WESTPAC GENERAL INSURANCE LIMITED v SEAN COOPER AND ORS [2006] ACTSC 91
(22 SEPTEMBER 2006)TENANCY - liability for damage caused by fire to premises – whether tenant intentionally or negligently damaged the premises or permitted such damage – nature of tenant’s contractual obligation to keep premises in substantially same condition – burden of proof in proving possible exception - nature of onus in relation to possible exceptions of “fair wear and tear” and “accidental damage” – the principle of res ipsa loquitur – whether Jones v Dunkel inference available – joint and several liability.
Residential Tenancies Act 1997 (ACT)
Conveyancing Act 1919 (NSW)Vines v Djordevitch (1955) 91 CLR 512 at 519-520, followed
Regis Property Co Ltd v Dudley [1959] AC 370, cited
Baird v Campbell [2005] ACTRTT 8, distinguished
Flockhart v GA Properties Ltd [2001] ScotsCS 250, distinguished
Saviane & Ors v Stauffer Chemical Co [1974] 1 NSWLR 665, followed
Sunray Investments Pty Ltd v Cruwys & Ors [1992] NSWRT 95, not followed
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, followed
Anchor Products Ltd v Hedges 26 (1966) 115 CLR 493 at 500, followed
Mummery v Irvings Pty Ltd (1956) 96 CLR 99, distinguished
Jones v Dunkel (1959) 101 CLR 298, followed
Blue & White Barra Pty Ltd v Solley [2001] SASC 194, distinguishedRedfern, M.I and Cassidy, D. I, Australian Tenancy Practice and Precedents, Vol. 1
NO SC 422 OF 2004
Judge: Tamberlin J
Supreme Court of ACTDate: 22 September 2006
IN THE SUPREME COURT OF THE )
AUSTRALIAN CAPITAL TERRITORY..)
SC 422 OF 2004
BETWEEN:
WESTPAC GENERAL INSURANCE LIMITED
PlaintiffAND:
SEAN COOPER
First DefendantMICHAEL MORGAN
Second DefendantSTEPHANIE COOPER (nee HORTON)
Third DefendantO R D E R
Judge
Justice Tamberlin
Date:
22 September 2006
Place:
Sydney
THE COURT ORDERS THAT:
The Plaintiff hand up to the Court Short Minutes of Order that give effect to these reasons.
This proceeding concerns liability in relation to damage caused by fire to premises at 2 Threlfall Street, Chifley, in the Australian Capital Territory. The substituted plaintiff, Westpac General Insurance Limited, is the insurer of the premises owned by Mr Wah Sam Wong. The lessor has died since the commencement of this proceeding. On 20 January 2001, the plaintiff and the defendants entered into a Tenancy Agreement (“the Agreement”) for a term of twelve months.
The central issue in this case is whether the defendants have breached cll 63 and 64 of that Agreement. Clause 63 requires that the tenant shall not intentionally or negligently damage the premises or permit such damage, and cl 64 specifies that the tenant shall leave the premises in substantially the same condition as they were in at the commencement date of the Agreement, fair wear and tear excepted.
On 21 November 2001, at about 3.30 pm, a fire occurred in the garage of the premises and caused extensive damage which led to the commencement of the proceeding. The dispute…
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- Westpac General Insurance v Cooper [2006] ACTSC 91
- Case
- [2006] ACTSC 91
- Decision Date
CaseChat Overview and Summary
The court found that Mr Cooper had used a lighter to heat shrink plastic around wires and threw the overheated lighter onto a lounge chair, which caused the fire. The court held that Mr Cooper had breached his obligation to maintain the property and was liable for the damage caused by the fire. The court rejected the argument that the fire was an accidental damage or fair wear and tear, and found that the principle of res ipsa loquitur applied in this case. The court also found that the Jones v Dunkel inference was available and that Mr Cooper's actions were the cause of the fire. As a result, Mr Cooper was held jointly and severally liable for the damage caused by the fire.
The court ordered that Mr Cooper be held liable for the damage caused by the fire and that Westpac General Insurance be required to compensate the landlord for the damage. The court also ordered that Mr Cooper pay the landlord's legal costs. The court's decision highlights the importance of tenants taking proper care of the property they occupy and the potential consequences of negligence or intentional damage.
Orders
Orders of the court
The Plaintiff hand up to the Court Short Minutes of Order that give effect to the reasons.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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