Charter Hall Retail Management Ltd responsible entity Perpetual Ltd v Romelal - [2019] WADC 147

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CHARTER HALL RETAIL MANAGEMENT LTD responsible entity PERPETUAL LTD -v- ROMELAL [2019] WADC 147
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   24 OCTOBER 2019
DELIVERED          :   7 NOVEMBER 2019
FILE NO/S:   CIV 1310 of 2019
BETWEEN:   AND

CHARTER HALL RETAIL MANAGEMENT LTD responsible entity PERPETUAL LTD
Plaintiff
AND
NAKUL ROMELAL
Defendant

Catchwords:

Practice and procedure - Summary judgment application - Turns on its own facts

Legislation:

Supreme Court Act 1935 (WA)

Result:

Judgment for part of the claim and leave to defend the balance

Representation:

Counsel:

Plaintiff	:	Mr M G Hales
Defendant	:	Mr C S Williams

Solicitors:

Plaintiff	:	Minter Ellison
Defendant	:	Solomon Brothers

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

This action was commenced by the filing of a writ on 8 April 2019 followed by a statement of claim on 13 July 2019 and ultimately the application with which I am concerned, namely the chamber summons for summary judgment. That application sought the following orders:
1. That the plaintiff have leave to apply out of time for summary judgment against the defendant. (That order was not opposed.)
2. That the plaintiff have leave to amend the writ of summons. (That order was also not opposed but in any event, is not strictly necessary.)
3. Finally, the plaintiff sought summary judgment in the sum of $67,831.87. (That part of the application was opposed.)
The application is supported by the affidavit of Andrew John Page sworn 30 August 2019. Mr Page is an employee of Charter Hall Holdings Pty Ltd and has held this position since July 2016. In his position, Mr Page deposes to the fact that he is the centre manager of Kalgoorlie Central Shopping Centre, that being the shopping centre where a premises leased from the plaintiff by the defendant is located. Mr Page testifies that he has obtained the information to which he deposes both from his own knowledge and from the records maintained by the plaintiff.
No affidavit in opposition to the application has been filed and the defence which has been run by the defendant focuses on what are argued to be deficiencies in the materials adduced by the plaintiff in support of its application. The point is made, as is the case, that it is the obligation of the plaintiff to make out its case and the fact that the defendant has not filed an affidavit in opposition does not relieve the plaintiff from that burden. I should also pause to point out that as a summary judgment application, the authorities have long since established that the power to enter a judgment should be exercised with care and only in clear cases where there is no issue to be tried.
The claim by the plaintiff in the present application is for the combined amounts of unpaid rent, outgoings, services, legal costs and maintenance costs. Of those amounts it is not in dispute that the rent and maintenance costs are payable. The rent comprises $64,569.12 and the maintenance costs total $1,739.36. The other matters are in issue and the defendant invites the court to take heed of the fact that the plaintiff had the benefit of a bank guarantee in the amount of $25,863.52, which has been drawn down and should be deducted from any amounts to which I find the plaintiff is entitled to judgment. That leaves in issue, the claim for outgoings, services and legal costs?
As to the matter of outgoings, the regime implemented by the lease was for an estimate of the likely outgoings to be made and for the tenant to pay contributions to the cost of the outgoings on a monthly basis, calculated at one tenth of the total of the estimate. The lease provides that at the end of the relevant rental period, a reconciliation and adjustment is required to be made, such that any overpayment towards outgoings is to be returned to the tenant and any underpayment is to be paid by the tenant to the landlord.
In the present case, Mr Page testified that upon determination of the plaintiff's lease on 15 March 2019, he made a reconciliation of the actual outgoings which had been incurred and found that the contribution made by the tenant exceeded the amount of the actual outgoings by $630.85 and that figure has been deducted from the amount claimed by the plaintiff from the defendant. The defendant argued that in the absence of evidence of each and every payment which comprised the outgoings, the evidence is insufficient to support a claim for the judgment of the amount claimed. I do not agree. The evidence establishes the process by which contributions were made towards outgoings and the exhibits to the affidavit show that a sum of $1,712.40 was payable in each month.
The evidence of Mr Page establishes that that amount was not paid for the period the subject of the claim, namely from 1 August 2018 to 15 March 2019. The monthly moieties were made payable by the lease and they were not paid. The deponent of the affidavit has undertaken a reconciliation task leading to the decision that an allowance should be made in reduction. What I therefore have is a situation where the estimated monthly amount of outgoings has not been paid for the period in question, but the defendant has received a reduction based upon the calculation which the plaintiff has made of the amount of outgoings actually paid to the date of termination of the lease.
In the circumstances I consider that evidence to be sufficiently powerful and justifies any judgment which I may award for the claimed allowance for outgoings.
The next claim relates to services and in the sum of $5,157.65. The affidavit of Mr Page makes it clear that these charges, as far as I can tell, relate to water services but I am unable to reconcile the figure from the invoices and other materials exhibited to the affidavit with the figure claimed. By my calculations the amount which is properly claimable is $5,338.67 but that which is claimed is rather lower than that.
In the circumstances I prefer to accept the figure which has been put forward by the plaintiff as the correct expression of the amount payable in respect of water supplied to the premises in the relevant period.
It has been argued by the defendant that this aspect of the claim is weak and insufficient to substantiate a summary judgment. In part the arguments stems from the nature of a document exhibited to Mr Page's affidavit being exhibit JP8 appearing at page 115. It would appear the document was produced by an entity called Energy Tech and there is not sufficient information to substantiate that company as being properly able to render the account upon which the plaintiff relies.
Against that argument is the fact that Mr Page has sworn on oath that the information contained in his affidavit is true and correct and, in particular, he has verified the document in question as being an account from the water supply authority. All that can be said about that aspect of the matter is if, as is said to be the case, that is the account received from the water authority then the concerns of the defendant amount to nothing. I am not given any reason to suppose that the account is not a genuine account and the amount claimed in it is not genuinely payable. Certainly that is the thrust of the sworn testimony of Mr Page. The fact that the accounts looks a little odd is to my mind not relevant. It is sworn to be what it purports to be and in the absence of any reason to dislodge that proposition I accept it.
Accordingly insofar as the plaintiff seeks payment for services, that payment is allowed notwithstanding the variation with my personal calculation.
The final matter for consideration is legal fees which are sought to be recovered. In particular, I first note at page 103 of the supporting affidavit is exhibited a tax invoice rendered to the defendant. That tax invoice contains reference to an account received from Messer Minter Ellison apparently dated 31 May 2018 for $6,743. The notation to that item in the invoice is 'Legal fees - general procedure claim - lease dispute - Minter Ellison invoice #10407806'. The amount claimed is $6,743.
General procedure claims relate to proceedings in the Magistrates Court. Although the invoice is dated 1 August 2018 the reference is to an account apparently dating back to 31 May 2018. It appears this figure forms part of the amounts which have been claimed as legal costs.
If, as I surmise, the costs relate to separate proceedings in a separate court at a different time and they are not claimable in this action. Additionally, in regard to all of the claims for legal fees the references are so vague as to be practically meaningless and it is not possible to discern exactly what the legal fees were incurred for and exactly why they are properly claimed under the lease and in these proceedings. Accordingly, I do not intend to grant a summary judgment in respect of the legal costs which are claimed at $9,160.71.
There is one further issue which requires consideration and that relates to the interest claim. Interest is claimed under s 32 of the Supreme Court Act 1935 (WA). That section is in the following terms:
32. Pre‑judgment interest, Court may order
(1)In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.
(2)This section does not -
(a)authorise the giving of interest upon interest; or
(aa)apply in relation to any general damages in respect of pain and suffering or the loss of the enjoyment or of the amenities of life awarded in relation to personal injury or the death of a person; or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or
(c)affect the damages recoverable for the dishonour of a bill of exchange.
It would be seen that s 32(2)(b) is to the effect that s 32(1) does not apply in relation to any debt upon which interest is payable as of right or whether by virtue of any agreement or otherwise. Clause 3.2 of the lease specifies that interest is to be charged at the rate of 2% above a rate specified in an earlier section of the lease being the rate quoted by the landlord's bank on the due date for payment of unsecured overdraft accommodation of $100,000.
It is argued on behalf of the plaintiff that the 6% rate which is applicable under s 32 has been chosen for convenience and in fact would amount to a lesser claim for interest than the interest rate which is prescribed by the lease. Those arguments are to no avail. I accept the submissions by the defendant that s 32 has no relevance in the circumstance of this lease and as a consequence of the pleaded claim for interest is unsustainable and I make no allowance for interest in my judgment.
I am therefore satisfied to the necessary standard that the plaintiff is entitled to a judgment of $58,221.16. I further find that the plaintiff is not entitled to interest on that sum. There shall be leave to defend the balance of the claim including claims not the subject of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ET
Court Officer
28 NOVEMBER 2019