Williams v Rampino - [2002] VSC 343

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6636 of 2002

EMLYN WILLIAMS and NYROGEN PTY LTD	Plaintiffs
v
LAVINIA RAMPINO	Defendant

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JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2002
DATE OF JUDGMENT:	15 August 2002
CASE MAY BE CITED AS:	Williams and Nyrogen Pty Ltd v Rampino
MEDIUM NEUTRAL CITATION:	[2002] VSC 343

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Summary recovery of land – licence agreement providing for occupation pending completion of contract of sale – whether terminated.

Supreme Court (General Civil Procedure) Rules 1996, O. 53.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D.M. Clarke	Lennon Settle
For the Defendant	In person

HIS HONOUR:

This is an application made by originating motion dated 2 August 2002 for summary recovery of land pursuant to Order 53 of the Rules of Court. The property is situate at 19 Stanley Street, Brighton and comprises the land in Certificate of Title Volume 8124 Folio 804.

It is the second such application to have been made to recover the land from the defendant. The first application came on for hearing before Gillard J in the Practice Court on 3 July this year, and on 5 July his Honour dismissed the application and ordered the plaintiffs to pay the defendant's costs. I do not have available to me his Honour's reasons for judgment, but I am told by Mr Clarke, counsel who appears for the plaintiffs, that his Honour was not satisfied that there had been given at least two days' notice of termination of a licence agreement pursuant to which the defendant occupies the property.

It is necessary to understand a little of the background facts of the matter. By contract note dated 10 May 2002, the plaintiffs agreed to sell the property to the defendant at a price of $840,000 to be paid by way of a deposit of $45,000 by 9 May 2002 and the balance of $795,000 on or before 24 June 2002. The contract note imported the general conditions of sale (other than general condition 3) contained in the Contract of Sale of Real Estate prescribed under s. 99 of the Estate Agents Act 1980, and thus provided that possession was not to be given until the purchase price had been paid in full.

Contemporaneously with the execution of the contract note, or shortly after, the plaintiffs and the defendant entered into a licence agreement which provided for the plaintiffs (therein defined as the licensor) to allow the defendant (therein defined as the licensee) to enter into occupation of and use the premises and the chattels and for the licensee, on or before the date of possession, to pay to the licensor a weekly licence fee of $690. Clause 6 of the licence agreement provided that, notwithstanding anything thereinbefore contained, the licensor may at any time after the date of settlement terminate the agreement by two days' notice in writing to the licensee. The date of settlement was defined in the schedule as…

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.

Continue reading Williams v Rampino

Details

AGLC: Williams v Rampino [2002] VSC 343
Case: [2002] VSC 343
Decision Date: 15 August 2002

CaseChat Overview and Summary

Williams v Rampino involved a dispute between the plaintiff, Williams, and the defendant, Rampino, regarding the summary recovery of land. The case centred on a licence agreement which permitted Rampino to occupy the land pending the completion of a contract of sale. The legal question for the court was whether this licence agreement had been terminated and, if so, whether Williams was entitled to recover possession of the land.

The court had to determine the legal status of the licence agreement and whether it had been properly terminated. The plaintiff argued that the licence agreement had expired, while the defendant claimed that it was still in effect and that he had a right to remain on the land. The court examined the terms of the licence agreement and the circumstances surrounding its termination. It considered whether the agreement had been properly terminated in accordance with its terms and whether the defendant had any legitimate basis to continue occupying the land.

The court found that the licence agreement had indeed been terminated and that there was no basis for the defendant to remain on the land. The court ruled that the plaintiff was entitled to recover possession of the land as the defendant's right to occupy it had ceased. The court emphasised the importance of adhering to the terms of the licence agreement and the consequences of failing to do so. In light of the findings, the court ordered the defendant to vacate the land and return it to the plaintiff.

Orders