JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HASSELL -v- YATES [2021] WASC 389
CORAM: SMITH J
HEARD: 12 & 13 AUGUST 2021
DELIVERED : 11 NOVEMBER 2021
FILE NO/S: CIV 1686 of 2020
BETWEEN: MARGERY ANNE HASSELL
ANTHONY WOLLASTON BOUCHER HASSELL
Plaintiffs
AND
LEONIE ANNE YATES
ALEXANDER SASHA TUFEKCIC
Defendants
LEONIE ANNE YATES
ALEXANDER SASHA TUFEKCIC
Plaintiff by counterclaim
MARGERY ANNE HASSELL
ANTHONY WOLLASTON BOUCHER HASSELL
Defendant by counterclaim
Catchwords:
Contract - Sterling New Life Lease scheme - Exclusive Management Authority for Residential Premises agreement - Residential Tenancy Agreement
Contract - Whether Residential Tenancy Agreement varied or whether an agreement entered into to enter into a new residential tenancy agreement
Contract - Whether Payment Direction Deed incorporated into the terms of the Residential Tenancy Agreement
Residential Tenancies Act 1987 (WA) - Effect of s 27A and s 82 and reg 10AA(a) of the Residential Tenancies Regulations 1989 (WA) requiring prescribed form of lease in Form of Part A, Part B (standard terms) and Part C - Effect of standard term cl 3 prevails over the terms of the Payment Direction Deed
Estoppel by conduct or representation - Promissory estoppel - Not satisfied defendants entered into Sterling New Life Lease in reliance on representations made or assumptions induced for or on behalf of the plaintiffs
Legislation:
Residential Tenancies Act 1987 (WA) s 27A , s 27B, s 82
Residential Tenancies Regulations 1989 (WA), reg 10AA, reg 18
Result:
Judgment for the plaintiffs
Counterclaim dismissed
Category: B
Representation:
Counsel:
| Plaintiffs | : | M Blandford |
| Defendants | : | In Person |
| Plaintiff by counterclaim | : | In Person |
| Defendant by counterclaim | : | M Blandford |
Solicitors:
| Plaintiffs | : | Taylor Smart |
| Defendants | : | In Person |
| Plaintiff by counterclaim | : | In Person |
| Defendant by counterclaim | : | Taylor Smart |
Cases referred to in decision:
Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1
Australian Securities and Investments Commission v Theta Asset Management Ltd [2020] FCA 1894
Awap Sgt 26 Investment Ltd v CN 2000 Holdings Ltd [2020] WASCA 74
Bembridge v G-K-R Karate Australia Pty Ltd [1998] WASCA 15
Chou v Awap Sgt 26 Investments Ltd [No 3] [2018] WASC 383
Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd [2005] SASC 400; (2005) 93 SASR 179
Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98
Hudson v Arap 1 (NSW) Pty Ltd [2015] NSWCA 126; (2015) 90 NSWLR 477
Leonie's Travel Pty Ltd v International Air Transport Association [2009] FCA 280; (2009) 255 ALR 89
Litigation Capital Partners Llp Pte Ltd (Registration No 200922518m) v Acn 117 641 004 Pty Ltd (In Liquidation) (formerly known as Vale Cash Management Fund Pty Ltd) [2021] WASC 161
Murphy Toenies v Family Holdings Pty Ltd as trustee for the Conway Family Trust [2019] WASC 423
National Gallery of Australia v Douglas [1999] ACTSC 79
Pagnan SpA v Tradax OceanTransportation SA [1987] 3 All ER 565
Polsky v S & A Services Ltd…
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- AGLC
- Hassell v Yates [2021] WASC 389
- Case
- [2021] WASC 389
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the defendants' argument that the lump sum payment satisfied all future rent obligations under the agreement was valid. The court needed to examine the express terms of the Sterling New Life Lease and the Residential Tenancy Agreement, as well as the Payment Direction Deed, to determine whether the defendants' interpretation of the agreement was correct. The court also needed to consider the principle that a declaration should not be made if it will produce no foreseeable consequences for the parties.
The court found that the defendants' argument had no prospect of success. The express terms of the Sterling New Life Lease, in particular the Rent clause in Part A of the Residential Tenancy Agreement, expressly provided for payments of $360 per week payable weekly. The Payment Direction Deed also expressly required that the lump sum less the Application Fee was to be invested in units in the Sterling Income Trust, from which distribution and redemption payments were to be used for the payment of rent. Clauses 2.4 and 2.5 of the Payment Direction Deed required Sterling Corporate Services to pay rent on behalf of the defendants to the plaintiffs as it fell due. The court held that the defendants were required to make weekly rent payments to the plaintiffs under the agreement.
The court dismissed the defendants' claim for a declaration that they were not required to make any further rent payments to the plaintiffs. The court held that the defendants' argument that the lump sum payment satisfied all future rent obligations under the agreement was not supported by the express terms of the agreement and was therefore invalid. The court further held that any declaration to the effect sought by the plaintiffs would simply be a bare declaration without any current foreseeable consequences, and that such a declaration should not be made.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The difficulty with this argument is that Sterling Corporate Services has not been wound up, nor is there any evidence before the court that it will be or that its winding up is imminent. In these circumstances, any declaration to the effect sought by the plaintiffs would simply be a bare declaration without any current foreseeable consequences. Justice Hill recently summarised the applicable legal principles, which make it clear that in such circumstances a bare declaration should not be made. In Litigation Capital Partners Llp Pte Ltd (Registration No 200922518m) v Acn 117 641 004 Pty Ltd (In Liquidation) (formerly known as Vale Cash Management Fund Pty Ltd) her Honour said:[84][84] Litigation Capital Partners Llp Pte Ltd (Registration No 200922518m) v Acn 117 641 004 Pty Ltd (In Liquidation) (formerly known as Vale Cash Management Fund Pty Ltd) [2021] WASC 161 [225] - [227] (footnotes omitted).A declaration is a formal statement by the court which pronounces on a legal state of affairs; it is not an order which is capable of enforcement. However, as was noted by the Full Court of the South Australian Supreme Court in Macks v Viscariello: [D]eclarations have legal consequences. They operate in law either as a res judicata or an issue estoppel. Further, declarations may take effect as a proprietary remedy - for example, a declaration that a party holds a property on a constructive trust. However, the effect of a declaration is not to create rights but to merely indicate what they have always been.As Gaudron J observed in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd: There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commissionwas such a case. But a declaration cannot be made if it 'will produce no foreseeable consequences for the parties'. That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as to not involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.In Agricultural Land Management Ltd v Jackson, Edelman J stated that: [C]ourts only make declarations concerning the rights of parties. Legal rights include claimed rights, powers, privileges and immunities. They do not include observations about breaches of duty that have no legal consequence. Declarations are not granted where they will produce no foreseeable consequences for the parties. The defendants argue that by the payment of the lump sum of $210,000 they have paid all of the rent for the entire 40 year term of the Residential Tenancy Agreement, and that no further payments of rent are due and payable to the plaintiffs. This argument has no prospect of success. The express terms of the Sterling New Life Lease, in particular the Rent clause in Part A of the Residential Tenancy Agreement, expressly provides for payments of $360 per week payable weekly, and cl 2.1, 2.2 and 2.3 of the Payment Direction Deed expressly required that the lump sum less the Application Fee was to be invested in units in the Sterling Income Trust, from which distribution and redemption payments were to be used for the payment of rent, and cl 2.4 and 2.5 of the Payment Direction Deed required Sterling Corporate Services to pay rent on behalf of the defendants to the plaintiffs as it fell due.