Cassar & Richards v Mitchell
[2025] VCC 820
•27 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-25-03114
| Benjamin Raymond Cassar | First plaintiff |
| Andrea Gaye Richards | Second plaintiff |
| v | |
| Julie Marie Mitchell | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2025 | |
DATE OF RULING: | 27 May 2025 (ex-tempore) | |
CASE MAY BE CITED AS: | Cassar & Richards v Mitchell | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 820 | |
RULING
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Subject:INJUNCTION
Catchwords: Application for interlocutory injunction, lessee prevented from accessing land, whether prima facie case exists, where balance of convenience lies.
Legislation Cited: Property Law Act 1958 (Vic)
Cases Cited:Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, Primary RE Ltd v Great Southern Property Holdings [2011] VSC 242, Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268, Tymbook Pty Ltd v Victoria [2006] 15 VR65, Samsung Electronics Co Ltd v Apple Inc [2011] 217 FCR 238
Ruling: See paragraphs 44 & 45.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Porter | Dawes & Vary Riordan Lawyers |
| For the Defendant | No Appearance. |
HIS HONOUR:
Introduction
1On 1 September 2023, the plaintiffs entered into a lease agreement with the defendant concerning part of the land at 307 Wattlevale Road, Mitchellstown (the Property). The defendant is the registered proprietor of the Property.
2The property comprises of approximately 28 acres of primarily agricultural land containing two houses and other structures. Also on the land are cattle, including three pregnant cows expecting to calve in June or July. The plaintiffs are currently unable to access the property to provide food for the cows or otherwise tend to their health. This constitutes one element of the urgency attached to the hearing of the plaintiff's’ summons.
3By summons filed on originating motion on 22 May 2025, the plaintiffs seek among other things:
(a) a declaration that:
(i)the default notices dated 22 December 2024 and or 12 and 13 March 2025; and
(ii)the undated termination notice purporting to terminate the lease on 24 March 2025;
are invalid and that each of the notices be set aside;
and
(b) an injunction requiring the defendant to deliver up and return possession of the Property forthwith.
4I note that unsealed versions of the plaintiffs’ originating motion, summons on originating motion, affidavit and other material was provided to the defendant by way of informal service and thereby she was notified of the date and time of the hearing of this summons. The defendant was called when the matter was called on outside Court and she did not appear.
Background
5It is necessary to first set out some background.
6The plaintiffs rely upon four letters received from the defendant which they say do not satisfy the requirements for notices of default under terms of the lease, if that was the intention of the defendant in sending those letters.
7On 25 March 2025, the defendant purported to terminate the lease relying on the prior letters, which the plaintiffs say failed to comply with the terms of the lease or the provisions of the Property Law Act 1958 (The Act).
8The plaintiffs say that on or about 17 April 2025, the defendant changed the locks on the gates and prevented the plaintiff from accessing the property thus preventing them from, amongst other things, tending to the cattle currently on the property.
Relevant principles
9The principles applicable to interlocutory injunctive relief are well known. The two primary enquiries are summarised by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] (see Gleeson CJ and Crennan J at [19], citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622–623 as follows:
“The first is whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
Prima facie case
10In order for the plaintiffs to establish a right to relief, they must demonstrate they have a prima facie case for the relief sought. In assessing whether the plaintiffs have made out a prima facie case: “it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”[1] rather than it needing to be demonstrated that it was more probable than not that the plaintiff would succeed at trial.
[1] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65].
11The plaintiffs say that their prospect of success at trial is high, based upon the default and termination notices being deficient in that the notices fail to comply with the terms of the lease or with s 146 of the Act.
12Clauses 9(a) and (b) of the Lease require that:
(a)If the lessee is in breach of an obligation under the lease the lessor may serve on the lessee a notice to remedy the default. Such notice must:
i.Specify the breach;
ii.Specify the steps required of the lessee to rectify the breach;
iii.Give the lessee a reasonable time to rectify the breach, which does not have to exceed 30 days;
(b)If the lessor has complied with the above and the lessee has not remedied the breach to the reasonable satisfaction of the lessor the lessor may terminate this lease by giving the lessee 14 days written notice.
13Clause 10(d) of the Lease requires that:
(d)Any notices or documents required to be served under this lease may be left at the address of the lessor or lessee shown on the first page of Part A unless otherwise notified by either party in writing.
22 December 2024 Notice
14The 22 December 2024 letter reads as follows:
Dear Ang + Ben
I am writing to you about my concerns in regards of the condition of the property.
The property has not been used as intended as a working farm conducting it on a sustainable basis according to good farming practices causing deterioration. There has been very little maintenance carried out.
In the fifteen months since leased no attempt has been made to kill and remove gum tree seedlings which has had a devistating [sic] effect.
All electricity is required to be in your name
Resolve it ASAP. Gas bottles have been removed not knowing of their whereabouts.
The gardens are not my duty, they are apart [sic] of the farm and are your responsibility. I was willing to help while you settled in and understood how the irrigation system worked. As from now I am taking a long deserved break.
The gardens and lawns need to be watered weekly, I have done my best to map out the irrigation systems and timing of each system
…
You have thirty days to rectify the situation.
15The plaintiffs submit that the letter dated 22 December 2024 fails to comply with clause 9(a) of the lease as it does not sufficiently specify any breach of the lease. They further say that the matters complained of do not relate to any breach of the plaintiffs’ obligations under the lease. However, in their written submissions they qualify this by saying that one of the complaints 'may relate' to the plaintiffs’ obligations - but did not inform me which.
16The plaintiffs submit that I should have regard to Primary RE Ltd v Great Southern Property Holdings [2011] VSC 242 at [105], in which Justice Judd summarised the legal principles applicable to the construction of statutory requirements in the context of the validity of default notices. In that case, His Honour considered that the purpose of a notice is to give the lessee an opportunity to remedy any alleged breaches before the lessor exercised its right of forfeiture, citing authority Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268.
17In Macquarie International Health Clinic Pty Ltd, Hodgson JA held that:
In my opinion, the above authorities clearly indicate that a notice under s 129 must not only allege breach, but must also describe the particular acts or omissions constituting the alleged breach; and the notice must indicate the acts of the tenant which the landlord would consider sufficient for the lease to continue, and upon completion of which the landlord would abandon its claim to forfeit. The standard of particulars or degree of specificity depends upon the circumstances, including the nature of the covenant alleged to be breached, the tenant’s actual or constructive knowledge, and whether the landlord claims reasonable compensation. To use the example of Lord Buckmaster LC, where there are several options open to a tenant to waterproof a leaking ceiling, then that choice is at the tenant’s discretion. Thus s 129 is, in my opinion, directed at allowing the tenant to bring about (within a reasonable time) a state of affairs under which the landlord would not pursue forfeiture.
In particular, the lessee should not be left to speculate as to whether, if it took whatever action it could to remedy the specified breaches, the lessor might nevertheless proceed to terminate the lease on the basis that the breaches were not capable of remedy or that, because what the lessee did was insufficient to eliminate loss caused to the lessor by the late performance of the lessee’s obligations, the lessee was still in breach.
18From a plain reading of the 22 December 2024 letter, it does raise concerns as to the general condition, maintenance and use of the property. It also makes a more specific reference to the failure of the plaintiffs to use the property for its intended purpose, and according to good farming practices. It also focuses upon the failure to remove gum tree seedlings.
19It appears to me that the letter does not possess the stark deficiencies that the plaintiffs rely upon. It appears to me that the defendant may have been purporting to rely upon a breach of either clause 3(b) of the lease which provides that:
(b) The lessee shall not use the demised property otherwise than for a dwelling and all, or any, farm business conducted on a sustainable basis according to good farming practices and without deterioration of the property and shall comply with all requirements of law in relation thereto. The lessor does not in any way warrant that the demised property is or will remain suitable or adequate for such purposes.
20Of course, the plaintiffs put to me today that clause 3(b) of the lease does not impose any positive obligation on the lessees as to the manner in which they are to carry out the farming business upon the land. All it does is sets out the permitted use of the premises.
21However, the defendants do point out to me clause 3(n) of the lease which provides:
the lessee will use all proper and effective means of keeping down and exterminating all pests, noxious animals and noxious plants and will comply with the rules, regulations, notices and advices of the Livestock Health and Pest Authority for the district.
22There is an issue to be tried as to whether the sprouting of gum tree seedlings in land which has been leased for the intended purpose of use as a paddock might constitute the failure or a breach by the tenants of their obligation to, 'Use all proper and effective means of keeping down and exterminating all... noxious plants...'.
23It may be that the notice of breach relating to the failure to kill and remove gum tree seedlings does constitute a failure to keep down and remove noxious plants. However, for present purposes it is enough for me to conclude that there is a serious question to be tried that gum tree seedlings in the context of this location are permitted use and not noxious plants. In which case, the tenant will not have been in breach of the lease, paragraph 3(n).
24To the extent that the letter itself does specify the failure to kill and remove gum tree seedlings, if that did constitute a breach of the lease then it may well be that the relevant breach was sufficiently specified. But of course, that merely raises a serious question to be tried. The letter also provided a time frame of 30 days for the plaintiffs to rectify the breach. It may well be that that constitutes a sufficient time frame. I have not heard the plaintiffs say that it was not a sufficient time.
25Although the letter does not specify the steps required to be taken to rectify the breach, as indicated in the authorities referred to above that is not required. What they were told was that the breach constituted a failure to kill and remove gum tree seedlings that had sprung up. It seems obvious from that that what was required to rectify the breach was to kill and remove them. How they did this was a matter for them.
26In the end, it seems to me that there is a serious question to be tried as to whether the letter is a notice that complies with clause 9 of the lease. This is sufficient for me to find that there is a prima facie case by the plaintiffs that the letter constituted an insufficient notice for the purposes of s146 and the lease was therefore terminated on an insufficient basis.
27I will not dwell on the letters dated 10 March 2025, 12 March 2025 or 13 March 2025. None of those items of correspondence have the hallmarks of a notice that might in any way comply with the lease and/or s146 of the Act. I note that s146(1) of the Act obliges a landlord to serve on a tenant a notice that complies with that section before re-entry can be relied upon.
28I now set out s146(1) below
(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease or otherwise arising by operation of law for a breach of any covenant or condition in the lease, including a breach amounting to repudiation, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice—
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and
(c) in any case, requiring the lessee to make compensation in money for the breach—
and the lessee fails, within a reasonable time thereafter, or the time not being less than fourteen days fixed by the lease to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.
29There are three requirements of such a notice.
30First, that it specify the particular breach complained of - I have dealt with this matter above and have found that there is a serious question to be tried as to whether it did or did not adequately do that.
31The second is that if the breach is capable of remedy, requiring the lessee to remedy the breach. I have dealt with this above and, it seems to me that the notice of 22 December sufficiently set out what steps were taken to remedy that breach.
32Third, the section says in any case, requiring the lessee to make compensation in money for the breach. I note that none of the items of correspondence addresses that sub-section. I did ask counsel for the plaintiffs whether sub-s(c) was a mandatory requirement that the notice specify compensation in money that is required to be made. I also asked counsel whether that requirement of the Act overrides the clauses of the lease which do not make any such requirement.
33Her submission was that s146 of the Property Law Act trumps the requirements in the lease to the extent of any inconsistency. That may well be the case. However, I do note the dicta that I referred to above from Primary RE Ltd in which his Honour Justice Judd in the last quoted paragraph said that:
'The lessee should not be left to speculate as to whether, if it took whatever action it could to remedy the specified breaches, the lessor might nevertheless proceed to terminate the lease on the basis that the breaches were not capable of remedy or that, because what the lessee did was insufficient to eliminate loss caused to the lessor by the late performance of the lessee's obligations, the lessee was still in breach'.
34This dicta suggests that the necessity of setting out what compensation is required in money is a mandatory obligation so that the tenant is not left wondering whether if they remove the gum trees and kill them, the landlord might nevertheless terminate the lease because some compensation in money terms was still owed. It may be that to the extent that the notice does not require compensation in money terms, this is sufficient to satisfy s146(1)(c).
35To the extent that there is no demand for money compensation, this may well be construed as an indication from a landlord that there is no such compensation required. Nevertheless, this is a further serious question to be tried.
36Ultimately, the landlord has relied upon a termination letter dated 25 March 2025. The relevant contents of which I now set out below:
…
In the river paddock there is Bathurst Burrs in seed in patches all over the paddock as well as hundreds of gum trees spread across the entire paddock which has always been grazing land.
The laneway between the river paddock and the centre paddock is full of gum trees giving no access to the top end of the paddock. The fence has been damaged by kangaroos. A gate has been distroyed [sic], how is unknown. The road paddock has briers and gum trees across the paddock.
….
In December/24 after previously on three occasions asked her ot do something about the trees she informed me that they were not going to do anything with the trees they are only going to concentrate on the middle paddock.
On the 22/12/24 I spoke to Ben on the phone. During that conversation he said that they were doing the best that they could do, It was then I knew I would have to terminate the lease.
Refer to lease (9) default + termination. Refer to letter 12/12…
I gave them 30 days to rectify the situation. During that time slashing of the trees took place but not extermination, The trees are still growing.
…
I hereby declare the lease on 307 Wattlevale Road Mitchellstown is now at an end terminated on 24/3/25
…
I am terminating this lease on the 24/3/25 and give the lessee has [sic] 14 days to remove possessions”
37The plaintiffs submit that given the deficiency in the prior letters (particularly that of 22 December 2024) the defendant had no right to terminate the lease. They submit that the termination letter had no basis, and relying on it, the defendant unlawfully entered the property when it changed the locks and prevented the plaintiffs from entering.
38Upon the basis of the information before me, there is a serious question to be tried that the breaches that are relied upon by the defendant are not valid breaches. I am therefore satisfied on the evidence before me that there is a serious question to be tried that the defendant as lessor was never entitled to exclude the lessee from the property. This is also on the basis that the notices to remedy that preceded the termination letter may not have complied with the lease and/or s146.
Balance of Convenience
39I now turn to the balance of convenience. The court is required to balance the detriment that the plaintiff is likely to suffer if the relief is not granted against the detriment that would be caused to the defendant if the interlocutory relief is granted. In considering the balance of convenience, the court should take whichever course that appears to carry the lowest risk of injustice if it should turn out to have been 'wrong'.[2]
[2] Tymbook Pty Ltd v Victoria [2006] 15 VR65 at [35].
40The court must also have regard to whether damages will be an adequate remedy for the alleged infringement of a plaintiffs’ rights. This question necessarily involves an assessment by the court as to whether the plaintiffs would be in as good a position if they were confined to their remedy in damages, as they would be if an injunction was granted.[3]
[3] Samsung Electronics Co Ltd v Apple Inc [2011] 217 FCR 238 at [62]
41I note that the question as to which path carries the lower risk of injustice is informed by the strength of the serious question to be tried. That is, the principles are interdependent, in that the strength of the party's case is relevant to the calculation on the balance of convenience.[4]
[4] Ibid at 67.
42In terms of detriment, the plaintiffs submit that the lower risk of injustice lies with the defendant. They say that should they fail at trial, the defendant would be entitled to the property in the same condition that it is in today. They say that the current condition of the property is, 'Substantially better than it was when the lease was commenced'. I note on this point that there is no evidence before the court that this is the case but that the plaintiffs do say they have invested money towards constructing new fencing, repairs and otherwise preparing the land for pasture and grazing.
43As has been noted, the defendant did not appear at the hearing of the application. It is difficult however, to see other factors lying in favour of the defendant, particularly having regard to the strength of the serious question to be tried in favour of the plaintiffs. The plaintiffs submit that if they establish at trial that the lease was not validly terminated, but their application for an interlocutory injunction was not granted, they are at risk of having any proprietary interest owned by them interfered with or destroyed by the potential creation of rights in third parties.
44I do note that the plaintiffs have lodged a caveat over the property, at least providing some protection of their interest. The plaintiffs say further than their option to purchase under the lease could be lost if an injunction is not granted. I also note that there are four cattle on the farm which are not currently able to be properly tended to. While the plaintiffs are able to provide water to them over the fence, the animals are only feeding on what grasses they can find in the paddock. Three cows are pregnant and expected to calve in June or July. There is a risk that the cattle, without access and proper care, will not survive.
45I consider the potential detriment to the plaintiffs if the interlocutory injunction is not granted exceeds any harm which might be caused to the defendant if it is. In my view, granting an interlocutory injunction carries a lower risk of injustice that its refusal. As such, I am satisfied that the balance of probabilities weighs in favour of granting the interlocutory injunctive relief sought.
46Under those circumstances, it is appropriate and I will grant the interlocutory relief sought by the plaintiffs.
- - -
Certificate
I certify that these 12 pages are a true copy of the judgment of His Honour Judge Wise delivered on 27 May 2025.
Dated: 20 June 2025
Liam Crough
Associate to His Honour Judge Wise.
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