Dillman v Capebay Holdings Pty Ltd

[1999] WADC 97

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   DILLMAN -v- CAPEBAY HOLDINGS PTY LTD [1999] WADC 97

CORAM:   KENNEDY DCJ

HEARD:   20 SEPTEMBER 1999

DELIVERED          :   Delivered Extemporaneously on 24 SEPTEMBER 1999 typed from tape and edited by Trial Judge.

FILE NO/S:   CIV 2688 of 1999

BETWEEN:   HANS ALBERT DILLMAN

Appellant/Defendant

AND

CAPEBAY HOLDINGS PTY LTD (064 082 828)
Respondent/Plaintiff

Catchwords:

Appeal - Summary judgment refused - There is an issue to be tried.

Legislation:

Nil.

Result:

Appeal dismissed.

Representation:

Counsel:

Appellant/Defendant     :     D E Eley

Respondent/Plaintiff     :     N G Pakes

Solicitors:

Appellant/Defendant     :     Eley & Partners

Respondent/Plaintiff     :     Murcia & Associates

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Case(s) also cited:

HIH Casualty & General Insurance Ltd v The Meadows Indemnity Co Ltd [1999] NSWSC 158

Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989

Nominal Defendant v Hook (1962) 113 CLR 641

Webster v Lampard (1993) 177 CLR 598

1. KENNEDY DCJ :   This is an appeal from a decision of Deputy Registrar Harman given 24 March 1999 dismissing the defendant's application for summary judgment.

2. By statement of claim the plaintiff pleads relevantly -

   "7.By an agreement evidenced in writing by a letter dated 12 August 1993 and titled 'Renegotiation on Offer to Lease No 344 Cambridge Street Leederville' which letter was signed by the defendant and Hastie, Jade Bay Holdings Pty Ltd (Receiver Appointed by its agent, Warwick Gorman, and the defendant and Hastie agreed:-

   7.1      to vary the terms of the lease agreement so as to extend the terms of the demise of the leased premises until 1 July 1997 together with two options to renew the term of the demise each for a further period of 3 years;

   7.2the rent to be paid by the defendant and Hastie including all outgoings, variable outgoings, rates and taxes would, until 30 June 2000 be as follows:

   Up until 30 June 1994  $4,166.67 per month

   1 July 1994 to 31 December 1995    $5,000.00 per month

   1 January 1996 to 30 June 1996      $5,416.67 per month

   In the event the first option to renew was exercised:-

   1 July 1997 to 31 December 1998    $5,833.33 per month

   1 January 1999 to 30 June 2000      $6,250.00 per month

   8.Alternatively to paragraph 7 hereof, the agreement evidenced by the letter pleaded in paragraph 7 hereof constituted, on a proper construction, an agreement between Jade Bay Holdings Pty Ltd (Receiver Appointed) and the defendant and Hastie:-

   8.1for the demise of the leased premises by Jade Bay Holdings Pty Limited (Receiver Appointed) to the defendant and Hastie on the terms and conditions contained in the agreement for lease subject to the changes pleaded in sub-paragraphs 8.2 and 8.4 hereof;

   8.2the term of the demise of the leased premises was until 1 July 1997 together with two options to renew the term each for a further period of 3 years;

   8.3the plaintiff repeats the terms pleaded in paragraph 7.2 above; and

   8.4the lessees would be the defendant and Hastie in substitution for Cionsi and Hastie."

3. By defence the defendant pleads relevantly:

   "6.The defendant denies paragraph 7 of the statement of claim and says as follows:

   (a)by letter dated 12 August 1993 and titled Re-Negotiation on Offer to Lease No 344 Cambridge Street, Leederville' the defendant and Hastie made an offer to Jade Bay to renegotiate the terms of the lease agreement ('defendant's offer').

   (b)in or about November 1993 Jade Bay provided a proposed lease agreement to the defendant and Hastie being Jade  Bay's counter offer to the defendant's offer.

   (c)the proposed lease agreement was never executed by the defendant and Hastie as the terms could not be agreed between the defendant and Hastie and Jade Bay.

   (d)by letter dated 28 February 1994, Haydn Robinson the solicitor and agent for Jade Bay advised the defendant and Hastie that its offer to vary the terms of lease agreement was withdrawn and the lease agreement of 25 March 1992 was the basis of the tenancy of the defendant and Hastie.

   7.The defendant denies paragraph 8 of the statement of claim and repeats paragraph 6 herein.

4. The parties or their predecessors in title entered into a least on 25 March 1992.  The fixed monthly rental was $4,166.67 each calendar month payable in advance and the term of the lease was 36 months commencing on 25 June 1992.  The lessee had options to renew the lease agreement for a further two terms of 36 months each to be exercised in accordance with the terms of the lease agreement.

5. For reasons which were never disclosed to me further negotiations were entered into and on 12 August 1993 the defendant wrote to the plaintiff which letter, omitting formal parts, provides as follows:

   "We are prepared to make the following offer amending our existing offer to lease on the above premises. 

   1.The first term of the lease be extended until 1 July 1997, plus two options of three years.

   2.The rent will be a gross rent including V.O.'s, rates and taxes and all outgoings on the following basis: -

   Until 30/6/94 the rent will be          $4,166.67 per month

   1/7/94 - 31/12/95 the rent will be     $5,000.00 per month

   1/1/96 - 30/6/97 the rent will be      $5,416.67 per month

   Should the first option be exercised, the following rents will apply:

   1/7/97 - 31/12/98 the rent will be     $4,833.33 per month

   1/1/99 - 30/6/2000 the rent will be   $6,250.00 per month.

   Should the second option be exercised the rent will be reviewed to market but not less than the previous rent at the beginning of the period and 18 months into the option.  The rent for the second option should be set six months before expiry of the first option.

   3.0A rent free period will apply from 1/7/94 to 1/10/94, ie, three months including V.O.'s and outgoings."

6. It is the interpretation of that letter and subsequent events and the application of the law to them that is in issue between the parties.

7. Oddly enough, to a large extent the plaintiff seeks to rely on a number of letters and documents emanating from the defendant stating very firmly that on 12 August 1993 an agreement was concluded by the parties.  The defendant on the other hand, seeks to rely on letters from the plaintiff which the defence says clearly indicate that the defendants were wrong and that there was no concluded agreement.  The plaintiff says that that is a misinterpretation of the correspondence and subsequent behaviour of the parties, which can only be resolved by hearing the parties and there is an issue to be tried.  The plaintiffs further point to the fact that regardless of what may have been said in their correspondence the lessee was in occupation and paid rent pursuant to what I will call "the new lease".

8. The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried:  Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.

9. In the circumstances there is, as the plaintiff says, an issue to be tried and accordingly the appeal is dismissed.