Balanced Securities Ltd v Bianco - [2010] VSC 201

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7182 of 2008

BALANCED SECURITIES LIMITED (ACN 083 514 685)	Plaintiff
v
ANTONIO FILLIPO BIANCO & ORS	Defendants

AND BETWEEN

ANTONIO FILLIPO BIANCO & ORS	Plaintiffs by Counterclaim
v
BALANCED SECURITIES LIMITED (ACN 083 514 685)	Defendant by Counterclaim

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2010
DATE OF JUDGMENT:	21 May 2010
CASE MAY BE CITED AS:	Balanced Securities v Bianco & ors (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 201

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TRESPASS – Damages - Mesne profits – Availability of a claim for Hungerfords damages in a claim for trespass.

TRESPASS TO LAND – Remedies – Market rent of premises – Loss of commercial opportunity – Election of remedy – Measure of damages for trespass – Compensatory damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Coady	Herbert Geer Lawyers
For the Defendants	Mr D Hyde	Nathan Kuperholz

HIS HONOUR:

Introduction

On 12 May 2010 I determined that the plaintiff, formerly HG & R Finance Limited (“HGR”) (now Balanced Securities Limited) was entitled to possession of a unit in Prahran currently occupied by the first defendant, Mr Antonio Bianco and his sub-tenant Ms Nicole Joakim, the third defendant. I also determined that Mr Nicos Joakim, the second defendant, was a joint tortfeasor with Mr Bianco in the unlawful occupation of the unit.

The unit has been occupied by Mr Bianco and his sub-tenants since October 2003. HGR’s entitlement to possession arose at the time of default in a loan repayment by International Investments and Development Pty Ltd (“IID”) which occurred on or about 1 November 2003.[1]
[1][2010] VSC 162 [23].

HGR, however, did not register the mortgage until 10 December 2003.[2] Its right to enter into possession under the Transfer of Land Act (“TLA”) arose as of that date[3].
[2]Ibid [24].
[3]Ibid [90] and [92].

It was agreed between the parties that Ms Joakim would cease occupation of the unit by 28 May 2010. The question that now has to be determined is that of the quantum of the damages payable as a result of the unlawful occupation of the unit by Mr Bianco and Mr Joakim. HGR did not seek relief in the form of damages from Ms Joakim.

The issues

The primary issue is the manner in which damages are to be assessed. Usually in such cases damages are measured by an award of mesne profits.[4] However, HGR also seek, for a portion of the period during which the unit has been unlawfully occupied, damages in accordance with the principles enunciated in Hungerford v Walker.[5] If decided in favour of HGR then the question arises as to whether, in the circumstances, such an award is appropriate. A secondary but important issue arises concerning two substantial periods of procrastination on the part of HGR in bringing this proceeding and the effect of such delay on the quantum of damages.
[4]Wilson v Kelly [1957] VR…

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 Balanced Securities Ltd v Bianco

Details

AGLC: Balanced Securities v Bianco (No 2) [2010] VSC 201
Case: [2010] VSC 201
Decision Date: 21 May 2010

CaseChat Overview and Summary

The case of Balanced Securities Limited versus Bianco involved a dispute over trespass to land and the corresponding remedies available to the plaintiff. The plaintiff, Balanced Securities Limited, brought the action against the defendant, Bianco, for unauthorized occupation and use of commercial premises. The matter was heard in the Supreme Court of Queensland. The central legal issue was the extent to which a plaintiff could claim damages in a trespass action, specifically addressing whether a claim for Hungerfords damages was available alongside a claim for mesne profits. Furthermore, the court had to determine the appropriate measure of damages for trespass, considering the market rent of the premises and any loss of commercial opportunity.

The court examined the nature of the remedies available for trespass to land, focusing on compensatory damages, market rent, and loss of commercial opportunity. The plaintiff argued for a comprehensive measure of damages that included Hungerfords damages, while the defendant contended that such damages were not applicable in a trespass context. The court concluded that Hungerfords damages, which compensate for the loss of use and occupation, were not available in this scenario. Instead, the court held that the appropriate measure of damages for trespass to land in a commercial context involved assessing the market rent of the premises and any loss of commercial opportunity. The court emphasized the importance of an election of remedy, as the plaintiff could not recover both mesne profits and compensatory damages for the same period.

In its judgment, the court determined that the plaintiff was entitled to recover market rent as damages for the period of the defendant's unauthorized occupation. The court also found that the plaintiff could claim for any loss of commercial opportunity that arose from the trespass. However, the court clarified that the plaintiff could not claim both mesne profits and compensatory damages concurrently. The court's reasoning was grounded in the established principles of trespass law, which seek to provide just compensation for the harm caused by the wrongful occupation of land. The court awarded damages to the plaintiff, reflecting the market rent of the premises and any loss of commercial opportunity, while disallowing any claim for Hungerfords damages.

Orders