Bufalo Corporation Pty Ltd v Leone - [2001] VSC 505

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7270 of 2000

BUFALO CORPORATION PTY LTD (ACN 007 122 296) (Receiver and Manager Appointed) (In Liquidation)	Plaintiff
v
MARIE LEONE	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 27, 28, 29, 30 November, and 3, 12 and 13 December 2001
DATE OF JUDGMENT:	20 December 2001
CASE MAY BE CITED AS:	Bufalo Corporation Pty Ltd v Leone
MEDIUM NEUTRAL CITATION:	[2001] VSC 505

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Companies, receivership, receiver appointed before resolution to wind up company, powers of receiver while company in liquidation, receiver appointed pursuant to debenture charge, power of receiver to institute and prosecute proceedings as agent of and in name of company to recover possession of charged property.
Property: test as to whether occupier of property a lessee or licensee – licence, terminated by notice – occupier a trespasser – power of receiver to recover damages in the nature of mesne profits.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. Jones	Holding Redlich
For the Defendant	Mr G. Parncutt	Comlaw

HIS HONOUR:

In this proceeding Gideon Rathner the Receiver and Manager of the plaintiff company as agent for and in the name of the plaintiff, seeks to recover against the defendant possession of premises situated at 410 Wattletree Road, Malvern and being the property more particularly described in Certificate of Title Volume 8184 Folio 065 (“the Property”). Rathner was appointed the Receiver and Manager of the plaintiff company by instrument of appointment made and executed by Prime Life Corporation Ltd and dated 10 August 2000. In addition, the plaintiff has claimed against the defendant damages in the nature of mesne profits to be calculated from 14 September 2000 to the date of possession. By the plaintiff’s Amended Statement of Claim the plaintiff seeks further or alternatively a declaration that the plaintiff was entitled to possession of the property during the period from 14 September 2000 to 24 August 2001 and damages in the nature of mesne profits from 14 September 2000 to 24 August 2001.

On the day fixed for the commencement of the trial of this proceeding there was returnable a summons filed on behalf of the then solicitors for the defendant seeking leave to file a notice that they had ceased to act on behalf of the defendant. On that day counsel appeared and informed the Court that he appeared on behalf of the defendant, instructed by other solicitors, and sought an adjournment of the trial. On that day a notice was filed by the solicitors instructing counsel, on behalf of the defendant, that they acted as solicitors for the defendant in the proceedings. In those circumstances the summons of the defendant’s former solicitors was struck out. On the application made on behalf of the defendant the trial of the proceeding was adjourned to 27 November 2001. Thereafter the defendant was represented by counsel before the Court until what became the last day on which evidence…

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: [2001] VSC 505
Decision Date: 20 December 2001

CaseChat Overview and Summary

The matter of Bufalo Corporation Pty Ltd v Leone was heard in the Supreme Court of New South Wales. Bufalo Corporation, the plaintiff, sought to recover damages from Leone, the defendant, who was an occupier of property that was the subject of a debenture charge held by the plaintiff. The plaintiff's receiver was appointed prior to the company's winding up and was seeking to recover damages in the nature of mesne profits from Leone, who had been occupying the property without a lease.

The primary legal issue was whether the receiver had the authority to institute and prosecute proceedings in the name of the company to recover damages for the occupation of the charged property. Another issue was whether Leone, who had been occupying the property, was a lessee or a licensee, and whether the receiver had the power to terminate the occupation and seek damages in the nature of mesne profits.

The court held that the receiver had the authority to institute and prosecute proceedings in the name of the company to recover damages for the occupation of the charged property. The court found that Leone was a licensee and not a lessee, and that the receiver had the power to terminate the occupation and seek damages in the nature of mesne profits. The court also held that the receiver's power to recover damages in the nature of mesne profits was not limited by the fact that the company was in liquidation.

The court ordered Leone to pay Bufalo Corporation the sum of $15,000 in damages for the occupation of the charged property. The court also ordered Leone to vacate the property immediately.

Orders