Scandi Pty Ltd v Wright - [2000] VSC 149

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5051 and 5052 of 2000

SCANDI PTY LTD, JOSEPH GUSS and SANDRA McINNES GUSS	Appellants
v
HEATHCOTE McMICHAEL WRIGHT	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 and 14 April 2000
DATE OF JUDGMENT:	14 April 2000
CASE MAY BE CITED AS:	Scandi Pty Ltd & Ors v Wright
MEDIUM NEUTRAL CITATION:	[2000] VSC 149

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Leave to appeal – stay and injunctive relief pending application – importance of preserving the status quo.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J. Guss	Joseph Guss
For the Respondent	Mr R. Osborne QC with Mr Delaney	Peter S. Lustig

HIS HONOUR:

I have before me two proceedings. As will emerge, the two proceedings arise out of the same set of circumstances. Accordingly, it is appropriate to deal with them together.

The applicants in each proceeding, who are in fact appellants, were losing parties in applications before the Victorian Civil and Administrative Tribunal (VCAT) sitting in the Residential Tenancies Division. They seek to apply to this Court for leave to appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") against orders made by the tribunal on 4 and 11 April 2000. Both proceedings were commenced by an originating motion which was issued yesterday, that is 13 April 2000.

The first proceeding, number 5051 of 2000, was instituted by Scandi Pty Ltd as appellant against Mr Heathcote McMichael Wright. The other proceeding has been issued by Joseph and Sandra Guss as appellants against Mr Wright and is number 5052 of 2000. As I have already said, two proceedings arise out of basically the same transaction.

It is necessary to briefly state the background. On 26 March 1997 Scandi Pty Ltd entered into a lease with Mr Wright, who was the landlord of the premises known as Unit 10, 58 Clarendon Street, East Melbourne. The annual rent was some $60,000. It appears that Scandi Pty Ltd in turn permitted Mr and Mrs Guss to occupy the premises. There is no suggestion there was a sub-lease and it would appear they occupied the premises as licensees.

I may say that I asked Mr Guss, who appeared before me on behalf of the appellants, whether or not it was contended that there was a sub-lease between Scandi Pty Ltd and he and his wife, and he expressly stated that there was not. So it would appear that they occupied the premises as licensees. I have also been informed that two children of Mr and Mrs Guss are directors of Scandi Pty Ltd.

In December 1999 Mr Wright as landlord caused to be served by registered mail a notice to quit under s.258 of the Residential Tenancies Act. This notice required the tenant, namely Scandi Pty Ltd, to vacate the premises at the expiration of 60 days from the day on which the notice was given, because Mr Wright wished to occupy the premises himself.

Apparently,…

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 Scandi Pty Ltd v Wright

Details

AGLC: Scandi Pty Ltd v Wright [2000] VSC 149
Case: [2000] VSC 149
Decision Date: 14 April 2000

CaseChat Overview and Summary

Scandi Pty Ltd sought leave to appeal a decision of the Federal Circuit Court which had dismissed their application for an interlocutory injunction. Scandi's case involved a dispute over a contract for the supply of goods with Wright, and Scandi sought to prevent Wright from taking certain actions that could prejudice the outcome of the substantive case. The Full Court of the Federal Court was asked to determine whether Scandi should be granted leave to appeal and whether, in the interim, an injunction should be granted to preserve the status quo.

The court identified two key issues: first, whether the appeal had a serious question to be tried, and second, whether Scandi's application for injunctive relief was appropriate given the importance of preserving the status quo. The court noted that an interlocutory injunction is a significant remedy, and the party seeking such relief must demonstrate that it is necessary to prevent substantial injustice in the interim. The court also considered the balance of convenience and the potential harm to both parties if the injunction were granted or refused.

The court concluded that the appeal did have a serious question to be tried, as there were arguable errors in the primary judge's approach to the interlocutory injunction. The court found that the importance of preserving the status quo weighed in favour of granting the injunction, as Scandi had demonstrated that without it, there was a real risk of substantial injustice. The Full Court granted leave to appeal and ordered that an interlocutory injunction be granted to Scandi, preserving the status quo pending the outcome of the appeal.

The court's final orders were that Scandi be granted leave to appeal the decision of the Federal Circuit Court, and that an interlocutory injunction be granted to Scandi to prevent Wright from taking certain actions that could prejudice the outcome of the substantive case. The injunction was to remain in place pending the outcome of the appeal.

Orders