Moore Group Holdings Pty Ltd v Australia Machinery Engineering (AME) Pty Ltd
[2017] WADC 90
•13 JULY 2017
MOORE GROUP HOLDINGS PTY LTD -v- AUSTRALIA MACHINERY ENGINEERING (AME) PTY LTD [2017] WADC 90
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 90 | |
| Case No: | CIV:2480/2016 | 5 MAY 2017 | |
| Coram: | REGISTRAR KINGSLEY | 13/07/17 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Liquidated sum quantified | ||
| PDF Version |
| Parties: | MOORE GROUP HOLDINGS PTY LTD AUSTRALIA MACHINERY ENGINEERING (AME) PTY LTD HWEE GOH TIONG LIM |
Catchwords: | Practice Successful O 14 Rules of the Supreme Court 1971 application Quantification of the liquidated claim |
Legislation: | Nil |
Case References: | Chaplin v Hicks [1911] 2 KB 786 Zabihi v Janzemini [2009] EWCA Civ 851 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AUSTRALIA MACHINERY ENGINEERING (AME) PTY LTD
First Defendant
HWEE GOH
Second Defendant
TIONG LIM
Third Defendant
Catchwords:
Practice - Successful O 14 Rules of the Supreme Court 1971 application - Quantification of the liquidated claim
Legislation:
Nil
Result:
Liquidated sum quantified
Representation:
Counsel:
Plaintiff : Mr B Campbell
First Defendant : Mr C Williams
Second Defendant : Mr C Williams
Third Defendant : Mr C Williams
Solicitors:
Plaintiff : Hale Legal
First Defendant : Solomon Bros
Second Defendant : Solomon Bros
Third Defendant : Solomon Bros
Case(s) referred to in judgment(s):
Chaplin v Hicks [1911] 2 KB 786
Zabihi v Janzemini [2009] EWCA Civ 851
1 REGISTRAR KINGSLEY: By an indorsed writ the plaintiff claimed an amount of $282,677.01 being unpaid rent and interest pursuant to a lease entered into between the plaintiff and the first defendant. The second and third defendants guaranteed the performance of the first defendant. There is a prayer for relief for unliquidated damages, which is not relevant for the purpose of this proceeding. The subsequent statement of claim pleaded material facts supporting the claim for unpaid rent and interest pursuant to the lease.
2 On 28 February 2017 I gave judgment for the plaintiff against the defendants for a liquidated sum to be ascertained. Whilst judgment had been given, there were difficulties in the quantification of the liquidated claim. Further evidence was sought from the plaintiff to quantify the amounts payable.
3 The plaintiff, through Darryl Robert Moore, has filed two affidavits in support of the claim for quantification; the affidavit of Darryl Robert Moore sworn 8 March 2017 (Moore's first affidavit) and of 28 April 2017 (Moore's second affidavit).
4 Moore in his first affidavit confirms that the initial rent was specified at $170,280 per annum plus GST, and there were outgoings of approximately $25,000 per annum plus GST. The lease contained obligations for the tenant to pay outgoings, a cash bond of $53,500 with an obligation to replenish that bond if it was called upon, and to pay a letting fee upon commencement of the lease. Moore deposes that he has gone through his records, and in connection with the rent, outgoings, and other expenses for the property has compiled a table (DRM-25).
5 The table at DRM-25 details the rent payable under the lease from 1 August 2013 to 13 June 2016 as $571,235.37 plus GST (making a total of $628,379.08), and an amount for outgoings, bond and lease preparation fee. The total amount payable is stated to be $765,038.75.
6 The total amount paid by the tenant is $570,516.35 which includes the amounts of $50,631 (paid on 5 April 2014) and $54,375 (paid on 23 May 2016) for replenishment of the bond. There is no differentiation between monies payable for rent or for outgoings in the total amount. Moore deposes that $249,522.40 is outstanding. That amount is arrived at by adding to the difference between the amount payable under the lease and the amount paid by the tenant the bond and the lease preparation fee.
7 Moore in his second affidavit deposes that pursuant to the lease outgoings plus GST were payable in 12 equal monthly instalments, together with other sums payable under the lease. Moore added that monthly sum to the rent, and collectively referred to the result as rent (Moore's second affidavit, par 11). Thus Moore deposes that he did not complain about non-payment of outgoings as this was always part and parcel of the rent. Moore does not differentiate between rent and outgoings, nor does he keep records as to what outgoings were paid by the tenant.
8 Moore in his second affidavit appears to acknowledge there may be some difficulties with the totality of his claim. Moore deposes that the plaintiff intended to bring all of the claims, that is for rent, outgoings, and lease preparation fee into this the action. Moore deposes that if the outgoings and lease preparation fee are not contained within the existing action, the plaintiff would be forced to bring separate proceedings. Moore deposes that, in his view, the separate proceedings would be pointless and wasteful.
9 Moore goes on to depose that if the defendant insists that the present claim does not include the outgoings and lease preparation fee, there is only one explanation - those sums have been paid. Moore goes on to say, in the alternative, that the plaintiff's claim includes the other charges under the lease, and the plaintiff is free, under the lease, to apply payments made by the defendants against those charges. If the plaintiff undertook this course of action then the only monies left unpaid are the rental monies.
10 On this analysis, Moore deposes that only the rent is left unpaid and that unpaid rent amounts to $214,976.71. Moore does not depose that the plaintiff undertook any of the actions referred to. There is no evidentiary support for either proposal. There is evidence that the plaintiff paid the outgoings, but there is no evidence of payment by the defendant of the outgoings.
11 The plaintiff, through Moore, appears to miscomprehend the obligations under the lease and the need for separate accounting. Each of the rental and outgoings are separate obligations. This is a matter where the records kept by the plaintiff are rudimentary, and are unreliable to enable quantification of the loss with certainty.
12 The opening words to McGregor on Damages (19th ed, 2014) [10-001] are salutary:
A claimant claiming damages must prove his case. To justify an award of substantial damages he must satisfy the court both as to the fact of damage and as to its amount.
13 If the plaintiff, through Moore, has not properly accounted for the payment of the rent and outgoings then, where there is a lack of evidence, the loss must lie where it falls.
14 At par 16 of Moore's second affidavit he deposes that:
If the defendants want to insist that the claim does not include these other charges under the lease there is only one explanation – those sums have been paid.
15 It is not what the defendants want to insist. The writ as issued, and the claim for summary judgment, is only for rent and interest and it is only that claim which the defendants need to answer.
16 The fact that damages cannot be assessed with a certainty does not relieve the wrongdoer of the necessity of paying the damages (Chaplin v Hicks [1911] 2 KB 786). Plaintiff's counsel submitted, citing authority, that the defendant should not be rewarded for their wrongdoing, and that a court will resolve questions against a wrongdoer where their actions have contributed to the loss, and more readily draw inferences against a wrongdoer (in absence of evidence to the contrary). I have difficulty reconciling those propositions with the requirement the plaintiff must prove their loss.
17 It is the plaintiff's obligation to put forward evidence that would enable the damage to be proved with reasonable certainty. Where there is no such certainty then the court must do its best on such evidence as it feels able to accept even if precision as to values cannot be established and in the end there must be some doubt (Zabihi v Janzemini [2009] EWCA Civ 851).
18 The only reliable evidence from the plaintiff is the amount of payments received from the defendants at $570,516.35. That sum includes $105,006 by way of bond replenishment. If the bond replenishment is removed, the amount received by the plaintiff is $465,510.35. The total amount of the rent payable by the defendants is $628,378.71. The difference is $162,868.73.
19 Accordingly doing the best I can I assess the amount of the plaintiff's claim at $162,868.73.
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