McKendrick & Co Pty Ltd v Fush

[2001] VSC 95

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 7158 of 1999

McKENDRICK & CO. PTY LTD (ACN 004 198 663)	Plaintiff
v
FRANK FUSH, MAUREEN FRANCES FUSH, COLLIE & TIERNEY (MILDURA) PTY LTD (ACN 005 110 118)	Defendants

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATES OF HEARING:	26, 27, 28 February, 1, 2, 5, 6 and 7 March 2001
DATE OF JUDGMENT:	18 April 2001
CASE MAY BE CITED AS:	McKendrick v Fush and Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 95

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Lease – enforceability – s. 54(2), Property Law Act 1958 – part performance – estoppel - anticipatory breach – term going to root of contract – repudiation – acceptance - damages – conduct in breach of Part V of Trade Practices Act 1974 and Part II of Fair Trading Act 1985 – negligence – causation – damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. Jones	McKean & Park
For the Defendants	Mr G. Lucas	Connery & Partners

HIS HONOUR:

Overview and basic chronology

1. The plaintiff, McKendrick & Co Pty Ltd, is a long established wholesale and retail timber and hardware merchant in Mildura.  For a period up to and including August 1999 its managing director (he was also a full-time employee) was Mr David McKendrick (“Mr McKendrick”).  The business had been established by his grandfather.  His father, Mr Ross McKendrick, had been the company’s previous managing director.  Mr Ross McKendrick retained a practical involvement in the company’s affairs at pertinent times.

1. The first and second defendants, Frank and Maureen Fush, were at relevant times the registered proprietors of premises at the corner of Etiwanda Avenue and Hynes Court, Mildura (“Etiwanda Avenue”).  The premises comprised offices, an area suitable for a showroom, a warehouse and an open yard.  The major part of the site consisted of the open yard which had gates onto both Etiwanda Avenue and Hynes Court.

1. The third defendant, Collie & Tierney (Mildura) Pty Ltd, was at relevant times a real estate agency operating in Mildura.  One of its principals was Mr Frank Tierney.  Another shareholder and director, and apparently the head of its commercial property section, was Mr Steve Garsed.  An employee in the commercial property section was Mr Nathan Murphy.  The last-mentioned gentleman was relatively inexperienced in the leasing of commercial property at pertinent times.

1. In early 1999 the plaintiff carried on its business from two Mildura premises - premises which it owned in Langtree Avenue (“Langtree Avenue”);  and premises in Ninth Street, which it held under a licence agreement (“Ninth Street”).

1. Langtree Avenue was used as a retail hardware outlet.  Ninth Street was used for preparation and storage of timber and for sale of timber and builders’ hardware.

1. The records of the company were computerised.  The main computer was situate at Langtree Avenue.  There was also an office at Ninth Street.  It was computer-linked with Langtree Avenue.  The evidence of Messrs David and Ross McKendrick well-satisfied me that it was necessary to have an office at Ninth Street;…