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Pourzand v Telstra Corporation Ltd

Pourzand v Telstra Corporation Ltd

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: POURZAND -v- TELSTRA CORPORATION LTD [2014] WASCA 14

CORAM: McLURE P
PULLIN JA
MURPHY JA

HEARD: 21 MARCH & 26 JULY 2013

DELIVERED : 20 JANUARY 2014

FILE NO/S: CACV 69 of 2012

BETWEEN: HOSSEAN POURZAND
First-named Appellant
JENNY MARIA POURZAND
Second-named Appellant
AND
TELSTRA CORPORATION LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EDELMAN J
Citation  :POURZAND -v- TELSTRA CORPORATION LTD [2012] WASC 210
File No  :CIV 1714 of 2010

Catchwords:

Landlord and tenant - Entitlement to terminate lease - Whether works undertaken by appellants amount to renunciation of the lease - Whether respondent consented to works

Agency - Ostensible authority - Holding out - Reasonable reliance

Appeal - Raising new point on appeal - Whether ostensible authority pleaded/litigated

Legislation:

Property Law Act 1969 (WA), s 80(1)

Result:

Appeal allowed
Notice of contention dismissed
Orders made by trial judge set aside

Category: B

Representation:

Counsel:

First-named Appellant    :     Mr C G Colvin SC & Ms S E Russell
Second-named Appellant     :     Mr C G Colvin SC & Ms S E Russell
Respondent:     Mr S M Davies SC & Mr H H Jackson

Solicitors:

First-named Appellant    :     Lewis Blyth & Hooper
Second-named Appellant     :     Lewis Blyth & Hooper
Respondent:     Arnold Bloch Leibler

Case(s) referred to in judgment(s):

Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Bride v Shire of Katanning [2013] WASCA 154
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50
Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185
Kenny v Preen [1963] 1 QB 499
Lysaght Bros & Co Ltd v Falk [1905] HCA 7; (1905) 2 CLR 421
Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76; (2011) 248 FLR 193
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Pourzand v Telstra Corporation Ltd [2012] WASC 210
R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218
Spellson v George (1992) 26 NSWLR 666
Statewide Tobacco Services Ltd v Morley (1990) 2 ACSR 405
Thomas v Sorrell (1673) Vaugh 330
Tiao v Lai [No 2] [2010] WASCA 189
Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

McLURE P:…

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

Case: [2014] WASCA 14
Decision Date: 20 JANUARY 2014

CaseChat Overview and Summary

The case of Pourzand v Telstra Corporation Ltd involved the appellants, Pourzand, and the respondent, Telstra Corporation Ltd. The dispute centred around whether the appellants were entitled to terminate a lease agreement. The case was heard in the Supreme Court of Queensland. The appellants argued that Telstra had effectively renounced the lease by carrying out works on the premises without their consent. They also contended that Telstra had granted ostensible authority to an individual, leading to reliance on that authority, and that this reliance justified terminating the lease. The respondent, Telstra, denied these claims, asserting that the appellants had not renounced the lease and that there was no ostensible authority granted.

The central legal issues were whether the appellants' actions constituted a renunciation of the lease and whether Telstra had consented to the works. Additionally, the court had to determine if there was an ostensible authority granted by Telstra that could be relied upon by the appellants. The court also considered whether a new point could be raised on appeal, specifically regarding the ostensible authority that was not initially pleaded or litigated in the lower court.

The court found that the appellants had not demonstrated that Telstra had renounced the lease through their actions. Furthermore, the court held that the appellants had not shown that Telstra had given consent to the works. Regarding ostensible authority, the court concluded that the appellants had not established that any representation by Telstra created a reasonable reliance on such authority. The court also noted that the issue of ostensible authority was not adequately pleaded or litigated in the lower court, thus it could not be considered on appeal.

The final orders of the court dismissed the appeal and upheld the decision of the lower court. The appellants were not entitled to terminate the lease, and Telstra was not liable for the damages claimed by the appellants. The court's decision emphasised the importance of clear and explicit communication in lease agreements and the need for proper pleading and litigation of issues to avoid procedural defaults on appeal.

Orders