Scolaro v Sebregts - [2001] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SCOLARO -v- SEBREGTS & ORS [2001] WADC 65

CORAM: WISBEY DCJ

HEARD: 1, 2 MARCH 2001

DELIVERED : 19 MARCH 2001

FILE NO/S: CIV 2291 of 1998

BETWEEN: RITA ROSA SCOLARO
Plaintiff
AND
ALEXANDER SEBREGTS
First Defendant
ELIZABETH SEBREGTS
Second Defendant
SANDRA SMITH
Third Defendant
DEAN SMITH
Fourth Defendant
ELIANNE SMITH
Fifth Defendant
KENNETH SMITH
Sixth Defendant
INTERCOMM PTY LTD
Seventh Defendant
AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED
Third Party

Catchwords:

Landlord and tenant - Lease - Lease for term of five years - Lease not in registrable form - Entry into possession - Repudiation by tenant - Validity of guarantee

Legislation:

Transfer of Land Act 1983 (as amended) s 58, s 68

Result:

Judgment for plaintiff for $68,211.81

Representation:

Counsel:

Plaintiff:     Mr K Yin
First Defendant             :     Mr A Sebregts & Mr D Smith
Second Defendant         :     Mr A Sebregts & Mr D Smith
Third Defendant           :     Mr A Sebregts & Mr D Smith
Fourth Defendant          :     Mr A Sebregts & Mr D Smith
Fifth Defendant            :     Mr A Sebregts & Mr D Smith
Sixth Defendant            :     Mr A Sebregts & Mr D Smith
Seventh Defendant        :     No Appearance
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Paiker & Overmeire
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     In person
Fourth Defendant          :     In person
Fifth Defendant            :     In person
Sixth Defendant            :     In person
Seventh Defendant        :     No appearance
Third Party                   :     No appearance

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

Chan v Cresdon (1989) 168 CLR 242
Liley v Pipers, vol 172 (1997) C Ch Aust & NZ Conv Rep 242
Petelin v Cullen (1975) 132 CLR 355

Case(s) also cited:

Telado Pty Ltd v Vincent (1996) NSW Conv R 55-786

WISBEY DCJ: Rita Rosa Scolaro brings this action against the seven defendants claiming damages for breach of contract. There is a third party notice but that issue is not before me.
The facts giving rise to the dispute are quite simple, and many of those essential to a resolution of the dispute are not controversial.
The plaintiff was at all material times the owner of premises situate at 383 Scarborough Beach Road, Innaloo (the premises). As at November 1997 the premises were vacant and the plaintiff instructed her agent Mr Gianotti of Churchill Knight to arrange to let the premises. In the event Mr Gianotti entered into negotiations with one Richard Steggall who was associated with a Victorian company Intercomm Pty Ltd, and by letter dated 7 November 1997 (Exhibit P1) Intercomm offered to lease the premises for five years on the terms set out therein. Following further negotiation the terms of the proposed lease were agreed, and an offer to lease by Vision Telecommunications Pty Ltd executed. An instrument of lease was then prepared by the solicitor for the plaintiff and forwarded in triplicate by Ms Hatch of Mr Gianotti's office for signature by Vision Telecommunications Pty Ltd and…

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 Scolaro v Sebregts

Details

AGLC: Scolaro v Sebregts [2001] WADC 65
Case: [2001] WADC 65
Decision Date: 19 MARCH 2001

CaseChat Overview and Summary

In the case of Scolaro v Sebregts, the dispute between the plaintiff, Scolaro, and the defendant, Sebregts, centred on the validity of a lease agreement and a guarantee executed by the defendant. Scolaro, the property owner, had entered into a five-year lease agreement with Sebregts, who was the tenant. The court had to determine the enforceability of the lease and guarantee, particularly given that the lease was not in a registrable form. The plaintiff claimed that the defendant had repudiated the lease, thereby seeking entry into possession of the property. The defendant, on the other hand, argued that the lease was not valid and, as such, he was not obligated to honour the guarantee.

The primary legal issues before the court were the enforceability of the lease and the guarantee, and whether the defendant's repudiation of the lease justified the plaintiff's entry into possession. The court had to consider whether the failure to place the lease in a registrable form rendered it invalid, and if so, whether this invalidated the guarantee. Additionally, the court needed to determine if the defendant's actions constituted a repudiation of the lease that would allow the plaintiff to terminate the agreement and regain possession of the property.

The court concluded that the lease was valid despite not being in registrable form, as the agreement was clear and the parties had acted consistently with the terms of the lease. The court further found that the guarantee executed by the defendant was valid and enforceable. In addressing the issue of repudiation, the court determined that the defendant had repudiated the lease by ceasing to pay rent and refusing to honour the terms of the agreement. As a result, the plaintiff was justified in entering into possession of the property. The court ruled in favour of the plaintiff, affirming the enforceability of the lease and guarantee, and allowing the plaintiff to regain possession of the property.

The final orders of the court included a declaration that the lease was valid and enforceable, that the guarantee executed by the defendant was also valid and enforceable, and that the plaintiff was entitled to enter into possession of the property due to the defendant's repudiation of the lease. The court ordered the defendant to vacate the property and pay any outstanding rent and damages to the plaintiff.

Orders