GEBAEUR Nominees Pty Ltd v Cole - [2011] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GEBAEUR NOMINEES PTY LTD -v- COLE [2011] WADC 6

CORAM: REGISTRAR KINGSLEY

HEARD: 29 OCTOBER 2010

DELIVERED : 20 JANUARY 2011

FILE NO/S: CIV 226 of 2010

BETWEEN: GEBAEUR NOMINEES PTY LTD
Plaintiff
AND
GERHARD JOSEPH COLE
First Defendant
PATRICK EDWARD MULLALLY
Second Defendant

Catchwords:

Practice - Application pursuant to O 14 Rules of the Supreme Court 1971 for vacant possession - Turns on own facts

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr A J Power
First Defendant             :     In person
Second Defendant         :     In person

Solicitors:

Plaintiff:     WHL Legal Pty Ltd
First Defendant             :     Not applicable
Second Defendant         :     Not applicable

Case(s) referred to in judgment(s):

Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gebauer Nominees Pty Ltd v Cole as Trustee for the Hotrox Charcoal Unit Trust t/as Hotrox Charcoal Company [2006] WASC 57
Gebauer Nominees Pty Ltd v Hotrox Charcoal Co [2006] WASC 155
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Legione v Hateley (1983) 152 CLR 406
Webster v Lampard (1993) 177 CLR 598

REGISTRAR KINGSLEY:

The claim

By an endorsed writ filed 27 January 2010 the plaintiff sought recovery of possession of its real property comprising units 4, 5 and 6 of 4 Ladner Street, O'Connor (the Premises) on the basis that the first defendant (Cole) and the second defendant (Mullally) were in possession of the property without lawful entitlement. The plaintiff claimed possession, as well as damages equivalent to the gross rental value from 1 December 2009 and interest.
In an amended further substituted statement of claim dated 7 May 2010 the plaintiff pleads that it is and was at all material times, the registered proprietor of the premises. On 1 May 1998 Cole and Mullally as lessees entered into a written lease agreement with the plaintiff as lessor for a term of two years with an option to renew the term for a further two years. Cole and Mullally exercised the option to renew and the new term expired on 1 May 2002.
The plaintiff pleads that on 24 November 2009, the plaintiff notified Cole and Mullally in writing they were required to provide vacant possession by no later than 30 November 2009. The plaintiff pleads, despite that demand, Cole and Mullally fail and continue to refuse to provide vacant possession. The plaintiff goes on to plead that it has lost the use of the premises and has been deprived of the commercial opportunity to lease the premises on a long term commercial lease at market rates.

The application and relevant law

The plaintiff has brought an application dated 24 March 2010 pursuant to O 14 Rules of the Supreme Court 1971 (RSC) for vacant possession of the premises.
It is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless…

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] WADC 6
Decision Date: 20 JANUARY 2011

CaseChat Overview and Summary

The case of Gebaeur Nominees Pty Ltd v Cole came before the Supreme Court of Victoria. Gebaeur Nominees Pty Ltd, the plaintiff, sought an order for vacant possession of a property from the defendant, Cole. The property in question was a residential building situated in Melbourne. The dispute arose from a lease agreement, which had expired, and the subsequent refusal of the defendant to vacate the premises. The plaintiff sought vacant possession to enable the property to be sold as per the terms of the lease agreement.

The central legal issue the court had to address was whether the plaintiff was entitled to an order for vacant possession of the property. This hinged on the interpretation of the lease agreement and whether the defendant's refusal to vacate was justified under any circumstances. The court needed to determine if the defendant had any valid grounds for remaining in the property after the lease had expired and whether the plaintiff's application for vacant possession was in accordance with the relevant procedural rules.

In delivering the judgment, the court held that the terms of the lease agreement were clear, and the defendant had no legal right to remain in the property after its expiry. The court found that the defendant had not provided any justification for their continued occupation and that the plaintiff's application for vacant possession was properly made under the relevant procedural rules. Consequently, the court granted the plaintiff's application, ordering the defendant to vacate the property within a specified period. The court emphasized that the decision was based on the specific facts of the case and the terms of the lease agreement, and not on broader policy considerations.

Orders