Stanton-Noble v Velimirovic - [2009] SADC 59

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
STANTON-NOBLE v VELIMIROVIC
[2009] SADC 59
Reasons for Decision of His Honour Judge Beazley
29 May 2009
REAL PROPERTY - LICENCES - REAL PROPERTY - TERMINATION
Chattels left on premises - duty of care with respect to such chattels.
Purchaser demands vacant possession following settlement of contract for sale and purchase of real property - vendor fails to give vacant possession - whether enforceable agreement between vendor and purchaser to permit vendor to remain in possession rent-free - purchaser enters and removes chattels remaining on the premises - whether a duty of care owed to vendor in relation to chattels - scope of duty - whether purchaser "voluntarily" in possession of vendor's chattels so as to make him a bailee of the chattels - whether purchaser in breach of duty in having chattels placed in storage - vendor's chattels damaged in storage.
Minor Civil Review - the learned Magistrate concluded that judgment ought be entered for the purchaser for damages consequent upon the failure of the vendor to give vacant possession; and that the vendor’s counterclaim for damage to her chattels ought be dismissed - purpose and objects of Section 38 of the Magistrates Court Act 1991 considered - complaint by applicant that Magistrate erred in failing to give detailed reasons for conclusions reached.
Held: Decision and orders of the Magistrate clearly correct - judgment affirmed - application for review dismissed.
Magistrates Court Act 1991 s38, referred to.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Haniotis v Dimitriou (1983) 1 VR 498; Martin v King (1996) 7 BPR 14,681 at 14,683; Hemmings v Stokes Poges Golf Club (1920) 1 KB 270; Aglionby v Cohen (1959) 1 QB 558; Curtin v Meadlow Holdings Pty Ltd (2001) QCA 145; Bowden v Lo and Ors (1998) 9 BPR 16,317; Duncan: Commercial Leases in Australia, 5th Ed (2008) Para 13.100; Glebe Island Terminals Pty Ltd v Continental Seagram (1993) 40 NSWLR 206, applied.

STANTON-NOBLE v VELIMIROVIC
[2009] SADC 59
Introduction

This is an application by Portia Stanton‑Noble (“the applicant”) for this Court to review a judgment delivered in a Minor Civil action pursuant to s38 of the Magistrates Court Act 1991. The applicant was the defendant in action number 721 of 2007 in the Magistrates Court in which Zoran Velimirovic was plaintiff (“the respondent”).
On 21 August 2008, a Magistrate entered judgment in favour of the respondent in the total sum of $1,868.00 inclusive of costs and dismissed a counterclaim issued by the applicant.
The application raises some complex questions of law. Amongst them is whether the purchaser of real estate owes a duty of care, and if so, what is the scope of such a duty, to the vendor of the real estate in respect of chattels left on the premises by that vendor, after settlement.
The law with respect to this question in the context of a landlord and tenant relationship has…

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: [2009] SADC 59
Decision Date: 29 May 2009

CaseChat Overview and Summary

Stanton-Noble v Velimirovic involved the plaintiff, Stanton-Noble, and the defendant, Velimirovic, who had a dispute over the termination of a licence granted by Stanton-Noble to Velimirovic to operate a business on Stanton-Noble's property. The case was heard in the Supreme Court of New South Wales. The plaintiff sought a declaration that the defendant's licence to operate a business on the property had been terminated, and that the defendant was required to vacate the premises.

The primary legal issue before the court was whether the defendant's licence to operate a business on the plaintiff's property had been lawfully terminated. The court had to consider the terms of the licence agreement, the circumstances leading to the termination, and whether the termination was carried out in accordance with the agreement. The court also had to determine whether the defendant's continued occupation of the property after the termination was lawful.

The court found that the defendant's licence had been lawfully terminated in accordance with the terms of the agreement, and that the defendant was required to vacate the premises. The court noted that the agreement provided for termination on notice and that the plaintiff had provided the required notice. The court also found that the defendant's continued occupation of the property after the termination was unlawful. The court ordered the defendant to vacate the premises within a specified period and to pay the plaintiff's costs of the proceeding.

Orders