Cairns Plastic Surgery Pty Ltd v Fletcher & Ors [2002] QSC 199

^111 eo ^ n- in State Reporting Bureau i {StCA^y Queensland Government Department of Justice and Attorney-General 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. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J On L? No CAIRNS PLASTIC SURGERY PTY LTD (ACN 086 655 736) Applicant and WILLIAM JOHN FLETCHER and NEVILLE JOHN POCOCK as receivers and managers of THERESA HERTESS, ISOLDE EVELYN HERTESS and MARK DOYLE Respondents CAIRNS . .DATE 11/06/2002 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. <2 i 4Th Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (07) 3247 4360. Facsimile: (07) 3247 5532 -- 1 of 4 -- 11062002 T12/RGC M/T CNS3/2002 (Jones J) HIS HONOUR: This is an application on the part of the Cairns Plastic Surgery Pty Ltd for orders seeking a variety of relief which is really prompted by the fact that receivers of a partnership from whom the applicant rents premises entered into possession on the grounds of a failure to pay rent. There is a complication in so far as the controlling minds of the applicant company are indeed members of the partnership to which the Commonwealth Bank has appointed the respondents as receivers. The reason given to the Court in support of this application by the directors of the applicant company is that they had an agreement with the former partnership which involved the prepayment of the rent at least until November 2003. The notice to remedy breach of covenant under the lease which is entered into with the receivers proceeds on the basis that rent has not been paid since February 2002. That rent is payable pursuant to a covenant of a new lease which is dated the 1st of February 2002. So, the issue of whether the prepayment of rent to the former partnership is valid is a matter on which the action of the receivers depends. The notice to remedy breach of contract is dated the 10th of May 2002. It required compliance by the payment of outstanding rent of $9,847.52 to be paid within a reasonable time. The receivers acted on the 8th of July 2002 to take possession of the property. In other words, two days earlier 2 JUDGMENT -- 2 of 4 -- 11062002 T12/RGC M/T CNS3/2002 (Jones J) than the expiration of a month which prima facie would have been the reasonable time within which to remedy the breach or at least to have some discussions as to the validity of the claimed prepayment arrangement . Had the premises been unoccupied probably that action would not have mattered so much but the premises here are used as a reconstructive and cosmetic surgery by the applicant company. It is a place where patients attend to have a variety of surgical procedures and consultations. Any precipitated retaking of possession of the property causes inconvenience to a great many people and no doubt distress to some of them. I am advised that the surgery is required for the performance of procedures tomorrow and that any cancellation of those procedures for tomorrow and the ensuing days would cause considerable inconvenience. For that reason I will order that the applicant be entitled to resume possession of the premises without prejudice to the validity of the notice to remedy the breach of covenant dated the 10th of May 2002. I I do so on the undertaking given to the Court by Isolde Evelyn Hertess and Mark Doyle that neither they nor any other servant or agent or employee of the applicant company remove from the premises any fixtures, fittings or indeed patient and financial records without the leave of the Court. 3 JUDGMENT -- 3 of 4 -- 11062002 T12/RGC M/T CNS3/2002 (Jones J) The matter will be adjourned for mention on Friday the 14th of June 2002 at which date I expect, if there is not agreement between the parties as to whether the default is remedied, that there be some proposal by way of directions for the further hearing of the matter and perhaps proposal for the payment into Court of the disputed rent. The costs of this application will be reserved. 4 JUDGMENT -- 4 of 4 --