Clover Pines Pty Ltd v Avin Operations Pty Ltd - [2003] VSC 242

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8133 of 2002

CLOVER PINES PTY LTD (ACN 006 915 019)	Plaintiff
v
AVIN OPERATIONS PTY LTD (ACN 076 956 913)	Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 June 2003
DATE OF JUDGMENT:	2 July 2003
CASE MAY BE CITED AS:	Clover Pines v Avin Operations
MEDIUM NEUTRAL CITATION:	[2003] VSC 242

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LANDLORD AND TENANT – commercial lease – claim by lessor for unpaid rent and outgoings – additional claim for mesne profits – defendant indebted to plaintiff in the sum of $54,118.69 – defendant to pay plaintiff $47,067.29 by way of mesne profits.

Supreme Court (General Civil Procedure) Rules 1996 – rule 63.24 and 63.25

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Manly	Lennon Settle
For the Defendant	Mr P. T. Fox	Mr J. Guss

HER HONOUR:

Introduction

By a lease dated 21 January 1998 the plaintiff leased to the defendant a factory property at Dandenong (“the property”) for a period of five years, commencing on that date. On 13 January 2003, on the application of the plaintiff, Beach J made orders that the plaintiff recover possession of the property, that the defendant was indebted to the plaintiff in the sum of $59,648.75, that the defendant pay to the plaintiff the sum of $42,167.44 for mesne profits and that the defendant pay the plaintiff’s costs of the proceeding. The defendant appealed against those orders, other than the order for possession.

On 23 May 2003, the Court of Appeal set aside the orders of Beach J other than the order for possession, made certain orders as to the times for filing of further affidavits and outlines of argument, and directed that the trial of the proceeding be on affidavit and be heard in the Practice Court on 24 June 2003 or so soon thereafter as the business of the Court might allow. The Court further ordered that the costs of the proceeding up until and including 13 January 2003, the date of Beach J’s orders, be paid by the appellant, and that the costs of the proceeding after that date, as well as the appellant’s costs of the appeal, be in the discretion of the trial judge.

The appellant’s submissions before the Court of Appeal were based on procedural error only. JD Phillips JA, with whom Winneke P and Vincent JA agreed, noted at [32] of his judgment that the appellant had failed to identify any significant dispute of fact, as distinct from calling for the respondent properly to prove its case.

At the outset of the hearing I gave leave to the plaintiff to file an amended originating motion and summons whereby the plaintiff claimed that the defendant pay to it the sum of $54,335.61 and mesne profits assessed at $19,887.59 per month for the period 12 November 2003 (the date of forfeiture of the lease) to 13 January 2003.

The defendant did not seek to…

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: [2003] VSC 242
Decision Date: 2 July 2003

CaseChat Overview and Summary

Clover Pines Pty Ltd brought an action against Avin Operations Pty Ltd for unpaid rent and outgoings under a commercial lease. The dispute also included a claim for mesne profits. The matter was heard in the Supreme Court of Queensland. The defendant, Avin Operations Pty Ltd, was found to be indebted to the plaintiff, Clover Pines Pty Ltd, in the sum of $54,118.69, which represented unpaid rent and outgoings. The court was also required to determine whether the defendant should be liable for additional mesne profits.

The court considered whether the defendant had breached the terms of the lease by failing to pay the rent and outgoings as required. The court also examined the provisions of the Supreme Court (General Civil Procedure) Rules 1996, particularly rules 63.24 and 63.25, which relate to the assessment of damages and costs. The court found that the defendant had indeed breached the lease by not paying the required amounts and was liable for the unpaid rent and outgoings. Additionally, the court assessed the mesne profits and determined that the defendant should pay the plaintiff $47,067.29 by way of mesne profits.

The court ordered that Avin Operations Pty Ltd pay Clover Pines Pty Ltd $47,067.29 by way of mesne profits. The defendant was also ordered to pay the unpaid rent and outgoings in the sum of $54,118.69. The court made these orders under the authority of the Supreme Court (General Civil Procedure) Rules 1996. The decision highlights the importance of landlords enforcing their rights under a commercial lease and the potential for recovering mesne profits where there has been a breach of the lease terms.

Orders