESTS IN LAND – where the terms of the agreement between the Applicant and the First Respondent are set out in a deed – where the deed described the Applicant as the ‘tenant’ and the Respondent as the ‘lessor’ – where the deed granted the Applicant a licence to use and occupy specific berths at the marina – where the deed stated that nothing in the deed conferred on the Applicant any right as a tenant of the marina and did not create the relationship of landlord and tenant – where the deed stated that the right granted by the deed was personal only – whether the agreement is a lease or a licence

ESTOPPEL – ESTOPPEL BY CONDUCT – GENERAL PRINCIPLES – whether the State and the First Respondent reached an in-principle agreement permitting the Applicant to operate the floating restaurant from the marina – whether the State recanted from the alleged in-principle agreement – whether the First Respondent made a representation to the Applicant that such an agreement had been made – whether it was reasonable for the Applicant to rely upon the alleged representation to its detriment – whether the First Respondent and the State should be estopped from refusing the Applicant the right to operate its business at the marina

Property Law Act 1974 (Qld), s 124, s 124(6)(a)

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B

Retail Shop Leases Regulation 2016 (Qld), reg 8, sch 1

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39, cited

Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26, cited

JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393; [2019] VSCA 159, cited

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 6] (2016) 329 ALR 1; [2015] FCA 825, cited

Renard Partners Pty Ltd v Quinn Villages Pty Ltd [2001] QCA 538, cited

COUNSEL:

T Matthews KC for the Applicant

M Plunkett for the First Respondent

J M Horton KC with P Nevard for the Second Respondent

SOLICITORS:

Bridge Brideaux Solicitors for the Applicant

Macpherson Kelley for the First Respondent

Clayton Utz for the Second Respondent

  1. [1]
    Since 2019, Furniture Funk has run a popular seafood restaurant business, called ‘The Prawnster’, from a site at the Dockside Marina, Kangaroo Point. The Prawnster is a floating restaurant, situated on two decommissioned fishing trawlers and a pontoon tethered to three berths within the marina.
  2. [2]
    The Prawnster offers seafood and meals to the general public. It is said to be one of Brisbane’s best seafood restaurants and a significant tourist attraction.
  3. [3]
    Brisbane River manages the Dockside Marina under a Crown lease granted by the State. The Prawnster occupies the site at the marina and operates its business there under a berthing and mooring agreement it has with Brisbane River.
  4. [4]
    The Crown lease states the purpose for which it was granted as ‘Marine Facility’. Clause A61(1) of the lease contains the following use conditions:

The lessee must use the leased land for marine facility purposes namely for the operation and maintenance of marine facility structures for the berthing of private (non-commercial) vessels over Lots 309 and 310 on SLE813356 and the operation and maintenance of a public boardwalk (Lot 307 on SL813356) and ferry terminal (Lot 305 on SL809090) and provision of access and services to the adjoining marina.

  1. [5]
    The State claims these conditions do not permit the leased land to be used for a commercial purpose of the kind conducted by The Prawnster. It notified Brisbane River that the presence and operation of The Prawnster restaurant at the marina breaches the use conditions of the Crown lease. It demanded Brisbane River remedy the situation. 
  2. [6]
    Faced with that demand, Brisbane River gave notice to Furniture Funk that it was terminating its agreement and requested The Prawnster vacate the marina.
  3. [7]
    Furniture Funk has refused to leave. It says Brisbane River has not breached the use conditions of the Crown lease by allowing it to run its restaurant from the marina. It says the State has misinterpreted the relevant conditions and has wrongly caused Brisbane River to make it quit the site. It further says that the State has unreasonably ‘backflipped’ on a previous in-principle agreement that would have permitted it to operate its business from the leased land.
  4. [8]
    Furniture Funk seeks relief against forfeiture of its rights under the berthing and mooring agreement. In addition, it claims that Brisbane River and the State should be estopped from refusing it the right to operate The Prawnster at the marina. It seeks declarations and orders to allow it to continue to occupy the site and conduct its floating seafood restaurant business under the arrangements it has long had with Brisbane River.
  5. [9]
    The issues that arise for consideration on this application are:
    1. What is the proper construction of the use conditions of the Crown lease?
    2. Is Furniture Funk entitled to relief against forfeiture?
    3. Should Brisbane River and the State be estopped, by reason of their conduct, from refusing Furniture Funk the right to operate its business at the marina?

Is Furniture Funk entitled to relief against forfeiture?

  1. [10]
    It is preferable to deal with this issue first, as it will be unnecessary to consider some of Furniture Funk’s other arguments if it is not entitled to relief against forfeiture
  2. [11]
    The terms of the agreement between Furniture Funk and Brisbane River are set out in a document titled ‘Marine Vessel Berthing and Mooring Deed’. This is said to be an annual agreement between the parties. The latest deed was executed on 19 July 2021 but recorded that the agreement had commenced on 1 February 2021.
  3. [12]
    The deed described Furniture Funk as the ‘tenant’ and Brisbane River as the ‘lessor’. It noted the tenant’s ‘vessel’ was the decommissioned trawlers and the pontoon from which The Prawnster conducts business. It noted the ‘dockage term’ was to be on a monthly periodic basis.
  4. [13]
    By cl 2 of the deed, Brisbane River granted Furniture Funk a licence to use and occupy berths B01, B02 and B03 at Dockside Marina. The licence was described as a personal, non-exclusive and non-transferable right to occupy and provide reasonable access to the marina berths. Clause 10 provided that nothing in the deed conferred on Furniture Funk any right as a tenant of the marina and did not create the relationship of landlord and tenant. It expressly stated that the right granted by the deed was personal only.
  5. [14]
    Under cl 9, either party could terminate the agreement by providing not less than one month’s written notice before the expiry of the licence term. If no such notice was given, the deed would automatically renew for a further month at the end of that term. Under cl 13, any notice to be given under the agreement was to be in writing,  signed by the party giving it and delivered by hand or sent by prepaid post or email to the other party’s address for service.
  6. [15]
    Brisbane River has long been supportive of The Prawnster. It has always considered that the restaurant’s business was not a breach of the use conditions of the Crown lease. Nevertheless, it made several attempts to have the Crown lease varied to ensure that The Prawnster could operate at the marina. Each of its applications for a variation of the lease have been rejected.
  7. [16]
    The State, through its responsible agency the Department of Resources,[1]  has consistently maintained that the use conditions of the lease do not permit The Prawnster’s restaurant business to be conducted from the marina. The Department has issued various warning letters and notices, informing Brisbane River that it is in breach of the lease and requesting it rectify the situation by having The Prawnster cease operations and vacate the site.
  8. [17]
    Despite its continued efforts to advocate for The Prawnster to remain at the marina, on 20 March 2023 Brisbane River gave Furniture Funk written notice that the berthing and mooring deed was terminated, with effect from 30 April 2023. The notice was sent by email to Furniture Funk’s nominated email address. The notice was styled as a ‘Notice of Termination of Monthly Tenancy’ and cited ss 131 and 132 of the Property Law Act 1974 (Qld).
  9. [18]
    To date, Furniture Funk has not vacated berths B01, B02 and B03.
  10. [19]
    It is in these circumstances that Furniture Funk seeks relief against forfeiture.
  11. [20]
    Having regard to the apparent nature of the deed and the right conferred upon Furniture Funk by the licence granted to it by Brisbane River, the State asks the question, ‘Relief against forfeiture of what?’
  12. [21]
    Furniture Funk says that it may seek relief against forfeiture on four bases.
  13. [22]
    Firstly, it says the agreement it has with Brisbane River is a lease and not simply a licence. On that basis, it claims equitable relief against forfeiture of its proprietary interest in the leased marina berths.
  14. [23]
    Secondly, again on the assumption that the agreement is a lease, it seeks relief against forfeiture of its proprietary interest under s 124 of the Property Law Act, as it says that Brisbane River has failed to provide proper notice of termination of the lease in accordance with that provision.
  15. [24]
    Thirdly, it says that the agreement is a ‘retail shop lease’, as that term is defined under the Retail Shop Leases Act 1994 (Qld) and the Retail Shop Leases Regulation 2016 (Qld), and therefore it confers more than a personal right.
  16. [25]
    Fourthly, even if the agreement is simply for a licence, Furniture Funk says that equitable relief against forfeiture of its non-proprietary rights under the agreement is available.
  17. [26]
    I do not accept any of these arguments.
  18. [27]
    Despite the fact that the terms ‘tenant’ and ‘lessor’ are used within the deed to describe the contracting parties, it is abundantly clear from the nature of the agreement and the terms of cls 2 and 10 that the agreement grants a licence and not a lease. The express language of the deed makes plain that Furniture Funk is granted a licence to use and occupy berths at the marina, that the arrangement is not a lease, and that the relationship of tenant and landlord is not created by the agreement. The agreement permits Furniture Funk to moor its ‘vessel’ at the marina. It does not grant Furniture Funk a legal right to exclusive possession of the marina berths. It is also pertinent to observe that the agreement does not grant Furniture Funk any right to conduct its seafood restaurant business.
  19. [28]
    Accordingly, the agreement is not a lease and is not to be regarded as such for the purposes of the Property Law Act or the Retail Shop Leases Act.
  20. [29]
    The fact that a ‘restaurant’ is prescribed as a type of ‘retail business’ by the Retail Shop Leases Regulation  and hence a ‘retail shop’ for the purposes of s 5B of the Retail Shop Leases Act does not, without more, make the agreement a lease under the Retail Shop Leases Act. Under s 5A of the Retail Shop Leases Act, a ‘retail shop lease’ is a lease of a ‘retail shop’. Thus, whether the agreement constitutes a lease is to be determined by the nature and terms of the agreement itself.
  21. [30]
    Similarly, the fact that notice of termination of the deed was given in a document headed ‘Notice of Termination of Monthly Tenancy’ and citing provisions of the Property Law Act does not make the agreement a lease. The form of the written notice given cannot expand or create rights beyond those arising from the actual agreement between the parties.
  22. [31]
    In any event, s 124 of the Property Law Act has no application. As s 124(6)(a) makes plain, the provision does not apply in the case of a tenancy for a term of one year or less. In this case, the term is a periodic monthly term.
  23. [32]
    With respect to the availability of equitable relief against forfeiture of a non-proprietary right, Furniture Funk relies upon certain observations of Edelman J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 6][2] and the Victorian Court of Appeal in JPA Finance Pty Ltd v Gordon Nominees Pty Ltd[3] to the effect that the doctrine of relief against forfeiture may, in certain circumstances, extend to prevent forfeiture or termination of non-proprietary rights.
  24. [33]
    Whilst these cases suggest that the law in this area may well be in a state of development or even some uncertainty, I do not consider it necessary to further delve into the discussion. That is because, aside from the fact that Furniture Funk’s application only seeks relief against forfeiture of its ‘proprietary rights’ under the deed, there is a definitive answer to Furniture Funk’s argument in respect of its non-proprietary rights.
  25. [34]
    Clause 9 of the deed entitled either party to terminate the deed by providing not less than one month’s written notice prior to the expiry of the licence term. The entitlement to terminate by notice was not predicated upon any alleged breach of the agreement by the other party. The licence term here was a monthly periodic term, permitting occupancy and use of three marina berths. Brisbane River gave Furniture Funk written notice that the deed was terminated on 20 March 2023, before the expiry of the monthly term. The notice was given in accordance with cl 13. By the notice given, the deed was terminated with effect from 30 April 2023.
  26. [35]
    This is not a case where a party asserts that the other party’s interest or rights under the agreement have been forfeited because of some alleged breach of the agreement.  Notice of termination of the deed was validly given. The agreement between Furniture Funk and Brisbane River has ended. There is nothing to forfeit.
  27. [36]
    Furniture Funk has not established any entitlement to relief against forfeiture.

Should Brisbane River and the State be estopped?

  1. [37]
    Counsel for Furniture Funk accepted at the hearing of this application that if I found that the agreement had been terminated then its case would depend upon its estoppel argument.
  2. [38]
    The State conceded that if I accepted Furniture Funk’s estoppel claim then that would ‘vitiate’ Brisbane River’s otherwise valid termination of its agreement with Furniture Funk. Brisbane River adopted the submissions made by the State on all issues and hence I took it that Brisbane River made this same concession.
  3. [39]
    Furniture Funk argues that I should find that Brisbane River and the State are estopped by their conduct from refusing it the right to operate its seafood restaurant business from Dockside Marina.
  4. [40]
    The initial negotiations between Brisbane River and Furniture Funk in respect of The Prawnster conducting its seafood restaurant business from Dockside Marina commenced in 2019.  The negotiations were conducted via various discussions and communications between Mr Martin Brennan, the director of Furniture Funk, and Mr Ken Allsop, the director of Brisbane River.
  5. [41]
    Notwithstanding that both Furniture Funk and Brisbane River considered that the terms of the Crown lease would permit The Prawnster to conduct its business from the marina, it was decided that out of an abundance of caution Brisbane River would apply for a variation of the Crown lease.
  6. [42]
    At that time, the parties contemplated Furniture Funk would sub-lease berth B01 and a proposed terms sheet for a three-year sub-lease was prepared. Brisbane River made plain that entry into the proposed sub-lease would depend upon variation of the use conditions of the Crown lease to permit food and beverage trading from the premises. Nevertheless, Brisbane River committed to supporting Furniture Funk throughout the variation application process.
  7. [43]
    According to Mr Brennan, Mr Allsop advised him at this time that an in-principle agreement had already been struck between his company and the State to formally amend the Crown lease to confirm that food and beverage operations would be permitted at the marina. Mr Brennan states that Mr Allsop advised him that in the interim, the restaurant could commence trading on a month-to-month lease arrangement.
  8. [44]
    Mr Brennan claims that Furniture Funk was induced to commence its seafood restaurant business at Dockside Marina based on an ‘agreement’ to enter into a long-term lease. I assume that the ‘agreement’ Mr Brennan refers to is the proposed agreement with Brisbane River for a three-year sub-lease, which was contingent upon the Crown lease being varied.
  9. [45]
    Brisbane River subsequently engaged Mr Peter Catchlove, a town planner, to undertake the Crown lease variation application. In November 2019, Mr Catchlove submitted the variation application to the Department of Resourceson behalf of Brisbane River. The department is the agency of the State responsible for the administration of Crown leases in accordance with the Land Act 1994 (Qld).
  10. [46]
    Mr Brennan states that once the application had been submitted, ‘[T]he feedback that we were getting at that point in time was that the State of Queensland was very supportive of The Prawnster business operation at Dockside Marina.’
  11. [47]
    However, he further states that on 17 April 2020 he was advised that the Department had appeared to have changed their position and was seeking to reopen previously settled matters and to impose further difficult conditions on any approval to vary the Crown lease.
  12. [48]
    The process of seeking a variation of the Crown lease was protracted. At various stages in the process, Brisbane River lodged further applications to vary the Crown lease.  The Department rejected or refused each of the applications. The entire process extended over more than three years from Brisbane River’s first application for a variation lodged in November 2019, through until the State’s final rejection of any variation to the lease in March 2023.
  13. [49]
    Mr Brennan states that despite the assurances that had been given to him at the time The Prawnster commenced business, the State appeared to recant on its in-principle agreement and then began to exert pressure on Brisbane River to remove The Prawnster and prevent it from operating its seafood business at the marina.
  14. [50]
    It is the supposed ‘in-principle agreement’ and the subsequent change of position by the State, which Furniture Funk characterises as a ‘backflip’, that are the basis for the estoppel claim.
  15. [51]
    The State denies there was any in-principle agreement or that it made any representation to that effect. It denies it recanted the alleged agreement as claimed by Furniture Funk.
  16. [52]
    Estoppel by conduct of the kind asserted here will arise where the conduct of one party (the representor) induces another other party (the representee) to act upon an assumption of some fact, or as to the representor’s future conduct, and the representee, acting in reliance upon the assumption, will suffer detriment if the representor acts inconsistently with the assumption.[4]
  17. [53]
    For a representation to found an estoppel, it must be ‘clear’, ‘precise’ and ‘unambiguous’.[5]
  18. [54]
    Furniture Funk identifies the representation in question here as the alleged in-principle agreement that had already been struck between Brisbane River and the State to agree to a variation of the Crown lease so as to permit The Prawnster seafood restaurant business to operate at the marina. It says that the representation was made by both Brisbane River and the State. It further says that the representation induced it to enter into the berthing and mooring agreement with Brisbane River, as it expected a sub-lease would ultimately be granted. In that way, it says that it acted to its detriment by commencing operations and continuing to trade in reliance upon the representation made. It says it has made significant financial investments by procuring, renovating and installing three separate purpose-built platforms at Dockside Marina to operate its seafood restaurant business and has expended monies in the subsequent running and expansion of its business, in the expectation that it would enter into a sub-lease agreement. 
  19. [55]
    I do not consider Furniture Funk has established any proper basis upon which I might conclude that Brisbane River and the State should be estopped by their conduct from refusing it the right to operate its seafood restaurant business from Dockside Marina.
  20. [56]
    In particular, I am not satisfied that Furniture Funk has established that the representation upon which it relies was actually made by the State or that there was any in-principle agreement as alleged.
  21. [57]
    The evidence of the representation is contained in an affidavit sworn by Mr Brennan on 19 June 2023. That was Mr Brennan’s third affidavit filed in support of the application. It was served on the other parties just before the hearing. Although he was not cross-examined by the other parties, in my view the evidentiary foundation for the estoppel claim is wholly inadequate.
  22. [58]
    Mr Brennan does not give any direct evidence of any such representation being made by the State. Rather, he states that in discussions and emails with Mr Allsop on 15 April 2019, Mr Allsop confirmed that Brisbane River and the State had such an agreement. Insofar as Mr Brennan’s evidence of what he was informed by Mr Allsop is proffered as evidence of the fact that the State made such a representation, it is hearsay. Furthermore, the evidence does not identify when, where or how such an agreement was apparently made, nor by whom it was apparently made on behalf of the State.
  23. [59]
    Further, the 15 April 2019 emails that Mr Brennan produces with his affidavit do not contain any such assertion by Mr Allsop. The only reference made to the State in the exhibited emails is the inclusion by Mr Brennan of the following dot point, amongst a list of other action items:
  • When the underlying State Government lease is changed to permit food and beverage I can then finalise the liquor licensing application (with your support re services).
  1. [60]
    Further still, the other available evidence of the State’s conduct and responses to the various applications for amendment of the Crown lease are entirely inconsistent with there being an in-principle agreement of the kind alleged. The State filed an affidavit which exhibited the relevant correspondence between the parties in respect of the various applications for amendment of the Crown lease. There is no express or implicit reference anywhere in that material to any in-principle agreement.  The nature and content of the correspondence from the State is wholly inconsistent with there being such an agreement. 
  2. [61]
    Four variation applications were submitted. Each was either rejected or refused. The Department of Resources issued warning notices to Brisbane River on 7 December 2020 and 21 August 2020. Each warning notice asserted that Brisbane River was in breach of the use conditions of the Crown lease. On 16 August 2021, the Department wrote to Mr Brennan, advising that it considered The Prawnster’s operation at the marina was in breach of the use conditions of the Crown lease and that it was considering taking enforcement action. On 4 February 2022, the Department issued a Remedial Action Notice to Brisbane River, requiring, amongst other things, that it cease use of the leased land for the operation of any commercial venture, business or activity, including a restaurant, from vessels, pontoons or other parts of the marine facility. The Department subsequently rejected an appeal lodged by Brisbane River against the Department’s decision to issue the Remedial Action Notice.
  3. [62]
    Further, at no stage did Furniture Funk assert in its correspondence with Brisbane River, or with the Department, or with any of the various politicians that Mr Brennan wrote to about The Prawnster’s predicament, that the State had represented there was an in-principle agreement of the kind alleged. The correspondence is again inconsistent with the State having made such a representation or there being such an in-principle agreement.
  4. [63]
    Similarly, Brisbane River’s conduct and correspondence with Furniture Funk and the Department is also inconsistent with there being such an in-principle agreement. Brisbane River corresponded with the Department on numerous occasions in respect of its applications for variation of the lease, yet there is no mention in any of the correspondence of the alleged representation or the supposed in-principle agreement.
  5. [64]
    In my opinion, the highest that the estoppel case rises in respect of any representation that may have been made by the State is that the Department indicated its willingness to consider an application to vary the Crown lease, but without making any assurance that it would grant such an application.
  6. [65]
    In those circumstances, I am not satisfied on the evidence adduced that the State made the alleged representation or that there was an in-principle agreement of the kind asserted. There is therefore no basis for Furniture Funk’s estoppel claim.
  7. [66]
    Even if I were to accept that Mr Allsop told Mr Brennan that an in-principle agreement had been struck between Brisbane River and the State for a variation of the use conditions of the lease, I do not consider it to be reasonable for Furniture Funk to have taken the steps which are said to have been to its detriment on the strength of that representation. Brisbane River insisted from the start that any proposed sub-lease would be dependent upon a variation being obtained and that it would be necessary to make an application to the Department of Resources to seek the variation. Brisbane River applied for the variation and supported Furniture Funk’s business, as it said it would, but at no stage did it guarantee, nor could it, that the variation would be granted.

What is the proper construction of the use condition of the Crown lease?

  1. [67]
    Furniture Funk seeks a declaration that the proper construction of the Crown lease permits the operation of The Prawnster at Dockside Marina and a related declaration that the continued operation of The Prawnster is not a breach of the Land Act
  2. [68]
    Given the conclusions I have reached in respect of the other issues, it is not necessary or desirable to further consider this issue.
  3. [69]
    The power to grant declaratory relief is discretionary.  Such relief must be directed towards determination of real legal controversies and not simply answering abstract or hypothetical questions.[6] The discretion ought not be exercised in circumstances where the declaration lacks utility.[7]
  4. [70]
    As I have found that the deed between Furniture Funk and Brisbane River has been terminated, the declarations sought by Furniture Funk are redundant and would have no utility.
  5. [71]
    It must also be borne in mind that Furniture Funk seeks declarations in respect of the terms and effect of a lease to which it is not a party. The actual parties to the agreement, Brisbane River and the State, have in the past expressed different views as to the proper construction of the lease and as to whether Brisbane River has contravened provisions of the Land Act by permitting The Prawnster to operate on the leased land. It may well be that at some point in the future these issues might arise for consideration in respect of some controversy between the contracting parties. It therefore seems to me that it would be highly undesirable to make the declarations sought by Furniture Funk as they may adversely impact upon the rights, obligations and interests of the actual parties to the lease.
  6. [72]
    Furthermore, it is pertinent to note that at the commencement of the hearing of this application I made orders, by consent, that the claim for relief at paragraph 5 of Furniture Funk’s application was to proceed as if commenced by claim. By paragraph 5 of the application, Furniture Funk seeks compensation as against Brisbane River under s 237 of the Australian Consumer Law. Again, it seems to me that the present construction issue may well be a matter to be considered and determined in that proceeding. That is another reason why it is neither desirable nor prudent for me to consider making the declarations sought by Furniture Funk in this application.

Conclusion

  1. [73]
    I find that the agreement between Furniture Funk and Brisbane River, under which The Prawnster occupied and operated from berths B01, B02 and B03 at the Dockside Marina, was a licence agreement and not a lease.
  2. [74]
    The licence agreement was validly terminated by Brisbane River, with effect from 30 April 2023. Furniture Funk is therefore not entitled to relief against forfeiture.
  3. [75]
    I am not satisfied that the State had an in-principle agreement with Brisbane River that it would vary the use conditions of the Crown lease to permit food and beverage operations on the leased land or that the State made any such representation. Even if the representation was unilaterally made by Mr Allsop, I do not consider it would have been reasonable for Furniture Funk to rely upon it to take the actions which it claims were to its detriment. Accordingly, the estoppel claim fails.

It is neither necessary nor desirable to consider the remaining issues concerning the proper construction of the Crown lease and the declaratory relief sought in respect of those issues.

Orders

  1. [76]
    I make the following order:
  1. Paragraphs 1 to 4 of the Originating Application filed 21 April 2023 are dismissed.
  1. [77]
    I will hear the parties on costs.

Footnotes

[1]For simplicity, I will refer to the department as the Department of Resources. The department was formerly named the Department of Natural Resources, Mines and Energy. It became the Department of Resources in November 2020.

[2](2016) 329 ALR 1, [984]–[985]; [988].

[3][2019] VSCA 159, 416 [81]–[82].

[4]Commonwealth v Verwayen (1990) 170 CLR 394, 413 (Mason CJ).

[5]Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, 16 [35] (French CJ, Kieffel and Bell JJ); 43–4 [142] (Keane J).

[6]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–2 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[7]Renard Partners Pty Ltd v Quinn Villages Pty Ltd [2001] QCA 538 (McPherson and Thomas JJA, Mullins J).

Close

Editorial Notes

  • Published Case Name:

    Furniture Funk Pty Ltd v Brisbane River Pty Ltd & Anor

  • Shortened Case Name:

    Furniture Funk Pty Ltd v Brisbane River Pty Ltd & Anor

  • MNC:

    [2023] QSC 248

  • Court:

    QSC

  • Judge(s):

    Crowley J

  • Date:

    10 Nov 2023

  • White Star Case:

    Yes

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
Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10
1 citation
Jump To
Cite 1 - [1992] HCA 10
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Commonwealth of Australia v Verwayen [1990] HCA 39
1 citation
Jump To
Cite 1 - [1990] HCA 39
Commonwealth v Verwayen (1990) 170 CLR 394
2 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26
1 citation
Jump To
Cite 1 - [2016] HCA 26
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1
2 citations
Jump To
Cite 1 - (2016) 260 CLR 1
Cite 2 - (2016) 260 CLR 1
JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393
1 citation
Jump To
Cite 1 - (2019) 58 VR 393
JPA Finance Pty Ltd v Gordon Nominees Pty Ltd [2019] VSCA 159
2 citations
Jump To
Cite 1 - [2019] VSCA 159
Cite 2 - [2019] VSCA 159
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825
1 citation
Jump To
Cite 1 - [2015] FCA 825
Minerology Pty Ltd v Sino Iron Pty Ltd (No. 6) (2016) 329 ALR 1
2 citations
Jump To
Cite 1 - (2016) 329 ALR 1
Cite 2 - (2016) 329 ALR 1
Renard Partners P/ L & Anor v Quinn Villages P/L [2001] QCA 538
2 citations
Jump To
Cite 1 - [2001] QCA 538
Cite 2 - [2001] QCA 538

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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