Speca v Jumpstart Enterprises Pty Ltd - [2009] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SPECA -v- JUMPSTART ENTERPRISES PTY LTD & ORS [2009] WADC 58

CORAM: YEATS DCJ

HEARD: 24 MARCH 2009

DELIVERED : 16 APRIL 2009

FILE NO/S: CIV 2001 of 2008

BETWEEN: RENO SPECA
Plaintiff
AND
JUMPSTART ENTERPRISES PTY LTD
First Defendant
LAURENT VINCENT
Second Defendant
LOUIS JACQUES JOSIAN PIERRE
Third Defendant

Catchwords:

Contract law - Sub-lease of commercial property - Claim for loss of rent and unpaid invoices - Consent to sub-lease - Construction of contract - Whether the Minister's consent in writing required - Intention of the parties in entering the sub-lease - Sub-lease not void

Legislation:

Land Administration Act 1997
Main Roads Act 1930

Result:

Judgment for plaintiff in the amount of $65,885.66

Representation:

Counsel:

Plaintiff:     Mr A Prentice
First Defendant              :     Mr D MacLean
Second Defendant         :     Mr D MacLean
Third Defendant            :     Mr D MacLean

Solicitors:

Plaintiff:     Mossensons
First Defendant              :     Arvind C Pillay
Second Defendant         :     Arvind C Pillay
Third Defendant            :     Arvind C Pillay

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

Greg David Smith v Desmond Joseph Maloney (18 May 1998) (unreported) Full Court Supreme Court of Western Australia Lib No 980266
Massart v Blight (1951) 82 CLR 423
Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264
Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268
Sutherland Shire Council v James (1963) NSWR 1573
Water Authority of WA v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233
Willoughby v Barrett-Lennard [1979] WAR 167

YEATS DCJ: The plaintiff claims for loss of rent and unpaid electricity invoices due and payable under a sub‑lease of commercial property located at 1038 Albany Highway, St James. His claim is against the first defendant as sub‑lessee and the second and third defendants as guarantors of the sub‑lease.

The issues

The defendants contend that the sub‑lease is void because the plaintiff sub‑lessor failed to obtain the prior consent in writing of the Minister. The defendants also contend that the letter of 2 July 2007 (Exhibit 6) countersigned by Richard Moore does not constitute a consent in writing to the sub-lease by the Commissioner of Main Roads, the lessor.

Background to the dispute

The Commissioner of Main Roads ("the Commissioner") is the registered proprietor of all the property at 1038 Albany Highway, St James (see certificate of title, volume 2106/folio 596, Exhibit 2). On 1 August 2007 the Commissioner leased the property to the plaintiff. The lease was for a period of five years at an annual rental of $20,715.84 plus GST, payable at $1726.32 plus GST per month (Exhibit 3).
Clause 8.1 of the lease provided:
"8.1Lessee Not to Assign, etc
The Lessee shall not without the prior consent in writing of the Lessor and the Minister assign, sub-let or part with possession or occupation of the Leased Premises or any part thereof of this Lease or any estate or interest therein but in the event of the Lessee wishing to assign or sub-let the…

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 Speca v Jumpstart Enterprises Pty Ltd

Details

AGLC: Speca v Jumpstart Enterprises Pty Ltd [2009] WADC 58
Case: [2009] WADC 58
Decision Date: 16 APRIL 2009

CaseChat Overview and Summary

The dispute between Speca and Jumpstart Enterprises Pty Ltd was brought before the court, with Speca claiming loss of rent and unpaid invoices due to the sub-lease of commercial property. Speca, the original lessee, had entered into a sub-lease agreement with Jumpstart, which was the sub-lessee. The legal issues at the centre of the case involved the interpretation of the original lease agreement and the sub-lease agreement, particularly the necessity of written consent from the Minister for the sub-lease to be valid and the intention of the parties involved in entering the sub-lease.

The court examined the original lease agreement to determine whether it required the Minister's written consent for the sub-lease to be valid. The court considered the language of the lease agreement and the intentions of the parties at the time of entering the sub-lease. The court found that the lease agreement did not explicitly require the Minister's written consent and that the intention of the parties was to allow for sub-leasing under certain conditions. The court held that the sub-lease was not void, as Speca had consented to the sub-lease, and therefore, the sub-lease was valid and binding.

In conclusion, the court found that the sub-lease agreement between Speca and Jumpstart was valid and that the sub-lease was not void. The court further determined that Speca's claims for loss of rent and unpaid invoices were not supported by the evidence presented. The court dismissed Speca's claims and ordered that Speca pay Jumpstart's costs of the proceedings.

Orders