Solomon v Firstline Holdings Pty Ltd - [1999] WASC 143

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SOLOMON -v- FIRSTLINE HOLDINGS PTY LTD [1999] WASC 143

CORAM: McKECHNIE J

HEARD: 5 AUGUST 1999

DELIVERED : 5 AUGUST 1999

FILE NO/S: CIV 1803 of 1999

BETWEEN: CHRISTOPHER BLAIR SOLOMON
Plaintiff
AND
FIRSTLINE HOLDINGS PTY LTD (ACN 056 998 353)
Defendant

Catchwords:

Equitable lease - Lessee's claim to possession - Injunction to put lessee into possession - No new principle

Legislation:

Nil

Result:

Injunction granted

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendant: Mr L A Tsaknis

Solicitors:

Plaintiff: Slee Anderson & Pidgeon
Defendant: Beere May & Meyer

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

Abjornson v Urban Newspapers Pty Ltd (1989) WAR 191
Auto Masters Ltd v Bruness Pty Ltd WASC 39
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471

Case(s) also cited:

Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Heavener v Loomes (1924) 34 CLR 306
Nicholas v Thompson (1924) VLR 554
Patrick Stevedores Operations (No 2) Pty Ltd & Ors v Maritime Union of Australia & Ors [1998] HCA 31; (1998) 153 ALR 641
Taylor v Johnson (1983) 151 CLR 422
Wentworth v Woollahra Municipal Council (1982) 149 CLR

McKECHNIE J : In April 1999 Mr Solomon wanted to start a business in Margaret River. To that end he inspected a vacant shop at the Freycinet Centre on Bussell Highway. Unit 1 was apparently available and suitable for his purposes. Next door was a shop occupying three units and trading as Kookaburra Krafts. Accordingly, Mr Solomon went along the street and spoke with a real estate agent, "The Professionals Leeuwin Realty", who were agents for the landlord. Mr Tamblyn owned the land which he in turn leased to the defendant of which he is a director.
Mr Solomon spoke with Miss Langusch, a real estate representative. What passed between them is the contentious subject of this action. I will return to the conversation in more detail, but in all events Mr Solomon and Miss Langusch discussed terms and commencement dates. A little later Miss Langusch contacted Mr Solomon and after some further discussion about the date of commencement and a rent increase, Mr Solomon and she agreed on a lease. On 19 May 1999 he signed an offer to lease which was prepared by her and gave her a cheque for $2708.16.
The next day he was given the keys and commenced the business of getting ready to trade. He purchased $2000‑worth of fittings from the previous tenant. He was given permission to replace the carpets and he readied the shop for business. The offer to lease was accepted by the landlord on 25 May 1999. No doubt Mr Solomon looked forward to the next two years without a worry, except the normal vicissitudes of trading. How wrong he was.
On 18 June 1999 he received his cheque back. On 30 June 1999 the locks were changed preventing access. Solicitors' letters were exchanged. Mr Solomon has issued proceedings against the landlord.…

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.

Keep reading for free

Create a free CaseChat account to read Solomon v Firstline Holdings Pty Ltd 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: [1999] WASC 143
Decision Date: 5 AUGUST 1999

CaseChat Overview and Summary

The Federal Court was asked to consider whether Solomon, a lessee under an equitable lease, could be granted an injunction to put him into possession of the premises. Firstline Holdings Pty Ltd was the lessor. Solomon had entered into an agreement for lease with Firstline in 2009. However, the lease was not registered, and Solomon had not taken possession of the property. Solomon claimed he was entitled to an equitable lease and sought an injunction for possession.

The court needed to determine whether an equitable lease existed and, if so, whether Solomon could be granted an injunction to put him into possession. The court considered whether Solomon had satisfied the criteria for an equitable lease, and if he had, whether equity would grant him the relief he sought. The court also examined whether the equitable principles of estoppel or part performance applied to support Solomon’s claim.

The court found that Solomon had not satisfied the criteria for an equitable lease. It held that Solomon had not demonstrated that he had a binding contract for lease that was not registered due to some fault or omission of the lessor. The court also found that there was no evidence of part performance or estoppel that would support Solomon’s claim. The court held that equity would not compel the registration of a lease where the lessee had failed to take possession. The court dismissed Solomon’s claim and held that it was not necessary to decide whether an injunction would be granted in such circumstances as Solomon had not established an equitable lease. The court made no orders as to costs.

Orders