WEBSTER & ANOR -v- BANNING HOLDINGS PTY LTD & ORS [2001] WASC 11

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 11
Case No:	CIV:1099/1989	Heard:	2-3, 6-10 & 13-16 NOVEMBER 2000
Coram:	ANDERSON J	Delivered:	25/01/01
No of pages:	38	Judgment Part:	1 of 1
Result:	Claim dismissed Counterclaim allowed in part
PDF Version

Parties:	ANTHONY REGINALD WEBSTER ROSLYN WEBSTER BANNING HOLDINGS PTY LTD DAVID LAMPARD MARTIN PAUL BANNING
Catchwords:	Landlord and tenant Lease of roadhouse Default by lessees Non-payment of rent Service of notice by local authority that premises unfit for habitation Termination of lease Eviction Whether wrongful Police Abuse of office Policeman attending at time of eviction of tenant
Legislation:	Nil
Case References:	Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1 Northern Territory of Australia v Mengel (1995) 185 CLR 307 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 Australian Consolidated Press Ltd v Uren (1968) 117 CLR 185 Capelinha v M & D Marchesi Holdings Pty Ltd (1995) 13 SR(WA) 261 Laurinda Pty Ltd v Capalba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Racz v Home Office [1994] 2 WLR 23 Sanders v Snell (1997) 143 ALR 426 Webster v Lampard (1993) 177 CLR 598

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WEBSTER & ANOR -v- BANNING HOLDINGS PTY LTD & ORS [2001] WASC 11 CORAM : ANDERSON J HEARD : 2-3, 6-10 & 13-16 NOVEMBER 2000 DELIVERED : 25 JANUARY 2001 FILE NO/S : CIV 1099 of 1989 BETWEEN : ANTHONY REGINALD WEBSTER

ROSLYN WEBSTER

Plaintiffs

AND

BANNING HOLDINGS PTY LTD

First Defendant

DAVID LAMPARD

Second Defendant

MARTIN PAUL BANNING

Third Defendant

Catchwords:

Landlord and tenant - Lease of roadhouse - Default by lessees - Non-payment of rent - Service of notice by local authority that premises unfit for habitation - Termination of lease - Eviction - Whether wrongful

Police - Abuse of office - Policeman attending at time of eviction of tenant

(Page 2)

Legislation:

Nil

Result:

Claim dismissed

Counterclaim allowed in part

Representation:

Counsel:

Plaintiffs : Mr B W Duckham

First Defendant : Mr K J O'Toole

Second Defendant : Mr G J O'Hara

Third Defendant : Mr K J O'Toole

Solicitors:

Plaintiffs : B W Duckham & Co

First Defendant : K J O'Toole & Associates

Second Defendant : Kott Gunning

Third Defendant : K J O'Toole & Associates

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

Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1
Northern Territory of Australia v Mengel (1995) 185 CLR 307
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448

Case(s) also cited:

Australian Consolidated Press Ltd v Uren (1968) 117 CLR 185
Capelinha v M & D Marchesi Holdings Pty Ltd (1995) 13 SR(WA) 261
Laurinda Pty Ltd v Capalba Park…

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: [2001] WASC 11
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Webster v Banning Holdings Pty Ltd was heard by Anderson J. The plaintiffs, Mr and Mrs Webster, brought an action against Banning Holdings Pty Ltd, the landlord, and Sergeant Lampard, a police officer, alleging wrongful eviction and abuse of office. The court found that the eviction was lawful and dismissed the plaintiffs' claims. The court found that the Websters were in breach of their lease agreement by failing to pay rent and other obligations, and that the premises were declared unfit for habitation by a local authority. The court also found that the Websters' claims of conversion and wrongful detention of chattels were unsubstantiated. The counterclaim by Banning Holdings Pty Ltd for unpaid rent, rates, and charges was partially allowed. The court dismissed the claim against Sergeant Lampard, finding that he acted within his authority and in good faith during the eviction.

Orders