Director of Housing v Apsitis

[1992] TASSC 116

Serial No B38/1992
List “B”

CITATION:   Director of Housing v Apsitis [1992] TASSC 116; B38/1992

PARTIES:  DIRECTOR OF HOUSING

v

APSITIS, Modrins Martins

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NO:  348/1989

DELIVERED:  9 September 1992

HEARING DATES:  1, 2 September 1992

JUDGMENT OF:  Zeeman J

CATCHWORDS:

Landlord and tenant — Termination of the tenancy — Sufficency of notice to quit — Two dates for delivery up of possession specified.

Crate v Miller [1947] KB 946 at 948, followed.

P Phipps & Co v Rogers [1925] 1 KB 14 at 27, followed.

REPRESENTATION:

Counsel:

Plaintiff:  I L Hallett

Defendant:  In person

Solicitors:

Plaintiff:  Director of Public Prosecutions

Defendant:  Nil

Judgment ID Number:                 B38/1992

Number of paragraphs:              12

Serial No B38/1992

List "B"

File No 348/1989

DIRECTOR OF HOUSING v MODRINS MARTINS APSITIS

REASONS FOR JUDGMENT  ZEEMAN J

9 September 1992

1. The plaintiff claims possession of residential premises situate at 4 Beenak Street, Chigwell ("the premises") from the defendant. The plaintiff claims that those premises were let by him to the defendant as tenant from week to week by a written tenancy agreement dated 12 March 1968 and that the tenancy was determined by a notice to quit served on the defendant on 3 March 1989. As to when the defendant was required to deliver up possession of the premises in the terms of that notice is not free from doubt, but in any event it was a date prior to the filing of the writ.

1. The defendant has remained in possession of the premises. By way of defence he asserts that he did not ever execute the tenancy agreement, claiming that his purported signature thereof is a forgery. In addition he sets up a purported estoppel. The defendant also has counterclaimed. That counterclaim is based on a contract for sale dated 14 April 1958 between the plaintiff as vendor and the defendant as purchaser in respect of the premises. The defendant claims that he has made all the payments required to be made pursuant to that contract, that he is in possession of the premises as purchaser under the contract and that therefore he is the owner of the fee simple, at least in equity. By his counterclaim the defendant seeks a declaration that he is entitled to the fee simple, although he does not ask that the agreement be specifically performed.

1. Although the defence and counterclaim was delivered by solicitors who were then acting for the defendant, more recently the defendant has acted in person and he conducted his own case before me.

1. I proceed to make my findings of fact. On 14 April 1958 the defendant entered into a contract for sale with the plaintiff whereby the plaintiff agreed to sell and the defendant agreed to purchase the unencumbered fee simple in possession of the premises. It was a long term purchase contract requiring the defendant to pay the purchase money and interest by monthly instalments. The defendant was entitled to immediate possession of the premises and he entered into possession. The agreement contained certain provisions whereby the plaintiff was entitled to rescind the contract in the case of default on the part of the defendant. In addition, the contract was governed by the provisions of the Homes Act 1935, s35(2), which empowered the plaintiff to "cancel" the contract and forfeit any moneys paid pursuant to its terms if any instalment was unpaid for one month after the due date. That provision also entitled the plaintiff to take possession of the premises in such event. The word "cancel" as used in s35(2) ought to be construed as meaning a unilateral determination of the contract (see Willcocks v New Zealand Insurance Co [1926] NZLR 805 at 810).

1. The financial records tendered by the plaintiff satisfy me that the defendant defaulted under the contract for sale in that on numerous occasions he failed to make the required payments of instalments. The plaintiff produced its register of cancellation of purchase contracts. That records that the defendant‘s contract was cancelled on 4 April 1966. The copy of the plaintiff's ledger card relating to the defendant‘s contract suggests that at that time the defendant's instalments were in arrear to the extent of $160.88, the monthly instalment being $34.60. More than a quarter of a century having elapsed it is somewhat difficult to now establish with particularity precisely what was done by way of cancellation, but the contemporary records which are available lead me to conclude that the plaintiff exercised his entitlement to cancel the contract in the exercise of his statutory powers to which I have referred.

1. It was the practice of the plaintiff to permit long term purchasers whose contracts had been cancelled to nevertheless remain in possession of the subject premises on what was termed an occupation fee basis. The evidence suggests that this was in the nature of mesne profits, but that if the plaintiff agreed to reinstate the agreement for sale (which he might agree to do depending upon a purchaser‘s performance in paying the occupation fee which equalled the instalment payable under the contract), then the payments made by way of occupation fees would be treated as having been made pursuant to the terms of the contract. There is no suggestion that the plaintiff reinstated the agreement after its cancellation in April 1966 and the defendant did not assert that that occurred. The plaintiff nevertheless was prepared to permit the defendant to remain in occupation of the premises but as a tenant subject to the defendant signing a tenancy agreement. It appears that the plaintiff sent the defendant a form of tenancy agreement on 31 October 1967. By 30 January 1968 it had not been signed by the defendant. There had been some correspondence to the defendant from the plaintiff asking that it be signed. On 16 January 1968 a letter from the plaintiff told the defendant that if the tenancy agreement was not signed and returned within seven days, the plaintiff might have no option but to instigate proceedings to take possession. On 30 January 1968 the defendant called on an officer of the plaintiff. A long discussion took place. The defendant declined to sign the tenancy agreement. He was told that it was almost certain that legal action would be taken seeking possession of the premises. On 1 February 1968 the plaintiff sent the defendant a notice to quit. He did not comply with its terms. On 29 February 1968 a writ was filed in this Court seeking possession of the premises. The defendant was served with the writ on 11 March 1968. The plaintiff alleges that the defendant signed the tenancy agreement which is in evidence and which is dated 12 March 1968, ie the day after the defendant was served with the writ claiming possession. The defendant asserts that the signature appearing thereon, purportedly his, is a forgery. It may be that even if the signature is forged the defendant nevertheless would have no answer to the plaintiff's claim for possession. In the light of the conclusions which I have reached, I do not need to consider that. I heard evidence from Sergeant Dale, the officer in charge of the police document examination section, as to this signature. He compared it with the signature of the defendant appearing on a number of other documents. Some of those the defendant admitted signing. Others of them were documents purportedly signed by the defendant and filed by him in this action. In the absence of evidence from the defendant to the contrary I may assume that they are documents signed by him. In the absence of any other evidence, Sergeant Dale‘s evidence is ample to persuade me that the tenancy agreement was signed by the defendant. There is other evidence confirmatory of that which is to be found in the surrounding circumstances. The signature of the defendant purports to be witnessed by a person who at the time was an officer of the Housing Department. The agreement purports to have been signed on the day after the defendant was personally served with a writ claiming for possession, he having earlier been told that possession would be sought if he failed to sign a tenancy agreement. At that time the defendant and his young children were the only occupants of the house. These circumstances make it quite improbable that anyone else would have been minded to sign the agreement. I found the defendant's denials that he had signed the document quite unconvincing. He appeared to avoid direct denials, but sought refuge in unconvincing explanations as to why the signature could not be his. I find that the defendant signed the tenancy agreement.

1. The agreement provides for a weekly tenancy with rent being payable on the Monday of each week. The tenancy was expressed to commence on 11 March 1968 being from week to week ending at 12 o‘clock midnight on any Sunday and determinable by one week's notice in writing at any time by either party. It was not a requirement of that agreement that the tenant be in breach of any term thereof before notice to quit may be given.

1. On 3 March 1989 the defendant was personally served with a notice to quit in the following terms:

"NOTICE TO QUIT

To:      MR MODRINS MARTINS APSITIS

           

4 Beenak Street

           

CHIGWELL 7011

I, GRAHAM HAROLD SARGENT being and as the ACTING EXECUTIVE OFFICER RENTALS of the Housing Department of Tasmania on behalf of the Director of Housing who is the Owner of certain premises situate at

CHIGWELL in Tasmania and known as Number 4 Beenak Street of which said premises you are his weekly tenant HEREBY GIVE YOU NOTICE to quit and deliver up to me or to whom I may appoint vacant possession of the said premises on the 27th         day of March 1989 or on the date on which the next successive period of your tenancy expires after the 6^th day of March 1989

SIGNED in the presence of (signed)

Dated this 2^nd day of March 1989

G H Sargent

ACTING EXECUTIVE OFFICER RENTALS

Housing Department
Glenorchy"

1. The defendant has not complied with that notice and remains in possession of the premises. It appears that he has paid no rent since having been served with the notice.

1. Subject to the notice being a sufficient notice to quit, it seems to me that the plaintiff is entitled to possession. I have found that the defendant signed the tenancy agreement. As pleaded, the defence of estoppel appears to be insufficient to give rise to any such defence. In any event, the factual basis of the pleaded estoppel is absent. It relies upon two matters, namely the contract of sale and the assertion that on numerous occasions the defendant inquired as to why his repayments were noted as rental and was told by officers of the plaintiff that he was still purchasing the premises and not to worry about the misdescription. As to the first matter, I have found that the contract was cancelled. As to the second matter, I do not accept the defendant‘s evidence that he made such inquiries. I am persuaded that on one occasion he made an inquiry and was shown a computer printout which indicated that he had entered into a purchase contract and thereby was led to persuade himself that that agreement was still on foot. The defendant then well knew that there was no purchase contract on foot. I suspect that he has sought to take advantage of that computer printout in order to now seek to establish that he is the owner of the property. The findings of fact which I have made necessarily lead to the conclusion that the counterclaim cannot succeed.

1. I return to the notice to quit. It is expressed in the alternative, ie providing two dates upon which possession is required. The first date is 27 March 1989. That was a Monday. A week of the tenancy ended at 12 midnight on Sunday. The normal right of a tenant given notice to quit on a particular day is to remain in possession until midnight on that day. Nevertheless. notice expiring on Sunday or Monday was good notice as each intimated that the last day of the relevant period of the tenancy was to be the last day of the tenancy (see Crate v Miller [1947] KB 946 at 948). The alternative date is to be construed as being the last day of the first complete week of tenancy commencing after 6 March 1989, which was a date earlier than the other date specified. The question arises whether a notice which specifies two separate dates on which possession is required without specifying which is to prevail is a sufficient notice. Even without specifying which date is to prevail, dates may be given alternatively "and it is sufficient if one of the alternatives ... denotes it in terms which enable the person receiving it to make it certain", per Atkin LJ in P Phipps & Co v Rogers [1925] 1 KB 14 at 27. The notice ought to be construed as requiring the defendant to deliver up possession no later than the later of the two days specified.

1. It follows that the tenancy was validly determined and that the plaintiff is entitled to judgment that he recover against the defendant possession of the land and premises situate at and known as 4 Beenak Street, Chigwell in Tasmania.