Parliv Pty Ltd v Roebuck Pty Ltd
[2000] VSC 518
•8 December 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 7732 of 2000
| PARLIV PTY. LTD. | Plaintiff |
| v. | |
| ROEBUCK PTY. LTD. AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 DECEMBER 2000 | |
DATE OF JUDGMENT: | 8 DECEMBER 2000 | |
CASE MAY BE CITED AS: | PARLIV PTY. LTD. v. ROEBUCK PTY. LTD. & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 518 | |
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CATCHWORDS: Landlord and Tenant – Forfeiture of lease – Relief against forfeiture.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. I.R. Jones | Holding Redlich |
| The Second Defendant appeared in person | ||
HIS HONOUR:
This case illustrates the difficulties faced by the Court when it has litigants in person before it who have a limited command of the English language.
Since 30 June 2000 the plaintiff has been the owner of The Pines Shopping Centre at Reynolds Road, Doncaster East.
On 28 April the then owner of the centre leased shop No. 35 in the centre to P.P. Foods Pty. Ltd.
On 6 October 1999 P.P. Foods assigned the lease to the first defendant. The second and third defendants who are the directors of the first defendant guaranteed the first defendant's performance of its obligations under the lease. Pursuant to the terms of the lease the first defendant was obliged to provide the plaintiff with a security deposit of $20,000. The first defendant did so by way of bank guarantee.
By 15 November 2000 the first defendant owed to the plaintiff the sum of $28,351.38 by way of outstanding rent.
By letter of that same date the plaintiff informed the first defendant that the guarantee of $20,000 had been applied to the arrears of rent and demanded the outstanding balance of $8,351.38. It also threatened that unless the balance was received by 5.00 p.m. on 22 November it would re-enter and take possession of the shop.
The arrears of rental were not paid and on 23 November the plaintiff re-entered the shop and determined the lease. It then padlocked the shop.
Later that same day the second defendant cut the padlocks from the doors to the shop, re-entered it and refused to leave.
Later again that same day the plaintiff instituted a proceeding in the Court whereby it seeks the following orders:
"1. An order for possession of the Premises;
2. Damages against the First Defendant.
3.Damages or mense profits from 23 November 2000 to the date when possession is given to the Plaintiff.
4.A declaration that the First Defendant's right to occupy the premises has ceased by reason of the determination of the Lease.
5.An injunction (interim, interlocutory and permanent) restraining the Defendants whether by themselves, their servants or agents:-
(a)from occupying, using or otherwise being in possession of the Premises;
(b)informing whether orally or in writing or causing or permitting information to be conveyed to members of the public that a business conducted under the style of title of 'Pierros' is continuing to trade from the premises.
6.An order that each of the Second and Third Defendants indemnify the Plaintiff in respect of the First Defendant's breaches of the Lease and an order that each of them pay to the Plaintiff the amount referred to in paragraph 2.
7.Such further or other orders as this Honourable Court deems appropriate.
8. Costs."
The matter came before me on 27 November. The second defendant appeared before me in person assisted by a friend who had a good grasp of the English language. There was no appearance by or on behalf of the other defendants.
It became clear to me at that time that the second named defendant was making efforts to pay the arrears as quickly as he could and in due course may seek relief from forfeiture of the lease.
In those circumstances I considered it appropriate to give the second defendant an opportunity to do so and I adjourned the further hearing of the matter to 4 December.
On 4 December the second defendant again appeared before me in person this time assisted by another person named Gerrit Hendrick Schorel whose command of English could not be said to be good.
Mr. Schorel claims to have been given an enduring power of attorney by the second defendant thereby entitling him to speak on the second defendant's behalf. He prepares his documents on letterhead which has the words "May Justice Always Prevail" printed across the top. At each end of that sentence appear the scales of justice.
The second defendant and/or Mr. Schorel proceeded to hand me a document entitled Defence and Counterclaim and an affidavit of the second defendant with a number of exhibits to it.
Mr. Schorel then addressed me on behalf of the second defendant. Although at the time I had difficulty in understanding him, the substance of what he appeared to be saying was that the plaintiff was being obstructive in that it had refused to consent to an assignment of the first defendant's lease of the shop to a third party.
In my opinion the matters raised in the counterclaim and affidavit have little relevance for present purposes save for the application in it for relief against forfeiture.
If the defendants have any genuine grievances against the plaintiff they can pursue them in the usual manner.
What the affidavit does reveal however is that on 1 December the defendants gave to the plaintiff cheques for the outstanding arrears and a cheque for the December rental.
Counsel for the plaintiff confirmed that that was the situation but also informed me that as yet those cheques had not been cleared. He also stated that providing an order was made that the arrears and the monthly rental for December be paid by 8 December (in other words that the cheques be cleared by that date) and that an order be made that the first defendant provide another security deposit of $20,000 and pay the plaintiff's costs of the proceeding and any other costs incurred by it in relation to the forfeiture, the plaintiff would not resist an order in the first defendant's favour for relief against forfeiture.
In the circumstances of this case that is a course I propose to adopt.
However, I adjourned the further hearing of the matter to 8 December to ensure that the cheques in question have been cleared. In the event they have I will make the following orders:
That the first defendant be relieved from forfeiture of the lease referred to in the plaintiff's statement of claim but upon conditions.
(1)That the first defendant pay the arrears of rental of $8,351.38 and the rental of $7272.28 for the month of December 2000 by 10.00 a.m. on Friday 8 December.
(2)That within 28 days of this date the first defendant provide to the plaintiff a further security deposit of $20,000 by way of bank guarantee.
(3)That the first defendant pay to or reimburse the plaintiff its costs and disbursements on a solicitor and client basis, and all other expenses including administrative costs reasonably incurred by the plaintiff in connection with the forfeiture and this proceeding within 14 days of the allocation of the Taxing Master or agreement between the parties.
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