Beresford v Booth

BERESFORD v BOOTH

[1999] SASC 166

Magistrates Appeal

MARTIN J. (Ex tempore ) The appellant issued proceedings in the Magistrates Court seeking recovery from the respondent of 50 per cent of expenses incurred in connection with a jointly owned property on Hindmarsh Island. The respondent denied the claim and sought to establish a small counterclaim in respect to expenses she had incurred in connection with that property and another property at Norwood.
After a trial, the magistrate dismissed both the claim and the counterclaim and directed that each party pay their own costs. The appellant appeals against that decision and has argued that his claim should be allowed in full. The appellant was unrepresented before the magistrate and in this Court. Upon specific inquiry, he indicated he did not wish to adjourn the hearing of the appeal in order to seek legal representation.
It is necessary to set out in some detail the background to these proceedings. The parties met in approximately 1979 and lived in a de facto relationship from 1981 until September 1992. During January 1986, they purchased the subject property on Hindmarsh Island in joint names. Each contributed, ultimately, half of the purchase price. That property was sold in 1998.
Following their separation in September 1992, the respondent instituted proceedings against the appellant for a property settlement. On 17 February 1993, the appellant instituted the current proceedings claiming reimbursement of expenses paid with respect to the Hindmarsh Island property during 1992. The claim was originally for $927.83, but was subsequently amended to seek reimbursement in connection with other expenses incurred from 1992 through to and including 1998. The total claimed by the appellant is now $6 094.36. That amount includes, however, interest which the statement of claim suggests has been calculated at 10 per cent per annum. The net amounts, exclusive of interest, come to a total of $4 706.43. In an amended defence and counterclaim, the respondent denied owing the amount claimed and counterclaimed the sum of $530.10 which she says were expenses incurred by her in connection with renovations and improvements to the property at Hindmarsh Island and to another property at George Street, Norwood.
The 1992 proceedings instituted by the respondent for property settlement involved a claim by the respondent in connection with the Norwood property. That claim was heard by Perry J in 1993. On 29 November 1993, his Honour found that the respondent had made a contribution to the Norwood property which in money terms should be valued at $7 500. He found there was a constructive trust to the extent of that contribution and, therefore, that the respondent was entitled to a declaration that the appellant held his interest in the Norwood property on trust for the respondent to the extent of $7 500.
In the course of that trial, Perry J heard evidence of other financial dealings that were relevant to his determination of the issues before him. That evidence included the sale by the respondent of a property she owned and the application of $48 000 from the proceeds of that sale toward the purchase, in 1996, with the appellant of the Hindmarsh Island property that is the subject of this action. His Honour accepted the evidence of the appellant that the respondent had indicated she would prefer to put her money toward taking up a half share in the Hindmarsh Island property rather than into the Norwood property. His Honour then found:
“The Hindmarsh Island property was duly purchased by them jointly in that fashion and transferred into their names as joint tenants. On 24 May 1985, the parties signed an “Agreement” as to the basis upon which they owned and agreed to maintain the Hindmarsh Island property. That agreement provided basically for an equal financial contribution by each of them.”
The parties gave evidence before the magistrate on 16 December 1998. In brief reasons delivered on 25 January 1999, his Honour found that the appellant had met all the outgoings claimed in respect of the Hindmarsh Island property and that, generally speaking, joint tenants will be jointly liable for such outgoings. His Honour found, however, that throughout the relevant period after the relationship ceased, the respondent did not reside at the premises and the appellant resided there from time to time. He found the appellant was the sole occupant during that period and intended to exclude the respondent from occupancy. On that basis, his Honour found that the appellant was required to pay a fair rental throughout that period, but was in a difficulty assessing the amount owing because no evidence had been placed before him as to what might constitute a reasonable rent. In addition the point was not argued.
His Honour considered referring the matter back for an additional hearing, but declined to do so because of the cost involved and the need to finalise the litigation between the parties. Having found that the respondent was required to pay half the outgoings and other expenses incurred in connection with improving the property, and in view of the sale of the property in January 1998, his Honour concluded that any assessment of rental to be paid by the appellant “would cancel out his claim as against the defendant [respondent] as to outgoings and improvements.” His Honour then found:
“The basis of the defence albeit not pleaded against the plaintiff is in accord with the maxim "he who seeks equity must do equity." I therefore consider it to be equitable that both the claim and counterclaim be dismissed and that each party bear their own costs in the matter.”
The various grounds of appeal can be reduced to five principal propositions as follows:
1........... The magistrate erred in disregarding the findings of Perry J that on 24 May 1995 the parties signed an agreement as to the basis of the maintenance of the property which provided for an equal contribution. There was no evidence that this agreement had been varied.
2.The magistrate erred in finding that the appellant was the sole occupant of the premises throughout the relevant period. This includes an erroneous finding that the appellant intended to exclude the respondent from occupancy of the premises.
3........... The magistrate erred in finding that the appellant was required to pay a fair rental throughout the period.
4.The magistrate erred in finding that any assessment of rent to be paid by the appellant would cancel out the appellant's claim.
5........... The magistrate erred in finding that it was equitable to dismiss the appellant's claim.
The plaintiff gave evidence before the magistrate and tendered the judgment of Perry J on the basis that the judgment established the principal facts in the action before the magistrate. That course does not appear to have been opposed by the respondent. A copy of the agreement dated 24 May 1985 was tendered (Exhibit P2). It is not in dispute that by the agreement the parties agreed to share the costs of electricity, gas bills and other household expenses. The agreement also included a clause that each was to pay half the costs related to the property where both agree to those costs. It specified that any maintenance, improvements and alterations were included.
According to the appellant in evidence, following their separation in September 1992, the respondent went to live at Hindmarsh Island. He said as far as he was aware she did not vacate the premises until about 1995. In support of his evidence he tendered a letter dated 11 May 1993 (Exhibit P3) from the respondent's solicitors indicating that because the respondent's city lease would expire in July 1993 she would thereafter need to live at Hindmarsh Island until the parties resolved their differences. The letter proposed that the appellant have the use of Hindmarsh Island from May until 19 July 1993 on the basis that he give an undertaking that the appellant could live there after 19 July 1993 and without him attempting to attend at the premises or make contact with the respondent until the property was sold.
The letter concluded that the solicitors were holding the keys to the property and, upon receipt of an undertaking from the appellant, he was able to collect those keys. That proposal was not the subject of any further evidence except for the appellant maintaining he understood he was prohibited from visiting the premises when the respondent took up occupation in September 1992 until early 1995. As will appear later in these reasons, subsequent evidence by the appellant contradicted his evidence before the magistrate that he was prohibited until early 1995.
The respondent gave evidence before the magistrate that on the evening of their separation in September 1992 she travelled to Hindmarsh Island and spent one night at the premises. In addition, she stayed there for one night in December 1992. She did not stay on the premises after that occasion. She said she visited the property once in April or May 1993 and found that the locks had been changed. She said she had no idea who occupied the premises after December 1992, but presumed the appellant went there on 26 December 1992 and stayed there until Easter as was his habit every year. She described the appellant as a creature of habit. In support of her evidence, the respondent tendered a copy of the last page of a letter received from the appellant's solicitors (Exhibit D6) in which it was stated that the appellant advised he wanted exclusive rights to the house at Hindmarsh Island from 1 January 1993 to 31 March 1993. The letter stated that the appellant “offered the opinion” that the respondent had received her fair share in relation to the property.
As to when he resided at the premises, the appellant told the magistrate that perhaps in January 1993 he went to Hindmarsh Island, but he had not been there subsequently, except on inspections once or twice, until 1995. He said his last notification was the letter of 11 May 1993 (Exhibit P3) and he assumed the respondent was residing at the premises. According to the appellant he used the premises on weekends in 1995. He wrote a letter dated 17 February 1995, (Exhibit D4) to solicitors for the respondent concerning the sale of the premises. He also said in the letter:
“On the question of occupancy, I suggest that I continue to use to place as a beach house, and now assume sole responsibility for all outgoings, maintenance and improvements as from 1st January 1995.
If your client wishes to visit the premises she is of course entitled to do so. However as a matter of common courtesy, and to avoid embarrassment, I consider she should make some reasonable prior arrangements.”
That letter was written without prejudice. It appears to have been received into evidence without objection and the appellant has told this Court he knew he could have objected, but chose not to do so.
The issue of the sale of the Hindmarsh Island property was the subject of negotiation between the parties during the course of the proceedings that ultimately came to trial before Perry J. It was the case for the respondent that during a pre-trial conference before Master Kelly in March 1993 regarding that action, the parties agreed that the Hindmarsh Island property would be auctioned within two months of the settlement of the Norwood property. According to the respondent minor matters such as costs either party might have incurred towards maintenance and upkeep of the Hindmarsh Island property would be settled upon the sale. Those costs would have included rates, taxes and general upkeep, but not electricity as she had not resided at the property since 1992. As to any other improvements or work on the property after September 1992, the respondent gave evidence that she wanted to sell the property and she considered it was in good order when she left. In those circumstances she considered it was not her responsibility to carry out repairs and she was never asked to do so. She did not see any receipts for the work alleged to have been done. According to the respondent she was never asked to have any work done and the only contact about those matters came when the appellant would update his claim. She said updates occurred every time he felt under threat of paying the costs of the action that was heard by Perry J.
A letter dated 3 February 1994 was tendered (Exhibit D1) from the respondent's solicitors to solicitors acting for the appellant in which it was asserted that it was always the agreement between the parties that the Hindmarsh Island property would be sold within two months of the judgment given by Perry J. The appellant denied that such an agreement had been reached. He said there was an agreement to sell the property and if the parties could not agree upon the terms it would go to auction. He denied, however, that this was to occur within two months of the judgment. The appellant claimed that outstanding expenses related to the property would be settled from the proceeds of sale and that they would be calculated up to the time of settlement. He referred to the statement in the letter of 3 February 1994 (Exhibit D1):
“We note that our client [the respondent] owes your client [the appellant] some sum on account of Hindmarsh Island and we would be grateful if you could provide us details of the amount claimed by your client, so that we can sort out the distribution of the proceeds of Hindmarsh Island.
Our client will also have some claims for ETSA and Telecom accounts that she has paid in relation to that property and also some other small sums that she paid for items such as bee clearing.”
Each of the parties alleged that the other was responsible for the subsequent delay in achieving the sale of the Hindmarsh Island property. Considerable time was devoted in evidence to this topic.
There was also evidence about proceedings taken in connection with the payment of the respondent's costs of the action heard by Perry J that were taxed in the amount of $14 756.82. A warrant of sale was issued against the appellant's Norwood property on 29 July 1996 in connection with those costs and was served on the appellant in September 1996. The appellant applied to have the warrant stayed and an agreement was reached before Master Kelly on 13 November 1996 that the appellant would instruct the sheriff to withhold any further action on the warrant of sale until further notice. In addition, the amount due under the allocatur for costs was reduced to $12 756.82 and it was agreed that the Hindmarsh Island property would be put up for sale through Elders Real Estate, Goolwa. It was a term of the agreement that, unless sold beforehand, the property would be listed to be sold by auction and a contract of sale entered into no later than 20 January 1997 for settlement within four weeks of that date. It was a term that advertising for the sale by auction would commence no later than 21 December 1996. The agreement also included a term that the net proceeds of settlement, after deduction of relevant fees and selling expenses, would be divided equally between the parties, but after deduction of $12 756.82 owed to the respondent by the appellant together with interest as allowed on that amount pursuant to the Supreme Court Rules and other costs to be agreed. In addition, the parties agreed that $5 000 otherwise payable to the respondent would be held in a trust account maintained by Johnston Withers or invested on her behalf by that firm to abide the outcome of the appellant's claim that is now before this Court, or until a date falling 12 months from the date of the agreement, whichever first occurred.
Each party accused the other of using delaying tactics thereafter. The warrant for the sale of the Norwood property and other effects was reissued and the appellant again applied for the warrant to be stayed. Orders to that effect were made on 30 June 1997. On 22 July 1997 the appellant took legal action seeking the sale of the property. The respondent said this action was unnecessary as she was doing everything required of her to facilitate the sale. On 6 October 1997, orders were made by Judge Kelly concerning the sale of the property (Exhibit D5) including an order that the net proceeds of the sale be paid into court to abide the further order of the court. I am advised that $15 000 remains in court awaiting the outcome of this matter. It is unfortunate that the dispute which is the subject of this appeal was not resolved in those proceedings. In addition, a further application was made by the appellant to stay the warrant in connection with his Norwood property and it was further stayed until 27 February 1998. According to the evidence of the appellant, he needed the sale of the Hindmarsh Island property in order to pay the costs.
The respondent said the appellant caused further delays until her solicitors took action which resulted in an agreement in December 1997 and payment by the appellant on 17 December 1997 of her costs. The respondent asserted that she cooperated in every possible way in trying to secure an earlier sale of the property at Hindmarsh Island, but the appellant continually adopted delaying tactics. The appellant denied that he continually delayed and abused the processes of the court. He maintained he was trying to have the current claim offset against the amount he owed for costs.
There is no appeal against the dismissal of the counterclaim. It appears that the respondent did not give any evidence to support $300 of that counterclaim, but her evidence may have been sufficient to make out the remainder. In any event, this Court need not be concerned with the counterclaim.
The magistrate referred to the evidence directed towards showing that the appellant had “to some extent manipulated the situation to improperly cause the defendant [respondent] to incur expense.” He declined, however, to apportion blame as, in his view, it had little relevance to the action. Having read the evidence, I am left with a strong and clear view that the respondent gave credible evidence that should be preferred to that of the appellant and that it was the appellant who continually adopted delaying tactics in connection with the possible sale of Hindmarsh Island in order to frustrate attempts by the respondent to recover the costs of the action heard by Perry J. Nothing in the evidence given in this Court has caused me to change that view.
As to the question of occupancy, his Honour indicated it was necessary for him to make a finding in that regard for the relevant period after the relationship ceased. He clearly accepted the evidence of the respondent that she did not reside at the premises after the separation. He referred to the evidence of the appellant that he stayed at the premises from time to time and to the letter of 17 February 1995 (Exhibit D4) in which the appellant suggested that he continued to use the property as a beachhouse. On the basis of that evidence, his Honour found that the appellant was the sole occupant of the premises throughout the relevant period and that the appellant intended to exclude the respondent from occupancy.
No evidence was led to establish that the appellant was in occupation in the sense of residing at the property. The respondent said she presumed the appellant, who was a creature of habit, stayed there from December 1992 until Easter as he had done in other years, but she had no other information as to whether he resided at the premises or not. She stayed away because she did not want to risk the possibility of coming into contact with the appellant. She gave evidence that she wished to use the property as her home, but only if she could be guaranteed to be at peace and not under threat from the appellant.
She did, however, give evidence that she was excluded from the premises. She said that on a visit in April or May 1993 she was unable to enter the property because the locks had been changed. She confirmed that evidence during the course of cross-examination conducted by the appellant. In his questioning of the respondent, the appellant denied that he changed the locks except for one back door lock, so that he could get in. In his questioning he said he made a particular point of not changing the locks.

There was no evidence upon which a conclusion could be reached that the appellant resided in the premises. I stress the word “resided.” Both parties claimed that they did not live at the premises during 1993 and 1994 and neither was able to say from their own observations that the other was in residence during those two years. The changing of the locks was, however, a sufficient basis for finding that the appellant excluded the respondent from entering or occupying the premises.
During the appellant's submissions in this Court, it became apparent that, at the time of the trial, the appellant did not appreciate the legal significance of the issue of occupancy. He appreciated the issue was in dispute and of some significance. I was concerned, however, that the appellant had not presented all the evidence available to him on that issue. In addition, it was apparent that the respondent had not been asked to comment on documents that had a potential to reflect adversely upon her evidence that she did not reside at the premises until after the separation.
I was also concerned that the issue of rent had not been raised in the pleadings nor in the trial before the magistrate. The appellant was unrepresented. The topic of the liability for rent was not mentioned at any time and there was no attempt by the respondent to lead evidence of an appropriate rent. At the conclusion of the evidence, in a somewhat unusual procedure, his Honour did not invite submissions from the parties. He merely indicated he would adjourn to consider his reasons and would give those reasons in writing in order that the disappointed party could take the matter further if that party wished to do so. In my opinion, bearing in mind that the appellant was unrepresented and had no way of knowing the legal significance of occupation, in adopting that procedure and in proceeding to make a finding concerning rent, the magistrate denied the appellant procedural fairness.
It was in those circumstances I suggested that additional evidence was required. I gave leave accordingly to both parties. The appellant gave evidence and tendered a number of documents which he suggested demonstrated the respondent was in occupation from the separation until at least April 1993. In evidence before the magistrate the appellant suggested the respondent occupied the premises until 1995, but he now concedes he had reason to believe that she was not in residence from about March or April 1993. At about that time he visited the premises and certain items had been taken and her clothing removed. His claim before the magistrate that he was excluded until 1995 was contradicted by his evidence in this Court that he visited the premises over weekends in 1994 approximately every couple of months.
The respondent gave evidence and explained a number of documents. In handwritten letters to the appellant dated 19 October 1992 (Exhibit P5) and 29 October 1992 (Exhibit P7), the respondent clearly stated that Hindmarsh Island was her permanent address. Her solicitors wrote a letter dated 17 November 1992 (Exhibit P6) to the appellant's solicitor stating the respondent was “presently residing in the premises”. In her original defence to this action dated 8 March 1993 prepared by the respondent's solicitors who the respondent in evidence agreed acted on her instructions, the respondent opposed the plaintiff having keys to the property and specifically said that the property had been her principal place of residence since her separation from the appellant.
The respondent admitted the statements were not accurate. She acknowledged that the statement in the defence would be misleading to an uninformed court and that it was unwise of her to make that statement. She said that she was without a home and felt threatened by the appellant. I mention here that the appellant denied that he had been guilty of any domestic violence towards the respondent, but did not deny that she may have felt threatened as she had suggested. The respondent said in evidence in this Court that she feared the appellant would take possession of Hindmarsh Island, she needed a home and was trying to establish an interest in that property. To support her claim she paid the utilities expenses for a period of time. By the latter half of 1993 she had expected the property to be auctioned soon after judgment by Perry J, but this did not occur. In April 1994 the respondent redirected the utilities accounts to the appellant's Norwood address.
Having carefully considered the evidence of the respondent both before the magistrate and in this Court, I have no hesitation in accepting the respondent as a witness of truth.
The necessary implication from the magistrate's finding that the appellant was the sole occupant of the premises from the time of the separation in September 1992 until the end of 1994 is that his Honour accepted the evidence of the respondent concerning the changing of the locks. As mentioned previously, the respondent told the magistrate that she found the locks had been changed in the first half of 1993. In evidence in this Court she said she visited the premises in November 1993 to check on them in anticipation of the auction. She said it was on that occasion she found she was locked out. There were two front doors, the outer door being what can be described as a door to the porch. There was a dispute between the parties as to who had the key. I prefer the evidence of the respondent where it conflicts with the appellant in this and other respects. The respondent was without a key to the porch and she found that door, which was usually left unlocked, in a locked state. She could not, therefore, check whether the inner door was locked other than to see that it was shut. She has no way of knowing whether the lock had been changed on that inner front door. She found, however, that the lock had been changed on the back door and her key would not operate it.
The appellant said the change to the back door lock had occurred at a much later time. He said he needed a key for the lock on the back door so he took the lock to a locksmith in order to have a key cut. He subsequently found that the key would operate the lock from the outside, but not from the inside. In this context I note that on 22 April 1993 after the appellant said he had discovered some property missing from the premises, on his instructions his solicitor wrote to the respondent's solicitors complaining that keys had not been made available and stating that if keys were not made available the appellant would have no option but to engage the services of a locksmith to change all the locks (Exhibit P3).
I am satisfied that the appellant set about to exclude the respondent from being able to enter the premises. In a practical sense he succeeded in doing so by changing the lock on the back door and by securing the outer front door. It appears, however, that the respondent did not abandon her hopes immediately. After discovering the changed locks in about November 1993, she continued to pay the utilities until April 1994 when she then readdressed the utilities to the appellant.
As a practical result, the appellant enjoyed the unfettered opportunity of sole occupancy. The respondent was excluded. I am also satisfied that, during this period, the appellant deliberately delayed the sale of the property and frustrated the respondent's attempts to recover the costs owing in the action heard by Perry J.
Having found the appellant had sole occupancy, the magistrate found the appellant was liable to pay a fair rental for that period of sole occupancy. His Honour referred to the principle that joint tenants will be jointly liable for outgoings and if one tenant can justify expenditure incurred in respect of the property, then that person is entitled to be reimbursed proportionately by the other tenant. He expressed the view as a matter of law that if a tenant excludes the other from the premises in order to use the premises as a residence, the person in occupation is obliged to pay a fair rent with respect to that occupation. In this context, his Honour referred to the authorities of Dennis v McDonald, [1982], 1 All E R 590, and Luke v Luke, (1936 ) 36 SR(NSW) 310.
In Dennis v McDonald, the Court of Appeal held that persons who had purchased a property in joint names and which they held on trust for sale for themselves in tenants in common, were to be regarded as trustees for each other and as beneficiaries of the property of which they were tenants in common. The court held that the male party who had ousted the female party in that case was liable to pay compensation:
“The nature of the payment, in my judgment, is that some sort of compensation is to be paid by a trustee, for they are trustees for each other in the circumstances of this case, to a beneficiary (for they are both beneficiaries) for an exclusive enjoyment of the trust property, attributable to such an action, namely that of ouster, on the part of the paying party as is inconsistent with the discharge in due order of the trust. If one looks at it in that way it seems to me that the nature of the payment, and the amount of the payment, should be regulated by reference to the circumstance that the payer is housed in the property of which he is a trustee to the exclusion of the payee, who is equally a beneficiary, and that the purpose to which the payer puts the property has nothing to do with the case.” (pp592 and 593).
The court went on to consider how the compensation should be calculated, observing that it is sometimes called an “occupation rent” although it is strictly not such a rent. A procedure was available in respect of regulated tenancies under the Rent Act 1997 and the court concluded that the amount payable should be one half of the sum which represented a fair rent assessed under those particular provisions.
In Luke v Luke, Long-Innes CJ in Equity referred to a previous decision in which it had been held that a tenant in common in occupation of part of the common property who claimed an allowance for improvements affected to part of the common property, would only be granted that allowance on submitting to be charged with an occupation rent. It was said this was an application of the equitable maxim that he who seeks equity must do equity. The Chief Justice also said it was well settled that a tenant in common, who has occupied the property and excluded the co-tenant, is liable in a partition suit to be charged with an occupation rent.
The magistrate did not refer to the agreement of 24 May 1985 (Exhibit P2). That agreement, however, was reached in the context of the parties living together and sharing equal rights of occupation. In view of the findings, if the appellant was to succeed with his claim he would be obtaining a contribution to the running expenses of the property from which he excluded the respondent and to which the respondent, as a consequence, had no access during the particular period. In other words, the respondent was not able to enjoy the property, yet would be obliged to contribute half the running costs.
Whichever way the matter is approached, it is clear that the law seeks to ensure that the respondent is not unfairly prejudiced by reason of being excluded or ousted from the property. Either she should not be obliged to contribute any amount toward the expenses incurred during the relevant period, or the appellant should be required to pay half a reasonable rent which would then, in theory, be available to the respondent to pay for or contribute to her share of the expenses. In addition, consideration must be given to the effect of the appellant's deliberate conduct in delaying the sale of the property for nearly four years. The magistrate took a pragmatic approach to this problem and arrived at what he believed was the justice of the situation by dismissing both the claim and the counterclaim and directing that each party pay their own costs.
As to the specific grounds of appeal, the first principal proposition was that the agreement of 24 May was still in force and the magistrate erred in disregarding that agreement. As mentioned previously, there was no direct evidence of a variation of the agreement. The parties were simply not talking about the expenses. Similarly, although proposals were put in writing about occupation, no explicit agreement was reached in respect of any of those proposals.
The appellant having excluded the respondent from occupying the premises from late 1993, the fundamental premise of joint occupancy on which the agreement was reached no longer existed as a consequence of the actions of the appellant. In substance, the appellant repudiated the agreement of 24 May 1985. While the respondent did not specifically state that she accepted the repudiation, she did not object and did not attempt to exercise her right of occupation. She did, however, continue to pay the utilities until early 1994. In that time, she was taking all reasonable steps to facilitate the sale.
It may be doubtful whether the respondent's conduct amounted in law to an acceptance of the repudiation, but in my opinion the appellant cannot claim to enforce rights pursuant to an agreement which he repudiated to a material extent. In this context I refer to Halsbury's Laws of Australia, par110-9530. In addition, regardless of the status of the agreement of 24 May 1985, there are further reasons discussed shortly why the appellant's claim cannot succeed. Those reasons relate to the appellant's liability to pay occupation rent.
The second principal proposition in the grounds of appeal was that the magistrate erred in finding the appellant was the sole occupant of the premises during the relevant period. For the reasons given, in my opinion this ground fails.
It follows that the third complaint, which alleges that the magistrate erred in finding the appellant was required to pay a fair rental throughout the period, also fails. It may be that the magistrate erred in applying the occupation rent to a period earlier than the time at which the respondent was excluded from the premises by the changing of the locks. Ultimately, however, this error becomes of no significance.
As to the question of occupation rent, the authorities cited by the magistrate have been applied in this State in Scapinello v Scapinello [1968] SASR 316, Chatterton v Chatterton (1989) 52 SASR 337 at 341 and Marriott v Franklin (1993) 60 SASR 457 at 464. Halsbury's Laws of Australia state the principles in the following passages (par355-11620):
“Generally a co-owner in sole occupation is not liable at law or in equity to pay occupation rent to the non-occupying co-owners. However there are exceptions to this general rule:
(1)........ Occupation rent is payable by a co-owner who has wrongfully excluded other co-owners by force, violence or threats of violence.
(2)Occupation rent may be payable where one co-owner occupies and uses the property pursuant to an agreement with the other owner.
(3)........ An occupying owner who wishes to be compensated for improvements to the land will only succeed if he or she pays occupation rent. Similarly a co-owner who successfully resists a claim for occupation rent will not be entitled to an allowance for improvements.”
In view of the magistrate's finding with which I agree and, in particular, the action of the appellant in excluding the respondent by changing the locks, in my opinion from the end of 1993 the appellant was liable to pay what is called “occupation rent” to the respondent. In addition, if he wishes to be compensated for expenses incurred during that period, he can only succeed if he pays that rent. Whatever effect the appellant's conduct had on the agreement of 24 May 1985, the principles of equity prevail and require that if he seeks to recover contribution for the expenses during the period of sole occupancy the appellant is required to pay occupation rent.
The fourth principal complaint is that the magistrate erred in finding that an assessment of rent to be paid by the appellant would cancel out his claim for expenses. As mentioned previously, neither party led any evidence before the magistrate about the issue of rent. The topic was simply not mentioned.
In order to resolve this matter, I raised with the parties the question of agreeing what would be a minimum long term rent at the relevant time. In addition I sought information as to the nature of the premises. The parties agreed that the residence is a four bedroom, timber framed Hardiplank type residence situated on 15 acres. The residence is approximately 200 metres from the waterfront and there is approximately one half a kilometre of waterfront on the property. Depending on the tide, the property is accessible by boat. It is situated on the western end of Hindmarsh Island, approximately half way between the barrage and the mouth of the River Murray. It was sold in January 1998 for a price of $130 000. The parties have agreed that, for the relevant period, the minimum long term rent would be $125 per week. For ease of calculation I have assessed that as $500 per month.
On the finding that the appellant was in sole occupation for the four years from 1994 through to and including 1997, the minimum fair rental for the premises over that period would be $24 000, leaving the respondent's share as $12 000. That finding is based on a view that the appellant excluded the respondent from the end of 1993. Even if there was some doubt about that matter, and I do not have any such doubt, the appellant was clearly in sole occupation to the exclusion of the respondent from early 1995. In that context I refer to his letter to the respondent's solicitors dated 17 February 1995 (Exhibit D4). Based on sole occupation for a period of three years from early 1995 to the end of 1997, the minimum long term rent would have amounted to $18 000 leaving the respondent's share at $9 000.
In these circumstances, therefore, the appellant's claim cannot succeed. It might be said that the magistrate should have proceeded to assess the appellant's claim and then make a formal assessment of the occupation rent due by the appellant to the respondent, but his Honour took the practical approach and simply dismissed the claim and the counterclaim.
As to the procedural unfairness mentioned in terms of the procedures before the magistrate, both parties have had the opportunity to call additional evidence and make submissions. They indicated that they did not wish to call any further evidence.
In all the circumstances, therefore, it appears to me that the appropriate course is to dismiss the appeal. The appeal is dismissed.

[1999] SASC 166

16 April 1999