Fox v Toll Properties Pty Ltd - [2007] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4373 of 2004

FRANCES CLAIRE FOX (who sues as the administratrix ad colligendum bona of the estate of the late Thomas John Beresford)	Plaintiff
v
TOLL PROPERTIES PTY LTD & ORS	Defendants

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	19-23 February 2007
DATE OF JUDGMENT:	11 May 2007
CASE MAY BE CITED AS:	Fox v Toll Properties Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 138

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Landlord and tenant – Lease – Tenant selling business and granting licence to occupy to purchaser – Overholding at expiration – Whether equitable assignment of lease to purchaser occupying the premises – Monthly tenancy implied – Notice determining tenancy – Whether vacant possession given – Subsequent use of premises – Whether liable for double rent under Landlord and Tenant Act 1958, s 10 – Liable to pay commercial rate for use of part of premises.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P J Cosgrave SC	Armstrong Ross
For the First, Eighth and Ninth Defendants	Mr W F Lally QC and Mr B G Ross	Clayton Utz
For the Second to Seventh Defendants	Mrs S L Marks	Mills Oakley

HIS HONOUR:

The starting point in this case is a lease (“the lease”) dated 1 March 1996 whereby Thomas John Beresford leased to A R Neal Transport Pty Ltd (“ARN Transport”) the premises at 9-12 Sims Street, Footscray for a period of five years commencing on 1 March 1996 to 28 February 2001 at the rental specified therein and with a single option of a further five years. I will refer to this as the plaintiff’s property; it is also referred to as 61-75 Sims Street, Footscray. The property comprised an office and warehouse and a rear yard surfaced with bitumen. The net leasable area of the office and warehouse was 4,731m² and the rear yard was 4,836.25m². The permitted use was “office and transport warehouse”. The lease included a guarantee of the lessee’s obligations by six named persons who are the second to seventh defendants in the proceeding.

The next step is that by an agreement dated 19 January 2001 ARN Transport and three associated companies (“the ARN Transport Group”) sold their assets and business (of transport, warehousing and logistics) to Toll Transport Pty Ltd (“Toll Transport”), completion to be on 1 February 2001 at which time, among other things, the vendor shall in respect of the licensed premises specified in Schedule 15, license such property to the purchaser with effect from completion, the licence fee to be an amount equal to the rent paid by the vendor as tenant under any lease relating to the property, and the purchaser to reimburse the vendor for all outgoings relating to the property monthly in arrears. Schedule 15 included the plaintiff’s property as to which it was stated that the licensee was Toll Transport for a term from the completion date to…

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 Fox v Toll Properties Pty Ltd

Details

AGLC: Fox v Toll Properties Pty Ltd [2007] VSC 138
Case: [2007] VSC 138
Decision Date: 11 May 2007

CaseChat Overview and Summary

In Fox v Toll Properties Pty Ltd, the plaintiff, Mr Fox, sought a declaration that he was no longer liable for rent on premises in Dandenong South, which he had sold to another party. The defendant, Toll Properties, claimed that Mr Fox was still liable for the rent and additional charges under the relevant statute. The dispute was heard in the Supreme Court of Victoria. Mr Fox argued that the sale of his business included an equitable assignment of the lease to the purchaser, which continued on a month-to-month basis after the initial lease expired. He also contended that he had given the defendant vacant possession of the premises and therefore was not liable for double rent. The defendant, on the other hand, maintained that Mr Fox remained liable for the rent and any additional charges, including commercial rates for the portion of the premises used by Mr Fox.

The court was required to determine whether the lease had been equitably assigned to the purchaser, resulting in a monthly tenancy after the original lease expired. Additionally, the court needed to decide whether Mr Fox had given vacant possession of the premises, thereby relieving him of liability for double rent. The court also had to consider whether Mr Fox was liable for commercial rates for the part of the premises he continued to use after the lease expired.

The court found that the lease had indeed been equitably assigned to the purchaser, leading to a monthly tenancy after the original lease period. The court held that Mr Fox had provided vacant possession of the premises and thus was not liable for double rent. However, the court also ruled that Mr Fox was liable for commercial rates for the portion of the premises he continued to use after the lease expired. This decision was based on the principle that Mr Fox's continued use of the premises constituted a separate tenancy for the portion he occupied, which was subject to commercial rates.

The final orders of the court declared that Mr Fox was no longer liable for rent on the premises, except for commercial rates for the portion he continued to use. The court also ordered that Mr Fox was not liable for double rent under the relevant statute.

Orders