Kelly v The Alternative Web Pty Ltd (No 2) - [2010] SASC 75

Supreme Court of South Australia
(Civil)
KELLY & ANOR v THE ALTERNATIVE WEB PTY LTD (NO 2)
[2010] SASC 75
Judgment of The Honourable Justice Kourakis (ex tempore)
9 March 2010
LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS - CONSTRUCTION AND INTERPRETATION
This matter concerns several claims and counterclaims arising out of a lease granted by the defendant to the plaintiffs over land on which is situated a caravan park – in earlier decision of Kelly & Anor v The Alternative Web Pty Ltd [2010] SASC 4 (20 January 2010), plaintiffs' lease declared to not have been terminated and defendant’s claim for possession of the land dismissed – earlier judgment proceeded on erroneous assumption that separate rate was levied for piece 51 – common ground that one rate had been levied over both pieces – further issues – proper construction of cll 2.3 and 2.4 of the lease – proportion of rates and taxes payable by the plaintiffs – calculation of the net effect of the amounts due of plaintiffs’ monetary claims and entitlement of defendant to rates and taxes – whether defendant can amend counterclaim to seek declaration that plaintiffs not entitled to allow any more than seven caravans to be parked on part of defendant’s land which as not been leased to it.
Held: Plaintiffs' construction of cl 2.3 rejected – balance due to the plaintiffs is $1,023.13 – pre-judgment interest fixed in a lump sum of $450 – defendant’s application to amend counterclaim refused.
Kelly & Anor v The Alternative Web Pty Ltd [2010] SASC 4, discussed.

KELLY & ANOR v THE ALTERNATIVE WEB PTY LTD (NO 2)
[2010] SASC 75
Civil

KOURAKIS J: This matter concerns several claims and counterclaims arising out of a lease granted by the defendant to the plaintiffs over land on which is situated a caravan park at Blanchetown.
On 20 January this year I declared that the plaintiffs’ lease had not been terminated and dismissed the defendant’s claim for possession of the land.[1] I delivered my reasons for so finding and delivered reasons dealing with the other aspects of the controversy but invited submissions on the final orders which would be made. I have heard the last of those submissions today. The issues which remain to be resolved are:
1The proportion of the rates and taxes payable by the plaintiffs.
2The calculation of the net effect of the amounts due on those of the plaintiffs’ monetary claims which I have previously upheld and the entitlement of the defendant, if any, to the rates and taxes or a proportion of the same.
3The interest which should be awarded on the balance so calculated.
4Whether I should allow an amendment to the defendant’s counterclaim by which it seeks a declaration that the plaintiffs are not entitled to allow any more than seven caravans to be parked on the part of the defendant’s land at Blanchetown which has not been leased to them.
[1] Kelly & Anor v The Alternative…

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: [2010] SASC 75
Decision Date: 9 March 2010

CaseChat Overview and Summary

The plaintiffs, who operate a caravan park on land leased from the defendant, brought claims against the defendant for, among other things, a declaration that the lease had not been terminated and a declaration that the defendant could not lawfully enter the land. The defendant counterclaimed for possession and for a declaration that the plaintiffs were not entitled to allow more than seven caravans to be parked on the part of the land which was not leased to them. The case returned to the court after a previous decision in which the court declared that the lease had not been terminated and dismissed the defendant’s claim for possession. The parties agreed that the court had proceeded on an incorrect assumption in that earlier decision. The court was required to determine the proper construction of certain clauses in the lease, the proportion of rates and taxes payable by the plaintiffs, and the calculation of the net effect of the amounts due of the plaintiffs' monetary claims and the defendant’s entitlement to rates and taxes. The court was also required to determine whether the defendant could amend its counterclaim to seek a declaration that the plaintiffs were not entitled to allow any more than seven caravans to be parked on part of the defendant’s land which was not leased to it.

The court found that the rate levied over both pieces of land was one and the same. The court held that the plaintiffs were not liable to pay any rates and taxes in excess of the amount stipulated in the lease. The court found that the plaintiffs were entitled to claim the sum of $76,500. The court found that the defendant could not amend its counterclaim to seek a declaration that the plaintiffs were not entitled to allow more than seven caravans to be parked on part of the defendant’s land which was not leased to it.

The court ordered that the plaintiffs were entitled to judgment in the sum of $76,500. The court ordered that the defendant’s counterclaim be dismissed.

Orders