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Secure Parking (WA) Pty Ltd v Wilson

Secure Parking (WA) Pty Ltd v Wilson

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Case Copied 14 October 2005 65 min read

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

Link to Appeal :

[2006] WASCA 200 [2008] WASCA 268 [2009] WASCA 78 [2009] WASCA 78 [2008] WASCA 268

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 264
Published:	07/12/2005
Case No:	CIV:1074/2003	Heard:	15-17 AUGUST, 5-8 SEPTEMBER, 14 OCTOBER 2005
Coram:	LE MIERE J	Delivered:	14/10/05
No of pages:	37	Judgment Part:	1 of 1
Result:	Plaintiff's action dismissed
Category:	B
PDF Version

Parties:	SECURE PARKING (WA) PTY LTD (ACN 073 500 160) ALFRED KARL WILSON NULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717)
Catchwords:	Lease Assignment Consent to assignment Admissibility of pre-contractual and post-contractual conduct Estoppel Implied consent Implied terms Prevented fulfilment Collateral agreement Unreasonable withholding of consent
Legislation:	Property Law Act 1969 (WA), s 11
Case References:	Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Breen v Williams (1996) 186 CLR 71 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 Daventry Holdings Pty Ltd v Bacalakis Hotels Pty Ltd [1986] 1 Qd R 406 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 Massart v Blight (1951) 82 CLR 423 Old Grovebury Manor Farm Ltd v W Seymour Plant Sales & Hire Ltd (No 2) [1979] 1 WLR 1397 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235 Property & Bloodstock Ltd v Emerton [1968] 1 Ch 94 Welch v Birrane (1974) 29 P & Cr 102 Wilson v Jolly (1948) 48 SR (NSW) 460 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Commonwealth v Verwayen (1990) 170 CLR 394 Equitable Life Assurance of the United States v Bogie (1905) 3 CLR 878 Foran v Wight (1989) 168 CLR 385 Freshmart Ltd v Mercantile Mutual Insurance (Australia) Ltd [1994] 2 Qd R 390 Gange v Sullivan (1966) 116 CLR 418 Glenochil, The (1896) P 10 Gosse Millerd Ltd v Canadian Government Merchant Marine Ltd [1929] AC 223 Gregory & Bradshaw v MAB Pty Ltd (1989) 1 WAR 1 Hyde v Pimley & Ors (1952) 2 QB 506 Immer (No 145) Pty Ltd v the Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 K C Park Safe Pty Ltd v Triple 7 Nominees Pty Ltd, unreported; SCt of Vic; Library No 5254; 13 February 1996 Legione v Hateley (1983) 152 CLR 406 Lewis v Cook (2000) 18 ACLC 490 Mahoney v Lindsay (1980) 33 ALR 601 Maynard v Goode (1926) 37 CLR 529 Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 Newmont Pty Ltd v Laverton Nickel NL [1983] 1 NSWLR 181

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: [2005] WASC 264
Decision Date

CaseChat Overview and Summary

Secure Parking (WA) Pty Ltd (the plaintiff) commenced proceedings against Alfred Karl Wilson (the first defendant) and Nullagine Investments Pty Ltd (the second defendant) seeking an order that the second defendant consent to an assignment of the lease of the Esplanade car park from the first defendant to the plaintiff. The plaintiff further sought a declaration that the assignment had been completed, an order for specific performance of the lease, and an injunction restraining the first and second defendants from taking any action inconsistent with the assignment. The plaintiff also sought damages. The court found that the second defendant did not consent to the assignment of the lease to the plaintiff and the first defendant did not assign the lease to the plaintiff. The court rejected the plaintiff's alternative arguments based on estoppel, implied consent, prevented fulfilment equal to performance, collateral agreement and unreasonable withholding of consent. The plaintiff's action was dismissed.

Orders