Dasanayake & Anor v Aust Pacific Developments Pty Ltd & Anor [2002] QSC 336

Lib State Reporting Bureau laoosTIgs:536/' / Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. Issued subject to correction upon revision. REVISED COPIES ISSUED State-Reporting1 Bureau Date ^ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ Application No S743 of 2002 PUNCHI DASANAYAKE AND DEEPA DASANAYAKE Applicants and AUST PACIFIC DEVELOPMENTS PTY LTD ACN 074 776 211 First Respondent and MICHAEL JOSEPH McEVOY Second Respondent CAIRNS ..DATE 03/10/2002 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 4 -- THE CHIEF JUSTICE: In this case the applicants had an 1 unregistered lease for a term, 20th of December 2001 to 19th of December 2004, over the subject property, which as Exhibit 1 shows, was stamped, but apparently not registered. 10 The contention against them is that they did not pay rent and meet other covenants under the lease, which was consequently duly terminated by the lessor, leading in due course to the lessor, as proprietor, selling the property to a third party, Mr Le Cornu . 03102002 D.l T12/KSJ M/T CNS2/2002 (de Jersey CJ) THE CHIEF JUSTICE: The transfer to the new proprietor was registered on the 3rd of September 2002 and he is in possession of the property. 30 Seven days later the applicants filed the current application, which is designed principally to secure their renewed possession of the premises, so that they might again trade from them. Mrs Dasanayake, who appeared today in person for herself and her husband, the other plaintiff, has sought to contend, by way of submission, that the lease was not properly terminated, 50 I suppose is the way one should put it, and that the sale should not have occurred, with a hint of complicity on the part of the new purchaser in unlawful conduct . 2 JUDGMENT 80 -- 2 of 4 -- 1 As I explained to her, their application today could not possibly proceed without proper notice to the new proprietor who, in effect, they seek to eject from his possession of the premises . 10 I would not like however, that to be seen as an invitation necessarily to the applicants to recast the proceedings to involve Mr Le Cornu. I am not to be taken as suggesting that there is any particular potential merit in the claim. I have not embarked upon it to the point where I could say that. 20 The reason, critically, why the matter can not proceed today is simply that Mr Le Cornu, as the person in current, apparently lawful, possession of the property is not before the Court and has not been notified of the proceedings, which 30 if determined one way, would of course, and obviously, vitally affect his rights. The application will therefore be adjourned until the 14th of October 2002, being the next applications day, or such other 40 time as is agreed upon between Justice Jones and the parties. That complication arises because Mr Royds, who is appearing for the respondents, is unavailable on that day and I have left open the possibility that his Honour may be able to deal with the matter on another occasion that would suit all 50 parties. I had in mind - I hope not presumptuously - that perhaps some time could be allocated proximate to the 14th of October, if not on that date. 03102002 D.l T12/KSJ M/T CNS2/2002 (de Jersey CJ) 3 JUDGMENT 60 -- 3 of 4 -- 03102002 D.l T12/KSJ M/T CNS2/2002 (de Jersey CJ) Costs should, in the meantime, be reserved. 10 ku 30 50 4 JUDGMENT 60 -- 4 of 4 --