SID: 13327608

Faculty of Law

Civil Procedure
LAWS11-319
SEMESTER 153
Drafting Assignment

Alicia Smith

13327608 p 1
SUPREME COURT OF QUEENSLAND
REGISTRY:
NUMBER:

Plaintiff:

Southport
S145/201
5

TERRENCE JAMES OAKES

AND

Defendant:

LINCOLN PROPERTY GROUP LTD

(ACN 093 373 909)

APPLICATION
TAKE NOTICE that the plaintiff is applying to the Court for the following orders:
1. An interlocutory injunction to prevent the Defendant from re-entering the
leased premises for the purposes of forfeiting the Plaintiffs lease, or to
remove the Plaintiff or the Plaintiffs personal property under s 9 of the
Civil Proceedings Act 2011 (QLD) and s 124(2) of the Property Law Act
1974 (QLD), until after the resolution of the parties claim proceedings.
2. That the Defendant pay the costs of the Plaintiff of the application and
claim.

This application will be heard by the Court at Southport

on: 20 November 2015 at 10 am.
Filed in the Southport Registry on 16 November 2015:
Registrar:
If you wish to oppose this application or to argue that any different order
should be made, you must appear before the Court in person or by your
lawyer and you shall be heard. If you do not appear at the hearing the orders
sought may be made without further notice to you.
APPLICATION
Filed on Behalf of the Plaintiff
Form 9, Version 1
Uniform Civil Procedure Rules 1999
Rule 31

Lawless Hangman & Felon

Solicitors
221B Baker Street
Southport QLD 4215
(07) 5555 5555

13327608 p 1
On the hearing of the application the applicant intends to rely on the following
affidavits:
1. Affidavit of Terrence James Oakes sworn 14 November 2015;

APPLICATION
Filed on Behalf of the Plaintiff
Form 9, Version 1
Uniform Civil Procedure Rules 1999
Rule 31

Lawless Hangman & Felon

Solicitors
221B Baker Street
Southport QLD 4215
(07) 5555 5555

13327608 p 2

2. Affidavit of Maree Madliven sworn 15 November 2015;

THE APPLICANT ESTIMATES THE HEARING SHOULD BE ALLOCATED
30 minutes
Signed:
Description:

Solicitor

Dated:

16 November 2015

This application is to be served on:

Lincoln Property Group Ltd
Suite 2/15 Recovery Drive
St Kilda VIC 3182

SUPREME COURT OF QUEENSLAND

REGISTRY:
NUMBER:

Plaintiff:

Southport
S145/2015

TERRENCE JAMES OAKES

AND

Defendant:

LINCOLN PROPERTY GROUP LTD

(ACN 093 373 909)

OUTLINE OF ARGUMENT
ON BEHALF OF THE PLAINTIFF
Materials Relied Upon by the Plaintiff:
1. Application for Interlocutory Injunction filed 16 November 2015
2. Affidavit of Terrence James Oakes sworn 14 November 2015 and filed 16 November 2015
3. Affidavit of Maree Madliven sworn 15 November 2015 and filed 16 November 2015
Submissions:

13327608 p 2
1.1 On 1 June 2012 the plaintiff Terrence James Oakes entered into a lease agreement
with the defendant Lincoln Property Group Ltd (ACN 093 373 909) for a commercial
premises on Laurence Drive in Nerang, Queensland.
1.2 The lease commenced 1 July 2012 for a period of 3 years. The plaintiff had an
option to renew the lease for a further 3 year term, dependent on the plaintiff paying
rent monthly and not breaching essential terms of the lease.
1.3 The plaintiff talked with Matt Lincoln, a representative for the defendant
company, and stated his intentions to install a large roller door in the front wall of the
premises.
1.4 The plaintiff contracted with builders to install the roller door. On 13 May 2015
the plaintiff realised that the roof of the leased premises was structurally damaged, as
confirmed by the engineers oral report.
1.5 The defendant has now threatened to remove the plaintiff and the plaintiffs See
Exhibit
property from the premises.
TO-1
1.6 The plaintiff is seeking an interlocutory injunction to restrain the defendant from
such action until claim proceedings between the parties have been resolved.
1.7 S 9(1) of the Civil Proceedings Act 2011 (QLD) vests the Court with the equitable
power to grant injunctions and similarly, s 9(3) gives a court the power to grant
interlocutory injunctions. Because injunctions are an equitable remedy, the court will
decide at its discretion whether to grant or not.
1.8 There are two elements in Queensland Industrial Steel Pty Ltd v Jensen
[1987] 2 Qd R 572 of which the court needs to be satisfied. There must be a
serious question to be tried and also the balance of convenience must lean towards the
granting of the injunction.
1.9 Here there is a triable issue because the court needs to establish whether or not the
plaintiff breached the lease in order to determine if the plaintiff is entitled to damages
for damage to furniture and loss of contracts and a declaration that the plaintiffs notice
to exercise an option was validly given.
1.10 The granting of an injunction requires an analysis of both the plaintiff and
defendants circumstances on the balance of convenience (Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA
63). Here the question for the court is Is the injury to the plaintiff if an injunction is
refused greater than the injury to the defendant if the injunction was granted?
1.11 If the injunction is refused the plaintiff will be ejected from the leased premises,
the plaintiffs property will be displaced, and the plaintiff will lose a number of clients.
If the injunction is granted the defendant will be receiving consistent rent from either
the plaintiff or a new tenant in the leased premises, so no injury will be caused to the
defendant if an injunction is granted or refused. On the balance of convenience it
seems better to have the plaintiff remain in the premises until the original claim is
sorted out in court.
1.12 An injunction will only be granted where common law damages are inadequate
as per Irving v Emu & Prospect Gravel & Road Metal Co Pty Ltd
[1909] 26 WN (NSW) 137. In the case of the plaintiff it may be impossible to

See
affidavit
Terrence
James
Oakes
para 15

See
Exhibit
MM-1

13327608 p 2
quantify a monetary value of loss the plaintiff will suffer. The plaintiff has lost a
valuable client and upcoming contracts, and will not be able to work until a new
premises is found.
1.13 S 124(2) of the Property Law Act 1974 (QLD) provides the lessee a remedy if a
lessor exercises their right to forfeit the lease. The lessee may apply to the court for
relief. The court will consider the proceedings, parties conduct and relevant
circumstances of the case, and in the courts discretion, an injunction may be granted.
1.14 S 124 of the Property Law Act 1974 (QLD) requires a notice to be
served on the lessee before a right of re-entry or forfeiture is exercised by the lessor.
1.15 The plaintiff submits there are no grounds for the defendant to claim a breach of See affidavit
Terrence James
the lease or a right to re-enter and forfeit the lease, as no formal notice was ever Oakes para 11
received by the plaintiff in regards to the installation of the roller door.
1.16 Under s 124 of the Property Law Act 1974 (QLD) if a breach occurs, the
lessor is required to give a formal notice to the lessee. The notice must contain: the
specificities of the breach and the action the lessee must take to remedy the breach.
The lessor should give the lessee the notice in line with s 347 of the Property Law
Act 1974 (QLD). The lessee has a reasonable time (assessed subjectively) to
remedy the breach as per BBF Toowoomba Pty Ltd v Nebrean Pty Ltd
[2001] QSC 313.
1.17 In the recent case of Grepo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131
the court upheld that a lessor who had not given the correct notice could not rely on
breaches committed before the time an option had been exercised as rationale for not
allowing that option to be exercised.
1.18 When Matt Lincoln of the defendant company became aware of the plaintiffs
alleged breach in May 2015, the defendant should have issued the plaintiff with a
notice in compliance with the statutory requirements.
1.19 The plaintiff submits that even if the defendant lessor had correctly given
notice, they have waived their right to forfeit the lease by continuing to accept rent
even though they had actual knowledge of the breach.
1.20 A lessor may lose its right to forfeit the lease if they waive the breach. The
onus is on the lessee to establish that the lessor has waived the right to forfeit the
lease. The lessee must show that the lessor was aware of the breach and that the
lessor has done an unequivocal act that effectively recognises the existing lease.
1.21 In McDrury v Luporini [2000] 1 NZLR 652 being aware of the
breach has been constructed to mean having actual knowledge
that the breach occurred.
1.22 A lessors waiver can either be express or implied. In Matthews v
Smallwood [1910] 1 Ch 777 and Davenport v Smith [1921] 2 Ch
270 lessors actually knew of the lessees breach yet continued to accept the rent
paid by the lessee even after the breach had occurred. This can be considered an
unequivocal act by the lessor that recognises the existence of the lease.
1.23 In the alternative, another example of waiving a right to forfeit is where a lessor
grants a new lease to the lessee as in Ward v Day [1864] 122 ER 865. In
October 2015 the parties were in talks to re-start a lease to the premises on new
terms and rental. This may constitute an unequivocal act by the lessor.

See affidavit
Terrence James
Oakes para 8
See exhibit
TO-3

See affidavit
Terrence James
Oakes
para 18

13327608 p 2
1.24 The alleged breach of the lease occurred on or around 2 nd May 2015, the date the
builder had finished installing the roller door. Matt, a director of the defendant company
gained actual knowledge of the breach on the 13th May 2015 when he was notified by the
lessee via telephone call, and he viewed the damage himself.
1.25 After the defendants notice to quit (2 July 2015) and negotiations between the
parties began, the plaintiff has been paying rent in advance every month, as per the lease.
The defendant has been accepting this rent, an unequivocal act recognising the lease.
This is an implied waiver of the defendants right to forfeit the lease.
1.26 The plaintiff submits that no waste was caused to the property when the roller door
was installed.
1.27 In the case of Warren v Keen [1954] 1 QB 15 the court held that there a variety
of obligations owed by the lessee to the lessor. One of these is a duty not to commit
waste under s 104 of the Property Law Act 1974 (QLD).
1.28 The case of Boss & Ors v. Hamilton Island Enterprises Ltd [2008] QSC
274 found that the reasonable new use of a leased premise for a purpose that was
considered by the lessor and lessee will not constitute waste, regardless of whether or not
that use damages the leased premises.
1.29 The plaintiff holds that discussions with the director of the defendant company led
to the plaintiffs belief he had authority to go ahead and install the new roller door. If the
plaintiff lessee had the licence of the defendant lessor to do such an act, it could not be
considered waste under s 104 of the Property Law Act 1974 (QLD).
1.30 The plaintiff argues that if the act of installing a new roller door constitutes waste
then the waste committed was merely ameliorating (positive) waste.
1.31 The plaintiff submits that by installing a larger roller door to the front wall of the
premises, the intention was to actually improve the premises. The new door was a
practical idea because it allowed for better movement to and from the premises, which is
especially important for a furniture manufacture and delivery in a commercial area.
1.32 The plaintiff is prepared to make an undertaking as to damages under R 264 of the
Uniform Civil Procedure Rules 1999 (QLD).
1.33 The plaintiff respectfully submits that an interlocutory injunction be granted to:
1. Prevent the defendant from entering the leased premises to forfeit the lease
2. Prevent the defendant from removing the plaintiff from the leased premises
3. Prevent the defendant from removing the plaintiffs property from the leased
premises.
SUPREME COURT OF QUEENSLAND
Southport
S145/201
5
TERRENCE
JAMES OAKES

REGISTRY:
NUMBER:
Plaintiff:

AND

See
affidavit
Terrence
James
Oakes
para 8
See
Exhibit
TO-2

See
affidavit
Terrence
James
Oakes
para 5 &
6

See
affidavit
Terrence
James
Oakes
para 5

13327608 p 2
LINCOLN PROPERTY GROUP
LTD

Defendant:

(ACN 093 373 909)

AFFIDAVIT
Terrence James Oakes of 15 Clear Island Waters Drive, Clear Island Waters, Queensland,
carpenter states on oath:
1. I am TERRENCE JAMES OAKES.
2. I am a carpenter and owner of a furniture manufacturing business.
3. Exhibit TO-1 to this affidavit is a statement I made on 19 October 2015.
4. I entered a lease agreement with LPG Ltd on 1 June 2012, beginning on 1 July 2012.
5. Prior to actually signing this lease I had discussed with Matt Lincoln that I would like to
have a larger and more practical access point to the premises and that I was thinking of
installing a roller door in the front wall of the premises. Matt said something along the lines
that if I renewed my lease after the initial 3 year term, he thought the installation it was
quite a good idea.
6. I spoke to Matt again in March 2015 and he said that he was sure the Board of LPG Ltd
would allow me to create a better access point for the premises, which would likely
improve the premises.
Page 1
Signed:

Taken by:

7. Within a few weeks of this conversation with Matt, I contracted with Nevamind and Sons
to install the new roller door. Work completed on 2 May 2015.
8. However on 13 May I noticed the roof of the premises was damaged. Matt came over and
had a look and then organised for an engineer to assess it, who said that it was structural
damage due to the new roller door.
9. The premises was repaired for almost four weeks, up until 19 June 2015. During this time I
had to close down my business and lost a $23000 contract with one of my best clients:
Madliven Homes Pty Ltd.
10. I received a sudden notice to quit from LPG on 2 July 2015.
11. At no point was I formally notified that I had breached a term of my lease.
12. Exhibit TO-2 to this affidavit is the notice to quit from LPG on 2 July 2015.

13327608 p 2
13. Although I withheld rent for the month of June due to the damage furniture and loss of
work during the repair period, I have been paying rent monthly on the first of the month
since 1 July 2015. LPG Ltd have been accepting this rent and emailing me rent receipts
from July-November 2015.
14. Exhibit TO-3 to this affidavit are the rent receipts forwarded by LPG in response to rent
paid for leasing the premises in the months of July, August, September, October and
November 2015.
15. On 5 July one of my best clients, Madliven Homes Pty Ltd pulled out of a contract with me
for $23000.
16. When Matt Lincoln telephoned me on 25 October 2015 he made a statement to the effect
that he would personally come up to Queensland and throw all of my belongings on the
street. I did not believe that this was an idle threat.
17. I contacted my lawyers because I was worried that Matt and LPG Ltd may take steps to
throw me out of the premises.
18. My lawyers are currently negotiating with LPGs lawyers to potentially draw up a new
lease for me.
Sworn by Terrence James Oakes on 14 November 2015 at Southport in the presence of:
Signed:
Deponent

Solicitor
SUPREME COURT OF QUEENSLAND

REGISTRY:
NUMBER:

Plaintiff:

Southport
S145/2015

TERRENCE JAMES OAKES

AND

Defendant:

LINCOLN PROPERTY GROUP

LTD
(ACN 093 373 909)
CERTIFICATE OF EXHIBIT

Exhibit TO-1 to the affidavit of Terrence James Oakes sworn: 14 November 2015.

13327608 p 2

Deponent

Solicitor

Terry Oakes

Statement
19 October 2015
I am Terry Oakes. I reside at 15 Clear Island Waters Drive, Clear Island Waters. I am a
Carpenter and I operate a furniture manufacturing business from premises in Laurence Drive
Nerang.
I rented my commercial premises from Lincoln Property Group Ltd (LPG) which has its
registered office in Melbourne, Victoria. On 1 June 2012 I signed a lease for a 3-year term
commencing on 1 July 2012. Rental was $12,000 + GST per annum payable monthly in
advance on the first of each month. After the expiry of that term, the lease would continue
month-to-month unless terminated by either side on 1-months notice. However, the lease also
contained an option to take a further 3-year term. This was subject to me paying my rent and
not breaking any essential terms of the Lease during the initial lease term. I needed to notify
the Lessor that I want to exercise the option before the termination of the last month of the
original lease term, which I did.
When I was negotiating for the tenancy, I spoke mainly to Matt Lincoln, a director of LPG who
was in charge of their Gold Coast properties. I told him the only thing I wasnt happy about
was the access through a small roller door. I said I would like to replace it with a larger access
point, at my own cost. He said maybe that was something they would agree to if I renewed for
the next three years. He said himself that it would improve the value of the premises.
Anyway, I saw him again briefly in about March 2015. He told me he was on the Gold Coast
for a few weeks, doing property inspections and discussing future tenancies with his local staff.
He came through my premises, at my invitation. He said I was the best tenants they had on the
Gold Coast youve been no problem to us at all always pay on time and no dramas. He
asked if I was intending to renew and I assured him that I was. He said he was pleased. I
mentioned the possibility of getting a bigger access point and he said, yes, that was something
he was sure the board would agree to.
Two weeks later, I arranged for Nevamind and Sons to install a large roller door in the front
wall. I think he finished about 2 May, 2015. That was the date I transferred the money to pay
his bill. When I arrived for work on 13 May 2015 I noticed that the roof of the building had
sagged significantly overnight. The sagging was particularly noticeable over the new roller
door. I telephoned LPG, Matt Lincoln was at the Gold Coast office again, and so he came
straight over to have a look.
Matt quickly arranged for an engineer to inspect the premises that afternoon. The engineer
apparently told him that the new door was installed incorrectly and it had undermined the
strength and stability of the front wall, causing serious structural damage to the premises. He
said the whole roof might cave in. Matt talked to me about it and agreed to follow up with

13327608 p 2
Nevamind and Sons. He told me later, on the telephone, that LPGs insurance company were
sorting things out. I told Matt that I was sorry for the drama, but I loved the position of the
premises and my business was doing really well there. I told Matt that I would be exercising
the option to renew the lease for a further 3 years.
Matt said he was not sure LPG would be happy to renew after I had caused structural damage
to the premises. I said I didnt intentionally cause damage, I was trying to improve the place at
my own expense. I reminded him that he had agreed to it.
Anyway, a builder (Neal Down) turned up on 21 May saying he was hired to repair the
premises urgently. I was a bit cranky because no-one told me he was coming. Anyway, I took
some holidays. The builder moved all of my property to a lock-up behind the main building
and locked it. The builder apparently demolished and replaced the front wall. This process
took nearly 4 weeks, and I did not have access to the premises, or my stock, tools and finished
furniture. I had to contact several customers and apologise for delays. I lost one contract, and
of course I could not take on any new contracts for a month.
I called the office and complained about it and said that I thought I should be allowed to
withhold the rent for June this must have been on 30 May, because it was due to be paid on 1
June. I spoke to someone the local office manager, Bill Lutz. He said he understood my
position and thought that was reasonable, since I would lose about one month of access. On 19
June, after the builder left, I retook possession and had to move my own belongings back in.
Some of his furniture had been irreparably damaged. I reckon I lost about $160,000 in
damaged furniture and lost sales.
On 25 June 2015, I sent a letter to LPG saying I wanted to exercise the option to renew. LPG
responded by letter dated 2 July refusing the renewal of the lease and giving 1-months notice
to terminate the lease. I was horrified and rang Matt to ask what was going on. We have since
been negotiating, on and off, about a fair settlement of all of our issues. I have remained in
possession and have been paying monthly in advance. My solicitors [you] have written
asserting my right to remain in possession for the duration of my three year extension. They
told LPG that I have not been able to find suitable premises for my business in the same area,
and I do not want to lose the benefit of the good local reputation I have developed. They also
said that since Bill agreed to the one month rent remission, LPG could not use that as an excuse
to refuse my renewal. The lawyers have been going back and forth since then.
Matt contacted me on 2 October. He told me that it seems Nevamind and Sons went out of
business and they could not recover damages from them, so their insurance company want
them to sue me! He also said that the local office had a new tenant who wanted to move into
my premises on 15 October 2015. He said I had to vacate, or they would bring an action to
remove me. Well, my lawyer contacted the head office and they agreed that they would not do
anything without an appropriate court order. Since my lawyers have been talking to head
office, they started to be more reasonable. It seems the new tenant would not agree to the
terms of the lease they offered. They actually considered restarting a lease with me, but I want
my renewal, and they want a new lease on higher rental and worse terms. In the end, on my
lawyers advice, I agreed to issue court proceedings for a declaration that the lease was
renewed and I decided to sue for my damages as well.
Yesterday, (25 October 2015) the Claim was served on LPG and Matt telephoned me and said
he was furious and that if I dont vacate the premises within 14 days he will personally come
up here and throw all of my belongings on the street. He also said LPG will be

13327608 p 2
counterclaiming for $170,000 and legal costs and we will break you. I need to make sure
they dont try to throw me out.
SUPREME COURT OF QUEENSLAND

REGISTRY:
NUMBER:

Plaintiff:

Southport
S145/2015

TERRENCE JAMES OAKES

AND

Defendant:

LINCOLN PROPERTY GROUP

LTD
(ACN 093 373 909)
CERTIFICATE OF EXHIBIT

Exhibit TO-2 to the affidavit of Terrence James Oakes sworn: 14 November 2015.

Deponent

Solicitor

13327608 p 2
Notice to Quit

To:
Terry Oakes
2532 Gold Coast Highway, Miami
The lessee of Suite 5, 125 Laurence Drive, Nerang

With reference to your tenancy of the abovementioned premises, holding over from a three year
lease dated the 1 June 2013, from Lincoln Property Group Limited to Terrence James Oakes, you
are hereby notified that the Lessor is terminating the lease upon 1 months notice from the date of
this letter.

Dated this 2nd day of July, 2015

Matthew Lincoln, for

Lincoln Property Group Ltd,
Lessor
Suite 2/15 Recovery Drive, St Kilda.

SUPREME COURT OF QUEENSLAND

REGISTRY:
NUMBER:

Southport
S145/2015

13327608 p 2