SANSOM NOMINEES PTY LTD -v- MEADE & ORS [2001] WASC 124

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 124
Case No:	CIV:1207/2001	Heard:	11 JUNE 2001
Coram:	ANDERSON J	Delivered:	15/06/01
No of pages:	6	Judgment Part:	1 of 1
Result:	Injunction granted
PDF Version

Parties:	SANSOM NOMINEES PTY LTD (ACN 008 797 948) MAURICE BRUCE MEADE ROSEMARY ADELE MEADE MONTELUSA PTY LTD (ACN 008 779 511)
Catchwords:	Injunctions Interlocutory Restraining re-entry by landlord for non-payment of rent Tenant arguably entitled to offset damages arising from landlord's default
Legislation:	Nil
Case References:	British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1979] 2 All ER 1063 Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235 Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99 Autostop Centres Pty Ltd v Ampak Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 8861; 16 May 1991 Bahr v Nicolay (No 2) (1988) 164 CLR 604 Boranga v Flintoff (1997) 19 WAR 1 Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 60 ALR 235 Canning v Temby (1905) 3 CLR 419 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Citibank Pty Ltd v Simon Fredericks Pty Ltd [1993] 2 VR 168 Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] 1 WLR 501 Eller v Grovecrest Investments Ltd [1994] 4 All ER 845 Hick v Raymond & Reid [1893] AC 22 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 MEK Nominees Pty Ltd v Billboard Entertainments Pty Ltd (1993) VConvR 65,462 MEK Nominees Pty Ltd v Secure Parking Pty Ltd [2000] VSC 416 Micromine Pty Ltd v The Triton Group Pty Ltd, unreported; SCt of WA; Library No 970312; 12 June 1997 Re Bank of Credit & Commerce International SA (No 8) [1996] Ch 245 Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scraptrade) [1983] 2 AC 694

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SANSOM NOMINEES PTY LTD -v- MEADE & ORS [2001] WASC 124 CORAM : ANDERSON J HEARD : 11 JUNE 2001 DELIVERED : 15 JUNE 2001 FILE NO/S : CIV 1207 of 2001 BETWEEN : SANSOM NOMINEES PTY LTD (ACN 008 797 948)

Plaintiff

AND

MAURICE BRUCE MEADE

ROSEMARY ADELE MEADE

First Defendants

MONTELUSA PTY LTD (ACN 008 779 511)

Second Defendant

Catchwords:

Injunctions - Interlocutory - Restraining re-entry by landlord for non-payment of rent - Tenant arguably entitled to offset damages arising from landlord's default

Legislation:

Nil

Result:

Injunction granted

(Page 2)

Representation:

Counsel:

Plaintiff : Mr D M Stone

First Defendants : Mr M L Bennett

Second Defendant : Mr M L Bennett

Solicitors:

Plaintiff : Williams & Hughes

First Defendants : Bennett & Co

Second Defendant : Bennett & Co

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

British Anzani (Felixstowe) Ltd v International Marine…

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: [2001] WASC 124
Decision Date

CaseChat Overview and Summary

Sansom Nominees Pty Ltd brought an application for an interlocutory injunction against Meade and others to prevent the landlord from re-entering business premises located at 847 Hay Street, Perth, which were currently used as a hair salon. The lease was for a term of ten years, beginning on 1 April 1998, and included specific provisions for refurbishment and fitting-out by the landlord. The court was required to decide whether the tenants, Mr and Mrs Meade, had an arguable case for offsetting damages arising from the landlord's failure to perform certain works against the withheld rent. The landlord had not removed the false ceiling and installed air-conditioning as required by the lease. The tenants had stopped paying rent, citing the landlord's non-compliance as the reason.

The court found that the landlord was indeed obliged to remove the false ceiling and install air-conditioning as soon as practicable after the commencement of the lease, and these obligations were not contingent on the tenants providing their fit-out plans. The court also determined that the tenants had an arguable case for damages due to the landlord's failure to complete the required works, and that the quantum of damages could potentially offset the withheld rent. The balance of convenience was clearly in favor of maintaining the status quo. Therefore, the court granted the injunction to prevent the landlord from re-entering the premises. The court directed the parties to agree on a minute of orders or prepare for a further hearing if they could not reach an agreement.

Orders