Pialba Commercial Gardens Pty Ltd v Braxco Pty Ltd & Ors

[2011] QCA 148

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation of contracts
3. › Commercial lease
4. › Warranty as to use of premises
5. › Whether warranty limited to town planning use or extended to lawful use generally
6. › Whether landlord or tenant responsible for structural alterations to comply with fire safety notice
7. › Harmonious construction of competing clauses
1. Damages
2. › General principles
3. › Mitigation of damages
4. › Plaintiff's duty to mitigate
5. › Onus on defendant to establish failure to mitigate
6. › Whether tenant failed to mitigate by not rectifying structural defects
1. Damages
2. › Assessment
3. › Loss of business
4. › Whether damages should be discounted for foreshadowed regulatory conditions limiting patron capacity
5. › Whether trial judge's acceptance of oral evidence was open on the evidence
1. Appeal
2. › General civil appeal
3. › Appellate review of findings of fact
4. › Whether findings open on the evidence
5. › Fox v Percy (2003) 214 CLR 118

Quick Take

A landlord's warranty that premises 'may be used' for a specified purpose in a commercial lease is not limited to town planning use but extends to lawful use generally, and where the premises cannot lawfully be used for the warranted purpose due to structural deficiencies, the landlord bears responsibility notwithstanding a separate clause requiring the tenant to comply with laws and carry out certain structural alterations. The onus of establishing a failure to mitigate remains on the defendant.