Caysand No 140 Pty Ltd v M Fiorelli (Cairns) Pty Ltd [1993] QSC 98

Bureau 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 MACKENZIE J No 157 of 1993 CAYSAND NO 140 PTY LTD Applicant and M FIORELLI (CAIRNS) PTY LTD Respondent BRISBANE .. DATE 07/04/03 .. ORDER 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 3 -- 070493 ham (Mackenzie J) HIS HONOUR: These are summary proceedings seeking final relief by way of declaration that a lease has ceased to have effect from 31 March. It is sufficient to say at this point that there are substantial questions of law and fact that have, it seems to me, been placed genuinely in dispute on the material before me. By way of refinement of that I indicate that I do not consider that the quantum is one of those issues .. ~ is the existence of an obligation to pay rent during a particular period at all that is really underlying the dispute. There are a number of questions of law that will be raised and I think it is also fair to say that there are questions of ~ construction to be placed on correspondence and conversations and the legal effect of them in terms of the lease and the Property Law Act. There is a discretionary element in any event in my determining proceedings in a summary way to give final relief. In my opinion the matter is one which does not, for the reasons I have indicated briefly above, lend itself to resolutions in a summary way in view of the substantial disputes on questions of fact and law. There are proceedings that have been commenced in the Cairns registry of the Circuit Court which,! am told,will raise the same issues and I have no reason to doubt that. The way in which the matter, I think, should be dealt with and I will hear counsel if they wish to add anything to this would be that this application should be dismissed in so far as it seeks a summary determination of ORDER 2 10 20 30 40 50 50 -- 2 of 3 -- 070493 ham (Mackenzie J) the matter by declaration, and I should order that the issue raised in the notice of motion be determined in. action 29 of 1993 in the Cairns registry of the Circuit Court on a date to be fixed. The costs of today's proceedings should be reserved and upon undertaking that an application will be filed to pursue the application for security for costs I adjourn further consideration of the application for security of costs to a date to be fixed. ORDER 3 10 20 30 40 50 60 -- 3 of 3 --