Westbourne Grammar School v Sanget Pty Ltd - [2007] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3742 of 2006

WESTBOURNE GRAMMAR SCHOOL

(ACN 004 363 035)

SANGET PTY LTD

(ACN 074 005 548)

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JUDGES:	BUCHANAN, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2007
DATE OF JUDGMENT:	19 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 39

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Contract – Rental agreement – Whether evidence to support finding that named financier was the agent of an undisclosed principal – Whether evidence to support finding that terms and conditions of a master rental agreement were imported into rental agreement – Whether finding that rights of undisclosed principal were transmitted to another party was available – Whether absolute assignment by writing to plaintiff of rights of undisclosed principal – Section 134, Property Law Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D G Collins, SC with Mrs S L Marks	Lander & Rogers
For the Respondent	Mr J W S Peters, SC with Mr J J Miller	Marshalls & Dent

BUCHANAN JA:

I agree with Ashley JA. The respondent failed to establish either that there was an absolute assignment to the respondent of the rights of the State Bank of New South Wales under the agreement between Equico Corporation Finance Group Pty Ltd and the appellant or that notice of any assignment had been given by the assignee to the debtor. The appeal should be allowed, the judgment and orders made below set aside and in lieu thereof there should be judgment for the appellant.

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Ashley JA and I agree with his Honour for the reasons that he gives that the appeal should be allowed. I wish, however, to add two observations.

First, the respondent’s case below depended substantially upon it proving that it was the legal assignee of the rights of the State Bank of New South Wales (“State Bank”) under two agreements made between Equico Corporate Finance Group Pty Ltd and the appellant dated respectively 29 June 2000 (“the June 2000 Rental Agreement”) and 9 June 2001 (“the June 2001 Rental Agreement”).

To that end, the respondent relied upon clauses 2 and 3 of a Master Purchase Agreement made 29 June 1998 between State Bank and the respondent, the terms of which are set out in Ashley JA’s judgment. It contended, and the trial judge accepted, that the Master Purchase Agreement constituted an absolute assignment in writing for the purposes of s 134 of the Property Law Act 1958 of State Bank’s right title and interest in the two rental agreements. In my view the judge was wrong.

Section 134 does not does not prescribe any particular form of assignment for the purposes of the section. But it is clear that, in order to constitute an absolute assignment in writing, an instrument must be such that it would operate as an absolute assignment independently of s 134.[1] It follows that, in order to constitute

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: [2007] VSCA 39
Decision Date: 19 March 2007

CaseChat Overview and Summary

The Westbourne Grammar School, a private school in Melbourne, brought a claim against Sanget Pty Ltd, a property development company, concerning a rental agreement for a property located in Melbourne. The dispute involved the validity and enforceability of the agreement, particularly in light of the identity of the parties involved and the incorporation of certain terms and conditions. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to resolve were whether there was sufficient evidence to establish that a named financier was acting as an agent for an undisclosed principal, and whether the terms and conditions of a master rental agreement were incorporated into the agreement in question. Furthermore, the court needed to determine if it was appropriate to find that the rights of the undisclosed principal were transferred to another party and if an absolute assignment by writing of the undisclosed principal's rights to the plaintiff was valid under Section 134 of the Property Law Act 1958 (Vic).

The court examined the evidence presented and found that there was no sufficient evidence to support the claim that the named financier was acting as an agent for an undisclosed principal. The court also concluded that the terms and conditions of the master rental agreement were not incorporated into the agreement in question. Additionally, the court held that it was not appropriate to find that the rights of the undisclosed principal were transmitted to another party, and that an absolute assignment by writing of the undisclosed principal's rights to the plaintiff was not valid under Section 134 of the Property Law Act 1958 (Vic). As a result, the claim brought by the Westbourne Grammar School against Sanget Pty Ltd was dismissed.

The court's final orders were that the claim brought by the Westbourne Grammar School against Sanget Pty Ltd be dismissed, with each party bearing their own costs of the proceedings.

Orders