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[1999] NSWCA 385
Court of Appeal (NSW)
1999-10-20
Handley JA, Powell JA, Beazley JA, Dowd J
Original judgment source is linked above.
New South Wales Court of Appeal CITATION : BELLOS v AMP [1999] NSWCA 385 FILE NUMBER(S) : CA 40428/97 HEARING DATE(S) : 29.4.99, 10.5.99 JUDGMENT DATE : 20 October 1999
PARTIES : ANASTASIOS BELLOS & ANOR v AUSTRALIAN MUTUAL PROVIDENT SOCIETY JUDGMENT OF : Handley JA at 1; Powell JA at 17; Beazley JA at 18
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 21103/96; 11204/97 LOWER COURT JUDICIAL OFFICER : Dowd J
COUNSEL : Appellant - In Person Respondent - J E Robson SOLICITORS : Appellant - In Person Respondent - Mallesons Stephen Jaques CATCHWORDS : UNCOLLECTED GOODS ACT 1995 - GOODS LEFT ON PREMISES AT TERMINATION OF LEASE - ORDERS MADE UNDER ACT - WHETHER ORDERS VALID ACTS CITED : Uncollected Goods Act 1995 Retail Leases Act 1994 DECISION : Appeal dismissed with costs
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40428/97 CLD 21103/96 CLD 11204/97 HANDLEY JA POWELL JA BEAZLEY JA
ANASTASIOS BELLOS & ANOR v AUSTRALIAN MUTUAL PROVIDENT SOCIETY
JUDGMENT UNCOLLECTED GOODS ACT 1995 - goods left on premises at termination of lease - orders made under Act - whether orders valid
The appellants had leased premises from the respondent for use as a model ship museum. Disputes arose between the parties over the level of asbestos in the premises, and the appellants purported to suspend payment of rent under the lease by a letter to the respondent. The respondent terminated the lease for non-payment of rent and gave notice to the appellants, pursuant to the lease, to remove their goods. The goods were not removed by the appellants and eventually the respondent placed them in storage. The respondent applied for relief by way of a summons under the Uncollected Goods Act 1995. The Judge found that the goods were uncollected and made a declaration that the respondent was entitled to sell them by public auction and be reimbursed for the cost of their removal, storage and sale. The appellants challenged the trial Judge's findings on a number of grounds.
HELD , dismissing the appeal: The appellants' claim that the goods were not uncollected goods failed. ORDER Appeal dismissed with costs.
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40428/97 CLD 21103/96 CLD 11204/97 HANDLEY JA POWELL JA BEAZLEY JA
ANASTASIOS BELLOS & ANOR v AUSTRALIAN MUTUAL PROVIDENT SOCIETY
1 HANDLEY JA: This is an appeal by Mr and Mrs Bellos from orders made by Dowd J pursuant to the Uncollected Goods Act 1995 (the Act). The proceedings arose out of a lease of the ground floor east shop in Goldfields House, 1 Alfred Street, Sydney granted by the Society to the appellants dated 15 August 1995. The appellants intended to use the premises for a model ship museum and associated purposes. Disputes arose between the parties and on 25 March 1996 the Society terminated the lease for non payment of rent. 2 The appellants had fitted out the premises as a museum and a large number of model ships and other exhibits (the goods) were on display there. Clause 17.6 of the lease obliged the appellants to vacate the premises on termination of the lease. Clause 17.8 provided that if the Society terminated the lease by re-entry, the tenants might give notice within 7 days after termination that they will remove their property from the premises, and cl 17.9 required the Society to notify the tenants how and when this might be done. Clause 17.10 provided: "The Landlord may treat the Tenant's Property as abandoned and deal with it in any way it sees fit at the Tenant's expense if the Tenant does not: (a) give its notice on time; or (b) remove the Tenant's Property in accordance with this Clause 17 or a notice given under it".
3 On 10 April 1996 the Society gave the appellants notice to remove the goods by 19 April. It later agreed that they could have until 2 May for this purpose. The goods were not removed. On 10 May the Society, through its solicitors, wrote to the appellants' solicitors stating that it would treat any goods still on the premises at 5 pm 22 May as abandoned. Negotiations continued but the appellants did not remove the goods. Finally on 19 December the Society, through its solicitors, informed the appellants' solicitors that the goods would be removed and placed in storage, and this was done. 4 On 18 September 1996 the appellants and others commenced proceedings against the Society in the Supreme Court by statement of claim seeking damages for personal injuries and financial loss arising from negligence and misleading and deceptive conduct by the Society leading to the grant of a lease. The proceedings have not yet been heard. 5 On 26 February 1997 the Society applied for relief under the Act by motion in the pending action. The hearing of the motion commenced before Dowd J on 14 April but on 18 April the Society commenced independent proceedings by summons which was filed by leave and made returnable on 2 May. The hearing concluded on that day and judgment was reserved. 6 The Judge found that the goods were uncollected goods within the meaning of s 5(a) of the Act and made a declaration that the Society was entitled to dispose of them pursuant to cl 17.10 of the lease. He also made a declaration that the Society was entitled to be reimbursed for its expenses in removing the goods from the premises and storing them until the date of disposal, and made an order under s 9(1)(a) of the Act authorising the Society to dispose of the goods by public auction after one calendar month from the date of the order. 7 The appellants challenged these orders on a variety of grounds but sadly their appeal, which was argued by Mr Bellos in person, was hopeless. At times he contended that the goods were not uncollected but did not dispute that he had refused to collect them over many months. He agreed that he had told Dowd J on 2 May 1997 "what I say they want the goods, they can have the goods" (148) as the Judge noted in his judgment (273). There can be no doubt at all that the goods had been uncollected goods for many months before the Society removed them from the premises in December 1996. 8 Mr Bellos complained of the long delay before the transcript of 14 April was located, transcribed and made available to him by the Reporting Services Branch. This did not happen until December 1997 but the transcript has been included in the appeal book. He alleged that there were omissions in this transcript which he set out, but there was no sworn evidence to this effect, and the alleged omissions, even if established, would not support a legal challenge to the Judge's orders. 9 Mr Bellos argued that the obligation to pay rent under the lease had been "suspended" as a result of a dispute which arose with the Society about asbestos contamination. On 28 July 1995, after the appellants had gone into possession, they were advised by the Society's property manager by letter of that day that: "There could be traces of asbestos in the mortar between the bricks and in the concrete render - particularly behind the marble on the columns. Water down the walls before you remove the ceramic tiles and before you cut through the brick work. Please note that you carry out these works at your own risk and precautions should be taken at all times". 10 This letter triggered a dispute which eventually led to the termination of the lease. On 21 December 1995 the appellants' solicitors wrote to the Society claiming that the premises were "damaged" because of the presence of asbestos and that, while this state of affairs continued, the tenant's obligation to pay rent had been suspended pursuant to s 36(1)(a) of the Retail Leases Act 1994 (see also cl 19.1 of the lease). 11 On 22 December the solicitors for the Society replied rejecting this claim. Its validity has never been determined by a court. Mr Bellos submitted that his solicitors' letter had, of itself, suspended the obligation to pay rent, but, of course, a mere letter could never have that effect. Two reports obtained by the Society which are in evidence appear to establish that the asbestos levels in the premises were non existent or minuscule, and there is no evidence to the contrary in the appeal book. 12 This Court cannot determine the validity of these claims by the appellants. They may arise at the trial of the pending action, but they are irrelevant in this appeal. There can be no doubt that, rightly or wrongly, the lease was terminated by the Society. While the appellants' claims that the rent had been suspended because the premises were contaminated and damaged may explain why the goods were uncollected, those claims cannot establish that they were not uncollected. The simple and inescapable fact is that the goods were not collected and the reasons for this, good or bad, are of no relevance in this appeal. 13 Mr Bellos argued that the Society had unreasonably delayed auctioning the goods pursuant to the orders of Dowd J, and that the sale had not been properly conducted. The events in question occurred after the orders were made and are not capable of establishing that they were not properly made at the time. 14 Mr Bellos sought leave to adduce further evidence in the appeal pursuant to SCR Pt 51AA r 13A in the form of two affidavits sworn by him on 30 October 1998. These included evidence already in the appeal book, evidence of events which pre-dated the hearing before Dowd J, which were known to the appellants at the time, and is therefore not admissible on appeal, and evidence of events which post-date the orders made by Dowd J which is irrelevant. The additional evidence does not, and cannot, assist the appellants to establish that the orders under challenge are affected by legal error, and leave to adduce that evidence should be refused. 15 Finally Mr Bellos complained about the order for costs made below and argued that the Society should have been ordered to pay the costs of its motion filed in the action. The Judge thought that the motion may have been misconceived, but since the question had not been argued before him he reserved liberty to apply. It does not appear that either side has taken up the liberty to apply and the costs of the motion rem0ain undetermined. There is therefore nothing which this Court can review by way of appeal. 16 The appeal fails on all grounds and must be dismissed with costs. 17 POWELL JA: I agree with Handley JA. 18 BEAZLEY JA: I agree with Handley JA.
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BELLOS
AMP