| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MATHER -v- ABBOTT [No 2] [2013] WADC 43 CORAM : SLEIGHT DCJ HEARD : 18 DECEMBER 2012 DELIVERED : 28 MARCH 2013 FILE NO/S : CIV 2534 of 2010 BETWEEN : AARON MATHER First plaintiff
THERMOPLASTIC ENGINEERING PERTH PTY LTD
Second plaintiff
AND
DAVID ABBOTT
Defendant
Catchwords: Landlord and tenant - Lease terminated by landlord - Alterations made without the landlord's consent - Breach of covenant - Lessees obligation to reinstate premises - Assessment of damages
Landlord and tenant - Goods left on premises by the lessee after the termination of lease - Dispute as to right of access to premises by lessee to remove goods - Goods removed and stored by landlord - Right of landlord to claim storage costs - Involuntary bailment - Unjust enrichment
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Legislation: Disposal of Uncollected Goods Act 1970 (WA) Result: Plaintiffs' claim dismissed
Defendant awarded $8,267.88 on counterclaim
Representation: Counsel:
First plaintiff : No appearance
Second plaintiff : No appearance
Defendant : Ms N Breach
Solicitors:
First plaintiff : Not applicable
Second plaintiff : Not applicable
Defendant : D'Angelo Legal
Case(s) referred to in judgment(s):
Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99
Bickmore v Dimmer (1903) 1 Ch 158
China Pacific SA v Ford Corporation of India [1982] AC 939; [1981] 3 All ER 688; [1981] 3 WLR 860
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Equuscorp Pty Ltd v Haxton [2012] HCA 7 [34]; (2012) 286 ALR 12
Fox v Wood (1981) 148 CLR 438
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
Mather v Abbott [2011] WADC 107
Proudfoot v Hart [1886 – 90] All ER Rep 782; (1890) QBD 42
R v Howson (1966) 55 DLR (2d) 582
Radford v De Froberville [1978] 1 All ER 33; (1977) 1 WLR 1262, 1270
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Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516
Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 83 ALJR 390
Waterhouse v Pas [1998] WASCA 236
White v Cariste Pty Ltd [2004] NSWCA 460
Willshee v Westcourt Ltd [2009] WASCA 87
Wincant Pty Ltd v State of South Australia (1997) 69 SASR 126
Zhu v The Treasurer of New South Wales (2004) 218 CLR 530
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1 SLEIGHT DCJ: The first plaintiff, Mr Mather, leased from the defendant Mr Abbott commercial premises situated at Unit 1, 18 Boag Road, Morley (the premises) pursuant to an agreement to lease document dated 1 June 2009. The premises were part of a complex of five units owned by Mr Abbott. Mr Mather's company, the second plaintiff, Thermoplastic Engineering Pty Ltd, conducted from the premises a wholesale and retail business of motorcycle parts, accessories and services. The lease was terminated for non-payment of rent and Mr Abbott took possession of the premises on 9 June 2010. This action concerns items left on the premises by Mr Mather and Thermoplastic and the condition of the premises on termination.
The plaintiffs' claim 2 The plaintiffs' claim in these proceedings is for recovery of a list of items [see annexure 'A'] which the plaintiffs allege were located on the premises at the time Mr Abbott took possession and which the plaintiffs claim Mr Abbott refused to deliver up to the plaintiffs. An alternative claim was made for damages. Mr Abbott admits he had removed from the premises a number of items claimed by the plaintiffs (items 1, 2, 4, 5, 6, 13, 16, 20, 21, 22, 50, 51, 52, 53 and 54 of annexure 'A') and claims that he placed these items in storage. Mr Abbott claims that Mr Mather refused, neglected or failed to remove the items in storage. The items held in storage were returned to Mr Mather after an order for summary judgment in favour of the plaintiffs was made by Registrar Kingsley on 11 July 2011. As to the remaining items claimed by the plaintiffs, Mr Abbott disputes he had possession of some them and, as to the balance, claims he was entitled to retain them as tenant's fixtures. 3 The trial in this matter was listed for hearing on 18 and 19 December 2012. The plaintiffs failed to appear at the trial and on 18 December 2012 I gave judgment to Mr Abbott on the plaintiffs' claim by dismissing the plaintiffs' claims in relation to the remaining items.
The defendant's counterclaim 4 Mr Abbott, by an amended particulars of damages dated 6 December 2012, counterclaims damages against Mr Mather in the sum of $46,231.02. The counterclaim can be divided into four sections: 1. A claim of $25,813.20 for items of leasehold property which Mr Abbott claims were either damaged or removed without authority by Mr Mather. (Page 5)
2. A claim of $1,580 for rental for the month of July 2010 during which period Mr Abbott claims that the premises were not in a tenantable repair. 3. A claim of $14,302.62 for expenses and loss incurred by Mr Abbott placing in secure storage items of property of the plaintiffs left on the premises. 4. A claim of $4,535.20 for legal costs incurred prior to commencement of proceedings relating to enforcement action taken by Mr Abbott for recovery of the premises.
Background 5 As mentioned earlier in this decision, Mr Abbott had taken possession of the premises on 9 June 2010. Mr Abbott's evidence was that he took possession of the premises by having a locksmith remove the locks on the front of the premises and, after taking possession of the premises, Mr Abbott arranged for new locks to be installed so that Mr Mather could not gain entry without the approval of Mr Abbott. 6 At the time Mr Abbott took possession of the premises there was a large quantity of property belonging to Mr Mather, Thermoplastic and its customers on the premises. This property consisted of shop fittings, motorcycles, motorcycle accessories (including parts and clothing), tools and equipment relating to motorcycle servicing and repairs, tyres, waste oil and general rubbish. 7 The evidence of Mr Abbott was that a series of emails were exchanged between Mr Abbott and Mr Mather concerning the removal of the items of property of the plaintiffs from the premises and the tidying up of the premises. These emails, which were tendered into evidence, reveal a deteriorating relationship between Mr Abbott and Mr Mather, which developed into an unpleasant 'tit for tat' between them. 8 On 11 June 2010 Mr Abbott sent an email to Mr Mather stating that Mr Mather's access to the premises to remove items of property was to be under the supervision of Mr Abbott. It was proposed that entry be allowed on 12 and 13 June 2010 for a total of 18 hours. The email stated that further access time would be arranged subject to progress. According to the evidence of Mr Abbott, Mr Mather attended to remove the property and clean up the premises on 12 and 13 June 2010 and spent a total of 15.5 hours at the premises doing so. (Page 6)
9 On 17 June 2010 Mr Mather wrote to Mr Abbott requesting access to the premises again on Saturday, 19 June 2010. Mr Abbott responded by stating that due to prior commitments he was unavailable to arrange access to the workshop of the premises but was able to make available access to the rear yard area so that Mr Mather could remove tyres, waste oil and other extraneous debris. In response to this Mr Mather sent an email to Mr Abbott on 18 June 2010 stating that he was unable to remove tyres and waste oil on the Saturday as he was waiting on a third party to set a time to collect and remove the items. Mr Mather further stated that after he had collected his property from the premises he proposed to have a skip bin delivered and remove the remaining rubbish. 10 The suggestion by Mr Mather that he remove his property from the premises before removing the remaining rubbish created an impasse with Mr Abbott. In an email dated 18 June 2010 Mr Abbott wrote to Mr Mather stating that subject to a satisfactory removal of all items from the yard of the premises Mr Abbott would then allow Mr Mather access to the workshop of the premises to remove remaining items of property. The email concluded by stating: Failing this offer I will be forced to refer the matter once again for legal remedy and until such is determined no further access to the premises, i.e. 18 Boag Road Morley, shall be allowed. 11 In response to this email Mr Mather sent an email dated 19 June 2010 stating that it was 'stupid' of Mr Abbott to insist upon the removal of the rubbish from the rear the yard prior to giving Mr Mather access to remove the rest of his property. 12 Further exchanges of email occurred between Mr Abbott and Mr Mather concerning whether Mr Mather should be permitted access to the workshop to remove items of property prior to removing rubbish and other material from the rear yard. On 23 June 2010 Mr Mather sent an email to Mr Abbott stating that he wanted access to remove his property from the inside of the premises and disputing that Mr Abbott could refuse such a request as leverage to have the yard cleaned up. Again Mr Abbott refused Mr Mather permission to remove items of property before cleaning up the rear of the premises. Mr Abbott in his evidence stated that he was fearful that if Mr Mather was given permission to remove items of property from inside the premises then Mr Mather would leave all of the rubbish in the rear yard for Mr Abbott to clean up. 13 Mr Mather eventually capitulated and attended the premises on 26 June 2010 for approximately four hours when he cleaned the rear of (Page 7)
the premises. On 29 June 2010 Mr Abbott sent an email to Mr Mather stating that he had inspected the premises and was pleased to see that tyres had been removed and the yard area was looking 'very much cleared'. Mr Abbott also stated he noted a couple of benches, an oil tank and a catch tray still in place in the yard. He requested that these items be removed in due course. Mr Abbott advised that in the circumstances he was prepared to grant Mr Mather access to the locked workshop area. A series of emails was then exchanged between Mr Abbott and Mr Mather trying to set a mutually convenient time for Mr Mather to have access to the premises. In the course of that exchange Mr Mather indicated that he required contractors to help him remove the last pieces of property and he intended to arrange electrical and flooring contractors to reinstate the original fixtures of Mr Abbott. This suggestion that contractors would be engaged to reinstate the property appeared to create further tensions between the parties. 14 On 6 July 2010 Mr Abbott sent an email to Mr Mather stating as follows: Good news, a large part of your property has found its way into the yard at the rear of Unit 1 18 Boag Road, some of which is stored undercover and some is not (hope it doesn't rain) all of which is awaiting removal by you. It includes more waste oil, tyres, parts, machinery and some furniture. All that was in the showroom area has been removed excepting some fixtures. Rubbish in the Wanless bin and adjacent the blue bins still awaits removal. I shall open the yard @ 8:30 am on Saturday 10 July 2010 and shall inspect for 100% removal of your property on Sunday, 11 July 2010 prior to any access being granted to remove property from within the workshop area. Please note 'electricians and contractors' will not be admitted. I expect the matter to be concluded on Sunday 11 July 2010 by 9.00 pm or earlier with removal from the workshop of a wheel changer, wheel balancer, lathe and six motorcycles, all of which have or will be positioned adjacent to the sliding door for quick removal. No further access of the workshop will be allowed. Some remaining furniture will be expected removed at the same time. No further admissions to the property will be permitted after 9.00 pm on Sunday. Regardless of your opinion to the contrary, you have been provided with more than sufficient access to my property from which you have been evicted and because you broke an agreement. You have equally and (Page 8)
severally broken agreements since eviction. This interchange is also an agreement the content of which is clearly documented. 15 In response to this email, Mr Mather sent an email to Mr Abbott on 7 July 2010 stating as follows: 16 In response to this email, Mr Abbott replied by email as follows on 7 July 2010: You will not dictate any terms in this matter. Should you not accept what I have offered you DO NOT TURN UP AT ALL. We will then accommodate you not only in your defence of my claim against you for unpaid rent and electricity and outgoings etc but will begin disposal action immediately which action involves the police. Wake-up Aaron, you did the wrong thing not paying the rent, you are still trying to be clever. It's my terms or it's my terms take your pick. Next Email from you is the last, make it appropriate. 17 Later that same day Mr Mather replied by email as follows: David. I can only be the unit from 1230 as I have previously stated, I had no problem at all in removing my property this Saturday, Sunday and am perplexed as to why you have had to place items outside only four days before I would have removed in anyway, I can only presume that this is your way of antagonising the situation and controling [sic] it. I have requested resonable [sic] access from the beginning, David your attitude and actions are beyond reasonable, I have done the best I can given the restrictions you have put in front of me at every opportunity, 48 hrs over four weeks ago would [sic] was all that was needed. And you refused. Thank you as always. 18 On 14 July 2010 Mr Abbott hired a truck with a view to removing five motorcycles and some other heavy machinery from the premises and placing them into storage. Mr Abbott's evidence was that Mr Mather blocked the driveway to the units which prevented the truck from leaving the premises. Mr Abbott's evidence was as a result of this confrontation (Page 9)
he called the police who attended the premises. Mr Abbott stated Mr Mather would not provide to the police an address to which the motorcycles and machinery could be delivered and was insisting that the property be returned to the premises. The police then prevented Mr Mather from following Mr Abbott and Mr Abbott took the motorcycles and machinery to a lock-up storage facility in Osborne Park. 19 Mr Abbott's evidence was there also remained on the premises a front counter and shelving, a kitchen cabinet, a kitchen bench, a change room structure (including mirror and curtain), and a workshop air-conditioner and ducting. All of these items were removed from the premises by Mr Abbott and placed for storage in unit 4 of the complex owned by Mr Abbott.
History of proceedings before trial 20 On 23 August 2010 the plaintiffs commenced these proceedings in the District Court seeking return of the items of property listed in annexure A. On 24 August 2010 Mr Abbott filed an application in the Magistrates Court seeking orders under s 20 of the Disposal of Uncollected Goods Act 1970 (WA)giving authority to Mr Abbott to sell the property stored at the Osborne Park storage unit. On 19 January 2011 an order was made by Principal Registrar Gething of the District Court that the proceedings in the Magistrates Court be transferred to and consolidated with the District Court action. On 16 February 2011 the plaintiffs applied for summary judgment seeking an order for return of all items listed in annexure 'A'. The application was successful. On 11 July 2011 Registrar Kingsley made an order requiring Mr Abbott to deliver up all of the items: Mather v Abbott [2011] WADC 107. Mr Abbott lodged an appeal against the order of Registrar Kingsley insofar as it applied to items which Mr Abbott claimed as tenant's fixtures and items which Mr Abbott denied he had retained. Mr Mather did not attend the hearing of the appeal and his Honour Judge Curthoys allowed the appeal and amended the order of Registrar Kingsley accordingly.
Items of Counterclaim 21 I will deal with each of these four areas of counterclaim separately but to some extent there is an overlap of legal principles.
1. A claim of $25,813.20 for items damaged or removed by Mr Mather 22 The first area of damages counterclaimed by Mr Abbott relates to items of property on the lease premises that it is alleged were damaged or (Page 10)
removed by Mr Mather. This claim is based upon a claim for damages for alleged breaches of the terms of the agreement to lease. 23 A number of preliminary observations should be made concerning the agreement to lease document. The document itself does not appear to have been prepared by a firm of solicitors as it contains no notation on the document identifying who drafted the document. The document contains none of the clauses usually found in an agreement to lease or lease document requiring the tenant at the expiration of the lease to deliver up the premises in good tenantable repair and to remove any fixtures or chattels of the tenant. 24 Mr Abbott in support of his claim relies upon a number of provisions in the agreement to lease. Regrettably, the clauses of the agreement to lease are not numerated and the clauses can only be identified by reference to page numbers of the document. The following clauses in the agreement to lease are relevant: (a) The lessee shall be responsible for and shall carry out as is necessary all cleaning within the premises the subject of this agreement and shall keep the premise and carpark areas in a clean and tidy condition whilst this agreement continues, at the expense of the lessee. [page 3]. (b) The lessee shall be responsible for and carry out any maintenance to office air conditioners at the premises the subject of this agreement at the expense of the lessee and the lessees shall ensure that the said air conditioners are in a condition no less than that at the commencement of this agreement, at its end or renewal. [page 3]. (c) The lessee shall be responsible for and shall carry out any maintenance to all interior light and power fittings and plumbing fittings within the premises the subject of this agreement at the expense of the lessee. [page 4]. (d) The lessee shall be responsible for all internal doors, walls and glass as erected in the office area and shall not modify or change the said premises without the prior approval of the lessor. [page 4]. (e) The lessee shall not be responsible for external building maintenance nor painting except for any damage done to the premises by the lessee and the lessee will make good the said damage at the expense of the lessee. [page 4]. (f) The lessee shall be responsible for signage and shall not paint any external surface of the premises with signs without the express permission of the lessor in writing. [page 4]. (Page 11)
(g) The lessees shall make good any painting or signage or alteration to the premises prior to vacation unless instructed not to do so by the lessor in writing. [page 4]. 25 The lease agreement also contained an indemnity provision which provided as follows: In respect of the herein contained agreements the lessee hereby agrees irrevocably to indemnify fully and completely the lessor, its heirs and successors respect of any cost or loss as result of any action or inaction with respect to the said agreements by the lessee. 26 The amount of $25,813.20 claimed by Mr Abbott for damaged or removed leasehold property has been particularised by Mr Abbott into 10 items.
Item 1 27 The first amount claimed by Mr Abbott is for the sum of $1,000 for the cost of removing signage placed upon the premises by Mr Mather and which was not removed at the expiration of the lease. The evidence of Mr Abbott was that Mr Mather had placed signage on the front of the premises exhibiting the trading name 'Rilusi'. The signage was made out of several sheets of steel covered with vinyl which were attached to a frame on the top of the building. The name 'Rilusi' was stuck on polystyrene to make it look like a motorcycle. Mr Abbott stated that because of the size and elaborate nature of the signage it had to be removed and replaced with new sheets to enable the new tenant to place his own signage on the front of the premises. Mr Abbott engaged a company, Morley Signworks, who removed and installed new blank sheets at a cost of $1,000. Under the provisions of the agreement to lease document, Mr Mather was required to 'make good any signage or alterations to the premises on vacation' (page 4 of the agreement to lease document and designated as cl (g) earlier in this decision). 28 I am satisfied that Mr Mather was in breach of the terms of the agreement to lease by not removing the signage and that $1,000 damages should be awarded to cover the costs incurred by Mr Abbott.
Item 2 29 The next item claimed is the sum of $168.90. This item relates to tip charges incurred by Mr Abbott. According to Mr Abbott's evidence, there was 'junk' left in the yard of the premises by Mr Mather which was removed by Mr Abbott hiring a trailer and taking it to the tip. A claim of $168.90 relates to tip passes paid for by Mr Abbott. However, there was (Page 12)
no provision in the agreement to lease for Mr Mather to deliver up the premises in tenantable repair. By tenantable repair I mean such repair, as having regard to the age, character and locality of the building would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it (see Proudfoot v Hart [1886 - 90] All ER Rep 782; (1890) QBD 42, 52 - 53 (Lord Esher); Wincant Pty Ltd v State of South Australia (1997) 69 SASR 126, 135 (Matheson J)). Once there was a termination of the lease on 9 June 2010, Mr Mather's obligations under the agreement to lease ceased except as to the extent the agreement provided for any continuing obligation: White & Ors v Cariste Pty Ltd [2004] NSWCA 460. In the absence of any provision requiring Mr Mather to place the premises in tenantable repair, I am not satisfied that there has been any breach upon which the claim by Mr Abbott can be founded. Mr Abbott did not make any complaint that during the term of the lease the premises were not in a state of good repair or cleanliness. In fact Mr Abbott's evidence was to the contrary, stating that his impression was that throughout the lease the premises were well maintained by Mr Mather (ts 24). Accordingly, I disallow this item claimed by Mr Abbott.
Item 3 30 The next item claimed is the sum of $4,950 for an alleged unauthorised alteration to the premises made by Mr Mather. The amount claimed is as per a quotation obtained from Civil & Demo Pty Ltd for 'the complete demolition and removal of small extension including metal roof, walls, internal plaster walls and concrete floor'. 31 The High Court in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 83 ALJR 390, made it clear that in cases where a tenant makes unauthorised alterations to a leased premises, then the measure of damages is the cost of the work necessary to produce conformity to the pre-existing appearance of the premises, subject to the qualification it must be a reasonable course to take. The test of 'unreasonableness' is only to be satisfied by fairly exceptional circumstances, akin to a situation where the innocent party is using the measure of damages to secure 'an uncovenanted profit': Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [17]; Radford v De Froberville [1978] 1 All ER 33; (1977) 1 WLR 1262, 1270, 42; Willshee v Westcourt Ltd [2009] WASCA 87. 32 The evidence of Mr Abbott was that the rear of the premises consisted of steel uprights, with corrugated steel sheets on top. (Page 13)
Mr Mather enclosed part of that area using gyprock sheets on the inside and steel on the outside. The enclosure was without Mr Abbott's permission. 33 Accepting the uncontradicted evidence of Mr Abbott, I conclude that the modification or alteration was contrary to the clause on page 4 of the agreement to lease [and designated as cl (d) earlier in this decision] which prohibited any modification or change to the premises without the prior approval of the lessor. 34 I conclude that Mr Abbott is entitled to damages for the costs of reinstating the premises by having the modifications installed by Mr Mather removed. There is nothing on the evidence which would constitute unreasonableness in awarding damages for the costs of such reinstatement, albeit that at one point Mr Mather proposed to remove any modifications made by him. The bottom line is that on the evidence before me the modifications were made without approval and therefore were made in breach of the agreement to lease. Accordingly, Mr Abbott is entitled to claim the costs of reinstating the premises. 35 However, one issue remains. The quotation obtained by Mr Abbott included the removal of a concrete floor. Mr Abbott's evidence as to whether Mr Mather had installed a concrete floor was very unconvincing. Mr Abbott conceded that the area had a carpet over the floor and he could not say if a concrete floor had been installed (ts 46). Accordingly, I am not satisfied that the modification made by Mr Mather included the installation of a concrete floor. The quotation obtained from Civil & Demo Pty Ltd is not itemised so it is not clear what percentage of the quote related to the removal of a concrete floor. I conclude that removal of the concrete floor is likely to be a significant percentage of the work quoted for by Civil & Demo Pty Ltd. Doing the best I can in the circumstances, I will allow $3,500 on this item.
Item 4 36 The next item claimed is the sum of $6,722 for the replacement of a section of fencing and gate allegedly damaged by Mr Mather. 37 Mr Abbott's evidence was that the access gates to a rear yard of the premises were constructed of steel frames enclosed with steel sheets. On either side of the gates were Super 6 or 'Shadow Line' asbestos style sheets. On or about 4 July 2010 (after the termination of the lease), Mr Mather had attended the premises and was observed by Mr Abbott to (Page 14)
go to the gates, take the gates off their hinges and throw the gates aside to access the rear yard. 38 Mr Abbott stated the gate hinges and fence panelling were damaged. Mr Abbott assumed that on a previous occasion Mr Mather must have broken the hinges and to do so would have accessed the hinges by pulling off pieces of panelling of fencing. 39 Mr Abbott stated that he placed back the gates as best he could and the existing tenant was content with these arrangements. 40 Mr Abbott said that he obtained a quotation to replace the damaged fencing and gates. Produced in evidence was a quotation from Residential Fencing which quoted as follows: To pull down and remove the existing gate and fence - $150. Installation of Garrison Heavy-Duty panels, two of 1.5 m x 2100 mm panels to be installed with a Heavy-Duty Garrison double-gate 3.75 m x 2100 mm. There will also be (2) 100 mm x 100 mm steel posts needed. Colour to be advised - $6,572. 41 Mr Abbott was unable to say what 'a Garrison Heavy-Duty' panel or gate consisted of or how it compared with the previous fencing and gate. Mr Abbott had simply instructed Residential Fencing to remove the existing panel and gate and replace it with something equivalent. 42 I conclude that I should disallow the amounts claimed in relation to the gate and fencing for the following reasons: (Page 15)
damage to the gates or why the gates could not simply be repaired rather than replaced. (iii) Thirdly, there was unconvincing evidence as to whether Mr Mather had caused the damage to the fence and the hinges. The claim was based on an inference drawn by Mr Abbott. The inference was not supported by any photographs or other evidence to enable me to conclude whether the inference was reasonable. 43 Based on the above I disallow this item of the counterclaim.
Item 5 44 The next item claimed is $384 for electrical work. The evidence of Mr Abbott was during the term of the lease Mr Mather had carried out a large number of additions and modifications to the internal electrical system of the premises. These alterations had been done with Mr Abbott's approval. Mr Abbott's evidence was that on termination of the lease, Mr Mather attempted to restore the electrical system and in doing so there was a concern the electrical system was unsafe. Mr Abbott stated that several power points had been removed from a metal wall and he was concerned other electrical items were missing, such as circuit breakers. Mr Abbott stated that effectively Mr Mather had left the premises 'live' (ts 42). Mr Abbott engaged an electrician who charged $384 for carrying out various works. The electrician was not called to give evidence and in the absence of evidence from the electrician I am left uncertain as to exactly what defects existed in the electrical system accountable to Mr Mather. Accordingly, I am not prepared to allow this item claimed.
Item 6 45 The next item claimed is $1925.30 for lighting. Mr Abbott's evidence was that Mr Mather had removed from the premises without permission four to five double fluorescent tubes with shrouds on the back which directed light downwards. 46 Based upon the uncontradicted evidence of Mr Abbott, I find that Mr Mather had removed four or five double fluorescent tubes with shrouds without permission. I conclude this was in breach of the clause on page 4 of the agreement to lease and designated as cl (d) earlier in this decision. 47 Mr Abbott did not replace the missing items as the new tenant was not concerned about the existing state of the lighting. However, (Page 16)
Mr Abbott obtained a quotation from a supplier, Lighting Warehouse, for $1,925.30. The quotation included the supply of 31 fluorescent tubes and other items. Mr Abbott in his evidence was unable to reconcile the quantity described in the quotation with his description of the items removed by Mr Mather. Although Mr Abbott stated in his evidence that he had engaged the supplier to replace the missing items, no-one from the lighting supplier was called give evidence to explain the quotation. 48 The quotation included nine fluorescent tubes at $45 each. Based upon Mr Abbott's evidence I am prepared to allow for eight fluorescent tubes at a total cost of $360 as reinstatement costs (see discussion above concerning Tabcorp Holdings Ltd v Bowen Investments Pty Ltd). There were other items in the quotation which possibly relate to missing shrouds, but in the absence of further evidence clarifying the quotation I am not prepared to make any allowance for these missing items.
Item 7 49 The next item claimed is the sum of $765 for inspection and repair of the roof. The evidence of Mr Abbott was that Mr Mather had installed an evaporative air-conditioner on the roof without Mr Abbott's permission. At the end of the lease Mr Abbott ascertained that the air-conditioning was causing a leak of water due to damage to the roofing caused at the time of installation of the air-conditioner. Mr Abbott engaged a repair person who inspected the roof and carried out repairs to the roof to prevent the leakage. Mr Abbott was charged $765 as per an invoice from the repairer dated 9 September 2010. From Mr Abbott's evidence I am satisfied that the leakage was due to damage caused to the premises by Mr Mather installing an air-conditioner. Accordingly, I am satisfied that Mr Mather is liable for the costs of repairing such damage under the clause on page 4 of the agreement to lease and designated earlier in this decision as cl (e). This clause requires Mr Mather to make good any such damage. I will allow $765 for this item.
Item 8 50 The next item claimed is $4,098 for air-conditioners. The claim relates to a 2 HP Kelvinator air-conditioner and a 1.5 HP Kelvinator air-conditioner which, according to the evidence of Mr Abbott, were removed from the premises without permission by Mr Mather. 51 The air-conditioning units were installed by Mr Abbott in the premises in 1990 and at the time were second-hand. The units were about six to seven years old when they were installed. Mr Abbott's evidence (Page 17)
was that the units were 'incredibly reliable'. Mr Abbott tendered an advertisement from a newspaper, the 'Eastern Reporter' dated 26 October 2010. The newspaper advertised a 2.5 HP inverter reverse cycle split system air-conditioner for $2,699 and a 1.0 HP inverter reverse cycle split system air-conditioner for $1,399. 52 I am not prepared to allow the full amounts claimed. The air-conditioning units removed by Mr Mather were nearly 20 years old. In my opinion to allow the costs of new units would be unreasonable in the circumstances and would be akin to awarding a profit to Mr Abbott arising from the loss (see discussion of Tabcorp Holdings Ltd v Bowen Investments Pty Ltd above). There is no evidence that Mr Abbott has suffered any loss of rental as a result of the removal of the old air-conditioners. Further, there is no evidence that the air-conditioners have been replaced. In the circumstances I believe nominal damages of $300 should be allowed.
Item 9 53 The next item claimed by Mr Abbott is the sum of $2,600 for the manufacture and installation of security grilles. The evidence of Mr Abbott was prior to the commencement of the lease Mr Abbott constructed steel grilles which were bolted onto the brickwork. The grilles covered two front windows and a sliding door. Mr Abbott's evidence was that, without permission, Mr Mather had removed the steel security grilles and replaced them with individual metal bars. 54 Based upon the uncontradicted evidence of Mr Abbott I accept that Mr Mather removed security grilles without permission and replaced them with individual metal bars. I conclude this was in breach of the clause on page 4 of the agreement to lease and designated as cl (d) earlier in this decision. Under this clause the lessee was not permitted to make any modification or change to the premises without the prior approval of the lessor. 55 Mr Abbott believed that the bars installed by Mr Mather were inadequate because a rope could be tied around them and they could be easily pulled away. Mr Abbott said he held a tradesman's ticket as a welder and he estimated the cost of replacing the removed security grilles, including material and labour, was $2,600. No independent quotation or assessment was produced in evidence to show the amount claimed by Mr Abbott was reasonable. In light of the animosity that existed between Mr Abbott and Mr Mather, as revealed in the emails exchanged between them, I conclude I should take a cautious approach to accepting any (Page 18)
estimate given by Mr Abbott when it is unsupported by independent evidence. Taking this approach, and applying the principles of Tabcorp Holdings Ltd v Bowen Investments Pty Ltd,I allow the sum of $1,300 for this item.
Item 10 56 The next item claimed by Mr Abbott is the sum of $2,000 for shelving. The evidence of Mr Abbott was that two units of shelving had been removed by Mr Mather without permission. The shelving was constructed of a metal tubular frame with clipboard shelves. Mr Abbott estimated the cost of the material and labour to manufacture replacement shelving is $2,000. 57 Based upon the uncontradicted evidence of Mr Abbott I find that Mr Mather moved shelving belonging to Mr Abbott without permission. I conclude this was in breach of the clause on page 4 of the agreement to lease and designated as cl (d) earlier in this decision. 58 Again, I believe I should take a cautious approach to Mr Abbott's estimate of the cost of replacing the shelving. Taking this approach, and applying the principles of Tabcorp Holdings Ltd v Bowen Investments Pty Ltd,I allow the sum of $1,000 for this item.
Summary 59 In summary, I allow the following amounts: Item 1: $1,000 Item 3: $3,500 Item 6: $360 Item 7: $765 Item 8: $300 Item 9: $1,300 Item 10: $1,000 Total: $8,225
A claim of $1,580 for rental for the month of July 2010 60 The evidence of Mr Abbott was that the month of July 2010 was 'the time he (Mr Mather) was spending messing around, literally not (Page 19)
moving out' (ts 62). As a result of this, Mr Abbott told Mr Mather that he would be charged rental for an additional month. As stated earlier in this decision, there was no clause in the agreement to lease requiring Mr Mather to deliver the premises in tenantable repair. It has not been pleaded or contended that such a condition should be implied. The lease came to an end as at the time possession was taken, being 9 June 2010. In the absence of a provision in the agreement to lease for Mr Mather to deliver up the premises in tenantable repair, I am not satisfied that there is any entitlement for Mr Abbott to claim additional rental on the basis that the premises had not been fully vacated by Mr Mather. Accordingly, this component of the counterclaim is dismissed.
A claim of $14,302.62 for expenses and loss incurred by Mr Abbott placing in secure storage items of property of the plaintiffs left on the premises 61 The evidence of Mr Abbott was that he decided that he should remove items of property left at the premises by the plaintiffs and place them into storage so as to enable him to re-lease the unit and receive income from a new tenant (ts 33). The claim by Mr Abbott for storage expenses and loss incurred can be divided into two sections: 1. Osborne Park Storage: Mr Abbott claims costs incurred in relation to storing a tyre machine, a tyre balancer, a lathe and tooling, and five motorcycles at a storage facility in Osborne Park [items 20, 21, 22, 50, 51, 52, 53, and 54 of Annexure 'A']. The costs claimed are as follows: 1. The hire of a truck to transport the items: $116.95 2. Fuel for the truck: $28.59 3. Storage unit costs: $3,319.20 4. Costs of a padlock for storage unit: $9.00 Total: $3,473.74 62 In relation to items 1, 2 and 4 above, Mr Abbott produced receipts for these expenditure items. 63 In relation to item 3, being the storage unit costs, the claim made by Mr Abbott is for a period of nine months at the rate of $368.80 per month. The invoices produced in evidence in support of the claim commence in the month of July 2010 but do not run sequentially. The last invoice is for August 2011. There are no invoices to cover the months of September, (Page 20)
October and November 2010. The period claimed up to August 2011 covers the period that the items were held in the Osborne Park storage unit until the stored items were returned to Mr Mather pursuant to an the order made by Registrar Kingsley on 11 July 2011. I find that the storage costs claimed are reasonable storage costs but in order for Mr Abbott to recover these items he will need to establish a legal entitlement. 2. Unit 4 storage: Mr Abbott makes a second claim for storage of various items of furniture and fittings left in the premises by the plaintiffs. They consisted of a front counter and shelving, kitchen cabinet, kitchen bench, change room structure (including mirror and curtain), and a workshop air-conditioner and ducting [items 1, 4, 5, 6 and 16 of Annexure 'A']. Mr Abbott's evidence was that these items were bulky and difficult to handle. Mr Abbott said he removed the items of property from the premises so he could provide vacant premises to the new tenants. Mr Abbott said he placed the items in unit 4 of the complex. Mr Abbott did not investigate the costs of having the items removed and stored in another location. Mr Abbott claims $10,611 being the full rental of unit 4 for a nine-month period commencing from July 2010. This amounts to a rental of $1,179 per month (the rental under the agreement to lease between Mr Abbott and Mr Mather was $1,580 per month). The items stored in unit 4 were released back to Mr Mather once the order was made by Registrar Kingsley on 11 July 2011. This would in fact have meant that the items were stored for 12 months but there is no explanation as to why Mr Abbott has claimed for only nine months' storage. I am not satisfied that it was reasonable to store the items in unit 4 and charge full rental. The photographs tendered into evidence of the items stored in unit 4 did not satisfy me that the items needed to be stored in premises the size of unit 4. Further, I am not satisfied the rental claimed is reasonable given the lack of evidence of the cost of storing the items elsewhere.
Landlord's right to claim for costs of storage 64 Surprisingly, where a landlord re-enters and takes possession of leasehold premises, the law is somewhat unclear as the landlord's rights in relation to the tenant's goods on the premises [see Robin Tapper Landlord's Legal Limits on Eviction,Vol 15, UWALR 422]. Mr Abbott's pleaded claim is not entirely clear as to the basis upon which Mr Abbott (Page 21)
claims he is entitled to recover storage costs and losses. As a result of this I invited counsel acting for Mr Abbott to file written submissions to clarify the grounds of Mr Abbott's claim. The further submissions filed identified three grounds for contending that Mr Abbott was entitled to claim damages in the form of costs and losses incurred in storing equipment belonging to Mr Mather.
1. Claim based upon contractual provisions 65 Mr Abbott claims that Mr Mather was obliged under the clause of the agreement to lease relating to making good alterations to the premises, to remove chattels and tenant's fixtures from the premises after the termination of the lease. Mr Abbott further claims that his entitlement to claim damages for breach of this obligation is reinforced by the indemnity provision contained in the agreement to lease. 66 To avoid confusion I will repeat the wording of the 'make good' clause. It states: The lessees will make good any painting or signage or alteration to the premises prior to vacation unless instructed not to do so by the lessor or in writing. 67 When determining whether this clause covers making good the premises by removing items of property of the tenant, there are a number of rules of interpretation which must be taken into account. Firstly,the primary role of interpretation is to endeavour to discover the intention of the parties from the wording of the document but the meaning is to be determined objectively. This requires a determination of the meaning that a document would convey to a reasonable person having all the background knowledge of the parties as to the situation they were in at the date the agreement was made: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181, 188. Secondly, the court must consider the terms of the contract in their commercial context. This includes considering particular terms in light of the whole text of the contract. The courts should construe commercial contracts fairly broadly without being too astute or subtle in finding defects: Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99, 109. Thirdly, the courts should construe contract so as to avoid it making commercial nonsense or working commercial inconvenience. That involves taking into account the context in which the parties were operating: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 350 (Mason J); and see also Zhu v The Treasurer of New South Wales (2004) 218 CLR 530, 559. Where (Page 22)
the words of a contract are ambiguous, the courts will prefer a meaning which will avoid consequences which appear capricious, unreasonable, inconvenient or unjust: Australian Broadcasting Commission v Australian Performing Right Association Ltd, 109 (Gibbs J). 68 An example of this pragmatic approach to interpreting clauses in a lease agreement is the decision of Wincant Pty Ltd v State of South Australia. That case concerned a lease of a multi-storey building. The tenant installed partitioning which it failed to remove at the end of the lease. The landlord had no use for the partitioning and until the partitioning was removed the premises remained untenantable. The lease contained a requirement to yield up the premises at the expiration of the lease in good and substantial repair and condition. However there was no 'make good' clause or decommissioning clause. The majority of the Full Court of South Australia (Doyle CJ and Matheson J) viewed the repair clause as requiring the tenant to deliver up the premises in tenantable repair so as to be suitable for re-letting. The majority held that the tenant had breached this clause and the landlord was entitled to recover the costs of removing the partitioning. Doyle CJ emphasised that the tenant was only required to remove such fixtures, the presence of which had the result that the premises were not in re-lettable condition, that is, tenantable repair. Olson J in a dissenting judgment held that in the absence of clear wording, the tenant was not obliged to remove tenant's fixtures, regardless of the state of repair and inconvenience to the landlord. 69 In the agreement to lease between Mr Abbott and Mr Mather there is no provision requiring Mr Mather to yield up the premises in good and tenantable repair. Nor did Mr Abbott argue an implied term to that effect. However, the contention of counsel for Mr Abbott is that the expression 'make good any … alteration of the premises prior to vacation' required the tenant to remove the items the subject of the storage claim. The essence of the claim by Mr Abbott is that the presence of these items on the premises constituted an 'alteration' by virtue of the space they occupied. 70 The Shorter Oxford English Dictionary defines an 'alteration' as: 71 The definition contained in the dictionary would cover an occupation of space if it changed the character of the premises. However, in my opinion, in the context of the 'make good' clause the word 'alteration' (Page 23)
should be given a construction that it refers to an alteration to the structure of the building. This is consistent with the other items specifically mentioned in the make good clause, that is painting and signage (in reaching this conclusion I acknowledge that the modern approach is to treat with caution the use of the ejusdem generis rule of interpretation: Waterhouse v Pas [1998] WASCA 236). The construction I give to the word 'alteration' is also consistent with authority. In Bickmore v Dimmer (1903) 1 Ch 158 the Court of Appeal in England held that a clause requiring a lessee not to make any alteration to the demised premises without a prior written consent of the landlord, did not require the lessee to obtain consent to erect and secure a large clock on the wall of the premises. Vaughan Williams LJ stated: In my opinion, the words 'alteration to the said premises' apply only to alterations which would affect the form or structure of the premises. [167] 72 The conclusion reached in Bickmore v Dimmer was in part based upon reasoning that to require consent to every alteration which was not to the form or structure of the premises would place unacceptable limitations on the tenant's use of the premises. Although this same reasoning is less applicable to a 'make good' clause at the end of the lease, in my opinion the expression 'alterations of the premises' in the agreement to lease is a reference akin to an alteration of the structure of the premises as distinct from something in the nature of using or occupying space of the premises. 73 In this matter I conclude that the presence on the premises of the items placed into storage by Mr Abbott did not constitute 'an alteration of the premises' and therefore the claim by Mr Abbott based upon the 'make good' clause has not been established. 74 The indemnity clause in the agreement to lease does not assist Mr Abbott as it relates only to losses arising from the covenants contained in the lease. In view of my conclusion that the claim based upon the 'make good' clause in the lease has not been established, it follows that the indemnity provision likewise has no application.
2. Claim based upon costs of mitigation 75 It is submitted on behalf of Mr Abbott that he is entitled to claim costs of removing and storing items from the premises so as to mitigate the loss he would have otherwise suffered by not being able to re-let the premises. As a matter of general principle where a person, acting in reasonable response to another person's breach of contract, incurs (Page 24)
expenses or further losses in order to avoid or diminish the damage from the breach, that person is entitled to recover those expenses or further losses. This may be so even if the expenses incurred exceed the expectant damage that would otherwise be suffered: Fox v Wood (1981) 148 CLR 438, 446 - 7; Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322, 356. 76 However a claim for costs of mitigation only arises where there has been a breach of contract or some other cause of action giving rise to a claim for damages. The costs incurred in mitigating a person's loss are a part of the process of assessing the correct entitlement to damages. It is not a cause of action in itself. For reasons I have given earlier in this decision, I dismissed the claim by Mr Abbott based upon an alleged breach of contract and therefore the issue of mitigation of damages does not arise.
3. Claim based upon bailment 77 Mr Abbott alternatively claims that he was in the position of an involuntary bailee and as such is entitled to recover from Mr Mather the reasonable costs of keeping and safeguarding the goods left on the premises by Mr Mather. 78 It is conceded by counsel for Mr Abbott that there is no authority directly supportive of the proposition that a landlord is entitled to claim expenses incurred for storing property left behind by a tenant on the basis of an involuntary bailment. In Palmer's Bailment (2nd ed) the learned author states at 362 as follows, 'The difficulties of the involuntary bailee remains a blot on the law'. 79 The contention on behalf of Mr Abbott is that an entitlement arises under the principles of unjust enrichment. In my opinion the submission on behalf of Mr Abbott that he is entitled to recover loss and costs incurred on the basis of an unjust enrichment is not adequately pleaded. However I will put aside this pleading deficiency and examine the merit of such a claim based upon the evidence before me. 80 The concept of unjust enrichment was recently described by French CJ, Creenan and Keifel JJ in Equuscorp Pty Ltd v Haxton [2012] HCA 7 [34]; (2012) 286 ALR 12, as serving a taxonomical function of the category of cases in which the law allows recovery by one person of a benefit received by another. Recovery in such cases is based upon four features: (Page 25)
1. Recovery depends upon enrichment of the defendant by reason of one or more recognised classes of 'qualifying or vitiating features'; 2. The category of cases must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated as unjust; 3. Unjust enrichment so identified gives rise to a prima facie obligation to make restitution; 4. The prima facie liability can be displaced by defences, or circumstances which the law recognises would make an order for restitution unjust. 81 A classic circumstance of a claim of unjust enrichment is where money is paid by mistake or without consideration. There the claim is based upon the question of whether it would be unconscionable for the recipient to retain the money: Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516, 557 [104]; Equuscorp Pty Ltd v Haxton [32]. Unconscionability remains a seminal notion of the remedy based upon the concept of what is just in the circumstances: Equuscorp Pty Ltd v Haxton [32]. 82 It is submitted on behalf of Mr Abbott that his position was similar to a bailee under a mandate. An authority relied upon by counsel for Mr Abbott is China Pacific SA v Ford Corporation of India [1982] AC 939; [1981] 3 All ER 688; [1981] 3 WLR 860. That case concerned a salvaging company (a salvor) that had been engaged to salvage a vessel, 'Winson', and/or its cargo consisting of wheat. The vessel had been stranded on a reef in the South China Sea. As a part of the salvaging exercise, a portion of the wheat was removed to lighten the stranded vessel. This wheat was stored at the salvor's expense in a storage space in Manila. However, before the salvor could complete the salvaging exercise, the Vietnam War intervened and prevented completion. The Court of Appeal held that the salvor was entitled to be reimbursed for its expenses incurred in storing the wheat removed which ultimately was returned for the benefit of the owners of the wheat. Critical to the right of recovery against the owners of the wheat was the fact that the salvor had a contractual duty of care to preserve the goods and this was for the benefit of the owner [Lord Diplock (869) of the WLR report]. Lord Simon of Glaisdale in his decision of the Weekly Law Reports stated as follows: (Page 26)
I agree that there is no general right of a bailee to be reimbursed expenses incurred in fulfilling his duty to safeguard bailed goods; and I agree that there was an element of necessity in the cases relied upon by the salvor under this head. But I think it puts it too narrowly to say that such are the only circumstances in which the law will import an obligation to reimburse – unless, indeed, one is prepared to go further and argue that only a bailee who is an agent of necessity is entitled to reimbursement. No authority so stipulates. The relevance of necessity in the cases relied upon by the salvor is, in my view, justice calls for reimbursement in such circumstances: the emergency imposes obligations on the bailee beyond what would generally be contemplated on a bailment. But such are not the only circumstances in which justice demands indemnity. In my view the following circumstances in the instant appeal import a correlative obligation to reimburse expenses: (1) The contract of bailment was a commercial one; (2) It came to an end when the salved good were brought to a place of safety, which, it has been the common assumption, was the entry into the port of Manila (though I must not be taken as necessarily endorsing this view); (3) The bailee then continued in possession as a gratuitous bailee; (4) He incurred reasonable expenses in safeguarding preserving the goods, to the benefit of the bailor; (5) The bailor stood by, knowing that the bailee was so acting to his (the bailor's) benefit. (872) 83 In the Canadian decision of R v Howson (1966) 55 DLR (2d) 582, the owner of a motor vehicle parked his car in a private parking lot without the permission of the owner. The superintendent of the parking lot arranged for the accused to tow away the owner's vehicle. The accused refused to deliver up the vehicle to the owner until he was paid a towing and storage charge. The owner eventually paid the amount under protest and recovered his vehicle but presented charges against the accused for stealing his vehicle. The magistrate convicted the accused but on appeal the conviction was set aside on the grounds that the accused had an honest claim of right. Laskan J stated: I do not think that the operator of the lot was under any duty to search out the owner of the illegally parked car. If he is not content to let the car remain where it is until the owner appears or if he is not content simply to remove it to the nearest street curb but decides to remove it to an accessible place of safe keeping, I would hold that he should be entitled to recover the reasonable expenses incurred in doing so. Such a view may not be quite consonant with the attitude of the common law that a person (Page 27)
cannot ordinarily be made a debtor without his consent: See Falcke v. Scottish Imperial Ins Co(1886), 34 Ch D 234, per Bowen LJ, at p 248. But I pray in aid the expansion of the law of quasi-contract or restitution to support recognition of a legal obligation to reimburse a person who has thus taken care of another's goods which have been thrust upon him: See Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd., [1943] AC 32, per Lord Wright at p 61; Deglman v. Guaranty Trust Co. of Canada and Constantineau, [1954] SCR 725; [1954] 3 DLR 785, per Rand and Cartwright JJ. (593) 84 On behalf of Mr Abbott it is contended that a claim based upon an involuntary bailment arises in this case as the items stored were left on the premises in breach of the make good clause, that Mr Mather failed to remove the items or give directions as to where they could be delivered, and Mr Mather directed Mr Abbott that the goods were to be kept safe from damage or theft. As to this latter circumstance, Mr Abbott relies upon the email he received from Mr Mather on Wednesday, 7 July 2010 which stated as follows: 85 It seems to me that where a landlord is by necessity required, with the tenant's knowledge, to store goods belonging to a tenant because the tenant fails to remove them there may be circumstances where it would be unconscionable for the landlord not to be given a right of recovery of these expenses based upon the principles of unjust enrichment. However, the right of recovery is very much tied to whether it was necessary and/or other factors of 'good conscience'. This in part may depend upon whether there is a contractual obligation on the part of the tenant to otherwise remove the items. 86 In the circumstances of this case I am not satisfied there was a sufficient circumstance of necessity and good conscience to justify such an award being made. Firstly, for reasons I have given earlier there was no contractual obligation established that Mr Mather was obliged to remove the items. Secondly, the email of 7 July 2010 must be placed in context. Mr Mather made it quite clear at or about 18 June 2010 that he was willing to remove the items of property in dispute from the premises. Mr Abbott made a calculated decision not to permit this as he wished to secure the cleaning up and removal of rubbish in the rear of the premises (Page 28)
prior to giving Mr Mather the necessary access to remove the items of property inside the premises. Again Mr Mather indicated in his email of 23 June 2010 a willingness to remove his property from inside the premises. It was the escalation of the dispute between Mr Abbott and Mr Mather about the cleaning up of the premises and the removal of tenant's fixtures that ultimately lead to an impasse. In my view, any bailment created was not akin to a bailment of necessity. The bailment did not arise out of a commercial agreement for Mr Abbott to take possession of the goods but rather out of a disputation between the parties. Mr Mather did not request Mr Abbott to hold the goods and in fact almost immediately commenced proceedings in the District Court for recovery of the goods. In relation to the items stored in unit 4, there was no application made by Mr Abbott under the Disposal of Uncollected Goods Act 1970 (WA). In such circumstances I do not believe the situation was akin to a gratuitous bailment out of necessity where it would be unjust not to allow Mr Abbott the amounts he claims. Accordingly, I dismiss Mr Abbott's claim based upon a bailment. 87 For the above reasons I dismiss the claim by Mr Abbott for storage costs.
Claim for sundry items 88 Mr Abbott claims a number of other sundry costs incurred by him which make up part of the claim of $14,302.62, although they do not strictly come within the description of storage costs. These are as follows: 1. The costs of installing new padlocks on the premises at the time of the taking possession – $42.88. I am satisfied that under the indemnity provision of the agreement to lease that Mr Abbott is entitled to claim this amount which in my opinion is a reasonable expense incurred and arising from a failure of Mr Mather to pay his rental on time and giving an entitlement to Mr Abbott to re-take possession. 2. Costs of removing oil - $125.50 This claim relates to expenses incurred by Mr Abbott in removing oil left on the premises by Mr Mather. This item is not allowed as there was no contractual obligation on the part of Mr Mather to put the premises in tenantable repair after Mr Abbott took possession. (Page 29)
4. A claim of $4,535.20 for legal costs incurred prior to commencement of proceedings relating to enforcement action taken by Mr Abbott for recovery of the premises 89 Mr Abbott initially claimed the sum of $4,535.20 allegedly arising from the breach of the lease by Mr Mather. However invoices totalling only $3,743.30 were tendered into evidence. The invoices from D'Angelo Legal were as follows: 31 January 2009: $585.20 30 May 2009: $412.50 9 June 2010: $440.00 10 June 2010: $1,302.40 26 June 2010: $518.10 31 July 2010: $485.10 90 The invoices had attached to them timesheets which gave particulars of attendances. However the attendances generally gave no description of the work performed. There is insufficient information in the invoices for me to reach any conclusion as to precisely what the legal services related to, whether it related to breaches of the lease and whether the charges are reasonable. In the absence of any further supporting evidence and taking into account that the onus is on Mr Abbott to prove his damages, I am not prepared to allow the amounts claimed.
Summary of award of damages 91 In summary, I allow the following amounts of the counterclaim: 1. Items removed or damaged by Mr Mather: $8,225.00 2. Sundry items: $42.88 Total: $8,267.88 (Page 30)
ANNEXURE A
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