Bettcher v Murdock & Lines - [2007] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Appeal Against a Master's Decision)
BETTCHER v MURDOCK & LINES
[2007] SADC 100
Judgment of His Honour Judge David Smith
25 September 2007
LANDLORD AND TENANT
Application by landlord plaintiff for possession of a commercial property pursuant to Part XVII of Real Property Act and Rule 204 of District Court Rules 2006 - tenant defendants in breach of lease but remaining in possession - discussion as to the kind of tenancy which resulted - question of kind of tenancy is determined by deciding the intention of the parties by reference to the facts viewed objectively.
Held: the tenant defendants occupied the premises pursuant to a series of tenancies for fixed terms each of a month's duration - notice not necessary - tenants being in default were tenants at sufferance - and were liable to be ejected without notice even though they remained in possession for sometime without dissent of plaintiff landlord - landlord plaintiff entitled to immediate possession - application granted - order that tenant defendants give up possession.
Real Property Act 1886 Part 17; District Court Rules 2006 Rule 204; Statutes Amendment (Attorney-General’s Portfolio) Act 2002 No. 33 s3; Retail & Commercial Leases Act 1995 s20B(3)(b), referred to.
Andrew Knox Holdings Pty Ltd v ANZ Banking Group SASC 5429 (del 17 January 1996); Smith v Hughes (1871) LR 6QB 597; Goldsbrough Mort & Co. Ltd v Quinn (1910) 10 CLR 674, considered.

BETTCHER v MURDOCK & LINES
[2007] SADC 100
Introduction

The plaintiff has owned 138 Grange Road, Flinders Park for many years. She leased it some time ago to Emacord Autos Pty. Ltd (“Emacord”), who operated a second hand car dealership there. In 2005 Emacord was experiencing financial difficulties – on 4^th November 2005 a Receiver & Manager was appointed. Emacord was behind in its rent. In December 2005, no doubt in an effort to avoid sustaining any further losses, the plaintiff decided to lease the property to the defendants. Both defendants were closely associated with Emacord. The second defendant Lines was the sole director and shareholder and the first defendant Murdock was the General Manager of the company. Further, both had guaranteed the due performance of the lease by Emacord.
So, pursuant to the terms of a written Agreement dated 16^th December 2005 the defendants became the plaintiff’s tenants. Emacord surrendered possession to them on 22^nd December 2005.
The agreement contemplated the entry by the parties into a formal lease in registrable form, but that was never done. The defendants immediately breached the agreement by not making the first payment. That payment included the arrears of rent owing by Emacord. The second defendant’s cheque was not only less than the agreed sum, but it “bounced”.
That inauspicious beginning set the tone of the ensuing occupancy.
The defendants have remained in possession of the property since December 2005 despite their own delays and defaults and in the face of notices to quit. They contend that their occupancy is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bettcher v Murdock & Lines and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] SADC 100
Decision Date: 25 September 2007

CaseChat Overview and Summary

In Bettcher v Murdock & Lines, the plaintiff sought an order for possession of a commercial property in Flinders Park, South Australia, under Part XVII of the Real Property Act 1886 and Rule 204 of the District Court Rules 2006. The defendants, who had been in possession of the property since December 2005, argued that they were entitled to formal notices to remedy default and quit before being obliged to surrender possession. The court had to determine whether the plaintiff was entitled to possession of the property.

The court held that the defendants were occupying the property pursuant to a series of tenancies for fixed terms each of a month's duration. The court determined that a notice was not necessary to terminate such a tenancy unless it be agreed that it be given. The court found that the tenancy agreement of 16 December 2005 was properly terminated by the notice of 8 May 2006. Following the termination of the said Agreement, there were a series of tenancies for fixed terms, each of one month’s duration. The court concluded that the plaintiff had an immediate entitlement to possession upon default by the defendants in making the September 2006 payment. The plaintiff chose to give notice and, more than that, permitted occupancy throughout the negotiations for a new tenancy. Notwithstanding that lack of dissent, there was no change in the agreement as to the tenancy. It remained a tenancy for a series of fixed terms, each of one month’s duration.

The court held that the defendants were "over holding tenants" of a series of tenancies each for a fixed term of a month. The plaintiff was entitled to immediate possession. The court ordered the defendants to give up possession to the plaintiff within 21 days of the service of a sealed copy of this Order upon them. The defendants were also ordered to pay the plaintiff’s costs of this application for possession to be agreed or taxed. The parties may apply to the Master of this Court for further orders and directions.

Orders