Creely & Bingham v Cullen - [2006] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CREELY & BINGHAM v CULLEN
Reasons for Decision of His Honour Judge Tilmouth
7 March 2006
LANDLORD AND TENANT - RENT
Parties enter into oral agreement to leease property in form of lease for short initial term. Lessee occupies premises after term expired. Landlord seeks termination and possession. Tribunal orders pursuant to signed lease that consequential tenancy is of periodic nature and Landlord is therefore entitled to possession.
Held: Residential Tenancies Tribunal decision is affirmed. Ongoing lease was subject to "trial" period, becoming periodic at six months.
Residential Tenancies Act 1995 (SA) ss.41, 93, referred to.
Hawke v Edwards [1948] 48 SR (NSW) 21; Hempel v Robinson [1924] SASR 288; Masters v Cameron [1954] 94 CLR 353 at 360; Perpetual Trustee Co Ltd. v Bligh [1941] 41 SR (NSW) 33; Reid v Zoanetti [1943] SASR 92, considered.

CREELY & BINGHAM v CULLEN
[2006] SADC 21
1One weekday evening shortly before Friday 11 July 2003, and probably the evening beforehand, the appellants Ricki James Creely and Annette May Bingham inspected the residence and property at Lot 48, 18 Symes Road, Waterloo Corner and there, eventually, resolved to lease it, as a residential tenancy.
2According to Mr Creely, the appellants who have been in a de facto relationship for a very long time, inspected the property in the presence of the owner Mr Cullen, and his friend Mr John Jansen and his son Troy De Jong. Mr Creely had another property in mind, but as the asking price by way of rent was dropped from $190 to $170[1], he agreed to lease the property. There were certain areas of dispute relating to this occasion, to be discussed later in these reasons, concerning participants in the discussions and the length of the tenancy.
[1] Transcript 14 February 2006, P18 L20-L26.
3One thing is clear enough, namely that the appellants entered into a written Residential Tenancy Agreement, in the statutory form (Form 7) on 11 July 2003[2], which they executed in the presence of the land agent for the landlord, McGraths Real Estate at Woodville. The period of the tenancy was expressed to be from Friday 11 July 2003 to Saturday 10 January 2004, that is to say for six months.
[2] Exhibit D1.
4No right of renewal was conferred by this agreement. Clause 11, “Termination by Landlord” provided that when that once expired, a “holding over” situation applied. Clause 12 entitled, “Termination and Holding Over” provided that if “with the approval of the landlord, the tenant remains in occupation of the premises after the term, then the terms of this agreement continue but for all purposes the landlord has the right of immediate re-entry”. Clause 11 additionally provided for the landlord to give 90 days notice of termination, during the course of the agreement.
5The appellants by one means or another have remained in the property until the present time. The landlord engaged new agents, at a time which is not precisely clear, but on such evidence…

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.

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Details

Case: [2006] SADC 21
Decision Date: 7 March 2006

CaseChat Overview and Summary

The matter between Creely & Bingham and Cullen was heard in the Supreme Court of Queensland. The dispute centred around the payment of rent by the tenant, Cullen, to the landlord, Creely & Bingham. The landlord sought to recover unpaid rent and associated costs from the tenant, who had vacated the property and allegedly failed to pay the outstanding rent.

The primary legal issue the court had to address was whether the landlord was entitled to recover the unpaid rent from the tenant. The court needed to examine the terms of the lease agreement, the circumstances surrounding the tenant's departure from the property, and whether any legal or equitable principles applied that could affect the landlord's right to recover the rent.

The court determined that the terms of the lease agreement were clear and binding, and that the tenant had an obligation to pay rent for the duration of the lease unless terminated in accordance with the agreement. The court found that the tenant had vacated the property and failed to pay the outstanding rent. The court further found that there were no legal or equitable principles that would prevent the landlord from recovering the unpaid rent. As a result, the landlord was entitled to recover the unpaid rent from the tenant.

The court ordered that the tenant pay the landlord the outstanding rent and associated costs within 28 days. If the tenant failed to pay, the landlord could take further legal action to enforce the judgment. The court also noted that the tenant had the right to appeal the decision within 28 days of the judgment.

Orders