Cameron & Anor v Berg & Anor [2001] QSC 228

fl\\1- Ol·ZZ. S B (~ Queensland Government · tat e Rep Ort ing Ure aU ~ Department of justice and Attorney~ewal 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 HELMAN J No 4295 of 2001 EWEN RODNEY CAMERON AND JUDITH ANNE CAMERON and JOHN ROBERT BERG AND PATSY ANNE BERG No 4617 of 2001 JOHN ROBERT BERG AND PATSY ANNE BERG and EWEN RODNEY CAMERON AND JUDITH ANNE CAMERON BRISBANE .. DATE 14/06/2001 JUDGMENT ' Floor, The Law Courts, George Street, Brisbane, a. 4000 1 REVISED COPIES ISSUED State Reporting Bureau Dated I I bI O / Applicants Respondents Applicants Respondents Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 7 -- 14062001 T19/JLP15 M/T 3/2001 (Helman J) HIS HONOUR: There are two applications before me. One is no. 4295 of 2001 and the other no. 4617 of 2001. Mr and Mrs Cameron are the applicants in no. 4295 of 2001 and Mr and Mrs Berg are the applicants in no. 4717 of 2001. Mr and Mrs Cameron are the lessors of premises known as Mister Bean's Fresh Fruit Mart which is at 13645 New England Highway, Cambooya, Queensland. Mr and Mrs Berg are the 1 10 lessees. Mr and Mrs Cameron seek a declaration that they 2 are entitled to re-enter and take possession of the premises on the ground that, on its proper construction, clause 4.01 of the lease prohibits the sale of certain goods from the premises: bread, processed dairy products, smallgoods, newspapers, snack foods, confectionery, ice cream, and soft 30 drinks. Mr and Mrs Berg, who conduct the business at the premises, deny that they are in breach of the lease and have applied for relief from forfeiture of it should they be found to be in breach. On 7 February 2001, Mr and Mrs Cameron purchased the freehold title to the land the subject of the lease. The original lease was granted by the previous owner of the 40 land, Mr Michael O'Sullivan, to Mr Robert Schmiede in August 1996. Mr and Mrs Berg acquired the lease from Mr Schmiede · 50 in July 1998. On 16 March 2001, Mr and Mrs Cameron served a notice pursuant to s.124 of the Property Law Act 1974 on Mr and Mrs Berg requiring them to cease the sale of the goods I have 2 JUDGMENT 60 -- 2 of 7 -- 14062001 T19/JLP15 M/T 3/2001 (Helman J) referred to and to do other things which are no longer in issue on these applications. Mr and Mrs Berg have refused to stop selling the goods and so the applications have proceeded to a hearing today. The provision of the lease relevant to the sale of the disputed items is clause 4.01. It reads 4.01: "PERMITTED USE. The Lessee shall not use the Demised Premises for any purpose other than the Permitted Use specified in the Reference Data without the consent of the Lessor." Item 6 of the reference data is as follows. "Item 6: PERMITTED USE OF DEMISED PREMISES: As premises for the sale of fruit and vegetables and any other items ancillary to such use." The dispute between Mr and Mrs Cameron and Mr and Mrs Berg now concerns the construction of the words "any other items ancillary to such use". There is evidence before me of 1 10 20 30 matters which it was contended on behalf of Mr and Mrs Berg 40 are relevant to the construction of the words I have mentioned. There is evidence of subjective intention, post-contractual conduct, the goods sold at other fruit and vegetable shops, opinions, and admissions about the meaning of the words. In my view, however, one must construe the · 50 words according to their natural and ordinary meanings. Accordingly, I conclude that for something to be ancillary to something else, the former must have some association or relationship with the latter. That construction of the word 3 JUDGMENT 60 -- 3 of 7 -- 14062001 T20/LDV21 M/T 3/2001 (Helman J) "ancillary" is consistent with the primary meaning of the word as it is recorded in the Oxford English Dictionary, 2nd. ed. 1989, Vol. I, p.447: "[s]ubservient, subordinate, ministering (to)." I conclude that the expression "any other items ancillary to such use" does not refer to all food stuffs but does refer to items related to the sale of fruit and vegetables. On behalf of Mr and Mrs Cameron it was submitted that the expression could be wide enough to include kitchen ware for use with fruit and vegetables and things used to carry or store fruit and vegetables including bags and boxes. There was, at one time, some dispute between Mr and Mrs Cameron r 10 2 and Mr and Mrs Berg about crushed ice, but it is conceded on 30 behalf of Mr and Mrs Cameron that crushed ice could fall within the meaning of the expression because the ice could be used to store fruit and vegetables and to facilitate their transportation. In my view, those submissions on behalf of Mr and Mrs Cameron are correct, and that the items 40 in dispute are outside the purview of the expression. It follows that in selling those items Mr and Mrs Berg were in breach of clause 4.01 of the lease. The question then arises whether they would be entitled to relief from forfeiture, it being conceded on their behalf that a breach of clause 4.01 would prima facie entitle Mr and Mrs Cameron to forfeit the lease. 4 JUDGMENT - 50 60 -- 4 of 7 -- 14062001 T21/SJ3 M/T 3/2001 (Helman J) 1 On my assessment of the evidence Mr and Mrs Berg are entitled to relief from forfeiture. They have sold the items in question for some time, and the previous owner of the business sold most of the disputed items himself without 10 being accused of a breach of the lease. The use of the premises for the sale of fruit and vegetables is the main use made of them. Mr and Mrs Berg paid for the business and have worked hard 20 to build it up and make it more successful. They rely on it for their income to support themselves and their family. Forfeiture of the lease would cause considerable hardship to them. Mr and Mrs Berg did not continue to commit the .breach 30 of the clause without seeking advice but they were mistaken in concluding that they could sell the disputed items. They have spent considerable money in making improvements to the premises. It is not without relevance on the question of relief from forfeiture that fruit and vegetable shops in 40 nearby Toowoomba and the surrounding area do sell items which they are not permitted to sell without the consent of Mr and Mrs Cameron. In those circumstances then, I conclude that it will be · 50 appropriate to grant Mr and Mrs Berg relief from forfeiture. I shall invite further submissions on the form of the final orders to be made on these applications and on the question of costs. 5 JUDGMENT 60 -- 5 of 7 -- 14062001 T22/JLP15 M/T 3/2001 (Helman J) 1 HIS HONOUR: I shall go over the orders on application no. 4295 of 2001 and then I shall make my order as to costs on 10 that application. I declare that on its proper construction clause 4.01 of the lease between the applicants and the respondents of premises at 13645 New England Highway, Cambooya, Queensland, 2 registered no. 702143043 dated 1 August 1996 as amended by amendment registered no. 702883847 dated 2 July 1998 in respect of lot 7 on registered plan no. 902282 in the County of Aubigny, Parish of Cambooya, title reference 50145845, does not permit, without the consent of the applicants, the 30 sale by the respondents from the premises of the following items: bread, processed dairy products, smallgoods, newspapers, snack foods, confectionery, ice cream, and soft drinks. I dismiss the claims to relief in paragraphs 1 .2, 1 .3, 1 .4, and 1.5 of the applicants' amended originating application. On the question of the costs of this application, I accept that there is merit in the submissions made on behalf of Mr and Mrs Berg but, nonetheless, it must be acknowledged that the applicants succeeded, at least in part, on this application. 6 JUDGMENT 40 . 50 60 -- 6 of 7 -- 14062001 T25-26/IRK13 M/T 3/2001 (Helman J) The order for costs on application 4295 of 2001 will be that the respondents pay to the applicants one-third of their costs of and incidental to the application, including reserved costs, to be assessed on the standard basis. Now, on application 4617 of 2001 I order that the applicants be relieved from forfeiture by the respondents of the lease between the applicants and the respondents of premises at 1 10 13645 New England Highway, Cambooya, Queensland, registered 20 number 702143043, dated 1 August 1996 as amended by amendment registered number 702883847 dated 2 July 1998 in respect of lot 7 on registered plan number 902282 in the County of Aubigny, Parish of Cambooya, title reference 50145845 upon the condition that within twenty-one days the 30 applicants cease selling from the premises bread, processed dairy products, smallgoods, newspapers, snack foods, confectionery, ice cream, and soft drinks and refrain from selling such items from the premises without the consent of the respondents until the expiry of the lease or an order of 40 the Court is made permitting them to sell such items. HIS HONOUR: And, on that application, that is, 4617 of 2001, I make no order as to costs. 7 JUDGMENT . 50 60 -- 7 of 7 --