Rokeba Nominees Pty Ltd v Mag Auto Spares Pty Ltd
[2000] VSC 74
•14 March 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 4505 of 2000
| ROKEBA NOMINEES PTY. LTD. | Plaintiff |
| v. | |
| MAG AUTO SPARES PTY. LTD. | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 MARCH 2000 | |
DATE OF JUDGMENT: | 14 MARCH 2000 | |
CASE MAY BE CITED AS: | ROKEBA NOMINEES PTY. LTD. v. MAG AUTO SPARES PTY. LTD. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 74 | |
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CATCHWORDS: Summary judgment for plaintiff for possession of premises and arrears of rent – Adequacy of demand for arrears of rent.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. J. Kewley | Law Partners |
| For the Defendant | Mr. I. Upjohn | Webb Korfiatis |
HIS HONOUR:
The plaintiff Rokeba Nominees Pty. Ltd. is the owner of business premises at 19-27 Salmon Street, Port Melbourne (the premises).
On 10 February 1999 the plaintiff and the defendant Mag Auto Spares Pty. Ltd. entered into an offer and agreement to lease whereby the defendant agreed to lease the premises from the plaintiff for a period of two years and nine months.
The offer and agreement for lease specified the rental to be paid by the defendant over the term of the lease. It also contained a provision that the defendant would on request, execute a lease of the premises which lease would include the terms and conditions contained in the offer and agreement.
On 2 April 1999 the plaintiff forwarded an appropriate lease to the defendant for execution by it. The defendant has declined to do so.
The rental for the premises is due on the 15th of each month.
As at 25 February 2000 the defendant had failed to pay the amount of $81,352.41 being the rental due for the period 15 November 1999 to and including 14 March 2000.
That day the plaintiff served a Notice of Re-Entry on the defendant. The notice reads:
"TO Mag Auto Spares Pty. Ltd.
ACN 069 419 969
19-27 Salmon Street
PORT MELBOURNE 3207.
ROKEBA NOMINEES PTY. LTD. ACN 004 935 988 of Suite 1 Ground Floor, 355 Spencer Street West Melbourne ('the Lessor') being the Lessor of the premises situate at and known as part 19-27 Salmon Street (Corner Plummer Street) Port Melbourne ('the premises') occupied by you pursuant to a Lease Agreement dated 10 February 1999 ('the Lease') HEREBY DETERMINE your tenancy of the premises and the Lease by reason of and in consequence upon your failure to in (sic) pay the amount of $81,352.41 due as rental for the period from 15/11/99 to 14/3/00 AND:
1. DEMANDS payment of the amount of $81,352.41 aforesaid;
2.RE-ENTERS UPON AND RE-POSSESSES the premises and thereby determines your tenancy.
If you fail to give up possession of the premises forthwith the Lessor will issue legal proceedings for an Order for Possession of the premises and such other relief as the Court may deem fit.
DATED this day of February 2000."
The defendant did not pay the outstanding rent, nor did it vacate the premises.
On 2 March 2000 the plaintiff caused a writ to be filed in the Court whereby it seeks the following relief:
"A.An Order that the Defendant vacate the premises forthwith and deliver up all keys to the premises and do all things that may be necessary to enable the Plaintiff to re-enter the premises.
B. Pursuant to paragraph 7 hereof:
(a) $81,352.41;
(b) damages;
C.In the alternative to B, if the Court so determines, damages at common law or, alternatively, as the Court may determine, equitable damages.
D.Interest pursuant to the Penalty Interest Rates Act 1983 as amended.
E. Costs."
At the same time it filed a summons in the Court returnable on 8 March whereby it seeks similar relief.
On 2 March 2000 the defendant's solicitors sent a bank cheque for $40,000 to the solicitors for the defendant in part payment of the arrears of rental.
When the matter came before me on 8 March counsel for the defendant raised a number of matters concerning the form of the proceeding and the nature of the plaintiff's application.
The first point concerned the relief sought by the plaintiff in paragraph A of its writ and summons.
As he correctly pointed out, the order sought by the plaintiff in that paragraph is in the form of a mandatory injunction. His submission in that regard is that it is quite inappropriate for the plaintiff to be seeking that form of relief, the appropriate relief it should be seeking being an order for possession of the premises. See Union Bank of Australia v. Green[1]; Metropolitan Bank Limited v. Christensen[2]; and Pedler v. Washband[3].
[1](1900) 16 WN (NSW) 224
[2](1895) 21 VLR 288
[3](1949) SR Qd. 116
In my opinion there is merit to that argument. This is not a case in which it is appropriate to grant the lessor of premises equitable relief; the plaintiff has an adequate remedy at common law.
However, as counsel for the plaintiff in reply sought leave to amend paragraph A to substitute for the relief there claimed, a claim for possession, and as that application was not opposed by counsel for the defendant in the final analysis nothing turns on the point.
The second point concerned the plaintiff's application for judgment in respect of the arrears of rent. What was submitted in that regard was that as the claim amounted to an application for summary judgment the plaintiff was obliged to follow the procedure prescribed by Order 22 of the Supreme Court Rules and not file such an application until after the defendant had filed its appearance. As the defendant's appearance was not filed until 8 March, the application is premature.
Whilst again, there may well be merit in that submission, the fact is that the substance of the plaintiff's application was argued before me and in my view it would not be in the interests of justice that it be dismissed on a technicality. No prejudice is caused to the defendant by giving the plaintiff leave to make the application nunc pro tunc and in the circumstances I propose to do so. As there is no dispute concerning the arrears of rental I propose to dispense with the requirement that the plaintiff, through its proper officer, swear that it is his belief that there is no defence to the plaintiff's claim. (See Rule 23.03(1)).
I turn then to the substance of the plaintiff's application.
There are two grounds upon which the defendant resists the plaintiff's application for possession.
In the first place it is said that as there is no express provision in the Offer and Agreement to Lease concerning forfeiture of the lease, the plaintiff is obliged to rely upon its common law rights in the matter.
At common law re-entry cannot be made and the tenancy cannot be determined unless and until there has been made upon the tenant a demand in the manner and form required by common law to pay the rent. See Commissioners of the State Savings Bank of Victoria v. Millane[4].
[4][1931] VLR 19
The defendant contends that the demand for the arrears of rent contained in the notice of re-entry did not comply with the requirements for such a demand as spelled out in Millane and therefore was defective.
The relevant passage in Millane is at p.27 and reads:
"Where there is a condition of re-entry reserved for non-payment of rent, several things are required by the common law to be previously done by the reversioner to entitle him to re-enter. 1. There must be a demand of the rent. 2. The demand must be of the precise rent due; for, if he demands a penny more or less, it will be ill. 3. It must be made precisely upon the day when the rent is due and payable by the lease to save the forfeiture; as, where the proviso is that, if the rent shall be behind and unpaid by the space of thirty or any other number of days after the days of payment, it shall be lawful for the lessor to re-enter, a demand must be made on the thirtieth or other last day. 4. It must be made a convenient time before sunset. 5. It must be made upon the land, and at the most notorious place upon it: therefore, if there be a dwelling house upon the land, the demand must be at the front or fore door, though it is not necessary to enter the house, notwithstanding the door be open."
In this day and age I see no warrant whatsoever for the requirements that the demand must be made precisely upon the day when the rent is due and payable by the lease, that it must be made a convenient time before sunset and that it must be made upon the land even though in the present case it was.
In my opinion it is quite sufficient if the demand for the arrears is in writing and is served upon the tenant as it was in this case.
The second ground relied upon by the defendant is that the defendant's behaviour did not amount to a repudiation of the lease and the plaintiff therefore was not entitled to determine the agreement for the lease.
In my opinion the defendant's unexplained failure to pay the rental for the period of time in question together with its refusal to execute a lease of the premises could not be clearer evidence of its intention to repudiate the lease.
The following are the orders I make in the proceeding:
1.I give the plaintiff leave to amend paragraph A of the prayer for relief in the writ and paragraph A of its summons filed in the Court on 2 March 2000 by substituting therefore a claim for possession of the premises at 19-27 Salmon Street, Port Melbourne being the land described in Certificate of Title Volume 9005 Folio 207.
2.I give leave to the plaintiff nunc pro tunc to make an application to the Court on 8 March 2000 for summary judgment in the proceeding. I dispense with the requirement of Rule 23.03(1) that the plaintiff through its proper officer swear that it is his belief that there is no defence to the plaintiff's claim.
3. I order that there be judgment for the plaintiff:
(a) for possession of the said premises;
(b)in the sum of $41,352.41 together with interest as prescribed by the Penalty Interest Rates Act 1983.
4. I order that the defendant pay the plaintiff's costs of the proceeding.
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