MEK Nominees Pty Ltd v Secure Parking Pty Ltd - [2000] VSC 416

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6990 of 2000

MEK NOMINEES PTY LTD	Plaintiff
v
SECURE PARKING PTY LTD	Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2000
DATE OF JUDGMENT:	4 October 2000
CASE MAY BE CITED AS:	MEK Nominees Pty Ltd v Secure Parking Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 416

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Application by defendant to convert a motion to a writ to enable cross-claim.

Plaintiff entitled to proceed with motion.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Colvan with Mr P. Best	Tisher Liner & Co
For the Defendant	Mr R. Strong	Mallesons Stephen Jacques

HIS HONOUR:

The defendant in the proceeding issued a summons on 28 September 2000 seeking the following orders:

"1.Directions set out in paragraphs 2, 3 and 4 of the orders of Nathan, J. made on 8 September 2000 be vacated.
2.This proceeding continue as if it had been commenced by writ.
3.The order set out in order 5 of the orders of Nathan, J. made on 8 September 2000 be amended so as to read:
'There be no order for the defendant's costs of summons dated 7 September 2000 and otherwise the cost of that summons and this day's hearings be reserved.'

4.Such further or other orders and directions as to the court shall be just."

The plaintiff, MEK Nominees Pty Ltd, is the owner of premises situated at 180 Russell Street, Melbourne, on which is erected a multi-storey car park. The defendant, Secure Parking Pty Ltd, is the tenant of the premises pursuant to a lease dated 12 August 1996. The lease is for a term of five years commencing on 1 May 1996 and follows that the lease will expire on the eve of 1 May 2001. The rental varies in accordance with provisions in the schedule, but it is in the order of $1.6 million per year, approximately $139,706 per month. The lease provides for further terms, being three terms each of five years.

A dispute has arisen between the parties, and on 31 August 2000 the plaintiff issued an originating motion invoking the summary jurisdiction of the court pursuant to s.137 of the Property Law Act 1958 to have the issues determined by the court. The principal bone of contention concerns the interpretation of clause 9.4(b)(i) of the lease and whether or not it applies to the circumstances which have arisen in the last year or so. Clause 9.4(b)(i) provides as follows:

"If at any time during the term of this lease the lessees trade or business carried on in or from the leased premises is restricted by reason of any law or action of the City of Melbourne or any other governing authority having jurisdiction in the matter the lessee may elect to pay thereafter during the period of such restriction in lieu of the rent then payable by the lessee a rent calculated in accordance with the following formula -"

Thereafter appears a formula which…

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.

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Details

Case: [2000] VSC 416
Decision Date: 4 October 2000

CaseChat Overview and Summary

In the case of MEK Nominees Pty Ltd v Secure Parking Pty Ltd, the matter before the court involved an application by the defendant to convert a motion to a writ. The objective of this conversion was to enable the defendant to file a cross-claim against the plaintiff, MEK Nominees. The defendant, Secure Parking Pty Ltd, sought to introduce additional claims against the plaintiff in the course of the original proceedings. The case was heard in the Supreme Court of New South Wales, where the plaintiff opposed the application.

The primary legal issue that the court had to decide was whether the defendant's application to convert the motion to a writ should be granted. This decision hinged on whether such a conversion would be in the interests of justice and whether it would unduly prejudice the plaintiff. The court needed to consider the principles governing the amendment of pleadings and the overarching objective of ensuring that justice is served efficiently and fairly. Furthermore, the court had to evaluate whether the proposed cross-claim raised matters that were so intertwined with the existing dispute that it warranted being heard in the same proceedings.

The court carefully considered the relevant legal principles and the specific circumstances of the case. It found that granting the defendant's application to convert the motion to a writ and allow a cross-claim would not be in the interests of justice. The court determined that the plaintiff would be prejudiced by the introduction of the cross-claim at that stage of the proceedings. Additionally, the court emphasised the importance of maintaining the procedural integrity and timeliness of legal actions. Consequently, the court dismissed the defendant's application and ruled that the plaintiff was entitled to proceed with the motion as originally filed.

In conclusion, the court denied the defendant's application to convert the motion to a writ and to introduce a cross-claim. The plaintiff, MEK Nominees Pty Ltd, was thus permitted to continue with the original motion without the additional claims from the defendant. This decision underscores the importance of adhering to procedural rules and the need to balance the interests of all parties involved in litigation.

Orders