Transmetro Corporation Ltd Can v. Ronald Davy and Others and Tower Mill Body Corporate Cts 1918

Facts of the Case

The applicant since the year 1994 had operated a certain kind of a motor business which was considered to at the Tower Mill Motor Inn and such was on the Wickham Terrace. This particular building was considered to be nine stories high which was serviced by two lifts and the rooms along with the suites were let out as the motel rooms and such were considered to be owned by various owners who had lease them to the applicant in this case. The owners had also entered into certain caretaking agreements with the Body Corporate who was considered to be the second respondent. The object for such agreements were considered to allow the applicants to conduct the business by giving certain access to as well as control of the common property that had been necessary to the business of the applicant. In the current years there had been a downturn of the business regarding the profitability and in addition to such the age of the Tower Mill building was considered to be due to the lack of any capital that had been applied to the maintenance as well as refurbishment that had made it attractive to the visitors who were considered to want overnight as well as short-term accommodation. The result for such was considered to be due to the applicant who had struggled to pay certain kind of rent to the first respondents at certain levels which had been agreed upon in the leases between them. There was a proposal in order to overcome the difficulty and such had become the subject of certain dispute. The first respondents were considered to claim that there had been certain validity that had been determined for the leases with the applicant and such had also demanded an immediate possession for their lots. The applicant due to such disputes were considered to provide with the validity of the unsubstantiated termination.

Issues of the Case

The case concerned the issues where the wording of the letter that had been contested by the parties were considered to be the central to the determination of the issues that had been raised by the appeal. Nevertheless, it was considered to be desirable to record certain related dealings between the parties in order to provide the context relating to the critical documents and along with such assist in the explanation of such issues which arose during the course of the hearing. At certain relevant times it can be understood that the respondent was considered to run the Tower Mill Motor Inn business on the Wickham Terrace. There had been building unit’s plan which had been made and along with such the individual lots had been owned by several individuals along with the corporations which were inclusive of the appellants who had leased their respective lots to the respondents under that of the identical leases. In a certain letter to the lessors the respondent had complained that the business was considered to be loss making and along with such unsustainable which would have given the rentals that it had been obliged to pay the lessors and the letter was considered to foreshadow the respondent and such would be putting before the lessors a certain offer or proposal that would include a rent reduction or decrease in rent among the other things. This foreshadowed the offer or the proposal that was contained in the circular letter of the respondent which had been provided in a relevant manner. The object of the letter was to provide with a secure tenure for five years at determined rent or a rent for two years’ time period.

The Material Facts

This particular case was in relation to the contract law regarding offer and acceptance where the appellant owners and along with such the lessors of the individual lots were considered to be in Tower Mill building and the respondent operator of the Tower Mill Motor Inn business as well as the lessee of the appellants’ lots were considered to be under the identical leases. The leases were considered to commence on 30^th of September 1994 and such had expired on 30^th June 2004 where the respondent wrote to the appellants stating that they had taken certain liberty of continuing with the rental systems and the payments on a seventy percent basis and such letter had also included an offer which would be continuing the leases until it had expired on the 30^th of June 2004 and during that time the appellant could have taken back the possession. There had been no specific time period for acceptance stated in the letter and the appellants had issued a notice to remedy the breach of the covenant which would be calling the respondent to pay certain rent in the arrears through notice of the remedy to breach of the covenant and such would be considered to call the respondent to pay certain rent in arrears by the notice in order to terminate the lease. Such can be observed from the case of Ballas v Theophilos (No 2) (1957) 98 CLR 193. Such had been dated on the 30^th of June 2004 and the appellants were considered to purport in order to accept the offer of the respondent in order to pay the rent in arrears by notice to terminate the leases and the respondents had applied to the Supreme Court for a declaration relating to the notices being void or which did not have any effect. The primary judge was considered to grant declaration relating to the offer and such offer was no longer considered to be open for any acceptance and whether the notices of the termination had been constituted for the acceptance was considered to be of the respondent’s offer. It could also be understood from the case of Baker v Taylor (1906) 6 SR (NSW) 500. The relief that had been sought in the first instance was considered to be from the declaration that the notices that had been dated 30^th of June 2004 were considered to terminate the leases that had been entered into between the respondent as the lessee along with the appellants as the lessors would have no effect. Along with such a declaration would also have been purported the acceptance of an offer or a proposal that had been made by the respondent to that of the several appellants in the circular letter. Similarly it can be understood from the case of Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918 & Ors [2009] QSC 427 where this proceeding was considered to begin by the application where the applicant was considered to seek a declaration for the right to use the common property which was considered to be the Tower Mill Motor Inn CTS 1918 and such would be in connection with the hotel as well as the restaurant business that had been conducted by it at the Tower Mill Motor INN. The directions were given in connection with the pleadings and a statement of claim had been filed which was on behalf of the applicant. The Surveyor Conics Brisbane Pty Ltd (Conics) was considered to be appointed as a certain kind of expert for the objective of determining an area as well as the extent of such area which was prevailing at the common property as such had been encroached upon by the enhancements and the improvements that the applicant was considered to cause in order to construct and the Conics were prepared to prepare a survey report which identified twenty seven regions that had a possibility of infringement and also dealt with in a separate category with the pipes that had been located in the basement. The first respondent had advised the court that it would be considered to have abided by the order relating to the court and such was also excused from certain other participation in the proceeding. The defenses were considered to be for the second as well as the third respondents.

The legal rule of the case

The legal rule that was considered to be applied in the case was the rule of offer and acceptance in contract. The appellants had contended that the leases of the premises regarding Tower Mill respectively were considered to be brought to an end either through the termination for the breach or through the acceptance of the proposal that had been referred to earlier. On the hearing it had been provided that Ronald Davy had sought to leave to appear on behalf of the other appellants. It had been found through the progress of the case that the number of separate letters were sent the respondent and due to such several lessors had rejected the offer of the respondent and provided notice that would require the respondent to remedy certain breaches of the covenant and the other lessors had demanded the payment of the rent that had been due under such leases which also comprised of certain reserved rights respectively. It was similar to the case of Ballas v Theophilos (No 2) (1957) 98 CLR 193 at 197. The evidence relating to such was considered to be largely silent as to the dealings regarding the parties. On the 23^rd June in the year 2004 the solicitors during that time for the appellants had written to the respondent regarding the notice to remedy the breach of covenant which called the respondent in order to pay the arrears for the rental as well as the outgoings within the notice period of seven days. The respondent in this scenario, had failed to comply with certain notices regarding the notices as well as the appellants through the solicitors and gave the notice which the appellants would contend and along with such constitute the acceptances of the offer that had been made for each of the letter. Therefore, it had been found by the primary judge that there had been a reasonable time that had expired after making the offers and such had lapsed in the consequence. It had also been provided that the lease would have considered to be brought during the end of 30^th of June 2004 and such was in some other regular way and therefore, the honor had in mind the execution relating to the instrument of surrender and it had been taken into account that if such an offer in the letter had been made or performed and after the offer had been made if such had been accepted on the 30^th of June in the year 2004 the documentation regarding that of the surrender would be considered to be impractical. Thus, these observations were considered to be concluded upon by the primary judge during that of the first instance in this particular case or scenario.

Outcome

After the hearing of the appeal it had been found that Mr. Davy had sought to depend on fresh evidence however, it was not established that there lied any impediment to the placing of the material before the primary judge as the leave was considered to be refused. There was a difficulty which was faced by Mr. Davy as well as the other appellants in the argument prior to the primary judge being advanced on certain specific as well as limited ground which was based on certain few documents. The only issue regarding such was as the counsel had acknowledged was whether any of the notices that had constituted and established the acceptances of the proposals or the offers made in the letter addressed on 2^nd of July 2002. It is considered to be impossible as well as difficult to advance different as well as broader arguments based on the evidences which were considered to be different. The decision was given in order to dismiss the appeal and along with such order those appellants whose names were considered to be listed in the schedule to the several reasons which would pay the costs of the respondents of the appeal which would be assessed on the standard basis.

Bibliography

Case Laws

Baker v Taylor (1906) 6 SR (NSW) 500.

Ballas v Theophilos (No 2) (1957) 98 CLR 193 at 197

Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918 & Ors [2009] QSC 427.

Transmetro Corporation Ltd Can v. Ronald Davy and Others and Tower Mill Body Corporate Cts 1918.