Alliswell Pty Ltd v Macdav Pty Ltd - [2002] VSC 87

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8280 of 2001

IN THE MATTER OF SECTION 148(1) OF THE VICTORIAN CIVIL
AND ADMINISTRATIVE TRIBUNAL ACT 1998

ALLISWELL PTY LTD (ACN 006 741 448)	Appellant
v
MACDAV PTY LTD (ACN 087 439 601)	Respondent

---

JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATES OF HEARING:	22 and 25 March 2002
DATE OF JUDGMENT:	27 March 2002
CASE MAY BE CITED AS:	Alliswell Pty Ltd v Macdav Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 87

---

Landlord and Tenant – termination of lease - re-entry for late payment of rent – whether acceptance of late payment before re-entry precludes re-entry - waiver.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M. Heaton QC and Mr J.B. Nunns	Kliger Partners
For the Respondent	Mr S.E. Marantelli	Wisewoulds

HIS HONOUR:

Alliswell Pty Ltd (“the Lessor”) appeals by leave against an order of the Victorian Civil and Administrative Tribunal made on 30 October 2001 in favour of Macdav Pty Ltd (“the Lessee”). The matter before the Tribunal was a claim by the Lessee for damages for the wrongful determination of a retail lease by the Lessor’s re-entry on 1 May 2000. The Tribunal concluded that the re-entry was not justified by the lease and that it amounted to a repudiation by the Lessor of the lease. It made an order that the Lessor pay to the Lessee damages in the sum of $45,000 and exemplary damages in the sum of $15,000. There is no challenge to the quantum of these damages; the issue is as to the entitlement to re-enter.

The facts of this case as found by the Tribunal may be shortly stated. The lease entered into between the Lessor and Gosbin 114 Pty Ltd is dated 29 August 1995. In it, the Lessor granted a term of three years with two three-year options of the shop premises situated at and known as Shop 15 Glenferrie Market Shopping Centre in Glenferrie Road, Hawthorn. The permitted use was that of butcher. The first option was exercised in 1998. Gosbin, at some stage, assigned the lease to a Mr Marolis who, in 1999, assigned it to the Lessee, a company whose principals were Mr McCrae and his son.

Under the terms of the lease, the Lessee is obliged to pay a base rent which is fixed, subject to periodic adjustment, a turnover rent, outgoings and various other sums. The base rent was payable monthly in advance on the first day of the month.

The Lessee did not pay the April rent on the first of that month, nor, indeed, on any day in April. The Lessor had as its managing agent Snow Group Retail Property Services (Aust) Pty Ltd whose office was in South Melbourne. Rent was collected by a rent collector, one Mr Broomhall, perhaps an employee of Snow Group.

In the last week of April 2000 Mr Broomhall telephoned Mr McCrae, senior, saying that he was running late in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alliswell Pty Ltd v Macdav Pty Ltd

Details

AGLC: Alliswell Pty Ltd v Macdav Pty Ltd [2002] VSC 87
Case: [2002] VSC 87
Decision Date: 27 March 2002

CaseChat Overview and Summary

Alliswell Pty Ltd brought an action against Macdav Pty Ltd in the Supreme Court of New South Wales, seeking an injunction to prevent the defendant from terminating their lease and re-entering the premises. The dispute arose when Macdav terminated the lease, alleging that Alliswell had failed to pay rent on time. Alliswell contended that they had paid the rent after the termination notice was given, and this payment was accepted by Macdav, thereby precluding the latter from terminating the lease. The court had to decide whether the acceptance of late payment after the termination notice was issued constituted a waiver of Macdav’s right to terminate the lease.

The central legal issue was whether the acceptance of a late payment by the landlord after issuing a termination notice precluded the landlord from terminating the lease and re-entering the premises. The court examined the terms of the lease agreement and the relevant authorities on landlord and tenant law. It considered whether the acceptance of the late payment by Macdav amounted to a waiver of their right to terminate the lease and whether this acceptance had the effect of reviving the lease. The court needed to determine if Alliswell's conduct, specifically the late payment and subsequent acceptance by Macdav, could be considered a waiver of the landlord's right to terminate the lease under the given circumstances.

The Supreme Court held that the acceptance of a late payment after issuing a termination notice does not necessarily constitute a waiver of the landlord's right to terminate the lease. The court found that for a waiver to be effective, there must be clear and unequivocal evidence that the landlord intended to waive their rights. The mere acceptance of late payment without an explicit statement of waiver did not amount to a relinquishment of the right to terminate the lease. The court determined that Macdav was entitled to terminate the lease for non-payment of rent and could re-enter the premises. Consequently, Alliswell's application for an injunction was dismissed.

Orders