Beaumont v Australian Country Hotel Group Pty Ltd & Anor [2023] QDC 165

DISTRICT COURT OF QUEENSLAND CITATION: Beaumont v Australian Country Hotel Group Pty Ltd & Anor [2023] QDC 165 PARTIES: JASON PAUL BEAUMONT AND AARON BEAUMONT AS TRUSTEES FOR THE B4 SUPERANNUATION FUND (Plaintiffs) v AUSTRALIAN COUNTRY HOTEL GROUP PTY LTD ACN 610 644 963 (First Defendant) And RYAN NICHOLAS BEAUMONT (Second Defendant) FILE NO/S: BD No 153 of 2020 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane District Court DELIVERED ON: 15 September 2023 DELIVERED AT: Brisbane HEARING DATE: 30 June 2023 JUDGE: Richards DCJ ORDER: 1. Pursuant to s68(1)(b)(xi) of the District Court of Queensland Act 1967 (Qld) the first and second defendants deliver possession of the property and premises situated at the corner of William Street and Patrick Street, Laidley and described as Lot 1 on Registered Plan 180653 bearing Title Reference 16239106 to the plaintiffs within 14 days. 2. The first and second defendants are given leave to file an amended defence within 21 days. 3. The application for summary judgement is otherwise dismissed. -- 1 of 7 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY JUDGMENT – where the plaintiffs are registered owners of a property – where the property was leased by the plaintiffs to the first defendant between 1 August 2017 and expiring on 31 July 2020 – where the second defendant guaranteed payments under the lease – where the plaintiff alleges the first defendant breached the lease by failing to pay arrears in rent and outgoings – where plaintiffs terminated the lease on 17 November 2019 and demanded vacant possession – where the second defendant has been living on the premises without paying rent – whether summary judgment should be given for the plaintiffs against the defendants to the whole or part of relief sought by the amended claim LEGISLATION: District Court of Queensland Act 1967 (Qld) s 68(1)(b)(xi) Uniform Civil Procedures Rules 1999 r 292, r 375 Superannuation Industry (Supervision) Act 1993 (Cth) COUNSEL: M White for the Plaintiffs P Beehre for the First and Second Defendants SOLICITORS: MyLegal for the Plaintiffs Emmerson Legal for the First and Second Defendants -- 2 of 7 -- Introduction [1] The applicant/plaintiffs are the registered owners of a property situated at the corner of William Street and Patrick Street in Laidley. The property is developed as a hotel known as The Old Britannia which has a market value of approximately $599,000. [2] The first respondent/defendant is a duly incorporated company registered in Queensland and the second respondent/defendant is the director and secretary of the first defendant. [3] On or about 26 July 2017 the plaintiffs entered into a lease of the premises with the first defendant. The lease was to commence on 1 August 2017 and expire on 31 July 2020. There was contained within the lease options for three more three-year terms of the lease on exercise of the option. The option was not exercised. [4] The lease permitted use as a hotel including licensed alcohol and food sales and an entertainment venue. The agreement was that the premises would be used for no other purpose. The second defendant guaranteed the payments under the lease. [5] The applicant has brought an action by statement of claim alleging that the first defendant did not pay rent between 16 January 2018 and 2 July 2019 and that despite a notice to remedy breach being served, the first defendant has not paid the money owing and remains in possession of the property. The hotel is no longer operational and the second defendant currently resides in the property with others. There is no dispute that neither of the defendants are currently paying rent. [6] The applicants wish to sell the premises and wind up the superannuation fund and they are unable to do so due to the second respondent’s behaviour. The Application [7] On 6 June 2023 an order was made pursuant to r 375 of the Uniform Civil Procedures Rules 1999 (Qld) granting leave to the plaintiffs to amend their claim in the form exhibited to the affidavit of Joseph Paul Beaumont dated 12 May 2023 at JPB-18. The defendants were ordered to file any amended defence by the 20 June 2023 and a hearing for an application for summary judgment by the plaintiffs was adjourned to 30 June 2023. -- 3 of 7 -- 4 [8] The amended statement of claim sought orders pursuant to s 68(1)(b)(xi) of the District Court of Queensland Act 1967 (Qld) for: (a) the recovery or possession of the premises; (b) damages for breach of contract (the lease); and (c) interest and costs. [9] The defendants did not file an amended defence by the due date however at the commencement of the hearing of this matter an affidavit sworn by Anastasia Ingrid Slater and dated 29 June 2023 was read and filed. That affidavit annexed an amended defence which the defendants seek to file. The defence [10] The proposed defence admits that: • the plaintiffs as trustees of the B4 Superannuation Fund are the registered owners of the property and the hotel constructed thereon; • the first defendant is a company duly incorporated; • the second defendant is the sole director and secretary of the first defendant; and • a notice to remedy breach was served on the first and second defendants on 17 November 2019 and it terminated the lease with immediate effect and demanded vacant possession of the premises pursuant to cl 9.3 of the lease. [11] By way of reply to the claim, the first and second defendants plead that the superannuation fund has not been properly administered in breach of the Superannuation Industry Supervision legislation and that the fund should include the second defendant as a trustee of the fund. [12] The defence further pleads that the plaintiff did not mitigate its loss because there was no agreement reached to offset works completed against the rent or to negotiate terms for repayment of the balance of the rent due and in terminating the lease the plaintiff -- 4 of 7 -- 5 caused the defendants to lose their source of income. Finally it is pleaded that the amount of rent claimed is incorrect. [13] In his affidavit dated 20 June 2023 the second defendant alleges that: • he and his brother Zane were unlawfully removed as trustees of the superannuation fund. He has annexed an unsigned and undated statement from Zane to that effect. • a lease agreement was never signed and that the lease agreement produced and provided by the plaintiff is a compilation of other documents [this is contrary to the pleaded case sought to be filed] • capital works were carried out after floods by the second defendant and there was an oral agreement that the cost of those works could be used to offset rent owed to the plaintiffs. The application [14] In relation to the application for summary judgment, the defendants have not complied with the order made on 6 June 2023 to file an amended defence by 20 June 2023. The defence that is now sought to be filed as an amended defence is in itself deficient both in form and substance. It does not detail the basis for the offset, the details of the offset of the rent, the details of the agreement in relation to rent to be paid. A new amended defence will have to be filed to properly comply with the Uniform Civil Procedure Rules 1999 (Qld). [15] The allegations raised in the affidavit however suggest that there is a dispute about the contents of the lease of the premises and the amount of money owed by the defendants to the plaintiffs. The defendants should be given an opportunity to properly plead their case in this regard. [16] It was common ground during the hearing of this matter that the second defendant is living on the premises and has been since this dispute arose. It is also common ground that he has not been paying rent. Despite accepting that the lease, in whatever form it may have been made, has now expired, and that he is not the owner of the property, -- 5 of 7 -- 6 the second defendant refuses to vacate the property without being placed on the title of the property. [17] The defendants claim there are issues with the superannuation fund. It is claimed that the fund is operating in breach of the Superannuation Industry (Supervision) Act 1993 and that the second defendant should be one of the named trustees. He is one of the beneficiaries of the fund. Accepting this to be the case, it does not entitle him to refuse to vacate the premises. [18] The principles in relation to summary judgment are clear. It is accepted that it should be granted only in cases where there are no prospects of success namely whether there exists a real, as opposed to a fanciful, prospect of successfully defending the proceeding.1 [19] In this case there appear to be issues raised in relation to the trust and its operation, and contributions made in relation to offsets and ancillary agreements made in relation to reduction of rent. If the defendants are given time leave to file an amended defence it is likely there will be a triable issue in relation to those matters. In relation to the property itself, I accept the submissions of the applicants that there is no basis on the material presented for the defendants to stay in possession of the property. Any dispute over the trust and what is owed, who should be trustees and how it should be distributed can be decided without the defendants remaining in the property. In fact, it seems it is the best interests of all the parties for the property to be sold before it deteriorates further. In my view it is appropriate to give summary judgement in part in relation to the possession of the property. [20] In relation to costs. The plaintiffs have been partially successful in their claim. The defendants did not comply with the earlier orders made and have to date not provided an adequate amended defence. The costs of this application should be awarded in favour of the plaintiffs. 1 See Bolton Properties Pty Ltd v J.K. Investments (Australia) Pty Ltd (2009) 2 Qd R 202; the Deputy Commissioner of Taxation v Salcedo [2005] QCA 227. -- 6 of 7 -- 7 ORDERS [21] Therefore, pursuant to r 292(2) of the Uniform Civil Procedure Rules judgment is given for the plaintiffs against the first and second defendants in respect of part of the plaintiff’s claim namely: (a) Pursuant to s68(1)(b)(xi) of the District Court of Queensland Act 1967 (Qld) the first and second defendants deliver possession of the property and premises situated at the corner of William Street and Patrick Street, Laidley and described as Lot 1 on Registered Plan 180653 bearing Title Reference 16239106 to the plaintiffs within 14 days. (b) The first and second defendants are given leave to file an amended defence within 21 days. (c) The application for summary judgement is otherwise dismissed. -- 7 of 7 --