West Coolgardie Holdings Pty Ltd v Mercanti
[2016] WADC 46
•31 MARCH 2016
WEST COOLGARDIE HOLDINGS PTY LTD -v- MERCANTI [2016] WADC 46
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 46 | |
| Case No: | CIV:2126/2015 | 9 & 17 DECEMBER 2015 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 31/03/16 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for summary judgment dismissed | ||
| PDF Version |
| Parties: | WEST COOLGARDIE HOLDINGS PTY LTD TYRONE KANE MERCANTI PEZZANOVANTA RESOURCES PTY LTD |
Catchwords: | Trespass Summary judgment |
Legislation: | Nil |
Case References: | Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Esperance Cattle Co Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Haniotis v Dimitriou [1983] 1 VR 498 Hardie Finance Corp Pty Ltd v Ahern [No 3] [2010] WASC 403 Plenty v Dillon (1991) 171 CLR 635 Webster v Lampard (1993) 177 CLR 598 White v Johnston (1886) 8 ALT 53 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
TYRONE KANE MERCANTI
First Defendant
PEZZANOVANTA RESOURCES PTY LTD
Second Defendant
Catchwords:
Trespass - Summary judgment
Legislation:
Nil
Result:
Application for summary judgment dismissed
Representation:
Counsel:
Plaintiff : Mr M S Macdonald
First Defendant : Mr G Metaxas
Second Defendant : Mr G Metaxas
Solicitors:
Plaintiff : Macdonald Rudder
First Defendant : Metaxas & Hager
Second Defendant : Metaxas & Hager
Case(s) referred to in judgment(s):
Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Esperance Cattle Co Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Haniotis v Dimitriou [1983] 1 VR 498
Hardie Finance Corp Pty Ltd v Ahern [No 3] [2010] WASC 403
Plenty v Dillon (1991) 171 CLR 635
Webster v Lampard (1993) 177 CLR 598
White v Johnston (1886) 8 ALT 53
1 PRINCIPAL REGISTRAR MELVILLE: On 7 July 2015 the plaintiff (West Coolgardie Holdings) issued a writ against the first defendant (Mr Mercanti) and the second defendant (Pezzanovanta). By the writ and the indorsement thereon West Coolgardie Holdings claims damages and punitive damages for trespass by the two defendants to its property at 32 Forsyth Street O'Connor (the premises) on or about the 17 February 2015 until about 25 March 2015.
2 More particularly, and from its statement of claim, West Coolgardie Holdings case appears to be:
(a) That it was the owner of the premises which from 1 November 2013 were leased to Deliver Western Australia Pty Ltd ('the tenant').
(b) By letter dated 16 January 2015 (which should in fact be 16 February 2015) it terminated the lease due to the tenant's non-performance of its terms, namely non-payment of rent in January and February 2015 and non-payment of various outgoings. These outgoings have been calculated over a period between 1 July 2014 and 30 June 2015.
(c) That sometime between November 2014 and February 2015 Pezzanovanta acquired the business of the tenant and also, as part of acquiring that business, took possession of the premises and as such was a trespasser along with Mr Mercanti because he was a director of Pezzanovanta.
(d) On 17 February 2015 West Coolgardie Holdings re-entered the premises.
(e) On the 17 February 2015 Mr Mercanti and Pezzanovanta re-took possession of the premises and remained in possession until about the 25 March 2015.
(f) As a result West Coolgardie Holdings suffered loss including loss of rent before the 17 February 2015 and after the 17 February 2015 including expenses such as council rates, land tax management fees and insurance expenses for the most of the financial year 2014 - 2015.
3 Finally, in respect to the claim for 'exemplary and aggravated damages', found within the statement of claim, which I take to be the punitive damages referred to in the writ, West Coolgardie Holdings alleges:
(a) prior to the termination of the lease Mr Mercanti deceived West Coolgardie Holdings by holding himself out as acting on behalf of the tenant, the holding out being found in a series of emails between Mr Mercanti and West Coolgardie Holdings agent Knight Frank between 7 January 2015 and 28 January 2015; and
(b) the defendants took possession in November 2014 until dispossessed by West Coolgardie Holdings on the 17 February, following which the two defendants re-entered the premises, this being the alleged trespass the subject of this litigation.
4 West Coolgardie Holdings has now brought an application for summary judgment against Mr Mercanti pursuant to the Rules of the Supreme Court 1971 O 14. To be successful West Coolgardie Holdings needs to establish that the claim made is a good one and that there is no defence to it. The party showing cause against the application assumes an evidentiary burden by that process, but the overall legal burden of persuasion remains upon the applicant: Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 23.
5 The power will not be exercised unless it is clear that there is no real question to be tried Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
6 It was never intended that, when the facts are in dispute, actions should be disposed of summarily White v Johnston (1886) 8 ALT 53. If a version of the facts is put forward by the defendant which is not inherently incredible, then in the absence of any opportunity of cross-examination it is incumbent on the court to proceed on the basis that it will ultimately be accepted at the trial of the action: Webster v Lampard (1993) 177 CLR 598, 608.
7 The evidence in support of the summary judgment application is found principally in the affidavit of Aiden Gale Keogh sworn 24 September 2015 and more particularly pars 9 – 13. In that regard Mr Keogh as director of West Coolgardie Holdings says:
9. On or about 17 and 18 February 2015 the first defendant ripped the notices of repossession from the Premises in view of me and others hired by the plaintiff to retake possession.
10. On or about 17 February 2015 I informed the first defendant that he and the Tenant (as defined in the statement of claim) needed to vacate the Premises. He aggressively shouted at me to 'Get a court order!' and 'Piss off!'.
11. The first defendant occupied the Premises to the exclusion of the plaintiff from and including on or about 17 February 2015 to and until 25 March 2015.
12. The first defendant did not at any time after 17 February 2015 have authority from the plaintiff to enter or remain on the Premises.
13. From the time the plaintiff took possession on 27 February 2015, I believed that the first defendant occupied the Premises as agent of the Tenant. This belief was based on 4 emails from the first defendant to Knight Frank referred to in paragraph 23 of the statement of claim, copies of which I attach hereto and mark AGK4. They are as follows:
(a) Email from the first defendant to Knight Frank dated 7 January 2015;
(b) Email from the first defendant to Knight Frank dated 12 January 2015;
(c) Email from the first defendant to Knight Frank dated 21 January 2015; and
(d) Email from the first defendant to Knight Frank dated 28 January 2015.
9 He also deposes at par 13 of his affidavit that he believed Mr Mercanti occupied the premises from and after the 17 February 2015 as agent of the tenant based on emails Mr Mercanti sent to Knight Frank between 7 January 2015 and 28 January 2015. Evidence of this belief appears to be relevant to two parts of West Coolgardie Holdings claim.
10 Firstly it may explain why West Coolgardie Holdings commenced proceedings in the Supreme Court for possession against the tenant rather than Pezzanovanta and incurred the legal fees in doing so that it now seeks from Mr Mercanti as part of its damages.
11 Secondly, this evidence may be intended (I am not sure if was intended) to support a finding that Mr Mercanti occupied the premises before and after 17 February 2015.
12 However, Mr Keogh's belief that Mr Mercanti occupied the premises is not relevant to the question of whether Mr Mercanti did in fact occupy the premises. Further, the emails upon which the belief is based are five emails, four of which are from Mr Mercanti, that appear to address issues relating to outstanding rent owing by the tenant. For example, at the bottom of each email sent by Mr Mercanti appears the name Deliver WA Pty Ltd. In one he promises to 'forward your e-mail to the owners' and in another he says 'I am sure the owners of Deliver would expect nothing less from Aiden'.
13 However there is nothing in the evidence that suggests, let alone proves, that the emails were sent by Mr Mercanti from the premises as distinct from, for example, the registered office of the tenant, Pezzanovanta or his personal residence, or the principal place of business of the tenant or Pezzanovanta, which in the historical data extracted from the ASIC database and annexed to the affidavit of Mr Keogh as AGH7, was 1 Hines Road, O'Connor and 5 Broderick Street, Karrinyup respectively.
14 The email address of Mr Mercanti in these emails is '@hubinvestments.com.au'. No geographical location is ascertainable from the information given to me.
15 In opposition to the application for summary judgment Mr Mercanti filed his own affidavit. In that affidavit he deposed to being employed by the tenant as financial controller. In relation to the alleged trespass at pars 16 – 24 he deposed as follows:
16 On 17 February 2015 at about 11.00 am I witnessed persons attending the premises I now know as Aiden Keogh (a director of the plaintiff), Chris Daws and Mr Keogh's brother.
17 I saw them enter the premises without warning and Keogh proceeded to place a notice on the reception desk which stated that the plaintiff was taking possession of the premises.
Attached and marked TKM-6 is a photograph of the notice placed on the reception desk at the premises.
18 Mr Daws then walked into my office and the following exchange of words occurred:
Me: What can I do for you?
Daws: We are taking over the Premises.
Me: You cannot do that. You need a court order.
19 As I said that a court order was required I left my office and started to remove the notice off the front door of the premises. Whilst I was removing the notice Mr Daws attempted to physically restrain me from removing the notice.
20 I then said to Mr Daws 'mate, I warn you now, do not touch me'.
21 Daws and the Keoghs then left my office and I saw them affix further notices at the premises and lock the gates. Mr Keogh's brother then parked his car in the drive way to prevent any of DWA's trucks from entering the premises.
22 I instructed Darren Simmons (General Manager of DWA) to telephone the Police and inform them as follows:
22.1 the plaintiff had trespassed on the premises;
22.2 we required an officer to attend the premises to escort the plaintiff's representatives away from the premises; or
22.3 provide the police with Mr Keogh's telephone number so they could telephone him and instruct him and the plaintiff's representatives to leave the premises.
23 Mr Simmons called the police.
24 Shortly after Mr Simmons telephoned the police Mr Keogh received a telephone call. I do not know what was said in the course of that telephone conversation. However, shortly after the telephone call ended the Keoghs and Daws left the premises.
16 When those emails are considered in light the sworn evidence of Mr Mercanti that he was an employee of the tenant and employed as its financial controller, it seems likely the emails were sent by Mr Mercanti in his capacity of an employee of the tenant. To that extent Mr Keoghs belief that Mr Mercanti was acting as agent for the tenant is understandable. In a sense Mr Mercanti was, although it might be better to describe Mr Mercanti's involvement as employee rather than agent. Either way in my view the emails that seem to be productive of Mr Keogh's belief that Mr Mercanti deceived him into believing the tenant was still in possession of the premises, a belief which seems to be the catalyst for the allegation of deceit in the statement of claim. In my view these facts fall far short of justifying such a finding on a summary judgement application.
17 It is also apparent from the affidavits of both deponents that West Coolgardie Holdings subsequently made application to the Supreme Court by way of a writ seeking an order for possession of the premises, arrears of rent and outgoings and damages for breach of the lease and for trespass. On 17 March 2015 judgment was entered whereby West Coolgardie Holdings obtained an order for possession of the premises with the balance of the action of being adjourned. It is to be noted that the application to the Supreme Court for an order for possession did not include an order that Mr Mercanti deliver up possession and I infer the reason for this is that West Coolgardie Holdings at that time did not believe that Mr Mercanti was in possession.
What is trespass?
18 Trespass to property involves an intrusion onto land of another person who is entitled to exclusive possession without that person's consent either express or implied, or remaining on the property when that consent is withdrawn, and in circumstances where there is no lawful entitlement to be on the property. In this regard seeHardie Finance Corp Pty Ltd v Ahern [No 3] [2010] WASC 403,and the authorities cited therein. However not every trespass amounts to taking possession. Many trespasses occur without the trespasser taking possession or event attempting to or intending to. For example in Plenty v Dillon (1991) 171 CLR 635 the High Court found police officers who entered land to serve a summons contrary to the express revocation of any implied licence to do so were trespassers, but it was never suggested that they took possession of the land whilst trespassing.
19 I mention this because of one of the arguments advanced by counsel for Mr Mercanti that it was the tenant which was in possession and occupation of the premises, and that an employee (Mr Mercanti) of the tenant could not be in considered an occupier, citing Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193 as authority for this proposition. It seems to me this proposition can only be relevant if it is sought to then argue that if Mr Mercanti was not an occupier he could not be a trespasser. In my view, there is no reason why the servants of third person who is in possession of, and occupies land as a trespasser, cannot be regarded as trespassers themselves if they also are on the land. Possession or occupation is not an essential element of trespass. Similarly there is no reason why those employees who enter land on instructions from their employer to enable their employer to occupy the land should not be regarded as trespassers, at least for the period in time that they were on the land. The fact that their employer may be vicariously liable for the trespass does not relieve them of personal responsibility.
20 In this case the tenant had been lawfully in possession. Mr Keogh annexes what he says is a true copy of a notice of termination issued by MacDonald Rudder dated the 16 February 2015, and a response from the tenants solicitors by email the following day (17 February 2015) at 12.13.46 acknowledging the lease had been terminated, advising that the tenant needed to move a large number of containers from the area and a large quantity of goods from the warehouse area and proposing 14 days be allowed to do this.
21 However, upon termination of a lease the lessee and its servants and agents need a reasonable time to vacate. The length of time that should be regarded as reasonable will depend on the amount of personal property that must be removed including the size of it, quantity of it and, possibly, the availability of premises to enable that property to be to lawfully stored elsewhere. See Haniotis v Dimitriou [1983] 1 VR 498, 500. By way of further example, a guest who enters land at the invitation of, or with the consent of, the tenant may have that permission revoked. However, he cannot instantly leave. He does not at that instant become a trespasser. He has a reasonable time to leave, the reasonableness of which will be determined by a number of factors including what he must take with him, how far he must travel to leave the property, and whether he is leaving by foot or by car.
Was Mr Mercanti a Trespasser before 17 February 2015?
22 The issue does not arise from the indorsement on the Writ. However it is not clear to me whether in the statement of claim West Coolgardie Holdings is alleging trespass prior to 17 February 2015. My uncertainty arises due to the allegation that Mr Mercanti and Pezzanovanta were in possession of the premises in November 2014. If it is not a material fact it should not have been pleaded. If this is a material fact then it may be material to the allegation of deceit and West Coolgardie Holdings application to the Supreme Court in the belief that the tenant was in possession. Alternatively it might be material to an allegation of trespass in this period for which damages are claimed.
23 Firstly, in my view if this is intended to give rise to a separate cause of action, if it was not captured by the indorsement on the writ it cannot subsequently be pleaded in the statement of claim.
24 Secondly, in my view there is no evidence Mr Mercanti was a trespasser before 17 February 2015. The evidence suggests the tenant was lawfully in possession of the premises pursuant to its lease and Mr Mercanti as an employee. If he was on the premises, as an employee of the tenant he was entitled to be on the premises. If he was not, West Coolgardie Holdings has no cause of action. If any cause of action existed it would have been the tenant's.
25 If Pezzanovanta was in possession there is still no evidence Mr Mercanti ever set foot on the premises between November 2014 and 17 February 2015. Further, in my view there is no good evidence that Pezzanovanta was in possession of the premises before 17 February 2015. Mr Mercanti as director of Pezzanovanta says in his affidavit that Pezzanovanta was not in possession of the premises. That is a triable issue.
26 Further, if is alleged that the corporate veil should be lifted so as to expose Mr Mercanti, as director of Pezzanovanta to liability, and I am not sure that this argument is being advanced, the evidence of conduct on the part of Mr Mercanti that would justify it insufficient for summary judgement. This would be an issue an issue that should be the subject of trial.
Was Mr Mercanti a trespasser on the 17 February 2015?
27 West Coolgardie Holdings argues that by the cl 18.1.1 of the lease, it was entitled to re-enter and take possession of the premises if the rent remained unpaid for 14 days after which it became due. The rent had not been paid and there is no dispute in that regard. On the 17 February 2017 West Coolgardie Holdings re-entered the premises and took possession, that is, it had a legal right to possession and physically took possession. Notwithstanding West Coolgardie Holdings taking of possession was resisted by the tenant through its servant Mr Mercanti, any issue as to who in fact was in possession at this time is resolved in favour of West Coolgardie Holdings having regard to the decision of Martin CJ in Esperance Cattle Co Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279 [445] and [448] where he said:
448 The legal principles applicable to this issue are not in doubt. They are set out in a passage in the decision of Maule J in Jones v Chapman[126]which has been cited with approval in many subsequent decisions:
'[A]s soon as a person is entitled to possession, and enters in the assertion of that possession or, which is exactly the same thing, any other person enters by command of that lawful owner, so entitled to possession, the law immediately vests the actual possession in the person who has so entered. If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is, which of those two is in actual possession, I answer, the person who has the title is in actual possession, and the other person is a trespasser ... [T]he question as to which of the two really is in possession is determined by the fact of the possession following the title that is by the law, which makes it follow the title.'
Was Mr Mercanti on the premises after the 17 February 2015?
29 I have no persuasive evidence that Mr Mercanti was on the premises after the 17 February 2015. As stated above I do not find par 11 of the affidavit of Mr Keogh convincing. Nor is there any persuasive evidence that Pezzanovanta was in possession of the premises. There is none from Mr Keogh. There is none from Mr Mercanti. In the absence of evidence that Mr Mercanti was physically on the premises, and in the absence of evidence that Pezzanovanta had possession of the premises in circumstances in which the corporate veil should be lifted and Pezzanovanta's acts be seen as Mr Mercanti's acts, there is a triable issue.
Conclusion
30 In light of my finding that the question of whether Mr Mercanti was a trespasser gives rise to an issue that should be determined only after a trial, the application for summary judgement is dismissed.
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