The defendants applied to strike out paragraphs of the statement of claim (and the relevant parts of the claim for relief) on the ground that two of the alleged causes of action did not disclose a reasonable cause of action or make without reasonable grounds either under the rules of court or for the purposes of the inherent jurisdiction of the court.
The claim arose from a lease of commercial premises located in East Brisbane granted by the plaintiff to the first defendant. The lease contained terms only permitting use of the premises for a bar and restaurant and associated uses. A separate incentive deed provided for a rent free period of 12 months from the commencement of the term to facilitate any required fit out. After 12 months the lease provided that the first defendant would pay rent calculated as a percentage of the turnover from trading. The first defendant did not fit out the premises or start trade. Accordingly, no rent was paid. The plaintiff started proceedings claiming rent and damages for breach of contract. The plaintiff alleged that the breach caused loss or damage measured by the rent the plaintiff alleged would have been payable had the first defendant started and continued trade. The rent is claimed under an alleged implied term of the contract in the lease that if the first defendant did not fit out and trade from the premises it would pay market rent, at least during the period that it does not trade. The plaintiff alleged an additional cause of action that the first defendant was obliged to make restitution to the plaintiff for the benefit of the use and occupation of the premises measured by the market value of rent for the premises, not the amount that would have been payable as the agreed percentage of turnover as rent had the first defendant started and continued to trade.
Damian Clothier QC (with G Coveney) appeared for the plaintiff, instructed by Shand Taylor.
A copy of the judgment is available here.