Gamble v Wilson [2011] NSWDC 240

District Court New South Wales

Medium Neutral Citation: Gamble v Wilson [2011] NSWDC 240 Hearing dates: 7, 8, 9, 10, 11 February and 17 March 2011 Decision date: 03 June 2011 Before: Letherbarrow SC DCJ Decision: 1.Judgment for the plaintiffs against the defendants on the claim in the sum of $24,438 inclusive of pre-judgment interest. 2.Judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim in the sum of $32,001.52 inclusive of pre-judgment interest. 3.The defendants/cross-claimants are entitled to set off against the judgment sum set out in Order 1 the judgment sum referred to in Order 2 such that the plaintiffs/cross-defendants are to pay to the defendants/cross-claimants the sum of $7,563.52. 4.Each party to bear their own costs of the proceedings including the motion dated 10 August 2009 but excluding those referred to in the order made by his Honour Judge Elkaim of 27 October 2010. Catchwords: CONTRACT -landlord and tenant - lease of premises for hardware business - claim in conversion by lessees consequent upon lessors terminating lease and retaking possession - whether lease validly terminated - whether lessor had right to retake possession - cross-claim for breach of lease by lessors - assessment of damages for conversion and breach of lease Cases Cited: Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204, Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244, Barclays Mercantile Business Finance Ltd & Anor v Sibec Developments Ltd & Ors [1993] 2 ALL ER 195, Petre v Henier (1701) 12 Mod Rep 519, Upton & Anor v TVW Enterprises Ltd & Anor (1985) 7 ATPR 40-611, Craig v Marsh (1935) 35 SR (NSW) 323, Clayton v Le Roy (1911) 2 KB 1031, Crowther v Australian Guarantee Corporation Ltd (1985) Aust Torts Reports 80 - 709, Solloway v McLoughlin [1938] A.C. 247, Trailways Transport Ltd v Thomas [1996] 2 NZLR 443, Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd et al [2003] VSC 291, Furness v Adrium Industries Pty Ltd (1993) Aust Torts Reports 81 - 245, Livingstone v Rawyards Coal Co (1880) 5 App. Cas. 25, Butler & Ors v The Egg and Egg Pulping Marketing Board (1966) 114 CLR 185, Kuwait Airways v Iraq Airways [2002] UKHL 19; [2002] 2 A.C. 883, Whitmore v Black (1884) 13 M.&W. 507, Whitehouse v Atkinson (1828) 3 C.&P. 344, Payzu v Saunders [1919] 2 KB 581 CA, Saunders v Williams [2003] B.L.R. 125 CA Texts Cited: Clerk, J.F. and Lindsell, W.H.B., Clerk & Lindsell on Torts (Sweet and Maxwell, 16th ed, 1989), Clerk, J.F. and Lindsell, W.H.B., Clerk & Lindsell on Torts (Sweet and Maxwell, 20th ed, 2010), McGregor, H, McGregor on Damages (Sweet and Maxwell, 18th ed, 2009) Category: Principal judgment Parties: Godfrey Gamble (First Plaintiff) Karen Gamble (Second Plaintiff) Robert Leo Wilson (First Defendant) Claude Stanley Wilson (Second Defendant) Representation: First and Second Plaintiffs: Mr J Birman/Mr T Young First and Second Defendants: Mr S Gardiner/Ms C O'Mahony First and Second Plaintiffs: Birman & Ride First and Second Defendants: Walsh & Blair File Number(s): 2009/339774