Duncan v Big Country Developments Pty Ltd

Case [2016] NSWCA 163

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Duncan v Big Country Developments Pty Ltd [2016] NSWCA 163
Hearing dates:9 June 2016
Decision date: 19 July 2016
Before: Basten JA at [1];
Ward JA at [2];
Leeming JA at [3]
Decision:

Appeal dismissed with costs.

Catchwords:

LANDLORD AND TENANT – long term lease – primary judge found tenant abandoned premises and rejected claim that landlord had repudiated lease – whether landlord wrongfully retook possession – whether landlord repudiated lease – whether landlord mitigated loss

  PRACTICE – overseas witness – required to attend for cross-examination – late application for witness to give evidence by audio-visual link – no appellable error in refusing application
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Cases Cited: Big Country Developments Pty Ltd v Peter Griffiths [2015] NSWSC 414
Big Country Developments Pty Ltd v Peter Griffiths (No 2) [2015] NSWSC 436
Big Country Developments Pty Ltd v Peter Griffiths (No 3) [2015] NSWSC 1182
Gnych v Polish Club Ltd [2015] HCA 23; 255 CLR 414
Howard v Pickford Tool Co Ltd [1951] 1 KB 417
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Konica Business Machines Australia Pty Ltd v Tizine Pty Ltd (1992) 26 NSWLR 687
McCleod Nominees Pty Ltd v Tony Sadler Pty Ltd (unreported, Supreme Court of Western Australia, 7 August 1995)
McDonald v Denny Lascelles Ltd (1933) 48 CLR 457
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293
Category:Principal judgment
Parties: Adrian Duncan (First Appellant)
Justin Fox (Second Appellant)
Big Country Developments Pty Ltd (Respondent)
Representation:

Counsel:
B Coles QC, J Baird (Appellants)
J Horowitz, L Robb Vujcic (Respondent)

  Solicitors:
Smith Leonard Fahey Lawyers (Appellants)
& Legal (Respondent)
File Number(s):2015/291159
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division – Commercial List
Citation:
[2015] NSWSC 414; [2015] NSWSC 436; [2015] NSWSC 1182
Date of Decision:
13 April 2015; 15 April 2015; 21 August 2015
Before:
Kunc J
File Number(s):
2011/404546

Judgment

  1. BASTEN JA: I agree with Leeming JA.

  2. WARD JA: I have had the opportunity of reading in advance the reasons of Leeming JA with which I agree. I also agree with the orders his Honour proposes.

  3. LEEMING JA:

Factual background

  1. The respondent to this appeal, Big Country Developments Pty Ltd, is the registered owner of land at Mulgoa Road, Penrith in western Sydney, on which was erected a free-standing building, purpose-built as a restaurant. Big Country’s sole director was Mr Peter Hesky. Big Country granted a registered lease of the land to Chilis (Penrith) Pty Ltd (Chilis Penrith) for a term of 12 years commencing 17 February 2004. The initial annual rent was $220,000, increasing by a minimum of 4 per cent each year, payable by equal monthly instalments in advance. The lessee was required to provide an unconditional…

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AGLC
Duncan v Big Country Developments Pty Ltd [2016] NSWCA 163
Case
[2016] NSWCA 163
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a landlord, Duncan, and a tenant, Big Country Developments Pty Ltd, regarding a long-term lease. The primary judge had found that the tenant had abandoned the premises and rejected the tenant's claim that the landlord had repudiated the lease. The tenant appealed this decision, arguing that the landlord had wrongfully retaken possession and had itself repudiated the lease. The tenant also contended that the landlord had failed to mitigate its loss.

The Court of Appeal was required to determine whether the primary judge erred in finding that the tenant had abandoned the premises and in rejecting the tenant's claim of repudiation by the landlord. Further, the court had to consider whether the landlord's actions constituted a wrongful retaking of possession and a repudiation of the lease, and whether the landlord had adequately mitigated its losses. A separate issue on appeal related to the primary judge's refusal of a late application for an overseas witness to give evidence via audio-visual link, with the tenant arguing this constituted an appellable error.

The Court of Appeal upheld the primary judge's findings. It reasoned that the evidence supported the conclusion that the tenant had abandoned the premises, thereby entitling the landlord to retake possession. The court found no basis to conclude that the landlord had repudiated the lease or wrongfully retaken possession. Furthermore, the court determined that the primary judge had not made an appellable error in refusing the late application for the overseas witness to give evidence by audio-visual link, as it was a discretionary decision that had been properly exercised. The court also found that the landlord had taken reasonable steps to mitigate its loss.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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