Dairy Farmers v Robinson and 2 Ors
[2003] NSWSC 738
•13 August 2003
CITATION: Dairy Farmers v Robinson & 2 Ors [2003] NSWSC 738 revised - 18/08/2003 HEARING DATE(S): 6 August 2003 JUDGMENT DATE:
13 August 2003JURISDICTION:
Common LawJUDGMENT OF: Master Harrison DECISION: (1) I make the orders sought in paragraphs 1 and 2 of the plaintiff's notice of motion filed 19 May 2003; (2) The plaintiff has leave to issue a writ of possession, such writ not to issue before 11 November 2003; (3) The defendants are to file and serve any cross-claim within 28 days; (4) The defendants are to pay the plaintiff's costs as agreed or assessed. CATCHWORDS: Possession - Summary Judgment LEGISLATION CITED: Supreme Court Rules - Part 13 rr 2 & 5 CASES CITED: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Allen v Carbone (1975) 132 CLR 528
Air Services Australia v Zarb (NSWSC unreported, 26 August 1998)
Chalmers v Pardoe [1963] 1 WLR 677
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Guimeli v Guimelli (1999) 196 CLR 101
Morris v Morris (1982) 1 NSWLR 61
Smith v Lush (1952) 2 SR(NSW) 207
Webster & Anor v Lampard (1993) 177 CLR 598PARTIES :
Australian Co-Operative Foods Limited t/as Fairy Farmers
(Plaintiff)David Charles Robinson
Shaun David Robinson
(First Defendant)
(Second Defendant)FILE NUMBER(S): SC 12254/2002 COUNSEL: Mr D M Flaherty
(Plaintiff)SOLICITORS: Addisons
Mr S D Robinson
(Plaintiff)
(Second Defendant in Person)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
12254/2002 - AUSTRALIAN CO-OPERATIVE FOODSWEDNESDAY, 13 AUGUST 2003
JUDGMENT (Possession – Summary Judgment)
LIMITED t/as DAIRY FARMERS v
DAVID CHARLES ROBINSON & ANOR
1 MASTER: By notice of motion filed 19 May 2003, the plaintiff seeks firstly, judgment for possession of the land comprised in Lot 211 in Deposited Plan 1040019, known as 221 Fallon Street, North Albury (the plaintiff’s property); secondly, an order that the Court dispense with the compliance by the plaintiff with any rule requiring it to show or prove who was in occupation of each part of the plaintiff’s property as at 28 March 2003 (the date on which the amended statement of claim (ASC) was filed) and who has been served with notice under r 8 on that date; and thirdly, that leave be granted to the plaintiff to issue a writ for possession in respect of the plaintiff’s property forthwith. The plaintiff relied on the affidavit of Scott Andrew John Pitcher sworn 19 May 2003 and 20 May 2003, and affidavits of service. On 23 May 2003, the defendants’ solicitor filed a notice of ceasing to act. Mr Shaun Robinson appeared. The first defendant, Charles Robinson, Shaun Robinson’s father did not appear as he is in ill health. He has suffered a stroke and it is not advisable for him to attend court.
2 The relevant parts of Pt 13 r 2 says:
“2(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff -
(a) there is evidence of the facts on which the claim or part is based; and
(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,
the Court may, by order, on terms, give such judgment for the plaintiff on that claim or part as the nature of the case requires.”
3 Part 13 r 5 says:
- “(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-
- (a) no reasonable cause of action is disclosed;
- (b) the proceedings are frivolous or vexatious;
- or
- (c) the proceedings are an abuse of the process of the Court,
- the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
“Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
4 According to their Honours, this is because:
“It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities” (at 58).
5 Similarly, in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb.
6 In General Steel Barwick CJ, who heard the application alone, stated at 130:
- “Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
7 Barwick CJ also said at 129:
- “It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”
8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602:
- “The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”’
9 According to Rolfe AJA in Zarb at 15-16:
- “The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”
10 The plaintiff pleads that by lease dated 21 June 1993 (the lease) the defendants leased the plaintiff’s land at Lot 211 in DP 1040019 and known as 251 Fallon Street, North Albury (the property). On the property was a disused dairy. The term of the lease was for a period of three months commencing on 7 June 1993 and ending on 7 September 1993. The defendants covenanted to pay rent to the plaintiff in the sum of $100.00 per week on Monday of each week during the term of the lease and to pay promptly and in advance. The lease contained a further term that if the defendants failed to pay rent for a period of 14 days or more, whether formally demanded or not, the plaintiff would be entitled to forfeit the lease by re-entry. The defendants have failed to pay rent for a period exceeding 14 days. The defendants have failed or neglected to pay rent since 8 September 1993 but have continued to occupy the plaintiff’s property. The defendants admit that they have not paid any rent since the expiry of the term of the lease but deny that the plaintiff has any present entitlement to payment of such rent (D, 10 June 2003, para 3). Notices to Quit were served on the defendants on 16 April 1998 and 12 February 2003. This is not disputed. The plaintiff claims that the defendants continued occupation on the premises constitutes trespass.
11 To take the defendants’ case at its highest, I have made reference to their case as outlined by Mr Shaun Robinson in his document called an amended defence but this document is really an affidavit. Shaun Robinson deposed that he moved onto the site after an offer to purchase the site was accepted by Mr Laurie Robinson. The lease was meant to be a formality so he and his father could occupy the site until settlement. According to Mr Laurie Robinson the site was in a very bad state and it was really only good for demolition. Shaun Robinson agreed and made an offer for $200,000 to buy the site. This was rejected and then the defendants offered $350,000 for the whole site.
12 On 7 June 1993, the defendants wrote to Laurie Robinson of the plaintiff by facsimile transmission making an offer to purchase the site for $350,000 on the following condition: (a) that the defendants take immediate possession of the site under a three month lease to allow time for documentation of the contract for the sale of the plaintiff’s land; (b) the redundant equipment on the site to become the property of the defendants; and (c) the forklift on the site to become the property of the defendants. The plaintiff permitted the defendants to take possession of the plaintiff’s land on or about 7 June 1993.
13 On 21 June 1993 the plaintiff and the defendants executed the lease. In about June 1993, the defendants paid in advance the whole of the rent payable for the term of the lease. The defendants submitted to the plaintiff a development application for development of the site for consent by the plaintiff before lodgement with Albury City Council and the plaintiff gave its consent.
14 As the defendants needed to get on site, Shaun Robinson spoke to Laurie Robinson and requested to move on site before settlement. There was an agreement on a token rent of $100 per week. The defendants moved to the site and secured Dairy Farmers’ goods and the site at their cost. It soon become apparent the extent of the looting that had taken place since the closure of the site. The premises also had to be secured in replacement of windows and the bricking up of walls, replacement of wooden floors, the buildings were painted internally and rendered safe to carry on a business. The defendants recycle foam and sell jigsaw mats and developed an oil recovery process in respect to which a patent has been lodged. During the first six weeks of the lease, Laurie Robinson rang Shaun Robinson on his mobile and said that they had a problem selling him the whole site and could they separate the rock yard as they had a clause in their lease that they have first option. Shaun Robinson said “that is OK if it doesn’t cost me any money”. Laurie Robinson said that he would organise a plan for Shaun’s approval. Shaun Robinson asked that if “we do not end up buying will you cover the improvements?” and Laurie Robinson replied, “Yes”.
15 In about July 1993, the plaintiff represented to the defendants that: (a) prior to entering into negotiations to sell the site to the defendants, the plaintiff had granted an option to Rockyard to purchase part of the site occupied by Rockyard being the land marked “A” on the plan attached to the lease (the Rockyard land); (b) the plaintiff would be prepared to sell to the defendants that part of the site remaining after excision of the Rockyard land (the remaining land); and (c) if the defendants did not wish to proceed with the purchase of the remaining land, the plaintiff would compensate the defendants for improvements made by the defendant to the site. In reliance on the approval and the representations, the defendants remained in possession of the plaintiff’s property, made further improvements to the plaintiff’s property and continued negotiations to purchase the remaining land.
16 After the term of the lease expired, Shaun Robinson did not hear from Dairy Farmers for a long time. Shaun Robinson went to see Mike Myers when Mr Myers started at Dairy Farmers. The defendants made an offer to pay rent and confirmed that they were still waiting to purchase but received no reply. Later they received a Notice to Quit on 15 April “1996” [1998] which is when Shaun Robinson was told that all discussions had to go through David Blackburn from Addisons. When Shaun spoke to David and pointed out that they were there to purchase and the lease is only part of the agreement, he stopped all action. Dairy Farmers went silent.
17 In about July 2000 the RTA expressed an interest in the land. This meant from the defendants’ point of view, that they had to fight to even see any movement towards the purchase of the site. This was the first time they saw a contract but by now it had a clause that they had to sign an asbestos disclaimer. The asbestos documentation forms part of Exhibit 1. On 13 February 2001, the defendants’ records were taken as the premises were broken into and they lost documents relevant to this case. The theft was reported to Police Officer Paul Cox: ref (E12486108).
18 The defendants assert that the minimum amount of money they have put into the site to secure and make it safe, which in all leases is the owner’s cost, is in excess of $200,000. This was spent on the employment of electrician for six months and labourers as well as cranes. This would take about three months. According to the defendants, the RTA have announced that it is going to resume need the site and they wish to obtain compensation for relocation from the RTA and if they are off site Dairy Farmers will get paid for the site.
19 In August 2000, the plaintiff advised the second defendant that it had become aware of the presence of asbestos on the site. At paragraphs 27 to 29 of the Defence, it is pleaded:-
“27. The Plaintiff refused to make any concessions on the asbestos conditions, thereby depriving the Second Defendant of the opportunity to purchase the site or part of it.
29. By reason of the matters pleaded above, the Plaintiff is:…
(b) not entitled to the relief claimed.”(a) estopped from asserting against the Defendants any obligation to pay rent in accordance with the terms of the Lease and from relying on alleged breach of such obligation as the basis for a claim for possession;
20 The plaintiff submitted that the defendants’ defence does not give rise to any entitlement to possession because there is no claim for specific performance of any alleged agreement for sale of the property between the defendants and the plaintiff or that the property be conveyed to them. The plaintiff further submitted that the defendants may have a claim for equitable compensation or an equitable charge over the subject property. But even if there was such a claim it does not provide any basis for depriving the registered proprietor the benefit of possession of its own land.
21 The plaintiff’s counsel referred to Morris v Morris (1982) 1 NSWLR 61, Chalmers v Pardoe [1963] 1 WLR 677 and Guimelli v Guimelli (1999) 196 CLR 101. In Morris v Morris (1982) 1 NSWLR 61, McLelland J (as he then was) stated at 64:
- “In my opinion, on the facts of this case, it would be unconscionable and inequitable that the defendants should now retain the benefit of the expenditure by the plaintiff of his money on their property free of any obligation of recoupment to him. Consequently an equity arises in favour of the plaintiff and the court must determine how in all the circumstances justice requires that that equity be satisfied. What a plaintiff in such a case as this should in justice receive will not necessarily correspond with what, when the relevant expenditure was made, he expected to receive.”
22 His Honour referred to a passage in Chalmers v Pardoe [1963] 1 WLR 677 at 81 where it was stated:
- “There can be no doubt upon the authorities that where an owner of land has invited or expressly encouraged another to expend money upon part of his land upon the face of an assurance or promise that that part of the land will be made over to the person so expending his money, a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation; and when, for example for reasons of title, no such conveyance can effectively be made, a court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended. … It was said in Plimmer v Wellington Corporation (1884) 9 App. Cas. 699, 714 P.C. that the court must look at the circumstances in each case to decide in what way the equity can be satisfied.’ “
and concluded that:
- “The principle illustrated by this extract is a flexible one and has been applied in a great variety of situations. In the present case the assurance or promise to the plaintiff of an indefinite right of residence in the defendants’ property is the operative equivalent of the assurance or promise to make over part of the land referred to in the extract from Chalmers v Pardoe . The remedies to which the principle gives rise are imposed, as is a constructive trust, in order to satisfy the demands of justice and good conscience. Indeed in some circumstances the appropriate remedy may well be the imposition of a constructive trust. However, in the particular circumstances of the present case the plaintiff’s equity would in my opinion be satisfied by his having an equitable charge …”
23 The term “constructive trust” was considered in Giumelli at 112 where the High Court stated:
- “The term ‘constructive trust’ is used in various senses when identifying a remedy provided by a court of equity. The trust institution usually involves both the holding of property by the trustee and a personal liability to account in a suit for breach of trust for the discharge of the trustee’s duties. However, some constructive trusts create or recognise no proprietary interest. Rather there is the imposition of a personal liability to account in the same manner as that of an express trustee. An example of a constructive trust in this sense is the imposition of personal liability upon one ‘who dishonestly procures or assists in a breach of trust or fiduciary obligation’ Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 at 392 by a trustee or other fiduciary.”
24 In New South Wales, real estate is ordinarily sold by signing and exchanging contracts in the form approved by the Real Estate Institute and Law Society. Even if the parties agree in writing that real estate is sold for a specified price, there is the presumption that no binding contract exists until ‘contracts’ are exchanged: Smith v Lush (1952) 2 SR (NSW) 207 at 212; 69 WN (NSW) 220 at 222; Allen v Carbone (1975) 132 CLR 528 at 533. The highest the defendants could put their case is that they agreed to enter into a contract of sale in relation to the property but never did so. The lease expired on 7 September 1993. Two Notices to Quit have been served. The defendants do not have any legal interest in the land. On 26 June 2000, the defendants’ solicitor (Exhibit 1) discussed a contract of sale and specifically warned the defendants that they needed to secure their tenure at the property until the purchase was completed. The defendants’ case that they made improvements on the land may give rise to a cross-claim seeking equitable relief. As previously stated, the defendants have no legal interest in the land and the plaintiff is entitled to possession.
25 When the plaintiff served the original statement of claim, the second defendant advised the process server that there was no other people in occupation of the property. The second defendant stated that currently there is only himself, his mother, father, brother and five employees on the property. It appears that the defendants and their family and employees have been on the property since these proceedings commenced. I make the orders sought in paragraphs 1 and 2 of the plaintiff’s notice of motion filed 19 May 2003.
26 The defendants have requested three months to move off the property because the heavy machinery requires escort on the roads. There is other plant and equipment which has to be moved in an orderly manner. The plaintiff submitted that one month to six weeks is adequate time. I do not agree. In the exercise of my discretion, I accede to the defendants’ request and allow three months before a writ of possession may issue. I also grant leave to the defendants to file and serve a cross-claim within 28 days. It may be that the defendants can seek the assistance of the Barristers and Solicitors Pro Bono schemes.
27 Costs are discretionary. Normally costs follow the event. The defendants are to pay the plaintiff’s costs of the motion as agreed or assessed.
28 The orders I make are:
1. I make the orders sought in paragraphs 1 and 2 of the plaintiff’s notice of motion filed 19 May 2003.
2. The plaintiff has leave to issue a writ of possession, such writ not to issue before 11 November 2003.
4. The defendants are to pay the plaintiff’s costs as agreed or assessed.3. The defendants are to file and serve any cross-claim within 28 days.
Last Modified: 08/20/2003
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