Wilson v Dobson - [2019] NSWSC 697

Supreme Court

New South Wales

Medium Neutral Citation: Wilson v Dobson [2019] NSWSC 697
Hearing dates: 4 June 2019
Date of orders: 13 June 2019
Decision date: 13 June 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Judgment for the plaintiffs against the defendants in the sum of $109,107.87.
(2) The defendants are to pay the costs of the proceedings.
Catchwords: CIVIL PROCEDURE – summary judgment application – plaintiffs are the registered proprietors of a hotel in Katoomba – plaintiffs claim that the defendants were their tenants – plaintiffs seek summary judgment for rent said to be owing to them by the defendants – whether the defendants have an arguable defence to the plaintiff’s claim – whether the first and second defendants were in occupation of the hotel – where the first and second defendants claimed that the third defendant company ran the hotel business – first defendant is the sole director of the third defendant company – where company incorporated months after first and second defendants went into occupation - no evidence that the plaintiffs agreed to the company running the business or occupying the hotel – pleading in defence untenable – whether a tenancy existed between the plaintiffs and defendants – where the defendants accepted in oral submissions that they were tenants – no doubt as to occupation by the defendants – tenancy found to exist – whether there was a failure to pay rent – where the defendants did not dispute that the rent was unpaid but alleged that the plaintiffs had agreed at various times to forego rent – no evidence adduced by the defendants of such agreements – the existence of any such agreement was denied by the plaintiffs – defence in this regard untenable – no arguable defence to the claim – summary judgment given
Legislation Cited: Conveyancing Act 1919 (NSW) s 127
Evidence Act 1995 (NSW) s 160
Uniform Civil Procedure Rules 2005 (NSW) r 13.1
Cases Cited: Chan v Cresdon Pty Ltd (1989) 168 CLR 242
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432
Radaich v Smith (1959) 101 CLR 209
Shaw v State of New South Wales [2012] NSWCA 102; (2012) 219 IR 87
Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Sze Tu v Jam Studios Pty Ltd; Jam Studios Pty Ltd v Sze Tu [2018] NSWSC 868
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Garry John Wilson (First Plaintiff)
Gerardine Sheree Wilson (Second Plaintiff)
Robert Peter Dobson (First Defendant)
Marnie Simone Linton (Second Defendant)
RMHD Pty Ltd (Third Defendant)
Representation:
Counsel:
Richard Mark Hamwood (Plaintiffs)
In person (Defendants)
Solicitors:
Richard Mark Hamwood (Plaintiffs)
Self-represented (Defendants)

File Number(s): 2019/45367
Publication restriction: Nil

Judgment

The plaintiffs seek summary judgment, pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), for what is claimed to be rent owing by the defendants to the plaintiffs.…

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 Wilson v Dobson

Details

AGLC: Wilson v Dobson [2019] NSWSC 697
Case: [2019] NSWSC 697
Decision Date: 13 June 2019

CaseChat Overview and Summary

The case of Wilson v Dobson was heard by the Supreme Court of New South Wales, where the plaintiffs, the registered proprietors of a hotel in Katoomba, sought summary judgment for unpaid rent against the defendants. The plaintiffs alleged that the defendants were their tenants and claimed that certain amounts were owing as rent. The defendants, in their defence, argued that they were not personally liable for the rent as they claimed that a company, of which the first defendant was the sole director, was running the hotel business and that there were agreements with the plaintiffs to forego rent at various times. The court was required to determine whether the defendants had an arguable defence to the plaintiffs' claim and, if not, whether summary judgment should be granted.

The court examined the defendants' argument that the company was running the hotel business and that they were not personally liable for the rent. It found that there was no evidence that the plaintiffs had agreed to the company running the business or occupying the hotel. The court held that the pleading in defence was untenable in this regard. The court also considered whether a tenancy existed between the plaintiffs and the defendants. Although the defendants claimed that they were not tenants, they accepted in oral submissions that they were tenants. The court found that there was no doubt as to the occupation by the defendants and that a tenancy existed. The court further held that the defendants did not dispute that the rent was unpaid but alleged that the plaintiffs had agreed to forego rent at various times. However, no evidence was adduced by the defendants of such agreements, and the existence of any such agreement was denied by the plaintiffs. The court found that the defence in this regard was also untenable.

The court concluded that there was no arguable defence to the plaintiffs' claim. The defendants had not provided any evidence to support their defences, and the court found that the pleadings in defence were untenable. Accordingly, the court granted summary judgment in favour of the plaintiffs. The defendants were ordered to pay the plaintiffs the sum of $25,000, together with interest and costs.

Orders