A landlord specified the permitted use for an auto repair premises at Moss Street, Slacks Creek as “storage” to better suit his insurance requirements, claimed tenants who also argued their agreed rent was $2.9k per annum.

Three months after Nicholas Rigney and Matthew Mahment signed on for their three-year sublease in December 2016, they notice the lessor to them was not the registered owner of the property. They requested a copy of the head lease.

They also sought clarification of the disparity between the very favourable rent specified in the Commercial Tenancy Agreement they signed and the $2.9k/month figure stated in an “agreement to lease” that was annexed to it.

When the head lease was not produced, they stopped all further rent payments claiming a substantial credit because the annual rent had previously been paid each month.

The lessor issued a notice to remedy breach of covenant and purported to terminate and changed the locks to the premises.

That brought the tenants before Justice Susan Brown in the Supreme Court in Brisbane on an application for relief against forfeiture and for orders against the landlords to cease unlawful entry to the premises.

The tenants’ claim against the landlord’s solicitors for having prepared and served the default notice – said to have been based upon a breach of the Australian Solicitors Conduct Rules and the Legal Profession Act – was the struck out on the basis that neither provided any cause of action upon which the tenants could rely.

The court decided that for determination of the correct rent and the permitted use, a trial was required.

In the meantime it ordered the status quo be preserved by allowing the tenant back into the premises provided they pay rent at the stated sum each month.

Rigney & Anor v  Absolute Automotive Solutions Pty Ltd [2017] QSC 124, Brown J, 20 June 2017


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