Landpower Developments Pty Ltd (in Liq) v Osborne
[2002] WASC 64
•28 MARCH 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | LANDPOWER DEVELOPMENTS PTY LTD (IN LIQ) -v- OSBORNE [2002] WASC 64 |
| CORAM | : MASTER BREDMEYER | ||
| HEARD | : 8 MARCH 2002 | ||
| DELIVERED | : 28 MARCH 2002 | ||
| PUBLISHED | : 3 APRIL 2002 | ||
| FILE NO/S |
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| BETWEEN |
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AND
RAMON RONALD THEODORE OSBORNE
Defendant
Catchwords:
Summary judgment - Moneys due under a lease - Frustration of lease by third party
Legislation:
Rules of the Supreme Court, O 14 r 7
Result:
Application allowed in part
[2002] WASC 64
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr T H Brickhill |
| Defendant | : | Mr P D Knight |
Solicitors:
| Plaintiff | : | Brickhills |
| Defendant | : | O'Connor Partners |
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87
Hart v MacDonald (1910) 10 CLR 417
Hobson v Monks [1884] WN 8
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348
Hoyts Pty Ltd v Spencer (1919) 27 CLR 133
Jaeger v Mansions Consolidated Ltd (1903) 87 LT 690 CA
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675;
26 May 1989
Markham v Paget (1908) 1 Ch 697
Michael v Nicholson, unreported; FCt SCt of WA; Library No 950660; DATE
Moscow Norodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd & Ors [1976]
WAR 109
PS Holdings v Verheggen [2000] WASC 31
Pym v Campbell (1856) 6 E & B 370; 119 ER 903
Re Juson Pty Ltd (1992) 8 WAR 13
Sutton v Sautter (1891) 17 VLR 371
Van Den Esschert v Chappell [1960] WAR 114
Westwind Air Charter Pty Ltd & Mullins Investments Pty Ltd v Hawker de
Havilland Ltd (1990) 3 WAR 71
[2002] WASC 64
MASTER BREDMEYER
MASTER BREDMEYER: I have before me an application by the plaintiff for summary judgment under O 14 of the Supreme Court Rules and an application by the defendant for summary judgment under O 16. I will consider first the plaintiff's application for summary judgment. On the plaintiff's documents, it is a straightforward claim for moneys due by a tenant to a landlord under a lease. In fact, there are three leases of rural land, lots 22, 23 and 25. The leases are in identical terms. The rent was $25,000 a month for each lease and the first instalment was due and payable on 1 December 1999. Thereafter, the monthly payments were due and payable on the first day of each month. The leases were signed on 1 December 1999. The plaintiff company was placed in administration on 10 August 1999. The plaintiff company signed a deed of company arrangement on 25 November 1999.
2 I turn now to the defendant's affidavits to see what defences are
raised. The plaintiff's counsel made various challenges to the admissibility of the defendant's affidavit of 11 January 2002, on which I will now rule. Hearsay is admissible on a summary judgment application, but it must be in proper form.
Paragraph 11: I consider admissible. It is supported by the terms of the leases, namely, cl 18 and item 7 of the schedule.
4 Paragraph 12: I consider this admissible. Whether later paragraphs
set up and agreement or not, is for the Court to decide. I give little weight to the conclusionary statements in this paragraph, but as an introductory statement to what comes later, it can stand.
Paragraph 14: The plaintiff challenged the words:
"I believed that Sandhu had authority as director of the plaintiff
to enter into the oral agreement."
That is challenged as not disclosing the source of the belief. I think it admissible. The source of the belief is I think stated, namely, that Sandhu was a director of the plaintiff company.
6 Paragraph 15: I strike out this paragraph. The statements there are
conclusions. It is crucial in a matter of this importance that the substance of the words used be given rather than a conclusion of what the deponent thought was agreed.
7 Paragraph 16: I strike out the second sentence as not disclosing the
source of the belief that lot 24 was the only nursery capable of providing
sufficient seedlings for the defendant's needs.
[2002] WASC 64
MASTER BREDMEYER
8 Paragraph 17: I also strike out this paragraph as not disclosing the
sources of the belief that it was not possible, or not economically viable, to use the land on lots 22, 23 and 25 without access to the nursery on lot 24.
9 Paragraph 18: As I have struck out par 15, I also strike out this
paragraph as ancillary. If the defendant's evidence of the agreement is inadmissible, Mr Williamson's knowledge of that agreement is not relevant.
10 What defences are proffered in Mr Osborne's affidavit, as truncated
by my rulings? By way of introduction, I note that at par 20 he said that
at no stage did any work or cultivation begin on lots 22, 23 and 25.
In par 23, Mr Osborne states:
On or about 17 December 1999, Sandhu, along with Popazzi, refused me and/or any of my employees, agents or related parties access to the land the subject of the leases … "
In par 24, Mr Osborne states:
"The tree-growing scheme did not proceed. Neither I nor my representatives or agents ever took actual physical possession of lots 22, 23 or 25 the subject of the leases nor did I make any payments to the plaintiff pursuant to the terms of the leases."
13 That the defendant was refused access to the three lots on
17 December 1999 could amount to frustration of the leases by a third person. That would be a defence. Mr Osborne's affidavit evidence of being refused access to the land the subject of the three leases is supported by the affidavit of Mr John Franco Popazzi. The wording used is the same as that in Mr Osborne's affidavit. At par 5, Mr Popazzi says:
"During the period of approximately two weeks after 17 December 1999, the defendant and employees or agents of the defendant attempted to enter the properties the subject of the leases and the land being lot 24. As instructed by Mr Sandhu, I refused the defendant and his employees and agents access to the properties the subject of the leases and the land being lot 24. Further I changed the locks on the gates to these properties for the purpose of preventing the defendant and his agents and employees from gaining future access to the properties."
[2002] WASC 64
MASTER BREDMEYER
14 The weight of that paragraph is reduced because it omits the primary
facts. They are really conclusions. How did he refuse access to the defendant and his employees and agents? Did he speak to them? Did he speak to the defendant personally? Was he there? (I note in passing that the defendant is a Perth-based accountant). Mr Popazzi said that he changed the locks on the gates to these properties. That is concrete evidence of denial of access. That fact is disputed, in part, by Mr Williamson's affidavit of 22 February 2002, par 13, in which he says that from his inspection there are no gates on lots 22 and 23.
15 For the purpose of this application, I am not required to resolve that
conflict of evidence. For the purpose of this application, I am required to accept Popazzi's statement that he changed the locks on the properties the subject of the leases. Giving Mr Osborne's and Mr Popazzi's affidavits their most favourable interpretation - as I think I am required to do - Popazzi, on Sandhu's instructions, refused the defendant, his agents and employees access to the three leases for two weeks from 17 December 1999. He also changed the locks on the gates to those three leases, thus, presumably, denying permanent access to those properties. Mr Sandhu had no authority to do that. The plaintiff company was run by the two administrators. As a director, he had no powers. So, the frustration of the leases was occasioned by a non-party. The frustration of the leases occurred on 17 December 1999 and, by virtue of the locks on the gates, could be considered permanent.
16 Mr Osborne said that neither he nor his representatives or agents ever
took actual physical possession of the three lots. How does that square with Popazzi's actions? I consider that from 1 December to 17 December 1999, the defendant was technically in possession. He was free to take possession. If he did not, that was his choice. He was, thus, liable for the rent for that period. Thereafter, his possession of the leases was arguably frustrated by the conduct of the third party.
17 I propose to give a limited summary judgment to the plaintiff. I
consider it is entitled to rent from 1 December to 17 December 1999 on the three leases, say, half a month's rent, on each lease: 3 x $12,500 = $37,500. I am satisfied the defendant has raised no question of law or fact as a defence to that claim. I propose to enter summary judgment against the defendant for that sum, with leave to defend as to the rest.
18 Although the sums in dispute are large, the factual issues in the
defended part of the case are within a small compass. I consider the action could best be tried as perhaps a trial on affidavits with
[2002] WASC 64
MASTER BREDMEYER
cross-examination without the full array of pleadings, discovery and interrogatories. I will therefore give liberty to apply, which means to either party, as to directions for the future conduct of the trial under O 14 r 7.
19 Mr Knight has argued that the plaintiff should be deprived of its
costs because of inadequate consultation on its part with the defendant's solicitors and has filed an affidavit detailing the telephone calls and annexing letters sent. I consider Mr Brickhill was unwise not to have met with the defendant's solicitors. He would have learnt more of the defences, one of which succeeded in the summary judgment application.
20 In the circumstances, I will limit the plaintiff's costs. I will order the
defendant to pay the plaintiff's costs of the application, including any
reserved costs on a 50 per cent basis, to be taxed if not agreed.21 I propose a dismissal of the defendant's O 16 application, with no
order as to costs. However, as I have not heard the parties on this, I will accept faxed submissions on this on or before 5 pm on Friday, 5 April 2002.
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