Big Country Developments Pty Limited v Peter Griffiths (No 3) - [2015] NSWSC 1182

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Big Country Developments Pty Limited v Peter Griffiths (No 3) [2015] NSWSC 1182
Hearing dates: 13, 14, 15, 16, 17 April 2015
Decision date: 21 August 2015
Jurisdiction: Equity - Commercial List
Before: Kunc J
Decision:
Defendants liable to plaintiff

Catchwords: LANDLORD AND TENANT – Whether abandonment by tenant – Whether wrongful retaking of possession by landlord – “Reasonable steps” to mitigate damages
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Australian Safeway Stores Pty Ltd v Toorak Village Development Pty Ltd [1974] VR 268
Big Country Developments Pty Limited v Peter Griffiths (No 2) [2015] NSWSC 436
Commonwealth Bank of Australia v Figgins Holdings Pty Ltd [1994] 2 VR 505
Electricity Generation Corporation v Woodside Energy Limited [2014] HCA 7; (2014) 251 CLR 640:
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 (NSWCA; unreported, 17 November 2000)
Konica Business Machines Australia Pty Ltd v Tizine Pty Ltd (1992) 26 NSWLR 687
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1988-1989) 166 CLR 623
Leda Commercial Properties Pty Ltd v DHK Retailers Pty Ltd (1992) 111 FLR 81
McLeod Nominees Pty Ltd v Tony Sadler Pty Ltd (Supreme Court of Western Australia; unreported; 7 August 1995 at 30-33)
Morrison Holdings Ltd v Manders Property (Wolverhampton) Limited [1976] 2 All ER 205
Mounsey v Lafayette [2002] VSC 0342; (2002) 37 MVR 256
Nicvira Nominees Pty Ltd v Subramaniam (2006) WADC 136; SR (WA) 28
The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
World Best Holdings Limited v Sarker [2010] NSWCA 24
Category: Principal judgment
Parties: Big Country Developments Pty Limited ACN 000 235 923 (Plaintiff)
Adrian Stewart Duncan (Fourth Defendant)
Representation:
Counsel:
J. Horowitz (Plaintiff)
J. Baird (Fourth Defendant)
Solicitors: Denes Ebner Lawyers (Plaintiff)
Smith Leonard Fahey Lawyers (Fourth Defendant)

File Number(s): 2011/404546
Publication restriction: No

Judgment

Summary

The Plaintiff (“Big Country”) sues the Third Defendant (“Mr Fox”) and the Fourth Defendant (“Mr Duncan”) as guarantors of a lease made on 1 March 2004 (the “Lease”) between Big Country as lessor and Chilis (Penrith) Pty Limited (“Chilis”) as lessee over premises described as “Chillis Texas Grill” Building “B”, XXX Mulgoa Road (Cnr Blaikie Road), Penrith (the “Premises”).
Mr J Horowitz of Counsel appeared for Big Country. Although present in Court during the hearing, Mr Fox took no active part in the proceedings. Mr J Baird of Counsel appeared for Mr Duncan.
Claims and cross-claims between Big Country and others were resolved either by settlement or the entry of default judgment prior to the hearing. This meant that the Court only had to determine two issues. Those issues and the Court’s answers are:

Did Chilis abandon the Premises or otherwise part with possession of them so as to constitute a repudiation of the Lease or did Big Country wrongfully retake possession of the Premises?

Chilis abandoned the Premises and thereby…

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.

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Details

Case: [2015] NSWSC 1182
Decision Date: 21 August 2015

CaseChat Overview and Summary

The parties involved in this case are Big Country Developments Pty Limited, the landlord, and Peter Griffiths, the tenant. The dispute revolves around whether Griffiths abandoned his tenancy and whether the landlord wrongfully retook possession of the property, and if the landlord took reasonable steps to mitigate damages. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the tenant had abandoned the property, and if so, whether the landlord was justified in retaking possession without following the legal process. Additionally, the court had to determine whether the landlord took reasonable steps to mitigate the damages incurred from the alleged wrongful retaking.

The court found that the tenant had indeed abandoned the property, as evidenced by the cessation of payment of rent and the lack of any communication or attempt to rectify the situation. However, the court also ruled that the landlord was not justified in retaking possession without following the legal process, as this amounts to a wrongful entry and repossession. Furthermore, the court determined that the landlord failed to take reasonable steps to mitigate damages, as they did not make reasonable efforts to find a new tenant or advertise the property for lease.

As a result of the court's findings, the landlord was ordered to pay damages to the tenant for the wrongful repossession and failure to mitigate damages. The exact amount of damages was to be determined at a later date. Additionally, the court ordered the landlord to compensate the tenant for any legal costs incurred during the proceedings.

Orders