FEDERAL COURT OF AUSTRALIA
Pacific Mirage Limited v Le Breton [2014] FCAFC 46
Citation: Pacific Mirage Limited v Le Breton [2014] FCAFC 46 Appeal from: Le Breton v Pacific Mirage Limited (No 2) [2013] FCA 691 Parties: PACIFIC MIRAGE LIMITED ACN 010 585 967 v JUDITH ANNE LE BRETON File number: NSD 1904 of 2013 Judges: BARKER, YATES AND ROBERTSON JJ Date of judgment: 24 April 2014 Catchwords: CONTRACTS – construction of sub-lease – responsibility for repair of roof level area
COSTS – appropriate form of order to indemnify successful party
Legislation: Corporations Act 2001 (Cth) s 233
Federal Court of Australia Act 1976 (Cth) s 43Cases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 Moallem v Consumer, Trader and Tenancy Tribunal [2013] NSWSC 1700
Oshlack v Richmond River Council (1998) 193 CLR 72
Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5
Symes v Proprietors, Strata Plan 31731 [2003] NSWCA 7Date of hearing: 21 February 2014 Date of last submissions: 4 March 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Appellant: Mr JA Griffin QC with Mr RD Marshall Solicitor for the Appellant: Short Punch & Greatorix Counsel for the Respondent: Mr MK Condon SC Solicitor for the Respondent: Price & Company
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1904 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: PACIFIC MIRAGE LIMITED ACN 010 585 967
AppellantAND: JUDITH ANNE LE BRETON
Respondent
JUDGES:
BARKER, YATES AND ROBERTSON JJ
DATE OF ORDER:
24 APRIL 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs, as agreed or taxed.
3.The appellant not charge or levy the respondent on any account whatsoever, or otherwise seek to obtain funds from her, for the purpose of:
a) reimbursing the appellant for the appellant’s costs of these proceedings, or any part thereof, or otherwise contributing to meeting the appellant’s costs of the appeal; or
b)paying, meeting, contributing to, or discharging the appellant’s obligation to pay the respondent’s costs of and incidental to the appeal or any part thereof.
4.To give effect to order 3, the appellant will credit the respondent as having paid all body corporate levies issued to the respondent from the date hereof until the sum of such credits is equal to the sum of the respondent’s costs of the appeal (as agreed or taxed) and so much of all of the appellant’s costs of the appeal as bears the same proportion to all of the appellant’s costs of the appeal as the respondent’s unit entitlement with respect to Villa 43 bears to the entitlements of all unit…
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- Case
- [2014] FCAFC 46
- Decision Date
CaseChat Overview and Summary
The court found that the dispute was not simply about the definition of "the Suite" but rather hinged on the interpretation of specific clauses in the sub-lease. The sub-lessee had a clear obligation under clause 3(i) to maintain the suite and its appurtenances in good repair, which was unambiguous. However, clause 5(c) exempted the sub-lessor from any repair obligations except as specifically provided. The court held that clause 5(d), which dealt with the sub-lessor's obligation to maintain various parts of the building, including roofs, specifically included the obligation to repair the roof unless the damage was due to the sub-lessee's negligence or carelessness. This clause was deemed inconsistent with the notion that the sub-lessee should bear the repair costs for the roof.
The court further determined that the opinion of the surveyor, Mr Pennycuick, was not helpful in resolving the dispute as it was not based on the actual wording of the sub-lease. The court concluded that the sub-lessor's obligation to repair the roof was clear and did not depend on whether the suite included a roof level area or not. As such, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. Additionally, the appellant was prohibited from charging or seeking funds from the respondent for any costs related to the appeal. The court also mandated that the appellant credit the respondent's body corporate levies until the credits equalled the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs, as agreed or taxed.
3. The appellant not charge or levy the respondent on any account whatsoever, or otherwise seek to obtain funds from her, for the purpose of:
a) reimbursing the appellant for the appellant’s costs of these proceedings, or any part thereof, or otherwise contributing to meeting the appellant’s costs of the appeal; or
b) paying, meeting, contributing to, or discharging the appellant’s obligation to pay the respondent’s costs of and incidental to the appeal or any part thereof.
4. To give effect to order 3, the appellant will credit the respondent as having paid all body corporate levies issued to the respondent from the date hereof until the sum of such credits is equal to the sum of the respondent’s costs of the appeal (as agreed or taxed) and so much of all of the appellant’s costs of the appeal as bears the same proportion to all of the appellant’s costs of the appeal as the respondent’s unit entitlement with respect to Villa 43 bears to the entitlements of all unit owners in the Pacific Mirage Building.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As to the provision of the sub-lease which gave the company control over some aspects of the Roof Garden, clause 3(t), this reflected the fact that the roof gardens were exposed areas, the mismanagement of which could affect the reputation of the building as a whole.Consideration In our opinion, contrary to the company’s contention, the dispute about who is responsible for the relevant repairs is not determined simply by the meaning to be given to “the Suite”. The resolution of the dispute turns on the operative contractual provisions of the sub-lease. The sub-lessee is obliged by clause 3(i) to keep the Suite and all appurtenances therein in good condition and repair. This is an unambiguous statement of obligation respecting the Suite, the identity of which is not in doubt. By the same clause, the sub-lessor is not to be answerable or chargeable for any decoration or repairs therein or thereto “except as herein specifically provided”. Clause 5(c) of the sub-lease, concerning (amongst other things) the sub-lessor’s obligation to keep the Building in good repair, should be read as so specifically providing and therefore not in conflict with clause 3(i). “Building” has its ordinary meaning and is consistent with and confirms this construction since it is not apposite to refer to structures such as those listed in clause 5(d) as the Suite. Excluded from clause 5(c) is the sub-lessee’s obligation to maintain the interior of the individual suite. In our opinion it is not apposite to describe an area or space exposed to the elements, the roof level, as an interior. Clause 3(t) makes additional provision for the area on the roof level where the Suite has a roof level. But those obligations and restrictions on the sub-lessee are more consistent with the sub-lessee not having an obligation to repair the roof and with the sub-lessor having that obligation. Clause 5(d) concerns the sub-lessor’s obligation to keep various parts of the Building in good repair, including roofs. In our opinion, in context, the word “roofs” is apposite to describe the roof level with which this proceeding is particularly concerned. The provision imposing the obligation to keep in good repair those structures “unless rendered necessary by the act, negligence or carelessness of the Sub-lessee …” is inconsistent with the construction that the obligation to repair the roof otherwise lies on the sub-lessee. We do not accept the submission that under the sub-lease the obligation to keep the roof of the building in good repair falls on the sub-lessee of a Suite where that Suite includes an area on the roof level of the building and that the obligation to keep the roof in good repair falls on the sub-lessor in respect of the roof only where the Suites in aggregate do not include an area on the roof level. Since, in our opinion, the resolution of the dispute turns on the construction of the sub-lease we do not find the opinion of the surveyor, Mr Pennycuick, to be of assistance. His opinion does not appear to us to be founded in the words of the sub-lease.