Dominello v Thompson
[2011] NSWSC 1455
•30 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: Dominello v Thompson [2011] NSWSC 1455 Hearing dates: 24 November 2011 Decision date: 30 November 2011 Jurisdiction: Common Law Before: Adamson J Decision: (1) A declaration that the defendant is not entitled to enter onto or occupy the land being the whole of the land contained in Certificate of Title folio identifier Lot C DP 334634 and known as 3 Wattle Road, Ingleside (the Property).
(2) Judgment for the plaintiff for possession of the Property.
(3) Order that the Plaintiff have leave to issue a writ of possession forthwith.
(4) Dismiss the Amended First Cross-claim.
(5) Order the defendant to pay the plaintiff's costs of the proceedings.
Catchwords: PROPERTY - possession of land - whether an agreement entered into Legislation Cited: - Conveyancing Act 1919 (NSW) - s 23C, s 23D, s 23E, s 127 Cases Cited: - Masters v Cameron (1954) 91 CLR 353 Category: Principal judgment Parties: Giuseppina Dominello (aka Josephine) (Plaintiff)
Jacqueline Thompson (Defendant)Representation: Counsel:
S. El-Hanania (Sol) (Plaintiff)
In person (Defendant)
Solicitors:
Saba El-Hanania Lawyer (Plaintiff)
In person (Defendant)
File Number(s): 2011/039212
Judgment
Introduction
The principal issue in this case is whether there was a binding agreement which permitted the defendant to occupy an area of land owned by the plaintiff, and if so, whether that agreement remains on foot. The plaintiff's case is that no such agreement was entered into and the defendant has, at all material times, been a trespasser on the land. In the alternative, the plaintiff says that any such agreement as was entered into has been terminated in accordance with its terms.
The plaintiff seeks an order for possession, a writ of possession and an order for costs. Although her Statement of Claim contains prayers for damages and mesne profits, these prayers were not pressed at the hearing of the matter. The defendant resists the plaintiff's claim for possession on the basis of an alleged lease for a term of five years. She also claims damages for breach of the covenant of quiet enjoyment that she alleges arises as a result of a lease granted to her by the plaintiff.
The facts
The plaintiff owns a block of land known as Lot C, 3 Wattle Road, Ingleside ( the Property ). The Property is a long, narrow rectangular block, through which a creek runs. There is a residence near Wattle Road. About a third of the way down the block there is a fence, which divides the part of the land where the residence is ( the House Block ) from the part of the land where the creek is ( the Paddock ).
Prior to November 2010, the plaintiff had always leased the House Block and the Paddock together. Such leases had been arranged and administered by real estate agents on her behalf. However, she became concerned that the Paddock was overgrown with grass and hoped to separately lease it to someone who would maintain it, so that she could get a return on the Paddock, in addition to the return on the House Block.
In early November 2010, the plaintiff placed an advertisement for a lease of the Paddock in the Manly Daily . The advertisement read:
"INGLESIDE Land for Lease 2 3/4 acres for Agricultural use or storage of equipment. Rental neg. [mobile phone number supplied]."
The defendant telephoned the plaintiff in answer to the advertisement. The defendant owned three horses, which she had previously kept on land that she owned in Terrey Hills. However, since she had sold the Terrey Hills land in early 2010, the horses had been, as she described it, "on holiday". The defendant explained that this meant that they had been agisted at other properties including on the Central Coast. She was interested in the Paddock as accommodation for her horses.
The plaintiff arranged to meet the defendant at the Property at 4pm on Sunday 7 November 2010. Because the gate onto Wattle Road was locked, since tenants were in residence, they walked through the adjoining block along the perimeter of the Property so that the defendant could see the Property and inspect the Paddock. The plaintiff says that the defendant could see the Property, including the Paddock from this inspection, although her evidence was that it was difficult to see that part of the Paddock beyond the creek. The defendant says that she did not have a good view of the Paddock and did not have an opportunity to inspect it properly. Nothing turns on the difference in versions.
There was a discussion between them about the weeds on the Paddock. The plaintiff expressed her concern about them and agreed that the Paddock had not been well maintained. The defendant offered to pay $100 per week for the Property. There was also a discussion about the work that needed to be done to the Paddock in order to make it safe for horses. On this occasion, the defendant mentioned that she had a friend, Pollyanna Lamounier, who might be interested in renting the House Block.
Other topics were discussed between them at this first meeting, including the respective health problems of the two women, how the plaintiff had come to own the Property and her ultimate plans for developing it. I infer, from the fact that the plaintiff invited the defendant to her birthday dinner on 19 November 2010 at Woolwich, that there was at least an initial rapport between them. By the end of the conversation, they had agreed that the defendant would visit the plaintiff's house at Glenorie on the following Sunday, 14 November 2010, with a view to purchasing fencing material at Ebenezer in order to secure the Paddock for the defendant's horses. The defendant had also suggested that one of her friends, Ms Lamounier, might be interested in renting the House Block.
The defendant relied on an affidavit of Mr Torrington, in which he deposed to having been present while this discussion occurred. The plaintiff gave evidence that there were no witnesses to their discussion. For the reasons given further below, it is not necessary for me to determine whether Mr Torrington was present for all or part of the discussion, or whether he was absent.
The plaintiff's version of the relevant events between 7 November 2010 and 7 February 2011 when the Statement of Claim was filed
What I have set out above largely accords with the plaintiff's version of what occurred on 7 November 2010, which I accept.
The plaintiff gave evidence that Ms Lamounier telephoned her on Monday 8 November 2010 in the evening and preliminary arrangements were made for her to contact the agent to arrange an inspection of the Property, with a view to Ms Lamounier's renting the House Block. On the following day, the plaintiff says that she received a text to say that the tenants were agreeable to an inspection. The plaintiff then says that she arranged for Ms Lamounier to inspect the Property.
On Wednesday 10 November 2010, the defendant telephoned the plaintiff and told her what work needed to be done on the Paddock. The plaintiff gave evidence that she decided in the course of this conversation that the defendant was not a suitable tenant for the Paddock. However, she did not communicate her decision to the defendant, who called her on a number of occasions over the ensuing days and left messages. The plaintiff's evidence is that she did not return these messages because of her decision that the defendant was not a suitable tenant.
On Sunday 14 November 2010, the defendant arrived at the plaintiff's home at Glenorie, as had been arranged at their first meeting. The plaintiff had forgotten the arrangement and refused to go to Ebenezer with the defendant. She told the defendant that she had leased the Property to someone else, and produced a lease document dated 13 November 2010 which nominated a Steven Curry as lessee.
According to the plaintiff, the defendant was indignant and asserted that there was a verbal agreement between the two of them to which the plaintiff was obliged to adhere. When the defendant would not take 'no' for an answer, the plaintiff said that she would need references and would need a solicitor to draw up a lease. The plaintiff's solicitor submitted that the plaintiff raised the obstacles so as to fob off the defendant without causing the offence of a direct refusal. Before the defendant left, she told the plaintiff that she was going to go onto the Property and asserted that the lease document referred to above, to which Mr Curry was a party, was invalid since it post-dated their oral agreement.
Before the defendant departed, she handed a document to the plaintiff which was dated 10 November 2010. The document was signed by the defendant and purported to set out all the terms of the lease of the Paddock. According to the plaintiff, she asked the defendant, "What is this rubbish?" but the defendant did not respond.
On 15 November 2010, the plaintiff was notified by the real estate agent for the Property that the defendant had moved her horses onto the Property. The plaintiff telephoned the defendant and demanded that she vacate the Property. She also sought to have the Police evict the defendant from the Paddock, but the Police refused to do so on the grounds that it was a civil matter. She instructed solicitors to send a letter of demand to the defendant, which they did on 16 December 2010. The defendant did not remove her horses from the Property. She consistently maintained that there was an enforceable agreement for lease of the Paddock and refused to vacate the Property.
The plaintiff gave evidence that the tenant who occupied the house on the Property left because of the disturbance caused by the defendant and her horses, and also that new tenants have sought a rent reduction on the grounds of inconvenience that she has caused. However, in light of the plaintiff's abandonment of her claim for damages and mesne profits, I do not need to make findings about these matters for the purposes of determining these proceedings.
The evidence establishes that there were several occasions on which the gates on the front perimeter of the Property on Wattle Road were locked. The plaintiff locked the gates on two occasions, 17 and 19 January 2011. She said that the purpose of applying the locks was to secure the Property, the tenants having already vacated the Property. However, her conduct had the effect of inhibiting the defendant's access to the Paddock, and to her horses. To the extent to which the defendant says that the gates were locked on previous occasions, the plaintiff says that this was done by the tenants of the Property, before they vacated the Property.
The plaintiff was contacted by the RSPCA in early December 2010 about the locked gates. She was informed by a representative of the RSPCA that it interfered with the protection of the horses to lock the gates.
By Statement of Claim filed on 7 February 2011, the plaintiff sought possession of the Property.
The defendant's version of the relevant events between 7 November 2010 and 7 February 2011 when the Statement of Claim was filed
The defendant's evidence is that, as a result of the discussion that occurred between them on 7 November 2010, there was an agreement for lease of the Paddock which accorded with the terms set out in the document dated 10 November 2010, which she prepared and signed without further consultation with the plaintiff and which is referred to above.
The document is nine pages long and is expressed in the form of a letter. At the foot of each page, it bears the endorsement: "Agreed and signed by" and there is provision for the signatures of Ms Dominello and Ms Thompson. Ms Thompson had already signed all pages when she gave the letter to Ms Dominello on 14 November 2010.
The letter commences as follows:
"I confirm our agreement that I've taken up the lease on the acreage behind the house block on your Wattle Street Ingleside effective immediately from our handshake last Sunday, 7 November 2010.
I'm very excited about helping you tidy up the property, make it safer, and thought to confirm in writing our chat but also highlight for you some things identified from my 3 hours of preliminary inspection and meeting of the neighbour [sic] on both sides of the property today."
The first five pages set out various matters of concern to Ms Thompson and areas where she has identified a need for work to be performed on the Property or for matters to be improved, such as with respect to relations with the neighbours. On the fifth page, there is a heading, "Current savings I have influenced for you todate [sic] include". There is then a list of items which adds up to $15,000.
On the sixth and seventh pages of the document there is a list of terms set out, including the following:
" Lease Term and $
A. 5 year lease, commenced from 7 November 2010;
B. I have first right of refusal on the cottage rental when it ever becomes available.
C. Rental of the Property in totality is $650 with the paddock lease payment being $100 of that. I will pay that money into your account, on the 7 th of each month, in advance.
D. A 5% CPI increase in this rental can occur if you so require every two years.
E. My paddock lease is paid for in the first instance by 6 months 'contra' on my assistance in tidying up the property, helping reduce your exposure to fines, damages claims and for providing a written weed and horse management plan that you can submit to Council. My first lease deposit is therefore due on 7 th of June 2011.
Inspections and Termination
...
H Termination: 12 months notice is required to terminate this agreement, by either party."
The defendant's evidence does not connect the matters contained in the document with the discussions that occurred between her and the plaintiff on 7 November 2010 in other than a general, and unhelpful, way. For example, she deposes that the lease document "is a copy of the lease as agreed between the parties", but does not relevantly depose to what was said on that occasion about particular terms, which she later included in the written document.
The defendant relied on an affidavit of Mr Torrington, who lives on a neighbouring property, 1 Wattle Road, Ingleside. Mr Torrington deposes that he was present when the negotiations took place. This is disputed by the plaintiff. His evidence was similarly general. He deposed as follows:
"7. Para 54 is perhaps the largest inaccuracy in Ms Dominello's affidavit. In is [sic] she alleges "I have never entered into an oral agreement with Ms Jacqueline Thompson. I witnessed her enter an oral agreement with Ms Jacqueline Thompson on 7 November 2010. I was standing right there watching her with Ms Thompson. I saw her shake hands with Ms Thompson to that oral agreement and listened as she stressed that her word was her honour and that no written agreement, that Ms Thompson was requesting, needed to be supplied.
8. I have read the lease agreement dated 10 November 2010 and found that to be a true and correct representation of what I witnessed being agreed between the parties on 7 November 2010."
Although Mr Torrington deposes to the plaintiff assuring the defendant: "my word is my honour" and that there was no need for a written agreement, he does not give any admissible evidence of the negotiations between the plaintiff and the defendant on 7 November 2010.
The defendant also relied on an affidavit of Ms Lamounier, who was required for cross-examination. She deposed that the plaintiff had told her, in the course of a telephone conversation on 7 November 2010, that she had given the defendant a lease that commenced immediately, although physical access would be deferred until 8 November 2010 to give the real estate agent an opportunity to inform the tenants of the Property that this was to occur. In cross examination, Ms Lamounier admitted that she was not privy to any of the actual negotiations that took place between plaintiff and defendant.
The defendant gave evidence that she moved her horses onto the Paddock in November 2010. She says that she considered herself entitled to do so because of the discussions that had occurred on 7 November 2010.
The defendant deposed to the stress she had suffered in the period from November 2010 to the present day arising from various matters associated with the conduct of the plaintiff, the tenants of the House Block and the neighbours. As referred to above, there were times at which the gate on Wattle Road was locked, initially by the tenants in November and December 2010 and later, twice in January 2011, by the plaintiff. The defendant took objection to the gate being locked since it impeded her access to her horses. She called the RSPCA and the Police for assistance. It emerged from the defendant's questioning of the plaintiff that the defendant had broken into a garage on the Property in order to obtain power for a tool to break the locks. She purported to justify this intrusion on the basis that she had a right to do whatever was reasonably required to protect her horses.
The defendant also took exception to the plaintiff's cutting off the water to the Paddock because she said that her horses needed mains water. The plaintiff asserted an entitlement to do so because she was not receiving any rent for the Paddock.
At times, the defendant sought an AVO order against the plaintiff, and vice versa. She relied on evidence of such matters as going to her claim for stress arising from the plaintiff's interference of her right of quiet enjoyment of the Paddock.
The defendant deposed to work that had been done on the Paddock during the period of her occupation. She gave evidence, in substance, that as the work required was more significant than she initially believed it to be, she felt justified in not paying any rent to the plaintiff for her occupation. She gave evidence that she has spent $27,947 to date and that the voluntary labour contributed by her friends has a value of $13,640 (calculated at $20 per hour x 682 hours), amounting to a "total value of labour and repairs of $41,587". The evidence to this effect was contained in a schedule to the defendant's affidavit. Objection was not taken to the form of the evidence. The defendant offered to provide invoices to substantiate her expenditure. For the reasons given below, it is not necessary that I determine whether the hours and the money were spent. Accordingly, nothing turns on the form of such evidence.
The incontrovertible facts
Certain matters are not in dispute. They are:
(1) On 7 November 2010, the plaintiff and the defendant met and spoke about the prospect of the defendant's horses occupying the Paddock;
(2) On 7 November 2010, the plaintiff arranged that the defendant would come to her house on 14 November 2010 and that they would together go shopping for fencing supplies for the Paddock at Ebenezer;
(3) The defendant moved her horses onto the Paddock at some time between 8 November 2010 and 15 November 2010;
(4) The plaintiff has never signed any written agreement with the defendant that permitted her to occupy the Paddock;
(5) From a date not later than 16 November 2010, the defendant knew that the plaintiff did not want her to continue to occupy the Paddock;
(6) The defendant has not paid any money to the plaintiff for her occupation of the Paddock; and
(7) The defendant's three horses remain on the Paddock, where they have been continuously for the past year.
Findings
The plaintiff's claim for possession
The basis on which the defendant resists the plaintiff's claim for possession of the Paddock is that she has a binding and enforceable lease for a period of 5 years commencing on 7 November 2010.
There is no written agreement for lease between the parties; nor is there any document signed by the plaintiff, being the person in a position to grant such a lease. Accordingly there is no legal lease for such a period: s 23C and 23D of the Conveyancing Act 1919 (NSW).
If there were an oral agreement for a lease, pursuant to which rent had been paid, a monthly tenancy could be implied pursuant to s 127 of the Conveyancing Act . However, since no rent has been paid, the provision has no application.
Section 23E of the Conveyancing Act provides that nothing in ss 23C or 23D shall affect the law relating to part performance. However, in order for part performance to arise, it is necessary first to consider whether there was a concluded agreement for lease, and if so, whether there were sufficient acts of part performance to warrant its enforcement.
It is not disputed that there were negotiations between the parties on 7 November 2010, which may, in due course, have led to a lease being granted of the Paddock. It is understandable if the defendant believed that a lease of the Paddock would be granted by the plaintiff since a date had been arranged a week hence for the two of them to shop for fencing material to make the Paddock secure for the defendant's horses.
However, I am not satisfied that there was sufficiently detailed discussion between the parties of the relevant terms of the lease which would allow me to conclude that any such agreement would be sufficiently certain, as to term and rent, to be valid. The plaintiff is the only person who has given admissible evidence about material discussions that occurred on 7 November 2010. She deposes to there being an offer by the defendant to pay $100 per week. She does not depose to any discussion about the term of the lease, nor about how the works that the defendant proposed to undertake on the Paddock would be accounted for, if at all.
Furthermore, the intention to create legal relations, as with other matters relating to the construction of contracts, must be judged objectively. It follows that it is neither determinative that the defendant, if I accepted her, believed that she had a right to occupy the Paddock, nor that the plaintiff says that she was merely investigating the possibility of separately tenanting the Paddock from the House Block and was conducting negotiations with a view to determining whether it was both feasible and in her interests. However, there are indications, which are relevant to any objective test, from which I infer that there was no mutual intention to create legal relations.
These indications include the following:
(a) There was no written memorandum of the agreement prepared at the time, or by reference to which the negotiations occurred;
(b) There was no discussion about the term of the agreement (according to the plaintiff, whose evidence I accept);
(c) There was no negotiation about whether any allowance would be made for the considerable works that the defendant considered were required to be done on the Paddock; and
(d) The lease that the plaintiff had granted to the tenants of the Property incorporated the Paddock as well as the House Block and therefore would have had to be re-negotiated to permit a lease to be granted over the Paddock separately.
In Masters v Cameron (1954) 91 CLR 353 the High Court was concerned with whether a document that recorded the proposed terms of an agreement was a concluded contract. Although where there was, as at 7 November 2010, no written note or memorandum of the discussions, the three categories described are still of assistance in determining whether a contract had been concluded. The High Court said, at 360:
"Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract."
I find that the instant case belongs to the third category: namely, the intention of the parties was not to make a concluded bargain at all, unless and until they executed a formal contract. The negotiations they had covered some major matters, the most significant of these being the amount of rent, but I find that either was free to withdraw from the negotiations and the proposal at any time before a formal lease was executed.
Although, as I have said above, the defendant was entitled to be optimistic about the prospects of obtaining a lease over the Paddock, no such agreement was concluded on 7 November 2010, or at any time thereafter.
Accordingly, I find that there was no concluded agreement between the plaintiff and the defendant whereby the plaintiff permitted the defendant to occupy the Property, by lease. Although the defendant founds her right of occupation on a lease, rather than a licence, and therefore it is not strictly necessary to consider whether there was a licence, it follows from what I have said above that there was no licence agreement between the plaintiff and the defendant.
It follows that the defendant's occupation of the plaintiff's land has been, at all material times, unlawful.
Since the plaintiff has abandoned her claims for mesne profits or damages, it is not necessary for me to consider matters that would have been germane to such claims.
The defendant's cross claim
The defendant, by her cross-claim, seeks a declaration that there is a lease of the Property in her favour. For the reasons given above I decline to grant such relief.
The defendant also claims damages for "breach of the covenant of quiet enjoyment in the Lease". Since I have found that she has no lease, she is not entitled to any such damages. For this reason, I do not propose to make findings about the various complaints she makes about the plaintiff's conduct in calling the Police, or about the defendant's calls to the RSPCA or the AVOs sought in the Local Court. To the extent to which the defendant has suffered stress, I find it to be of her own making by occupying land without the permission of the lawful owner and conducting herself as if she had a right to be there. The 'self-help' measures that were originally adopted by the plaintiff do not give rise to any actionable claim for damages in favour of the defendant.
In any event, the plaintiff, by her Statement of Claim filed on 7 February 2011, has sought the Court's assistance to regain possession of the Paddock, to which she has at all material times, as against the defendant, been entitled.
The relevance to the issues in the proceedings of the material referred to above as to the work performed by the defendant on the Paddock is not entirely clear. As I understand the defendant's submission, she relies on the extent of the works as a justification for her non-payment of rent, notwithstanding that the rent-free period on her version of the contract expired on 7 June 2011. She does not appear to make any claim for restitution. Such a claim would be, in any event, doomed to fail since there is no evidence from which I could reasonably infer that the works done have benefited anyone other than possibly the defendant by making the Paddock more suitable for her horses. Nor were the works authorised by the plaintiff, who was taking such steps as were within her power to have the defendant and her horses evicted from the Paddock.
Furthermore the work was performed at times when the defendant knew that the plaintiff wanted to evict her from the Paddock. I do not accept the defendant's evidence that she performed the work in order to comply with the agreement which she says was concluded on 7 November 2010.
Relief
Accordingly, for the foregoing reasons, I order as follows:
(1) A declaration that the defendant is not entitled to enter onto or occupy the land being the whole of the land contained in Certificate of Title folio identifier Lot C DP 334634 and known as 3 Wattle Road, Ingleside (the Property ).
(2) Judgment for the plaintiff for possession of the Property.
(3) Order that the plaintiff have leave to issue a writ of possession forthwith.
(4) Dismiss the Amended First Cross-claim.
(5) Order the defendant to pay the plaintiff's costs of the proceedings.
**********
Decision last updated: 30 November 2011
0
1
1