Thompson v Geminder Holdings Pty Ltd

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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

  1. 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…

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Details
Case
[2016] VSC 495
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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