Coletta v Fairfield Chase Pty Ltd
[1990] FCA 839
•27 Aug 1990
IN THE FEDERAL COURT OF AUSTRALIA)
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NEW SOUTH WALES DISTRICT REGISTRY~ NG 723 of 1989
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GENERAL DIVISION 1
Between: MARCO COLETTA AND ANOR
Applicants
And: FAIRFIELD CHASE PTY
LIMITED AND ORS
Respondents
REASONS FOR JUDGMENT
Einfeld J Svdney 27 Auaust 1990 On 11 May 1990 I heard applications by the first respondent for the sununary eviction of the male applicant from the shop which he occupies in the first respondent's shopping centre and determined that an order for possession should be made. The male applicant now conducts the business alone. On 21 May
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1990 formal orders were made for possession but the writ was
| I | permitted to lie in the office until 18 June 1990. Judgments | |||||
| 1 | were also entered for unpaid occupation fees as well as earlier unpaid rent but the rent judgment was stayed until the determination of the principal action for relief under the Trade Practices Act. These orders and judgments were finally entered on 6 June 1990. A document purporting to be a notice of appeal against these orders and judgments was lodged in the Registry on 31 May but there is some dispute as to whether leave is required on the grounds that the orders and judgments | |||||
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| present position of this dispute. | ||||||
| On 19 June 1990 the male applicant moved the Court for a further stay of execution of the writ of possession and a stay of the judgment for unpaid occupation fees until the appeal and the principal proceedings have been determined. He alleged that the business has at all times since its commencement in September 1988 been running at a substantial loss. In the first 6 months of 1990, this loss was about $700 per week, somewhat down from what he says was previously $1300 per week. He claims that business has been improving recently and says, obviously enough, that if he is evicted, he will not be able to continue this improvement. In other words, if the writ of possession is further stayed, he will be able to go on losing the $700 per week as at present, although this amount may fall slightly in the next few months. He says that the business has only been able to continue through what he called in his affidavit "various loans and advances" and that he can | ||||||
| only afford an occupation fee of $400 per week as against | ||||||
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| This amount was fixed virtually by consent as referred to in my judgment of 11 May 1990, and was therefore repeated in the orders and judgments of 21 May 1990, on neither of which occasions was an argument raised or application made that the amount should be cut by virtually two thirds. | ||||||
| The applicant gave oral evidence in support of his motion for the stays, most of which emerged in cross examination on 19 and 27 June 1990. In this evidence, the applicant told of a complex web of several different businesses in which he was involved with members of his family, all of which, including the one at Fairfield Chase, are virtually conducted together. A number of documents were produced in connection with these businesses. The totality of this evidence demonstrates that the applicant's affairs are not as simply indigent as he sought to demonstrate in this motion. He has paid no rent for the Fairfield Chase shop since October 1989; he has paid no occupation fee since it was fixed in January 1990; he has made no application for a reduction of the occupation fee. His claim that he can now, suddenly, afford to pay $400 per week is supported by no comprehensible new development, and is gainsaid by the evidence of income received from, money spent on, and liabilities incurred in respect of the total commercial activity in which he is engaged. | ||||||
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| earliest possible time he projects for a continuous trading profit is some time in 1991. Even then it is hardly likely to be a major money earner. It therefore did not emerge how and from where the $400 was now to be found, why it had not previously been available, what fixed the figure at $400, and why something more was not equally appropriate. | ||||||
| Many other queries and conundrums appear from the applicant's oral and documentary evidence which overall left me with the distinct but uneasy feeling that he is not being even slightly frank with the Court. It is obvious that no business could be persistently run at a loss of between $700 and $1300 per week for two years unless it was being funded from outside. The applicant made no effort to identify the source of these funds or how they were being serviced, still less to explain why he would continue with such a hopelessly unsatisfactory enterprise. One possible explanation may be that this loss business plays some role in the applicant's or his family's overall commercial activity and taxation affairs, although this was not put to the applicant in cross examination and inferences would have to be drawn to support it. I will not guess at such things. It is sufficient to conclude, as I do, that I do not accept the applicant's account of his finances or his reasons and explanations for his failure to pay his rent and occupation fee up to now. | ||||||
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| argument, submitted that if the writ of possession was not further stayed, the appeal against it would be rendered nugatory. He said that it was a serious arguable appeal which was not frivolous and has reasonable prospects of success. He points out that there has been no attempt to strike it out. | ||||||
| As to staying the judgment for the accumulated occupancy fees, the applicant's solicitor argued: | ||||||
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| I do not understand the first of these three submissions. The applicant says that he is without funds to pay the judgment. | ||||||
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| The other two submissions suffer from the problem of the paucity of evidence. No evidence has been identified from the principal action which would suggest that the premise that the respondent is likely to be ordered to pay the respondent more than the applicant has currently been ordered to pay the respondent as occupancy fees is likely to be made good. I am not saying that it will not be, just that no evidence was brought in the motion suggesting that it will or might be. As for the respondent's allegedly poor financial position, it would easily have been possible to present evidence to this effect, but what was presented was of no significance at all on a matter of such importance. | ||||||
| It is trite law that if such contentions could be made good, something of the kind now sought would be seriously considered. I cannot see that simply to have brought an action meets these legal criteria. The fact that the case, on foot for so long, is only two months away from a hearing would mean that the applicant's particulars of damages should be at hand. Yet virtually nothing was produced to show that it can be, or how it will be, proved that the respondent will be ordered to pay the applicant more than the applicant currently owes. Damages for misleading and deceptive conduct under | ||||||
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| pursued, and the applicant's case in the principal action succeeds, his damages can, if at all, only increase. But how he proposes to establish that and to what extent the unprofitability of his business can be attributed to the alleged misrepresentations by the respondent, has yet to appear. Especially in view of my findings on his claim for hardship and explanation of his finances, I do not think I can determine this motion by guesswork or on submissions from the Bar table, however competent, on such matters. The application for a stay of the judgment fails. | ||||||
| As to the suggested stay of the eviction order, I observe again that it is long and well established that summary procedures extinguishing a right of action should only be entertained if the cause of action to be extinguished is | ||||||
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| Railwavs !NSW\ and Ors [l9641 112 CLR 125; Dev v Victorian Railwavs Commissioners [l9491 78 CLR 62. Nothing less can be said of this appeal. It is framed as an appeal on questions of law alone, and does not challenge the conclusions of fact made on 11 May 1990 that the applicant has been in breach of his lease by failing to pay the rent it fixed and has been in breach of the conditions as to continuing occupancy fixed by the Court with the applicant's effective consent. It should be recalled that these conditions were imposed when refusing to entertain in January 1990 the summary relief sought by the | ||||||
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| was no challenge to the factual findings made when eviction was ordered. | ||||||
| Effectively the appeal is against the decision to proceed with the cross claim for possession before the hearing of the applicant's principal claim. The unchallenged facts demonstrate that the cross claim is actually uncontested although the sixth ground of appeal suggests that the applicant's allegations of misleading and deceptive conduct should have been treated as a defence to the cross claim for possession and arrears of rent and occupancy fees. I do not recall that submission being made at or before the hearing of the cross claim and do not see how it could be a defence to the cross claim, except by way of set off. If so, it raises the same issues as the other grounds of appeal. I do not think that I made the finding attributed by the fourth ground of appeal at all. | ||||||
| have a cross claim heard with the principal claim: Wood | ||||||
| As I understand the position, a party has no absolute right to same or similar fact-finding or legal questions are involved. But this is not such a case. The two cases involve almost no common facts, except the basic uncontested ones that there was | ||||||
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| principal action under section 87 for a variation of the lease which, he says, would operate from its commencement and fix a much lower rent. Accepting that this is possible, he has not as yet particularised such a claim to establish that he would still not be in default under his lease as so varied. Nor has he made out a case that section 87 can and should in this case be the vehicle for re-writing, for example, the eviction clause in the lease so as materially to change the outcome of the cross claim. Even in argument on this motion, no case was made out for this construction of section 87, still less were facts evidenced to base such findings. What was done was to make these suggestions from the Bar table and ask the Court to accept them as legitimate, provable and genuine. | ||||||
| The proposed appeal is not the place to argue these admittedly open questions of law. They should be determined, not in the abstract, but when evidence has been heard and facts found to which the law as so argued and defined should be applied. If the applicant is successful in these respects, his damages and entitlement to other relief may grow if the current orders are left undisturbed, although the fact that the business has operated at a substantial loss even when no rent or occupation fee has been paid may present some problems in this regard. I simply cannot accept that a genuine businessman would want to continue a business for more than two years that has been losing the quantity of money claimed for this one, for its own | ||||||
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| Thus the decision being appealed from amounts to a discretionary procedural determination which does nothing to disadvantage the applicant financially or otherwise except, if at all, in a way which can be readily and easily comprised in his principal claim for substantive relief. I do not think |
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that such an appeal could succeed, or if leave is required,
that leave would be granted.
The motion is therefore dismissed with costs.
Justice Einfeld
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