Gamble v Wilson - [2011] NSWDC 240

District Court

New South Wales

Medium Neutral Citation: Gamble v Wilson [2011] NSWDC 240
Hearing dates: 7, 8, 9, 10, 11 February and 17 March 2011
Decision date: 03 June 2011
Before: Letherbarrow SC DCJ
Decision:
1.Judgment for the plaintiffs against the defendants on the claim in the sum of $24,438 inclusive of pre-judgment interest.
2.Judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim in the sum of $32,001.52 inclusive of pre-judgment interest.
3.The defendants/cross-claimants are entitled to set off against the judgment sum set out in Order 1 the judgment sum referred to in Order 2 such that the plaintiffs/cross-defendants are to pay to the defendants/cross-claimants the sum of $7,563.52.
4.Each party to bear their own costs of the proceedings including the motion dated 10 August 2009 but excluding those referred to in the order made by his Honour Judge Elkaim of 27 October 2010.

Catchwords: CONTRACT -landlord and tenant - lease of premises for hardware business - claim in conversion by lessees consequent upon lessors terminating lease and retaking possession - whether lease validly terminated - whether lessor had right to retake possession - cross-claim for breach of lease by lessors - assessment of damages for conversion and breach of lease
Cases Cited: Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204, Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244, Barclays Mercantile Business Finance Ltd & Anor v Sibec Developments Ltd & Ors [1993] 2 ALL ER 195, Petre v Henier (1701) 12 Mod Rep 519, Upton & Anor v TVW Enterprises Ltd & Anor (1985) 7 ATPR 40-611, Craig v Marsh (1935) 35 SR (NSW) 323, Clayton v Le Roy (1911) 2 KB 1031, Crowther v Australian Guarantee Corporation Ltd (1985) Aust Torts Reports 80 - 709, Solloway v McLoughlin [1938] A.C. 247, Trailways Transport Ltd v Thomas [1996] 2 NZLR 443, Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd et al [2003] VSC 291, Furness v Adrium Industries Pty Ltd (1993) Aust Torts Reports 81 - 245, Livingstone v Rawyards Coal Co (1880) 5 App. Cas. 25, Butler & Ors v The Egg and Egg Pulping Marketing Board (1966) 114 CLR 185, Kuwait Airways v Iraq Airways [2002] UKHL 19; [2002] 2 A.C. 883, Whitmore v Black (1884) 13 M.&W. 507, Whitehouse v Atkinson (1828) 3 C.&P. 344, Payzu v Saunders [1919] 2 KB 581 CA, Saunders v Williams [2003] B.L.R. 125 CA
Texts Cited: Clerk, J.F. and Lindsell, W.H.B., Clerk & Lindsell on Torts (Sweet and Maxwell, 16th ed, 1989), Clerk, J.F. and Lindsell, W.H.B., Clerk & Lindsell on Torts (Sweet and Maxwell, 20th ed, 2010), McGregor, H, McGregor on Damages (Sweet and Maxwell, 18th ed, 2009)
Category: Principal judgment
Parties: Godfrey Gamble (First Plaintiff)
Karen Gamble (Second Plaintiff)
Robert Leo Wilson (First Defendant)
Claude Stanley Wilson (Second Defendant)
Representation: First and Second Plaintiffs:
Mr J Birman/Mr T Young
First and Second Defendants:
Mr S Gardiner/Ms C O'Mahony
First and…

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: [2011] NSWDC 240
Decision Date: 03 June 2011

CaseChat Overview and Summary

The case of Gamble v Wilson involves a dispute between the plaintiffs, who were the lessees of a property, and the defendants, the lessors. The plaintiffs operated a hardware business on the leased premises. The dispute arose when the defendants terminated the lease and reclaimed possession of the property. The plaintiffs subsequently brought a claim for conversion against the defendants, alleging that the termination and reclamation were wrongful. The defendants, in turn, filed a cross-claim for breach of lease by the plaintiffs. The case was heard in the Supreme Court of New South Wales.

The central legal issues in the case were whether the lease was validly terminated and whether the lessors had the right to retake possession of the property. Additionally, the court needed to determine the amount of damages for the alleged conversion and breach of lease. The plaintiffs argued that the defendants had no right to terminate the lease and reclaim possession without a valid reason, and they sought compensation for the loss of their business assets and goodwill. The defendants contended that the lease was properly terminated due to breaches by the plaintiffs and that the plaintiffs were liable for damages due to their own breaches of the lease terms.

The court found that the lease was validly terminated and that the defendants had the right to retake possession of the property. The court determined that the plaintiffs' claim for conversion was unfounded, as the defendants' actions were justified under the circumstances. However, the court also found that the plaintiffs were entitled to damages for the breach of lease by the defendants. The amount of damages for the conversion claim was assessed at $24,438, while the damages for the breach of lease were calculated at $32,001.52. The court ordered that the defendants were entitled to set off the amount of the cross-claim against the judgment sum for the conversion claim, resulting in a net payment of $7,563.52 from the plaintiffs to the defendants.

The final orders of the court included a judgment for the plaintiffs against the defendants on the conversion claim for $24,438, a judgment for the defendants against the plaintiffs on the breach of lease cross-claim for $32,001.52, and a set-off of the cross-claim amount against the conversion claim judgment, resulting in the plaintiffs owing the defendants $7,563.52. Each party was ordered to bear their own costs of the proceedings, except for specific costs outlined in a previous order made by Judge Elkaim.

Orders

Orders of the court

1.Judgment for the plaintiffs against the defendants on the claim in the sum of $24,438 inclusive of pre-judgment interest.

2.Judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim in the sum of $32,001.52 inclusive of pre-judgment interest.

3.The defendants/cross-claimants are entitled to set off against the judgment sum set out in Order 1 the judgment sum referred to in Order 2 such that the plaintiffs/cross-defendants are to pay to the defendants/cross-claimants the sum of $7,563.52.

4.Each party to bear their own costs of the proceedings including the motion dated 10 August 2009 but excluding those referred to in the order made by his Honour Judge Elkaim of 27 October 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gamble v Wilson [2011] NSWDC 240
Hearing dates:	7, 8, 9, 10, 11 February and 17 March 2011
Decision date:	03 June 2011
Before:	Letherbarrow SC DCJ
Decision:	1.Judgment for the plaintiffs against the defendants on the claim in the sum of $24,438 inclusive of pre-judgment interest. 2.Judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim in the sum of $32,001.52 inclusive of pre-judgment interest. 3.The defendants/cross-claimants are entitled to set off against the judgment sum set out in Order 1 the judgment sum referred to in Order 2 such that the plaintiffs/cross-defendants are to pay to the defendants/cross-claimants the sum of $7,563.52. 4.Each party to bear their own costs of the proceedings including the motion dated 10 August 2009 but excluding those referred to in the order made by his Honour Judge Elkaim of 27 October 2010.
Catchwords:	CONTRACT -landlord and tenant - lease of premises for hardware business - claim in conversion by lessees consequent upon lessors terminating lease and retaking possession - whether lease validly terminated - whether lessor had right to retake possession - cross-claim for breach of lease by lessors - assessment of damages for conversion and breach of lease
Cases Cited:	Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204, Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244, Barclays Mercantile Business Finance Ltd & Anor v Sibec Developments Ltd & Ors [1993] 2 ALL ER 195, Petre v Henier (1701) 12 Mod Rep 519, Upton & Anor v TVW Enterprises Ltd & Anor (1985) 7 ATPR 40-611, Craig v Marsh (1935) 35 SR (NSW) 323, Clayton v Le Roy (1911) 2 KB 1031, Crowther v Australian Guarantee Corporation Ltd (1985) Aust Torts Reports 80 - 709, Solloway v McLoughlin [1938] A.C. 247, Trailways Transport Ltd v Thomas [1996] 2 NZLR 443, Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd et al [2003] VSC 291, Furness v Adrium Industries Pty Ltd (1993) Aust Torts Reports 81 - 245, Livingstone v Rawyards Coal Co (1880) 5 App. Cas. 25, Butler & Ors v The Egg and Egg Pulping Marketing Board (1966) 114 CLR 185, Kuwait Airways v Iraq Airways [2002] UKHL 19; [2002] 2 A.C. 883, Whitmore v Black (1884) 13 M.&W. 507, Whitehouse v Atkinson (1828) 3 C.&P. 344, Payzu v Saunders [1919] 2 KB 581 CA, Saunders v Williams [2003] B.L.R. 125 CA
Texts Cited:	Clerk, J.F. and Lindsell, W.H.B., Clerk & Lindsell on Torts (Sweet and Maxwell, 16th ed, 1989), Clerk, J.F. and Lindsell, W.H.B., Clerk & Lindsell on Torts (Sweet and Maxwell, 20th ed, 2010), McGregor, H, McGregor on Damages (Sweet and Maxwell, 18th ed, 2009)
Category:	Principal judgment
Parties:	Godfrey Gamble (First Plaintiff) Karen Gamble (Second Plaintiff) Robert Leo Wilson (First Defendant) Claude Stanley Wilson (Second Defendant)
Representation:	First and Second Plaintiffs: Mr J Birman/Mr T Young First and Second Defendants: Mr S Gardiner/Ms C O'Mahony First and…