Lyn Hay Brockman v Cong Phuc Dinh - [2004] NTMC 6

[Back to Main List] [Back to NTMC 2004 List] CITATION: Lyn Hay Brockman v Cong Phuc Dinh [2004] NTMC 006

PARTIES: LYN HAY BROCKMAN

CONG PHUC DINH

TITLE OF COURT: LOCAL COURT

JURISDICTION: CIVIL

FILE NO(s): 20214352

DELIVERED ON: 4 February 2004

DELIVERED AT: DARWIN

HEARING DATE(s): 22 September 2003 - 25 September 2003

DECISION OF: D TRIGG

CATCHWORDS:

Fixed term (5 years) lease/mango agreement; unconscionable conduct; special disadvantage; repudiation of lease/agreement; whether agreement mutually rescinded; calculation of damages; mitigation (duty and onus)

REPRESENTATION:

Counsel:
Plaintiff: Mr O'Loughlin
Defendant: Mr Cantrill

Solicitors:
Plaintiff: Cridlands
Defendant: T S Lee

Judgment category classification:
Judgment ID number: [2004] NTMC 006
Number of paragraphs: 188

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20214352

BETWEEN:

LYN HAY BROCKMAN
Plaintiff

AND:

CONG PHUC DINH
Defendant

REASONS FOR DECISION

(Delivered 4 February 2004)

Mr D TRIGG SM:
1. This proceeding commenced on 17 September 2002. On that date the plaintiff filed Particulars of Claim. They were in the following terms:
"1. The Plaintiff is the registered proprietor of an estate in fee simple in Sections 45 and 46 Hundred of Waterhouse Volume 67, Folios 38 and 39 respectively ("the Property").
2. A mango orchard is situated on the Property together with various fittings, fixtures, chattels and equipment associated with the operation of the mango orchard on the Property.
3. By an undated agreement entered into between the Plaintiff and Defendant ("the Agreement") the Plaintiff agreed to:
(a) lease the Property and orchard to the Defendant together with fixtures and fittings and chattels detailed in the schedule attached to the Agreement;
(b) lease the Property and orchard as set out above for a term of five years commencing 1 December 1999; and
(c) lease the Property and orchard as set out above at (a) on the terms and conditions set out in the Agreement therein.
4. Pursuant to the Agreement the Defendant:
(a) entered into occupation of the Property including the orchard, fixtures and fittings and chattels; and
(b) paid rental in the sum of $50,000 for the first two years of the term of the Agreement.
5. In breach of the Agreement the Defendant:
(a) refused and failed to pay rent in the sum of $10,000 due 30 January 2002;
(b) failed to install firebreaks on the property to the satisfaction of the Bushfires Council NT;
(c) failed to adopt good and proper horticultural and property management techniques in that the Defendant has:
(i) failed to install suitable fire breaks;
(ii) permitted branches of trees to be damaged by cherry pickers;
(iii) ringbarked the trees;
(iv) permitted the plantation to be infested with weeds;
(v) applied chemicals to the trees in a way which is detrimental to the long-term viability of the plantation;
(vi) failed to properly prune the trees.
(d) told the Plaintiff that he would not pay the rent and that the Plaintiff would need to take the Defendant to court to get the outstanding rent;
(e) vacated…

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.

Keep reading for free

Create a free CaseChat account to read Lyn Hay Brockman v Cong Phuc Dinh and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NTMC 6
Decision Date: 4 February 2004

CaseChat Overview and Summary

The case of Lyn Hay Brockman v Cong Phuc Dinh was heard in the Local Court of the Northern Territory of Australia. The plaintiff, Lyn Hay Brockman, filed a claim against the defendant, Cong Phuc Dinh, for unpaid rental and damages for the conversion of a slasher. Dinh counter-claimed, arguing that the agreement between the parties was unconscionable and sought to have it set aside and for the plaintiff to refund the $50,000 paid under the agreement. The court found that the agreement was a valid lease, and the defendant had breached its terms by failing to properly maintain the property and failing to return the slasher. The court awarded the plaintiff $75,000 for unpaid rental and $571 for conversion of the slasher. The defendant's counterclaim was dismissed.

Orders