Milewski-Zayat v Spacerack Pty Ltd (No 2)

[2009] QSC 369

[2009] QSC 369

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 6598 of 2009

BELLA MILEWSKI-ZAYAT	Applicant
and
SPACERACK PTY LTD	Respondent

BRISBANE

..DATE 11/11/2009

ORDER

HER HONOUR:  The applicant has applied that an order which I made on 28 October 2009 be set aside.

On 28 October 2009, I discharged an injunction issued by this Court on 28 July 2009 against the fourth respondent on the application of the fourth respondent and ordered that the applicant deliver vacant possession of premises located at 51 Bunya Street, Eagle Farm, to the fourth respondent, within 14 days and made a limited costs order.

The reasons for my making those orders are set out in reasons which I gave orally on that day, and which have been reduced to a transcript available to the parties and to the public.

The two matters essentially which concerned me on that occasion and which led to that order, although I don't attempt to do this in substitution of the reasons but merely to summarise them, were that there was no evidence that the fourth respondent had been served with the proceedings for the injunction and secondly that there was no evidence that the plaintiff had paid, or secured the payment of rent in premises in which she purports to be a tenant entitled to possession.

A lot of material has been read before me today which contains a number of issues unnecessary for me to decide today.  The allegations, particularly between the second defendant and the plaintiff, do neither of them any credit, but it is not possible for me to determine on a summary application which, if any, of the allegations made are correct.
Further, the authenticity of many of the documents put before me as attachments to affidavits have not been sworn to and cannot be relied upon.  For example, Exhibit BMZ2 to the affidavit of the applicant filed by leave today was not sworn to and indeed the evidence in Exhibit 1 suggests that it is a false document.

In criticising the plaintiff for apparently putting false documents before me, I do not wish to appear to suggest that the second respondent has been honest and forthright either, merely that I cannot and should not make a final determination on those matters today.

What concerns me today is if new facts and circumstances have been put before me to suggest that the order made by me on 28 October 2009 for the reasons given by me was given on some incorrect basis or the judgment was in some way incorrect on the basis of the facts now before me.

No evidence on which I could rely has been led before me to suggest that the fourth respondent was served with the proceedings seeking an injunction.  Secondly, no evidence has been led to suggest that the rent which is due and payable has been paid or will be or is being secured.  Indeed, the plaintiff conceded before me that no rent has been paid since the end of June and that she has no current means of securing the rent.  She said that she was attempting to retrieve money from customers and hoped to raise money by repairing three cars from Mr De Silva.
However, she did say that those cars were being repaired on a cost only basis and would not generate any profit, so she can have no expectation of raising money to pay the rent from that.

In those circumstances, there is no reason to set aside the order I made, or to doubt the validity of the reasons given.

Ms Milewski-Zayat asked for compensation for a spray booth which is now a fixture on the premises.  That's not a matter that could properly be before me.  She's asked for an order for a Court binding mediation.  In the circumstance where the parties are making allegations of disgraceful behaviour against one another, it is not my view that mediation would be useful.

She's further asked for further time to be allowed to stay in the premises to finish the vehicles which are being repaired as she says without any prospect of generating a profit.

The fourth respondent is the registered lessee of the premises and entitled to possession of them.  The plaintiff is not entitled to possession as against him and certainly not without any offer or expectation of being able to pay any rent for the premises, so the only order I make is that the application of the plaintiff filed on 4 November 2009 is dismissed.

...
HER HONOUR:  The applicant is to pay the fourth respondent's costs of and incidental to the application today to be assessed.

-----