Calabrese v Mayer - [2024] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
CALABRESE v MAYER
[2024] SADC 27
Judgment of his Honour Auxiliary Judge Chivell
15 March 2024
LANDLORD AND TENANT - RENT - BREACH OF COVENANT TO PAY - ACTIONS TO RECOVER RENT OR DAMAGES - ACTION TO RECOVER RENT
Application for review of Magistrate’s decision. Applicant sued Respondent for $10,000.00 claiming outstanding rent of $10,000.00. Respondent argued already paid. Magistrate dismissed action on the basis that claim not proved.
Held: application for review dismissed – Magistrate’s decision correct.

CALABRESE v MAYER
[2024] SADC 27
Civil

Mr Calabrese owns some industrial land on The Grand Trunkway at Gilman. In February 2019 he leased the property to Mr Mayer. This case concerns a dispute between Mr Calabrese and Mr Mayer about whether Mr Mayer paid outstanding rent.
The application Mr Calabrese filed in the Magistrates Court (FDN 1) contains the following factual assertions:
·the rental fee was $10,000.00, to be paid in advance on or before 14 February 2019;
·Mr Mayer paid the rental fee;
·the term of the lease expired on 13 February 2021;
·Mr Mayer held over and continued to occupy the property until 18 December 2022;
·the rental fee for the holdover period was $10,000.00;
·Mr Mayer has failed to pay any rent in relation to the holdover period;
·the total rental fee of $10,000.00 remains outstanding.
The application was drawn by a solicitor. The solicitor signed the required Certification at the rear of the application that:
… this pleading is filed in accordance with the instructions of the party/parties for whom I act. There is a proper basis for each allegation of fact in the pleading and it complies with the Rules of Court.
I mention this for reasons which will become apparent later in these reasons when I discuss certain statements made by Mr Calabrese during the hearing.
Mr Mayer denied any outstanding rent was owed. In his defence, he admitted that he occupied the property during the relevant period. The defence filed, also drawn by a solicitor, asserted:
·he admits being in possession of the property from 14 February 2021 to December 2022;
·in December 2021 or January 2022 he paid Mr Calabrese a further sum of $10,000.00 in advance as rent from 14 February 2021 to 13 February 2023;
·the payment was made in cash, at Mr Calabrese’s insistence;
·the payment was made by Mr Ivan Rehorek on his behalf.
The same certification was made by Mr Mayer’s solicitor on the defence regarding the factual assertions therein.
The matter came on for trial before Magistrate Panagiotidis on 10 October 2022. Her Honour dismissed Mr Calabrese’s claim, making this finding on the evidence:[1]
In short, there is no detailed agreement between the parties. Both the respondent and Mr Rehorek said the rent was paid and no moneys are owed. In the absence of detailed records and given the plausible evidence of the respondent and his witness I am not satisfied on the balance of probabilities that the applicant is owed the money as he claims. The evidence was unsatisfactory in this matter. The claim is dismissed.
[1] [2023] SAMC 128, [5].
Mr Calabrese and Mr Mayer do not have a good relationship. They bickered and were at times abusive to each other in the courtroom. At one stage Mr Calabrese became agitated and threatening. He raised his voice and pointed aggressively at me when I was questioning him about some of the difficulties with his case.
The parties appear to have behaved in a similar fashion before the Magistrate. Her Honour observed:[2]
It is clear that the relationship between the applicant and the respondent is not a happy one. In these proceedings, irrelevant matters such as allegations of assault and lack of satisfaction with legal representation were covered in evidence. Those matters do not assist me in determining the issues here.
I make the same observations in this review.
[2] [2023] SAMC 128, [4].
The application for review was also prepared by Mr Calabrese’s solicitor. The application identified an error in the Magistrate’s ex tempore remarks. Her Honour did say that the claim was for $10,000.00 “for the period September 2019 onwards that was not paid”.[3]
[3] [2023] SAMC 128, [3].
I have already outlined that there is unanimity in the pleadings that the sum of $10,000.00 was paid in 2019. The applicant’s claim is for another $10,000.00 for the 2021-2023 lease period. For reasons which follow, nothing turns on this discrepancy.
An Agreement to Lease was tendered before the Magistrate (Exhibit A1). The agreement relates to the 2019-2021 lease. It is a very simple document. It states, in paragraph 2:
The rental for the term of the lease between 14 February 2019 and 13 February 2021 is $10,000.00 (inclusive of GST) to be paid in advance on or before 14 February 2019.
The words I have bracketed have been crossed out and the handwritten words “No GST is being paid” inserted. There are two signatures in the margin, one purportedly that of Mr Mayer and, less legibly, one of Mr Calabrese.
As mentioned, the pleadings are unanimous that the $10,000.00 mentioned therein was paid.
At the hearing of the review application on 9 February 2024, Mr Mayer produced another document purporting to be an Agreement to Lease for the period 14 February 2021 to 13 February 2023.[4] It is in identical terms to the earlier lease except for the dates. It has not been altered to delete the reference “inclusive of GST”. The signatures appear identical with those in the earlier agreement, except that Mr Calabrese’s signature is in the wrong position, on the line marked “Witness”. Mr Rehorek, who witnessed both documents, has signed beneath that signature, whereas in the earlier document the signatures are in the correct position. All of the signatures are complex. They would be difficult to forge, particularly Mr Calabrese’s signature.
[4] I have marked the document Exhibit Review R1.
The later document, relating to the 2021-2023 period, also contains the words:
The rental is … $10,000.00 … to be paid in advance on or before 14 February 2021.
Both Mr Mayer and Mr Rehorek, his friend, insist that the $10,000.00 mentioned in this agreement was paid. Mr Rehorek swore two affidavits (Exhibits R1 and R2), which were before the Magistrate, deposing that he handed a large plastic sandwich bag containing $10,000.00 to Mr Calabrese on about 17 January 2021 and that Mr Calabrese signed the Agreement to Lease after he had done so. Mr Rehorek was involved because Mr Mayer is blind and is a double amputee. Mr Rehorek said he often helps Mr Mayer in his business since Mr Mayer’s wife passed away (Exhibit R2, paragraph 3).
Mr Rehorek explained that the 2021-2023 lease was not presented to the Magistrate at the trial because it was thought that Mr Mayer’s carer had disposed of it in error (Exhibit R2, paragraph 10).
Mr Mayer told me that he did not produce the later agreement to the Magistrate because he had left it at home. He said:
No, I've had it all the time I just didn't have it with me. (T7)
When I asked Mr Calabrese whether he agreed that the 2021 lease was drawn up he said:
Yes, he gave it to me, 'sign in here' and I said he got to put it down is no GST and I received the $10,000 with that. But the day I signed that, he was already behind with the rent because he stopped to pay on the September. (T5)
Mr Calabrese was clearly confused between the 2019-2021 agreement and the 2021-2023 agreement, but he insisted he was only paid $10,000.00 once (T6). Neither party had a receipt or other documentation to corroborate or contradict this assertion. What Mr Calabrese seemed to be asserting was that Mr Mayer was in arrears at some time prior to 2019, from about “September”, but he was unable to say how much was owing.
Mr Calabrese then said that the rent from 2019 to 2021 was not $10,000.00 but $250.00 per month (T9), and that Mr Mayer was in arrears as at February 2021. This is clearly contrary to his pleaded case. When I referred him to the terms of the 2021 agreement, Mr Calabrese began to suggest that it was a forgery (T12). He seemed preoccupied by the fact that the second agreement did not have the reference to GST removed. Why Mr Mayer should be concerned about whether Mr Calabrese was paying GST on his rental income to the extent that he would forge a lease document is not apparent to me.
At this stage, Mr Calabrese became loud and aggressive towards me in the courtroom. I offered him the opportunity to speak with a GDLP student who had accompanied him to court but he refused. He continued to argue without answering specific questions about his case. He called Mr Mayer a “crook” (T15).
Taking all these matters into account, I have no confidence that Mr Calabrese is telling the truth about any of these factual matters. I am not sure that Mr Calabrese knows where the truth lies. There are now two Agreements to Lease before the court, both obviously signed by Mr Calabrese and Mr Mayer, and witnessed by Mr Rehorek, which require payment of $10,000.00 for rent over a two-year period, to be paid before the commencement of each period. Mr Mayer gave evidence before the Magistrate that both sums were paid and Mr Rehorek swore two affidavits to the same effect.
In all the circumstances, no reasonable tribunal could find Mr Calabrese’s claim proved on the balance of probabilities.
The Magistrate’s decision to dismiss the claim was correct.
The application for review is dismissed. I make no order for costs of the review.