Barnes & Barnes, Re [1995] QSC 341

IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Justice Mackenzie [Re Barnes] IN THE MATTER of the Property Law Act 1974 IN THE MATTER of an Application by CAMERON CLIFFORD JOHN BARNES AND LACHLAN CHARLES BARNES O.S. No. 663 of 1995 FOR RELIEF AGAINST FORFEITURE OF A SUB-LEASE JUDGMENT - MACKENZIE J. Judgment delivered 2 l /12/1995 CATCHWORDS: Counsel: Solicitors: Hearing date: LAND LORD AND TENANT- Relief against fotfeiture - whether s.124 Pmpe1iy Law Act applies to unregistered lease. Mr W. Cochrane for applicants Mr I. Stacey (solicitor) for respondents Wonderley & Hall for applicants Lees Spanner & Stacey for respondents 30 October 1995 -- 1 of 4 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Mr Justice Mackenzie [Re Barnes] IN THE MATTER of the Property Law Act 1974 IN THE MATTER of an Application by CAMERON CLIFFORD JOHN BARNES AND LACHLAN CHARLES BARNES O.S. No.663 of I 995 FOR RELIEF AGAINST FORFEITURE OF A SUB-LEASE JUDGMENT - MACKENZIE J Judgment delivered 21 December 1995 This 1s an application for relief from forfeiture of a sub-lease over a property near Inglewood. After negotiations a sub-lease was executed on 8 September 1994 by the lessor for a term of three years from I September 1994 with an option for a further one year. The applicants went into possession on I O September 1994. The consent of the Department of Lands to the sub-lease had been notified to the respondent on 6 September 1994. A copy of this notification was sent to the applicants on 9 September 1994. It was subject to conditions one of which was that a declaration concerning the status or capacity of the applicants to hold the sub- lease had to be executed. The lease remained unregistered because the applicants were dilatory in executing this document, not having done so until 22 September 1995. It is not possible in these proceedings to express a view whether, as the applicant implies, the respondents were considering leaving the property prematurely and did not wish to finalise the matter. -- 2 of 4 -- 2 By this time a notice to remedy breach in Form 10, dated 3 August 1995 had been served for failure to pay rental, costs in consequence of default and interest. The outstanding rental was paid on 7 August 1995. Issue was taken as to the quantum of costs and of the claim for interest. The argument as to the latter was whether the Common Law Practice A et rate of interest or a higher rate claimed by the respondent was payable. By separate letter the applicants claimed breach of the sub-lease by the respondent, including the failure to remove items stored on the property and rubbish, failure to effect agreed repairs and leaving stock on the property for a period after the commencement of the sub-lease. The respondent denies that he is liable in respect of these complaints. On 8 September 1995 following a justification of costs by the respondent the applicants paid that sum and the Common Law Practice Act rate of interest to the respondent. The balance (about $150) was paid into a solicitor's trust account pending resolution of that issue. On 3 August 1995 notice to deliver up possession under the ProJJerty Lml' A er was given. This was based on the failure to pay previous instalments of rental on time and to pay costs and interest demanded. Then a complaint for recovery of possession, returnable in the Magistrate's Court Warwick, was taken out on 24 August 1995. The applicants asserted that proceedings under s. 141 of the Pro perry Law A et did not apply to cases where there had been forfeiture as opposed to expiry or termination. The matter was adjourned by the Magistrate pending resolution of these proceedings. The issue argued before me was whether s.124 of the Property Law A et applied to the case. Although the agreement for the lease was for three years, it was submitted that because it remained unregistered it fell within the exception to s.124 as a "lease or tenancy for a term of one year or less". It was submitted that there was a tenancy at will by virtue of s.129. However in my view because of the fact that there was a written instrument evidencing the terms and -- 3 of 4 -- 3 conditions of the sub-lease made with the consent of the Minister, which was in force at the time of execution by the sub-lessor, and capable of registration upon compliance with the requirements of the Department of Lands, there was a term for the duration specified in the lease subject to the conditions in the lease. I do not consider that Palmdale Insurance Limited v. Sprenger [1988] l Qd.R. 414 compels me to a different conclusion, because contingent defeasibility if approval was not given was the issue there. In the present case, there is no evidence that the lease cannot be registered. By the time the application was heard, apart from the disputed issue of interest, it was not suggested that the applicants were then in breach of the requirements of the sub-lease. There is no reason to suppose that, subject to one matter, registration could not have been enforced. That matter is that at the time of execution of the lease the Land A et I 962 was the operative statute. There is a provision in s. 274 of the Land A et requiring the sub-lease agreement in accordance with the Minister's approval to be lodged for registration "as soon as practicable after the receipt of the Minister's approval". Unlike under the Land A er 1994, the ministerial approval does not lapse (see s.332, 1994 Act). I was not informed that there would be any practical difficulty in obtaining registration notwithstanding s.274. Having regard to the absence of evidence that the lease is not now capable of registration and in view of the evidence that at the time of the hearing there was no current default I am of the view that the applicants are entitled to relief from forfeiture. However as the failure to have the lease in a registrable form at the time when the notice was served was principally that of the applicants I make no order as to costs. The formal orders are:- 1. I declare that the applicants are relieved from forfeiture of their sub-lease from Sidney George Powell and Dallas April Powell. 2. I make no order as to costs. -- 4 of 4 --