Avin Operation Pty Ltd v Clover Pines Pty Ltd
[2003] VSCA 58
•23 May 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.8133 of 2002
| AVIN OPERATION PTY. LTD. | Appellant |
| v. | |
| CLOVER PINES PTY. LTD. | Respondent |
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JUDGES: | WINNEKE, P., PHILLIPS and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 April 2003 | |
DATE OF JUDGMENT: | 23 May 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 58 | |
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Courts – Practice and procedure – Lessor’s claim for possession, unpaid rent and outgoings and mesne profits – Proceeding brought by originating motion “special procedure” – Hearing in Practice Court constituting trial of the proceeding – Whether plaintiff’s proofs sufficient – Whether procedure appropriate – Remitted for further hearing – R.S.C. Chapter I Rule 45.05.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. A.W. Sandbach | Mr. J. Guss |
| For the Respondent | Mr. M. Clarke | Lennon Settle |
WINNEKE, P.:
I agree with Phillips, J.A.
PHILLIPS, J.A.:
This is an appeal the hearing of which has been expedited. It arises out of a proceeding commenced by originating motion in the Trial Division filed on 14 November 2002. In it the plaintiff (now the respondent) sought as against the defendant, named as Avin Operation Pty Ltd (the present appellant), a declaration that the lease dated 21 January 1998 “between the plaintiff and the defendant” was forfeited, orders that the plaintiff have possession of certain land at Monterey Road Dandenong and that the defendant pay the plaintiff the sum of $44,277.50 and costs, and such “further or other Orders or Directions as to the Court seems fit”. Orders for possession of the land and for payment of certain sums, with costs, were eventually made in the Practice Court on 13 January 2003 in circumstances to be described and it is against those orders, save that for possession, that the appellant now appeals. The appellant asserts that in one form or another there was procedural error below and that on that account the judgment given, save as to possession, should be set aside.
The proceeding at first instance
The originating motion was in Form 5C and, in addition to the relief already mentioned, the plaintiff sought leave to commence the proceeding thus and an order dispensing with the requirements of Rules 8.02 and 5.03 of Chapter I, the step suggested by the “special procedure” provided for by Rule 45.05. Because its claim was principally for possession of land consequent upon the forfeiture of a lease, the plaintiff was presumably claiming that this was an urgent case and accordingly fit to be tried by means of that special procedure.
The summons filed with the originating motion sought the same relief as the
originating motion and it was supported by the affidavit of Tony Lettieri of 13 November 2002, a director of the plaintiff company. According to this affidavit, the plaintiff’s case was that the defendant was in breach of the covenants in the lease in a number of ways. This included its failure to pay rent for the month of September 2002 in the sum of $19,887.59 (rent which was due on 1 September 2002), failure to pay rent also for the months of October 2002 and November 2002, failure to pay water rates and failure to reimburse the plaintiff for insurance premiums paid.
Exhibited to Mr. Lettieri's affidavit were a company search of the plaintiff, a copy of the title to the demised premises, a photocopy of the lease (undated), a company search of the defendant, a notice to the defendant under s.146 of the Property Law Act 1958 dated 22 October 2002, a notice to quit dated 12 November 2002 and a copy of a letter from the defendant dated 19 September 2002. This last purported to “confirm telephone advice that we intend to vacate the abovementioned property at the end of the term of the lease” and advising that “subject to agreement, we can immediately transfer to you by electronic funds .... the sum of $21,079.19 and pay the current rental by the end of this month”.
It may be said immediately that the photocopy lease exhibited to the affidavit appears to have been sealed by a company called “Avin Operations Pty. Ltd” which is a slight variation on the name of the defendant as set forth in the originating motion. The company search of the defendant, too, described the company as “Avin Operations Pty. Ltd.” and although the defendant has since sought to make capital out of the presence of the "s" at the end of the second word in the name, the name of the defendant as given in the title of the proceeding is surely a mere misdescription. It is no more than that. It is a matter that can be and should be corrected at the appropriate time.
According to an affidavit sworn on 31 March 2003 by Joseph Guss (the defendant's solicitor), the plaintiff’s summons first came on for hearing before a Master on 26 November 2002. Both parties were represented by counsel. Plaintiff’s counsel pressed the Master to refer the originating motion to the judge in the Practice Court on the first available date, while defendant’s counsel submitted that the matter was not properly brought by originating motion, there being a dispute of fact: Rule 4.06. No doubt with a view to allowing the defendant to identify any dispute of fact, the Master adjourned the further hearing of the summons to 13 December 2002 and directed that any affidavits on which the defendant intended to rely be filed and served by 6 December 2002. Costs were reserved. In fact no affidavit was filed on behalf of the defendant by 6 December - and according to Mr. Guss, this was because he had by then formed the view that the plaintiff’s case was not properly established by the affidavit relied upon.
When the matter came back before the Master on 13 December, there was still no affidavit on behalf of the defendant but there was a further affidavit for the plaintiff, an affidavit of Nick Mazzeo (a member of the firm of solicitors acting for the plaintiff) sworn on the day of the hearing (13 December) in which it was asserted that the “total amount now owed by the Defendant is $64,165.09” and describing how that amount was made up. Again according to Mr. Guss's affidavit of 31 March 2003[1], this further affidavit had not been served before it was relied upon; but, be that as it may, after some argument the Master granted leave to the plaintiff to commence the proceeding by originating motion in Form 5C and dispensed with compliance with Rules 5.03(1) and 8.02. (One result of this was that, unless otherwise ordered or agreed the matter, when tried, would be tried on affidavit, that being the rule where a proceeding is commenced by originating motion: Rule 45.02(1).) The Master referred the proceeding to the Listing Master “this day”, whereupon the Listing Master obtained from counsel estimates of the likely hearing time. On 20 December (according to an affidavit of Mr. Guss sworn on 20 March 2003) the Listing Master referred the plaintiff’s summons to the judge in the Practice Court for hearing on 13 January 2003.
[1]This was said also in one of the three affidavits sworn by Mr. Guss on 20 March 2003 to which reference is made later.
I mention these last few steps because they are not altogether consistent with the authenticated version of the Masters' order of 13 December 2002 (granting the plaintiff leave to commence the proceeding by originating motion in Form 5C). According to the order as authenticated, the further hearing of the proceeding was referred then and there to the judge sitting in the Practice Court and the orders were made “by consent”. Neither party is now making anything of the first point, but the appellant is loud in its criticism that the orders made on 13 December were not made by consent. Again, that does not matter at this stage. Suffice it to say that, by two steps or more the summons of the plaintiff, seeking the principal relief sought by the originating motion, was simply referred into the Practice Court for hearing on 13 January 2003, there to be dealt with by the judge as he saw fit.
By the time the matter came on for hearing on 13 January, there was yet another affidavit filed on behalf of the plaintiff, but still none from the defendant. That further affidavit was of Mr. Mazzeo, sworn on 10 January 2003, asserting that “the total amount owed by the defendant is $106,335.08” and, again, describing how that amount was made up. During the hearing on 13 January, plaintiff’s counsel told the judge that the total amount referred to in the latest affidavit needed correction in certain respects and that the correct figures were to be found in the two sheets of calculations which he then and there handed up. According to these (which are now Exhibit JG8 to the affidavit of Mr. Guss sworn on 31 March 2003), the defendant owed $59,648.75 for rent, interest and outgoings up until 12 November 2002 and, after that date, owed the sum of $42,167.44 for rent and interest on rent.
On behalf of the defendant objection was made to the judge that the affidavits filed on behalf of the plaintiff did not constitute satisfactory proof of the cause of action asserted. Counsel pointed to the undated, unstamped photocopy of the lease as offending the best evidence rule; the absence of any primary documents such as rate notices, insurance invoices and the like; the absence of any evidence to identify the land in the originating motion with the land the subject of the lease; and the absence, he said, of any admissible evidence identifying the named defendant as party to the lease. Counsel further submitted that the originating motion in Form 5C was altogether inappropriate given the questions of fact inherent in the plaintiff's claim for money sums, and more particularly that as the originating motion made no reference to any claim for mesne profits none should now be allowed.
When the judge enquired whether any affidavits had been filed in accordance with the order of the Master, counsel for the defendant replied that the absence of affidavits on behalf of the defendant did not prove the plaintiff’s claims. Again according to Mr. Guss’s affidavit of 31 March 2003, when the judge asked whether the defendant disputed the allegation that no rent had been paid, defendant’s counsel said that there was no admissible evidence of a lease. When asked again whether there was any dispute over non-payment of rent, counsel said that there was not. When asked whether the defendant was still in occupation, defendant’s counsel said that his client was still in occupation but was “in the process of moving out”. Accordingly, said counsel, there was “no urgency about the matter as his client was in the process of moving and would be vacating the premises in the next few weeks anyway”. At that point the judge said, in effect, that “he had heard enough” and made orders as sought by the plaintiff.
Thus it came about that on 13 January 2003 orders were made that the plaintiff recover possession of the land described in the originating motion, a declaration that “the Defendant is indebted to the plaintiff in the sum of $59,648.75” (presumably by virtue of the terms of the lease as that was the sum said to be due up until 12 November 2002) and an order that “the defendant pay $42,167.44 to the plaintiff for mesne profits” (that being the sum claimed according to the calculation sheets as due after 12 November). The defendant was also ordered to pay the plaintiff’s costs. Notice of appeal was filed on behalf of the defendant on 28 January 2003, but as soon as the appeal was called on for hearing the appellant-defendant applied for leave to file an amended notice of appeal dated 14 April 2003 and, the respondent making no objection, leave was granted.
The interlocutory proceedings
Before dealing with the merits of the appeal, I mention briefly how the matter came to be expedited. On 28 February 2003 the respondent to the appeal filed a summons seeking an order for security for the costs of the appeal. Two affidavits sworn on 28 February were filed in support, one by Robin Mark Settle and the other by Brett Morris (both of them solicitors in the firm acting for the respondent); and a supplementary affidavit of Mr. Morris followed, this sworn on 6 March 2003. On 20 March 2003, shortly before the hearing of the summons for security, the appellant filed a cross-summons seeking a stay on all orders made on 13 January, save that for possession; for possession had by then been given. With the cross-summons were filed three affidavits of Joseph Guss sworn on 20 March 2003[2], in part in support of the appellant's own claim for a stay and in part seeking to answer the respondents' claim for security.
[2]The appellant vacated the premises in “late January 2003”, according to one of these three affidavits.
When the summons for security and the cross-summons for a stay came on for hearing before the President and me on 21 March 2003, we adjourned both applications to allow for the filing of further affidavits. This led to the filing (on behalf of the respondent to the appeal) of two further affidavits of Mr. Mazzeo sworn on 26 March and 31 March 2003 respectively, and to the filing, on behalf of the appellant, of the further affidavit (already mentioned) of Mr. Guss, sworn on 31 March 2003 and an affidavit sworn on 2 April 2003 of Barrie Murdoch Armitage, a director of the appellant company. In passing, I note that this last affidavit exhibited a deed of company arrangement described as made by the appellant and in which the company is described as “Avin Operations Pty. Ltd.”; it also described the "Appellant-Defendant" as in the course of obtaining advice over cross-claims it believed it had “arising from its occupation of the premises”, claims which, the deponent suggested, might “exceed the amount claimed for rent and outgoings”.
When both summons and cross-summons came back before us for further hearing on 4 April, we ordered that the appeal be fixed for hearing on 24 April and directed that the papers already filed on the summonses stand as the contents of the appeal book. Written submissions were directed, a stay was ordered in the meantime and an order was made for security. It is pursuant to those orders that the appeal is now before us, but what I have described about its history is enough to establish the provenance of the affidavits we now have and by reference to which this appeal falls to be determined. It is only from the affidavits that the course of the proceeding can charted; for it is clear that no transcript exists of the hearing in the Practice Court on 13 January and that his Honour gave only very brief oral reasons for decision. While the affidavits filed after 13 January 2003 are therefore useful in describing what happened on that day and what led up to it, in deciding whether there was error in the decision reached we must be careful of course to consider only the affidavits available to his Honour at the time.
The merits of the appeal
On the merits of the appeal, I confess to having vacillated during argument. On the one hand the appellant's claim, which is in essence that on one ground or another its objections to the respondent's case were not properly considered when the matter came on for hearing on 13 January, seems at first to have some force. On the other hand, some of those objections were technical and, it might therefore have seemed, were taken for the sake of prevarication, given not only the responses made to his Honour's questions but also the affidavits subsequently filed for the appellant, which, as already indicated, still fail to condescend to particulars of any defence or cross claim. It seems apparent from what has so far been described that, at root, there was no real dispute between the parties about, at the very least, the existence of a lease (in some form or other), possession of the premises and over-holding by the appellant, and the non-payment of rent for some months. The broad context is plain enough even from the letter from the defendant dated 19 September 2002 which was exhibited to the very first affidavit relied upon, that of Mr. Lettieri. In the circumstances it would not have been surprising, given the nature of the appellant's objections, if his Honour had concluded that there was in truth no substantial issue of fact to be tried and that the appellant's objections, such as they were, were taken merely for the purpose of delay. None the less the question raised now is whether there were sufficient grounds for the judgment that was given on 13 January.
When Mr. Sandbach was addressing it seemed to me that that ground 8 in the amended notice of appeal was likely to provide his best argument for the appellant; for that complains that the judge erred in giving judgment on the basis of "unsworn calculation sheets provided by counsel for the respondent ... in the course of the hearing". It is easy to see how the figures in the orders made derived directly from the calculation sheets which are now Exhibit JG8 to an affidavit of Mr. Guss. The first of those two sheets calculates the sum of $59,648.75 as owing for rent for September, October and November (up until 12 November) and for council rates, water rates, insurance, a dishonoured cheque and the locksmith. The second calculates $42,167.44 as owing for rent for 19 days of November 2002, for December and for 12 days in January 2003 (that is, up until the date of the hearing) and for interest on unpaid rent after 12 November. The calculation sheets are thus critical to the orders made, lending significant force, it seemed, to the criticism made by the appellant that it was given insufficient time to deal with the details of the claim being made against it when those sheets were simply handed up to the judge without notice on 13 January. But Mr. Clarke was able to demonstrate that, at least for the most part, the calculation sheets were no more than a recalculation of what had already been claimed, and about which the appellant was already on notice.
In this regard Mr. Clarke relied in particular upon Mr. Lettieri's affidavit and the notice given the defendant under s.146 of the Property Law Act. In the affidavit of 13 November, the respondent had relied upon breach of the lease in the appellant's failing to pay rent for the months of September, October and November 2002; failing to pay water rates in the sum of $838.25; and failing to reimburse the plaintiff in the sum of $3,228.16 for insurance premiums paid by the plaintiff for risks referred to in the lease. The sums mentioned in this affidavit were duly reflected on the first of the two calculation sheets, calculating the amount due and payable up until 12 November 2002. Then, said Mr. Clarke, there was the notice under s.146, Exhibit TL5 to Mr. Lettieri's affidavit. As that notice was given on 22 October, it claimed rent only for the months of September and October and interest thereon up until 22 October; but it claimed also the sums of $838.25 for the water rates and $3,228.16 for insurance. In addition it claimed $50 for a dishonoured cheque and $44 for the locksmith - sums which were duly repeated on the first of the two calculation sheets.
Of course the affidavit of Mr. Mazzeo sworn on 10 January 2003 (like his earlier affidavit of 13 December) and the two sheets of calculations that were put before the judge on 13 January went further than the foregoing, because they carried matters up to date: that was their very purpose. Thus the second of the two sheets included an amount described as rent unpaid up until 13 January. The affidavit of Mr. Mazzeo, sworn on 10 January 2003, which also purported to bring the claim up to date and which put the total sum claimed at $106,335.08, included an amount for "rent" (so-called) for January, but it incorrectly claimed for 20 days. This appears to have been a slip because "interest on rent" was claimed only up until 10 January. In addition, the affidavit of 10 January repeated the claims already described for water rates, insurance, dishonoured cheque and locksmith, but to these there was added the sum of $7,520.70 for "council rates", a sum which was included also on the two calculation sheets handed up on 13 January. (It was included on the first of the two sheets.)
Thus, said Mr. Clarke, everything that appeared on the two calculation sheets had already been mentioned in one affidavit or another, and as the affidavit of 10 January 2003 had been served merely to bring matters up to date because possession had still not been surrendered, the appellant could not have been taken by surprise. It is true that the division of the respondent's claim into two parts (the one before and the other after 12 November) appeared for the first time on the two calculation sheets which were handed to the judge on 13 January; but in itself, said Mr. Clarke, the mere division of what had previously been claimed could not have caused surprise. The division was required only because the respondent's claim arising from the appellant's continuing in possession after 12 November (when the lease had come to an end) was technically damages for trespass (or mesne profits), while its claim up against the appellant for things payable up until 12 November was for rent, outgoings and interest payable under the lease. Mr. Clarke accepted that, strictly speaking, claims for "rent" falling due after 12 November were claims for damages quantified by reference to the rent which would have been due under the lease had it not been determined on 12 November when the notice to quit was served. That was of no significance, he argued; for ordinarily mesne profits will be calculated by reference to the covenants in the lease in the case of over-holding: see for example Woorarra Pastoral Co. Pty. Ltd. v. E.P. and D.L. Cash[3], Wilson v. Kelly[4].
[3]Supreme Court of Victoria, Adam, J. 25 June 1971, unreported, at p.15.
[4][1957] V.R. 147 at 152.
Certainly Mr. Clarke's answer met much of the complaint made by Mr. Sandbach for the appellant. A claim for possession, when coupled with a claim for rent, outgoings and interest and, since the termination of the lease, for mesne profits is a claim which ordinarily will have to be brought up to date when judgment is obtained[5]. There can have been no surprise in the updating of the material, nor in the division of the claim into two around the critical date of 12 November, given that that was the date on which the lease had come to an end. As for the objection that there was no claim for mesne profits in the originating motion, the appellant can have been under no illusions about the respondent's claim against it continuing while it remained in possession: the updating affidavit of 13 December had expressly included an amount for rent for December. Further, as Mr. Clarke pointed out, according to the narrative recounted in the affidavit of Mr. Morris sworn on 28 February 2003, when Mr. Sandbach complained on 13 January about the absence of any formal claim for mesne profits, Mr. Clarke (as counsel for the plaintiff) sought leave "if necessary" to amend the originating motion to include such a claim. The judge, it appears, did not rule upon the application to amend, presumably indicating by his silence that he thought amendment unnecessary. Certainly if there was any defect in the proceeding in that regard, it seems to me to have been purely formal in the particular circumstances.
[5]I should have thought that, contrary to the calculation sheets relied upon by the respondent, interest falling due after 12 November on rent payable before 12 November was not mesne profits. I put that aside, however, as no complaint was raised in that regard.
Even so, Mr. Clarke's answer does not, I think, meet wholly the objection of the appellant. The affidavit of 10 January 2003 does include for the first time an amount for council rates ($7,520.70) and if, as the appellant asserts, that affidavit was late served on the Friday (10 January), it can fairly be said that the appellant was not given sufficient notice of the claim for council rates. I pass by the correction in the amount claimed for rent for the month of January 2003 because, being a reduction from 20 days to 10, it was plainly to the appellant's advantage. But as to the council rates it was too late, I think, for their inclusion in the face of the objections being made as to proof. Accordingly, if the judge erred on 13 January in proceeding upon the basis of the calculation sheets, it was not because the calculation sheets were presented late in the piece (for, as bringing matters up to date, they had to be); or because they were unsworn (because, to the extent that they reflected a rearrangement of figures earlier claimed, they were supported by affidavits). It was because they went beyond mere rearrangement in including a claim for council rates (a claim which appeared for the first time in the affidavit of 10 January).
Allied to the complaint that the judge acted upon unsworn material in the form of the calculation sheets is the complaint made by the appellant in ground 6 of the notice of appeal that the judge erred "in giving judgment for an amount which included claims for water rates, council rates, insurance, bank fees and locksmith charges, given that the respondent (plaintiff) did not adduce any admissible evidence that any particular sums were due for any such matter." There was, of course, some evidence that at least some of such sums were due and owing; Mr. Lettieri had said as much in his initial affidavit and he was a director of the plaintiff company. The s.146 notice dated 22 October 2002 was exhibited to his affidavit on information and belief and it too referred to all of the amounts now in question save only the council rates. For the information contained in the notice Mr. Lettieri was dependent, I suppose, upon others, and I should have thought probably the respondent's managing agent. The further details provided in the affidavit of Mr. Mazzeo sworn on 10 January were said to be on information and belief from the managing agent of the property. In this context I think it a fair inference that all of the information given in the affidavits about outgoings (and it may be even the rent itself) was derived from the managing agent, so that all of it should be regarded as provided only on information and belief. Yet this was not the trial of an interlocutory proceeding: as I apprehend it, this was the trial of the action, albeit a trial proceeding on affidavit.
The absence of the documents to support the water rates, council rates, insurance and so on might not have been of great significance in the end had there been more direct evidence of the outgoings in question: but again the appellant has a point, that at the trial of the action the use of material given only on information and belief is open to objection. Mr. Clarke's answer was that on 13 January there had been no application to cross-examine the deponents, but if as I have suggested the deponents were swearing on information and belief, cross-examination would not have been of much help. What was needed was something more direct about the outgoings and - as already mentioned - the inclusion of council rates was late. The obvious step would have been to file an affidavit from the managing agent, exhibiting where necessary the relevant demands for rates, insurance and the like, but that step was not taken. Appellant's counsel conceded, of course, the absence of dispute over the non-payment of rent, but that did not touch the question of outgoings.
Ordinarily outgoings are the responsibility of the lessee because the lease so provides and another head of complaint made by the appellant about the proceedings on 13 January focused on the lease itself. The complaint made to the judge, and now to us, was that the lease was not properly proved merely by the production of a photocopy document apparently unstamped. Of course the fact that the photocopy did not bear any stamping imprint does not mean that the original and the counterpart were not duly stamped, if stamping was required; and on a fair reading of the affidavits upon which we were asked to proceed I think it more probable than not that the complaint made to the judge was no more than this: that production of the photocopy document exhibited to the affidavit of Mr. Lettieri offended against the "best evidence" rule. Mr. Clarke made answer that such a complaint commonly goes to weight these days rather than admissibility[6]. Mr. Sandbach responded that none the less when secondary evidence of a document is sought to be admitted, particularly if objection is made, the non-production of the original must first be explained. And on the face of it there is force in this response.
[6]But cf. Butera v. D.P.P. (1987) 164 C.L.R. 180 at 185-6.
It appears from the affidavits we have that the arguments about proving the lease were probably not identified below so clearly as they were before us. Indeed Mr. Sandbach had to concede that the judge's attention had not been directed to any relevant statutory provision concerning stamping and so it might be that that point does not now add much to his case on appeal. Moreover, so far as I can tell from the affidavits even the submission about the best evidence rule was probably overshadowed by the argument about the identity of the lessee, and I have dealt already with the point of misdescription. On the face of it the defendant was misnamed in the originating motion, but that was no more than a slip which was readily curable. There was in substance no dispute but that the defendant had been in possession of the premises (and indeed was still in possession of the premises) as both its letter dated 19 September and counsel's answers to the judge's questions made plain. One can understand, then, the irritation of the judge in the Practice Court when confronted by a submission that the plaintiff had failed in its proofs because of the misnomer and perhaps it was that which caused the other objections to use of the photocopy document to become lost. Be that as it may, the use of secondary evidence on such a critical step does seem to ground a complaint having some force.
I deliberately refrain from expressing too clear a view about what happened below; for in the absence of a transcript we are necessarily left somewhat uncertain about precisely what was said and done at first instance. None the less I have said enough to indicate that, whatever the course actually followed below, I am of opinion, on the affidavits before us, that there was procedural error below of one sort or another - and the more especially as the judge gave very few reasons for decision. According to the affidavit of Mr. Morris of 28 February, his Honour simply expressed himself as "satisfied on the evidence" that "outgoings were owing as claimed" in the plaintiff's affidavits, that "the copy lease was sufficient evidence of the lease between" the parties, and that the plaintiff "was entitled to mesne profits as set out in the affidavits". This last must have encompassed a reference to two calculation sheets upon which the respondent was relying, but nothing was said specifically about the many objections taken by counsel for the appellant. No matter that those objections might have been speedily dismissed had the respondent attended to those matters needing attention; as things stood on 13 January I think, with respect, that his Honour erred.
On 13 January the matter appears to have proceeded much as one might have expected on a summons for final judgment, but that is not how the matter reached his Honour and I think the appellant has legitimate ground for complaint. The appellant submitted to the judge, and submitted more than once it seems, that the procedure being followed was not appropriate and although the form by which a proceeding is commenced may not be as relevant nowadays as once it was, the appellant was brought before the court on 13 January for what, in default of any other order or direction, must be taken to have been the trial of the proceeding, albeit a trial on affidavit. His Honour made an understandable effort to see that the whole matter was disposed of with as little expense as possible, particularly as the appellant had declined to put on affidavit any defence to the claims made, but in doing so I think with respect that his Honour fell into procedural error.
That is not to say that a matter such as this cannot properly be dealt with in the Practice Court: quite clearly it can. There was no argument about the claim for possession and the order for possession is not now impugned. Further as was demonstrated by counsel's answers to the judge's questions there was no argument but that rent was owing. But it was not appropriate, I think, to overrule or simply to ignore the objection taken as to late service (which affected the claim for council rates at the very least), the plaintiff 's failure to have any direct evidence of the outgoings that were the subject of the lessor's claim, or the plaintiff's use of secondary evidence of the lease without accounting first for the absence of the original. I am prepared to assume that all these matters could have been (and no doubt can) be attended to fairly readily, but attended to they should have been. (One can add, too, the amending of the originating motion to correct the name of the defendant and to claim mesne profits and perhaps any question still extant over the stamping of the lease.)
Conclusion
In the result, I consider that the matter must be returned to the Trial Division for further hearing and determination. Though necessary, that is unfortunate if, as I suspect, there will in the end be no real dispute except as to details. On any view possession was not surrendered promptly when the lease was terminated, rent was left owing, outgoings were not paid and interest was due; yet nothing has been paid, it seems, despite the letter of 19 September last. If then we are to set aside the orders made (save as to possession) and remit the matter, I think that we should give directions to see that the matter is brought on again for hearing as quickly as may be.
As to the possibility of some cross claim by the appellant, it seems from Mr. Armitage's affidavit that even now the appellant has no clear idea of its case against the respondent. There would seem to be no reason at all why the respondent's claim against the appellant should have to be delayed while the appellant takes further time to consider its position: after all, the appellant can always mount a cross-claim by a separate proceeding. Nor, in my opinion, should the appellant be left at large to take its time over the further hearing and determination of the claims against it.
Accordingly, as the appellant has still failed to identify any significant dispute of fact as distinct from calling for the respondent properly to prove its case, I would order (subject to any further or other order in the Trial Division) that the action be tried on affidavit; I would give directions for the filing and service of any further affidavits to be relied upon by the respondent or to be relied upon in answer by the appellant; and I would refer the matter back to the Practice Court for further hearing and determination on a given date.
On that basis I would allow the appeal, set aside the orders made on 13 January (save as to possession) and direct the further hearing of the matter in the Trial Division. I would hear counsel on the detail of the orders to be made.
VINCENT, J.A.:
I agree with the disposition of this matter as proposed by Phillips, J.A. for the reasons advanced by him in his judgment which I have had the opportunity of reading in draft form.
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