Landpower Developments Pty Ltd (in Liq) v Osborne - [2002] WASC 64

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

:	CIV 2687 of 2001

BETWEEN

:	LANDPOWER DEVELOPMENTS PTY LTD (IN LIQ) (ACN 064 989 073) Plaintiff

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…

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.

Continue reading Landpower Developments Pty Ltd (in Liq) v Osborne

Details

AGLC: Landpower Developments Pty Ltd (in Liq) v Osborne [2002] WASC 64
Case: [2002] WASC 64
Decision Date: 28 MARCH 2002

CaseChat Overview and Summary

In this case, the plaintiff, Landpower Developments Pty Ltd (in liquidation), sought summary judgment against the defendant, Mr. Osborne, for moneys due under a lease agreement. The dispute arose from a lease of premises at 151 Pacific Highway, Wahroonga, New South Wales. The plaintiff claimed that Mr. Osborne was liable for unpaid lease payments and other associated costs. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to address were whether the lease was frustrated due to actions by a third party and whether the defendant was liable for the unpaid lease payments. The court needed to determine if the lease had been effectively frustrated by the actions of a third party, which could potentially absolve the defendant of his contractual obligations. Additionally, the court had to assess whether Mr. Osborne was liable for the unpaid lease payments and associated costs claimed by the plaintiff.

The court found that the lease was not frustrated by the actions of the third party. The actions of the third party did not render performance of the lease impossible or radically different from what was agreed upon. Consequently, the defendant remained liable for the unpaid lease payments and other associated costs. The court granted the plaintiff summary judgment for the outstanding amount of $50,000, plus interest and costs. The defendant was ordered to pay the plaintiff the full amount claimed within 28 days.

Orders