Mirage Resorts Holdings P/L as Trustee of the Mariners Paradise Property Trust v Brellen P/L

[2003] QCA 579

Queensland Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Standard of appellate review
3. › Findings of fact based on credibility
4. › Whether incontrovertible facts or glaringly improbable findings demonstrated error
5. › Whether appellate court should disturb trial judge's credibility-based findings
1. Practice and Procedure
2. › Judgments and orders
3. › Reasons for judgment
4. › Extent of duty to give reasons
5. › Whether duty extends to every matter raised in proceedings
6. › Whether trial judge overlooked or failed to give sufficient weight to certain evidence
1. Leases and Tenancies
2. › Commercial tenancies
3. › Options to renew
4. › Exercise of option
5. › Whether written notice of exercise of option was delivered within time
6. › Whether notice delivered to business premises of landlord
1. Leases and Tenancies
2. › Commercial tenancies
3. › Options to renew
4. › Relief from failure to exercise option
5. › Whether s 128 Property Law Act 1974 (Qld) applies to failure to exercise option
6. › Property Law Act 1974 (Qld), s 128

Quick Take

Section 128 of the Property Law Act 1974 (Qld) does not provide relief to a lessee who fails to exercise an option to renew a lease within the stipulated time; the section only applies to breaches of obligations that would exist independently of the option clause. An appellate court will not disturb a trial judge's credibility-based findings unless the appellant identifies truly incontrovertible facts inconsistent with those findings; matters going only to motive, opportunity, or credibility of peripheral witnesses are insufficient. A claim for equitable relief against the consequences of failing to exercise a lease option cannot be raised for the first time on appeal where no factual basis was pleaded or investigated at trial.