FEDERAL COURT OF AUSTRALIA
Byrnes v Jokona Pty Ltd [2002] FCA 41
contract – lease – lease of property for business venture – repudiation claimed – collateral contract claimed – estoppel claimed
LANDLORD AND TENANT – covenant for quiet enjoyment – express covenant – general principles – whether material interference with possession – activities of third party and of landlord – whether interference with possession interfered with commercial use of premises for the desired purposes such that business failed
TRADE PRACTICES – claim under Trade Practices Act that landlord failed to make available land surrounding leased premises for expansion of business
DAMAGES – assessment of damages for breach of lease – general principles – where argued business doomed to fail – where lease terminated before term – assessment of impact of interference and of lost future opportunity – calculation of interest
Trade Practices Act 1974 (Cth)
Federal Court of Australia Act 1976 (Cth) s 51AHawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 applied
The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 applied and discussed
National Carriers v Panalpina (Northern) Ltd [1981] AC 675 applied
Kenny v Preen [1963] 1 QB 499 applied
Sarson vRoberts [1895] 2 QB 395 applied
Brilee Consultants Pty Ltd v Tibal Holdings Pty Ltd (1984) 3 BPR 9272 applied
Bradford House Pty Ltd v Leroy Fashion Group Ltd (1983) 46 ALR 305 applied
Browne v Flower [1911] 1 Ch 219 referred to
Phelps v City of London Corp [1916] 2 Ch 255 referred to
Aussie Traveller Pty Ltd v Marklea Pty Ltd [1997] 1 Qd R 1 applied
Owen v Gadd [1956] 2 QB 99 referred to
JC Berndt Pty Ltd v Walsh [1969] SASR 34 referred to
Martins Camera Corner Pty Ltd v Hotel Mayfair [1976] 2 NSWLR 15 referred to
Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 applied
Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 referred to
Cehave NV v Bremer Handelsgesellschaft m.b.H. [1976] QB 44 referred to
Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 referred to
Federal Commerce and Navigation Co Ltd v Molena Alpha Inc [1979] AC 757 referred to
Bunge Corp v Tradax Export SA [1981] 1 WLR 711 referred to
Shevill v Builders Licensing Board (1982) 149 CLR 620 referred to
Associated Newspapers v Bancks (1951) 83 CLR 322 referred to
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 referred to
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 referred to
Honner v Ashton (1979) 1 BPR 9478 discussed
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- Case
- [2002] FCA 41
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented by both parties, focusing on the credibility of the witnesses and the consistency of their statements. It found that there were significant discrepancies between the testimonies of Mr Byrnes, Ms Wilder, and Mr Lowes on one hand, and Mr Gazal and Mr Ayoub on the other. The court concluded that the respondent had indeed breached the lease by not permitting the use of the land outside the basement for the paintball operation, as well as by not providing external access to the toilets as agreed. Given these findings, the court held that the respondent was liable for damages. The court awarded the applicants a total of $132,731, which included interest. The matter concerning the costs of the proceedings was left to be determined at a later date, and the cross-claim was dismissed with the cross-claimant ordered to pay the costs of the cross-respondents.
Orders
Orders of the court
1. there be judgment in favour of the first and second applicants jointly in the sum of $132,731, which includes interest under s 51A of the Federal Court of Australia Act 1976 (Cth) at 10.5% from 1 September 1995 to 31 January 2002 in respect of $50,000 and from 16 January 1996 to 31 January 2002 in respect of $30,000;
2. the matter be stood over to a date to be fixed for argument (if any) concerning, and the making of orders in respect of, costs of the proceedings, other than the cross-claim;
3. the cross-claim be dismissed;
4. the cross-claimant pay the costs of the cross-respondents of the cross-claim; and
5. any party have liberty to apply within 14 days concerning the form of the order in 1 above.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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