Dattner v Wharton - [2011] VSC 533

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 00637

NICHOLAS RICHARD DATTNER	Plaintiff
v
STEPHEN LYNNE WHARTON	Defendant

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JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2011
DATE OF JUDGMENT:	21 October 2011
CASE MAY BE CITED AS:	Dattner v Wharton
MEDIUM NEUTRAL CITATION:	[2011] VSC 533	Revised 28 November 2011

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PRACTICE AND PROCEDURE – Plaintiff’s application for summary judgement – plaintiff entered into an agreement for the sale of land to the defendant – plaintiff granted the defendant licence to occupy land – licence extended to settlement upon the execution of contract of sale – defendant terminated contract – plaintiff served notice of default – parties agree contract terminated – parties subsequently engaged in further negotiations – defendant continued to pay rates and body corporate fees for the land – negotiations failed – plaintiff alleges licence terminated upon termination of contract – tenancy at will – whether notice advising of summary judgment proceedings terminates tenancy at will – whether defence has no real prospect of success – Civil Procedure Act 2010, ss 61, 63-64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Hopper	Emma Crean
For the Defendant	In person

HIS HONOUR:

The plaintiff filed a summons for summary judgment dated 25 May 2011. The relief sought was that there be judgment against the defendant for possession of the land described in the statement of claim on the writ filed 15 February 2011.

The statement of claim attached to the writ relevantly sought possession of the land referred to therein and mense profits for the period between termination of the licence referred to therein and the plaintiff regaining possession of the land. The plaintiff and the defendant had been treating with each other for the sale of Unit 16 and accessory Unit 46, 26 Wellington Street, Collingwood in the State of Victoria, being the land more particularly in Certificates of Title Volume 10359 Folio 774 and Volume 10359 Folio 802 (“the land”).

The statement of claim pleads that pursuant to an agreement dated 31 August 2010, the plaintiff granted to the defendant a licence to occupy the land until 31 August 2010 or until settlement under any contract of sale of the land.[1]
[1]Paragraph 2.

A contract of sale was entered into by the plaintiff and the defendant. That contract was dated 19 September 2010.[2]
[2]Paragraph 4.

By paragraph 6 of the statement of claim it pleaded that at or around the execution of the contract of sale the plaintiff and the defendant agreed to vary the licence by extending its term until settlement of the contract of sale.

The defendant’s solicitor purported to terminate the contract by notice dated 29 October 2010. The plaintiff complained about such notice and served its own notice of default dated 12 November 2010. It is common ground that each of the plaintiff and the defendant treated the contract of sale as terminated.

Paragraph 16 of the statement…

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.

Continue reading Dattner v Wharton

Details

AGLC: Dattner v Wharton [2011] VSC 533
Case: [2011] VSC 533
Decision Date: 21 October 2011

CaseChat Overview and Summary

The plaintiff in Dattner v Wharton sought summary judgment against the defendant, who had entered into an agreement to purchase land from the plaintiff. The plaintiff had granted the defendant a licence to occupy the land, which was to continue until settlement. When the defendant terminated the contract, the plaintiff served a notice of default, and the parties agreed to terminate the contract. However, the defendant continued to pay rates and body corporate fees for the land and further negotiations took place, which ultimately failed. The plaintiff alleged that the licence had terminated upon the termination of the contract and sought to terminate the defendant’s tenancy at will. The defendant argued that the licence continued beyond the termination of the contract.

The primary legal issue before the court was whether the notice advising of summary judgment proceedings terminated the defendant’s tenancy at will. The court also had to consider whether the defendant had any real prospect of success in defending the case. The court examined the terms of the licence, the agreement for the sale of land, and relevant provisions of the Civil Procedure Act 2010. The court found that the licence was intended to continue until settlement and that the notice of default did not terminate the licence. The court also found that the defendant had a real prospect of success in arguing that the licence continued beyond the termination of the contract.

The court held that the notice of summary judgment proceedings did not terminate the defendant’s tenancy at will. The court found that the licence was intended to continue until settlement and that the defendant had a real prospect of success in arguing that the licence continued beyond the termination of the contract. The court held that the plaintiff’s application for summary judgment was inappropriate. The court dismissed the plaintiff’s application and ordered the plaintiff to pay the defendant’s costs.

Orders