Meadowcraft Pty Ltd v Prizmic
[2003] QCA 533
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Meadowcraft Pty Ltd v Prizmic[2003] QCA 533
- Add to List
Meadowcraft Pty Ltd v Prizmic[2003] QCA 533
Meadowcraft Pty Ltd v Prizmic[2003] QCA 533
COURT OF APPEAL
McMURDO P
CHESTERMAN J
MULLINS J
Appeal No 5606 of 2003
VOJMIR PRIZMIC and VINKA PRIZMIC Plaintiffs/Respondents
and
MEADOWCROFT PTY LTDFirst Defendant/First Appellant
and
CHRISTOPHER JOHN MUNROSecond Defendant/Second Appellant
BRISBANE
DATE 28/11/2003
JUDGMENT
THE PRESIDENT: Justice Mullins will deliver her reasons first.
MULLINS J: On 30 May 2003, the learned primary Judge, determined the summary judgment application in favour of the respondents, who were the plaintiffs in the proceeding against the appellants, who were the first and second defendants in the proceeding. The judgment was for the sum of $96,885.48 and for costs.
The first appellant leased part of a building situated at 143 Scotts Street, Cairns, from Mr and Mrs Hartley, pursuant to the lease dated 5 April 2000, for a term of five years, which commenced on 1 February 2000. The lease was registered.
The lease also contained a guarantee and indemnity that was signed by the second appellant in respect of the obligations of the first appellant under the lease.
The respondents purchased the Scott Street property from Mr and Mrs Hartley and became the registered owners of the property, on and from 13 July 2000.
According to the amended statement of claim, the first appellant defaulted in payment of rent, as from the month of March 2002 and defaulted in the payment of its prescribed percentage of the outgoings under the lease. It was not in dispute that the first appellant vacated the premises on 25 July 2002.
It was alleged in the amended statement of claim that on or about that date the first appellant repudiated the lease by abandoning the premises and that repudiation was accepted by the respondents, who with the consent of the first appellant, re-entered into possession of the premises and terminated the lease.
The respondents, therefore, sought damages by reason of that abandonment and termination of the lease. The respondents were able to rent the premises to another tenant from 8 September 2002, at a lesser rental than was payable by the first appellant under the lease. The damages sought included a claim for the shortfall in the rent to be received by the respondents between 8 September 2002 and 31 January 2006.
The amended defence that was filed on 11 February 2003, was prepared by the second appellant. The appellants did have solicitors and counsel for the purpose of the summary judgment application. The appeal, however, was being pursued by the appellants without legal representation, until they recently engaged Mr Strachan of counsel directly to appear for them on the hearing of the appeal.
The defences that were raised in the amended defence, can be summarised as:
(a)the lease was invalid because it was obtained as a result of misrepresentations, undue influence and coercion by or under duress from, Mr and Mrs Hartley;
(b)there were oral agreements to vary the terms of the lease between the respondents and the second appellant in July 2000, 31 January 2001, 28 May 2001, 27 February 2002 and 9 April 2002, which resulted in the applicants being released from certain obligations under the lease.
The learned primary Judge relied on Australian Competition and Consumer Commission v. CG Berbatis Holdings Pty Ltd (2003) 77 ALJR 926, to reject the defence based on duress, undue influence, coercion, unconscionable conduct and misrepresentation. In any case, on the basis of the second appellant's affidavit, the respondents purchased the property before being informed by the second appellant of those allegations. As was pleaded in the respondents' reply, any claim based on those allegations, is not exercisable by the appellants against the respondents.
With respect to the alleged oral agreements to vary the terms of the lease, the learned primary Judge found that there was no consideration moving from the respondents to support the alleged variations and that they were therefore unenforceable.
The learned primary Judge was of the opinion that given the absence of consideration, the true nature of what was pleaded by the appellants, were waivers of the respondents' right to receive the full amount of rental and other moneys payable pursuant to the lease, which had to be in writing pursuant to Clause 13.2 of the lease, in order to be effective. The learned trial Judge therefore rejected the defence based on the alleged variations to the lease.
In submissions at the hearing before the learned primary Judge, counsel for the appellants relied on an estoppel, but the learned primary Judge concluded that the appellants were unable to demonstrate that they had acted to their detriment as a result of any representation made by the respondents.
The grounds of appeal show a misunderstanding of how the learned primary Judge decided the application. The learned primary Judge did not decide contested factual issues, but rejected the defences, on the basis of an application of the relevant law to the allegations of fact made by the defendants.
The grounds of appeal which were pursued in the appellants' outline of argument and on the hearing of this appeal, can be summarised as:
(a)the factual matters relied on by the appellants to support the defence of oral variations to the lease, required the matter to proceed to trial;
(b) the learned primary Judge failed to make determinations in respect of the evidence put forward by the appellants to support the allegations of oral agreements varying the lease;
(c)the learned primary Judge did not correctly apply the authorities on the approach to deciding summary judgment applications under Rule 292 of the UCPR.
In addition, Mr Strachan, on the hearing of the appeal, argued that there was evidence before the learned primary Judge of equitable estoppel.
In Bernstrom v. National Australia Bank Ltd [2002] QCA 231, the Court of Appeal approved as applicable to Rule 292 of the UCPR, the approach of the English Court of Appeal in Swain v. Hillman [2001] 1 All ER 91, to a corresponding rule.
From its wording, the introduction of Rule 292 signalled a change in approach of the Courts to dealing with summary judgment applications. The rationale for new rules, such as Rule 292, was referred to in Swain. The relevant passages from Swain, on the approach to the new rule and the rationale for the new rule, are found in para 37 of Bernstrom.
The learned primary Judge concluded that, as a matter of law, the defences raised by the appellants could not be successful and, therefore, concluded that the respondents were entitled to judgment.
The appellants believe that as they have raised matters of fact in the affidavits relied on to oppose the summary judgment application, they should be entitled to have a trial to explore those factual matters.
If the learned primary Judge's application of the law cannot be challenged, his discretion in refusing to allow the appellants the indulgence of a trial that could make no difference to the result of the proceeding cannot be challenged.
There was no dispute that the respondents were entitled to enforce the covenants in the lease and the guarantee and indemnity against the first and second appellants respectively.
The only way in which the terms of the lease could be varied, was if the parties entered into a contract to vary those terms which was capable of being enforced.
There is no contract without consideration to support each promise made under the contract. The essence of the appellants' claim is that the respondents had agreed to accept the less than full performance of obligations on the part of the first appellant under the lease. The respondents had an entitlement to enforce full performance of those obligations.
There is nothing in the appellants' affidavits that indicated any consideration to support the acceptance of the less than full performance of the obligations under the lease proposed by the first appellant.
The learned primary Judge was correct in concluding that the appellants had no prospects in establishing, as a matter of law, that there were oral agreements to vary the terms of the lease.
The learned primary Judge gave the appellants the benefit of endeavouring to characterise the facts pleaded by the appellants, as amounting to a waiver on the part of the respondents, of the observance of the terms of the lease. It is not necessary to recite clause 13.2 of the lease in full, as there was no challenge to the conclusion of the learned trial Judge, that clause 13.2 required any waiver to be in writing to be effective. There was no written evidence of waiver.
On the estoppel issue, Mr Strachan referred to the evidence of Ms McNeill as to what she heard the male respondent say to the second appellant on 9 April 2002:
"If you pay rent until a new tenant moves in, we will not hold you to the lease and just clean the place up before you go."
There is no evidence that the appellants changed their position as a result of that statement being made, but there is evidence that the first appellant did not pay the rent due under the lease from April 2002. There is no substance in the claim, based on equitable estoppel.
The appellants cannot succeed on their appeal. The orders which should be made are:
1.Appeal dismissed;
2.The appellants pay the respondents' costs of the appeal, to be assessed.
THE PRESIDENT: I agree.
CHESTERMAN J: The appellants' main complaint, as it emerged in oral submissions, is that the Chamber Judge either misunderstood or misapplied, the principle laid down by this Court in Bernstrom, or by the Court of Appeal in Swain v. Hillman.
I am not convinced that a careful reading of either of those authorities establishes that the approach to summary judgments has changed very much.
Reliance was placed upon what Lord Woolf said in Swain at 95. The new provisions are not meant, it is said, to dispense with the need for a trial, where there are issues which should be investigated at a trial. The rules do not involve the Judge conducting a mini trial. The complaint was that the Chamber Judge here conducted a mini trial.
This was Mr Strachan's main point, but it seems to me to be misconceived. The Chamber Judge approached the application before him on an entirely conventional basis. He looked to see whether the affidavit material, filed on behalf of the appellants, raised an arguable defence. He found there was none.
Justice Mullins has indicated why he was right. I agree that the appeal should be dismissed.
THE PRESIDENT: The order is the appeal is dismissed, with costs to be assessed