Harlap Nominees Pty Ltd as trustee for the Harlap No 2 Family Trust v Povey
[2022] WADC 113
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HARLAP NOMINEES PTY LTD AS TRUSTEE FOR THE HARLAP NO 2 FAMILY TRUST -v- POVEY [2022] WADC 113
CORAM: RUSSELL DCJ
HEARD: 22 JUNE 2022
DELIVERED : 16 DECEMBER 2022
FILE NO/S: CIV 1735 of 2021
BETWEEN: HARLAP NOMINEES PTY LTD AS TRUSTEE FOR THE HARLAP NO 2 FAMILY TRUST
Plaintiff
AND
ROSS WILLIAM POVEY
First Defendant
SALLY IRENE POVEY
Second Defendant
Catchwords:
Practice and procedure - Appeal from deputy registrar's decision dismissing plaintiff's application for summary judgment - Application for extension of time to file and serve notice of appeal - Summary judgment application by plaintiff - Application for leave to apply for summary judgment - Whether Commercial Tenancies (COVID-19) Act 2020 (WA) operates to prohibit termination of monthly tenancy - Turns on own facts
Legislation:
Commercial Tenancies (COVID-19 Response) Act 2020 (WA), s 3, s 3(b)(i), s 8, s 9, s 25
Commercial Tenancies (COVID-19 Response) Regulations (WA), reg 2B
District Court Rules 2005 (WA), r 15(2), r 15(6)
Rules of the Supreme Court 1971 (WA), O 14 r 1, O 14 r 3, O 14 r 4
Result:
Time for filing and serving notice of appeal extended
Plaintiff has leave to apply for summary judgment
Plaintiff's summary judgment application allowed in part
Defendants have leave to defend balance of plaintiff's claim
Representation:
Counsel:
| Plaintiff | : | Mr P G Donovan |
| First Defendant | : | Mr K A Dundo |
| Second Defendant | : | Mr K A Dundo |
Solicitors:
| Plaintiff | : | MDS Legal |
| First Defendant | : | KD Legal (Perth) |
| Second Defendant | : | KD Legal (Perth) |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Barrymores Pty Ltd v Harris Scarfe Ltd (Administrators Appointed) (Receivers & Managers Appointed) [2001] WASC 210, (2001) 25 WAR 187
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe (No 2) (1992) 8 WAR 96
Johnson v Hallam [2015] WASC 149
Kamath v Allight Sykes, Landsdale [2019] WADC 98
Kezic v St John of God Health Care Inc [2015] WASCA 220
Knights Capital Group Ltd v Bajada & Associates Pty Ltd [2016] WASC 69
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Oakside Group Pty Ltd and Genovesi [2021] WASAT 55
Simonsen v Legge [2010] WASCA 238
Singh v Varinder Kaur (t/a Varinder & Jatinder Corporation) (1985) 61 ALR 720
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Spark v Rogers [No 3] [2017] WADC 4
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Webster v Lampard (1993) 177 CLR 598
Westpac Banking Corporation v Anderson [2017] WASC 106
RUSSELL DCJ:
Introduction
This is an appeal from a decision of Deputy Registrar Hewitt made on 13 January 2022, dismissing the plaintiff's application for summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC).
The plaintiff, Harlap Nominees Pty Ltd as Trustee for the Harlap No 2 Family Trust, claims payment of $109,131 together with interest and costs from the first and second defendants, Ross William Povey and Sally Irene Povey, for unpaid rent, outgoings and painting charges under the terms of a commercial lease.
The lease was terminated on 26 May 2020 when the defendants vacated the leased premises following the plaintiff giving notice of termination on 21 April 2020.
By chamber summons filed on 8 October 2021, the plaintiff applied for summary judgment on the basis there is no defence to the claim.
The defendants opposed the application for summary judgment, contending that the Commercial Tenancies (COVID-19 Response) Act 2020 (WA) (COVID-19 Response Act) prohibited the plaintiff from terminating the lease for failure to pay rent or any amount payable under a small commercial lease. The defendants also claim to have suffered loss because the lease was terminated.
On 13 January 2022, the deputy registrar dismissed the plaintiff's application for summary judgment, essentially on the basis that he considered there were questions to be tried as to whether:
1.the termination of the lease was motivated by the arrears of rent and, therefore, unlawful; and
2.the defendants might have a counterclaim that could be raised as an equitable set off against the plaintiff's claim.
The defendants also contend that there was no damage to be made good by them and they are not liable for the painting and other charges raised after termination of the lease.
The plaintiff filed a notice of appeal from the deputy registrar's decision on 4 March 2022 (notice of appeal).
For the reasons that follow:
1.The time for filing and serving the notice of appeal is extended to 14 March 2022.
2.The appeal is allowed in part.
3.The plaintiff has leave to apply for summary judgment.
4.The plaintiff's application for summary judgment is allowed in part, and judgment will be entered for the plaintiff in the amount of $58,911.29 together with interest on that sum at the rate of 10.08%.
5.The defendants have leave to defend the balance of the plaintiff's claim in relation to the amount claimed to be owing in respect of invoice number 2801159 dated 14 August 2019 and in respect of painting charges, rent and outgoings for the period following termination and completion of the painting works.
The nature of the appeal
The appeal is by way of a new hearing of the matter that was before the deputy registrar.[1] That is, to hear the plaintiff's application for leave to bring the summary judgment application, and the application for summary judgment as if those applications were before me for the first time.[2]
[1] District Court Rules 2005 (WA) (DCR) r 15(6).
[2] Briggs v Glentham Pty Ltd (1992) 8 WAR 339, 349 ‑ 350; Hunt v Knabe (No 2) (1992) 8 WAR 96, 109 ‑ 110; Hazart Pty Ltd v Rademaker(1993) 11 WAR 26, 28; Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128[8]; Kezic v St John of God Health Care Inc[2015] WASCA 220 [42].
There is no requirement to show that the deputy registrar made an error in the decision under appeal.[3] As such, it is not necessary for me to review the deputy registrar's decision or determine whether there was any error of fact or law made by the deputy registrar.
[3] Hazart Pty Ltd v Rademaker [28]; Spark v Rogers [No 3] [2017] WADC 4 [10]; Kamath v Allight Sykes, Landsdale[2019] WADC 98 [25].
The orders sought in the appeal
The plaintiff sought the following orders in the appeal:[4]
1.the time within which the plaintiff may file and serve the notice of appeal be extended to 14 March 2022;
2.the plaintiff have leave to bring the application for summary judgment pursuant to Order 14 Rule 1 of the Rules of the Supreme Court, 1971 (WA); and
3.judgment be entered for the plaintiff as against the first and second defendants and the first and second defendants pay damages to the plaintiff of:
(a)$110,682.00 (Sum Due), being the amount the first and second defendant have failed and or refused to pay, owing under the Original Lease dated 25 May 2011 (Original Lease);
(b)interest on the Sum Due pursuant to the rate specified by clause 16.7 of the Original Lease; and
(c)costs on a solicitor/client indemnity basis pursuant to clause 16.4 of the Original Lease, to be taxed if not agreed.
The amount claimed of $110,682 was varied to $109,131 as noted in [35] and [36] of these reasons.
[4] Notice of appeal.
The issues to be determined
The issues to be determined in this appeal are, in broad terms:
1.Should the time for filing the notice of appeal be extended?
2.Should the plaintiff have leave to apply for summary judgment?
3.Should the plaintiff have summary judgment?
The issues to be determined in the summary judgment application are, in broad terms:
1.Has the plaintiff established a prima facie entitlement to judgment?
2.Do the defendants have an arguable defence?
3.Is there some other reason why there should be a trial of the action?
Extension of time for filing notice of appeal
The notice of appeal was filed on 10 March 2022. The time for commencing an appeal from a decision of a registrar is within 10 days after the date of the decision, or such longer period as a judge may allow.[5]
[5] DCR r 15(2).
I refer to and respectfully adopt the summary of the authorities and relevant matters the court is to consider in exercising its discretion to extend the time for commencing an appeal in the Court of Appeal's decision in Simonsen v Legge.[6]
[6] Simonsen v Legge [2010] WASCA 238 [8] (Pullin, Newnes & Murphy JJA).
Having regard to those matters, I am satisfied that in the circumstances of this case, I should exercise my discretion to extend the time for filing the notice of appeal. The delay in filing the notice of appeal of approximately six weeks, is not a significant delay. It was not intentional and there is nothing before me to indicate the delay has resulted in any prejudice to the defendants. Also, for the reasons I will expand on, the appeal is not without merit.
Leave to apply for summary judgment
The plaintiff seeks leave to apply for summary judgment, having filed its application on 8 October 2021, more than 21 days after the defendants entered their appearance.
The defendants' appearance was entered on 18 June 2021. Any application for summary judgment without leave was required to have been made by 9 July 2021.
The policy rationale for the time limit is to ensure that summary judgment applications are brought promptly, at an early stage of proceedings, before unnecessary expense has been incurred.[7]
[7] Westpac Banking Corporation v Anderson [2017] WASC 106 [38]; Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [48].
Nahum Harlap deposes in his affidavit affirmed on 8 October 2021 that the parties had conferred in an attempt to settle the matter, but those efforts proved fruitless. The parties agreed that the statement of claim be filed by 24 September 2021 and that the plaintiff file any application for leave to apply for summary judgment by 8 October 2021.[8]
[8] Consent orders dated 3 September 2021.
The plaintiff's application for leave to apply for summary judgment was made by that date. It is not opposed. The application for summary judgment was brought at an early stage of the proceedings, before a defence had been filed and any substantive steps taken.
There is nothing before me to suggest any prejudice to the defendants arising from the delay of approximately three months in making the application, particularly in circumstances where there was conferral between the parties to explore potential settlement and agreement to extend the time for a statement of claim to be filed.
Delays in bringing a summary judgment application whilst parties are negotiating to resolve an action should not weigh heavily against the grant of leave to bring an application for summary judgment where negotiations or discussions have been unsuccessful.[9]
[9] Johnson v Hallam [2015] WASC 149 [12].
I am satisfied on the material before me that it is appropriate in the circumstances of this case to exercise my discretion to grant leave to the plaintiff to make its application for summary judgment out of time. Leave is therefore granted.
The plaintiff's application for summary judgment
Principles applicable to summary judgment
There is no dispute about the principles applicable to an application for summary judgment. Relevantly, they may be summarised as follows.
It is well settled that the power to order summary judgment is one that should be exercised with great care and when it is clear that there is no real question to be tried.[10] The court should not decide the issues raised
in a proceeding in a summary way except in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceeding if it went to trial.[11]
[10] SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138[20]; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
[11] Agar v Hyde[2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 275 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] ‑ [55].
Whilst it is for the party seeking summary judgment to establish that there is no real question to be tried, where the requirements of O 14 of the RSC, are met, such that the plaintiff has a prima facie right to an order in the terms sought, the evidentiary onus shifts to the defendant to satisfy the court as to why judgment should not be entered.[12]
[12] Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 30 (Murray J); Singh v Varinder Kaur(t/a Varinder & Jatinder Corporation) (1985) 61 ALR 720, 722.
The defendant must then establish that there is some triable issue either of fact or law, or that they have an arguable defence or that there ought for some other reason be a trial of the matter.[13]
[13] RSC O 14, r 3, RSC O 14, r 4; Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinsden J); Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd, 24 (Murray J); Knights Capital Group Ltd v Bajada & Associates Pty Ltd [2016] WASC 69 [43] (Pritchard J) and the authorities referred to.
An application for summary judgment is to be determined on the basis that the version of the facts put forward by the party opposing the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action.[14] However, the court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. Nor must a court accept a statement in an affidavit that does not have 'sufficient prima facie plausibility to merit further investigation as to its truth'.[15]
[14] Webster v Lampard (1993) 177 CLR 598, 608 (Mason CJ, Deane & Dawson JJ).
[15] Ansearch Ltd v Wavtech Pty Ltd[2006] WASC 184 [28] (Newnes M); Eng Mee Yong v Letchumanan [1980] AC 331, 341.
To demonstrate that they have a bona fide defence, the defendants' affidavit evidence must 'condescend to particulars, stating clearly and precisely what the defence is and what facts are relied upon as supporting it. Bare allegations unsupported by material facts will not be sufficient'.[16]
The evidence relied upon
[16] Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd, 113; Barrymores Pty Ltd v Harris Scarfe Ltd(Administrators Appointed) (Receivers & Managers Appointed) [2001] WASC 210, (2001) 25 WAR 187 [79]; Knights Capital Group Ltd v Bajada & Associates Pty Ltd [43].
The plaintiff relies on the following affidavits in support of the appeal and the plaintiff's application for summary judgment:
1.affidavit of Nahum Harlap, a director of the plaintiff, sworn on 8 October 2021 (Harlap Affidavit);
2.affidavits of Benjamin Clarke, a director of CBRE (C) Pty Ltd, the plaintiff's real estate managing agent, sworn on:
(a)19 November 2021 (First Clarke Affidavit);
(b)8 June 2022 (Second Clarke Affidavit);
(c)21 June 2022 (Third Clarke Affidavit); and
3.affidavit of Paul Donovan, a director of MDS Legal, the plaintiff's lawyers, sworn 8 June 2022 (Donovan Affidavit).
The defendants rely on the following affidavits in opposition to the appeal and the plaintiff's application for summary judgment:
1.affidavit of Ross William Povey sworn on 10 December 2021 (First Povey Affidavit); and
2.affidavit of Ross William Povey sworn on 21 June 2022 (Second Povey Affidavit).
I do not repeat the parties' submissions in detail. I have carefully considered the written submissions filed by each of the parties and the submissions made by counsel during the hearing of the appeal.
The plaintiff's claim
The plaintiff claims payment of $109,131 together with interest and costs from the first and second defendants, which it claims it is entitled to for unpaid rent, outgoings and painting charges payable under the terms of a commercial lease.
The amount claimed differs from the amount claimed in the writ of $110,682, having been reduced by the plaintiff to deduct an amount of $1,551, which had been charged to the defendants in error. The reduction relates to legal fees for the issue of the termination notice, which the plaintiff accepts is not recoverable under the terms of the lease.[17]
[17] Plaintiff's written submissions in support of appeal, filed 19 June 2022 (Plaintiff's appeal submissions), par 22.
The plaintiff's claim and the evidence relied upon in support of the application for summary judgment may be summarised as follows:
1.The plaintiff is the registered proprietor of Lot 338 on Plan 9520, being the whole of the land in Certificate of Title Volume 1651 Folio 593, known as 6 Hazelhurst Street, Kewdale, Western Australia (Property).[18] The Property was previously owned by Zampatti Investments Pty Ltd (Zampatti).[19]
[18] Statement of claim, par 2; Harlap Affidavit, par 4; Annexure NXH3 (Each of the exhibits to the Harlap Affidavit are referred to in the affidavit as NXH, but marked NXF. They are referred to in these reasons as NXH, as referred to in the affidavit.)
[19] Statement of claim, par 4; Harlap Affidavit, par 5; Annexure NXH4.
2.By a lease agreement dated 25 May 2011 between Zampatti and the defendants (Original Lease), Zampatti leased the premises located on the Property (Premises) to the defendants. The term of the Original Lease was for a period of three years commencing on 1 August 2011 with an option to renew for a further period of two years.[20]
[20] Statement of claim, par 5; Harlap Affidavit, pars 6 and 7; Annexure NXH5.
3.Liquidators appointed to Zampatti sold the Property to the plaintiff on or about 5 April 2012.[21]
[21] Statement of claim, par 7; Harlap Affidavit, par 9; Annexure NXH6.
4.In or about July 2014, the plaintiff entered into negotiations with the defendants regarding an extension of the term of the Original Lease.[22] A deed of extension of lease in relation to the Premises was prepared and presented to the defendants. The terms and conditions of the deed of extension of lease were the same as the Original Lease of the Premises except with the plaintiff as lessor.[23] The deed of extension was executed, and the term extended to 31 July 2016.[24]
[22] Harlap Affidavit, par 13.
[23] Harlap Affidavit, par 14; Annexure NXH7.
[24] A copy of the executed Deed of Extension of Lease dated 26 August 2014 is referred to in and attached to the Second Povey Affidavit, par 2, Attachment 'A' (Deed of Extension of Lease).
5.On expiry of the term of the Original Lease and in accordance with cl 3.3 of the Original Lease, the plaintiff consented to the defendants continuing to occupy the Premises beyond the expiration of the term on a monthly tenancy on the same terms and conditions and subject to the same lessee covenants as the Original Lease.[25]
[25] Statement of claim, pars 12 - 13; Harlap Affidavit, par 17.
6.The defendants continued to occupy the Premises as a monthly tenant and pay a monthly rent equal to the last monthly rent payable by the defendants under the Original Lease.[26]
[26] Statement of claim, par 14; Harlap Affidavit, par 19.
7.On or about 21 April 2020, following a period of negotiation between the plaintiff and the defendants, which ultimately broke down, the plaintiff gave the defendants one month's written notice of termination of the monthly tenancy pursuant to cl 3.3(2) of the Original Lease.[27]
[27] Harlap Affidavit, pars 21 - 24; Annexure NXH8; First Clarke Affidavit, pars 8 - 13; Annexures BXC1, BXC2, BXC3.
8.The defendant did not contest or raise any objection to the notice of termination.[28] They vacated the Premises on 26 May 2020.[29]
[28] Harlap Affidavit, par 25; First Clarke Affidavit, par 14.
[29] Harlap Affidavit, par 25; First Clarke Affidavit, par 26.
9.The plaintiff claims that:
(a)at the end of the lease, the defendants were required:
(i)by cl 8.2 of the Original Lease, to repaint all parts of the Premises that had been previously painted before expiration of the extended term of the lease; and
(ii)by cl 11.2 of the Original Lease, to clean and make good the Premises, which the plaintiff claims included painting all internal and external parts of the Premises; and
(b)if the defendants failed to carry out their obligations under cl 11.2, the plaintiff was entitled:
(i)by cl 11.5, to do all necessary work and recover its costs of doing the works from the defendants; and
(ii)by cl 11.6, to be paid an occupation fee by the defendants equal to the rent, outgoings and other money payable under the Original Lease for the period of time between termination and those works being undertaken.
11.The plaintiff engaged contractors, Perrot Painting Pty Ltd, to paint the Premises as the defendants had not complied with their obligations to make good and paint the Premises following termination of the tenancy. The painting works were completed on 24 June 2020.[30]
[30] First Clarke Affidavit, par 28; Second Clarke Affidavit, pars 6 - 8; BJC1.
12.The amount claimed of $109,131 is for the unpaid charges totalling $110,682 set out in the statement issued to the defendants by the plaintiff's agent, CBRE dated 21 July 2020, less $1,551 charged in error on 12 June 2020 for the notice of termination. The amount claimed is made up of arrears of rent pre-dating termination of the tenancy and charges the plaintiff claims it is entitled to under the terms of the lease for the period following the date of termination for painting charges and for rent and outgoings claimed to be payable until the making good obligations had been complied with.[31] The plaintiff claims payment of the following unpaid invoices:
[31] First Clarke Affidavit, pars 31 - 35; Annexure BXC9 and BXC10.
Invoice Date
(Invoice Number)
Charges
Invoice Amount (incl GST where payable)
14 August 2019
(2801159)
Interest on arrears 1 January 2019 to 30 June 2019
$1,931.33
8 November 2019
(2866719)
Cleaning recharges
$869.00
1 March 2020
(2932795)
Rent and outgoings (operating expenses) 1 - 31 March 2020
$19,347.43
1 April 2020
(2949742)
Rent and outgoings (operating expenses) 1 - 30 April 2020
$19,347.43
Invoice Date
(Invoice Number)
Charges
Invoice Amount (incl GST payable)
1 May 2020
(2966764)
Rent and outgoings (operating expenses) 1 - 31 May 2020
$19,347.43[32]
1 June 2020
(2986562)
Rent and outgoings (operating expenses) 1 ‑ 30 June 2020
$19,347.43[33]
27 June 2020
(3014019)
Make good painting charges (Perrott invoice FINV16636)
$32,747.00[34]
1 July 2020
(3002666)
Rent and outgoings (operating expenses) 1 - 30 June 2020
$19,347.43
$132,284.48
Less
15 July 2020
(Credit 3018895)
Credit adjustment note
Rent and outgoings (operating expenses)
25 June - 31 July 2020
- $23,153.48
Total claim
$109,131.00
[32] First Clarke Affidavit; Annexure BXC9 and BXC10, page 45.
[33] First Clarke Affidavit; Annexure BXC9 and BXC10, page 46.
[34] First Clarke Affidavit; Annexure BXC9 and BXC10, page 48.
The plaintiff also claims interest and indemnity costs pursuant to contract under the terms of the Original Lease.
The plaintiff claims interest pursuant to cl 16.7, which provides, in effect that, the rate of interest payable on unpaid rent and other payments due under the lease will be charged at a rate equal to 3% above the rate the plaintiff would be charged by its bank in respect of borrowing by way of an unsecured overdraft for an amount less than $100,000, as certified by the plaintiff from time to time.
The plaintiff relies on the Donovan Affidavit for the applicable rate of interest to be applied, of 10.08%.[35] The defendants take no issue with that rate if the court determines that the terms of the Original Lease apply.[36] Alternatively, the plaintiff claims interest pursuant to s 32 of the Supreme Court Act 1935 (WA) at the rate of 6% per annum.
[35] Donovan Affidavit, par 5, Annexure PGD-2; Transcript of appeal hearing 22 June 2022 (Appeal ts) ts 26 ‑ ts 27.
[36] Appeal ts 60 - ts 6.
The plaintiff provided calculations of the interest claimed on each basis, which were marked for identification as MFI-A (interest calculated at 10.08%), and MFI-B (interest calculated at 6%).
The plaintiff claims indemnity costs pursuant to cl 16.4 of the Original Lease which provides:
Indemnity for Default
The Lessee agrees to indemnity the Lessor against all costs, expenses claims, demands, losses and liabilities arising from any Default of the Lessee including all legal costs charges and expenses for which the Lessor becomes liable in consequence of or in connection with the Lessee's Default, including all costs charges and expenses (including solicitors' costs and surveyors' fees) incurred by the Lessor.
Mr Harlap deposes that he believes there is no defence to the claim.[37]
The defendants' evidence and submissions
[37] Harlap Affidavit, pars 31 - 32.
The defendants oppose the appeal and the plaintiff's application for summary judgment on the basis that they have an arguable defence to the plaintiff's claim, there are disputed issues of fact and there should be a trial of the action. They also claim that they have suffered loss as a result of termination of the tenancy.
I do not repeat all of the submissions made on behalf of the defendants. The defendants' position and the evidence relied upon may be summarised as follows:
1.It is not in dispute that after expiry of the extended term of the Original Lease, the defendants became monthly tenants. Nor do the defendants dispute that their obligations to pay the monthly rent and outgoings continued until termination of the lease.[38]
[38] Appeal ts 51.
2.What is disputed by the defendants is that they are liable for the claimed occupation fee. That is rent and outgoings charged after the date of termination and they ceased to occupy the Premises.[39] They also dispute they are liable to pay the painting charges.[40]
[39] Appeal ts 40 - ts 41, ts 51 - ts 52.
[40] Appeal ts 43 - ts 46, ts 52 - ts 53.
3.It was submitted on behalf of the defendants, in effect, that after the extended term of the lease expired on 31 July 2016, the lease became a common law lease and the defendants were no longer subject to the terms, conditions, covenants or other obligations that applied under the Original Lease.[41]
4.Counsel for the defendants referred to the Deed of Extension of Lease and contended that did not operate to incorporate the terms and conditions of the Original Lease, as submitted on behalf of the plaintiff. As I understood the defendants' submissions, the defendants' primary submission was to the effect that the terms and conditions of the Original Lease were not carried over and did not apply to the monthly tenancy. Relevantly, the terms of the Original Lease relating to painting, making good and payment of an occupation fee did not continue after expiry of the extended term of the Original Lease.
5.The defendants' secondary position is that, if the monthly tenancy remained subject to the terms and conditions of the Original Lease, the defendants had no obligation to make good under cl 11.2(b) as there was no damage to make good, only fair wear and tear, which is excluded.[42]
6.The defendants rely on the First Povey Affidavit and the Second Povey Affidavit. In the First Povey Affidavit, Mr Povey states[43] 'there was no damage, only unfinished maintenance work instigated by the leasing agent'. Four photographs are attached by way of example (attachments A ‑ D).
7.In the Second Povey Affidavit, Mr Povey states:[44]
6.50% of the north side of the exterior of the warehouse was never painted.
7.the premises was vacated in a very clean state and we never damaged the premises. I did notice slight fading on the exterior surfaces of the sides of the warehouse but this is because it is exposed to the sun.
The plaintiff objects to the conclusionary nature of those statements.
[41] Appeal ts 47 - ts 50.
[42] Appeal ts 52 - ts 53.
[43] First Povey Affidavit, par 18.
[44] Second Povey Affidavit, pars 6 - 7.
As to the defendants' counterclaim or equitable set off, it was submitted on behalf of the defendants, in effect that:
1.The defendants were having difficulty paying their rent and had been engaged in rent relief discussions with the plaintiff.
2.The plaintiff was prohibited by the COVID-19 Response Act from terminating the lease for reasons of failure to pay rent or any amount of money payable by the defendants under the lease. The defendants rely on s 9 of the COVID-19 Response Act, which they contend prohibited the plaintiff from terminating a small commercial lease during the emergency period (as defined in the COVID-19 Response Act).
3.The defendants have a claim against the plaintiff for a loss in value of their business because the lease was terminated and they had to move to alternative premises.
4.The defendants rely upon the First Povey Affidavit and the Second Povey Affidavit in relation to the loss said to have been suffered as a result of termination of the lease. However, as is addressed in further detail later in these reasons, there is little, if any, admissible evidence to support such a claim or any equitable set off.
Counsel for the defendants informed the court that, subject to any equitable set off and all credits due having been applied, the defendants did not challenge the invoices for charges that pre-date termination. That is, the invoices issued on behalf of the plaintiff on 9 November 2019, 1 March 2020, 1 April 2020 and 1 May 2020.[45]
[45] Appeal ts 55 - ts 58.
It was also initially submitted on behalf of the defendants that the doctrines of frustration and merger applied. It was submitted that the COVID-19 pandemic was a frustrating event and that the doctrine of merger applied because the plaintiff was claiming interest on two separate bases. However, neither of those bases for contesting liability were fully articulated or pressed by the defendants.[46]
The relevant terms of the monthly tenancy
[46] Appeal ts 53 - ts 54, ts 59 - ts 60.
I make the following findings as to the terms of the monthly tenancy between the plaintiff and the defendants. References to clauses are to clauses of the Original Lease unless stated otherwise.
By the Deed of Extension of Lease between the plaintiff and the defendants, the plaintiff agreed to continue to lease the Premises to the defendants by extending the term of the Original Lease to 31 July 2016 (Extended Term).[47] The terms, conditions, covenants and agreements contained or implied in the Original Lease continued to apply during the Extended Term, with the plaintiff as lessor, and otherwise as provided in the Deed of Extension of Lease.[48]
[47] Deed of Extension of Lease, cl 2 and item 7 of the Schedule.
[48] Deed of Extension of Lease, cl 1(1), cl 1(2), cl 3 and cl 4.
Clause 3.3 provides:
Holding Over
Should the Lessee continue to occupy the Premises beyond the expiration of the Term with the consent of the Lessor, then:
(1)The Lessee will be a monthly tenant and pay a monthly rent equal to the last monthly rent payable by the Lessee under the Lease.
(2)One month's written notice given by either party to the other will be sufficient to end the monthly tenancy.
(3)The monthly tenancy will be subject to all of the Lessee's Covenants and the other terms set out in this Lease.
As such, after the Extended Term expired on 31 July 2016:
1.The defendants were monthly tenants and required to pay a monthly rent equal to the last monthly rent payable under the Original Lease.
2.The plaintiff was entitled to terminate the monthly tenancy by giving one month's written notice to the defendants.
3.The monthly tenancy was subject to all of the Lessee's Covenants (as defined in the Original Lease) and the other terms set out in the Original Lease.
The defendants continued to be liable to meet their obligations to pay the monthly rent, outgoings and other money payable under the Original Lease to the plaintiff.[49]
[49] Original Lease, cl 4 - cl 6.
Relevantly, the defendants' obligations under the following provisions of the Original Lease also continued under the monthly tenancy:
8.2 Lessee to repaint
The Lessee with materials and to standards reasonably approved by the Lessor agrees to repaint all parts of the Premises, both internal and external, that have previously been painted prior to the expiration of the Term or if the Lessee exercises its option to extend the Term for the Further Term, then at the expiration of the Further Term. All repainting must be carried out by a competent and professional painter and using paint approved by the Lessor. The Lessee agrees to immediately paint over any graffiti on the fence or Building.
11.2 Lessee to make good damage
(1)Upon termination of the Lease the Lessee agrees to:
(a)Surrender and deliver up possession of the Premises to the Lessor clean and free from rubbish in good clean substantial and tenantable repair and condition in accordance with all of the Lessee's Covenants including without limitation the Lessee's Covenant to maintain and repair and make good all damage to the Premises resulting from the installation or removal of Lessee's Fixtures to the reasonable satisfaction of the Lessor.
(b)Reinstate the Premises to the condition it was in as at the Commencement date, fair wear and tear excepted, using materials and finishes to the same or similar quality as in the condition of the Premises as to the Commencement Date and to the Lessor's reasonable satisfaction which will include (but is not limited to, the following obligations.
….[The obligations provided in clause 11.2(1)(b)(i) - (xvi), which are not duplicated here, do not expressly include painting.]
(2)The works referred to in clause 11.2(1)(b) must be:
(a)performed by competent tradesmen and with materials of the best quality and to the satisfaction of the Lessor and the Lessee shall make good any damage done to the Premises in the carrying out of the required works. The Lessee must provide to the Lessor reports of the works carried out by the tradesmen if required by the Lessor and must be provided by reputable and competent contractors; and
(b)completed prior to the Lessee delivering up possession of the Premises to the Lessor prior to the Termination Date. To the extent the works are not completed prior to the Termination Date, then clause 11.6 will apply.
(3)In determining the precise extent of the Lessee's obligations under this clause, the Lessor may consider any property condition report prepared and signed by or on behalf of the Lessor and the Lessee (or their predecessors in title) on or about the Commencement Date).
11.5 Lessor may do work which Lessee should have carried out
Without limiting the remedies available to the Lessor if the Lessee fails to remove all the Lessee's Fixtures and other property or otherwise fails to comply with clause 11.2, then the Lessor may do all things necessary to carry out such work. The costs incurred by the Lessor in doing the works is payable by the Lessee to the Lessor on demand. This clause shall survive the termination of this Lease.
11.6 Occupation Fee
Without prejudice to any other rights of the Lessor under this lease, during the period from the Termination Date or expiry or sooner termination of this Lease (including any extension or renewal hereof or period of holding over) until such date as the Lessee has complied with its obligations under clause 11, the Lessee shall pay to the Lessor from time to time immediately upon demand an occupation fee (calculated on a daily basis) at a rate equal to the rate of the aggregate of the Rent, Outgoings and other monies payable immediately prior to the date of expiry or sooner termination of this Lease divided by 365. All other obligations on the part of the Lessee under the Lease (other than the obligation to pay Rent and Outgoings for such period) shall apply, with the necessary changes.
12..GENERAL PROVISIONS AS TO LESSEE'S COVENANTS
….
12.3 Duration of Lessee's Covenants
The Lessee's Covenants apply and have full force at all times during the Term and any holding over by the Lessee and after the Term for as long as may be necessary, in order to give full effect to the Lessee's Covenants.
…
16.4 Indemnity for Default
The Lessee agrees to indemnify the Lessor against all costs, expenses claims, demands, losses and liabilities arising from any Default of the Lessee including all legal costs charges and expenses for which the Lessor becomes liable in consequence of or in connection with the Lessee's Default, including all costs charges and expenses (including solicitors' costs and surveyors' fees) incurred by the Lessor.
…
16.7 Interest on late payment
(1)If any payment of any Lease Money payable by the Lessee to the Lessor under this Lease is not paid on the due date that amount will bear Interest.
(2)Interest is to be computed from the date that the Lease Money becomes due and payable to the date of payment with monthly rests.
(3)Interest accrues from day to day and is payable on demand being made by the Lessor.
Default is defined in cl 1.1 as:
'Default' in relation to the Lessee, means any breach of or non‑compliance with any of the Lessee's Covenants by the Lessee.
Interest is defined in cl 1.1 as:
'Interest' means interest charged on outstanding Lease Money at a rate equal to 3% above the rate which would be charged to the Lessor by the Lessor's bank in respect of borrowing by the Lessor by way of an unsecured overdraft for an amount less than $100,000 as certified by the Lessor from time to time.
Lease Money is defined in cl 1.1. as:
'Lease Money' means all money that may at any time and in any manner become payable under this Lease by the Lessee to the Lessor or to any other person, including without limitation Rent and Outgoings payable by the Lessee under this Lease.
Lessee's Covenants are defined in cl 1.1 as (relevantly):
'Lessee's Covenants' means any of the covenants, obligations and agreements to be observed and performed by the Lessee … under this Lease.
Clause 8.2 of the Original Lease, as set out above requires the defendants to repaint all parts of the Premises, both internal and external, that had previously been painted prior to the expiration of the Extended Term. That is before 31 July 2016. However, there is no evidence before me as to which parts of the Premises had previously been painted before 31 July 2016, from which I can be satisfied if, and to what extent, the defendants are liable for painting under this provision.
The defendants may also be liable for painting as part of their obligations to make good the Premises under cl 11.2, which is in broad terms, as set out above. Though the obligations set out in cl 11.2(1)(b)(i) - (xvi) do not expressly include painting, they are expressly stated not to be exhaustive.
There is insufficient evidence before me to determine on a summary basis whether and the extent to which any painting was required under cl 11.2, and if the plaintiff is entitled to recover the costs of the painting undertaken under cl 11.5, as claimed.
Though little, if any evidence has been adduced by the defendants as to fair wear and tear, this is an application for summary judgment by the plaintiff. It is for the plaintiff to establish it has a prima facie entitlement to judgment. The plaintiff has not done so in relation to the painting charges claimed. There is no evidence of what the condition of the premises was at the Commencement Date (as defined in the Original Lease) against which any assessment may be made as to the need for, and the extent of any painting works to make good.
The plaintiff is entitled under cl 11.6 to recover an occupation fee (calculated as provided in that clause) for the period of time between termination of the monthly tenancy and any make good works being completed. However, before the plaintiff can recover an occupation fee, it must first establish the defendants' liability for any works to make good, relevantly, the painting works.
Has the plaintiff established a prima facie entitlement to judgment?
For the reasons outlined above, I find that the plaintiff has not established a prima facie entitlement to judgment in relation to the amounts claimed for the painting charges and for rent and outgoings claimed for the period after termination.
That is not to say the plaintiff is not entitled to recover those amounts at all. Rather, there is insufficient evidence before the court, at this stage, to ascertain whether those amounts are due and payable by the defendants to the plaintiff.
Further, there is no evidence before the court to ground the claim for payment of invoice number 2801159 dated 14 August 2019 in the amount of $1,931.33 for interest on arrears for the period 1 January 2019 to 30 June 2019.
I am satisfied that the plaintiff has established a prima facie entitlement to judgment in relation to the following unpaid invoices. As I have already noted, this is accepted by the defendants, subject to all credits having been applied and any right of set off the defendant has.
Invoice Date
(Invoice Number)
Charges
Invoice Amount (incl GST where payable)
8 November 2019
(2866719)
Cleaning recharges
$869.00
1 March 2020
(2932795)
Rent and outgoings (operating expenses) 1 - 31 March 2020
$19,347.43
1 April 2020
(2949742)
Rent and outgoings (operating expenses) 1 ‑ 30 April 2020
$19,347.43
1 May 2020
(2966764)
Rent and outgoings (operating expenses) 1 ‑ 31 May 2020
$19,347.43
Total
$58,911.29
There is nothing to suggest there are further credits to be applied against those invoices. I deal with the question of any right of set‑off later in these reasons.
Do the defendants have an arguable defence or is there some other reason why there should be a trial of the action?
The First Povey Affidavit and the Second Povey Affidavit lack particulars. They make bare allegations unsupported by material facts.
They do little, if anything, to support the defendants' contention that they are not liable for painting under cl 11.2 because fair wear and tear is excluded. However, as stated above, it is for the plaintiff to establish it has a prima facie entitlement to judgment. It has not done so in relation to its claim for payment of the painting charges and occupation fee. That is a matter which should be determined at trial.
The same does not apply to the other matters raised by the defendants as potential defences to the plaintiff's claim:
1.The defendants' claim that the plaintiff was prohibited by the COVID-19 Response Act from terminating the lease for reasons of failure to pay rent or money payable by the defendants under the lease (the COVID-19 Response Act 'defence').
2.The defendants claim that they have suffered loss because the lease was terminated (Loss claim).
The COVID-19 Response Act 'defence'
Mr Povey deposes in the First Povey Affidavit to:
1.The defendants being the proprietors of an international wholesale airfreight business, which was established in 1983.[50]
2.The defendants ran that business from the Premises for the last 17 years, since 2011.[51]
3.In March 2020, international borders closed due to the COVID‑19 pandemic. International airlines ceased operating in Perth except for two airlines, which operated on a greatly reduced schedule.[52]
4.The Western Australian border closed on 6 April 2020.[53]
5.The airfreight handled by the defendants' warehouse at the Premises significantly reduced from 151,171 kilograms in April 2019 to 30,788 kilograms in April 2020.[54]
6.In April 2020, the defendants requested rent relief from the leasing agent, but received no direct response and received notice to terminate the lease on 25 April 2020.[55]
[50] First Povey Affidavit, par 1.
[51] First Povey Affidavit, pars 1 - 2.
[52] First Povey Affidavit - par 3.
[53] First Povey Affidavit - par 4.
[54] First Povey Affidavit, pars 5.
[55] First Povey Affidavit, pars 6 - 7.
The defendants contend that the plaintiff was prohibited by the COVID-19 Response Act from terminating the lease for failure to pay rent or any amount of money payable by the defendants under the lease. The defendants rely on s 9 of the COVID-19 Response Act, which they contend prohibits the landlord from terminating a small commercial lease during the emergency period (as defined in the COVID-19 Response Act).
Section 9 of the COVID-19 Response Act provides:
Except in the circumstances (if any) prescribed by regulations for the purposes of this section, a landlord cannot take prohibited action during the emergency period on the grounds of a breach by the tenant of a small commercial lease that occurs during the emergency period if the breach consists of -
(a)a failure to pay rent or any other amount of money payable by the tenant to the landlord under the small commercial lease (including, without limitation, a requirement under the lease to pay all or any of the landlord's operating expenses); or
(b)the land or premises that are the subject of the small commercial lease, or the business carried on there, not being open for business at hours or times specified in the small commercial lease; or
(c)any act or omission of a kind prescribed by regulations for the purposes of this paragraph.
Prohibited action, is defined in s 8 of the COVID-19 Response Act and includes, relevantly, termination of a small commercial lease.
Emergency period is defined in s 3 of the COVID-19 Response Act as:
(a)beginning on 30 March 2020; and
(b)ending on -
(i)a day prescribed by regulations for the purposes of this paragraph; or
(ii)if a day has not been prescribed for the purposes of this paragraph before 29 September 2020 - 29 September 2020;
The emergency period ended on 29 March 2022.[56] It is not in dispute, and I find, that the monthly tenancy was a small commercial lease and was terminated during the emergency period.
[56] COVID-19 Response Act, s 3(b)(i), s 25; Commercial Tenancies (COVID-19 Response) Regulations 2020 reg 2B.
Section 9 prohibits a landlord from, relevantly, terminating a small commercial lease during the emergency period on the grounds of breach by the tenant that occurs during the emergency period if the breach consists of a failure to pay rent, or any other money payable by the tenant under the lease.
The plaintiff accepts that had it terminated the monthly lease because of a failure by the defendants to pay rent and outgoings, that would have been prohibited by the COVID-19 Response Act.[57]
[57] Appeal ts 29.
The plaintiff's position is that that the COVID-19 Response Act has no application because it did not terminate for breach for non‑payment of rent or any amount due under the lease. Rather, the plaintiff terminated the monthly lease by giving one month's notice of termination, which was not a prohibited action.
I accept the plaintiff's submissions to the effect that the COVID-19 Response Act, properly construed, did not import a general prohibition against the termination of small commercial leases during the emergency period. It did not operate so as to prohibit termination of a periodic tenancy by giving notice of termination or for some other legitimate purpose not expressly prohibited by the COVID-19 Response Act. If that had been Parliament's intention, express words to that effect would have been included.
I refer to the State Administrative Tribunal's decision in Oakside Group Pty Ltd and Genovesi,[58] in which the Tribunal held that the COVID-19 Response Act did not operate to prohibit a landlord taking steps in respect of a small commercial lease relating to matters other than those relating to a failure to pay rent or other money payable under the lease. Though the facts of that case differed to those before me, the same rationale applies. It is only actions relating to breaches arising from hardship caused to commercial tenants by the COVID-19 pandemic which the COVID-19 Response Act was to provide protection from and relief for.
[58] Oakside Group Pty Ltd and Genovesi [2021] WASAT 55 (Glancy DCJ, Barton).
That is clear from the words of the COVID-19 Response Act, and also having regard to the purpose of the COVID-19 Response Act, as set out in the explanatory memorandum[59] and second reading speech.[60] That is, to introduce a range of measures to provide for urgent relief for commercial tenants in response to the COVID-19 pandemic. The explanatory memorandum refers to the Bill providing for, amongst other things, a moratorium on termination for certain breaches, a freeze on rent increases, a restriction on penalties for tenants who do not trade or reduce their trading hours; a prohibition on landlords progressing proceedings against a tenant for a breach that occurred after the COVID‑19 restrictions were implemented, but before the new laws come into operation.
[59] Explanatory Memorandum - Commercial Tenancies (COVID-19 Response) Bill 2020.
[60] Western Australia, Second Reading Speech, Legislative Assembly, 16 April 2020, 2,273b - 2298a (Mr J R Quigley, Attorney General).
In addition, the second reading speech referred, amongst other things, to the code of conduct to be introduced to apply in circumstances where a tenant is suffering financial stress or hardship as a result of the COVID‑19 pandemic. It was said that the code would require landlords and tenants to negotiate in good faith and agree to measures for the provision of rent relief proportionate to the losses suffered by a tenant due to a reduction in trade.
There is nothing to indicate that the defendants' lease was terminated because of non‑payment of rent or other money payable under the lease during the emergency period (as defined in the COVID‑19 Response Act). The defendants had become monthly tenants following expiry of the Extended Term on 31 July 2016. Negotiations regarding the terms of a new lease had been ongoing since at least the middle of 2019,[61] before the COVID‑19 pandemic and the emergency period.
[61] First Clarke Affidavit, par 8 – 10.
The termination notice dated 21 April 2020[62] makes no reference to and does not rely on any breach by the defendants. I find that the sole basis for termination was, as stated, to give one month's notice to terminate the monthly tenancy.
[62] First Clarke Affidavit BXC2.
I find that the plaintiff was entitled to terminate the lease on one month's notice and termination of the lease was not a prohibited action as provided by s 9 of the COVID-19 Response Act.
The COVID-19 Response Act 'defence' is no defence to the plaintiff's claim. Nor does it operate as some other reason why there ought to be a trial of the action.
Loss claim
There is no evidence to support the defendants' claim for loss alleged to have been suffered because the lease was terminated, and the defendants had to move to alternative premises.
There is no evidence of any specific loss or that any loss was suffered as a consequence of any breach by, or other act or omission of, the plaintiff entitling the defendants to damages.
In the First Povey Affidavit, Mr Povey states in relation to the 'Loss claim' that:
1.The notice of termination caused the defendants to relinquish their Australian Border Force Bond 77G Licence held since 1988 because Australian Border Force informed the defendants it would take 8 - 12 weeks to relocate the licence.[63]
2.The notice of termination caused the defendants to relinquish their Australian Quarantine Inspection Licence.[64]
3.The sudden termination of the tenancy of the Premises resulted in the loss of licences and the business now has no value and is no longer saleable.[65]
[63] First Povey Affidavit, par 15.
[64] First Povey Affidavit, par 16.
[65] First Povey Affidavit, par 19.
Leaving aside the conclusionary, vague nature and the admissibility of that evidence, there is nothing to support it or the defendants' alleged 'Loss claim'. In any event, it is difficult to see how the loss of the licences referred to could have been caused by termination of a monthly tenancy or any basis upon which the plaintiff can be liable in damages to the defendants in the circumstances. The defendants had been monthly tenants since the expiry of the Extended Term on 31 July 2016 and had, since then, run the risk of their tenancy of the Premises being terminated on one month's notice.
In the Second Povey Affidavit, Mr Povey states, in effect, in relation to the 'Loss claim', amongst other things:
1.Although the effects of the COVID-19 pandemic reduced the import handling at that time, on termination of the lease, the defendants were only able to secure a smaller alternative sublease and cannot handle the same amount of freight that they did at the Premises.[66]
2.Since the lease was terminated and the defendants relocated to the smaller warehouse, the export handling has been more adversely affected because of the lack of storage at the new premises.[67]
3.Approximately 15 years ago, Mr Povey was involved in negotiations 'with Singaporean people who wanted to buy [the defendants'] business' and were willing to buy it for AUD$250,000. He did not want to accept because they wanted him to stay on to train them. Since then, he has grown his customer and client list.[68]
4.He has been informed by his accounts manager and believes that the defendants' turnover in April 2020 was $3 million. At the commencement of the pandemic, that turnover dropped to 20% due to interstate and international border closures.[69]
[66] Second Povey Affidavit, par 3(b).
[67] Second Povey Affidavit, par 3(d).
[68] Second Povey Affidavit, par 4.
[69] Second Povey Affidavit, par 4.
This evidence is also conclusionary and vague in nature and unsupported. It does not, in any event, in my view, give rise to an arguable defence, disclose any real issue to be tried, or ground a claim against the plaintiff capable of giving rise to an equitable set off.
Conclusion and orders
For the reasons outlined, the appeal and the plaintiff's application for summary judgment should be and is allowed in part.
I am satisfied the plaintiff has established a prima facie entitlement to judgment in relation to the following invoices and that judgment should be entered for the plaintiff in the amount of $58,911.29. There is no arguable defence to the plaintiff's claim for payment of those invoices. Nor have the defendants established any arguable equitable set‑off or other reason why there should be a trial in relation to this part of the plaintiff's claim.
Invoice Date
(Invoice Number)
Charges
Invoice Amount (incl GST where payable)
8 November 2019
(2866719)
Cleaning recharges
$869.00
1 March 2020
(2932795)
Rent and outgoings (operating expenses) 1 - 31 March 2020
$19,347.43
1 April 2020
(2949742)
Rent and outgoings (operating expenses) 1 ‑ 30 April 2020
$19,347.43
1 May 2020
(2966764)
Rent and outgoings (operating expenses) 1 ‑ 31 May 2020
$19,347.43
Total
$58,911.29
I am satisfied and find that the plaintiff is entitled to interest on the unpaid amounts at the rate provided in cl 1.1 and cl 16.7 of the Original Lease. The defendants have also confirmed that, if the court finds that interest is payable under the lease, they take no issue with the rate claimed by the plaintiff of 10.08%.
The plaintiff should prepare an updated interest calculation and confer with the defendants with a view to agreeing the amount of interest payable to the date of judgment.
Subject to hearing from the parties as to the amount of interest payable on the judgment sum and as to the final form of orders, I propose to make orders in the following terms:
1.The time for filing and serving the notice of appeal is extended to 14 March 2022.
2.The appeal is allowed in part.
3.The plaintiff has leave to apply for summary judgment.
4.The plaintiff's application for summary judgment is allowed in part and judgment will be entered for the plaintiff in the amount of $58,911.29 together with interest on that sum at the rate of 10.08%.
5.The defendants have leave to defend the balance of the plaintiff's claim in relation to the amount claimed to be owing in respect of invoice number 2801159 dated 14 August 2019 and in respect of painting charges, rent and outgoings for the period following termination and completion of the painting works.
I will hear from the parties in relation to costs of the appeal and of the application for summary judgment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LDB
Associate to Judge Russell
16 DECEMBER 2022
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