Macarthur Central Shopping Centre Pty Ltd v Di Pan

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DISTRICT COURT OF QUEENSLAND

CITATION:

Macarthur Central Shopping Centre Pty Ltd v Di Pan [2021] QDC 344

PARTIES:

MACARTHUR CENTRAL SHOPPING CENTRE PTY LTD

(plaintiff)

v
DI PAN

(defendant)

FILE NO/S:

1706 of 21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 November 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2021

JUDGE:

Holliday QC DCJ

ORDER:

1.   OAPD.

2.   Adjourned to a date to be fixed for further directions in relation to order 1(b)

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE –
QUEENSLAND – PROCEDURE UNDER THE UNIFORM
CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – where the applicant seeks summary judgment on the plaintiff’s claim – where plaintiff claims monies due and payable under a lease – whether there is a triable issue of law or no real prospect of succeeding

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), rules 171 and 292

CASES:

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Geebung Investments Proprietary Limited v Varga Group Investments (No. 8) Proprietary Limited (1995) 7 BPR 14
Santos Limited v Fluor Australia Proprietary Limited and Another (No. 1) [2020] QSC 372
Smith v Yarwood [2018] QSC 279
Tynan and Another v Filmana Proprietary Limited and Others [2013] QSC 32

COUNSEL:

J Hughes for the plaintiff
The defendant was self-represented

SOLICITORS:

Allens for the plaintiff
The defendant was self-represented

Introduction

  1. The plaintiff applies, by application filed on 30 September 2021, for summary judgment on part of its claim pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). In the alternative, the plaintiff applies pursuant to rule 171(2) of the UCPR to strike out the defence in its entirety.  The defendant is self-represented on the application.  For reasons that I will develop, it is necessary only to determine the primary application of the plaintiff. 

  2. The plaintiff and defendant were parties to a lease agreement, with the plaintiff being the lessor and the defendant being the lessee.  The part of the plaintiff’s claim for which summary judgment is sought relates to:

    (a)$53,331.81, being the amount due and payable to the plaintiff by the defendant for non-payment of rent by the defendant from 31 December 2020 to 30 June 2021;[1]

    (b)the defendant’s liability for damages for breach of the lease, with the quantum of damages to be assessed by the Court;[2] and

    (c)interest. 

    [1] Sensibly, the plaintiff is not seeking summary judgment for what it contends in the claim is non-payment of rent between 22 January 2020 to 30 December 2020, such that consideration does not need to be given to the provisions of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld).

    [2] The plaintiff correctly relies on the decision of Tynan and Another v Filmana Proprietary Limited and Others [2013] QSC 32 [40]-[49], in support of the argument that judgment for unliquidated damages to be assessed in respect of a part of a claim may be granted under rule 292.

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Details
Case
[2021] QDC 344
Decision Date

CaseChat Overview and Summary

The plaintiff, Macarthur Central Shopping Centre Pty Ltd, sought summary judgment against the defendant, Di Pan, for amounts due and payable under a lease agreement, including rent, damages for breach of lease, and interest. The defendant had filed a notice of intention to defend, prompting the plaintiff's application for summary judgment. The primary legal issue the court had to resolve was whether there was no real prospect of the defendant successfully defending the plaintiff's claim, and if a trial was unnecessary.

The court examined whether the defendant had any real prospect of successfully defending the claim. It considered the defences raised by the defendant, particularly the contention that a binding agreement had been reached for a lesser sum. The court found that the correspondence between the parties did not establish a binding agreement, as all communications explicitly stated that no agreement would be binding until a deed was executed and exchanged. This conclusion was supported by the case of Tynan and Another v Filmana Proprietary Limited and Others, which confirmed that unliquidated damages could be assessed under the relevant rules. The court was satisfied that the defendant had no real prospect of successfully defending the claim, as the only possible defence was not viable.

The court granted summary judgment in favour of the plaintiff for the part of the claim made out on the plaintiff's pleadings and evidence. The court found that the defendant had no real prospect of successfully defending the claim, and there was no need for a trial of the claim. The court ordered the defendant to pay the plaintiff the amount of $53,331.81 for unpaid rent, with the liability for damages to be assessed by the court. The case was adjourned for further directions regarding the assessment of damages.

Orders

Orders of the court

1. OAPD.

2. Adjourned to a date to be fixed for further directions in relation to order 1(b)

Background

Background to the litigation

The plaintiff and defendant were parties to a lease agreement, with the plaintiff being the lessor and the defendant being the lessee. The part of the plaintiff’s claim for which summary judgment is sought relates to: (a)$53,331.81, being the amount due and payable to the plaintiff by the defendant for non-payment of rent by the defendant from 31 December 2020 to 30 June 2021;[1](b)the defendant’s liability for damages for breach of the lease, with the quantum of damages to be assessed by the Court;[2] and (c)interest. [1] Sensibly, the plaintiff is not seeking summary judgment for what it contends in the claim is non-payment of rent between 22 January 2020 to 30 December 2020, such that consideration does not need to be given to the provisions of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld).[2] The plaintiff correctly relies on the decision of Tynan and Another v Filmana Proprietary Limited and Others [2013] QSC 32 [40]-[49], in support of the argument that judgment for unliquidated damages to be assessed in respect of a part of a claim may be granted under rule 292.Background It is non-contentious that the plaintiff (as lessor) and defendant (as lessee) were parties to a lease of premises in MacArthur Central Shopping Centre commencing on 8 July 2016 and ending on 7 July 2022. It is evident from the material that the plaintiff and defendant engaged in protracted negotiations relevant to rent on the premises, including attending a mediation on 18 January 2021. For completeness, I will mention the material negotiations, given that the defendant, in her defence, contends that these had binding legal effect:(a)16 February 2021: The plaintiff’s solicitors wrote to the defendant to offer a rent relief package. The letter concluded with the statement:“Finally, we confirm that there will be no binding agreement between the parties until such time that a deed has been executed and exchanged by both parties” (‘the Statement’).(b)2 March 2021: The plaintiff’s solicitors wrote to the defendant following up the proposal for rent relief, and the letter concluded with the Statement.(c)26 March 2021: The plaintiff’s solicitors wrote to the defendant and attached a deed for her to sign; the letter concluded with the Statement. (d)30 April 2021: The defendant corresponded with the plaintiff, detailing that she wanted to end the lease and proposed terms in relation to same, including payment of unpaid rent.(e)1 June 2021: The plaintiff emailed the defendant, indicating that the amount of $26,804.72 would be acceptable to the plaintiff to finalise the matter (this included the application of the bank guarantee amount).(f)3 June 2021: The defendant responded to the 1 June 2021 email, stating:“May I kindly confirm that there will be no further cost than $51,839.16 to have everything finalised? If so, I can come and tidy up the rest of our things from the shop. Thank you.”(g)3 June 2021: The plaintiff emailed the defendant, thanking the defendant for her email and said that there needed to be a final agreement in writing plus payment before tidying up the shop. (h)10 June 2021: The plaintiff emailed the defendant advising there would be further costs relating to the proposed surrender of the lease. The defendant indicated in a reply email that she was not in a position to pay the amount required by the plaintiff and may not:“…even be able to meet $51,839.16 due to my day-to-day living expenditures.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 292 of the UCPR provides as follows:Summary judgment for plaintiff(1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the Court under this part for judgment against the defendant.(2)If the Court is satisfied that – (i) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and (ii) there is no need for a trial of the claim or the part of the claim;the Court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order that the Court considers appropriate. The plaintiff has, after the defendant filed a notice of intention to defend, applied to the Court for judgment against the defendant for part of the plaintiff’s claim, as I have detailed. Each of the rule 292(2) considerations need to be separately considered and satisfied.[3] [3]Santos Limited v Fluor Australia Proprietary Limited and Another (No. 1) [2020] QSC 372.The Defendant has no Real Prospect of Successfully Defending the Part of the Plaintiff’s Claim As was held in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, per Justice McMurdo at paragraph [3]:“Nothing in the UCPR detracts from the well-established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases. Gaudron, McHugh, Gummow and Hayne JJ. said in Agar v. Hyde, recently cited with approval by Gleeson C.J., McHugh and Gummow JJ. in Rich v. CGU Insurance Ltd:“… Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way” (citations omitted).[4] [4] Rich v CGU Insurance Limited [2005] 214 ALR 370 at 18, per Gleeson, Chief Justice; McHugh and Gummow, Justices. In Deputy Commissioner of Taxation v Salcedo, Justice Atkinson stated at [47]:“…the Court must consider whether there exists a real, as opposed to a fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment.” Justice Atkinson explained that the rules benefit both parties from a cost perspective, as well as the administration of justice. Further, as Justice Martin stated in Smith v Yarwood [2018] QSC 279 at paragraph [3]:“The words ‘no real prospect of succeeding’ directs the Court to the need to see whether there is a realistic, as opposed to a fanciful, prospect of succeeding.” I agree with the submissions of the plaintiff that there are no material facts pleaded in the defence or raised in the material or oral submissions today that give rise to any real prospect of successfully defending the part of the plaintiff’s claim which is made out on the plaintiff’s pleadings and evidence. The only possible defence raised on the defendant’s material is that a binding agreement was reached for a lesser sum. That possible defence is not viable as an analysis of the correspondence relied upon by the defendant reveals that no binding agreement was reached by the parties.

Ratio Decidendi

Legal Principle Established

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