Austin Park Pty Ltd v Cannon Foods Services Pty Ltd

[2005] WADC 121

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   AUSTIN PARK PTY LTD -v- CANNON FOODS SERVICES PTY LTD & ORS [2005] WADC 121

CORAM:   COMMISSIONER GREAVES

HEARD:   9 MAY 2005

DELIVERED          :   24 JUNE 2005

FILE NO/S:   CIV 382 of 2004

BETWEEN:   AUSTIN PARK PTY LTD

Plaintiff

AND

CANNON FOODS SERVICES PTY LTD
First Defendant

RICHARD HENRY PACE
VALERIE THERESE PACE
JOHN FREDERICK DICKENSON
JACINTA ANNE DICKENSON
BROOKE EGERTON HALLEY ARNOLD
Second Defendants

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :DEPUTY REGISTRAR HARMAN

File No  :CIV 382 of 2004

Catchwords:

Summary judgment - Appeal from decision of Deputy Registrar - Whether real question to be tried on evidence - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Unconditional leave to defend granted

Representation:

Counsel:

Plaintiff:     Mr M S Macdonald

First Defendant              :     Mr J C Curthoys

Second Defendants        :     Mr J C Curthoys

Solicitors:

Plaintiff:     Macdonald Rudder

First Defendant              :     Richard O'Shannassy & Co

Second Defendants        :     Richard O'Shannassy & Co

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

Nil

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES:  This is an appeal from the decision of the learned Deputy Registrar whereby he entered summary judgment for the plaintiff in the sum of $30,980.32 together with interest, and further ordered that the defendants have leave to defend the balance of the claim in the sum of $2,906.42 which was remitted to the Local Court for determination.  The plaintiff's claim is for rent and outgoings due under a lease annexure MH3 to the affidavit of Michael Hutson sworn 18 March 2004.

2. The defendants opposed the plaintiff's application for summary judgment on the facts deposed to by Richard Pace in his affidavit of 31 March 2004.  The leased premises were used by the first defendant for processing chicken.  By par 1(d) of his affidavit, Mr Pace says that on 15 May 2003, after rain, there was significant leakage into the premises.  At par 14 of that affidavit, Mr Pace says that the water leakage was so severe that the electrical wiring was soaked, and the factory became dangerous.  It was necessary to close down production for 12 hours.  Mr Pace deposes to the fact that the first defendant lost $19,514.88 due to loss of production.

3. Counsel for the first defendant further submitted it should be given unconditional leave to defend because the subject matter of its counterclaim is an equitable set‑off for damages against the claim for rent.  He submitted the claim for rent arises under the lease, and the claim for damages arises out of a breach of the lease.

4. For the purposes of this application for summary judgment, the affidavit of Mr Pace establishes by par 12 the fact that the water seepage came through the box gutters.  Clause 6.1 of the lease provides that the lessee must maintain the leased premises and all fixtures and equipment of the lessor therein in good, clean and substantial repair and condition provided that the lessee shall not be liable to effect repairs to the premises of a structural nature.

5. Clause 11.3 of the lease provides that the lessor shall maintain the premises in a sound structural condition, and shall repair all items of damage in respect of the leased premises which are not specifically the responsibility of the lessee to repair under the lease.  Counsel for the plaintiff submitted the damage to the box gutters was not of a structural nature.  Annexure RP5 to the affidavit of Mr Pace establishes that the gutters required re‑lining.  In my opinion, it is arguable that the repair of the box gutters was of a structural nature, and that the plaintiff failed to keep the box gutters in a sound structural condition, as a result of which water entered the premises.

6. Counsel for the plaintiff submitted that the plaintiff's obligation to repair under cl 11.3 arises only following written notice from the lessee, pursuant to cl 11.5 of the lease.

7. The question of the proper construction of this clause in the context of the lease as a whole was the principal issue argued before me.  In the circumstances as I have described them, in my opinion, that question alone is a real question to be tried between the parties in this case.  In my opinion, unconditional leave to defend should be granted so that question, and the question whether the damage to the box gutters was of a structural nature may be tried.  In my opinion, the facts deposed to established that the claim of the defendant has been brought about by, or has been contributed to by, or is otherwise so bound up with the rights relied upon by the plaintiff, that it would be unconscionable that the plaintiff should proceed without allowing the first defendant to set‑off its claim for damages against the claim for rent.

8. Accordingly, in my opinion, the appeal should be allowed, the decision of the learned Deputy Registrar quashed, and the first defendant granted unconditional leave to defend.