Authentic Systems Pty Limited v Woolworths Limited - [2003] ACTSC 110

AUTHENTIC SYSTEMS PTY LIMITED v WOOLWORTHS LIMITED
[2003] ACTSC 110 (12 December 2003)

PROCEDURE – pleadings – striking out - amendments

Trade Practices Act 1974 (Cth), s 52
Supreme Court Rules O 23 r 6; O 29 r 4; O 32 r 1; O 66 r 7

Cropper v Smith (1884) 26 Ch D 700
Tildesley v Harper (1878) 10 Ch D 393
Chadwick v Bridge (1951) 83 CLR 314

No SC 149 of 2003

Coram: Master Harper
Supreme Court of the ACT
Date: 12 December 2003

IN THE SUPREME COURT OF THE       )
  )          No SC 149 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:AUTHENTIC SYSTEMS PTY LIMITED
Plaintiff

AND:WOOLWORTHS LIMITED
Defendant

ORDER

Coram:  Master Harper
Date:  12 December 2003
Place:  Canberra

THE COURT ORDERS THAT:

The application made by notice of motion dated 13 November 2003 be dismissed.

The plaintiff have leave to further amend the amended statement of claim on or before 30 January 2004 conformably with these reasons.

The costs of the application be costs in the cause.

Until some twelve months ago, the plaintiff was the sublessor and the defendant the sublessee of a warehouse at Hume. The sublease provided for a term ending on 31 October 2002, with a provision for holding over in the following terms:
6. We mutually agree and declare:
(c) that if you occupy the premises after the expiry of the term then you do so as tenant from month to month at a rent of 1/12 of the annual rent payable during the last year of the term and on the same terms of this lease so far as they can be applied. Either of us may end that tenancy by one month’s notice in writing to the other ending on any day;

The defendant remained in occupation of the premises after the end of the term, triggering the provision.

Relevantly, the sublease also contained the following provisions:
3.You covenant with me that as to the premises you:-
…
(e)will at your cost keep (and at the expiry or other ending of the term give up) them in repair to my reasonable satisfaction fair wear and tear and damage by fire, storm , tempest, lightning, flood or earthquake excepted. This clause does not require you to effect repairs of a structural nature;
…
(s)will at the expiry or other ending of the term immediately and carefully remove all your fixtures. If you do damage in that removal you will pay to me on demand the cost of repairing it and I can recover that cost from you as liquidated damages. If you have not, within 7 days of the expiry or other ending of the term, removed your fixtures, fittings and goods in the premises, those things become my absolute property and I may dispose of them as I wish;

The plaintiff commenced these proceedings on 25 March 2003. The nature of the action was set out as follows: “Claim for loss of rent and damages incurred and to be…

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.

Keep reading for free

Create a free CaseChat account to read Authentic Systems Pty Limited v Woolworths Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] ACTSC 110
Decision Date

CaseChat Overview and Summary

The case of Authentic Systems Pty Limited v Woolworths Limited was heard in the Supreme Court of the Australian Capital Territory. The plaintiff, Authentic Systems, sought damages for loss of rent and damages incurred in making good its premises, which arose from a breach of lease by the defendant, Woolworths. The dispute centred around the sublease of a warehouse, which had a provision for holding over in a month-to-month tenancy after the expiry of the term. The plaintiff alleged that Woolworths failed to deliver up possession of the premises on 8 January 2003 in good repair, while Woolworths argued that the tenancy had validly terminated on 30 November 2002.

The legal issues that the court needed to decide included whether the amended statement of claim disclosed a reasonable cause of action, whether the amendments were necessary or scandalous, or whether they tended to prejudice, embarrass, or delay the fair trial of the action. The court also needed to determine whether the plaintiff was entitled to amend the statement of claim to correct any defects or errors in the action or to avoid multiplicity of actions.

The court found that the plaintiff was entitled to amend the statement of claim to correct the error in the particulars of loss or damage claimed in the amended statement of claim. The court also found that the omission of particulars of the representation relied on as the basis for the trade practices count could be cured by granting the plaintiff leave to amend so as to provide particulars in compliance with Order 23 rule 6(1). The court further found that the particulars pleaded were adequate to put the defendant on notice of the nature of the claim it would be required to meet and that the particulars lay an adequate grounding for the calling of evidence at trial on those issues.

In the result, the court dismissed the application but granted leave to the plaintiff to make further amendments to the statement of claim conformably with the reasons given. The court allowed an extended period for the amendments to be made, with the deadline set as 30 January 2004. The costs of the application were ordered to be costs in the cause.

Orders