Croft v National Trust of Australia (WA)
[2017] WASCA 95
•16 MAY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CROFT -v- NATIONAL TRUST OF AUSTRALIA (WA) [2017] WASCA 95
CORAM: MURPHY JA
MITCHELL JA
HEARD: 15 MAY 2017
DELIVERED : 15 MAY 2017
PUBLISHED : 16 MAY 2017
FILE NO/S: CACV 73 of 2016
BETWEEN: RODNEY CROFT
Appellant
AND
NATIONAL TRUST OF AUSTRALIA (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 2574 of 2015
Catchwords:
Practice and procedure - Appeal against summary judgment - Appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal have any reasonable prospect of succeeding - Whether primary decision was unsupported by the evidence - Whether primary decision was made without a hearing and without allowing all parties to be represented and fully heard - Whether primary decision should be set aside on the basis that it was made ex-parte
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D A Lenhoff
Solicitors:
Appellant: In person
Respondent: Lenhoff & Associates
Case(s) referred to in judgment(s):
Nil
REASONS OF THE COURT:
(This judgment was delivered extemporaneously on 15 May 2017 and has been edited from the court's record.)
On 2 May 2014, Mr Croft and a representative of the National Trust of Australia executed a letter agreement for the lease to Mr Croft of premises in Jarrahdale. The letter relevantly provided for a lease term of 10 years commencing on 18 July 2014, at a rental of $30,000 per year plus GST. The permitted use of the premises was:
Timber processing service/Saw Mill (subject to approval to commence development from the Shire of Serpentine Jarrahdale).
The commencement date of the lease was the subject of a handwritten amendment initialled by the parties.
The letter concluded in the following terms:
Legal binding: It is the intention of the Lessee and the Lessor that upon signing of this Agreement the Lessee and the Lessor will be legally bound to enter into a formal Agreement and the terms and conditions of this letter agreement will amount to an enforceable agreement between the parties.
Signatures below confirm both parties agree to the above terms and conditions to enter into a binding lease agreement.
On 20 August 2015, the Trust issued a notice of termination of lease for failure to pay rent. The notice indicated that the parties had agreed Mr Croft would not be obliged to pay rent for the first three months of the lease, reducing the total rent payable for the first year to $24,750. The notice alleged that Mr Croft paid only $13,750 for rent and GST in the period between 18 July 2014 and 17 July 2015 and failed to pay the balance of $11,000. The notice indicated that the lease was terminated for the failure to pay rent.
On 5 October 2015, the Trust commenced proceedings in the General Division of the Supreme Court seeking recovery of $11,000 claimed as outstanding rent and an order for possession of the premises. By chamber summons filed on 21 December 2015, the Trust sought summary judgment. Summary judgment was sought on the basis of the termination for non-payment of rent.
The Trust had also claimed that it had terminated the lease arising from the use of the premises without the Shire's permission, but did not seek summary judgment on that basis.
The Trust's summary judgment application was supported by affidavits of two of its officers sworn on 21 December 2015 and 2 March 2016. Mr Croft filed two affidavits in opposition, sworn on 11 January 2016 and 19 February 2016.
The summary judgment application was heard by the Master on 22 March 2016. After hearing oral submissions, the Master reserved his decision on the application.
In considering the matter, the Master concluded that, on their most benign interpretation, Mr Croft's affidavits did not disclose a defence to the action. However, the Master came to the view that there might be material which Mr Croft referred to in his oral submissions that, if reduced to writing and put in an affidavit, may provide a defence to the action.
The Master recalled the parties to a further hearing on 14 April 2016, at which the Master made orders giving Mr Croft 21 days to file and serve further affidavit evidence, and the Trust seven days thereafter to file and serve any reply affidavit. Order 3 was that:
The Master will make orders on the papers and produce written reasons.
Mr Croft did not take up the opportunity to file further affidavit material and, on 9 June 2016, the Master made orders giving summary judgment for the Trust. The Master awarded judgment of $11,000 in respect of unpaid rental and made an order for possession of the premises.
Mr Croft has appealed against the Master's orders for summary judgment. We are considering the registrar's notice for the appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal have any reasonable prospect of succeeding.
Mr Croft relies on three grounds of appeal:
1.The primary court's decision the subject of this appeal is against the evidence and the weight of the evidence, the decision is unreasonable and cannot be supported having regard to the evidence.
2.The primary court's decision was made without a hearing on the full merits of the case and without allowing all the parties involved in the case to be represented and fully heard.
3.The primary court's decision was made irregularly, illegally and against good faith given the decision was made 'exparte'.
There is no merit in any of these grounds.
The affidavits relied on by the Trust established the existence of the lease agreement, the non‑payment of outstanding rent and the issue of the notice of termination. The affidavits filed by Mr Croft did not contain any admissible evidence that he had paid the rent which the Trust claimed was outstanding, or of any communication between the parties which had the effect of varying the terms of the lease agreement other than by providing for the first three months to be rent free. A statement in his first affidavit that 'the commencing date of 18th July 2014 is incorrect' is no more than a conclusionary assertion. There was no admissible evidence that the letter agreement did not reflect the agreement actually reached between the parties, and evidence from the Trust officers was that the lease had not been varied other than by reference to the three‑month rent free period. The Master recognised that the appellant only needed to show an arguable defence, and correctly concluded that nothing in Mr Croft's affidavits established any arguable defence to the Trust's claim based on non-payment of rent.
Mr Croft attended the hearings on 22 March 2016 and 14 April 2016. He was heard and, even after judgment was initially reserved, given a further opportunity to file affidavits in opposition to the summary judgment application. He did not avail himself of that opportunity. The Master made orders and gave reasons only after Mr Croft had been heard and given that opportunity.
We are satisfied that none of the grounds of appeal have any reasonable prospect of success. The appeal should be dismissed on that basis.
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