Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd - [1981] FCA 14

Re: MISTER FIGGINS PTY. LTD.
And: CENTREPOINT FREEHOLDS PTY. LTD.
V.G. No. 116 of 1980
Trade practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.

CATCHWORDS

Trade practices - consumer protection - misleading and deceptive conduct - jurisdiction of court to hear and determine all claims made by applicant - admissibility of similar fact evidence.

Trade practices - consumer protection - misleading and deceptive conduct - lease of shops - knowledge of and reliance upon that conduct.

Damages - measure of damages - power of court to make orders compensating person suffering loss or damage - discretion of court - powers to vary contract or arrangement - principles to be applied - variation of lease.

Trade Practices Act 1974 ss. 52, 82, 86, 87.

HEARING

MELBOURNE

#DATE 25:2:1981 & 6:7:1981

ORDER

1. That the lease dated 22 September 1978 and entered into between Centrepoint Freeholds Pty. Ltd. as lessor and Mister Figgins Pty. Ltd. as lessee, being the lease of shops G15, 116 and part 112 at Centrepoint Mall, Bourke Street, Melbourne, be varied as hereinafter set out and that the lease as so varied had effect on and after the commencement of the lease on 10 October 1979:

(a) Delete PART IV (Initial rent) of the SCHEDULE to the lease and in lieu thereof insert the following:

" PART IV

(Initial rent)

$53,430 per annum - $4,452.50 per calendar month - $1,027.50 per week."

(b) Delete the following clauses of the lease:

"Clause 6.02, Clause 6.03, Clause 24.01(c), Clause 26.00 and Clause 27.00."

(c) Vary APPENDIX 1 (Rent Review) to the lease by deleting from paragraph 3 thereof the following words:

"PROVIDED FURTHER and it is hereby agreed and declared by the Lessor and the Lessee that notwithstanding the foregoing the rental payable hereunder shall not in any event be less than the rental payable at the relevant rent adjustment date."

2. That the lease dated 22 September 1978 and entered into between Centrepoint Freeholds Pty. Ltd. as lessor and Mister Figgins Pty. Ltd. as lessee, being the lease of shop 112 at Centrepoint Mall, Bourke Street, Melbourne, be varied as hereinafter set out and that the lease as so varied had effect on and after the commencement of the lease on 10 October 1979:

(a) Delete PART IV (Initial rent) of the SCHEDULE to the lease and in lieu thereof insert the following:

" PART IV

(Initial rent)

$7,050 per annum - $587.50 per calendar month - $135.58 per week."

(b) Delete the following clauses of the lease:

"Clause 6.02, Clause 6.03 and Clause 25.00."

(c) Vary APPENDIX 1 (Rent Review) to the lease by deleting from paragraph 3 thereof the following words:

"PROVIDED THAT and it is hereby agreed and declared by the Lessor and the Lessee that notwithstanding the foregoing the rental payable hereunder shall not in any event be less than the rental payable at the relevant rent adjustment date."

3. That the respondent at its own expense annex…

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.

Continue reading Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd

Details

AGLC: Mister Figgins Pty Ltd v. Centrepoint Freeholds Pty Ltd [1981] FCA 14
Case: [1981] FCA 14
Decision Date: 25 FEBRUARY 1981

CaseChat Overview and Summary

The case of Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd involved a dispute between the lessor and lessee of commercial properties within Centrepoint Mall, Melbourne. Mister Figgins, the applicant, sought relief in the Federal Court of Australia, arguing that the lease terms were misleading and deceptive under Australian consumer protection laws. The applicant contended that the lease terms were unfair and sought an order to vary the terms to better reflect the agreed upon conditions of the lease.

The court was required to determine whether the lease terms were indeed misleading and deceptive, and if so, to what extent the terms should be varied. The central legal issue was whether the court had jurisdiction to hear and determine all claims made by Mister Figgins. Additionally, the court needed to consider the admissibility of similar fact evidence to substantiate Mister Figgins' claims.

In its reasoning, the court held that it had the requisite jurisdiction to hear and determine all claims made by Mister Figgins. The court found that the lease terms were misleading and deceptive as they did not accurately reflect the agreed-upon terms between the parties. The court ordered the lease to be varied to correct the misleading terms, including the adjustment of the initial rent and the removal of certain clauses. The court also ruled that Mister Figgins was entitled to four-fifths of its costs from the respondent.

The final orders of the court mandated specific variations to the lease agreements, required the respondent to annex a copy of the court order to each lease, and ordered the respondent to pay four-fifths of Mister Figgins' costs.

Orders

Orders of the court

1. That the lease dated 22 September 1978 and entered into between Centrepoint Freeholds Pty. Ltd. as lessor and Mister Figgins Pty. Ltd. as lessee, being the lease of shops G15, 116 and part 112 at Centrepoint Mall, Bourke Street, Melbourne, be varied as hereinafter set out and that the lease as so varied had effect on and after the commencement of the lease on 10 October 1979:

(a) Delete PART IV (Initial rent) of the SCHEDULE to the lease and in lieu thereof insert the following:

" PART IV

(Initial rent)

$53,430 per annum - $4,452.50 per calendar month - $1,027.50 per week."

(b) Delete the following clauses of the lease:

"Clause 6.02, Clause 6.03, Clause 24.01(c), Clause 26.00 and Clause 27.00."

"PROVIDED FURTHER and it is hereby agreed and declared by the Lessor and the Lessee that notwithstanding the foregoing the rental payable hereunder shall not in any event be less than the rental payable at the relevant rent adjustment date."

2. That the lease dated 22 September 1978 and entered into between Centrepoint Freeholds Pty. Ltd. as lessor and Mister Figgins Pty. Ltd. as lessee, being the lease of shop 112 at Centrepoint Mall, Bourke Street, Melbourne, be varied as hereinafter set out and that the lease as so varied had effect on and after the commencement of the lease on 10 October 1979:

(a) Delete PART IV (Initial rent) of the SCHEDULE to the lease and in lieu thereof insert the following:

" PART IV

(Initial rent)

$7,050 per annum - $587.50 per calendar month - $135.58 per week."

(b) Delete the following clauses of the lease:

"Clause 6.02, Clause 6.03 and Clause 25.00."

"PROVIDED THAT and it is hereby agreed and declared by the Lessor and the Lessee that notwithstanding the foregoing the rental payable hereunder shall not in any event be less than the rental payable at the relevant rent adjustment date."

3. That the respondent at its own expense annex to each copy of the said leases executed by the parties or either of them an office copy of this order and endorse upon the schedule of each such document the words "The lease has been varied by the order of the Federal Court of Australia a copy of which is annexed hereto".

4. That the respondent pay four-fifths (4/5ths) of the applicant's costs, to be taxed.

5. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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