| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LLOYD PRICE CARNARVON PTY LTD -v- AVON PLASTICS PTY LTD [2013] WADC 134 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 24 JULY 2013 DELIVERED : 20 AUGUST 2013 FILE NO/S : CIV 778 of 2013 BETWEEN : LLOYD PRICE CARNARVON PTY LTD Plaintiff
AND
AVON PLASTICS PTY LTD
Defendant
Catchwords: Practice and procedure - Summary judgment - Possession of land - Mesne profits
Torts - Trespass to land - Whether there is a need to determine date of first entitlement to possession for an action for possession Legislation: Civil Judgments Enforcement Act 2004 (WA) s 95
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Result: Claim allowed in part
Balance discontinued
Representation: Counsel:
Plaintiff : Mr S Shepherd
Defendant : Mr P Bevilacqua
Solicitors:
Plaintiff : Pamela G McMahon
Defendant : Gadens Lawyers
Case(s) referred to in judgment(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Allen v Roughly [1955] HCA 62; (1955) 94 CLR 98
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Broadway Pty Ltd v Lewis [2012] WASC 373
Hampton v BHP Billiton Minerals [No 2] [2012] WASC 285
Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1
Minister of State for the Interior v RT Co Pty Ltd [1962] HCA 29; (1962) 107 CLR 1
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 12] [2013] WASC 245
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1 PRINCIPAL REGISTRAR GETHING: Lloyd Price Carnarvon Pty Ltd (LPC) is the registered proprietor of premises at 67 Miguel Road, Bibra Lake (Premises). It says that between June 2011 and 20 December 2012 the Premises were occupied by Avon Plastics Pty Ltd on a periodic tenancy. Avon continued in possession of the Premises after 20 December 2012. In an action commenced in this court, LPC sought:
2 The primary cause of action was a claim in tort for ejectment or possession. The claim for mesne profits is also a claim in tort. A claim for mesne profits 'is the name traditionally given to damages for trespass sought by a landlord against a tenant when the tenant fails to vacate the premises following the termination of the lease': Broadway Pty Ltd v Lewis [2012] WASC 373 [123]. 3 On 11 June 2013, LPC filed an application for summary judgment in the same terms as its claim, specifying the mesne profits at the rate of $547.95 per day. 4 The summary judgment application was listed for hearing on 24 July 2013. At the commencement of the hearing, counsel for Avon conceded LPC's right to possession, and did not oppose summary judgment on this issue. I was invited to make orders for Avon to deliver up possession to LPC. 5 It was common ground between the parties that a claim for mesne profits cannot be pursued in the same action as a claim for possession: Broadway [124] - [134]; Hampton v BHP Billiton Minerals [No 2][2012] WASC 285 [309] - [318]. This is because in order to bring a claim for mesne profits the landlord first had to re-enter the land (usually as a result of an action for ejectment or possession) before suing for mesne profits for the tenant's trespass on the land: Broadway [124];Hampton [300] - [308]. LPC did not press the balance of its summary judgment application (save for costs), which should consequently be dismissed. (Page 4)
6 LPC advised the court that it intended to commence a second action once it had obtained possession of the Premises in which it would claim mesne profit and other remaining aspects of the relief claimed in the present action. To facilitate this, I proposed to make an order that the action otherwise be discontinued, but to expressly state that this was without prejudice to LPC's right to claim mesne profits at a later date. An order for discontinuance, if made without terms as to future proceedings, is not a defence to a subsequent action: Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 12] [2013] WASC 245 [8]. 7 I heard submissions from the parties on costs, and indicated a preliminary view that the appropriate order was for the defendant to pay the plaintiff's costs of the summary judgment application, and 80% of the plaintiff's costs of the action, to be taxed if not agreed. 8 In formulating the appropriate orders at the hearing on 24 July 2013, a dispute arose as to whether the orders should reflect a finding as to the date on which LPC became entitled to possession. This in turn would set the start date for the claim for mesne profits. I directed the parties to file further submissions on the issue of whether it was necessary for the court to make a finding as to the date on which LPC became entitled to possession in order to make an order for possession, and to file minutes of the final orders. I expressed the view that the order I thought appropriate in this action was to be a neutral as possible on the issues which LPC intended to raise its further action. 9 The key point of difference in the orders sought by the parties is whether the court should include a finding as to the date on which LPC was entitled to possession of the property. 10 LPC's submission is to the effect that 11 Accordingly, the orders it submitted the court should make were: (Page 5)
1. There be final judgment for the plaintiff for possession of all that piece of land described in Certificate of Title Volume 506 Folio 26A and being Lot 1 on Diagram 41013, upon which land is erected a commercial building known as 67 Miguel Road, Bibra Lake, in the State of Western Australia (the Miguel Road Premises) as and from 1 March 2013. 2. On or before 26 August, the defendant give the plaintiff possession of the Miguel Road premises by: a) returning the Miguel Road premises to a clean and orderly state; b) vacating the Miguel Road premises; and c) delivering all keys and any other items required for entry into the Miguel Road premises to the plaintiff's director, Jennifer Anne King. 3. These proceedings otherwise be discounted without prejudice to any further proceedings which might be commenced by the plaintiff, including any claim for unpaid rent and outgoings and/or mesne profits arising from the possession of the premises by the defendant. 4. The defendant pay the plaintiff's costs of the application for judgment to be taxed if not agreed. 5. The defendant otherwise pay 80% of the plaintiff's costs of the action, to be taxed if not agreed. 12 Avon's submission is to the effect that: 13 Avon submitted that the Court should make orders in the following terms: 1. The Defendant give possession of the Premises to the Plaintiff by no later than 26 August 2013. 2. The proceedings be otherwise discontinued, without prejudice to the Plaintiff's right to claim for mesne profits at a later date. 3. The Defendant pay the Plaintiff's costs of the summary judgment application to be taxed if not agreed. (Page 6)
4. The Defendant pay 80% of the Plaintiff's costs of the balance of the action to be taxed if not agreed. 14 I agree with Avon's submission. This is for two reasons. The first is that in an action in tort for ejectment or possession, it is only necessary for the court to find that the plaintiff who is out of possession is entitled, as against the defendant, to immediate possession of the land: Allen v Roughly [1955] HCA 62; (1955) 94 CLR 98, 110; Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 209;Broadway Pty Ltd v Lewis [2012] WASC 373 [78] - [81]; Sappideen C and Vines P (eds), Fleming's The Law of Torts (10th ed, 2011) 59 [3.100]. This LPC has done by asserting its rights as registered proprietor, to which Avon has chosen not to assert any competing immediate right to possession by conceding the summary judgment application. This is sufficient for the court to grant relief to LCP by way of an order for possession. Significantly, in order to grant relief to LCP by way of an order for possession at a specified future date it is not necessary for the court to inquire when in the past LPC could first have obtained such an order. 15 The second is that the ascertainment of the relation back date is an inherent part of a claim for mesne profits. It should be not disconnected from that process. 16 The nature of a claim for mesne profits was described in the following terms by Taylor J in Minister of State for the Interior v RT Co Pty Ltd [1962] HCA 29; (1962) 107 CLR 1, 5 - 6: [A] claim for mesne profits is a particular form of the action for trespass, that as such it is based upon an injury to the plaintiff's possession and that the plaintiff is enabled to recover only upon the doctrine of trespass by relation. That is to say, that upon entering into possession the plaintiff is deemed by a legal fiction to have been in possession ever since his right to possession arose. 17 This passage was cited with approval in Broadway [125] and Hampton [312] – [318]. 18 In Hampton, Edelman J explained that there is a fiction of possession inherent in the claim for mesne profits [310] - [311], footnotes omitted: Since trespass rested upon the requirement of actual occupation, the claim for mesne profits was always brought after re-entry and usually after a successful writ of ejectment...It has been observed that the requirement that a plaintiff must prove actual possession (occupation) in order to succeed in a claim for mesne profits caused an imbalance by giving great weight to actual possession over the right to possession. As John Fleming (Page 7)
explained in 1957…, in passages maintained in nine subsequent editions of his book,a fiction arose which partially redressed this imbalance. The fiction was that once the plaintiff had entered into occupation the plaintiff was deemed to have been in occupation since the right to possess accrued…. This is the fiction of trespass by relation. The corollary to this fiction was that it was necessary for the plaintiff to have re-entered the land before suing for mesne profits or trespass… 19 LPC has also included a paragraph in its draft order that Avon return the Premises 'to a clean and orderly state'. The significance of this appears from an affidavit filed on behalf of LPC by its director Jennifer King (sworn 16 July 2013), as follows: (a) there is a stockpile of motor tyres at the Premises; (b) the tyres were accumulated by the prior lessee to Avon, Reclaim Industries Ltd, a company which went into external administration in February 2011; (c) the administrator of Reclaim sold the business which it carried on at the Premises, including the stockpile of tyres, to Carbon Polymers Ltd; (d) Avon is a wholly owned subsidiary of Carbon; and (e) the administrator of Reclaim informed Ms King that the tyres were the property of Avon. 20 In her affidavit, Ms King asserts that as occupier of the Premises, Avon is responsible for the removal of the tyres from the Premises when it vacates. This allegation is not pleaded in the statement of claim. 21 Avon filed an affidavit of its director Andrew Howard (sworn 3 July 2013) in opposition to the application for summary judgment. In it, Mr Howard asserts that the stockpile of tyres belongs to LPC. 22 For the reasons I have already outlined, I do not need to determine the ownership of the stockpile of tyres, or whether Avon has an obligation to remove the tyres, in order to make an order granting LPC possession of the Premises. Nor it is appropriate that I do so on a summary basis. I do not have the high degree of certainty about the ultimate outcome of the case required by the High Court in order to make a summary determination appropriate: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [46]. (Page 8)
23 I have adjusted the preliminary view as to costs which I expressed at the hearing on 24 July 2013 (see [7] above). This is because as I have accepted Avon's submissions as to the terms of the final order, it should receive its costs of these submissions. 24 I also consider it appropriate to grant a short period of time for the parties to apply in relation to the issues of costs or any other practical issues arising out of the orders made. 25 The orders that I consider are appropriate are: 1. There be judgment for the plaintiff in relation to its action for possession of the land occupied by the defendant at 67 Miguel Road, Bibra Lake in the state of Western Australia, being Lot 1 on Diagram 41013 and being the land in the Certificate of Title Volume 506 Folio 26A (Premises); 2. By no later than 4.00pm on 26 August 2013 the defendant is to: 3. The balance of the plaintiff's application dated 11 June 2013 be dismissed; 4. The action otherwise be discontinued, without prejudice to the plaintiff's right to claim at a later date for unpaid outgoings and mesne profits arising from the possession of the Premises; 5. There be liberty to the parties to apply in relation to the costs orders and in relation to any practical issues arising out of the other orders made, the liberty to be exercised by letter to the Principal Registrar to be received by 27 August 2013 and to enclose a minute of proposed orders; 6. The defendant pay the plaintiff's costs of the summary judgment application up to the conclusion of the hearing on 24 July 2013 to be taxed if not agreed; 7. The plaintiff pay the defendant's costs of the summary judgment application from the conclusion of the hearing on 24 July 2013, including the mention on 14 August 2013; (Page 9)
8. The defendant pay 80% of the plaintiff's costs of the action to be taxed if not agreed. 26 An order in these terms is similar to the final orders made in Broadway. 27 I also observe that in the unlikely event of non-compliance with this order, it is open to LPC to seek orders pursuant to Civil Judgments Enforcement Act 2004 (WA) s 95 authorising the sheriff to seize the Premises and deliver possession of it to LPC.
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