Educational and Computing Software Pty Ltd v Kumar - [2008] NSWSC 66

CITATION: Educational and Computing Software Pty Ltd v Kumar [2008] NSWSC 66

HEARING DATE(S): 4 February 2008

JUDGMENT DATE :
7 February 2008

JUDGMENT OF: Harrison J

DECISION: 1. Dismiss the amended statement of claim with costs.
2. Declare that the cross defendant is indebted to the cross claimant in the sum of $312,700.07.
3. Order the cross defendant to pay the cross claimant's costs.

CATCHWORDS: LICENCE TO OCCUPY PREMISES – claim for possession of premises – defence based on Residential Tenancies Act s 71 – meaning of "residential tenancy agreement" – where licensee let into possession in exchange for agreement to forebear to sue licensor for moneys alleged to be owing to her – whether forebearance to sue within expression "for value" in definition – proceedings dismissed

LEGISLATION CITED: Limitation Act 1969
Property (Relationships) Act 1984
Residential Tenancies Act 1987
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Ashmore v British Coal Corp [1990] 2 QB 338
Commonwealth v Verwayen (1990) 170 CLR 394
Maryska v Mason [2007] NSWSC 1222
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590

PARTIES: Educational and Computing Software Pty Ltd (Plaintiff/Cross Defendant)
Pam Kumar (Defendant/Cross Claimant)

FILE NUMBER(S): SC 13399 of 2006

COUNSEL: M Broun QC (Plaintiff/Cross Defendant)
A Canceri (Defendant/Cross Claimant)

SOLICITORS: Broun Abrahams Burreket (Plaintiff/Cross Defendant)
Byles Canceri Lawyers (Defendant/Cross Claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

HARRISON J

7 February 2008

13399 of 2006 Educational and Computing Software Pty Ltd v Pam Kumar
JUDGMENT

1 By its amended statement of claim filed 18 July 2006 the plaintiff seeks an order for possession of premises at 38/43 Northam Avenue, Bankstown ("the premises"). The plaintiff is the registered proprietor of the premises and the defendant went into occupation of them in about January 1998 in circumstances described below.

2 Benedict Bede McNamara ("Mr McNamara") is a director of the plaintiff. Mr McNamara and the defendant established the company in about 1989. Each became a director of the plaintiff and a co-signatory on its cheque account.

3 In about 1993 the defendant secured employment with Interpro CRI Pty Ltd ("Interpro") as a senior recruitment consultant. The defendant recruited people for jobs in the information technology industry. In about 1994 the defendant established a company called Softlink Solutions Pty Ltd ("Softlink"). On 9 March 1994 Softlink entered into a consultancy agreement with Interpro pursuant to which the defendant's personal services were offered to Interpro through Softlink. The defendant thereafter no longer worked as an employee of Interpro but was employed by Softlink, which contracted with Interpro for the provision of the defendant's services.

4 Between April 1994 and May 1995 the defendant made numerous payments to the plaintiff so that it could purchase software and hardware products and paid various bills and accounts at the request of the plaintiff so that it could continue its business. The…

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.

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Details

Case: [2008] NSWSC 66
Decision Date: 7 February 2008

CaseChat Overview and Summary

Educational and Computing Software Pty Ltd sought an order for possession of premises from Kumar. Kumar argued that the court had no jurisdiction to hear the case due to the applicability of section 71 of the Residential Tenancies Act. The case before the court was whether the agreement between the parties constituted a "residential tenancy agreement" as defined in the Act. The court had to determine if the agreement was for value and if the forebearance to sue could be considered as "value" under the definition of "residential tenancy agreement".

The court considered the definition of "residential tenancy agreement" which required an agreement for the occupation of premises for value. The court examined the nature of the agreement between the parties, which involved the licensor letting the licensee into possession in exchange for the licensee's agreement to forebear to sue the licensor for moneys alleged to be owing to the licensee. The court found that the agreement was not a residential tenancy agreement as it did not involve the occupation of premises for value in the traditional sense. The forebearance to sue was not considered to be "value" within the meaning of the definition of "residential tenancy agreement".

The court held that the agreement between the parties did not constitute a residential tenancy agreement, and therefore, the court had jurisdiction to hear the case. The court dismissed the proceedings against Kumar, allowing the appeal by Educational and Computing Software Pty Ltd. The court found that the agreement was not a residential tenancy agreement and that the court had jurisdiction to hear the case. The court dismissed the proceedings against Kumar, allowing the appeal by Educational and Computing Software Pty Ltd.

Orders