Dockside Holdings Pty Ltd v Rakio Pty Ltd No. Scgrg-99-207

[2000] SASC 251

DOCKSIDE HOLDINGS PTY LTD v RAKIO PTY LTD
[2000] SASC 251

Full Court:  Prior, Williams and Gray JJ

1. On 30 March 2000 a judge of this Court made a declaration with respect to rent payable under a lease.  The effect of His Honour’s ruling was to dismiss the plaintiff’s application for a declaration as sought in the first three paragraphs to the plaintiff’s summons.  On 12 April, the plaintiff’s counsel sought to have His Honour deal with the prayers for relief contained in the other two paragraphs of its summons upon the ground that the trial judge’s formulation of a formula for market review meant that there was some $80000 - $90000 owing to the plaintiffs.  The trial judge extended time within which to appeal from the declaration he made on 30 March and invited counsel to put forward written submissions on the issues sought to be answered by the remaining two paragraphs in the prayer for relief.  In the course of doing that, there was reference to the possibility that evidence might be required to properly answer the matters raised in the second and third paragraphs of the summons.  The matter was called on again before the judge on 26 June.  The plaintiff’s counsel claimed that the matters raised in par 2 and par 3 of the amended summons were “properly matters of construction”, with no oral evidence being of any assistance in determining what the meaning of the agreement was in relation to the matters raised in par 2 and par 3 of the summons.  The trial judge questioned that assertion, suggesting that evidence might be required with respect to whether a valuation was obtained in accordance with the contract.  The plaintiff claimed that there was agreed evidence with respect to that issue.  The trial judge referred to Vass v Permanent Trustee[1], and said that, in his opinion, there were a number facts not agreed.  His Honour said:

   “The issue of recovery of overpayment does not arise for consideration unless the plaintiff proves that it was paid more rent than was properly payable.  Evidence in the form of a valuation will be required to establish that fact.  While the plaintiff will seek to rely upon a valuation it obtained during the course of the dispute, the defendant disputes the accuracy of that valuation and denies that it was obtained in accordance with the provisions of the lease.  In my view further evidence will be required with respect to the obtaining of the valuation before that issue can be determined.”

   [1] (1999) 169 ALR 399

2. His Honour also observed that the defendant had previously sought to join the original landlord who could be affected by any determination of the issues in par 2 and par 3.  His Honour concluded that, in all the circumstances, it was not appropriate for the Court to answer by way of declaration the issues raised in the remaining two paragraphs of the summons.  He referred to the defendant’s submission that the issues raised in the last two paragraphs “should be properly agreed and not resolved by way of declaration based on hypothetical facts.”.  He therefore refused to grant the relief sought absent further evidence or agreement as to facts and granted leave to amend the summons for the purpose of pleading a claim “in the usual way”.  The plaintiff was also given leave to amend the summons and His Honour indicated that he was inclined to invoke his power to order the parties to mediate.  The plaintiff then sought leave to appeal, submitting that if its construction of the lease were correct the matter would be disposed of without the need for further evidence.  His Honour refused leave to appeal.

3. In support of the application for leave, pursued before a Full Court in accordance with Supreme Court Rule 94, the plaintiff said that the judge refused the relief sought in par 2 and par 3 and an application by the plaintiff for leave to appeal.  In our opinion, the transcript of proceedings indicates that His Honour refused to proceed to consider the declarations sought in par 2 and par 3 of the summons absent agreed facts or the hearing of evidence.  We think that leave to appeal should be refused.  The refusal to grant declaratory relief absent agreed facts was a proper exercise of the discretion of the trial judge which does not warrant the consideration of the Full Court.  No error has been shown on the part of the single judge with respect to an interlocutory ruling on a matter of mere practice and procedure.  No point of substance arises.  Leave to appeal is therefore refused.