Brinca Property Management P/L v Andrew Yeo & Gess Rambaldi

[2015] VMC 35

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MILDURA  F10931570

BETWEEN:

BRINCA PROPERTY MANAGEMENT P/L   Plaintiff

-and-

ANDREW YEO & GESS RAMBALDI   Defendants

MAGISTRATE:   GINNANE

WHERE HEARD:  MELBOURNE

DATE HEARD:  29 OCTOBER 2015

DATE OF DECISION:   4 NOVEMBER 2015

MEDIUM NEUTRAL CITATION:         [2015] VMC 035

Catchwords: Property Law - application for summary judgment under s 63 of the Civil Procedure Act 2010 – application for permanent stay of proceeding – apportionment of rentals and outgoings under lease contained in contract of sale of real property – appointment of administrators to tenant company under deed of administration - s 436A Corporations Act 2001 – grounds to imply term into Special Conditions of contract of sale of property to permit vendor (former landlord) to commence proceedings in name of purchaser of property against administrators of former tenant company – operation of s 141 of the Property Law Act 1958 – alternative argument whether vendor may be substituted as plaintiff and plaintiff added as defendant – whether contract of sale altering operated as an equitable assignment of the rights to unpaid rentals in vendor such as to create a sufficient basis for substitution as plaintiff.

REASONS FOR DECISION

APPEARANCES  Counsel   Solicitors

For the Plaintiff  Mr Klotz   Moloney Anderson

For the Defendant  Mr Moller   Frenkel Partners

HIS HONOUR:

Introduction

1. This matter came into Court on 29 October 2015. The plaintiff was represented by Mr Klotz of Counsel and the defendant was represented by Mr Moller of Counsel.  The file had not been transferred from the Mildura registry to the Melbourne registry. Counsel helpfully furnished copy documents to enable the matter to proceed without undue delay. At the conclusion of argument and because of the impending intervening Cup day holiday I stated that I intended to reserve my decision to the day following the public holiday. I now publish my reasons.
2. There are two issues to be determined by way of preliminary matters arising out of this litigation. First, the plaintiff by way of Application dated 13 April 2015 and supported by an affidavit of Tyler John Stewart, a solicitor in the employ of the plaintiff’s solicitors and sworn 14 April 2014, applies for summary judgement under s 63 of the Civil Procedure Act 2010 (CPA). Section 63 of the CPA provides that:

Summary judgment if no real prospect of success

(1)       Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2)       A court may give summary judgment in any civil proceeding under subsection (1)—

(a)       on the application of a plaintiff in a civil proceeding;

(b)       on the application of a defendant in a civil proceeding;

(c)       on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

3. Second, the defendant seeks to have the plaintiffs proceeding stayed. The power to stay a proceeding is conferred by the 23.01 of the Magistrates Court General Civil Procedure Rules and is an aid to the power of the Court to control its processes. The rule provides:

Stay or order in proceeding

(1)     If a proceeding generally or any claim in a proceeding—

(a)        does not disclose a cause of action; or

(b)        is scandalous, frivolous or vexatious; or

(c)        is an abuse of the process of the Court—

the Court may upon the application of a defendant who has filed a defence stay the proceeding generally or in relation to any claim or make an order for the defendant in the proceeding generally or in relation to any claim.

4. The defendant applies for a permanent stay of the plaintiff’s proceeding.
5. The defendant’s application for a stay was heard first. The parties agreed that it was sensible to do so. The argument made by the defendant is straightforward enough but in order to understand the context of the arguments made in support of the stay application, it is necessary that I set out in some detail a chronology. There was no dispute by the plaintiff about the events referred to in the following chronology furnished by the defendants.

(a)  On 15 February 2003 Mr Dimasi (‘Dimasi’) became the registered proprietor of 244-238 Deacon Avenue, Mildura (‘the property’). A motel business was conducted on the property.

(b)  On 20 April 2011 a written lease was executed between Chaffey International (Aust) Pty Ltd (‘Chaffey’) as tenant and Dimasi as landlord.

(c)  On 28 July 2014 the defendants were appointed administrators of Chaffey. The lease was not disclaimed by the administrators. The business continued.

(d)  On 4 September 2014 Brinca Property Management Pty Ltd (‘Brinca’) entered into a contract of sale with Dimasi pursuant to which the Brinca purchased the freehold interest in the property.

(e)  On 14 November 2014 the sale of the property settled and Brinca became registered proprietor on title (‘the date of settlement’).

(f)    On 24 February 2015 Chaffey was placed into liquidation and the defendants ceased as administrators.

(g)  On 15 March 2015 proceedings were issued by Dimasi in the name of Brinca against the defendants as administrators of Chaffey seeking to recover amounts of outstanding rent between 28 July 2014 and 24 February 2015.

6. The proceeding seeks recovery of arrears of rent in an amount of approximately $39,500 as the amount outstanding as at the date of settlement.
7. In the ordinary course of events it might be thought that there is nothing unusual about a claim for the recovery of rents by a landlord. However, s 141 of the Property Law Act 1958 (‘the PLA’) provides otherwise. It states that it is the purchaser who is entitled to the reversionary interest in the lease or the tenancy. It is expressed as follows:

Rent and benefit of lessee’s covenants to run with the reversion

Rent reserved by a lease and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee’s part to be observed or performed, and every condition of re—entry and other conditions therein contained, shall be annexed an incident to and shall go with the reversionary estate in the land…

8. What is apparent and may at first appear odd about this litigation is that the true protagonists are not named as parties. For example, although Brinca is the plaintiff, the person seeking the benefit of the recovery of rents is Dimasi, and although Chaffey was the tenant who left rental unpaid, it is not a party but rather the administrators are the named defendants. The absence of Chaffey is of course explicable because of its insolvency.     
9. The defendants’ notice of defence whilst admitting the liability for rental arrears says that the defendants are entitled to a set off against Dimasi as the former landlord of the property for damages. The question of whether or not there can be a set off brought by the defendant underpins the plaintiff’s summary judgment application under the CPA. It contends the claim for a set off is not maintainable in law.
10. Section 141 of the PLA on its face places Dimasi in an awkward position and excludes him from competently suing for the recovery of rents. However, the parties to the sale of property to which a lease attaches may, if they choose, expressly contract out of the default position express by s 141 of the PLA. In G & A Lanteri Nominee Pty Ltd v Fishers Stores Consolidated Pty Ltd[1] Bongiorno J decided as much. It was not contested by the defendants that a purchaser and vendor may effect a different arrangement between themselves to prevail over s 141 of the PLA. The question here is whether the contract of sale entered between the parties achieved the result the plaintiff would have determined in its favour and so allow it to sue the administrators of the tenant for rental arrears in Brinca’s name.

[1] Unreported Supreme Court [2005] VSC 336

11. The Contract of Sale[2] executed between Dimasi and Brinca made provision for the apportionment of unpaid rent. Thus the starting point is that the parties made allowance in the contract to ameliorate the operative effect of s 141 of the PLA.

[2] Ex TW9 (p 103 CB)

12. The defendants submitted however that the contract of sale did not extend to the conferral of a right for Dimasi to sue in Brinca’s name for the recovery of unpaid rental against them. Brinca it would seem has not given legal instructions to pursue the defendants. There was a vigorous debate between counsel as to the admissibility of an affidavit deposed to by a person identified as connected with  Brinca but in the end the resolution of that aspect has been neither here nor there in me reaching my conclusion.
13. Brinca could competently sue the defendants. Section 443 B of the Corporations Act 2001 renders the defendants as the administrators of Chaffey liable for the rental arrears. This proposition was not disputed.
14. In support of its arguments for a permanent stay the defendants rely upon the express language contained in Special Condition 6 and particularly the language of Special Condition 6.7 of the Contract of Sale.
15. Special Condition 6 is introduced by the heading “Special Condition 6-Leases.” Special Condition 6.2 identifies that at the date of the contract of sale both vendor and purchaser were aware of the interference with the existing tenancy arrangement because of the defendants appointment as administrators pursuant to s 436A of the Corporations Act and the Supreme Court Order relating to the same[3].

[3] Clause 6.2 of the Contract of Sale of Real Estate (CB p 102).

16. The contract of sale made provision for the apportionment of the rent and outgoings payable by the tenant under the lease at on the date of settlement[4] to obviate s 141 of the PLA.

[4] Date of Settlement was 14 November 2014

17. Special Condition 6.4 is expressed as follows:

The rent and all outgoings payable by the tenant under the lease (“the Lease Money” will be apportioned on the settlement date between the Vendor and the Purchaser as follows:

(a)  the Vendor will be entitled to all Lease Money payable in respect of the full period up to and including the settlement date and the Purchaser will be entitled to all Lease Money payable from the day after that date; and

(b)  where lease Money has been paid to the Vendor for a period expiring after the settlement date the Vendor will allow the Purchaser a proportion that the number of days remaining in the period after settlement date bears to the total number of days in the period.

18. Special Condition 6.5 confers a right, but not an obligation, on the vendor until the date of settlement to take proceedings in respect of the tenancies to secure payment of any outstanding moneys and do all things necessary or ancillary to the proper management of the property.
19. Clause 6.7 addresses the position that will apply after the date of settlement. It is an important clause and therefore I set it out in full. It states:

The Purchaser agrees that after the settlement date the Vendor will be entitled to commence proceedings in the name of the Purchaser against the tenant and the tenants Guarantors under the lease to recover any rent or other monies which may be unpaid on the settlement date or to enforce the tenant’s obligations to pay rates or other outgoings. The Vendor shall fully indemnify and keep fully indemnified the Purchaser from and against any claim, demand, cause of action, liability, loss damages, costs and expenses (including reasonable legal costs and expenses) arising from or incidental to any proceedings to recover any rent monies or to enforce the tenants obligations to pay rates or other outgoings. The Vendor cannot assign its interest pursuant to this Special Condition 7.

20. The plaintiff accepts that the language used in Special Condition 6.7 does not confer a right in Demasi to commence proceedings in the name of Brinca against the defendants but confers a right to pursue the ‘tenant and the tenants Guarantors’ for rent unpaid on and after the date of settlement and that this would prevail unless there is implied into the contract of sale a term to allow the pursuit as well of the administrators.
21. Dimasi’s capacity to pursue Chaffey was lost as result of its insolvency but Special Condition 6.7 also conferred the right to pursue the tenants Guarantors. All I know is that Dimasi has commenced proceedings against the defendants in their guise as the administrators and in the name of Brinca. Unless a term can be implied the proceeding against the defendants is an impermissible action and the proceeding should be stayed.
22. The plaintiff submitted that the stay should be refused because a right to sue in Brinca’s name for unpaid rent at the date of settlement should be implied into Special Condition 6.7. In the alternative, the plaintiff submitted that if there is no occasion to warrant the implication of a term, then nonetheless it should not be stayed because of the existence of an equitable right in Dimasi to the benefits of the lease and he ought to be afforded the opportunity to be substituted as plaintiff and for Brinca to be added as a defendant.

The implication of a term

23. The plaintiff submitted that Special Condition 6.2 recognises by Brinca the fact of the fact of the administration of Chaffey under s 436 A of the Corporations Act 2001 and that this recognition supports the implication of the term. The plaintiff argued that it would be inconsistent with the commerciality underpinning the inclusion of Special Condition 6.4 and 6.7 designed to avoid the limitations imposed by the operation of s 141 of the PLA to then deny Dimasi the capacity to commence suit for outstanding rental moneys in the name of the Purchaser after the date of settlement. Of course the position in relation to the pursuit of outstanding rental before settlement by Dimasi is not one that required the approval or involvement of Brinca and so the position before and after settlement positions are not comparable. Prior to settlement Dimasi may have commenced suit to recover rental or other outgoings whereas after the date of settlement Dimasi may only sue for rental outstanding at the date of settlement in Brinca’s name and as against the tenant and tenants Guarantors.
24. Mr Moller submitted that the scheme of the agreement set forth above and contained in Special Condition 6.7 does not admit of any requirement for the implication of an additional term.

Relevant legal principles

25. The circumstances that give rise to the implication of terms are not novel and they are often dealt with by the courts[5]. Terminology however is important. This is not a case that concerns rectification, that is, the omission of term that the parties actually agreed upon. Nor does Dimasi contend that he relies on inferring a term that the parties actually intended to form part of their contract but did not reduce to writing or clearly articulate orally thus requiring the court to infer it from the parties’ communications and course of dealing. A term implied into a contract is one which it is presumed that the parties would have agreed upon had they turned their minds to it. Thus, the implication of a term is designed to give effect to the parties’ presumed intention, whereas rectification gives effect to their actual intention.  The courts are slow to imply a term. As with rectification, the process of inferring a term gives effect to the parties’ actual intention rather than their presumed intention.  While the line between inference and implication is not always easy to draw, it is well established that, where the parties have not reduced all the terms of their agreement to a complete written form, the court must first identify all the actual terms by inference before considering whether any additional terms are to be implied.  As the process of inferring a term of a contract is informed by the parties’ communications and course of dealing, evidence of their pre contractual conduct is admissible on the question of whether a particular term is to be inferred.  On the other hand, the admissibility of evidence of pre contractual conduct for the purpose of establishing that a term should be implied into a contract is more complicated.

[5] See, for example, Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286

26. In Codelfa Construction Pty Ltd v State Railway Authority (NSW)[6], Mason J stated that the implication of a term into a contract raises an issue as to the meaning and effect of the contract because ‘it is an exercise in interpretation, though not an orthodox instance’. He added that such implication is ‘an illustration of the process of construction, though differing from the more orthodox ascertainment of the meaning of a contractual provision’. In Commonwealth Bank of Australia v Barker,  French CJ, Bell and Keane JJ referred to these statements as follows:

Implication of a term in fact in a contract, by reference to what is necessary to give it business efficacy, was described in [Codelfa] as raising issues ‘as to the meaning and effect of the contract’. Implication is not ‘an orthodox exercise in the interpretation of the language of a contract, that is, assigning a meaning to a particular provision’. It is nevertheless an ‘exercise in interpretation, though not an orthodox instance’. The implication of terms in fact was also characterised in Attorney-General (Belize) v Belize Telecom Ltd as an exercise in construction. Lord Hoffmann, delivering the judgment of the Privy Council, said:

[I]t is not enough for a court to consider that the implied term expresses what it would have been reasonable for the parties to agree to. It must be satisfied that it is what the contract actually means.

The distinction thus drawn is appropriate even though the scope of the constructional approach adopted by Lord Hoffmann has been debated.

[6] (1982) 149 CLR 337

27. Later in their judgment, French CJ, Bell and Keane JJ made further reference to the issue of whether implication of a term is to be regarded as an exercise in the construction of a contract without making any definitive pronouncement. While the two processes have not been authoritatively equated, it is clear that they share some common features.
28. In the light of the above, the principles relating to the admissibility of evidence of pre contractual conduct for the purposes of construing a formal written contract are potentially applicable to implying a term into a contract.  However, that said, the plaintiff did not attempt to introduce evidence of pre contractual conduct for the purposes of construing the sale of contract. Indeed the parties were ad idem that reference to extraneous evidence was unwarranted and in any event was not in evidence before me. Whilst I do not accept that extraneous evidence could not have been admissible on the question, I agree that there was no evidence of such a nature led by the parties.
29. In determining whether to imply a term into a contract, it is legitimate to look at evidence that reveals a matter which was in the common contemplation of the parties yet was not a contractual provision actually agreed upon because it was a matter of common assumption. It cannot be said in this case that the term sought to be implied by the plaintiff was a matter that would fall into this category.
30. Five conditions for implying a term in fact were propounded by the majority of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings[7] and adopted by Mason J (with whom Stephen and Wilson JJ agreed) in Codelfa Construction Pty Ltd v State Railway Authority (NSW)[8].  Those conditions are as follows:

(a)the term must be reasonable and equitable;

(b)the term must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(c)the term must be so obvious that ‘it goes without saying’;

(d)the term must be capable of clear expression; and

(e)the term must not contradict any express term of the contract.

[7] (1977) 180 CLR 266, 282–3

[8] (1982) 149 CLR 337, at 347

31. In Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd[9], the Court of Appeal stated the following in relation to the condition that an implied term ‘must be necessary to give business efficacy to the contract’:

The condition … requires consideration of whether the term is necessary for the purposes of ‘giving to the transaction such efficacy as both parties must have intended that at all events it should have’, making the agreement work or avoiding an unworkable situation.  Where the express terms of an agreement are sufficient to give it the business efficacy the parties intended it to have, it will not become necessary to imply additional terms.  However, a term may be commercially necessary, in order for the contract to be workable in a business sense, notwithstanding that it can operate without the term. In Commonwealth Bank of Australia v Barker,  French CJ, Bell and Keane JJ stated that the requirement that a term implied in fact be necessary ’to give business efficacy’ to a contract can be regarded as a ‘specific application’ of the criterion of necessity which also supports the implication of a term in law.  They also said that ‘[i]mplications which might be thought reasonable are not, on that account only, necessary.’  

[9] [2015] VSCA 190, [141].

32. The condition that an implied term ‘must be so obvious that “it goes without saying”’ requires consideration of whether, at the time that the parties were making their bargain, the suggestion of insertion of the implied term into the agreement by an ‘officious bystander’ would have been met ‘with a common, “Oh, of course”’ from the parties.  
33. As the condition that an implied term ‘must be capable of clear expression’ the extent of the argument touching on this aspect was that Special Condition 6.7 should by implication include words after the words appearing ‘against the tenant and the tenants Guarantors under the Lease’ such as ‘and the administrators of the tenant under the Lease pursuant to s 436A of the Corporations Act 2001’.

Conclusion

34. I am not satisfied the implied term advocated by the plaintiff is ‘reasonable and equitable’. The implied term would operate in a partisan fashion and require the payment by the defendants of liability otherwise not provided for by the agreement. It is not enough to support the implied term that Dimasi may not in the plaintiff’s name after the date of settlement sue the defendants as administrators to recover unpaid rent due at the date of settlement but that under Special Condition 6.5 he could ‘[U]ntil the settlement date take proceedings in respect of the tenancies to secure payment of any outstanding money…’ Furthermore, Special Condition 6.7 of the contract of sale does not leave Dimasi as the Vendor bereft of recourse.
35. There is not a gap in the process for the recovery of unpaid rent after the date of settlement and, in my judgement, the term the plaintiff would have implied is not necessary to give to give business efficacy to the contract of sale. The contract of sale is perfectly effective without the implied term. Furthermore, the term is not so obvious that ‘it goes without saying’. I accept that the term despite not being precisely formulated would utilise a form of words such that I have referred to that would be capable of clear expression.
36. Mr Klotz for the plaintiff submitted that the implied term would not be inconsistent with Special Condition 6.2, that is, the clause in which Brinca as Purchaser acknowledges the tenant having entered into administration. Counsel submitted that an inconsistency exists because in light of the express acknowledgement of the tenant having entered administration it makes no commercial sense for recovery of unpaid rents to be limited as to require Brinca’s approval to commence proceedings in its name especially as Special Condition 6.4 (a) under which Brinca agreed that Dimasi would be ‘entitled to all Lease Money payable in respect of the full period up to and including the settlement date…’
37. Mr Klotz submitted that that the ‘essence of the agreement[10]’ is expressed in Special Condition 6.4 because it is this clause that confers on Dimasi the right to rental up to the date of settlement whereas Special Condition 6.7 he described as ‘a mere machinery provision’ intended to assist in giving effect to the means of enforcing the recovery of the unpaid rentals after the settlement date by the commencement of proceedings. I agree. However there is no evidence that the Brinca is inhibiting Dimasi from doing so. Rather the defendants submit that the agreement does not contemplate a suit as against them in lieu of the tenants Guarantors.

[10] Oral submissions

38. Mr Klotz furthermore submitted that if Brinca does anything to stop Dimasi from commencing proceedings in its name to recover rentals sue at the date of settlement then it would be acting in breach of its obligation to co-operate under the implied terms contained in the contract of sale. I am unable to accept this submission. The duty or obligation by Brinca is not one that extends to the obligation to co-operate to create a new right.  Brinca has done nothing to impede Dimasi from commencing proceedings against, for example, the tenants Guarantors, this being the process contained in Special Condition 6.7. I do not regard Special Condition 6.7 as a mere machinery provision. The carving out by way of agreement between the Vendor and Purchaser of the respective apportionments to unpaid rental is not diminished or inhibited by the mechanism provided for by Special Condition 6.7. The question is whether therefore the express attention given by the parties and provided by the agreement should be thought of as contrary to the prevailing right for the Vendor to recover rentals unpaid at the date of settlement. I cannot see that it is.
39. In my view, the inconsistency or contradiction that would rise from the implied term is not to be found in Special Condition 6.2 but rather 6.7. However, I am satisfied that the implied term would contradict the express term of the contract that is, the process allowed for in Special Condition 6.7 that after the settlement date the Purchaser agrees to the Vendor being at liberty to commence proceedings against the tenant and the tenant Guarantors for the debt. I accept that counsel for the defendant, Mr Moller acknowledged that the parties could readily have made express provision for a term of the type that is now contended for by the defendant by implication. However, they did not, and in fact, made provision for an alternative pathway.
40. Therefore, and by reason of my conclusion against the plaintiff’s argument on the implication of a term so as to refute the defendant’s application for stay, it is necessary to consider the plaintiff’s alternative submission as a basis for refusing the grant of a stay based in equity.
41. The plaintiff contended that Special Condition 6 of the contract of sale operated to effect “an equitable assignment by the plaintiff to Dimasi of the rights conferred upon the plaintiff under s 141 of the PLA”. The plaintiff submitted that the equitable assignment conferred on Dimasi the right to sue the defendants in his name provided he joins the plaintiff as a defendant. If this exposition of principle is correct then it follows, so the submission was developed, that Dimasi should be afforded the chance to substitute himself as plaintiff and file an amended complaint and join the plaintiff as a defendant.
42. The principle underpinning the alternative submission is distilled from a decision of the Full Court of the Supreme Court in Ashmore Developments Pty Ltd v Eaton & Ors[11].

[11] Supreme Court of Queensland Full Court (No.62 of 1990)

43. In Ashmore language of the relevant clause in dispute read for the provision for apportionment of rentals was in substantially similar language to the contract before me and read as follows:

The rents and profits of the property hereby sold shall belong to the vendor up to and including the date of possession and thereafter to the purchaser and shall be dealt with as follows:

(a)  all unpaid debts and profits in respect of any period terminating on or prior to the date of possession shall not be apportioned between the parties on completion but shall be receivable by the vendor who shall have the right to recover payment thereof;

(b)  all rents and profits paid in advance of the date of possession shall be apportioned between the parties on completion

(c)  all rents and profits payable in respect of any period current at the date of possession which shall not be paid at the date of completion shall be apportioned when received by either party

44. The plaintiff sued in its own name. The defendants alleged that following settlement and the plaintiff ceasing to be registered proprietor that by operation of s 117 of the Property Law Act[12] the plaintiff was not entitled at the date of the commencement of the proceedings to maintain the action against the defendants in respect of the rental arrears and outgoings.

[12] The Queensland equivalent to s 114 of the PLA

45. The decision to bring the proceeding in its own name was determined by the Court to be a fatal step because of the operation of s 117 of the PLA. The leading judgment of the Court was that of Ryan J. In dealing with the issue he said at p 4:

The position is therefore that an assignee of the reversion acquires the right to sue for breaches of covenant committed before the assignment, and the assignor loses that right. That was recognised by His Honour [the trial judge], but he considered that by virtue of Cll4 (a) of the contract of sale the plaintiff was entitled to recover against the first defendants. He referred to a passage in Halsbury, 4th ed, Vol 27 para 403 where it stated:-

After an assignment of the reversion it is accordingly the assignee who alone may sue for rent and for breaches of covenant whenever they have occurred, at any rate unless the assignee and the assignor have agree to the contrary.

In support of that statement, reference as made to a passage in the judgment of Upjohn LJ in In re King at 488, where is said:

The assignor has by operation of s 141 assigned his right to the benefit of the covenant and so he has lost his remedy against the lessee. Of course, the assignor and the assignee can always agree that the benefit of the covenant shall not pass in which case the assignor can still sue, if necessary in the name of the assignee.

Though His Honour purported to apply the principle stated by Upjohn LJ, he overlooked the significance of the words which made it necessary for the assignor to sue in the name of the assignee. That was not done in this case though the defence had raised specifically the issue of the entitlement of the plaintiff to maintain the proceeding. In my opinion the failure was fatal to the assignor’s right to bring the action.

46. Why is substituting Dimasi necessary? In Ashmore the Full Court of the Queensland Supreme Court said that the equivalent clause to Special Condition 6.4 operates as an equitable assignment of Brinca’s right under the equivalent of s141 of the PLA to the rental. If therefore Special Condition 6.4 operates as an equitable assignment then Dimasi has a right to sue and hence he should be granted the opportunity to do so.
47. The defendants submit there is no warrant to give effect to relief in equity. It was submitted that Special Condition 6 .4 is not an equitable assignment but rather contractual right in law and that equity has no role to play where the parties have come to a legal agreement because unlike Ashmore the situation that prevailed between Dimasi and Brinca, was that they had turned their attention in the contract of sale to contracting out of the statutory equivalent of s 141 of the PLA. In this instance there is no warrant for equity to intervene.
48. For the reasons stated the proceeding is permanently stayed. As a result it is not required that I deal with the plaintiff’s application for a summary order brought under s 63 of the CPA.
49. I will direct that the parties file within 7 days a minute of order to determine the matters stemming from my judgment including the matter of costs.
50. I reserve liberty to apply.