Rial v Gray - [2023] VSC 302

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2023 01252

BETWEEN:

ANDREW LESLIE RIAL	Plaintiff
v
JAMES MARTIN GRAY and GABRIELLE ALEXANDRA GRAY	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 29 May 2023
DATE OF JUDGMENT:	6 June 2023 (revised 7 June 2023)
CASE MAY BE CITED AS:	Rial v Gray
MEDIUM NEUTRAL CITATION:	[2023] VSC 302

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SUMMARY RECOVERY OF LAND — Application under Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Framlingham Aboriginal Trust v McGuinness and Chatfield [2014] VSC 241 referred to —Where owner claims licence agreement ended on the date a contract of sale for the defendants to purchase the property was terminated— Proper construction of licence agreement — Whether land occupied by licence or lease — Relevant considerations as to lease or licence — Radaich v Smith (1959) 101 CLR 209 referred to - Held that property occupied pursuant to a licence agreement not a lease —Jurisdiction pursuant to Order 53 enlivened — Construction of the licence agreement — Whether licence agreement terminated by the plaintiff in breach of contract — Williams and Nyrogen Pty Ltd v Rampino [2002] VSC 343 referred to and distinguished — Whether defendants had breached the licence agreement — Whether injunctive relief available to the defendants to restrain the premature revocation of the licence — Injunction would not be granted where damages would be an adequate remedy and there is limited utility in granting the injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	Keating Avery Solicitors
The Defendants in person

HER HONOUR:

Introduction and background

These reasons concern an application by originating motion dated 28 March 2023 for the recovery of land pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). The land concerned is a hundred acre cattle grazing property situated in Huon, Victoria (‘property’). The plaintiff is the sole registered proprietor of the property.

The defendants, Mr James Gray and Ms Gabrielle Gray (collectively, ‘defendants’), operate a construction business, and have occupied the property under an agreement titled “Licence Agreement”, which commenced on 20 December 2021 (‘licence agreement’).

The licence agreement provides for the use of the property for “residential purposes and to sublicense to JR & GM Holdings Pty Ltd … trading as Gray Building and Construction to operate as a construction depot”. The licence agreement was entered into by the parties in the context of negotiations from around August 2021 for the defendants to purchase the property from the plaintiff.

A contract of sale of the property was prepared by the plaintiff’s solicitors and signed by the parties on 30 May 2022 (‘contract of sale’). The purchase price of the property under the contract of sale was $2,400,000, with a settlement date of 29 September 2022 or earlier by agreement between the parties. The contract of sale was subject to the defendants obtaining suitable finance.

The…

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.

Continue reading Rial v Gray

Details

AGLC: Rial v Gray [2023] VSC 302
Case: [2023] VSC 302
Decision Date: 6 June 2023 (revised 7 June 2023)

CaseChat Overview and Summary

The applicants, Rial, sought summary recovery of land against the respondents, Gray, in the Supreme Court of Victoria. The dispute arose from the termination of a licence agreement that allowed the Grays to occupy a property owned by Rial. The applicants claimed that the licence agreement ended when a contract of sale for the property was terminated. The Grays, on the other hand, argued that the licence agreement continued beyond the termination of the contract of sale. The court was required to determine whether the property was occupied pursuant to a licence agreement or a lease, and whether the applicants had terminated the licence agreement in breach of contract. The court also needed to decide whether the Grays had breached the licence agreement and whether injunctive relief was available to the Grays to restrain the premature revocation of the licence.

The court examined the relevant considerations in determining whether the occupation of the property was pursuant to a licence or a lease, referring to Radaich v Smith (1959) 101 CLR 209. The court held that the property was occupied pursuant to a licence agreement, not a lease. The court then considered the applicants' claim that they had terminated the licence agreement in breach of contract. The court referred to Williams and Nyrgen Pty Ltd v Rampino [2002] VSC 343 and distinguished it from the present case. The court found that the applicants had not terminated the licence agreement in breach of contract. The court also considered whether injunctive relief was available to the Grays to restrain the premature revocation of the licence. The court held that an injunction would not be granted where damages would be an adequate remedy and there was limited utility in granting the injunction.

The court found in favour of the applicants and ordered that the Grays vacate the property. The court held that the licence agreement had ended and that the Grays had breached the agreement by continuing to occupy the property after the termination of the licence. The court also held that the Grays were not entitled to injunctive relief as damages would be an adequate remedy and there was limited utility in granting the injunction. The applicants were awarded costs of the proceeding.

Orders