Willmount (Aust) Pty Ltd v Price - [2005] WADC 72

WILLMOUNT (AUST) PTY LTD & ANOR -v- PRICE [2005] WADC 72

Last Update: 28/04/2005

WILLMOUNT (AUST) PTY LTD & ANOR -v- PRICE [2005] WADC 72
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 72
Case No:	CIV:3294/2001	Heard:	16, 19-23 APRIL 8-10 JUNE, 27 AUGUST 2004
Coram:	MACKNAY DCJ	Delivered:	22/04/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	51	Judgment Part:	1 of 1
Result:	Plaintiffs entitled to judgment for $37,560 and interest thereon at 6 per centum per annum from 1 November 2000
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	WILLMOUNT (AUST) PTY LTD (ACN 062 846 548) MOUNT STIRLING (AUST) PTY LTD (ACN 064 278 431) DAVID GEORGE PRICE
Catchwords:	Landlord and tenant Agreement for lease Covenants Option to renew Whether options exercised Covenants to keep in repair Failure to clear land Negotiations for lease Whether mis-statement Set-off
Legislation:	Trade Practices Act 1974 Cth s 52
Case References:	British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1979] 2 All E R 1063 Browne v Dunn (1893) 6 R 67 Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Esso Petroleum Co Ltd v Mardon [1975] QB 819 Foran v Wight (1989) 168 CLR 385 Gardner v Blaxill [1960] 2 All ER 457 Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853 L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628 Philip Collins Ltd v Davis [2000] 3 All ER 808 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Westminster v Swinton [1948] 3 KB 524 Williams v Lewis [1915] 3 KB 493 Bailey v DeCrespigny (1869) LR 4 QB 180 Eyre v Johnson [1946] KB 481 In re De Garis and Rowe's Lease [1924] VR 38 Matthey v Curling [1922] 2 AC 180 Maud v Sandars [1943] 2 All ER 783 Reid House Pty Ltd v Beneke (1987) ACLC 451 Scanlan's New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 Walton Harvey Ltd v Walker and Homfreys Ltd [1931] 1 Ch 274

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : WILLMOUNT (AUST) PTY LTD & ANOR -v- PRICE [2005] WADC 72 CORAM : MACKNAY DCJ HEARD : 16, 19-23 APRIL 8-10 JUNE, 27 AUGUST 2004 DELIVERED : 22 APRIL 2005 FILE NO/S : CIV 3294 of 2001 BETWEEN : WILLMOUNT (AUST) PTY LTD (ACN 062 846 548)

MOUNT STIRLING (AUST) PTY LTD (ACN 064 278 431)

Plaintiffs

AND

DAVID GEORGE PRICE

Defendant

Catchwords:

Landlord and tenant - Agreement for lease - Covenants - Option to renew - Whether options exercised - Covenants to keep in repair - Failure to clear land - Negotiations for lease - Whether mis-statement - Set-off

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: [2005] WADC 72
Decision Date: 22 APRIL 2005

CaseChat Overview and Summary

In the case of Willmount (Aust) Pty Ltd v Price, the plaintiff, a property company, sought to recover unpaid rent and damages for breach of covenant from the defendant, who was the tenant of a property located in Sydney. The dispute arose out of a lease agreement that had an option for the tenant to renew the lease. The defendant had exercised the option, but the plaintiff claimed that the defendant had failed to uphold their end of the agreement, specifically by not clearing the land and not honouring the covenants to keep the property in repair. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the defendant had properly exercised the option to renew the lease and whether there had been a breach of the covenant to keep the property in repair. The court also needed to determine if there were any misrepresentations made by the plaintiff during the negotiations for the lease. Furthermore, the court had to consider whether the defendant was entitled to set off any amounts owed to the plaintiff against the amount the plaintiff sought to recover.

The court found that the defendant had exercised the option to renew the lease correctly. However, it was determined that the defendant had failed to uphold the covenant to keep the property in repair. The court found that the plaintiff had not made any misrepresentations during the negotiations for the lease. The court rejected the defendant's claim for set-off, finding that the defendant's counterclaims were not sufficient to justify a set-off against the plaintiff's claim for unpaid rent and damages. The court awarded the plaintiff $37,560 plus interest at 6 per centum per annum from 1 November 2000.

Orders

Orders of the court

Plaintiffs entitled to judgment for $37,560 and interest thereon at 6 per

centum per annum from 1 November 2000

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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