Thompson v Geminder Holdings Pty Ltd - [2016] VSC 495

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2013 03476

AMANDA JANE THOMPSON	Plaintiff
v
NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937)	First Defendant
GEMINDER HOLDINGS PTY LTD (ABN 11 095 313 714)	Second Defendant
RAPHAEL GEMINDER	Third Defendant
DAVID ANTHONY HEFFERNAN	Fourth Defendant
SHARON LEE HEFFERNAN	Fifth Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17-20, 24-27August, 2-4, 7-11, 14-17, 21-22 September 2015
DATE OF JUDGMENT:	24 August 2016
CASE MAY BE CITED AS:	Thompson v Geminder Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 495

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CONTRACT – Tenant of property when landlord in financial difficulty – Whether tenant agreed to purchase property and grant an option back – Whether contract existed before written agreement - Implied terms – Good faith – Co-operation – Whether contract required writing – Whether part performance – Mortgagee taking possession of the property – Whether loss of opportunity to exercise option – Damages

ESTOPPEL – Equitable and promissory estoppel – Representation – Reliance – Detriment – Equitable compensation

TORT – Trespass, conversion and detinue – Whether curtains, carpets and chandeliers chattels or fixtures – Whether plaintiff had right to possession of the items – Ownership of the items – Pleadings – Appropriate relief

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Rodbard-Bean and Mr D J-H Kim	Darren Muir Fleiter
For the First Defendant (up to and including 26 August 2015)	Mr E W Woodward SC and Ms P Thiagarajan	Norton Rose Fulbright
For the Second and Third Defendants	Mr D J Batt QC, Mr D W Bennett and Ms E L A Dias	King & Wood Mallesons
For the Fourth and Fifth Defendants	Mr T J Sowden	Ken Smith & Associates

Introduction

Summary
Background
Mrs Thompson’s claim against the NAB
Causes of action
Credit

The evidence of the dealings between the parties

Mrs Thompson’s claims in contract

The Geminders’ submissions about the contract claims
Analysis of the plaintiff’s claim in contract

Mrs Thompson’s claims in estoppel

The Geminders’ submissions on estoppel
Analysis of the estoppel claim

Claims in tort

Chattels or fixtures?
Ownership
Submissions on ownership of the chattels
Analysis of submissions about ownership
Chronology of claims to the chattels
Was there a conversion or detinue of the chandeliers by Mr Geminder?
Analysis
Conclusion on the claims in tort

Conclusion

HIS HONOUR:

Introduction

The plaintiff, Mrs Amanda Jane Thompson, sues Geminder Holdings Pty Ltd and Mr Raphael Geminder, the second and third defendants (to whom I will generally refer as ‘the Geminders’), for damages for breaches of contracts or for equitable compensation arising from estoppels. She also seeks damages in tort for trespass, conversion of detinue of chattels left in her family home in Toorak and for their delivery up. Mrs Thompson leased her home to Mr Geminder from January 2013. Mrs Thompson also sues Mr David Anthony Heffernan and Mrs Sharon Lee Heffernan (‘the Heffernans’), the fourth and fifth defendants, for delivery up of the chattels. 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.

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Details

Case: [2016] VSC 495
Decision Date: 24 August 2016

CaseChat Overview and Summary

The parties involved in this case were Thompson, the plaintiff, and Geminder Holdings Pty Ltd, the defendant. The dispute arose from an alleged agreement between the parties concerning the purchase of a property owned by Geminder and located in Brisbane. The plaintiff claimed that an agreement had been made prior to a written contract, that Geminder had breached the agreement, and that Thompson was entitled to damages and other relief. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the parties had agreed to purchase and grant an option back to the property prior to the written agreement, whether the contract required writing, and whether part performance existed. Additionally, the court needed to determine whether the plaintiff was entitled to damages for loss of opportunity to exercise an option, and whether the curtains, carpets, and chandeliers removed from the property were chattels or fixtures. The court also considered the applicability of equitable and promissory estoppel, as well as the appropriate relief for the plaintiff.

The court found that there was no evidence of an agreement prior to the written contract, and that the contract did require writing. However, the court did find that part performance existed, as the plaintiff had taken possession of the property and made payments under the alleged agreement. The court further found that the plaintiff was entitled to damages for loss of opportunity to exercise the option, as the mortgagee's taking possession of the property prevented the plaintiff from exercising the option. Regarding the curtains, carpets, and chandeliers, the court found that they were fixtures and that the plaintiff did not have a right to possession of them. The court also found that the plaintiff was entitled to equitable compensation for the removal of the items. Finally, the court considered the appropriate relief for the plaintiff and found that the plaintiff was entitled to damages for breach of contract and for the removal of the fixtures.

The court ordered Geminder Holdings Pty Ltd to pay Thompson damages for breach of contract, for loss of opportunity to exercise the option, and for equitable compensation for the removal of the fixtures. The court also ordered Geminder to pay Thompson's costs of the proceeding.

Orders