Austin Park Pty Ltd v Canon Foods Services Pty Ltd - [2001] WADC 227

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AUSTIN PARK PTY LTD -v- CANON FOODS SERVICES PTY LTD [2001] WADC 227

CORAM: JENKINS DCJ

HEARD: 21 SEPTEMBER 2001

DELIVERED : 26 SEPTEMBER 2001

FILE NO/S: CIV 251 of 2001

BETWEEN: AUSTIN PARK PTY LTD (ACN 079 824 132)
Plaintiff
AND
CANON FOODS SERVICES PTY LTD (ACN 009 201 352)
Defendant

Catchwords:

Practice and Procedure - Summary judgment - Application by plaintiff - Turns on own facts

Legislation:

Rules of the Supreme Court, O 14, r 1

Result:

The plaintiff's application for summary judgment be dismissed

Representation:

Counsel:

Plaintiff: Mr M S McDonald
Defendant: Mr J C Curthoys

Solicitors:

Plaintiff: McDonald Rudder
Defendant: Richard O'Shannassy & Co

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

Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Prudential Assurance Co Ltd v London Residuary Board [1992] 2 AC 386
Radaich v Smith (1959) 101 CLR 209
Webster v Lampard (1993) 177 CLR 598

Case(s) also cited:

Nil

JENKINS DCJ: This is an application by the plaintiff for summary judgment pursuant to O 14, r 1 of the Rules of the Supreme Court.
Order 14, r 1 enables a plaintiff to apply to the Court for summary judgment, which may be ordered if the Court is satisfied that the defendant has no defence to a claim included in the writ except as to the amount of damages claimed.
Summary judgment is generally only granted in cases where it is clear that there is no serious question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. The criterion to be applied is that after the matter has been explained to the Court there must be real uncertainty without full argument or further investigation of the facts as to the plaintiff's right to judgment: Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 at 335.
Where, as in this case, there is a dispute about the facts it is incumbent on the Court to proceed on the basis that the defendant's version of the facts will ultimately be accepted at the trial of the action: Webster v Lampard (1993) 177 CLR 598 at 608.
Applying the above principle, the relevant facts are as follows.
The plaintiff is the registered proprietor of the land situated at 53 Wittenberg Drive, Canning Vale. By lease dated 19 March 1996 between the previous registered proprietor of the land and the defendant and others, the defendant was leased a building situated on the land. On 1 July 1996 the lease was assigned to the defendant. By deed dated 4 March 1997 the lease was varied by including as part of the premises demised by the lease another building on the land. This building is attached to the front of a building that is used as a freezer. On 16 January 1998 the plaintiff became the registered proprietor of the land and the lessor of the lease with the defendant.
In December 2000 a dispute arose between the plaintiff and the defendant regarding a rent increase and arrears in rent. By letter dated 19 December 2000 from the plaintiff's solicitors to the defendant the plaintiff raised issues regarding the issue of rent and also demanded that the plaintiff deliver up possession of the freezer, which it had been occupying free of rent pending the outcome of negotiations between the defendant and the plaintiff regarding a potential lease of the freezer by the defendant, within 7 days.
It is alleged by the defendant, and for the purposes of this application I accept, that up to 31 August 2000 the defendant stored goods in the freezer with the consent of the then lessees of the freezer. At the conclusion of the lease the defendant continued storing goods in the freezer with the plaintiff's consent. On or about 28 October the plaintiff agreed to the defendant occupying the freezer rent free in consideration of the defendant paying the day‑to‑day operational costs (ie electricity and temperature monitoring costs) associated with the freezer until such time as the plaintiff found another tenant for the freezer. This agreement was a verbal agreement. The defendant subsequently paid the day‑to‑day operational costs associated with the freezer.
After the letter of 19 December 2000, conversations occurred between representatives of the plaintiff and the defendant which resulted in a letter from the plaintiff's solicitors to the defendant confirming that it had been agreed that the defendant would have until 22 January 2001 to vacate the freezer and until that date the defendant would not be required to pay rent for the freezer. The plaintiff advised that if there was no agreement in place for payment of rent for the freezer by that date then the defendant was expected to vacate the freezer and that if it did not mesne profits would be charged and a writ would be issued for vacant possession of the freezer without further notice. This was confirmed in a subsequent letter from the plaintiff's solicitors to the defendant on 19 January 2001.
On 21 February 2001 the defendant's Board took the decision to vacate the freezer and did so on 24 February 2001. This occurred even though the defendant was not aware of any tenant for the freezer having been found by the plaintiff to date.
On or about 24 February 2001, as a temporary measure, the defendant located two portable freezer containers on the land adjacent to the leased premises. These were used to store the defendant's goods which until that date had been stored in the freezer. The defendant alleges, and I accept for the purposes of this application, that the containers' location had previously been used by the defendant for the storage of containers and for the storage of other necessary items required in the course of operating the business of the defendant.
This action was commenced by writ issued on 31 January 2001. It claims possession of the freezer and mesne profits for the defendant's occupation of the freezer and rental arrears and costs associated therewith. It does not refer to the portable freezer containers which the defendant subsequently placed on the land. The first time that the defendant became aware of the plaintiff's objection to the presence of those containers was by letter dated 27 February 2001 and the subsequent service of the statement of claim in this action on 28 February 2001. Without objection from the defendant, the statement of claim includes an allegation at par 30 that on or about 24 February 2001 the defendant caused two large freezer units to be placed in the driveway adjacent to the freezer, thereby obstructing access to the freezer. The defendant alleges, and again I must accept for the purpose of this application, that the location of the containers did not obstruct access to the freezer. The containers were removed from the plaintiff's land on 10 August and 13 September 2000 respectively.
The issues that remain outstanding between the plaintiff and the defendant in respect to this application are mesne profits together with interest thereon in relation to the defendant's occupation of the freezer and the land upon which the portable containers were placed.
The plaintiff submits that in respect to the defendant's occupation of the freezer, the defendant had a tenancy at will which was lawfully determined as at 22 January 2001. Thereafter the defendant was a trespasser and the plaintiff is entitled to summary judgment and mesne profits as damages for trespass.
In respect to the containers the plaintiff says that taking the defendant's case at its highest, the defendant had a licence to place the containers on the land up to the date of service of the statement of claim on 28 February 2001. Thereafter it had a reasonable time in which to move the containers. After such reasonable time the defendant again became a trespasser and the defendant is entitled to mesne profits in respect to the trespass.
The defendant opposes the application for summary judgment. The defendant says that in respect to the occupation of the freezer it had a licence to occupy the freezer until such time as the plaintiff found another tenant for the freezer. This event having not yet occurred, the defendant submits that it is not in breach of the licence.
With respect to the containers the defendant says that the claim for mesne profits in the statement of claim is in respect to occupation of the freezer only. Therefore on the pleadings mesne profits cannot be granted for trespass to the land occasioned by the containers. In any event it says that in order to store the goods previously in the freezer the defendant was entitled to an easement of necessity or something of the like. It says that the removal of the containers required notice to the defendant. It concedes that there was a claim made by letter dated 27 February 2001, the substance of which was not clear. It says further that the statement of claim served on 28 February 2001 was not sufficient notice to remove the containers.
In respect to the claim by the defendant that it had a licence to occupy the freezer until the plaintiff found another tenant for it, the plaintiff says that such a licence would be revocable by notice. Notice was given and after 22 January 2001 the defendant was a trespasser. It says that there could be no issue with respect to an estoppel arising from a representation of the plaintiff that the defendant could remain in occupation of the freezer until the plaintiff found another tenant for it as long as the defendant was allowed a reasonable time in which to remove its goods. The plaintiff says they were clearly given this time as they were given from 19 December to 22 January 2001 in which to remove the goods. With respect to the occupation of the land by the containers, the plaintiff in reply submits that the issue of the statement of claim revoked any licence that the plaintiff had granted to the defendant with respect to the land. It says that the only issue that remains is how much notice was reasonable and this is an issue I can determine.
The test of a lease is whether a right of exclusive possession has been conferred on the party entitled to occupy the premises: Radaich v Smith (1959) 101 CLR 209 at 214, 217 and 222. The facts as presented to me on the affidavits filed in support of this application do not enable me to determine whether the defendant had a right of exclusive possession or not. This is a matter that would have to be further explored at trial. However for the purposes of this application I should accept the defendant's submission that it had a licence only. This is because I am satisfied that if there was a lease between the parties it would be bad for uncertainty as the duration of a lease must be certain or ascertainable: Prudential Assurance Co Ltd v London Residuary Board [1992] 2 AC 386. The duration of this alleged lease was "until such time as the plaintiff found another tenant for the freezer," which is an uncertain period.
If a party is in possession with the owner's consent but not by virtue of a tenancy for a certain term a tenancy at will is implied: Halsbury's Laws of England (4th ed) Vol 27(1) par 169.
A tenancy at will is determinable by either party on his express or implied advice to the other that the tenancy is at an end.
Alternatively, if the party was in possession by virtue of some other lawful title and after his title has ended he continues in possession without authority he is said to be a tenant at sufferance: Halsbury's Laws of England (4th ed) Vol 27(1) par 176. A tenancy at sufferance requires no notice to determine it.
Consequently, if there was a lease between the parties there is a clear case that after 23 January 2001 whether by termination of a tenancy at will or a tenancy by sufferance the defendant was a trespasser on the land occupied by the freezer.
For the following reasons the defendant says that it is in a better position if it held a licence as opposed to a lease.
As a mere licence does not create any estate or interest in the property to which it relates, it is revocable by notice at any time. Thus at common law the defendant is in no better position than if it held the tenancy at will as alleged by the defendant or alternatively a tenancy at sufferance. However the defendant goes further and says that if it held a licence an estoppel arose as a consequence of it relying upon the term of the licence which was expressed to be "until such time as the plaintiff found another tenant for the freezer". It is said that equity recognises and enforces rights, sometimes known as equitable licence, so as to restrict the revocation of licences to occupy or use premises which at common law would be regarded as revocable: Halsbury's Laws of England (4th ed) Vol 27(1) par 14.
Whilst on the facts before me it does not appear that the defendant has a strong case to argue that it held such an equitable licence I am nonetheless constrained only to grant summary judgment in a case where it is clear that there is no serious question to be tried. By virtue of the foregoing matters I am not able to say that this is such a case.
The application for summary judgment with respect to that part of the claim for mesne profits for trespass occasioned by the occupation of the plaintiff's land by the defendant's containers founders at the same point.
In respect to the containers the defendant submits that the plaintiff's claim for mesne profits in the statement of claim is in respect to the occupation of the freezer only. I do not accept this as the claim for relief is generally drafted and appears to be able to apply to a claim with respect to all the matters raised in the statement of claim.
However, the defendant submits that it had a licence to use the land, which licence was not revoked by virtue of the service of the writ and statement of claim. Again, although it does not appear to be a strong case on behalf of the defendant, the issue with respect to the nature of that licence and the intention of the parties is one that the defendant ought to be able to explore at trial.
More persuasive is the defendant's submission that if it should be found that the plaintiff was not entitled to revoke the licence to occupy the freezer then the issue between the parties as to the right of the defendant to place the containers on the land should be determined in the light of that finding.
These questions will require evidence to be adduced in the context of a trial. I am not of the view that the defendant's arguments on these issues must fail. Accordingly, I decline to deal with the matter summarily.