Giglia v Letizia
[2004] WASC 178
GIGLIA -v- LETIZIA [2004] WASC 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 178 | |
| Case No: | CIV:1771/2002 | 19 JULY 2004 | |
| Coram: | ACTING MASTER CHAPMAN | 18/08/04 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Relief against forfeiture granted Interlocutory injunction granted | ||
| B | |||
| PDF Version |
| Parties: | VINCENT GIGLIA ANTHONY LETIZIA |
Catchwords: | Interlocutory injunction Serious question to be tried Avoidance of injustice Relief against forfeiture |
Legislation: | Property Law Act 1969, s 81(2) |
Case References: | American Cyanamid v Ethicon Ltd [1975] AC 396 Cayne v Global Natural Resources plc [1984] 1 All ER 225 Rose v Spicer (1911) 2 KB 234 Bentley v Nelson [1963] WAR 89 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Walton Stores (Interstate) v Maher (1988) 164 CLR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANTHONY LETIZIA
Defendant
Catchwords:
Interlocutory injunction - Serious question to be tried - Avoidance of injustice - Relief against forfeiture
Legislation:
Property Law Act 1969, s 81(2)
Result:
Relief against forfeiture granted
Interlocutory injunction granted
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr K Yin
Defendant : Mr R E Keen
Solicitors:
Plaintiff : Joe Scurria & Associates
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
American Cyanamid v Ethicon Ltd [1975] AC 396
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Rose v Spicer (1911) 2 KB 234
Case(s) also cited:
Bentley v Nelson [1963] WAR 89
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Walton Stores (Interstate) v Maher (1988) 164 CLR 387
(Page 3)
1 ACTING MASTER CHAPMAN: The defendant, by way of chamber summons filed on 21 April 2004, seeks relief against forfeiture and for an interlocutory injunction until the action is heard and determined. The application is made pursuant to s 81(2) of the Property Law Act 1969 and in equity. An interim injunction was granted on 7 May 2004 and extended until today.
2 In the action the plaintiff pleads in the statement of claim that the defendant occupied the land in question by virtue of a sub-sub-lease which sub-sub-lease has been varied. It is pleaded the sub-sub-lease expired on 15 April 2000 and the plaintiff claims certain rents.
3 The defendant admits that a sub-sub-lease was entered into but alleges there was an agreement that the plaintiff would obtain for the defendant an option to purchase the land from the owner or, in the alternative, the plaintiff represented to the defendant that he would do so. The defendant denies there are any rents owing and seeks a set off and counterclaims. The plaintiff has filed the reply and defence to the counterclaim.
4 On 19 April 2004 the plaintiff sought to enter the land and exclude the defendant by reason of an alleged termination of the sub-sub-lease for non-payment of the rent. It is not now in dispute that the defendant has paid the rent.
5 The plaintiff claims the sub-sub-lease expired on 15 April 2000 and since that time the defendant was a monthly tenant. The plaintiff has given the defendant a notice that the monthly tenancy would be terminated on 31 May 2004.
6 The defendant accepts that although he has now paid the rent, he has not paid any costs of re--entry. He has undertaken to pay all properly and reasonably incurred costs of re-entry if they were properly claimed. The plaintiff accepts he has not made a claim for the costs of re-entry.
7 The defendant argues that the Court should exercise the discretion as to the relief against forfeiture in favour of the defendant as the rent has been paid, an undertaking has been made to pay all properly and reasonably incurred costs of re-entry and there is nothing in the conduct of the defendant which would prevent the exercise of discretion in his favour. It is said there are issues of fact between the parties that cannot be easily resolved on affidavit evidence and there is a serious issue to be tried.
(Page 4)
8 The plaintiff submits that the parties are almost diametrically apart on almost every disputed issue of fact and on an application of this nature the issues of fact are not to be tried, but rather there should be a determination of whether or not there are in fact triable issues.
9 The plaintiff's primary position is that there is no lease to which the question of relief from forfeiture can be exercised. It is submitted the lease came to an end of 15 April 2000. On the other hand, the defendant argues there is a continuing lease upon which the relief against forfeiture can be exercised. The defendant argues there is a lease whether it is an equitable lease arising by way of representation or the original lease with an option having been exercised. In any event, it is argued there is a triable issue.
10 The plaintiff argues that the correspondence which passed between the parties is quite inconsistent with the position of the defendant and in reality, there is no serious issue to be tried. Whilst it is true that it could be argued the position of the defendant is inconsistent with the correspondence, I am of the view that when the whole of the evidence is considered, serious issues are raised such as the terms of the sub-sub-lease whether arising from agreement, representation or estoppel which cannot easily be resolved on affidavit evidence and should be tried.
11 The plaintiff further argues that the defendant should not obtain his relief as he does not come to Court with clean hands. The basis for this is that the defendant withheld rent and entered into an arrangement with Mr Shaddick which he failed to disclose at the initial hearing of this application. The plaintiff concedes that there is some dispute on the materials before the Court as to whether or not there was in fact an assignment or sub-lease to Mr Shaddick.
12 It is not in dispute that the defendant withheld rent. He says he paid it into a trust account because he had concerns about the validity of the plaintiff's own lease and the possibility that Mr Paskos could make a claim against him for his use and occupation of the land. I accept that this was not a case where the defendant simply refused to pay the rent. Whether or not his reasons for paying the moneys into a trust account are held to be sound legally, I do not consider his action should disentitle him to the relief he now seeks.
13 As to the relationship the defendant had with Mr Shaddick, the defendant contends this could not be a sub-lease as the arrangement did not confer exclusive possession of part of the premises on Mr Shaddick.
(Page 5)
- It is argued that the defendant was not prohibited by the sub-sub-lease from granting a licence to Mr Shaddick.
14 The plaintiff relies on Bentley v Nelson [1963] WAR 89 and submits that where the defendant is seeking relief from the Court in its equitable jurisdiction, he needs to be completely open with the Court. The defendant argues this case is distinguishable from that of Bentley. It is submitted that if the defendant did commit some breach of the sub-sub-lease because of the arrangements entered into with Mr Shaddick, that breach has been remedied.
15 On the evidence before me it is far from clear what the true arrangement was between the defendant and Mr Shaddick. Whatever the arrangement, this ceased in October 2003 well before the plaintiff sought to enter the land and the defendant filed this application. In the circumstances I do not consider it should disentitle the defendant to the relief sought.
16 I agree with the observation of the learned authors of Brooking and Chernov, Tenancy in Law and Practice Victoria, 2nd ed, where they state:
"[246] As has been said earlier, the court's discretion to grant relief against forfeiture for non-payment of rent is very wide. It usually exercises its discretion in favour of the tenant where the arrears of rent (and costs) are paid and there is no reason to believe that the tenant will not meet his future obligations to pay rent. The attitude of the court is that relief against forfeiture for non-payment of rent should be refused on account of breaches of other covenants only in the most exceptional circumstances: …"
- And further at par 248 where they state:
"[248] It has been mentioned earlier that equity provided relief from forfeiture where such action was based on breach of a covenant to pay rent. Equity did not, however, as a general rule, give relief where the lessor re-entered as a result of a breach of other covenants. Section 146(2) of the Property Law Act 1958 now gives the court jurisdiction to grant relief against such forfeiture."
(Page 6)
18 In Rose v Spicer (1911) 2 KB 234 at 241, Cozens Hardy MR, said:
"…In short, subject only to the maxim de minimis, the applicant must come into court with clean hands, and ought not to be relieved if he avows an intention to continue or to repeat the breach of covenant."
19 In Hayman v Rose [1912] AC 623, Earl Loreburn LC said at 631:
"I desire in the first instance to point out that the discretion given by the section is very wide. The court is to consider all the circumstances and the conduct of the parties. Now it seems to me that when the Act is so expressed to provide a wide discretion, meaning, no doubt, to prevent one man from forfeiting what in fair dealing belongs to someone else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not advisable to lay down any rigid rules for guiding that discretion."
20 Having considered all the facts in this matter, I am satisfied the defendant has remedied the breach so far as the payment of rent is concerned and has given an undertaking regarding the costs of re-entry. Further, I have no reason to believe he will not meet his future obligation to pay rent. On what is before me, I do not consider the behaviour of the defendant should disentitle him to the relief against forfeiture.
21 I will turn now to consider the question of the interlocutory injunction. In Cayne v Global Natural Resources plc [1984] 1 All ER 225, May LJ said at 237:
"Further, in the Cyanamid case there was a serious question to be tried between the parties, which could only be resolved by a trial. It was clearly contemplated that there would be a trial. The application for the interlocutory injunction was merely a holding operation pending that contemplated trial. To support that assertion, I need only refer to the well-known passage in the Cyanamid case [1975] 1 All ER 504 at 510, [1975] AC 396 at 408 where, in stating the guidelines based on the adequacy of damages as a remedy, Lord Diplock specifically directed attention to the possible result of a postulated trial, first one way and then the other. It is only thereafter, if damages after a trial are thought to be inadequate, that one is then enjoined to look at what is described as the 'balance of convenience'. That is the phrase which, of course, is always used in this type of
(Page 7)
- application. It is, if I may say so, a useful shorthand, but in truth, and as Lord Diplock himself made clear in the NWL case, the balance that one is seeking to make is more fundamental, more weighty, than mere 'convenience'. I think that it is quite clear from both cases that, although the phrase may well be substantially less elegant, the 'balance of the risk of doing an injustice' better describes the process involved. Again, I need only refer to a very brief passage from the speech of Lord Diplock in the NWL case [1979] 3 All ER 614 at 625, [1979] 1 WLR 1294 at 1306."
22 In the matter before me, I am of the view there is a serious question to be tried and the interlocutory injunction is merely a holding operation pending the trial. I accept that there is no evidence that the plaintiff will be prejudiced if the injunction is granted. If the injunction is not granted, given the plaintiff has declined to give any undertaking, there may be future attempts to remove the defendant from the premises which would have a serious impact upon his business.
23 In my view, the balance would favour the continuation of the interlocutory injunction until this action is determined. Should the factors appear to be evenly balanced, I consider prudence would lean to preserving the status quo: see American Cyanamid v Ethicon Ltd [1975] AC 396 at 409. This is particularly so in view of the disruption to the defendant's business, should he be removed from the land.
24 Again, I am not persuaded that any of the actions of the defendant would disentitle him to this relief and consider the injunction should continue until this action is heard and determined.
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