Brenchley Gardens Pty Ltd v Seidner
[2000] VSC 68
•25 February 2000
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
No. 6828 of 1999
| BRENCHLEY GARDENS PTY. LTD. | Appellant |
| v | |
| GEORGE SEIDNER | Respondent |
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judge: | HEDIGAN, J. | |
where held: | Melbourne | |
date of hearing: | 24 February 2000 | |
date of judgment: | 25 February 2000 | |
case may be cited as: | As Above | |
medium neutral citation: | [2000] VSC 68 | |
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Appeal – Magistrates' Court Act 1989 s.109 – Dispute over rent on domestic premises allegedly unpaid – Magistrate forming view that evidence was unreliable and insufficient to establish that any rent was due and unpaid – Whether decision was open to the magistrate.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr D. Colman | Harding |
| For the Respondent | Mr G. Rice | Lewenberg & Lewenberg |
HIS HONOUR:
This is an appeal pursuant to the Magistrates' Court Act 1989, against the decision of the Magistrates' Court at Melbourne on 13 August 1999, whereby a claim was made by the appellant, Brenchley Gardens Pty Ltd, for arrears of rent claimed to be due pursuant to the terms of a lease entered into on 24 September 1994. Monthly payments to commence on 1 October 1994 was rejected.
This claim was strongly denied, and to say the least, was fought out over three days with vigour and vigour bordering on ferocity. It concluded on 22 June 1999. There was a full transcript subsequently supplied. The Magistrate reserved his decision which he delivered on 13 August 1999.
Having dismissed the claim, he indicated he would award costs to the victorious defendant. But the extract of the court record does not record this. Apparently this was because, as I was told by both counsel, the notice of intention to appeal was so promptly signalled that the parties did not agree on the level of applicable costs.
This presumably led to the omission of the costs order that had been intended, but not fulfilled. It is not in doubt, however, that it was the intention of the Magistrates' Court to award the costs of the proceeding to the defendant respondent.
The dispute concerned the rent due by the defendant, Seidner, under the lease of the house of the plaintiff, the controlling interest being that of Mr Peter Shellard, in Caulfield.
Mr G. Seidner and Mr Shellard had been friends and business partners, this leading, apparently, to the letting. As is not uncommon in life and the law when such friends fall out, more than commonplace heat and animosity was engendered, leading to this regrettable proceeding.
The case is remarkable in one respect only, namely that the Magistrate formed the view that the evidence of both Shellard and Seidner was absolutely unacceptable, and that he could not rely on their evidence to enable him to determine whether the tenant had paid or not paid the whole of the rental due.
He also took into account the failure of both parties to produce written records of their lease arrangements and dealings, and in the case of the plaintiff, its failure to call accounting evidence which might have reasonably thrown light on what sums had been paid as rental due.
It is not necessary for me to condescend to the detail of the evidence of the ongoing landlord and tenant relationship, and the payments. Essentially, Mr Shellard claimed that a large sum of unpaid rent was owed, as appears from the Magistrates' findings to which I will make some reference.
The evidence called fell a long way short of establishing the claim. The defendant was not much better, but perhaps a little so as he was able to present a credible case, although it may be doubted that the Magistrate specifically found it, that the combination of the amounts proved to be paid, plus bond money, more than satisfied the total rental obligation between 1 October 1994 and 30 March of '97.
Notwithstanding the unremitting collision of evidence between the former friends and partners, much was not in dispute. That is, the description of the premises, the date of the lease; the date rent was due to start: the date of vacation; and the calendar monthly rental of $1,700 in advance.
I note that Mrs Seidner gave evidence that all rent had been paid, and the former wife of Mr Shellard gave evidence of him pocketing cash rent paid to him. Neither of these witnesses appear to have been regarded by the Magistrate as being sufficiently independent and unbiased to make their evidence wholly acceptable. It was, in any event, peripheral to the main issue.
The Magistrates' reasons are of the most importance, and I will explain some of them. Essentially, however, he was not satisfied by the evidence that the defendant tenant had not paid the rent due. This was partly because the evidence as a whole did not enable him to decide how much rent had been paid, and received. That is, it might have been more or less than what was due. Thus he concluded the plaintiff had not discharged the burden of proof and failed to establish the rent was unpaid.
The Magistrates' reasons were quite detailed in dealing with the evidence, but perhaps less so in dealing with legal submissions, and even less so in making specific findings of fact about core issues. This was, as I apprehend, partly due to the low view he formed of the parties' credibility, and partly because he preferred to overview the evidence as the combative and non-responsive style of both main witnesses hardly admitted of specifics on critical issues.
Notwithstanding this, I do not have much doubt that the Magistrate formed a positive view about the effect of the evidence. Paradoxically enough, that view was negative, namely, that he was not satisfied that the plaintiff had established there was rent due and unpaid. This in itself was partly due to the failure of the parties, in particular the plaintiff on whom the burden of proof lay, to produce written records of payments and receipts, and also due to the plaintiff's conscious and apparently deliberate mixing of payments from different sources into one account.
The Magistrate also had regard to the failure to call, as I have already indicated, an accounting witness and the general inability or disinclination of both parties to come up with convincing evidence to support their opposing contentions.
When the case concluded, the losing plaintiff was quick to appeal. There is but a single question of law formulated by the Master on 13th of the 9th 1999, in the following form, as the question, "Having regard to the concession made by the respondent (see transcript 86 to 87) that rent of $1,700 was due and owing, did the Magistrate err in not giving the appellant judgment in such sum?"
It should be said immediately that Mr Colman, who appeared for the appellant before me, and in the Magistrates' Court, accepted that the phrase "concession" assumed that which it sought to establish. Namely, that in the context, the defendant had admitted or agreed in evidence that he had failed to meet one monthly rental due.
This, the critical point for the appeal, was hotly contested here, and there, and it will be necessary that I address it. Notwithstanding the apparently discrete point raised by the question of law (and it must be recalled it is formulated by the Master, having heard the submissions of the appellant only and without input from the respondent) it cannot be viewed in isolation from the reasons read as a whole. In my opinion, those reasons make it clear that the Magistrate, whilst not accepting the evidence of either plaintiff or defendant on the critical matters, nevertheless considered all of the evidence, although naturally enough, he did not reproduce it all in his reasons, nor even in detail.
This is the way of Magistrates and is in no respect unusual. The reasons for decisions are frequently laconic, although it must be stated that in this case, the Magistrate's assembling of the evidence was very thorough.
But, as is often the case, even where there is a disinclination to set out specific findings of fact, there is no difficulty in concluding that the Magistrate did form views about the parts of the evidence that underpinned this appeal.
I address first the specific evidence which is relied on, reproduced from the recorded transcript in paragraph 14 of the affidavit of Mr Shellard. This was concerned with whether or not the defendant had paid the February 1997 rent, $1,700.
I overlook the robust exchanges between counsel and the witness, primarily due to the disinclination of the witness, Seidner, to answer the questions as asked, and his inclination to give counsel as good as he got. But I do refer to the critical answer to one question in the flight of questions concerned with the motor car issue, it being apparently suggested that Seidner did not pay that month's rent, because Shellard had stolen Seidner's wife's car. The question was, "Do you owe the February rent?" "No, I do not." "Right. And the answer why you don't is because Mr Shellard has your car et cetera?" "That is correct."
Essentially, this question and answer founds this appeal, it being contended here, and before the Magistrate, that this constitutes an admission that Seidner did owe $1,700 for unpaid rent, with a possible offset arising from another tort.
The difficulty is that a reading of the whole of the surrounding questions and answers does not support the claim, and indeed, I think, denies the inference claimed. For example, he said he did not concede anything. He also said he did not owe the February rent. This passage of questions and answers led apparently to a submission being made to the Magistrate that this amounted to an admission it being put by counsel for the plaintiff that the defendant had thereby conceded that he had not paid the February rent, and was thereby limited to an offset or a set off of some kind concerning the car theft.
Thus it was put to me that the Magistrate could not have failed to have been satisfied that the whole rent had not been paid, and must have found that one payment of rent for one month, was owing. With some hyperbole, counsel for the plaintiff claimed to the Magistrate that the parties were in furious agreement that $1,700 rent was owing, so that the judgment for that sum should have been entered.
The Magistrate did not specifically address this argument. He did deal with some of counsel's arguments, but not specifically this one. This is not surprising as a reading of the transcript as a whole would hardly lead anyone to conclude from a selected and virtually single answer to but one question, that Seidner was agreeing that he had not paid a month's rent due to Shellard. The whole of the evidence was strongly to the contrary of that, namely he had in fact paid more than was due when the retained bond money was taken into account.
It also seems to be likely that it was open to the Magistrate also to conclude that this was the fact. But it seems to me to be beyond argument, taking the evidence as a whole, including his view that neither of the main protagonists were reliable or worthy of belief on the critical issues and that the plaintiff had not adduced evidence, that it was open to the court to conclude that it was not established there was rent unpaid, and the court so decided.
This view was not only based on the poor quality of the actual evidence, but upon first, the failure of the plaintiff to call a relevant accountant, whose evidence was apparently expected to throw light upon the plaintiff's case, if it were true.
Secondly, the failure of the plaintiff, who had the burden of proof, to produce documents.
And, three, the failure of the plaintiff's accounts to establish any pattern of receipt of rent, even when payment was not in doubt.
Mr Colman's second line argument was that the Magistrate had failed to articulate Mr Colman's submission, and deal with it. I think this is true enough as a separate point, but it was related to but one of a myriad of facts in which, in respect of which submissions were advanced to the Magistrate by both parties.
I have already stated that, in my opinion, the point was dealt with by the Magistrate's rejection of Shellard's evidence, and arguably, by his rejection of Seidner's, probably including that part of Seidner's evidence which was sought to be relied on by the plaintiff, in the passage to which I have referred.
The appellant's argument has no merit if the court did not view the evidence as an admission that he had not paid the February rent. The court's reasons read as a whole, put it beyond doubt that the court was not persuaded that any rent was unpaid.
An argument was put to me that there was error in failing to isolate this submission, and to deal with it discretely. Mr Colman relied upon some parts of a decision of the New South Wales Court of Appeal in Mifsud v. Campbell 1991 21 N.S.W.L.R. 725, in particular from the reasons of the principal judgment of Samuel JA to the effect that the proper discharge of the judicial function involves consideration of the relevant evidence, but not all of it, and in making findings.
Mr Colman in effect submitted that this was not done and should have been done, because if it had been considered and accepted, it should have proved decisive. However, in my view, it was dealt compendiously with by the Magistrate, not specifically.
I note there was also stated in Mifsud at 728:
"It is plainly unnecessary for a judge to refer to all the evidence there in the proceedings, or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings may depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, wherever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her."
The way in which busy Magistrates go about their tasks is more varied than prevails in the superior courts. As I have said, they are often laconic in their reasons. This Magistrate, however, reserved his decision for some time. He chose his own method of delivering reasons. This was probably driven by the view that he took of the witnesses and what appeared to be unexplained suppression of evidence and perhaps documents.
Notwithstanding Mr Colman's arguments, which were attractively presented, in my view the Magistrate's conclusions were not only open to him, but sound. If anything, the only doubt might be that on the evidence of the amounts received, including bond moneys and having regard to the term of the lease, he might have concluded positively that the landlord had received all of the rent.
Accordingly, the appeal must be dismissed with costs.
As to the question of the Magistrates' Court's costs, the proposed order, having been articulated by the Magistrate in favour of the defendant respondent; I propose to order that the appellant pay the costs of the Magistrate Court hearing, as well as the costs of the appeal. Such costs to be taxed or agreed.
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