Whitfield v Summerland Nominees Pty Ltd

[2001] WADC 256

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   BUNBURY

CITATION:   WHITFIELD & ANOR -v- SUMMERLAND NOMINEES PTY LTD & ORS [2001] WADC 256

CORAM:   REGISTRAR KINGSLEY

HEARD:   7 SEPTEMBER 2001

DELIVERED          :   Delivered Extemporaneously on 7 SEPTEMBER 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 18 of 2001

BETWEEN:   JOHN WHITFIELD

BARBARA JOAN WHITFIELD
Plaintiff

AND

SUMMERLAND NOMINEES PTY LTD (ACN 089 940 250)
First Defendant

CANSDALE HOLDINGS PTY LTD (ACN 009 127 735)
Second Defendant

EDWARD BOLTON JENNINGS
Third Defendant

MERVYN GEORGE KENNEDY
Fourth Defendant

MARLENE PATRICIA KENNEDY
Fifth Defendant

Catchwords:

Practice - Application for summary judgment - Order 14 Rules of the Supreme Court of Western Australia - Validity of assignment of lease

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Application allowed
Judgment entered

Representation:

Counsel:

Plaintiff:     Mr D F Beere

First Defendant             :     Ms R M Parks

Second Defendant         :     Ms R M Parks

Third Defendant           :     Ms R M Parks

Fourth Defendant          :     Ms R M Parks

Fifth Defendant            :     Ms R M Parks

Solicitors:

Plaintiff:     Beere May & Meyer

First Defendant             :     Nicholson Clement

Second Defendant         :     Nicholson Clement

Third Defendant           :     Nicholson Clement

Fourth Defendant          :     Nicholson Clement

Fifth Defendant            :     Nicholson Clement

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

Nil

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY: The plaintiff has brought an application pursuant to O 14 Rules of the Supreme Court of Western Australia claiming against the first defendant, as lessor, outstanding rental and rates and taxes and as against the second to fifth defendants inclusive as guarantors.  As against the second to fifth defendants there is a claim for $8,800 being a judgment against the first defendant for a dishonoured cheque, that judgment remaining unsatisfied.

2. The plaintiffs are the registered proprietors of property in Sholl Street, Mandurah.  The property had been leased by the previous registered proprietor to Goldbrook Holdings Pty Ltd for a period of 5 years 11 days from 1 February 1997.

3. By an assignment of lease dated 19 November 1999 Goldbrook Holdings Pty Ltd assigned its estate as lessee to the first defendant.  The second to fifth defendants guaranteed the obligations under the lease of the first defendant.  The first defendant took possession on 4 November 1999 but failed to pay any monies on account of rental or outgoings until 4 February 2000 when it paid $8,800 by cheque.  That cheque was subsequently dishonoured and the plaintiff obtained judgment against the first defendant in the Local Court in Mandurah.  That judgment remains unsatisfied.  The plaintiffs plead the first defendant vacated the premises and on 21 January 2001 the plaintiffs elected to accept the first defendant's abandonment.

4. The plaintiffs entitlement to judgment is challenged on a single ground: That the plaintiff failed to accept the assignment of lease and the first defendant is, at most, a tenant from month to month.  The defendants argument is that no assignment of lease has been accepted by the plaintiff.

5. By a letter dated 12 October 1999 from the plaintiffs agent to Mr Kennedy a director of the first defendant (Exhibit B is the affidavit of Mervyn George Kennedy sworn 26 July 2001) the plaintiffs agent confirms that the plaintiff has agreed to the assignment of the lease from Goldbrook Holdings Pty Ltd to a company to be nominated by Mr Kennedy.  That letter is signed by Mr Kennedy in acknowledgement.

6. By a letter dated February 2000 (Exhibit D to Mr Kennedy's affidavit) Mr Kennedy states, in the second paragraph, that the plaintiffs have approved and granted an assignment of lease.

7. I am of the opinion that on the sole point of argument raised before me there is no arguable issue.  The correspondence shows that, as far as the first defendant was concerned, there was an assignment of lease.  The first defendant took possession of the property, and purported to pay rent.  The denial of an assignment of the lease is contrary to the written evidence.  I give judgment against the first defendant in the sum of $26,431.17.

8. As against the second to fifth defendants, the argument was that there is no guarantee other than that incorporated into the assignment of lease.  I have found there is a valid assignment and, there being no other argument, I give judgment against the second to fifth defendants inclusive in the sum of $35,311.17, that sum including the sum of $8,800 being the judgment outstanding against the first defendant.