Peter Francis Dobb T/As Jamison Hotel Motel v Enima Pty Limited - [2004] ACTSC 106

PETER FRANCIS DOBB T/AS JAMISON HOTEL MOTEL v ENIMA PTY LIMITED
[2004] ACTSC 106 (8 October 2004)

PROCEDURE – costs – costs of application for declaratory relief – unreasonable witholding by lessor of consent to assignment of lease – application for principal relief resolved by agreement – plaintiff entitled to order for costs – claim for indemnity costs not made out

Leases (Commercial and Retail) Act 2001

Chalcedony Investments Pty Limited v Faroud No 9 Pty Limited, 4 March 1988, issue 86, Australia and New Zealand Conveyancing Report, p 429
Colvin v Bowen (1958) 75 WN (NSW) 262
Daventry Holdings Pty Limited v Bacalakis Hotels Pty Limited (1986) 1 Qd R 406
Calderbank v Calderbank [1976] Fam 93

No. SC 574 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 8 October 2004

IN THE SUPREME COURT OF THE     )
  )          No. SC 574 of 2004
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:PETER FRANCIS DOBB T/AS JAMISON HOTEL MOTEL
Plaintiff

AND:ENIMA PTY LIMITED
Defendant

ORDER

Judge:  Master Harper
Date:  8 October 2004
Place:  Canberra

THE COURT ORDERS THAT:

the plaintiff’s costs of the application made by originating notice of motion dated 1 September 2004, including the costs reserved by order of 3 September 2004, be paid by the defendant.

This is an application by the plaintiff for an order that the defendant pay his costs of an originating notice of motion. The notice of motion, filed on 1 September 2004, sought declarations relating to the assignment of a lease. The substantive issue between the parties has been resolved and the principal relief is no longer sought.

The defendant company is the registered proprietor, pursuant to Crown lease, of Block 9 Section 50, Macquarie, the site of the Jamison Inn Hotel Motel. The company leased the land and building, including hotel equipment, to the plaintiff and his then wife in 1993. The plaintiff and his wife have since divorced and it appears that the hotel business has been transferred to the plaintiff, although the lease is still in joint names.

The plaintiff wishes to sell the business. A sale will require an assignment of the lease to the purchaser.

In October 2003, the plaintiff commenced proceedings in the Magistrates Court against the defendant, seeking relief pursuant to the Leases (Commercial and Retail) Act 2001. Essentially, the plaintiff asserted that the premises were in a state of disrepair, that the defendant refused to make good the damage, and that he was unable to utilise the premises to their full capacity. Accordingly he sought a reduction in rent. The parties are represented in those proceedings by the same solicitors as in the present application. The proceedings have not yet been determined.

The lease incorporates terms set out in a memorandum of provisions filed in the office of the Registrar of Titles. Part 5 of the memorandum sets out the tenant’s covenants with the landlord, and includes clause 5.8.2 in the following terms:

Not to assign the whole of the Premises…

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.

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Details

AGLC: Peter Francis Dobb T/As Jamison Hotel Motel v Enima Pty Limited [2004] ACTSC 106
Case: [2004] ACTSC 106
Decision Date: 8 October 2004

CaseChat Overview and Summary

In the case of Peter Francis Dobb trading as Jamison Hotel Motel versus Enima Pty Limited, the plaintiff sought a declaration that the defendant's withholding of consent to the assignment of a lease was unreasonable. The dispute came before the court, which was required to determine whether the plaintiff was entitled to an order for costs incurred during the proceedings, and if so, whether the plaintiff was entitled to indemnity costs.

The court first considered whether the plaintiff was entitled to an order for costs of the originating notice of motion, filed on 1 September 2004. The plaintiff argued that the defendant's unreasonable withholding of consent to the assignment of the lease justified the costs incurred. The court found that the plaintiff was indeed entitled to an order for costs, as the defendant's unreasonable conduct had led to the need for the application. However, the court noted that the principal relief sought in the application had been resolved by agreement between the parties, and was no longer sought. As such, the court found that the claim for indemnity costs was not made out, as indemnity costs are only awarded in cases of exceptional circumstances, which were not present in this case.

In conclusion, the court found in favour of the plaintiff, ordering the defendant to pay the plaintiff's costs of the originating notice of motion. However, the court found that the plaintiff was not entitled to indemnity costs, as the exceptional circumstances required for such an order were not present in this case. The court's decision highlights the importance of resolving disputes between parties in a timely and efficient manner, and the potential consequences of unreasonable conduct in lease agreements.

Orders

Orders of the court

This is an application by the plaintiff for an order that the defendant pay his costs of an originating notice of motion. The notice of motion, filed on 1 September 2004, sought declarations relating to the assignment of a lease. The substantive issue between the parties has been resolved and the principal relief is no longer sought.

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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