Plaintiff v Defendant

Plaintiff v Defendant - [2006] VSC 241 - VSC 2006 case summary — Zoe

[28]

These claims have appeared in each version of the statement of claim.

33 The defendant filed a defence on 14 March 2000. In that defence, the defendant denied the plaintiff's allegations and pleaded that any cause of action which accrued prior to 14 January 1994 was barred by reason of the Limitation of Actions Act 1958 (Vic). Significantly, the defendant did not plead any positive defences. In particular, the defendant did not plead that it had any legal entitlement to re-enter the premises or to take possession of the plaintiff's chattels. It simply denied the plaintiff's allegations in that regard.

34 In April 2000, the defendant sought further and better particulars of the statement of claim, and these particulars were provided in June 2000.

35 In July and August 2000, the parties made discovery of documents.

36 The defendant's discovered documents were inspected by the plaintiff on 4 October 2000.

37 There was then a delay in the proceeding whilst commercial negotiations occurred. A formal mediation took place on 20 February 2001.

38 Next, by summons dated 23 May 2001, the defendant sought summary judgment in respect of the statute barred claims and further and better particulars in respect of other allegations in the statement of claim.

39 On 18 June 2001, Master Kings gave judgment for the defendant against the plaintiff in respect of the statute barred claims. The plaintiff was given leave to file and serve an amended statement of claim giving full particulars. The plaintiff was ordered to pay the defendant's costs of the summons.

40 On 29 June 2001, the plaintiff filed an amended statement of claim. This version of the statement of claim was prepared by Mr Thomas personally. It was a most unsatisfactory document. It included allegations of fraud and conspiracy to pervert the course of justice and was otherwise in a wholly embarrassing and inappropriate form. Once again, claims were made in respect of causes of action which, on any view, were statute barred ("the further statute barred claims").

41 By summons dated 4 July 2001, the defendant sought summary judgment in respect of the further statute barred claims and sought to strike out the whole of the statement of claim.

42 By summons dated 5 July 2001, the solicitors then acting for the plaintiff sought leave to cease acting. In support of this application, the plaintiff's previous solicitor swore:

[60]

69 It was submitted on behalf of the plaintiff that I should find that Master Efthim dismissed the first reinstatement application on the sole ground that the plaintiff had not paid the stay amount, thus lifting the stay ordered by Master Kings and permitting the filing of an amended statement of claim. I reject this submission. Master Efthim clearly considered the arguments put on behalf of the defendant and, in his brief "reasons" referred to a number of factors other than the plaintiff having failed to pay the stay amount and file an amended statement of claim. I find that Master Efthim heard and determined the first reinstatement application on its merits. However, he did so in the context of an amended statement of claim which alleged fraud. The Master's brief reference to prejudice to the defendant must be seen in that light.[12]

70 By notice of appeal dated 7 October 2005, the plaintiff appealed against the order of Master Efthim dismissing the first reinstatement application.

71 The appeal was first considered on 28 October 2005. On that day, Williams J ordered that the further hearing of the appeal be adjourned to 11 November 2005 on condition that the plaintiff pay the stay amount to the Senior Master or the Prothonotary, such amount to be paid to the defendant on the determination of the appeal. The plaintiff did not pay the stay amount. Instead, it abandoned the appeal from the order of Master Efthim and that appeal was dismissed with costs.

72 By summons filed 23 December 2005, the plaintiff made a second application to a master for an order that the proceeding be reinstated ("the second reinstatement application"). In addition, the summons sought leave to amend the statement of claim in the form of a draft amended statement of claim exhibited to an affidavit filed with the summons.

73 The proposed further amended statement of claim put forward on behalf of the plaintiff, and in respect of which leave was sought, was a simple document. It pleaded two causes of action:

[66]

78 Following the payment of the stay sum and the exchange of the written outlines of argument ordered by the Senior Master, the Senior Master heard and determined the second reinstatement application on 30 March 2006. The Senior Master dismissed the second reinstatement application, in the following circumstances.

79 On the hearing of the second reinstatement application, counsel for the defendant made an oral application to dismiss the second reinstatement application as an abuse of process. The Senior Master heard and determined this oral application and determined to accept it. The Senior Master's brief reasons appear in the "OTHER MATTERS" section of his authenticated order.

80 As I have said, by notice of appeal dated 6 April 2006, the plaintiff appealed to a judge against the decision of the Senior Master made on 30 March 2006 to dismiss the second reinstatement application. On 4 May 2006, I gave my reasons for refusing to dismiss the second reinstatement application as an abuse of process, based only on the limited questions argued before me on the preliminary issue agitated by consent of the parties.[15]

81 Further, as I have said, at the conclusion of oral argument on the adjourned hearing of the appeal, I gave leave to the plaintiff to file and serve a further proposed amended statement of claim. The purpose of granting this leave was to enable the plaintiff to put forward a pleading which contained the whole of the case which the plaintiff wished to make at trial in the event that the proceeding is reinstated. Obviously enough, this will be a relevant matter for me to take into account in the exercise of my discretion.

82 On 26 May 2006, the plaintiff filed and served a proposed further amended statement of claim ("the proposed statement of claim"). The proposed statement of claim recognises the fact that the plaintiff was in arrears in payment of its rental obligations at the time of re-entry of the premises on 24 January 1994. In summary, the proposed statement of claim seeks to meet this fact by the following allegations:

[67]

(1) Consistent with all of the earlier versions of the statement of claim, it is alleged that, by entering into possession of the shopping centre and the premises as mortgagee, the defendant became the "landlord" of the premises within the meaning of the Act and became bound by the terms and conditions of the lease.

(2) In addition to the express terms of the lease contained in cll. 3.4, 11.01, 12.01 and 12.05, it is alleged that the lease contained implied terms reflecting the provisions of s. 17(1)(b) of the Act.

(3) It is alleged that, at the time of re-entry of the premises by the defendant, the plaintiff was in arrears of rental by reason of the conduct of the defendant in the period between late 1991 and early 1993. The conduct relied upon relates to the refurbishment works, capital works, installation of new signage in the shopping centre, removal of the plaintiff's signage relating to the premises and refusal to reinstate that signage and the removal of the plaintiff's external tables and chairs immediately adjacent to the premises and the opening of the food hall. It is alleged that this conduct by the defendant caused a substantial alteration and inhibition in the flow of customers to the premises, with consequent substantial decline in the sales revenue of the plaintiff's business and inability of the plaintiff to pay the rental for the period November 1993 to January 1994.

(4) It is alleged that the plaintiff made various complaints about the conduct of the defendant and requested payment of compensation and that, in the absence of any resolution, the plaintiff referred the dispute to arbitration in accordance with s. 21 of the Act.

(5) It is alleged that, in the knowledge of the appointment of the arbitrator and the powers of the arbitrator, the defendant embarked upon a course of conduct designed to ensure that the plaintiff's claims in the notice of dispute were not heard and determined by the arbitrator. The course of conduct relied upon is that of the defendant in:

[69]

It is alleged that this conduct by the defendant, in combination with its conduct concerning redevelopment works, capital works and signage (collectively "the defendant's conduct"), "was an unconscientious, unconscionable and highhanded exercise of a purported legal right", that the defendant "acted unfairly, capriciously, unconscientiously, unconscionably and unjustly towards the plaintiff" and that, as a result, "the defendant was estopped and precluded from re-entering the premises as it was unconscionable and unconscientious of the defendant to purport to exercise its legal right of re-entry whilst the arbitration was extant and without taking into account the plaintiff's statutory right to compensation pursuant to s. 17(1)(b) of the [the Act]."

(6) Alternatively, it is alleged that the right of the plaintiff to seek statutory compensation against the defendant pursuant to s. 17(1)(b) of the Act constituted a right of equitable set-off sufficient to negate any liability for unpaid rental at the time of re-entry, with the result that the defendant was "thereby precluded from purporting to exercise its right of re-entry pursuant to cl. 12.01 of the lease." In this regard, it is alleged that the provisions of cl. 3.04 of the lease are inapplicable because they do not expressly exclude the right to withhold payment of rent by reason of "equitable set-off" or, if such right was excluded, the defendant ought be estopped from relying upon cl. 3.04 by reason of the defendant's conduct. Alternatively, it is alleged that cl. 3.04 of the lease is void by reason of the operation of s. 24(2) of the Act as it is contrary to, or inconsistent with, the right of the plaintiff to seek compensation pursuant to s. 17(1)(b) of the Act.

(7) On the basis of the above allegations, it is alleged that the re-entry by the defendant on 24 January 1994 constituted a repudiation of the lease, which repudiation has been accepted by the plaintiff which has suffered loss and damage as a result. The particulars of loss and damage include a claim for "complete destruction of the plaintiff's business and all the goodwill attaching to the business". In this respect, the particulars state that the plaintiff suffered loss of profits in the approximate sum of $80,000 per annum for the remainder of the term of the lease. As the lease had 18 months to run, this claim totals approximately $120,000. Further, it is alleged that the plaintiff lost the commercial opportunity to enter into a new lease and to continue its business at the premises beyond the expiry of the lease on 28 July 1995.

(8) Claims in detinue and conversion of the plaintiff's chattels which were seized at the time of re-entry are, in accordance with all previous versions of the statement of claim, repeated. The plaintiff alleges that it has been unable to give particulars of the amount of loss and damage claimed in this regard because the defendant has not made full and proper discovery.

(9) Finally, the plaintiff claims exemplary damages against the defendant.

[75]

"It seems to me that it is incumbent upon a plaintiff who seeks to reinstate a proceeding under this rule to satisfy the court that justice requires that the court exercise its discretion to reinstate the proceeding. Clearly if the proceeding is in such a state that had an application been made by a defendant to have it dismissed for want of prosecution, that application would have succeeded, then the court would not reinstate the proceeding.

If any authority be needed for that proposition, I would refer to Graham v Visy Board Pty Ltd, an unreported decision of Beach J made on 11 February 1998.

Counsel for the plaintiff submitted that that was the governing consideration, that if a proceeding would be dismissed for want of prosecution, then it could not be reinstated, but if it would not have been dismissed for want of prosecution, then it should be reinstated.

However, in my view, the second part of that proposition does not follow from the first and is not justified upon a proper construction of the rule. The court constituted by a judge is empowered in its discretion to reinstate the proceeding and it does not seem to me to treat the rule with any due regard to conclude that the question of reinstatement stands or falls on the test relating to the principles applied under an application to dismiss a proceeding for want of prosecution.

The proceeding has been dismissed and the question is whether the Court should exercise its discretion to reinstate. In my opinion, it is a question of what justice requires and all the relevant circumstances ought to be taken into account. No doubt many of the same circumstances as might be considered on an application to dismiss for want of prosecution are relevant, but the plaintiff comes seeking an indulgence and it is for the plaintiff to satisfy the Court that the proceeding should be reinstated, and there may be cases which had they not been dismissed under this rule would not have been dismissed for want of prosecution and yet the plaintiff might fail to have them reinstated once they are dismissed under this rule.

It is necessary to consider the particular circumstances of the proceeding..."

[84]

APPLICATION OF LEGAL PRINCIPLES

95 In this case, there is no doubt, indeed it is conceded, that there has been inordinate delay by the plaintiff. Having regard to the fact that the plaintiff commenced this proceeding only a matter of days before the expiration of the relevant period of limitation,[28] the plaintiff was under an obligation to move with greater speed than if it had commenced proceedings promptly after the events in issue.[29] Clearly, the plaintiff did not do so. In the first place, there are the delays in formulating a statement of claim in an acceptable form. These delays occupied much of the time which elapsed between the commencement of the proceeding and the making of the stay orders by Master Kings. Secondly, the period of three and a half years from the making of the stay orders until the making of the first reinstatement application was, on any view, inordinate.

96 In my view, the delay is not excusable. The principal ground which was relied upon is the impecuniosity of the plaintiff and Mr Thomas. I accept the law is as stated by Hedigan J in Imaging Applications[30] to which I have referred. Although impecuniosity may be a relevant factor to be taken into account, there needs to be something else excusing the delay.

97 I do not regard the prosecution by Mr Thomas, on behalf of the plaintiff, of complaints against the plaintiff's previous lawyers as constituting an excuse for the delay in prosecution of the proceeding. This conduct was directly related to the impecuniosity relied upon. As appears above, Mr Thomas swore that the purpose of prosecuting complaints against the plaintiff's previous lawyers was to have them "fairly and properly contribute towards" the costs required to be paid in order to lift the stay ordered by Master Kings.

98 It was also submitted on behalf of the plaintiff that its delay was excusable because it was caused by the delay of its lawyers in the conduct of the proceeding, especially with regard to the failure to formulate an acceptable statement of claim. It was submitted that this gave rise to the stay ordered by Master Kings, because the costs orders were the result of negligence in the formulation of the statement of claim.

99 As I have said above, the plaintiff must be responsible for any delay on the part of its lawyers. However, in any event, I am not satisfied that material delays have been caused by the conduct of the plaintiff's former solicitors. First, the evidence establishes that Mr Thomas was responsible for a substantial part of the costs orders made against the plaintiff. Mr Thomas was dissatisfied with the amended statement of claim drawn by counsel instructed by his former solicitors, and filed and served an amended statement of claim prepared by him. That statement of claim was struck out with costs. That costs order formed part of the stay amount. Secondly, the inordinate delay on the part of the plaintiff after the proceeding was stayed was not attributable to any negligence on the part of its lawyers. It was caused by impecuniosity.

100 I turn to consider whether the inordinate and inexcusable delay by the plaintiff is such that it will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the proceeding, or is likely to cause or to have caused serious prejudice to the defendant.

101 The starting point is to consider the case which the plaintiff now seeks to put forward in the proposed statement of claim. I have summarised this case above. The plaintiff wishes to pursue at trial a case that the conduct of the defendant and its agents in the period between late 1991 and early 1993 caused a substantial alteration and inhibition to the flow of customers to the premises, with consequent substantial decline of sales revenue of the plaintiff's business and inability of the plaintiff to pay the rental for the premises in the period November 1993 to January 1994. These issues will involve evidence as to events occurring between 13 and 15 years ago, even if a trial of the proceeding could take place in the latter part of this year.

102 However, a trial later this year seems highly unlikely. The proposed statement of claim is the subject of considerable criticism by the defendant, including submissions that it contains allegations which are time barred and/or the subject of issue estoppel. The form of the statement of claim cannot be regarded as settled. Even if it was, a defence would still be necessary and, having regard to the extensive amendments which are proposed, it is likely that some further discovery will be required. Even if all this could be attended to promptly, this is not a case which is likely to be given any priority over other cases. Accordingly, it would be unlikely to be tried until the latter half of next year, involving a further delay of one year.

103 It was acknowledged by Mr Selimi, who appeared for the plaintiff, that the case which the plaintiff seeks to raise will involve the calling of oral evidence at trial as to the events in question, and that the question of credibility of witnesses will arise. However, Mr Selimi submitted that this does not mean that there is a substantial risk that a fair trial will not be possible, or that the Court should infer prejudice to the defendant, merely because of the lapse of time between the relevant events and the likely trial date. Mr Selimi submitted that:

[89]

"As one who has appeared in and heard as judge many cases of this kind, one is immediately struck by the absence from the defendants' material of the detail one would ordinarily encounter in these cases, such as (1) as the names, occupations, function and relevance of the witnesses who might have been called but are no longer able to be called or who no longer have any recollection; (2) what critical evidence might have been called and can no longer be called because of the death, absence, unknown whereabouts, illness or infirmity of a particular witness or witnesses, or other similar matters. There is no identification of any important witness who has died or is unavailable... The proceeding was commenced in the Commercial List from the outset in 1990. It was in the List for four months. A number of the affidavits filed detailed the steps taken by the parties and appearances before the Judge-in-charge of the List. The reasons for this were to endeavour to show from the outset the failure of the plaintiffs to press their case forward with competence and despatch. This was, I would judge, largely due to the inexperience of [the plaintiff], coupled with his psychological incapacities. However, it also makes it almost impossible to believe that the three defendants, an insurance company, an insurance broker and the Law Institute of Victoria, did not get around to interviewing witnesses to meet the plaintiffs' claim during the first four or five months after the commencement of the action. That would be a level of incompetence falling far below the standards that one's experience instructs is likely found in such well-resourced professional litigants. Taking into account the failure to identify the witnesses, I am unconvinced that the defendants have been denuded by time of the opportunity to call relevant witnesses with memory of these events. Furthermore, it seems to me to be significant that not only have the first and second defendants failed to identify who the four additional witnesses are, nor the subject matter of their evidence; there is no evidence that any one of them has forgotten, or has diminished recollection, of whatever it is the witness would be expected to address. One should not overlook that, although the period here is very substantial, courts every day hear witnesses giving evidence about events which have occurred many years before."[35]

[90]

109 Hedigan J concluded that, although the case was "near the outer edge of the feasible periods of delay",[36] he was not persuaded that, on the facts of that case, the defendants had suffered prejudice of the necessary kind.

110 The decision of Hedigan J in Imaging Applications involved an exercise of discretion relating to the particular facts of the case. Of course, each case must be determined on its own facts to ascertain whether the justice of the occasion demands that the proceeding be dismissed.

111 In my view, this case is one where the delay has reached the stage where the likely trial date is outside of the feasible period of delay for the conduct of a fair trial. In this respect, it must be remembered that the trial will involve an investigation of the causes of the failure of the plaintiff's business in the period between late 1991 and December 1993.

112 In reaching this conclusion, I have taken into account the fact that the defendant has filed no evidence as to actual prejudice. Furthermore, I accept that a significant proportion of the relevant facts are likely to be the subject of contemporaneous documents.

113 However, the fact remains that it is conceded on behalf of the plaintiff that the trial will involve the calling of contested oral evidence as to the causes of the failure of the plaintiff's business as long ago as December 1993. In this respect, the conduct relied upon goes back to 1991.

114 Issues such as the nature and extent of the refurbishment and other works at the shopping centre, and in relation to signage, will require oral evidence by the plaintiff and others as to their recollections. The same can be said of issues concerning any causal link between the conduct of the defendant and the decrease in the profitability of the plaintiff's business. There will no doubt be issues concerning other possible causes of the decline in the plaintiff's business, such as the recession in the late 1980s and early 1990s. For example, in a letter dated 16 May 1993 from Mr Thomas to the defendant, Mr Thomas stated that:

[92]

115 Although the balance of this letter contains strong statements by Mr Thomas to the effect that the refurbishment works at the shopping centre caused a decrease in the flow of customer traffic, the effects of external issues such as the recession will no doubt be relied upon by the defendant at trial.

116 These issues do not concern a single event, such as an accident, where memories are less likely to fade.[37] They involve a course of events spanning more than a year which occurred between 13 and 15 years ago. Some loss of memory by material witnesses can safely be inferred.

117 As to the failure of the defendant to file evidence as to prejudice of the kind referred to by Hedigan J in Imaging Applications, each case must be considered on its own facts. There is no universal rule as to the need to file evidence of actual prejudice. My own experience of appearing in cases of this kind is that defendants often prefer to file no evidence of actual prejudice, and to rely upon inferred actual prejudice arising from mere delay, because they fear that evidence of actual prejudice will prejudice them at trial if the application to strike out is unsuccessful. That is a forensic decision which is made by those advising the defendant in each case. As I have said, I am of the view that, notwithstanding the lack of direct evidence of prejudice, the stage has been reached in this case where the likely trial date is such that a fair trial will not be possible, or at least there is a substantial risk that this is so, with the effect that prejudice has, or is likely to have been, caused to the defendant.

118 Mr Selimi also submitted that the plaintiff had a strong case in one respect, which did not depend upon oral evidence at all. He submitted that the provisions of cl. 12.05 of the lease provided a complete answer to the defendant's submission that it was entitled to re-enter for non-payment of rent by reason of cl. 12.01 of the lease. It was submitted that cl. 12.05 required the giving of a notice by the lessor, or the defendant, treating the plaintiff's non-payment of rent as a fundamental breach of the lease entitling the lessor, or defendant, to re-enter under cl. 12.01 and that such notice must be given prior to re-entry. It was submitted that there was no evidence of any notice being given by the defendant or the lessor under cl. 12.05 prior to re-entry and that, accordingly, the plaintiff had an arguable case that the defendant repudiated the lease by re-entry.

119 I accept that it is arguable that the lease provides that a notice under 12.05 must be served before the lessor or the defendant could re-enter the premises under cl. 12.01 for non-payment of rent.[38] However, even accepting this to be the case, the plaintiff would still need to establish at trial that it suffered loss as a result of the defendant wrongfully re-entering the premises. At best, the plaintiff's claim is that it lost the opportunity to stay in possession of the premises and conduct a loss-making business in circumstances where, on its own case, it could not pay the rent due under the lease. In paragraph 25 of the proposed statement of claim, it is alleged that the plaintiff was unable to pay rental for the period November 1993 to January 1994. In the particulars of this allegation, it is alleged that the plaintiff's sales revenue had, by 1993, fallen to such an extent that the plaintiff (and Mr Thomas) were required to liquidate assets in order to meet the operating expenses of the business.

120 In my view, the damages component of the claim which the plaintiff seeks to make based upon cl. 12.05 of the lease will require substantial evidence, including oral evidence, concerning the viability of the plaintiff's business as at the time of re-entry. In respect of this issue also, I infer that the defendant will be prejudiced in the conduct of the trial by reason of the inordinate delay in the prosecution of the proceeding.

121 There remains for consideration the separate claim by the plaintiff for damages in respect of wrongful conversion or detinue of its stock in trade, tenant's fixtures and other goods located at the premises at the time of re-entry. As I have said, this claim has been made in each version of the statement of claim.

122 In my view, the delay in prosecution of the proceeding is such that there is also a substantial risk that a fair trial will not be possible in respect of these claims. This is because evidence will be necessary as to the precise identity of any chattels seized, their condition and value in 1994. There are no relevant admissions in this regard by the defendant. In any event the claim is subsidiary to the principal claim and is in many respects bound up with it.

CONCLUSION

123 As I have concluded that the proceeding would, if reinstated, be the subject of a successful application to dismiss it for want of prosecution, there is no need to consider the other discretionary factors to which I have referred.

124 The second reinstatement application will be dismissed. I will hear the parties as to costs.

[93]

[1] Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170.

[2] Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 at [2]- [23].

[3] Affidavits sworn by Thomas on 17 August, 16 September, 13 October, 26 October and 22 December 2005.

[4] Rule 77.05(7)(b) of the Supreme Court (General Civil Procedure) Rules 2005.

[5] Exhibit TAM-7 to the affidavit of Mr Thomas sworn 13 October 2005.

[6] Affidavit of William Gulliver Griffiths sworn 5 July 2001 in the proceeding.

[7] Facsimile dated 13 December 2001 from Mr Thomas to his solicitors, Exhibit LTJ-14 to the affidavit sworn by Mr Thomas on 17 August 2005.

[8] Thomas affidavit, 13 October 2005, paragraph 17.

[9] Thomas affidavit, 13 October 2005, paragraph 23.

[10] The authenticated order refers, in error, to prejudice to "Plaintiff". This is an obvious error, as the relevant question before the Master, which was the subject of submissions by the defendant, concerned prejudice to the defendant.

[11] The reference to Order 34.05 is a reference to a submission put on behalf of the defendant that the judgment which the plaintiff was seeking to set aside was obtained in circumstances which were comparable to a judgment obtained in accordance with the previous Rule 34.05. The terms of rule 34.05 are set out below.

[12] Compare Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 at [40].

[13] Thomas affidavit, 22 December 2005, paragraph 9.

[14] In fact, the stay amount was paid after 4.00 pm on 8 March 2006. However, on 30 March 2006, the Senior Master extended the time for payment of the stay sum nunc pro tunc.

[15] Tenth Vandy v Natwest Markets Australia Pty Ltd [2006] VSC 170.

[16] The specialist lists of the Court which involve continuous case management, are referred to.

[17] Supreme Court (General Civil Procedure) Rules 1996 (Vic).

[18] For example, Graham v Visy Board Pty Ltd (unreported, 11 February 1998), Envol Pty Ltd v Perceptive Systems Pty Ltd [1998] VSC 53, Scholz v Shire of Healesville [1998] VSC 62, Streamlux Pty Ltd v Land [1999] VSC 16, Waugh v Waugh [1999] VSC 51.

[19] Unreported, Mandie J, 18 June 1998.

[20] [1995] VicRp 59; [1995] 2 VR 328.

[21] [1989] 1 AC 1197 at 1203.

[22] [1999] VSC 230.

[23] [1999] VSC 230 at [44].

[24] Masel v Transport Industries Insurance Co Ltd [1995] VicRp 59; [1995] 2 VR 328 at 332; Department of Transport Industries v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1203.

[25] [1999] 3 VR 863 at [33]-[35].

[26] [1999] 3 VR 863 at [33].

[27] [1999] 3 VR 863 at [34], [35].

[28] As appears above, the plaintiff sought to raise issues in the earlier pleadings which were in fact statute barred under the Limitation of Actions Act 1958 (Vic). These claims have already been the subject of summary judgment against the plaintiff.

[29] Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 at [32].

[30] [1999] VSC 230 at [44].

[31] [1999] VSC 230.

[32] [1999] VSC 230 at [52].

[33] [1999] VSC 230 at [49].

[34] [1999] VSC 230 at [51].

[35] [1999] VSC 230 at [52].

[36] [1999] VSC 230 at [54].

[37] Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 at [57].

[38] No submission was put on behalf of the defendant that, in any event, the defendant was entitled to re-enter because the conduct of the plaintiff in falling into arrears of rental constituted a repudiation of its obligations under the lease, as in Apriaden Pty Ltd v Seacrest Pty Ltd [2005] VSCA 139.

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Parties