Soussa v Thomas - [2021] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SOUSSA -v- THOMAS [2021] WASC 172
CORAM:   SMITH J
HEARD:   8 & 9 FEBRUARY 2021
DELIVERED          :   1 JUNE 2021
PUBLISHED           :   1 JUNE 2021
FILE NO/S:   CIV 1879 of 2020
BETWEEN:   ROBERT HENRY SOUSSA
Plaintiff
AND
LAURENCE MEIRION THOMAS
LUBA THOMAS
Defendants
LAURENCE MEIRION THOMAS
LUBA THOMAS
Plaintiffs by counterclaim
AND
ROBERT HENRY SOUSSA
Defendant by counterclaim

Catchwords:

Contract - Sterling New Life Lease scheme - Offer to enter into a lease - Exclusive Management Authority for Residential Premises agreement - Residential Tenancy Agreement - Payment Direction Deed and Options to Renew lease incorporated expressly into the terms of the lease

Contract - Options validly exercised to create a lease for 40 years

Contract - Payment Direction Deed - Effect of tripartite agreement between the plaintiff, the defendants and manager of a Sterling New Life Lease scheme income trust - Sterling Income Trust

Residential Tenancies Act 1987 (WA) - Effect of s 27A and s 82 and reg 10AA(a) of the Residential Tenancies Regulations 1989 (WA) requiring prescribed form of lease in Form of Part A, Part B (standard terms) and Part C - Effect of standard term cl 3 prevails over the terms of the Payment Direction Deed

Estoppel by conduct or representation - Promissory estoppel - Common principles considered - Not satisfied defendants entered into Sterling New Life Lease in reliance on representations made or assumptions induced for or on behalf of the plaintiff

Legislation:

Interpretation Act 1984 (WA), s 47
Residential Tenancies Act 1987 (WA), s 27A, s 75, s 82
Residential Tenancies Regulations 1987 (WA), reg 10AA

Result:

Judgment for the plaintiff
Counterclaim dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Mr J M Healy & Ms S Beri
Defendants	:	Mr I Neil SC & Ms L D Coci

Solicitors:

Plaintiff	:	Tang Law
Defendants	:	King & Wood Mallesons

Counterclaim

Counsel:

Plaintiffs by counterclaim	:	Mr I Neil SC & Ms L D Coci
Defendant by counterclaim	:	Mr J M Healy & Ms S Beri

Solicitors:

Plaintiffs by counterclaim	:	King & Wood Mallesons
Defendant by counterclaim	:	Tang Law

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

Amalgamated Investment & Property Co Ltd (In liq) v Texas Commerce International Bank Ltd [1982] QB 84
Bell Group Ltd (In liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1
Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Crown Melbourne Ltd v Metropolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1
De Bussche v Alt (1878) 8 Ch D 286
George 218 Pty Ltd v Bank of Queensland Ltd [No 2] [2016] WASCA 182; (2016) 313 FLR 287
Gourmania Holdings Pty Ltd v Schlegel [2021] WASCA 28
Health Partners Incorporated v Gonos (1996) 67 SASR 338
Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85
Sidhu v Van Dyke…

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 Soussa v Thomas

Details

AGLC: Soussa v Thomas [2021] WASC 172
Case: [2021] WASC 172
Decision Date

CaseChat Overview and Summary

In Soussa v Thomas, Smith J was required to determine the terms of the lease between the parties and whether the defendants were estopped from acting on the notice to terminate the lease. The lease between the parties was for a term of 40 years, which was effective because the defendants had exercised the seven options to renew the lease in accordance with the terms of the lease. The defendants' claim that they were estopped from acting on the notice to terminate the lease was dismissed because the defendants had not proved that any oral or written conduct or representations made by, or for and on behalf of, Mr Soussa caused them to make any of the pleaded assumptions. The court found that the defendants had not proved that any oral or written conduct or representations made by, or for and on behalf of, Mr Soussa caused them to make any of the pleaded assumptions. The defendants' claim of estoppel was dismissed and the court heard the parties as to the specific orders that should be made to reflect these reasons, and as to costs.

Orders