Broadway Pty Ltd v Lewis

Case [2012] WASC 373


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

Eshelby v Federated…

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Broadway Pty Ltd v Lewis [2012] WASC 373
Case
[2012] WASC 373
Decision Date

CaseChat Overview and Summary

Broadway Pty Ltd brought an action against Lewis, seeking possession of a parcel of land and damages for its use and occupation. The dispute arose from Lewis' continued occupation of the land after the expiration of his lease. The case was heard in the Supreme Court of Western Australia. The primary legal issue was whether Lewis was a tenant at will or a tenant at sufferance, which would determine the validity of Broadway's claim for damages for use and occupation of the land. The court also had to consider whether an action for mesne profits could be heard in the same proceedings as an action for possession of land.

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.