Secure Parking (WA) Pty Ltd v Wilson

Link copied
Case Copied 73 min read

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SECURE PARKING (WA) PTY LTD -v- WILSON [2008] WASCA 268

CORAM:   MARTIN CJ

BUSS JA
MURRAY AJA

HEARD:   21 AUGUST 2008

DELIVERED          :   19 DECEMBER 2008

FILE NO/S:   CACV 141 of 2005

BETWEEN:   SECURE PARKING (WA) PTY LTD (ACN 073 500 160)

Appellant

AND

ALFRED KARL WILSON
First Respondent

NULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717)
Second Respondent

PARKING ASSET MANAGEMENT (WA) PTY LTD (ACN 092 214 278)
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :LE MIERE J

Citation  :SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2005] WASC 264

File No  :CIV 1074 of 2003

Catchwords:

Lease - Assignment - Where lessee sold its business to proposed assignee of lease - Where lessee also granted to proposed assignee all rights to receive all income and revenue from the operation of the business - Where lessee agreed with proposed assignee, pending obtaining the lessor's consent to the assignment, to comply with proposed assignee's directions - Lessor's consent sought but never obtained - Construction of contract - Whether contract included obligation by lessee to exercise options to renew the lease at proposed assignee's request - Implied terms - Duty of parties to cooperate - Doctrine of non derogation from grant - Successful appellant's right to restitution - Whether damages adequate remedy

Legislation:

Nil

Result:

Appeal allowed
Action remitted for assessment of damages

Category:    A

Representation:

Counsel:

Appellant:     Mr B W Rayment QC & Mr G R Hancy

First Respondent           :     Mr M H Zilko SC & Ms M Chaar

Second Respondent       :     Mr N D C Dillon

Third Respondent         :     No appearance

Solicitors:

Appellant:     Talbot Olivier

First Respondent           :     Tottle Partners

Second Respondent       :     Su & Co

Third Respondent         :     Clayton Utz

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

Adelaide City Corporation v Jennings Industries Ltd (1985) 156 CLR 274

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

Bank of US v Bank of Washington (1832) 31 US 8

Birmingham, Dudley & District Banking Co v Ross (1888) 38 Ch D 295

Bowesco Pty Ltd (receiver and manager appointed) v Zohar [2007] FCAFC 1; (2007) 156 FCR 129

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153

Breen v Williams (1996) 186 CLR 71

British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd [1986] AC 577

Butt v M'Donald (1896) 7 QLJ 68

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Comptroller of Stamps (Victoria) v Howard‑Smith (1936) 54 CLR 614

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577

County Securities Pty Ltd…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Secure Parking (WA) Pty Ltd v Wilson and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2008] WASCA 268
Decision Date

CaseChat Overview and Summary

Secure Parking (WA) Pty Ltd, the appellant, sought to recover from Wilson, the respondent, the net profits of a car parking business for the period after the respondent took possession of the premises and operated the business. The respondent had been the tenant of the appellant but had sold its business to another party, which intended to take over the lease. The respondent and the purchaser agreed that the respondent would comply with the purchaser's directions until the appellant's consent to the assignment was obtained. The appellant refused to consent to the assignment and claimed that there was no contract between the respondent and the purchaser that included an obligation on the respondent to exercise options to renew the lease at the purchaser's request. The respondent counterclaimed for unpaid rent and damages for the appellant's breach of the lease. The primary judge found that there was an agreement between the respondent and the purchaser that included such an obligation, and that the appellant was entitled to restitution but not damages.

The court was required to determine the nature of the agreement between the respondent and the purchaser, including whether it included an obligation on the respondent to exercise options to renew the lease at the purchaser's request. The court also had to consider the doctrine of non derogation from the grant, which prevents a lessee from derogating from the grant of the lease without the lessor's consent. Furthermore, the court needed to assess whether the appellant's right to restitution was sufficient or if damages were also appropriate. The court examined the terms of the agreement, the conduct of the parties, and the applicable legal principles to reach its decision.

The court found that the agreement between the respondent and the purchaser included an obligation on the respondent to exercise options to renew the lease at the purchaser's request. The court rejected the respondent's argument that the doctrine of non derogation from the grant precluded the enforceability of this obligation. The court also held that the appellant was entitled to restitution but not damages. The court found that the appellant's right to restitution was sufficient to compensate it for the loss of the net profits of the car parking business, and that damages were not an adequate remedy. The court allowed the appeal and remitted the action for assessment of damages.

The court ordered that the appeal be allowed and the action be remitted for assessment of damages. The court found that the agreement between the respondent and the purchaser included an obligation on the respondent to exercise options to renew the lease at the purchaser's request, and that the doctrine of non derogation from the grant did not preclude the enforceability of this obligation. The court also held that the appellant was entitled to restitution but not damages, and that the appellant's right to restitution was sufficient to compensate it for the loss of the net profits of the car parking business. The court's decision provides guidance on the enforceability of obligations to exercise options to renew a lease and the appropriate remedy for a lessor who is deprived of the net profits of a lease.

Orders

Orders of the court

Appeal allowed

Action remitted for assessment of damages

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.