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Bowen v Alsanto Nominees Pty Ltd

Bowen v Alsanto Nominees Pty Ltd

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Case Copied 23 February 2011 63 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BOWEN -v- ALSANTO NOMINEES PTY LTD [2011] WASCA 39

CORAM: McLURE P
NEWNES JA
MURPHY JA

HEARD: 7 SEPTEMBER 2010

DELIVERED : 23 FEBRUARY 2011

FILE NO/S: CACV 116 of 2009

BETWEEN: NIELS BOWEN
JAYNE ELIZABETH CANNON
Appellants
AND
ALSANTO NOMINEES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER STAUDE
Citation  :ALSANTO NOMINEES PTY LTD -v- BOWEN & ANOR [2009] WADC 130
File No  :CIV 1461 of 2007

Catchwords:

Real property - Appellants intended to set up pharmacy to operate as franchisee of appellants - Agreement to lease respondent's premises - Agreement subject to condition that appellants obtain approval to relocate another pharmacy to the premises - Intention of parties that owner of that pharmacy would be lessee of premises - Appellants commenced fitout of premises - Appellants unable to obtain approval to relocate another pharmacy - Whether agreement to lease binding on appellants - Masters v Cameron - Whether trial judge erred in finding appellants waived benefit of condition of approval by commencing fitout of premises

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellants: Mr S K Shepherd
Respondent: Mr S Owen-Conway QC & Mr P A Monaco

Solicitors:

Appellants: Tottle Partners
Respondent: GV Lawyers

Case(s) referred to in judgment(s):

Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 283 CLR 570
Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101
Badat v DTZ Australia (WA) Pty Ltd [2008] WASCA 83
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Donaldson v Bexton [2006] QCA 559; [2007] 1 Qd R 525
Gange v Sullivan [1966] HCA 55; (1966) 116 CLR 418
George v Roach [1942] HCA 22; (1942) 67 CLR 253
Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Hawksley v Outram [1892] 3 Ch 359
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; (1993) 182 CLR 26
Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
Motor Oil Hellas (Corinth) Refineries v Shipping Corp of India (The Kanchenjunga) [1990] 1 Lloyd's Rep 391
Mulcahy v Hoyne [1925] HCA 17; (1925) 36 CLR 41
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537
Sandra Investments Pty Ltd v Booth [1983] HCA 46; (1983) 153 CLR 153
Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634
Shakibaee v Chan [2001] WASC 60; (2001) 24 WAR 97
Sheehan v Zaszlos [1995] 2 Qd R 210

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: [2011] WASCA 39
Decision Date: 23 FEBRUARY 2011

CaseChat Overview and Summary

Bowen and another appellant, collectively referred to as "the appellants," brought an appeal against Alsanto Nominees Pty Ltd, the respondent, in the Supreme Court of Western Australia. The appellants sought to establish a pharmacy as a franchisee of the respondent, and entered into an agreement to lease premises owned by the respondent for this purpose. The agreement was contingent upon the appellants obtaining approval to relocate another pharmacy to the premises, which they were unable to do. The appellants commenced the fit-out of the premises before obtaining the necessary approval. The respondent initiated legal proceedings against the appellants, seeking to enforce the lease agreement. The appellants contested the enforceability of the agreement, arguing that the condition of obtaining approval had not been satisfied, and that they had not waived this condition by beginning the fit-out. The central legal issues in this case were whether the agreement to lease was binding on the appellants and if the appellants had waived the benefit of the condition of approval by commencing the fit-out of the premises. The court examined the intentions of the parties and the principles established in Masters v Cameron to determine if the condition precedent had been met or waived. The Court of Appeal found in favour of the appellants on two out of three grounds of appeal. The court held that the agreement to lease was not binding on the appellants because the condition of obtaining approval had not been satisfied, and the appellants had not waived this condition by commencing the fit-out. The appeal was allowed, the decision of the primary judge set aside, and the respondent's claim against the appellants dismissed. The court ordered that the question of costs be determined on the papers, and the parties were directed to file written submissions. The appellants were ultimately awarded their costs of the appeal and the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 23 February 2011, this court published its reasons for concluding that the appeal should be allowed, the decision of the primary judge set aside and the respondent's claim against the appellants dismissed: Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39. The parties sought an opportunity to consider the reasons for judgment before making submissions as to costs. Directions were therefore given for the filing of written submissions by each party and it was ordered that the question of costs be determined on the papers. The written submissions have now been filed. The respondent submits that the appellants should only be entitled to a portion of their costs of the appeal and the trial. In respect of the appeal, it says that while the appellants succeeded on the first and third of their three grounds of appeal, they failed on the second ground which, together with the first ground, occupied most of the time on the appeal. In respect of the trial, the respondent submits that the length of the trial was unnecessarily extended by the way in which the appellants conducted their case. The respondent refers, among other things, to the amendments to the defence made by the appellants on the second day of the trial, which led to the adjournment of the trial for a period of some three weeks and to a chain of fresh pleadings by both sides which widened the field of dispute and caused the trial to be longer than it might otherwise have been: Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130 [8] ‑ [11]. The respondent says it should be required to pay only 20% of the appellants' costs of the trial and 50% of the appellants' costs of the appeal. Alternatively, it says the question of the costs of the trial should be remitted to the primary judge. The appellants submit that they are entitled to an order that the respondent pay their costs of the trial and the appeal. They say that there is nothing which would justify a departure from the general principle that costs follow the event. They argue that the effect of the amendments to the defence at trial did not raise any substantial issues that would not otherwise have had to be canvassed and, in any event, the respondent itself extended the trial by putting in issue matters, such as the effect of the legislation regulating pharmacies, on which it failed. In relation to the appeal, the appellants submit that while they were unsuccessful on one of the three grounds of appeal, it was not unreasonable to raise the unsuccessful ground and that ground did not raise any discrete factual issues. It is clear that while the court has a broad discretion as to costs, generally costs will follow the event: Rules of the Supreme Court 1971 (WA), O 66 r 1(1). It is incumbent upon the unsuccessful party to satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394, 407. The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] ‑ [68] (McHugh J). Litigation is time‑consuming, expensive and burdensome enough already.

Ratio Decidendi

Legal Principle Established

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