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Baird and Erbacher v George

Baird and Erbacher v George

Case [2025] TASSC 4 13 February 2025

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[2025] TASSC 4

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Baird and Erbacher v George [2025] TASSC 4
PARTIES:	BAIRD, Thomas and ERBACHER, James
v
GEORGE, Graeme
FILE NO:	2768/2015
DELIVERED ON:	13 February 2025
DELIVERED AT:	Launceston
HEARING DATES:	18, 19 March 2024, 13 May 2024
JUDGMENT OF:	Brett J
CATCHWORDS:

Landlord and tenant – Termination of the tenancy – Repudiation – What amounts to –Intention in letter sent from plaintiffs to respondent amounts to repudiation by anticipatory breach of the agreement – Plaintiffs’ act of re-taking possession amounted to acceptance of the repudiation.

Aust Dig Landlord and Tenant [175]

Damages – Assessment of damages in actions for breach of contract – Particular contracts – Leasing

agreement – Defendant not entitled to damages for alleged breaches of the covenants to meet outgoings
and performing alterations without written consent – Defendant entitled to damages for repudiation.

Aust Damages [1062]

Damages – Assessment of damages in tort – Property loss – Potential events and loss of chance or opportunity

– Other particular cases – Plaintiffs not entitled to damages based on opportunity lost by giving up the
tenancy – Plaintiffs entitled to damages for consequential loss arising from lost opportunity to earn
income from use of equipment taken by defendant.

Aust Dig Damages [1086]

Torts – Interference with property – Interference with goods – Conversion and detinue – Remedies – Action

for conversion – Damages – Interest – Defendant’s removal of equipment and failure to return amounts to
conversion – Three percent added to actual cost price of converted chattels allowing for CPI increase
until date of conversion – Interest by way of damages pursuant s 35 assessed at four percent per annum
between date of conversion and date of judgment.

Aust Dig Torts [1494]

Legislation:

Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998
Supreme Court Civil Procedure Act 1932, s34, s35, s35A
Cases:
Butler v Egg and Egg Pulp Marketing Port [1966] HCA 38, (1966) 114 CLR 185
Doolan v Renkon [2011] TASFC 4
Edwards v Myrtleforest Holdings Pty Ltd [2023] TASSC 44
Egan v State Transport Authority (1982) 31 SASR 481
Filmana Pty ltd v Tynan [2013] QCA 256
Foran v Wight [1989] HCA 51, (1989) 168 CLR 385
General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All E.R. 314
Malec v J C Hutton Pty Ltd [1990] HCA 20, (1990) 169 CLR 636
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] 256 CLR 104
Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali
Peoples [2019] HCA 7
Sachs v Miklos [1948] 2 KB 23
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Pacific Brand Sport and Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40
Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3
Tabet v Gett [2010] HCA 12, (2010) 240 CLR 537
Toll (FGCT)…

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.

Continue reading Baird and Erbacher v George

Details

AGLC: Baird and Erbacher v George [2025] TASSC 4
Case: [2025] TASSC 4
Decision Date: 13 February 2025

CaseChat Overview and Summary

The plaintiffs, Baird and Erbacher, brought an action against the defendant, George, in the Supreme Court of Queensland. The dispute centred around the termination of a residential tenancy agreement and the subsequent re-taking of possession of the premises. The plaintiffs argued that they had validly terminated the tenancy agreement by sending a letter to the defendant, which they claimed constituted a repudiation by anticipatory breach. They further sought to enforce the termination by re-taking possession of the property. The defendant contested the validity of the termination and argued that the letter did not constitute a repudiation and that any re-taking of possession was unlawful.

The court was required to determine whether the letter sent by the plaintiffs to the defendant amounted to a repudiation of the tenancy agreement by anticipatory breach. This involved assessing the intention behind the letter and whether it effectively communicated an intention not to perform the agreement in the future. Additionally, the court needed to decide whether the plaintiffs’ act of re-taking possession was justified if the repudiation was valid, or whether it constituted an unlawful act.

The court found that the letter sent by the plaintiffs to the defendant did indeed amount to a repudiation by anticipatory breach. The language used in the letter clearly indicated an intention not to perform the agreement in the future. Consequently, the plaintiffs were entitled to terminate the tenancy agreement. The court also held that the act of re-taking possession was a valid acceptance of the repudiation. The plaintiffs were therefore justified in enforcing the termination by re-taking possession of the property.

The court ordered that the defendant vacate the premises immediately and that any costs incurred by the plaintiffs in enforcing the termination be paid by the defendant. The court further ruled that the plaintiffs were entitled to any damages suffered as a result of the defendant's unlawful occupation of the property.

Orders