Netline Pty Ltd v QAV Pty Ltd [No 2]
[2015] WASC 113 (S2)
•29 JULY 2015
NETLINE PTY LTD -v- QAV PTY LTD [No 2] [2015] WASC 113 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 113 (S2) | |
| Case No: | CIV:1289/2014 | ON THE PAPERS | |
| Coram: | BEECH J | 29/07/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NETLINE PTY LTD KATHRYN ISABEL LANCE QAV PTY LTD |
Catchwords: | Practice and procedure Trial heard and determined Whether any further orders should be made Turns on own facts |
Legislation: | Nil |
Case References: | Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NETLINE PTY LTD -v- QAV PTY LTD [No 2] [2015] WASC 113 (S2) CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 29 JULY 2015 FILE NO/S : CIV 1289 of 2014 BETWEEN : NETLINE PTY LTD
- KATHRYN ISABEL LANCE
Plaintiffs
AND
QAV PTY LTD
Defendant
Catchwords:
Practice and procedure - Trial heard and determined - Whether any further orders should be made - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiffs : No appearance
Defendant : No appearance
Solicitors:
Plaintiffs : Lavan Legal
Defendant : Lawton Gillon
Case(s) referred to in judgment(s):
Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113
1 BEECH J: This action was tried on 11 and 12 March 2015. On 2 April 2015 I published reasons for decision.1 On the same date, I ordered, relevantly, that the plaintiffs (the Owners) have leave to amend their statement of claim in terms of the minute of amended statement of claim dated 13 March 2015 and that there be judgment for the Owners for damages to be assessed.
2 In the Reasons2 I identified the issues at trial. The primary issue was the validity of the Manager's notice of termination dated 16 December 2013 and, were that question determined in favour of the Owners, the question of the appropriate relief. I found that the Manager's purported notice of termination was not valid. I refused the Owners' claim for specific performance and ordered that the Owners should be awarded damages in an amount to be assessed.
3 The other issue in the action related to whether, on a proper construction of cl 9.1(c)(2) of the Split Return Agreement, the Manager was entitled to pass on to the Owners booking fees paid by the Manager to travel agents or similar businesses who refer travellers to the Manager. I determined that the Manager was not entitled to deduct booking fees from the 50% of the gross rental received that it was obliged to remit to the Owners.3
4 The Owners now seek additional orders, said to be by way of clarification, in relation to two matters.
5 First, the Owners ask that the court publish an addendum to the Reasons to deal with what is said to be the further issue as to whether amounts deducted at source by agents constitute booking fees 'such that the amounts deducted must be added back to gross rental receipts before the [Owners'] share of such receipts is calculated'.4 The Owners assert that the effect of the Reasons is that the Manager's obligation to pay booking fees means that the amount of booking fees cannot in any circumstance be deducted from the 50% share of gross receipts payable to the Owners. The Owners say that this is the case even if an agency charges a fee that is not invoiced to the Manager for payment, but deducted before calculation of the gross rent payable to the Manager for the booking.5
6 In my view, nothing in the Reasons supports the Owners' contention, and, further and in any event, I do not accept it. In the Reasons I found that the Manager's fee is calculated from gross rent received by it. I found that, apart from paying itself the Letting Services Fee and other fees referred to in cl 9.1(b), the Manager was not entitled to deduct any other costs or expenses it incurred, including in relation to booking fees, from the gross rent it received before calculating the amount that was payable to the Owners. Nothing in the Reasons supports the Owners' contention that booking fees charged by a travel agent before calculating the rent payable to the Manager must be added back to gross rental receipts before the amount to be paid to the Owners is calculated. That is not a question of whether booking fees are to be deducted; it is a question of whether something that may be characterised as a booking fee is to be added back.
7 Further, and in any event, I am not persuaded that the Split Return Agreement should be construed in the manner contended for by the Owners. As explained in the Reasons, I construe the Split Return Agreement as follows. The Manager must account to the Owners for all rent received by the Manager, subject only to the Manager's right to deduct charges referred to in cl 9.1(a) or 9.1(b). The Manager's obligation to account does not relevantly extend beyond rent received by the Manager.
8 For these reasons, I decline to make any further order in relation to the first matter on which the Owners seek a further order.
9 Secondly, the Owners seek an order that they refer to as an 'expansion' of the scope of the assessment of damages. The damages to be assessed are the Owners' loss flowing from the wrongful refusal of the Manager to continue to perform the Split Return Agreement. The Owners now seek an order that the assessment of damages to be conducted by the Master also determine the quantum of damages payable by the Manager to the Owners arising from breaches by the Manager of its obligations respecting payment of booking fees under cl 9.1(c)(2) of the Split Return Agreement during the period from 1 November 2010 to 31 March 2015.
10 No such claim was pleaded or advanced at trial. The statement of claim, even after the amendment in terms of the minute dated 13 March 2015, did not claim any relief in respect of any alleged breach of the Split Return Agreement in relation to booking fees by the Manager. Nor was any such claim advanced by written or oral submission at trial. To the contrary, counsel for the Owners accepted, in closing submissions,6 that if the court refused specific performance and awarded damages, the proper construction of the Split Return Agreement as regards booking fees need not be the subject of a declaration, but would form an integer relevant to the assessment of damages for future loss arising from the Manager's wrongful termination. Nothing was said at trial to suggest that the Owners made a claim for past losses.
11 If and insofar as the Owners now seek to amend the statement of claim, I would refuse leave on the ground that, against the background of the history of this litigation, and the relationship between these parties, it is too late to amend to add additional claims.
12 I decline to make the second order sought by the Owners.
13 For these reasons, I would dismiss the Owners' application.
14 The Owners should pay the Manager's costs of the application. These costs should be fixed. The parties should send to my associate an agreed or competing statement of the amount in which costs should be fixed within 7 days of publication of these reasons. Thereafter I will make the costs order on the papers.
1Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113 (Reasons). In these reasons I will use the same terminology and abbreviations as in the Reasons.
2Netline Pty Ltd v QAV Pty Ltd [23] - [27].
3Netline Pty Ltd v QAV Pty Ltd [108] - [116].
4 Plaintiffs' submissions dated June 2015 [2].
5 Plaintiffs' submissions dated June 2015 [5] - [6].
6 ts 245, 12 March 2015.
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