Stan Moore was into the first three year option period of his registered lease of Bundaberg’s Archie’s Pool Centre, after taking an assignment of the lease in May 2005.
Landlords Derek Berthelsen and his wife Vanesa – who operated a go-kart track next door – attempted to terminate Moore’s lease soon after they became owners of the water slide land in 2006, requiring Moore to seek court relief.
Further acrimony ensued, blamed by each party on the other.
In April 2007, Berthelsen claimed to have left a notice of lessor inspection and a Property Law Act notice to remedy breach of covenant (form 7), in the kitchen on the premises.
Not surprisingly – because Mr Moore was absent abroad and his wife Robyn was no longer residing there – the one month time period specified by the landlord to effect various repairs, went unheeded.
A notice of termination of the lease was given in May and the following month the Berthelsens changed the locks to keep Moore out.
In July they mounted a bigger mission: they again entered the premises with contractors including the aptly named “Dynamite Diggers” to dig up the paved areas and swimming pools and tear down the waterslides.
So it was back to the Supreme Court in Bundaberg which ruled as long ago as November 2007, that the entry onto the premises was unlawful because – disbelieving the Berthelsens’ account – no form 7 notice had in fact been given.
They were ordered to immediately vacate the premises and restrained by injunction against entering onto the water park or interfering in Moore’s business.
In their compensation lawsuit – which took until November 2013 to reach finality – it was “self-evident that there was a breach of the covenant of quiet enjoyment.”
“Their acts went well beyond mere interruption with the physical occupation of the land but rendered the demised premises unfit for the purpose for which it was leased and intended to be used.”
The insolvency of Lance Berthelsen and his company before the claim returned to the Supreme Court meant there were no contractual defendants left standing. The only viable action was in “trespass”, against Mrs Berthelsen as an entrant onto the property.
Despite her admission to the destruction, Berthelsen claimed, because the action had been taken in the mistaken belief the landlord was entitled to enter by reason of service of a valid form 7.
His Honour ruled that those circumstances created no defence. Neither did the fact that she was acting merely “as agent for” the landlord company. “An agent remains personally liable for a tort.”
Likewise, that she was acting as officer of the landlord company. “Her position as director gives her no protection”.
“It is well accepted that the tenant under a valid lease has the immediate right to exclusive possession which the law protects against interference from strangers and for this purpose the landlord is tantamount to a stranger open to protection by various remedies including an action for trespass.”
Moore’s damages were assessed in the sum of $300,000.