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Carbure Pty Ltd v Brile Pty Ltd

Carbure Pty Ltd v Brile Pty Ltd

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Case Copied 17 July 2002 34 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6367 of 2000

CARBURE PTY LTD (ACN 006 930 570)	Plaintiff
and First Defendant to Counterclaim
v
BRILE PTY LTD (ACN 005 523 044) and	Defendant and Plaintiff to Counterclaim
ROBERT KEITH CLUTTON ELIZABETH CONSTANCE CLUTTON JOHN WILLIAM RITCHIE and SUSAN CATHERINE RITCHIE	Second to Fifthnamed Defendants to Counterclaim
JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	7-10 and 13-15 May 2002
DATE OF JUDGMENT:	17 July 2002
CASE MAY BE CITED AS:	Carbure Pty Ltd v Brile Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 272	First Revision 24/7/02

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LANDLORD AND TENANT – Landlord’s obligation to maintain and repair the structure of the lease premises – Implication of terms in contracts – Implication of such terms not found – Counterclaim for the unpaid rent allowed

Retail Tenancies Act 1986
Retail Tenancies Reform Act 1998
Residential Tenancies Act 1997
Adami v Lincoln Grange Management [1998] 1 EGLR 58
Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264
Barrett v Lounova (1982) Ltd [1989] 1 All ER 351
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20
Codelfa Constructions v State Rail Authority of NSW (1982) 149 CLR 337
Duke of Westminister v Guild [1985] 1 QB 688
Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284
Granada Theatres v Freehold Investment (Leytonstone) Ltd [1959] 1 CH 592
Holding & Barnes Plc v Hill House Hammond Ltd [2000] L & TR 428
Jones v Bartlett (2000) 176 ALR 137
Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381
Liverpool City Council v Irwin [1976] QB 319
Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313
New South Wales v Watton (1999) NSW ConvR 55-885
Progressive Mailing House v Tabarli (1985) 157 CLR 17
Southwark London Borough Council v Tanner [1999] 3 WLR 939

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.R. Messer	Alpass & Associates
For the Defendant	Dr C.E. Croft S.C. with Mr G.K. Moore	Price Higgins

HER HONOUR:

Introduction

In this proceeding, initiated by writ on 5 October 2000, the plaintiff is the tenant and the defendant the landlord of a guest house at Lorne, known as the Lorne Chalet (“the Chalet”). The second to fifth defendants to the counterclaim are sued on the basis that they are the guarantors of the tenant’s obligations under the lease.

Essentially the plaintiff seeks the carrying out by the defendant of certain repairs to the Chalet which it submits are of a structural nature. To that end it is claiming a declaration that the lease of the Chalet “contains an implied term requiring the defendant to repair and maintain the structure of the demised premises during the term of the lease”, and an order for specific performance of that implied term, or alternatively for damages. The defendant denies that any such term can be or is to be implied into the…

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: [2002] VSC 272
Decision Date: 17 July 2002

CaseChat Overview and Summary

The case of Carbure Pty Ltd v Brile Pty Ltd involved a dispute between a landlord and tenant, with Carbure Pty Ltd as the landlord and Brile Pty Ltd as the tenant. The central issue was whether the landlord had a duty to maintain and repair the structure of the leased premises, which was under the purview of the Retail Tenancies Act 1986, the Retail Tenancies Reform Act 1998, and the Residential Tenancies Act 1997. The court had to determine the legal obligations of the landlord concerning the maintenance and repair of the leased structure and whether certain terms could be implied into the lease agreement.

The court examined the statutory framework and the relevant case law to ascertain the landlord's obligations. The court considered various authorities, including Adami v Lincoln Grange Management, Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd, Barrett v Lounova (1982) Ltd, BP Refinery (Westernport) Pty Ltd v Hastings Shire Council, Codelfa Constructions v State Rail Authority of NSW, Duke of Westminister v Guild, Franceschini v Melbourne and Metropolitan Board of Works, Granada Theatres v Freehold Investment (Leytonstone) Ltd, Holding & Barnes Plc v Hill House Hammond Ltd, Jones v Bartlett, Karaggianis v Malltown Pty Ltd, Liverpool City Council v Irwin, Northern Sandblasting Pty Ltd v Harris, New South Wales v Watton, and Progressive Mailing House v Tabarli. The court also took into account Southwark London Borough Council v Tanner. The court concluded that the statutory provisions did not impose a duty on the landlord to maintain and repair the structure of the leased premises. It also found that no terms could be implied into the lease regarding such repairs and maintenance.

The court dismissed the tenant's claim for the landlord's failure to maintain and repair the structure of the premises. However, the court allowed the counterclaim for unpaid rent, finding that the tenant was liable to pay the outstanding rent. The court made orders accordingly, dismissing the tenant's claim and allowing the landlord's counterclaim for unpaid rent.

Orders