Leng v Miller - [2022] WASC 444

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LENG -v- MILLER [2022] WASC 444
CORAM:   MASTER SANDERSON
HEARD:   8 DECEMBER 2022
DELIVERED          :   20 DECEMBER 2022
PUBLISHED           :   20 DECEMBER 2022
FILE NO/S:   CIV 1925 of 2022
BETWEEN:   AU YEONG WAI LENG
Plaintiff
AND
KATHLEEN RUTH MILLER
First Defendant
ROSS CHARLES MILLER
Second Defendant

Catchwords:

Costs - Application for indemnity costs made by plaintiff - Intersection of costs and rules and humanity - Relevance of festive season - Turns on own facts

Legislation:

Nil

Result:

Costs of application to be paid by defendants
Application for indemnity costs dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	M J Keating
First Defendant	:	J Moffat
Second Defendant	:	J Moffat

Solicitors:

Plaintiff	:	Williams & Hughes
First Defendant	:	DFG Legal
Second Defendant	:	DFG Legal

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

The plaintiff is the owner of a farm in Fairbridge. By written lease dated 27 November 2017, the plaintiff leased the farm to the defendants. The term of the lease was three years. The lease expired by fluxion of time on 31 December 2019. However, on 1 July 2019 the lease was automatically extended until 31 December 2021 pursuant to a provision of the lease, neither party having given notice to the other the lease would not be extended.
After the lease expired on 1 January 2022, the defendants remained in occupation on the farm on effectively a monthly tenancy. On 21 July 2022, the plaintiff, through her solicitors, gave notice to the defendants of termination of the lease. Termination was to take effect on 25 August 2022. There is no dispute between the parties that the notice of termination was effective and as at 25 August 2022, the defendants were obliged to deliver up possession of the farm.
The defendants failed to vacate the property by the due date and on 2 September 2022, the plaintiff issued these proceedings. The defendants entered an appearance and on 5 October 2022, the plaintiff applied for summary judgment. The application was supported by an affidavit of the plaintiff. It is worth noting the summary judgment application was defective in two respects. First, the statement of claim did not accurately plead the material facts. Secondly, judgment was sought under O 16 not O 14. Nothing turns on these defects. They could have been easily remedied. In the event, no remedial action was necessary. The parties settled their differences.
The compromise was recorded in a memorandum of consent orders filed 11 October 2022. This led to Registrar Fatharly making the following orders:
1.The Defendants deliver up vacant possession to the Plaintiff forthwith the land described as Lot 51 on Diagram 61528 being the whole of the land comprised in certificate of title volume 1609 folio 113 and Lot 17 on Plan 4616 being the whole of the land comprised in certificate of title volume 1609 folio 114, more commonly known as 166 Morrell Road, Fairbridge, Western Australia.
2.The Defendants pay…

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 Leng v Miller

Details

AGLC: Leng v Miller [2022] WASC 444
Case: [2022] WASC 444
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Au Yeong Wai Leng, the owner of a farm in Fairbridge, instituted proceedings against Kathleen Ruth Miller and Ross Charles Miller, the defendants, who had leased the farm from her. The defendants had remained in occupation of the farm past the expiration of their lease on 1 January 2022, and despite being served with a notice of termination on 21 July 2022, they failed to vacate the premises by the stipulated date of 25 August 2022. Consequently, the plaintiff filed proceedings against the defendants, seeking summary judgment, which was subsequently granted by consent orders on 11 October 2022. Despite the consent orders, the defendants did not vacate the premises until 24 November 2022, prompting the plaintiff to apply for an order for the appointment of a receiver to remove the livestock and arrange for the sale of the farm. The defendants opposed the application for indemnity costs, arguing that the plaintiff was entitled to costs but not on an indemnity basis.

The court was required to determine whether the defendants were liable to pay the plaintiff's costs on an indemnity basis, both under the exercise of discretion and pursuant to a contractual provision in the lease agreement. The plaintiff argued that the defendants' delay in vacating the premises warranted an order for indemnity costs, while the defendants contended that the plaintiff should not be entitled to such costs given the circumstances surrounding the removal of livestock from the farm. The court had to consider the principles relating to indemnity costs and whether the defendants' actions were intentional or whether they acted with due diligence in removing the livestock from the farm.

The court dismissed the plaintiff's application for indemnity costs, finding that the defendants were not intentionally difficult and acted with due diligence in removing the livestock from the farm. The court also noted that the plaintiff had not shown any consideration for the difficulties faced by the defendants in relocating the livestock. The court held that while the plaintiff was entitled to costs, it should not be awarded on an indemnity basis. The court emphasised the importance of humanity in the circumstances of this case and dismissed the application for indemnity costs. The court ordered that the costs of the application be paid by the defendants.

Orders