Cowsley, Re [1993] QSC 50

Sc-93/oSO State Reporting Bureau •-m-------------------------------------------------------------------------------- TRANSCRIPT OF PROCEEDIN(;S (Copyright in this transcript is vested in the Cro·wn. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 160 of 1993 IN THE MATTER of s.124 of the Property Law Act 1974-1990 and IN THE MATTER of an application by Elaine Olga Millicent Cowsley BRISBANE .. DATE 18/02/93 JUDGMENT 1 REVISED COPIES ISSUED State; 8Gr;· .. :~:::g 3ureau 4- .? c?~ D::1te I .> I 7-- :1th FTnnr. ThP raw Courts. Geonre Street. Brisbane. 0. 4000 Televhone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 5 -- 180293 rgc (Ryan J) HIS HONOUR: This is an application for a declaration that the applicant is not in breach of any implied covenant not to use certain premises for any illegal purpose. The respondent is the registered proprietor of the premises. By an oral agreement with the applicant on or about 5 March 1992 he leased the premises to the applicant. He deposes that he first became concerned about the nature of the business conducted on the premises when he saw on television in September 1992, that the applicant had been committed for trial on a charge of keeping a bawdy house. He became more concerned following the proclamation on 1 February 1993 of the Prostitution Laws Amendment Act (The Act). I understand that his concern relates to the effect of s 229 K of the Act. He states that if the Court declares the nature of the business presently conducted at the premises does riot constitute a breach of the Act he has no objection to the lessee continuing in occupation of the premises and he would withdraw the notice to remedy breach of covenant. A notice pursuant to s 124 of the Property Law Act 1974 was given to the applicant on 9 February 1993. It asserts that there is an implied covenant in the lease that the lessee will not use the premises for any illegal purpose and/or in the alternative any immoral purpose and the breach by her of that covenant. It requires her to remedy that breach by ceasing to operate the premises for the purpose of any breach of the Act. The applicant deposes that she is the owner of a business JUDGMENT 2 10 20 JO so 60 -- 2 of 5 -- J80293 rgc (Ryan J) which trades at the premises. She gives an account of the manner in which she states the business now operates and asserts that given the nature of the business there are no offences committed pursuant to the Act on the premises nor off the premises with her knowledge and nothing unlawful of any nature happens in terms of the premises or the business as it is currently conducted. In Forster '!. Jododexlmstralia Pty Ltd ( 1972) 127 CLR 421 at p 435 it was stated by Gibbs J that: "The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that under o 25 r 5 (UK) the power of the Court to make a declaration where it is a question of defining the rights of two parties is almost unlimited; I might say only limited by its own discretion." In Sanky v Whitlam (1975) 142 CLR 1, at p 20, Gibbs ACJ added; "It is clear enough that the power of the Court is not excluded because the matter as to which a declaration lS sought may fall for decision in criminal proceedings." In deciding whether the discretion to make a declaration should be exercised it is necessary the question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; and he must be able to secure someone presently existing who has a true interest to oppose the declaration sought. See Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited (1921) 2 AC 438 at p 448 per Lord Dunedin. I am not satisfied that the respondent to this application is what Lord Dunedin in that case termed, "A proper contradictor." It appears from the respondent's affidavit he would be quite content to have the declaration sought by the JUDGMENT 3 10 20 30 40 50 60 -- 3 of 5 -- 180293 rgc (Ryan J) applicant made. The application appears to me to be one designed to secure a declaration which will give the sanction of the Court to the legality of the courss of conduct outlined in the applicant's affidavit. I do not consider I should make such a declaration in the absence of any respondent who is prepared to challenge the legality of that course of conduct. The respondent issued a notice to remedy the breach of covenant. It alleges a breach of an implied covenant that the lessee not use the premises for any illegal purpose and/or in the alternative any immoral purpose. It gives no particulars of the alleged breach. The notice of breach of covenant must be so distinct as to direct the tenant's attention to the particular things of which the landlord complains in order that the tenant may have an opportunity of remedying them before an action to enforce the forfeiture is begun. See Halsbury' s Laws of England, Fourth Edition Vol 27 para 434. If the premises are used for immoral purpose the breach of covenant is by its nature irremedial. See Rugby School Governors v Tannahill (1935) 1 KB 87. This notice nevertheless requires the applicant to remedy the breach though it gives no details of the alleged breach. How, it may be asked, could the applicant remedy breach of covenant by ceasing to operate the premises for the purpose of any breach of the Act when no breach of the Act by her is alleged? The respondent's affidavit does not contain allegations that the applicant has breached an implied term of the lease. The applicant has applied to be granted relief against forfeiture but in the absence of any details by the landlord of the alleged breach, it is impossible for me to exercise the JUDGMENT 4 1 ' 10 20 30 40 50 30 -- 4 of 5 -- ~80293 rgc (Ryan J) jurisdiction conferred by s 124(2) of the Property Law Act 1974. I dismiss the application. In the circumstances I make no order as to costs. JUDGMENT 5 10 20 30 40 50 60 -- 5 of 5 --