JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BROADWAY PTY LTD -v- LEWIS [2012] WASC 373
CORAM: PRITCHARD J
HEARD: 11, 14 SEPTEMBER 2012
DELIVERED : 9 OCTOBER 2012
FILE NO/S: CIV 2642 of 2010
BETWEEN: BROADWAY PTY LTD TRADING AS FOR THE CRIDDLE FAMILY TRUST
Plaintiff
AND
STEVEN BURNETTE LEWIS
Defendant
Catchwords:
Practice and procedure - Rules of the Supreme Court 1971 (WA) O 34 r 2 - Where the defendant does not appear at the trial - Whether the court should exercise its discretion to proceed with the trial in the absence of the defendant - Considerations relevant to the exercise of the court's discretion
Real property - Action for possession of land - Nature of the action - Relevant principles
Real property - Action for damages for use and occupation of land - Whether the defendant was a tenant at will - Whether the defendant was a tenant at sufferance
Torts - Trespass to land - Action for mesne profits - Whether re-entering into actual possession of the land is a prerequisite to an action for mesne profits - Whether an action for mesne profits can be heard in the same proceedings as an action for possession of land - Consideration of the doctrine of 'trespass by relation'
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 11(1)(b), s 94, s 95
Common Law Procedure Act 1852 (15 & 16 Vict c 66), s 214
Interpretation Act 1984 (WA), s 73
Landlord and Tenant Act 1899 (NSW), s 12
Limitation Act 1935 (WA), s 38(1)(c)
Residential Tenancies Act 1987 (WA), s 71, s 72
Rules of the Supreme Court 1971 (WA), O 1 rr 4A, 4B, O 8 r 7, O 19,
O 34 rr 2, 4
Supreme Court Act 1928 (Vic), s 132
Supreme Court Act 1958 (Vic), s 119
Result:
Claim allowed in part
Counterclaim dismissed
Category: A
Representation:
Counsel:
Plaintiff: Mr S M Davies SC & Ms K R Lendich
Defendant: No appearance
Solicitors:
Plaintiff: Jackson McDonald
Defendant: In person
Case(s) referred to in judgment(s):
Allen v Roughley (1955) 94 CLR 98
Andrews v Nominal Defendant [1963] NSWR 359
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Attorney General v De Keyser's Royal Hotel [1920] AC 508
Australian Provincial Assurance Association Ltd v Rogers (1943) 43 SR (NSW) 202
Baldry v Jackson [1976] 2 NSWLR 415
Bayley v Bradley (1848) 5 CB 396; 136 ER 932
Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186
Cameron v Cole (1944) 68 CLR 571
Churchward v Ford (1857) 2 H & N 446
Doe d Bennett v Turner (1840) 7 M & W 226; 151 ER 749
Doe d Heming v Brett (1840) Hurl & W 3, 3
Doe d Jones v Jones (1830) 10 B & C 718; 109 ER 616
Dunlop v Macedo (1891) 8 TLR 43
Ebbels v Rewell [1908] VLR 261
Elliott v Boynton [1924] 1 Ch 236
Continue reading Broadway Pty Ltd v Lewis
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- AGLC
- Broadway Pty Ltd v Lewis [2012] WASC 373
- Case
- [2012] WASC 373
- Decision Date
CaseChat Overview and Summary
The court examined the nature of Lewis' occupation of the land and the circumstances surrounding his continued presence after the lease expired. The court found that Broadway's active dissent to Lewis' occupation, manifested through threats to dispossess him and a letter from Broadway's solicitors, precluded Lewis from being a tenant at sufferance. The court held that a tenant at sufferance must hold over without the landlord's active objection, and Broadway's conduct demonstrated an active objection to Lewis' continued occupation. Consequently, the claim for damages for use and occupation was dismissed. The court also discussed the doctrine of 'trespass by relation' and the prerequisites for an action for mesne profits, but these issues were not directly relevant to the outcome of the case.
The Supreme Court of Western Australia dismissed Broadway's claim for damages for use and occupation of the land. The court found that Lewis was not a tenant at will or a tenant at sufferance, as Broadway's active objection to his continued occupation precluded such a finding. The court did not award any damages for use and occupation, as the claim was dismissed on the basis that Lewis was not a tenant at sufferance. The court did not make any orders regarding the action for possession of the land, as this aspect of the case was not fully argued or determined.
Additional orders may be made regarding the action for possession of the land, depending on the outcome of any further proceedings. The dismissal of the claim for damages for use and occupation does not affect Broadway's right to seek possession of the land. The court's decision on the nature of Lewis' occupation is final and binding on the parties. The court's findings on the doctrine of 'trespass by relation' and the prerequisites for an action for mesne profits are obiter dicta, as these issues were not directly relevant to the outcome of the case.
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
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Ratio Decidendi
Legal Principle Established
A tenant at sufferance is the label which is usually given to a tenant who lawfully enters into occupation of premises (pursuant to a lease, for example), and, after that period of lawful occupation has ceased, continues in occupation without the the owner's assent or dissent.[101] Thus a tenancy at sufferance is not, strictly speaking, a tenancy at all, but a holding over by wrong.[102] A tenant at sufferance may therefore be contrasted with a tenant at will in that the former occupies the premises by right, whilst the latter holds over by wrong after the expiration of the lawful title.[103][101] Natural Gas and Oil Corporation Ltd (In Liq) v Byrne and Boyle (1951) 68 WN (NSW) 207, 213 (Herron J) citing Blundell L, Woodfall's Law of Landlord and Tenant (24th ed, 1939) 285; Individual Homes Pty Ltd (In Liq) v Martin [1999] ACTSC 139 [36] (Higgins J).[102] Simms v Lee [1945] 45 SR (NSW) 352, 354 (Roper J).[103] Natural Gas and Oil Corporation Ltd (In Liq) v Byrne and Boyle (1951) 68 WN (NSW) 207 at 213 (Herron J) citing Blundell L, Woodfall's Law of Landlord and Tenant (24th ed, 1939) 285. The category of tenants at sufferance has been confined to persons who hold over without the assent or dissent of their landlord. It does not include persons who hold over wrongfully in spite of the active objection of their landlord.[104] Threats to enter and dispossess a person occupying premises constitute the active dissent of the landlord to the wrongful holding over.[105][104] Remon v City of London Real Property Co [1921] 1 KB 49, 58 (Scrutton LJ).[105] Simms v Lee [1945] 45 SR (NSW) 352, 354 (Roper J). The evidence does not establish, on the balance of probabilities, that Mr Lewis was a tenant at sufferance. Had there been no evidence of any objection by Broadway to Mr Lewis' continued occupation of the disputed land, either prior to, or immediately after, settlement, then it might have been possible to construe Broadway's silence in the period between 2 March 2005 and 10 November 2009 as neither assent nor dissent to that continued occupation. However, for the reasons I have set out above, Broadway's conduct immediately before and after the settlement manifested an active dissent to Mr Lewis' continued presence on the disputed land after the settlement. In the face of that active dissent, and absent any other evidence, Broadway's silence in the period from 2 March 2005 to 10 November 2009 cannot be construed as indicating that Broadway resiled from its dissent, so as to tacitly permit Mr Lewis' continued presence.[106] That Broadway never resiled from its position is made clear in the letter dated 25 August 2010 from its solicitors to Mr Lewis, to which I have already referred. My finding that Mr Lewis was not a tenant at will or a tenant at sufferance means that Broadway's claim for damages for use and occupation must fail. However, in case I am wrong in this conclusion, it is appropriate that I briefly set out the quantum of the damages I would have awarded had Broadway's claim for use and occupation been made out.