Macarthur Central Shopping Centre Pty Ltd v Di Pan
[2021] QDC 344
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- Unreported Judgment
- Appeal Determined (QCA)
- Macarthur Central Shopping Centre Pty Ltd v Di Pan[2021] QDC 344
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Macarthur Central Shopping Centre Pty Ltd v Di Pan[2021] QDC 344
Macarthur Central Shopping Centre Pty Ltd v Di Pan[2021] QDC 344
DISTRICT COURT OF QUEENSLAND
CITATION: | Macarthur Central Shopping Centre Pty Ltd v Di Pan [2021] QDC 344 |
PARTIES: | MACARTHUR CENTRAL SHOPPING CENTRE PTY LTD (plaintiff) v DI PAN (defendant) |
FILE NO/S: | 1706 of 21 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 11 November 2021 (delivered ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 November 2021 |
JUDGE: | Holliday QC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – where the applicant seeks summary judgment on the plaintiff’s claim – where plaintiff claims monies due and payable under a lease – whether there is a triable issue of law or no real prospect of succeeding |
LEGISLATION: | Uniform Civil Procedure Rules 1999 (Qld), rules 171 and 292 |
CASES: | Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Geebung Investments Proprietary Limited v Varga Group Investments (No. 8) Proprietary Limited (1995) 7 BPR 14 Santos Limited v Fluor Australia Proprietary Limited and Another (No. 1) [2020] QSC 372 Smith v Yarwood [2018] QSC 279 Tynan and Another v Filmana Proprietary Limited and Others [2013] QSC 32 |
COUNSEL: | J Hughes for the plaintiff The defendant was self-represented |
SOLICITORS: | Allens for the plaintiff The defendant was self-represented |
Introduction
- [1]The plaintiff applies, by application filed on 30 September 2021, for summary judgment on part of its claim pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). In the alternative, the plaintiff applies pursuant to rule 171(2) of the UCPR to strike out the defence in its entirety. The defendant is self-represented on the application. For reasons that I will develop, it is necessary only to determine the primary application of the plaintiff.
- [2]The plaintiff and defendant were parties to a lease agreement, with the plaintiff being the lessor and the defendant being the lessee. The part of the plaintiff’s claim for which summary judgment is sought relates to:
- (a)$53,331.81, being the amount due and payable to the plaintiff by the defendant for non-payment of rent by the defendant from 31 December 2020 to 30 June 2021;[1]
- (b)the defendant’s liability for damages for breach of the lease, with the quantum of damages to be assessed by the Court;[2] and
- (c)interest.
- (a)
Background
- [3]It is non-contentious that the plaintiff (as lessor) and defendant (as lessee) were parties to a lease of premises in MacArthur Central Shopping Centre commencing on 8 July 2016 and ending on 7 July 2022. It is evident from the material that the plaintiff and defendant engaged in protracted negotiations relevant to rent on the premises, including attending a mediation on 18 January 2021.
- [4]For completeness, I will mention the material negotiations, given that the defendant, in her defence, contends that these had binding legal effect:
- (a)16 February 2021: The plaintiff’s solicitors wrote to the defendant to offer a rent relief package. The letter concluded with the statement:
- (a)
“Finally, we confirm that there will be no binding agreement between the parties until such time that a deed has been executed and exchanged by both parties” (‘the Statement’).
- (b)2 March 2021: The plaintiff’s solicitors wrote to the defendant following up the proposal for rent relief, and the letter concluded with the Statement.
- (c)26 March 2021: The plaintiff’s solicitors wrote to the defendant and attached a deed for her to sign; the letter concluded with the Statement.
- (d)30 April 2021: The defendant corresponded with the plaintiff, detailing that she wanted to end the lease and proposed terms in relation to same, including payment of unpaid rent.
- (e)1 June 2021: The plaintiff emailed the defendant, indicating that the amount of $26,804.72 would be acceptable to the plaintiff to finalise the matter (this included the application of the bank guarantee amount).
- (f)3 June 2021: The defendant responded to the 1 June 2021 email, stating:
“May I kindly confirm that there will be no further cost than $51,839.16 to have everything finalised? If so, I can come and tidy up the rest of our things from the shop. Thank you.”
- (g)3 June 2021: The plaintiff emailed the defendant, thanking the defendant for her email and said that there needed to be a final agreement in writing plus payment before tidying up the shop.
- (h)10 June 2021: The plaintiff emailed the defendant advising there would be further costs relating to the proposed surrender of the lease. The defendant indicated in a reply email that she was not in a position to pay the amount required by the plaintiff and may not:
“…even be able to meet $51,839.16 due to my day-to-day living expenditures.”
- [5]On 30 June 2021, the plaintiff terminated the lease. I have also been provided with subsequent emails today by the defendant. They relate only to access to the premises; they are not relevant to whether there was a binding agreement.
- [6]On 6 July 2021, the plaintiff filed a claim and statement of claim in which it is pleaded that the defendant is liable to pay to the plaintiff, pursuant to the lease, the amount of $229,627.24. This included the figure now sought of $53,333.81 and a figure for unliquidated damages in relation to termination of the lease in the sum of $124,967.35.
- [7]On 23 July 2021, the defendant filed a notice of intention to defend and filed a defence. I will detail the contents of that defence further shortly. On 16 August 2021, the plaintiff’s solicitors communicated with the defendant regarding what it saw as deficiencies with the defendant’s defence filed on 23 July 2021. The plaintiff “required” the defendant to amend the defence, failing which the plaintiff gave notice that it would consider filing an application to the Court pursuant to rule 171(2) of the UCPR to strike out all of the defence.
- [8]On 30 September 2021, the plaintiff filed an application in the Court seeking orders as I have already detailed. The matter was originally to be heard in mid-October 2021, but the defendant requested a one-month adjournment of the hearing of the application, which the plaintiff consented to.
The Defence
- [9]The defendant, who is self-represented, defends the claim on the basis that the amount of $229,627.24 is not due and owing by her as a lesser amount of $51,839.16 less the bank guarantee of $25,000.34 (which brings the amount to $26,804.72), was agreed to by the parties. She explains in a document attached to the defence that she is a small business owner affected by COVID-19. She attached to the defence emails that I have already summarised in support of her contention that:
“I agreed the offer with the total rent figure of $51,839.16, and Colleen also confirms that she was going to prepare me the final paperwork for me to sign on 3 June 2021.”
- [10]The document concludes with the words:
“In summary, I wish to dispute this Court claim, and I’m seeking to apply for the original offer that shopping centre and I were both agreed to on the 1st of June 2021, with the total amount of $51,839.16 less the bank guarantee of $25,034.44, which is $26,804.72.”
The Application
- [11]Rule 292 of the UCPR provides as follows:
Summary judgment for plaintiff
- (1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the Court under this part for judgment against the defendant.
- (2)If the Court is satisfied that –
- the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
- there is no need for a trial of the claim or the part of the claim;
the Court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order that the Court considers appropriate.
- [12]The plaintiff has, after the defendant filed a notice of intention to defend, applied to the Court for judgment against the defendant for part of the plaintiff’s claim, as I have detailed. Each of the rule 292(2) considerations need to be separately considered and satisfied.[3]
The Defendant has no Real Prospect of Successfully Defending the Part of the Plaintiff’s Claim
- [13]As was held in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, per Justice McMurdo at paragraph [3]:
“Nothing in the UCPR detracts from the well-established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases. Gaudron, McHugh, Gummow and Hayne JJ. said in Agar v. Hyde, recently cited with approval by Gleeson C.J., McHugh and Gummow JJ. in Rich v. CGU Insurance Ltd:
“… Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way” (citations omitted).[4]
- [14]In Deputy Commissioner of Taxation v Salcedo, Justice Atkinson stated at [47]:
“…the Court must consider whether there exists a real, as opposed to a fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment.”
- [15]Justice Atkinson explained that the rules benefit both parties from a cost perspective, as well as the administration of justice.
- [16]Further, as Justice Martin stated in Smith v Yarwood [2018] QSC 279 at paragraph [3]:
“The words ‘no real prospect of succeeding’ directs the Court to the need to see whether there is a realistic, as opposed to a fanciful, prospect of succeeding.”
- [17]I agree with the submissions of the plaintiff that there are no material facts pleaded in the defence or raised in the material or oral submissions today that give rise to any real prospect of successfully defending the part of the plaintiff’s claim which is made out on the plaintiff’s pleadings and evidence. The only possible defence raised on the defendant’s material is that a binding agreement was reached for a lesser sum. That possible defence is not viable as an analysis of the correspondence relied upon by the defendant reveals that no binding agreement was reached by the parties.
- [18]As was said by Kirby P in Geebung Investments Proprietary Limited v Varga Group Investments (No. 8) Proprietary Limited (1995) 7 BPR 14:
“Where a binding agreement is said to have been formed as a result of correspondence, it is necessary to look at the correspondence as a whole. It is wrong to isolate any part of the correspondence from the rest in order to prove or disprove the existence of a binding agreement.”
- [19]It is evident from the correspondence, including the correspondence of 1 June 2021, that there were negotiations about what would be accepted, but no binding agreement was reached. Even if the plaintiff’s email correspondence of 1 June 2021 was an offer capable of immediate acceptance, the plaintiff did not communicate an unconditional acceptance of the offer. The defendant sought clarification on the plaintiff’s negotiating position with respect to other amounts that might be payable.
- [20]Further, it is clear from the communications as a whole that the plaintiff’s consistent and repeated negotiation position was that there would be no binding agreement between the parties unless and until they executed a written agreement. This includes the plaintiff’s communication of 3 June 2021, where it is stated:
“We need to get a final agreement in writing and signed … I will come back to you ASAP with the relevant paperwork.”
There is No Need for a Trial of the Claim
- [21]The defendant accepts that the only relevant material in this case is the emails. As Justice Martin stated in Smith v Yarwood at paragraph [3]: “If there is a triable issue of law, the application should be refused.”
- [22]There is no triable issue of law here. I agree with the submission of the plaintiff that the only question is whether the written correspondence exchanged by the parties, which is already in evidence before the Court, is capable of giving rise to a binding agreement.
- [23]I will hear from the parties in relation to the nature of the order.
Footnotes
[1] Sensibly, the plaintiff is not seeking summary judgment for what it contends in the claim is non-payment of rent between 22 January 2020 to 30 December 2020, such that consideration does not need to be given to the provisions of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld).
[2] The plaintiff correctly relies on the decision of Tynan and Another v Filmana Proprietary Limited and Others [2013] QSC 32 [40]-[49], in support of the argument that judgment for unliquidated damages to be assessed in respect of a part of a claim may be granted under rule 292.
[3] Santos Limited v Fluor Australia Proprietary Limited and Another (No. 1) [2020] QSC 372.
[4] Rich v CGU Insurance Limited [2005] 214 ALR 370 at 18, per Gleeson, Chief Justice; McHugh and Gummow, Justices.