DAVIES v Tubbs - [2000] WADC 297

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DAVIES & ANOR -v- TUBBS [2000] WADC 297

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 20 OCTOBER 2000

DELIVERED : 21 NOVEMBER 2000

FILE NO/S: CIV 937 of 2000

BETWEEN: ANTHONY GEORGE DAVIES
DEBORAH ANN DAVIES
Plaintiffs
AND
EDWARD FARLEY TUBBS
Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for summary judgment by defendant - Turns on own facts

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiffs: Mr S England
Defendant: Mr A Rumsley

Solicitors:

Plaintiffs: Lawton Gillon
Defendant: Nil

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: For the purposes of the defendant’s application the relevant relief sought by the plaintiffs is for vacant possession and damages.
The plaintiffs plead that they are the proprietors of real estate of which the defendant was the lessee. The term of the lease expired on 31 December 1999. The defendant held an option for a further term. That option was required to be exercised by notice in writing no later than three months prior to 31 December 1999. The defendant failed to exercise the option. The defendant continued to occupy the premises as a monthly tenant. By letter dated 3 April 2000 the defendant was given notice to quit. The defendant remains in possession. By the refusal of the defendant to give vacant possession the plaintiffs have suffered unspecified loss. It is common ground that the defendant is in occupation of the premises.
The plaintiffs success in so far as they seek vacant possession would depend upon a finding that the defendant’s occupation is not lawful.
The defendant asserts that he did exercise the option.
The defendant’s application is for summary judgment. The onus is on the defendant to establish that on the evidence there is no serious issue to be determined in the action. I have previously dismissed a similar application by the plaintiffs. I was not satisfied that the defendant had not exercised the option and it was my opinion that any relevant determination be made after trial.
In support of the application the defendant has filed three affidavits and in opposition, the plaintiffs have filed an affidavit of their solicitor. In the main those affidavits put before the court written communications from the plaintiffs to the defendant that was generated subsequent to the commencement of the action.
The affidavit filed by the plaintiffs introduces three items of such correspondence. As a general observation each item of correspondence contains a recitation that the plaintiffs would contend for the analysis which I have presented above and states that any communications or dealings between the parties countenanced by the correspondence is expressed to be without prejudice to the plaintiffs pleaded case and that the plaintiffs continue to deny the defendant’s essential allegation.
The first letter is dated 7 July 2000. It acknowledges receipt of cheques which subject to the reservation to which I have referred were accepted as rent for the months of April, May and June 2000 and for the month of July 2000.
That letter refers to the prospect that the defendant had validly exercised the option, which is expressly denied, and that:
" … (i)n that event you would be obliged to pay rent to our clients during the renewed term of the lease."
Further that:
" … (u)nder your lease, if it had not expired, you would be required to pay 3 months rent in advance on 1 July 2000. Please forward rent for the months of August and September which will be accepted by our clients on the same without prejudice basis."
That request was converted into a demand in broadly similar terms by the second letter dated 8 August 2000. It is evident that in response to the letter of 7 July 2000 the defendant had contended that he was entitled to a two month rent free period under the terms of the lease for the months of August and September 2000. This letter denies that entitlement and states:
"In the event that you so not pay that outstanding rent by 15 August 2000, and even if you are correct in your claim that your tenancy has not expired and been terminated, a claim which is denied by our clients, you will be in default of the lease for failure to pay rent and our clients will, on a strictly without prejudice basis to their current position, take immediate action to terminate the alleged lease."
The defendant’s first affidavit is sworn 30 August 2000 and it introduces a copy of the plaintiffs notice of default dated 28 August 2000 the recitals to which disclose the following detail:
(a)The lease.
(b)The expiration of the term of the lease and the defendant holding over on a monthly basis.
(c)The termination of that tenancy by notice dated 3 April 2000 effective 2 May 2000.
(d)The defendant’s denial of the expiration of the term of the lease and his refusal to give vacant possession.
(e)The acceptance of rent by the plaintiffs after 2 May 2000, "…on a strictly without prejudice basis to the Lessor’s (sic) position that the Lease has expired and the Lessee’s monthly tenancy has been terminated.'
(f)'Notwithstanding the (defendants) assertion that the lease had not expired the (defendant) has refused to pay rent for the months of August 2000 and September 2000 and would be in breach of the lease if the lease had not expired.'
(g)Without prejudice to the Lessors’ claim that the lease had expired and the monthly tenancy terminated the notice relates the default “on the basis that if the Lessee’s tenancy has not been terminated, which is denied, rent is payable by the Lessee for the Months of August 2000 and September 2000."
Those recitals appear to confuse the prospect of the existence of a lease with the prospects of the existence of a monthly tenancy. Any monthly tenancy commenced on 1 January 2000. Even if that tenancy was in any way affected by the provision of notice of termination of 3 April 2000, there is no basis to establish any entitlement to demand payment for the month of September before it was due. On any analysis the only basis for the demand for September rent is the lease. That much is confirmed in the operative part of the notice which requires the defendant to make payment to the plaintiffs for what is described as payment in advance for the months of August and September. The claim that the demand made for the August rent is for payment in advance in the circumstances would appear to be an error.
It is significant that the default specified in the notice is the failure to pay the rent due and payable for the months of August and September 2000. In the context of the facts presently before the court any entitlement to so demand could only derive from an extension of the term of the lease and not otherwise.
At the very least the notice is inconsistent with the plaintiffs allegation that the defendant’s occupation is on the basis of a monthly tenancy. It is consistent with an extension of the term of the lease. It is inconsistent with unlawful occupation of the premises by the defendant. It is conceivable that the plaintiffs may have had no entitlement to issue such a notice, however in the context in which it was issued, it is appropriate to consider that the plaintiff was aware of its import.
The defendant's second affidavit sworn 27 September 2000 introduces the plaintiffs notice of termination dated 14 September 2000. That notice contains the same recitals that I have just canvassed and in addition, the failure of the defendant to remedy default specified in the prior notice.
As much as the notice of default was not expressed to be other than an actual demand, the notice of termination seeks possession. The notice of termination is expressed to refer to the termination of the lease. It was the defendant’s case that regardless of the default that gave rise to the notices, the resort to that mechanism could only be explained by the existence of a lease. In the context, the existence of a lease could only be as a consequence of the plaintiffs having accorded the further term.
The third letter introduced by the plaintiffs solicitors affidavit is dated 19 October 2000. That letter restates the plaintiffs position in relation to the expiration of the lease and the termination of the monthly tenancy with effect from 2 May 2000. Alternatively it states that the:
" … lease was in any event terminated effective 14 September 2000 on the basis that you failed to remedy defaults outlined in a Default Notice dated 25 August 2000. As you are aware, the Default Notice and Notice of Termination were issued on a strictly without prejudice basis to our clients’ existing claim that your Lease had expired and your monthly tenancy terminated from 2 May 2000."
It goes on to accept the defendant’s
" … cheque in the sum of $4250.00 being payment for three months’ rent for the months of October, November and December 2000 (less $300.00) on a strictly without prejudice basis to (the plaintiffs) position that (the defendant’s) lease has expired and your monthly tenancy has been terminated, or alternatively if that is not the case and (sic) which is denied, that your lease has been terminated effective 14 September 2000".
The deponent gives evidence that due to an oversight that letter was not sent to the defendant until 19 October 2000. The significance of that evidence is that the defendant in his third affidavit gives evidence that the rent for the months of October, November and December 2000 less the $300 was banked on 9 October 2000. As I understand the plaintiffs evidence it would appear that the plaintiffs recognise the significance of the banking of that cheque and would wish that they had first expressed that they had qualified their acceptance of it.
The confusing aspect of the plaintiffs case is that although they have consistently sought to preserve whatever rights they may have, they have chosen to maintain a relationship with the defendant which is consistent with that established between them by the lease.
In my opinion the issue raised by the application is not whether the plaintiffs have effectively preserved a basis for the court to award vacant possession, it is a matter of whether they are entitled to maintain their entitlement to seek relief. It is my opinion that they are at risk of being deprived of that entitlement either because their post-writ communications demonstrate that they have effectively compromised their claim to vacant possession or because the issue of the defendant’s exercise of the option has become moot. It is a matter of considering whether I was satisfied that even if the allegations of material fact pleaded, on the evidence the court would not award vacant possession.
On the whole of the evidence the defendant has remained in possession and has but for August and September 2000 paid rent. The plaintiffs have demanded what they describe as rent and have accepted such payments, which they describe as rent. But for a discrete deduction by October 2000 the defendant has presently paid rent for three months in advance. The plaintiffs have sought to rely upon the lease to demand rental for the months of August and September 2000. They have accepted the defendant’s cheque for the months of October, November and December 2000 and demanded the balance due for that period. The acceptance of the rental for the last period was not qualified at all.
In my opinion the plaintiffs had the option of proceeding with the action for recovery of possession. In following that course they would be entitled to mesne profits for the period of the defendant’s ongoing possession. Instead of following that course they have continued to receive payment of what they describe in demands and upon receipt as rent. Such payment is accepted as rent. The demands are for rent under the lease. Although all of the correspondence is couched in terms of reservations as to the plaintiffs position, they are intended to have effect in their terms. Evidently but for the rental for the months of August and September they have had effect in their terms. The acceptance of the October, November and December rent was unqualified. In relation to each receipt the plaintiffs have received the benefit of rent.
At the very least the acceptance of the rent for the last period would have the effect of precluding the plaintiffs from relying upon the action. In any event on the undisputed facts it is my opinion that the court could not conclude that the defendant’s continuing occupation is unlawful.
It follows that there is no serious issue to be tried on the case put by the plaintiffs.