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Primrose Meadows Pty Ltd v River View Pty Ltd

Primrose Meadows Pty Ltd v River View Pty Ltd

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Case Copied 3 May 2019 55 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02224

PRIMROSE MEADOWS PTY LTD (ACN 089 757 755)	Appellant
v
RIVER VIEW PTY LTD (ACN 071 155 943)	Respondent

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2019
DATE OF JUDGMENT:	3 May 2019
CASE MAY BE CITED AS:	Primrose Meadows Pty Ltd v River View Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 263

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LEASES AND TENANCIES – Retail leases – Renewal of lease upon exercise of option by tenant – Landlord bound to grant and tenant bound to take lease upon terms stipulated in lease – Lease in equity arises upon tenant exercising option to renew even where rent to be applied for further term has not been agreed or determined – Tenant entitled to option to renew – No evidence of evidence of any notice of default – Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 – Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 – Retail Leases Act 2003, s 27.

AGENCY – Where agent authorised both to negotiate agreement and to enter agreement – Berkely Pty Ltd v Millbrook Finance Pty Ltd [2018] VSC 213 – Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd (1975) 133 CLR 72 – Where there is no disposition of interest in land there is no requirement that the agent be authorised in writing – Instruments Act 1958, s 126(1).

EVIDENCE – Failure to call witness – Rule in Jones v Dunkel (1959) 101 CLR 298 – Does not apply against a defendant until the plaintiff has proved a case for the defendant to answer – Does not require a party to give cumulative evidence – Tenth Vandy v Natwest Markets Australia [2012] VSCA 103; (2012) VConvR 64,366 – Does not directly apply to Victorian Civil and Administrative Tribunal proceedings – Maund v Racing Victoria Ltd [2016] VSCA 132 – Victorian Civil and Administrative Tribunal not compelled to apply rule – Manly Council v Byrne [2004] NSWCA 123 – Rule only applies where the missing witness would be expected to be called by one party rather than another – Payne v Parker [1976] 1 NSWLR 191 – An adverse inference may only be drawn where failure to call witness is not satisfactorily explained – Cadwallader v Bajco Pty Ltd [2002] NSWCA 328.

PRACTICE AND PROCEDURE – Appeal to the trial Division of the Supreme Court of Victorian from the Victorian Civil and Administrative Tribunal – Where error alleged by appellant would not have changed the decision of the Victorian Civil and Administrative Tribunal – Forster v Legal Services Board (2013) 40 VR 587 – Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 – Victorian Civil and Administrative Tribunal Act 1995, s 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr…

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: [2019] VSC 263
Decision Date: 3 May 2019

CaseChat Overview and Summary

The dispute between Primrose Meadows Pty Ltd and River View Pty Ltd arose from an issue concerning the renewal of a retail lease. The matter was heard in the Supreme Court of Victoria, following an appeal from a decision of the Victorian Civil and Administrative Tribunal. The primary issue before the court was whether the landlord was obligated to renew the lease upon the tenant exercising its option, despite the rent for the further term not being agreed upon. Additionally, the court needed to determine whether the tenant was entitled to the option to renew, and if the absence of a witness impacted the outcome of the case.

The court examined whether the lease in equity arose upon the tenant exercising its option to renew, even when the rent for the further term had not been agreed or determined. It was established that the landlord was bound to grant and the tenant bound to take the lease upon the terms stipulated in the lease, referencing Todburn Pty Ltd v Taormina International Pty Ltd and Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd. The court also noted that there was no evidence of any notice of default, and thus, the tenant was entitled to the option to renew. Furthermore, the court clarified that where an agent is authorised both to negotiate an agreement and to enter into an agreement, there is no requirement for the agent to be authorised in writing, referencing Berkely Pty Ltd v Millbrook Finance Pty Ltd and Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd.

The court held that the failure to call a witness did not necessarily compel the Tribunal to draw an adverse inference, as the rule in Jones v Dunkel does not apply against a defendant until the plaintiff has proved a case for the defendant to answer. Additionally, the rule does not require a party to give cumulative evidence, nor does it apply to the Victorian Civil and Administrative Tribunal proceedings. The court concluded that the error alleged by the appellant would not have changed the decision of the Tribunal, and therefore, the appeal was dismissed. The court's decision was based on the principles set out in Forster v Legal Services Board and Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue, as well as the provisions of the Victorian Civil and Administrative Tribunal Act 1995.

Orders