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[2015] QCA 192
Margaret McMurdo P and Ann Lyons and North JJ
13 October 2015
This was an appeal against a prior successful application for relief against forfeiture pursuant to s 124 of the Property Law Act 1974. The appellants contended that, in granting the relief, the primary judge erred in law; otherwise misdirected himself in relation to the legal test to be applied in cases of relief against forfeiture; fettered his discretion; and essentially reversed the onus in circumstances where the discretion is at large and it was a matter for the respondent to prove that it was entitled to the relief sought. [3].
By way of brief background, the appellants (sublessors) and respondent (sublessee) entered into two subleases for recreational purposes. The terms of both were for almost 100 years. [5]. The respondent defaulted in payment of the deferred rent of $50,000 for each sublease within the required timeframe. [6]. The appellants lodged notices of surrender of the subleases [12] and thereupon the respondent eventually paid the deferred rent. Nonetheless, the appellants refused to reinstate the subleases after negotiations failed. [14]. An application for relief against forfeiture was heard on 31 October 2014 [16] and granted [40] on the basis that the primary judge detected no reason for exercising the discretion against the application in circumstances where the respondent was solvent; all outstanding rent had been brought up to date; and there was to be no recurrence of the triggering default because the deferred rent had been paid in full. [38].
First ground of appeal: the primary judge misdirected himself in relation to the legal test
Upon analysing the reasons at first instance, the court did not agree that conclusion that his Honour had actually reversed the onus was a valid one. On the contrary, the court took the view that he had indeed balanced all of the factors that were required to be considered in the exercise of the discretion [46], and had been “acutely aware” that the discretion was at large. [44]. Her Honour Justice Lyons noted that the primary judge had undertaken significant analysis in gauging both the likelihood of any future breaches, together with evidence indicating that the loss of liquidity was interim, not permanent. [45].
Second ground of appeal: the primary judge did not give adequate reasons
It was further contended that the primary judge did not provide proper reasons since he failed to state the basis which led to his conclusion concerning the disputed factual questions and did not list the findings on the contested issues. [47]. In particular, it was submitted that the finding that the default was not considered wilful was not sufficiently based upon the available evidence.
It was additionally contended that the specific basis upon which the primary judge was satisfied that the relief should be granted should have been identified [48]: see Sunland Group Ltd v Townsville City Council [2012] QCA 30 and Loader v Moreton Bay Regional Council [2013] QCA 269.
With reference to the New South Wales Court of Appeal decision of Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, the court observed that there is generally no duty on a judge to make a decision in respect of every matter of fact or law which was raised in a particular proceeding, nor is it their duty to make a decision on every matter raised in argument. Furthermore, reasons need not ordinarily be given in procedural applications or in applications for leave where the considerations of fact and law are clear. Put differently, it is not essential for a judge to itemise every factor found to be relevant or irrelevant. See also Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385–386. With that in mind, and finding that the primary judge “did sufficiently grapple with the evidence before him and did indicate the evidence he was relying on” [52], the court was not of the view that this aspect of the appeal had been made out. [53].
The appeal was dismissed with costs. [54], [67].