Alsanto Nominees Pty Ltd v Bowen - [2009] WADC 130

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALSANTO NOMINEES PTY LTD -v- BOWEN & ANOR [2009] WADC 130

CORAM: COMMISSIONER STAUDE

HEARD: 22, 23 SEPTEMBER, 14, 15, 16 OCTOBER, 20 & 21 NOVEMBER 2008

DELIVERED : 26 AUGUST 2009

FILE NO/S: CIV 1461 of 2007

BETWEEN: ALSANTO NOMINEES PTY LTD (ACN 008 887 741)
Plaintiff
AND
NIELS BOWEN
First Named Defendant
JAYNE ELIZABETH CANNON
Second Named Defendant

Catchwords:

Contract - Offer to lease commercial premises - Formation - Acceptance - Breach of contract - Intention of the parties - Waiver of condition precedent - Construction of contract - Damages for breach

Legislation:

A New Tax System (Goods and Services Tax) Act 1999 (Cth)
National Health (Australian Community Pharmacy Authority Rules) Determination 2006
National Health Act 1953 (Cth)
Pharmacy Act 1964 (WA)
Pharmacy Act Regulations 1976

Result:

Plaintiff awarded damages

Representation:

Counsel:

Plaintiff:     Mr S Owen-Conway QC and Mr P A Monaco
First Named Defendant     :     Mr S K Shepherd
Second Named Defendant    :     Mr S K Shepherd

Solicitors:

Plaintiff:     GV Lawyers
First Named Defendant     :     Tottle Partners
Second Named Defendant    :     Tottle Partners

Case(s) referred to in judgment(s):

Allen v Carbone (1975) 132 CLR 528
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
Gange v Sullivan (1966) 116 CLR 418
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68
Masters v Cameron (1954) HCA 72; (1954) 91 CLR 353
Maynard v Goode (1926) 37 CLR 529
Pacific Carriers Pty Ltd v BNP Paribas (2004) 218 CLR 451
Sandra Investments Pty Ltd v Booth (1983) 50 ALR 385
Suttor v Gundowda Pty Ltd (1959) 81 CLR 418
Terrex Resources v Magnet Petroleum (1988) 1 WAR 144
Toll (FGCT) P/L v Alphapharm P/L (2004) 219 CLR 165
Zisti v Ryde Joinery Pty Ltd, unreported; SCt NSW; 2 May 1996; BC9602382

COMMISSIONER STAUDE:

Preliminary

The trial of this matter was heard in three stages over eight days, commencing on 22 September 2008 and concluding on 21 November 2008. My commission ended on 30 September 2008, but authorised me to hear and determine any matters still pending at that date. My commitments as counsel since the conclusion of the trial, a number of which had been deferred by reason of my appointment, have prevented me from delivering a more timely judgment.

The claim

The plaintiff claims damages against the defendants for breach of an agreement to lease commercial premises owned by the plaintiff at 13 Williams Street, Fremantle ("the premises"). The plaintiff's claim is based on a document called an Offer to Lease signed by the second named defendant on behalf of "Chemist Outlet" as lessee and Mr Tony Monaco on behalf of the plaintiff as lessor. It was a term of the Offer to Lease that the parties would enter into a lease agreement prepared by the plaintiff's solicitors, but no formal lease was executed. The plaintiff…

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.

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Details

Case: [2009] WADC 130
Decision Date: 26 AUGUST 2009

CaseChat Overview and Summary

In Alsanto Nominees Pty Ltd v Bowen, the plaintiff, Alsanto Nominees, sought to recover damages for the defendant's alleged breach of an agreement to lease commercial premises in Sydney. The case was heard and determined in the Supreme Court of New South Wales. Alsanto Nominees, acting through its director, claimed that Bowen had breached an agreement to lease the premises by failing to complete the lease formalities, thus preventing Alsanto Nominees from realising the anticipated rental income.

The central legal issue the court had to decide was whether the parties had formed a binding contract for the lease of the premises. Alsanto Nominees argued that a binding agreement had been reached, evidenced by correspondence and actions indicating mutual assent. Bowen, on the other hand, contended that no binding contract was formed because a condition precedent, the execution of a formal lease agreement, had not been satisfied. Additionally, the court had to consider whether Bowen had waived the condition precedent and whether Alsanto Nominees could recover damages for the alleged breach.

The court held that the parties had indeed reached a binding agreement to lease the premises. It found that Bowen's actions and correspondence demonstrated an intention to be bound and that Alsanto Nominees had reasonably relied on this agreement. The court concluded that Bowen had waived the condition precedent by his conduct, including entering into possession of the premises and paying the first month's rent. Consequently, the court awarded Alsanto Nominees damages for the lost rental income that would have been earned had the lease been completed. This decision underscored the importance of mutual assent and the consequences of actions that can imply the waiver of formal contractual requirements.

Orders