New South Wales Supreme Court CITATION : Vogt v Vaughan [2006] NSWSC 1003 HEARING DATE(S) : 26 September 2006 JUDGMENT DATE : 26 September 2006 JURISDICTION : Equity JUDGMENT OF : Campbell J EX TEMPORE JUDGMENT DATE : 09/26/2006 DECISION : License terminated. Mesne profits awarded. Judgment for unpaid rent. CATCHWORDS : TORTS – TRESPASS – trespass to land – implied non-contractual license – notice needed to terminate license – manner of calculation of mesne profits – PRACTICE – proceeding with trial in absence of plaintiff LEGISLATION CITED : Uniform Civil Procedure Rules 2005 CASES CITED : Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 Minister of Health v Bellotti [1944] 1 KB 298 Russell Keith Vogt - Plaintiff PARTIES : Colin Raymond Vaughan - First Defendant G R Vaughan (Holdings) Pty Ltd - Second Defendant FILE NUMBER(S) : SC 5945/05 COUNSEL : No Appearance - Plaintiff M Ashhurst - Defendants SOLICITORS : No Appearance - Plaintiff Gibsons Lawyers - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J TUESDAY 26 SEPTEMBER 2006 5945/05 RUSSELL KEITH VOGT v COLIN RAYMOND VAUGHAN & ANOR JUDGMENT – Ex Tempore 1 HIS HONOUR: In these proceedings the plaintiff sought damages for trespass to person, trespass to property and conversion of goods. The proceedings arose from the circumstances in which the defendants came to evict the plaintiff from some property which the second defendant owned, located in Elizabeth Bay. 2 The plaintiff has not appeared today. I have earlier noted evidence of Mr Cockburn, which sets out the circumstances concerning what is known of the plaintiff's whereabouts. 3 The defendants seek to have the Court proceed with the trial, under Rule 29.7 Uniform Civil Procedure Rules. 4 In the present case, when there has been a lengthy period in which the plaintiff has not had contact with his solicitors, and attempts have been made, fruitlessly, to get in contact with the plaintiff, it seems to me that there would be no point in the Court of its own motion adjourning the trial. It is appropriate to proceed with it. 5 When no evidence is presented in support of the plaintiff's case, it is inevitable that his application be dismissed, with costs. 6 The second defendant, which is the owner of the Elizabeth Bay premises, seeks a monetary judgment for two different types of amount. The first is mesne profits. 7 The plaintiff had for many years lived in the premises, without payment of any rent. This was a situation which the second defendant allowed to continue because the plaintiff was the companion of the mother of one of the directors of the second defendant. After the mother had died, a notice was served upon the plaintiff, on 18 March 2003, requiring that he leave the premises, and giving him four weeks in which to do so. 8 The plaintiff had, up to that time, an implied license to occupy the premises. He would not become a trespasser until a reasonable time had passed, after the giving of the notice, to enable him to remove himself and his effects from the premises: Minister of Health v Bellotti [1944] 1 KB 298. I am satisfied that, given the nature of the premises, four weeks was ample for that purpose. Thus, I am satisfied that the plaintiff became a trespasser in the premises by 18 April 2003. 9 On 18 November 2005 the second defendant retook possession of the premises, and changed the locks. 10 The second defendant claims mesne profits for the period from 18 April 2003 to 17 November 2005. It relies on the evidence of a valuer, Mr Keen. That evidence contains a manifest arithmetical error, in the way in which it has calculated the mesne profits. First Mr Keen calculated the rental which could be derived from the premises during the period 18 March 2003 to 17 March 2004. Then he concluded that the rental which would be payable after 18 March 2004 was a little higher than would be payable in the previous year. The method by which the profits are calculated, for the period from 18 March 2004, is by multiplying the number of square metres in the premises, the rate per square metre per annum, and the time of occupancy. Mistakenly, Mr Keen adopted a 10-month period, rather than the period which in fact elapsed between 18 March 2004 and 17 November 2005. 11 It is appropriate to correct that manifest arithmetical error. I am satisfied that the appropriate amount of mesne profits is $199,170, in accordance with the calculation in Exhibit B. 12 In Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 at 439 Cohen J set out the authorities concerning the calculation of mesne profits. This calculation is in accordance with those principles. 13 In connection with the mesne profits, I am satisfied that an appropriate amount of interest to allow is $36,737. The manner of calculation of that interest is set out in Exhibit B. 14 There was a further short period in which the plaintiff was allowed back into the premises. He was allowed back under an agreement pursuant to which he agreed to pay $1,500 per week rent. He was in occupancy for a period, in the course of which he did not pay rent during three weeks. At the end of that period of non-payment of rent he was once again excluded from the premises. The second defendant seeks a judgment for payment of those three weeks unpaid rent. In my view the second defendant is entitled to $4,500 on that account. The second defendant does not seek interest on that $4,500. 15 I make orders in accordance with short minutes which I initial and date today's date. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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