Smolonogov v O'Brien

Federal Court of Australia|1988-08-04|Before: French J

these proceedings. In my view however, the claim for loss of

earnings for the full period of 15 months that they occupied the premises is a claim for recovery of loss, some part of which was brought about by the applicants' failure to act in their own interests and vacate the premises at an earlier date when it was clear that they were in a chronic loss making situation. Drawing the line in such a case is necessarily a somewhat arbitrary exercise. However doing the best I can, it seems to me that' the relevant causal connection no longer operated after the first 9 months in the business; That is to say, I am not prepared to allow recovery of loss of earnings beyond the time, roughly speaking, at which the Pavichs ceased to pay rent. On this basis and applying the approach to calculation adopted by counsel for the applicants, I would deduct from the period of 67 weeks used by him a total of 24 weeks, leaving loss of earnings to be calculated over 43 weeks. On this basis the loss of earnings recoverable by

The question that then arises is what, if anything, is to be done in respect of the unpaid rent claimed by the respondents. The applicants seek a declaration that the written agreement was effectively rescinded by the notice from their solicitors sent on 28 June 1985. In my opinion the proposition that the lease was rescinded by that notice is at best a dubious one. At whatever time the Pavichs chose to leave the premises however there should be no continuing liability under the written agreement which came into existence as a result of the representations made by Letari. I am prepared therefore, in the

exercise of the powers conferred on the Court by s.87 of the Trade

Practices Act, to vary the agreement so that it is taken to have

~ terminated from the date that the premises were vacated, namely 5

July 1985. As to the Pavichs' claim for damages in relation to the unpaid rental which may be the subject of separate action by Bobra Nominees, that, consistently with the view I have already taken, is not a loss which would be recoverable as one sustained by reasons of the respondent's contravention of s.52. In the circumstances, it will be left to Bobra Nominees to pursue its claim for outstanding rent in relation to the last six months of

This is not a case in which any claim has been made for the operating loss of the business. The applicants have preferred to formulate their claimed loss in terms of the establishment costs and income foregone andno real issue was taken on the applicability of these items as a basis for calculation. On _ the question of interest I had no submissions as to the appropriate rate or the date from which it should be paid. It was however claimed in the relief, and I will give to the parties liberty to be heard in that regard. I will also allow liberty to apply on the question of the correctness of the arithmetical calculations upon which the judgment is based. In the circumstances therefore,

There will be judgment for the applicants jointly and severally in the sum of $12,585.

There will be judgment for the first~named applicant in the sum of $11,825.

There will be judgment for the second-named applicant in

There will be liberty to any party to apply within seven (7) days on the question of the right of the applicants to be heard in relation to interest and the arithmetical correctness of the calculations of the amounts of damages set out in the judgment.

The offer to lease agreement dated 7 March 1984 is varied so as to terminate on and from 5 July 1985.

The respondent is to pay the applicants' costs of the

I certify that this and the preceding twenty five (25) pages are a true copy of the Reasons for Judgement of his

Date: Cf. s. oy Counsel for the Applicant: Mr M. O'Sullivan

Mudginberri Station Pty Ltd v AMIEU [1986] ATPR 40-708

Hubbards Pty Ltd v Simpson Ltd [1982] ATPR 40-295, [1982] ATPR 40-319

Yorkshire Dale Steamship Company Limited v Minister of War Transport [1942] AC 691 Elna Australia Pty Ltd v International Computers (Australia Pty

Urquhart [1930] AC 28, may be followed through the judgment of the

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (13)

Cited By (1)