Evans v Athedim (Vic) Pty Ltd - [1999] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 12314 of 1991

STEVEN BRUCE EVANS

Appellant

ATHEDIM (VIC) PTY. LTD.

Respondent

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JUDGES:	TADGELL, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23 and 24 February 1999
DATE OF JUDGMENT:	29 September 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 154

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LANDLORD AND TENANT – Agreement not under seal to lease premises already let – Forfeiture of existing lease by re-entry – Sub-lease or licence of part of premises thereby determined – Equitable lease by virtue of agreement neither concurrent nor reversionary – Whether repudiation of agreement – Whether affirmation.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G.A. Hardy	Findlay Arthur Phillips
For the Respondent	Mr M. Clarke	Dennis Raftis & Associates

TADGELL, J. A.:

I agree with Batt, J.A.

BATT, J.A.:

This appeal concerns a kiosk forming part of the premises which the respondent on or about 18 January 1991 agreed in writing to lease to the appellant, Steven Evans, and his partner, Peter Beare. The appellant contends that the respondent did not, and indeed put it out of its power to, deliver possession of the kiosk to Beare and himself and that he was therefore entitled to abandon possession of the entire premises, as he did in the early hours of 6 March 1991, and so bring the agreement to an end. He therefore seeks on appeal, first, an order that the judgment in favour of the respondent (which, based on a finding of repudiation of the agreement by the appellant and Beare and the acceptance thereof by the respondent, was for arrears of rent, damages and a declaration that the respondent has a charge over the appellant’s house property) be set aside and, secondly, an order that there be judgment for him on his counterclaim for damages, limited (as I understand it) to damages for breach of the agreement, to be assessed.

At the trial before a judge of the Trial Division the appellant unsuccessfully raised numerous other issues which were not pursued on appeal. But in support of his contention concerning the kiosk the appellant deployed on appeal a large number of arguments, some overlapping, some in the alternative, if not inconsistent, from which it was difficult to distil the essence of his case. It would seem that at trial the appellant’s case on the kiosk was of the same nature. For his Honour, who pointed out that the appellant put forward a number of inconsistent versions as to the kiosk, was moved to remark that the complaint about the kiosk was “somewhat vague and confusing” and to speak of “the confusion in the way the [kiosk] issue was presented at trial,” though admittedly that confusion was compounded by the appellant’s evidence, rejected by the judge, that the kiosk was situated on a certain lot rather than (as his Honour found) on the lot adjoining it. There was a further difficulty on appeal. Although the appellant’s outline of argument ran to 11…

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 Evans v Athedim (Vic) Pty Ltd

Details

AGLC: Evans v Athedim (Vic) Pty Ltd [1999] VSCA 154
Case: [1999] VSCA 154
Decision Date: 29 September 1999

CaseChat Overview and Summary

Evans, the original tenant of a property, brought an action against Athedim, the property's owner, following the termination of their lease. The dispute arose when Athedim terminated the lease and subsequently entered into an agreement to lease the same premises to another party. Evans argued that the second agreement should not affect his lease and sought relief against Athedim. The case was heard in the Supreme Court of Victoria.

The central legal issue in the case was whether the second agreement between Athedim and the subsequent tenant constituted a repudiation of the original lease agreement with Evans. Additionally, the court had to determine if the termination of the original lease and the creation of a new lease agreement constituted an affirmation of the original lease's termination. The court also needed to decide whether the second agreement could be considered an equitable lease, given that it was neither concurrent nor reversionary.

The court found that the second agreement did not constitute a repudiation of the original lease agreement with Evans. Instead, it held that the termination of the original lease and the creation of a new lease agreement constituted an affirmation of the original lease's termination. Furthermore, the court concluded that the second agreement could not be considered an equitable lease since it was neither concurrent nor reversionary. Consequently, the court ruled in favour of Athedim, determining that the original lease had been validly terminated and that the second agreement did not infringe upon Evans' rights as the original tenant.

As a result of the court's decision, Evans' action against Athedim was dismissed. The court found that Athedim was not liable for any damages or other relief sought by Evans. The ruling effectively confirmed that the second agreement between Athedim and the subsequent tenant was valid, and that the termination of the original lease with Evans was lawful.

Orders