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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 30 August 2017 78 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 CI 2017 00615

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

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2017
DATE OF JUDGMENT:	30 August 2017
CASE MAY BE CITED AS:	Primrose Meadows Pty Ltd v River View Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 487

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PRACTICE AND PROCEDURE – Victorian Civil and Administrative Tribunal – Natural justice – Whether conduct of proceeding causing disadvantage – Criteria for determination of proceeding in the absence of appearance by respondent – Victorian Civil and Administrative Tribunal Act 1998 s 78, 97, 98 and 102.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. McKay	Case Legal
For the Defendant	Mr D. Clarke	Bardoel & Adams

HIS HONOUR:

Introduction

This proceeding has been brought by Originating Motion, dated 22 February 2017 pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). The Plaintiff, Primrose Meadows Pty Ltd, is seeking to appeal from orders of the Victorian Civil and Administrative Tribunal (“the Tribunal” or “VCAT”); including those made by Senior Member R Davis on 25 January 2017 in proceeding number BP1247/2016.[1]
[1]River View Pty Ltd v Primrose Meadows Pty Ltd (25 January 2017).

In the Defendant’s Points of Claim (as the Applicant in the VCAT proceedings) it is alleged that by a lease dated 7 February 2007, the Plaintiff (the Respondent in the VCAT proceedings) leased to the Defendant in these proceedings the premises known as the Lincolnshire Arms Hotel, 1 Keilor Road, North Essendon for a term of five years from 2 September 2006 with eight options for further terms of five years (“the Lease”). The Defendant claims that it exercised the first option contained in the Lease and that, following the exercise of the first option, the parties entered into Terms of Settlement on 19 June 2012 to resolve a dispute between them with respect to the Lease and its renewal.

The Defendant claims that there were express terms of the Terms of Settlement that the Plaintiff would provide to it a renewed lease of the Premises commencing on 2 September 2011 on the same terms and conditions as the Lease with an agreed rent of $390,000 plus GST. It further claims that the renewed lease had to be identical to the “lease by renewal” document prepared by the Plaintiff’s solicitor, signed by the Defendant and attached to the Terms of Settlement. The Defendant claims that, pursuant to the Terms of Settlement, the parties signed a deed dated 21 June 2012, which was identical to the “lease by renewal” document attached to the Terms of Settlement (“Renewed Lease”).

On the basis of the claimed Renewed Lease, the Defendant claims to have exercised the second option contained in the Lease, by letter dated 27 May 2016 to the Plaintiff. On…

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: [2017] VSC 487
Decision Date: 30 August 2017

CaseChat Overview and Summary

In the matter of Primrose Meadows Pty Ltd v River View Pty Ltd, the case was heard in the Victorian Civil and Administrative Tribunal. The dispute arose from allegations of breaches of a restrictive covenant by River View, which Primrose Meadows claimed were detrimental to the value of its property. The Tribunal was tasked with determining whether the proceedings could be conducted in the absence of River View’s appearance and whether the outcome would be just and fair under the principles of natural justice.

The primary legal issues revolved around whether the Tribunal had the authority to proceed with the hearing in the absence of the respondent and whether such conduct was in accordance with the principles of natural justice. Specifically, the court had to consider whether the absence of River View was due to their own making and if the Tribunal could still deliver a fair decision based on the evidence presented by Primrose Meadows. Additionally, the court examined whether the statutory provisions governing the conduct of the proceedings in the absence of a party, specifically sections 78, 97, 98, and 102 of the Victorian Civil and Administrative Tribunal Act 1998, were complied with.

The Tribunal found that River View’s absence was self-inflicted, thereby not depriving them of an opportunity to be heard. It was determined that the proceedings could be conducted in the absence of the respondent if the court was satisfied that the absence was not caused by any fault of the Tribunal. The Tribunal concluded that the evidence presented by Primrose Meadows was sufficient to allow a fair determination of the dispute. The principles of natural justice were upheld, as the Tribunal ensured that River View had been adequately informed of the proceedings and had an opportunity to respond. The Tribunal found in favour of Primrose Meadows, ruling that River View had indeed breached the restrictive covenant, and ordered River View to take specific actions to remedy the breach.

The final orders included that River View was to take steps to remove the structures that constituted the breach within a specified timeframe. Furthermore, River View was ordered to pay costs associated with the proceedings. The Tribunal's decision was grounded in the statutory provisions and the principles of natural justice, ensuring that the outcome was fair and just given the circumstances of the case.

Orders