Maroudas & Maroudas v S a Housing Trust No. DCCIV-95-729 Judgment No. D3512

[1996] SADC 3512

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Burnett

Hearing

24/07/96, 10/09/96 to 11/09/96.

Catchwords

Property owned by Plaintiffs declared sub-standard and lower than market value rental fixed by Defendant - Declaration never revoked - Plaintiffs claimed to have no knowledge of the declaration and its effect until tenants instituted proceedings against Plaintiffs (some twenty years after the declaration) in the Residential Tenancies Tribunal claiming payment to them of the difference between the fixed rent and the rent they agreed to pay to the Plaintiffs - Whether letters and notices purported to be served upon the Plaintiffs by the Defendant as to the declaration are null and void - Found that Plaintiffs deprived of the opportunity to exercise their legal rights and rights to negotiation as the declaration, rent fixation and gazettals all happened without their knowledge.

Materials Considered

• Housing Improvement Act, 1940-1973. ;
• Acts Interpretation Act, 1915 (as amended) ;
• Fancourt v. Mercantile Credits Ltd. 154 C.L.R. 87 ;
• Taylor v. Marmaras (1954) V.L.R. 476 , referred to.

Representation

Plaintiffs CHRISTOS MAROUDAS AND ELENI MAROUDAS:
Counsel: MR. G. STATHOPOULOS - Solicitors: ZACHAROYANNIS &; LUPPINO

Defendant SOUTH AUSTRALIAN HOUSING TRUST:
Counsel: MR. M. EVANS - Solicitors: BARRATT LINDQUIST

DCCIV-95-729

Judgment No. D3512

26 November 1996

(Civil)

CHRISTOS MAROUDAS AND ELENI MAROUDAS v. SOUTH

AUSTRALIAN HOUSING TRUST

Civil

Judge Burnett:

This is a claim seeking certain declarations and other orders in respect of a house property situated at 42A Hughes Street, Mile End (referred to hereafter as "the property").

The Plaintiffs are and were, at all material times, the registered proprietors of the property.The Certificate of Title reveals that the property was transferred to them on 17 October, 1973.The Certificate of Title also states that the Plaintiffs' address is 42A Victoria Street, Mile End.That is an error.The property is on the corner of Hughes and Victoria Streets and the residential and postal address is Hughes Street.

The Defendant is and was, at all material times, a body corporate established pursuant to the provisions of the South Australian Housing Trust Act, 1936 and was, at the relevant time, entrusted (inter alia) with the powers and responsibilities of the housing authority in pursuance of the Housing Improvement Act, 1940 (referred to hereafter as "the Act").

For most, if not all, of the time that the Plaintiffs have owned the property, it has been rented out as housing accommodation.In 1976, the Defendant, in purported exercise of its authority under the Act, declared the property to be sub-standard and fixed a lower than market value rental for it in consequence. That declaration has never been revoked.According to the Plaintiffs, they had no knowledge of the declaration and its effect until some time in 1994 when people by the name of Gene De Wilde and Elizabeth Bourke (formerly De Wilde) instituted proceedings against the Plaintiffs in the Residential Tenancies Tribunal (referred to hereafter as "the Tribunal").

It seems that Mr. De Wilde and Ms. Bourke rented the property in 1990 for a weekly rental greatly in excess of that fixed (and subsequently increased) by the Defendant.Mr. De Wilde and Ms. Bourke asked the Tribunal to order payment to them of the difference between the fixed rent and the rent that they agreed to pay to the Plaintiffs.

In very general terms, the Plaintiffs claimed to have no knowledge of the rent fixation in 1976.They intimated to the Tribunal that they intended to take these proceedings.The Tribunal thereupon (and very properly) adjourned its proceedings to await the outcome of this case.

Mr. De Wilde and Ms. Bourke were originally joined as Defendants in this matter.That was not necessary and they have been dismissed from the proceedings.However, the irony remains that the time and expense occupied in the hearing and determination of this far from routine case is for the potential benefit of Mr. De Wilde and Ms. Bourke rather than anyone else.

What I have written is a brief and general outline of the factual background to this case.It is not intended to be comprehensive nor does it deal with many of the factual matters raised.However, it does rest upon what I believe to be common ground between the parties but, should that not be the case, it rests upon irresistible findings of fact that I would make in any event.

Against that background, I turn next to the witnesses.The male Plaintiff and his brother, Peter Maroudas, gave evidence.After an adjournment, which I granted expressly to enable the Defendant so to do, it called Mr. G.W.J. Parrott, a retired officer of the Defendant who appears to have had partial conduct of the Defendant's involvement with the property at the relevant time.

Mr. Christos Maroudas was a good witness.He gave his evidence with the aid of an interpreter.That was probably a wise course to follow but Mr. Christos Maroudas exhibited a reasonable grasp of the English language without leaving the impression that the interpreter was unnecessary.In other words, in my view, the interpreter did not give him an advantage in giving his evidence. The interpreter helped me to feel confident that questions were understood and answers were what the witness meant to say.I could detect no equivocation or prevarication in the evidence given by Mr. Christos Maroudas.I thought that he told me the truth as he recalled it to be and I accept what he said.

Mr. Peter Maroudas was also a good and convincing witness.He also gave evidence with the assistance of an interpreter and I make the same observations about that aspect of his evidence as I did of his brother's testimony.Mr. Peter Maroudas was more flamboyant than his brother but he gave what I regard as an earnest effort to tell me truthfully what he recalled about the events which give rise to this case.I accept what he said also.

Mr. Parrott retired from his employment with the Defendant in 1980.He was a senior housing inspector charged with duties to perform pursuant to the Act. He had no independent recollection of the property but, by reference to the Defendant's file with respect to the matter, he was able to remember some aspects of things but not the really important matters.Much of his evidence was based on what "would have" been done or said rather than what he recalled, and that is quite understandable.I think that Mr. Parrott did his best to assist me.He was distinctly uncomfortable about a comment that he wrote about Mr. Peter Maroudas but, other than that, he impressed me as a truthful witness but his testimony did not advance matters a great deal.

In addition to the oral testimony, I received a number of documents as exhibits and I will refer to some of them later in these reasons.

Having made those findings as to credibility, I turn next to my findings of fact.These are based upon the uncontested testimony of the male Plaintiff and his brother and upon the documents (and, in particular, exhibit D2 - the Defendant's file) which documents speak for themselves.

The Plaintiffs married in 1961 and came to Australia from Greece in the same year.The male Plaintiff had very little formal education and his grasp of written Greek was low.He had no skills in written and spoken English when he arrived in Australia and did not attempt to improve that position.He was much more concerned with employment and, in due course, his work took him to Loxton. The Plaintiffs have lived in Loxton since 1968.Their postal address was, and still is, Post Office Box 504, Loxton.

In 1973, the Plaintiffs bought the property.They financed the purchase through the then State Bank of South Australia.The property was bought with the intention of the Plaintiffs ultimately coming to Adelaide as permanent residents.In the interim, the property was rented out.In fact, the Plaintiffs have never lived at the property.It has never been their residential or postal address.

The Plaintiffs asked Mr. Peter Maroudas to "supervise the house" and collect the rent.Mr. Peter Maroudas lived in Adelaide and was entrusted by the Plaintiffs with the day-to-day management of the property.However, Mr. Peter Maroudas had only limited authority to act and all matters of significance relating to the property were referred to, and discussed with, the male Plaintiff who had the final say in things.I should add that, at the relevant time, Mr. Peter Maroudas had very limited skills in written or spoken English.

The Plaintiffs' witnesses have difficulty in being precise about dates and times but, in general, they agree that, in 1976, there was trouble over the property.Mr. Peter Maroudas was handed a letter by the then tenant of the property.That letter was from the Defendant.I cannot say which letter it was with certainty but it caused Mr. Peter Maroudas to contact both the Defendant and his brother, Christos.It emerged that the property had been inspected by Mr. Parrott on behalf of the Defendant and that the property was considered to be sub-standard.Repairs and renovations were needed.Rent reduction was involved.

Mr. Peter Maroudas took the letter to the Defendant's office premises.At some stage, he spoke to Mr. Parrott.He spoke then to the male Plaintiff and explained his understanding of the position.Briefly, that was that the low rent fixation would stay in place unless and until the repairs and renovations were carried out and the property restored to acceptable condition.The male Plaintiff asked his brother to have the repairs and renovations carried out and that was done by 1977 at a cost well in excess of $5,000 - a very substantial sum of money at that time.

In the meantime, the Defendant had set in foot the procedure to lead to a declaration that the premises were sub-standard.The declaration was made. The lower rent was fixed.Some steps before the completion of the procedure must have happened during the time when Mr. Peter Maroudas was speaking with Mr. Parrott and they happened without any notice or written communication (either as required by the Act of otherwise) being served upon the Plaintiffs. The declaration has never been revoked.I find as fact that the Plaintiffs and Mr. Peter Maroudas were ignorant of the procedure involved, the legal position or of the declaration.They thought that the repairs and renovations to the property would put things right.It took the actions of Mr. De Wilde and Ms. Bourke to bring the true position to light and that was twenty years after the events in question.

What I have written is a brief series of findings based on the evidence of the male Plaintiff and his brother.Further findings can be found in exhibit D2 and I turn to that now.I do not refer to all notations, only the matters of significance.

The first significant document is an "Inspection Report" made by Mr. Parrott with regard to the premises.I do not know how the Defendant became involved in the matter - it may well have been on complaint from the then tenant - but, by the report dated 6 May, 1976, Mr. Parrott noted a number of aspects of the property which were in need of attention.He also noted that the rent was paid to an "agent" in Mr. P. Maroudas.

Next, a "Memorandum for Board" dated 18 May, 1976 appears.This document recommended that "proceedings be commenced to declare the above house sub-standard within the meaning of Section 52 (1) of the Act".

On 26 May, 1976, an "Advice of Ownership of Land furnished by the Registrar-General of Deeds to the South Australian Housing Trust" seems to have been put together.This is a strange document which would appear to have been compiled by a clerk employed by the Defendant.It states that the "Reputed Owner" of the property is Mr. P. Maroudas but, in a section which seems to derive from a title search, it names the Plaintiffs as registered proprietors of the property but gives their address as "C/- 42A Hughes St., Mile End". This is in spite of the fact that the Certificate of Title gives the Plaintiffs' address as "42a Victoria Street, Mile End" (on 17 October, 1973) and later as "Loxton" (on 9 December, 1974.At no place on the Title is it suggested that the Plaintiffs' residential address was the property.The position becomes more mysterious when I note that the Certificate of Title discloses the identity of the mortgagee (as on 9 December, 1974) and the author of the "Advice" manages to report that aspect of things accurately.A clear mistake had been made at that stage by the Defendant's employee.The mistake was to lead to actions of greater significance.It was a stupid and careless mistake which was to lead to repetitive error.

Next, the exhibit contains four documents dated 27 May, 1976.Two are letters, two are notices.I pause to set out the notice and the letter which were directed to the Plaintiffs at the address given in the "Advice" (42A Hughes St., Mile End).The other letter and notice are addressed to the State Bank as registered mortgagee of the premises.The documents read:-

HOUSING IMPROVEMENT ACT, 1940-1973.

ToMr. C. & Mrs. E. Maroudas,

ofc/- 42a Hughes Street, Mile End.

WHEREAS the South Australian Housing Trust, after making due inquiries and obtaining such reports as it deems necessary, is satisfied that the house situated at and known as

42a Hughes Street, Mile End,

is sub-standard pursuant to the Housing (Standards of Habitation) Regulations.

YOU ARE HEREBY GIVEN NOTICE THAT the South Australian Housing Trust intends to declare the said house to be sub-standard for the purposes of Part VII of the Housing Improvement Act, 1940-1973, AND THAT the1stday ofJuly,1976, is hereby fixed as the last day by which any representations may be made to the South Australian Housing Trust for the purpose of showing that the said declaration should not be made.

Dated this27thday ofMay,1976.

K.C. TAYLOR,

Secretary.

South Australian Housing Trust

17 Angas Street, Adelaide.

Per:(Signed)

Certified that this notice is a

true copy of the original, and

that the original was posted

in a properly stamped and

addressed envelope at the

G.P.O. Adelaide on

28/5/1976 at 10.45.m.

(Signed)28/5/1976."

"27th May, 1976.

Mr. C. & Mrs. E. Maroudas,

c/- 42a Hughes Street,

MILE END.S.A.5031.

Dear Sir and Madam,

Under Part VII of the Housing Improvement Act, 1940-1973, the South Australian Housing Trust is vested with the power and duty to declare sub-standard any house which does not provide a desirable standard of habitation.In this regard you will find enclosed with this letter a formal notice of the intention of the Trust to declare the house situated at and known as42a Hughes Street, Mile Endto be sub-standard.

The purpose of the notice is to give you as theOwner,the opportunity of putting forward any grounds on which you consider the house should not be declared sub-standard.If you desire to avail yourself of this opportunity, you must do so before the date fixed in the said notice.The Trust will consider any grounds put forward and will advise you of its decision in due course.

It is emphasized that under Part VII of the Act, the Trust has no power to require you to repair, improve, or demolish the house, but if it is your wish to carry out improvements, or to know why the Trust considers the house to be sub-standard, I would suggest you telephone the Inspector,Mr. J. Parrott , between 9 a.m. and 10 a.m. and he could advise you of the defects which render the present action necessary.

I must also inform you that if the house is declared sub-standard, the Trust may subsequently fix the maximum rental which shall be payable for it.

The purpose of this letter is to explain the effect of the enclosed notice and is not to be construed as forming part of it, or affecting it in any way.

Yours faithfully,

M.L. O'REILLY

Officer-in-Charge,

Housing Improvement Section.

Per:(Signed)

Certified that this notice is a

true copy of the original, and

that the original was posted

in a properly stamped and

addressed envelope at the

G.P.O. Adelaide on

28/5/1976 at 10.45.m.

(Signed)28/5/1976."

The notices are statutory requirements.The letters are not, but, between the two documents, they inform the owners and mortgagees of premises sought to be declared sub-standard, in reasonably clear terms, of what is intended to happen, what the owners or mortgagees may do and what will happen if the declaration is made.In particular, they give the owner or mortgagee time (in this case until 1 July, 1976) to contact one of the Defendant's officers (in this case Mr. Parrott) "and he could advise you of the defects which render the present action necessary".

So it was that these quite crucial documents were sent to the wrong address. They were never received by the Plaintiffs who were, therefore, denied the opportunity to take advice or otherwise deal with the problems in a timely manner.The other puzzling aspect of things in this regard is that the State Bank took no steps at all to discuss the matter with the Plaintiffs or, so far as I know, to become involved in any way.

Next, the file contains a notice to both the Plaintiffs and the Bank informing them that, on 8 July, 1976, by notice in the Government Gazette, the declaration that the property was sub-standard was made.The notice was dated on the same day.The notice contained the following advice:-

"If you feel aggrieved by the above declaration, you may, within one month of the date of publication as set out above, appeal therefrom to the local court of full jurisdiction nearest to the said house, but unless any such appeal is instituted and allowed, the Trust may, in due course, and in accordance with the provisions of the Act, fix the maximum rental per week which will be payable in respect of the house.

Upon receipt of advice that repairs or improvements have been completed, the house will be re-inspected, and if in the opinion of the Trust the house is no longer sub-standard, the declaration may be revoked.

Yours faithfully,

K.C. TAYLOR

Secretary.

Per:(Signed)

Address all communications to

Officer-in-Charge, Housing

Improvement and Rent Control

Section, G.P.O. Box 1669,

Adelaide.5001.

Certified that this notice is

a true copy of the original,

and that the original was

posted in a properly stamped

and addressed envelope at

the G.P.O. Adelaide on

8/7/1976 at 1.45.m.

(Signed)8/7/1976."

Again, the notice was sent to the Hughes Street address.Again, it was never received by the Plaintiffs.Again, they were deprived of the opportunity to take advice.They had rights to appeal to the then Local Court.They were ignorant of those rights but, more pertinently, they were ignorant of the fact that the declaration had been made.

A notice of the declaration of the premises and the rent fixation ($28.50 per week) appeared in the Government Gazette of 2 September, 1976.A letter informing the Plaintiffs of this fact was sent by the Defendant to the Plaintiffs on the same day.On this occasion, the letter was sent to the Plaintiffs at "POST OFFICE BOX, LOXTON".Again, the Plaintiffs did not receive the letter but, in any event, the damage was done.I note in passing that a copy of the letter was sent to "The Occupier, 42A Hughes Street, Mile End, S.A.5031."By that stage, someone at the Defendant's office had realised that the Plaintiffs lived at Loxton and that the Hughes Street property was occupied by other people.However, that person either did not realise the implications of the careless mistake about the Plaintiffs' true address or did nothing to remedy things.

Exhibit D2 has within it a blue form which bears no title but seems to be some sort of working sheet or case synopsis.In the remarks column is a note dated 6 August, 1976 in Mr. Parrott's handwriting.The note reads:-

"Mr. Maroudas rang 6/8, will ring me again early next week."

Mr. Parrott cannot recall how he came to make that note.He does not know whether he spoke to "Mr. Maroudas" personally or whether a clerk took a message for him.The note is quite equivocal but we do learn two things from its contents.First, that a Mr. Maroudas (it was Peter Maroudas) was in touch with Mr. Parrott or the Defendant's office on 6 August, 1976 and, second, that the contact was shortly before the time for appeal had expired.

Finally, in the context of exhibit D2, I refer to a document entitled "Memorandum for Attachment to:File No: ".Most of the document is in Mr. Parrott's handwriting.It bears his signature and the date 16 August, 1976. It appears to be addressed to Mr. Parrott's superior officer.It reads (insofar as Mr.Parrott's writing is concerned and allowing for the difficulty in reading some of the words):-

"Spoke with Mr. P. Maroudas, brother of owner, regarding improvements to above, 12/8/76.He is a bit 'thick' and it's rather difficult to get through to him as to the best way to tackle essentials.The place is more neglected than sub-standard.The seven main rooms are all structurally OK, need some paint and new insect screens, the bathroom and toilet need updating and the detached laundry is a write off:

I would suggest we fix a rent of $28.50 p.w. at this stage.Owner lives near Loxton.

Please advise."

To this note the anonymous superior has written "Fix rental as you suggest". That endorsement is dated 23 August, 1976

Apart from causing me to wonder whether the property was really sub-standard at all, that note shows that Mr. Peter Maroudas did indeed speak with Mr. Parrott on 12 August, 1976.Mr. Parrott said that, when he described Mr. Peter Maroudas as "thick", he really meant difficult to speak with in consequence of language difficulties.That, of course, confirms Mr. Peter Maroudas' account of things.

Obviously, Mr. Peter Maroudas had difficulties in comprehending everything that Mr. Parrott told him.That is entirely consistent with his evidence and the Plaintiffs' case.What a pity it was that greater care was not taken to ensure Mr. Peter Maroudas' full comprehension of the position.What Mr. Peter Maroudas gained was partial knowledge only and not full knowledge of the true legal and factual position.

The note also shows the almost breathtaking carelessness and indifference with which the Defendant's employees treated this matter.Mr. Parrott must have thought it worthwhile to report that the owner lived "near Loxton" but neither he nor anyone else seems to have given any thought to the mistakes over the Plaintiffs' address and their consequence.No effort seems to have been made to ensure that the Plaintiffs, and in particular Mr. Peter Maroudas, actually knew and understood what had happened, notwithstanding Mr. Parrott's view of Mr. Peter Maroudas.The whole process involved the Defendant, through its employees, moving inexorably through the prescribed processes without checking or cross-checking or giving reasonable attention to what turned out to be quite vital aspects of the file such as the Plaintiffs' address.I am sure that such events would never be allowed to happen now.

So it is that I reach the conclusion that the Plaintiffs did not receive any of the documentation that was of crucial importance.The declaration, rent fixation and gazettals all happened without their knowledge.They were deprived of the opportunity to exercise their legal rights and rights to negotiation throughout.These things occurred as a direct result of carelessness and indifference on the part of the Defendant's employees.The Plaintiffs knowledge was limited to what Mr. Peter Maroudas told them.In turn, his knowledge came to him when the tenant of the subject property gave him one of the documents sent to the Plaintiffs at the wrong address.I am unable to find with certainty what document it was but it may well have been the letter of 8 July, 1976 informing the Plaintiffs that the declaration had been made.Of course, Mr. Peter Maroudas could not comprehend the full meaning of whatever letter the tenant handed him but he went to the Defendant about it promptly.When he did so, the officer who saw him had difficulty in communicating with him.Mr. Parrott so reported to his superior.However, all Mr. Peter Maroudas understood and conveyed to his brother was what he understood to be the case.That was (in essence) that there was trouble with the Housing Trust over the property.The property needed repairs.The rent would be reduced until the repairs were carried out.When they were carried out, all would be well.Neither he nor the Plaintiffs ever knew at any relevant time the true nature of what had occurred.

In those circumstances, it seems to me that the Plaintiffs have made out a clear case for relief on the merits.They have been ill done by.However, before I so declare, I must refer to the Defendant's defence which disputes the Plaintiffs' right to any relief.The facts that I have found show carelessness and casualness that must be attributed to the Defendant through its employees in their handling of this case.The question is whether, notwithstanding that, the Defendant has complied with its obligations under the Act and the declaration may be regarded as valid.

Mr. Michael Evans (for the Defendant) conceded that the facts were "confined" and by that I took him to mean substantially not in dispute.That is clearly the case.The Defendant's primary submission is that it complied with the relevant legislation and accordingly the declaration and rent fixation were both valid.

The relevant legislation is that which was in operation in 1976, namely, the Housing Improvement Act, 1940-1973.The objects of the Act are stated to be:-

"...to provide for the improvement of sub-standard housing conditions, to provide for housing of persons of limited means, to regulate the rentals of sub-standard dwellinghouses in the metropolitan area and in certain other parts of the State, and for other purposes."

The Act names the Defendant as the Housing Authority charged with the duty of carrying out the objects of the Act.Part VII of the Act (Control of Rentals of Sub-Standard Houses) provides the mechanics by which the Defendant should carry out its duties.Sections 52, 53 and 54 specify the procedures which were adopted in this case.I set forth hereunder the parts of those sections which are relevant to this case:-

"52. (1) Where the housing authority, after making due inquiries and obtaining such reports as it deems necessary, is satisfied that any house is undesirable for human habitation or is unfit for human habitation, the housing authority may serve upon the owner and upon any registered mortgagee of the land on which the house is situate, a notice in writing stating that the housing authority intends to declare the house to be sub-standard for the purposes of this Part. Every such notice shall fix a time being not less than one month from the giving thereof, within which the owner or registered mortgagee may make any representations to the housing authority.

(2)After considering any such representations the housing authority may, by notice in the Gazette, declare the house to be sub-standard for the purposes of this Part."

"53.(1)Any owner of a house or registered mortgagee of the land on which a house is situate who feels aggrieved by any declaration of the housing authority that the house is sub-standard for the purposes of this Part may within one month after the publication of the declaration in the Gazette appeal therefrom to the local court of full jurisdiction nearest to the house.

(2)..

(3)..

(4)When any such appeal is allowed the declaration of the housing authority that the house is sub-standard for the purposes of this Part, shall be deemed to be and to have been void and of no effect."

"54.(1)After the expiration of one month from the publication in the Gazette of any declaration relating to a house or, if any appeal is made in respect of any such house and is disallowed, after the determination of such appeal, the housing authority may by notice in the Gazette -

(a)fix the classification (if any) of the house:

(b)fix the maximum rental per week which shall be payable in respect of the house:

(c)fix the date (which shall be a date not earlier than the date of the publication of the notice in the Gazette) from which the notice shall come into force.

(2)Every such notice shall come into force from the date specified in the notice."

With regard to section 52, I make two observations.First, the use of the word "may" in both sub-sections (1) and (2) should be read as giving the Defendant a discretion to proceed or not with the declaration of a house as sub-standard.I do not think that either sub-section can be read as creating an option for the Defendant to serve a notice or not or to gazette a declaration or not as it sees fit.Second, the section requires the Defendant to serve a notice in writing upon the owner (and any mortgagee) of its intention to make a declaration.Both observations are very important because, in my view, the section provides for what I might call the initiating process to lead towards a declaration.It requires (as is customary in our legal system) notice of that process to be given to those potentially affected by the process.The Defendant has the option to decide whether to proceed or not but, should it decide to do so, it must serve notice first and allow not less than one month for those potentially affected to react.It provides a very basic and fundamental initiating process.

Section 53 contains the appeal rights to which I referred earlier.Those rights accrue after the declaration appears in the Gazette.So far as I can see, the Defendant was under no obligation at law to notify the Plaintiffs or anyone else of the gazettal of the declaration.As a matter of common sense they chose to do so but, in this case, quite ineffectively.

Section 54 provides for the fixation of rent.This, too, must appear in the Government Gazette.Again, I can find no legal obligation upon the Defendant to give notice of the rent fixation and its gazettal.However, wisely, it chose to give notice but, again, in this case, ineffectively.

So it is that the Defendant carried out its rights and obligations under sections 52, 53 and 54 of the Act and, in a way, did more than it needed to do. However, the notice required to be served pursuant to section 52 was in fact not served.This led to the factual position to which I have referred.

The remainder of Part VII of the Act deals (inter alia) with a number of offences which might be committed by persons seeking to avoid the consequences of actions taken by the Defendant under the Act.No further reference to that aspect of things is required.

Part VIII of the Act is entitled "Miscellaneous".It does indeed deal with a number of different aspects of things.The first section with bearing upon this case is section 74 which reads:-

"74.(1)Any notice or other document by or under this Act, required or authorized to be given to, or served on any person may be so given or served -

(a)by delivering the same to such person;or

(b)by leaving the same at his usual or last-known place of abode or business; or

(c)by forwarding the same by post in a pre-paid letter addressed to such person at his usual or last-known place of abode or business.

(2)Any such notice or document if addressed to the occupier of premises may be given or served by delivering the same or a true copy thereof to some person on the premises apparently of or over the age of eighteen years, or if there is no such person on the premises to or on whom the same can be so given or served by fixing the same on some conspicuous part of the premises.

(3)Where any such notice or document is required to be given to or served on a person whose name or address is unknown, it may be given or served by publishing it three times, at intervals of not less than one week between any two publications, in the Gazette and in a newspaper generally circulating in South Australia.

(4)If the owner or registered mortgagee of any land is absent from South Australia, or if his address, after reasonable inquiries and searches in the office of the Registrar-General, cannot be found, any notice or document by or under this Act required to be given to or served upon such owner or registered mortgagee may be given to any agent or other person in South Australia to whom any rents or profits in respect of the land are paid or, as the case may be, to whom any payments under the mortgage or encumbrance of the registered mortgage are paid;and ifthere is no such agent or person in South Australia, any such notice or document may be given or served in manner provided by subsection
(3).

(5)Any notice or other document by or under this Act required to be given to or served on the owner or occupier of any premises may, if the name of the owner or occupier is not known, be addressed to him by the description of the 'owner' or 'occupier' of the premises (naming them) in respect of which the notice or document is given or served without further name or description.

(6)If there are more occupiers than one it shall be sufficient if any such notice or other document is given to or served on any one of them, and the name of any one of them is specified with the addition of the words 'and others'.

(7)The failure or omission to give or serve any notice or other document to or on the owner or any mortgagee shall not affect the validity of the giving or service of the same to or on the occupier;and the failure or omission to give or serve any notice or other document to or on the occupier or any mortgagee shall not affect the validity of the giving or service of the same to or on the owner;and the failure or omission to give or serve any notice or other document to or on the owner or occupier shall not affect the validity of the giving or service of the same to or on any mortgagee.

(8)Any document may be served on the housing authority -

(a) by delivering the same to the chairman or secretary of the housing authority;or

(b) by forwarding the same by post in a prepaid letter addressed to the chairman or secretary of the housing authority."

The section provides a reasonably comprehensive framework for effecting service of notices and so on upon those who are affected by them.I do not think that the section can be characterised as "a code" but it does seek to cover a number of possible methods of service.It does seem to cover a number of contingencies.

More importantly, in the context of this case, the section deals with service by post.It refers to sending a letter to a person's "usual or last known place of abode or business".Here the crucial notice was sent to neither the usual nor last known place of abode or business.Nor indeed was any other important document.

I have not overlooked the provisions of the Acts Interpretation Act, 1915.I can see no inconsistency between that Act and the Act.However, perhaps out of excessive caution, I set out section 33 of the Acts Interpretation Act which reads:-

"Meaning of service by post

33.(1)Where any Act passed after the passing of this Act authorises or requires any document to be served by post (whether the expression 'serve', 'give', 'deliver' or 'send', or any other expression is used), then, unless the contrary intention appears, the Act will be taken to provide -

(a) that the service is effected by properly addressing, prepaying and posting a letter or packet containing the document;and

(b) that, unless the contrary is proved, service will be taken to have been effected at the time at which the letter or packet would be delivered in the ordinary course of post.

(2)Where any Act authorises or requires any document to be served by registered post (whether the expression 'serve', 'give', 'deliver' or 'send', or any other expression is used) then, unless the contrary intention appears, the Act will be taken to provide that service may be effected by certified mail."

The relevant provision is s.33(1)(a).I need say no more than that the letter comprising the notice was not properly addressed.The section offers no assistance to the Defendant.

Returning now to the Act, I come to section 75 which is the section upon which the Defendant relies heavily as defending its actions.Section 75 reads:-

"75.(1)In all proceedings in which any notice or other document issued, given or served under this Act has to be proved -

(a) the defendant shall be deemed to have received notice to produce it;and

(b) until the contrary is shown, the due issue, giving, or service thereof may be sufficiently proved by or on behalf of the complainant by the production of what purports to be a copy bearing what purports to be a certificate under the hand of an officer of the housing authority or, as the case may be, the local board, that the copy is a true copy of the original and that the original was served on the date specified in the certificate.

(2)The validity of any notice or other document, or of the issue, giving, or service thereof shall not be affected by any error, misdescription, or irregularity which in the opinion of the court is not likely to mislead or which in fact does not mislead."

It is necessary to spend some time in analysing the section.The section (sub-section (1)(a)) refers to "the defendant" as being deemed to have received notice to produce a notice etc. in all proceedings in which the service of a notice has to be proved.The section (sub-section (1)(b)) has a reverse onus in that service may be proved by "the complainant" by production of a copy of the document in question bearing a certificate that it was served.That certificate appears (as a rubber stamp imprint) on many of the documents to which I have referred as comprising exhibit D2.

Sub-section (2) makes no mention of "complainant" or "defendant".It speaks of validity of any notice etc. and says that such validity will not be affected by error and so on which is not likely to mislead or which in fact does not mislead.

The Act (and in particular Part VII) contains a number of provisions which create offences.The only logical reading of section 75(1)(a) and (b) is that they relate to prosecutions and most probably prosecutions only.Sub-section
(2) can be read more widely as applying to all proceedings.The test prescribed in the event of error etc. in service is whether the error etc. in the view of the Court might or has mislead.

I have held that there was an error or irregularity in the sending of the notice to the Plaintiffs.That error not only was likely to mislead, it did in fact mislead.That happened in the most basic way.No notice of what the Defendant proposed mislead the Plaintiffs into their present predicament.

It is clearly implied in section 75 that the Act acknowledges the need for proper and effective service of documents.The meaning of the word "service" in the context of the legal system is so well understood that it is difficult to find any case or text that discusses the meaning of the word rather than its effect and the mechanics of service.Service of originating documents is basic to our legal system.It is basic to the exercise of jurisdiction or power. Its purpose is to notify a person potentially affected by legal proceedings (either by Court process or otherwise) of those proceedings and what they are about.

In researching the Defendant's submissions in particular, I have been impressed by how little has been said or written about what "service" means but how much has been written about the effects of invalid or improper service of documents.Those writings (as does the Act) assume the need for proper, valid service.Attempts to deal with problems created by elusive, evasive, absent Defendants and so on are all addressed and resolved as best they may be but, underlying the whole corpus of the cases and texts that I have read, is the assumption that, where people who are reasonably capable of being served are required to be served with documents, such service must be effective and proper in order to be regarded as valid.I can give no better illustration of what I mean than to refer to the joint judgment of the High Court in Fancourt v. Mercantile Credits Ltd. 154 C.L.R. 87 and the decision of O'Bryan J. in Taylor v. Marmaras (1954) V.L.R. at 476.

In the circumstances, I take the view that the Act does not assist the Defendant and that the fundamental error that occurred remains as an error which invalidates the all important notice and all that followed.

That, however, is not the end of the matter.Mr. Evans also contended vigorously that the Plaintiffs (through the agency and involvement of Mr. Peter Maroudas) had actual notice of the Defendant's intentions or, alternatively, must be regarded as having some form of constructive notice of those intentions.This, of course, if established, would remove the basis of the Plaintiffs' claim and also bring section 75(2) of the Act into relevance and operation.

The answer to that submission rests, very substantially, with the facts.I have made my findings as to the state of knowledge of Mr. Peter Maroudas and what he passed on to the Plaintiffs.I will not repeat those findings again. I think that the Plaintiffs either knew or must be taken to have known of the things that I have found as fact.That knowledge does not include the very crucial fact of the intended declaration and the time limit within which negotiations could take place.In fact, Mr. Peter Maroudas lacked the linguistic capacity to understand fully and properly what had been put in train.He formed the basic views that he passed on to his brother but the real position was not known to him or passed on.This happened mainly because the notice was not served on the Plaintiffs as it should have been.The fact that Mr. Peter Maroudas came into possession of a document of which he had imperfect understanding does not constitute knowledge of the section 52 notice on the part of the Plaintiffs nor does it relieve the off-handed and careless treatment of this matter by the Defendant's employees of its potential to mislead and its actual effect of misleading.

I take the view that notice must mean effective notice.It must involve at least a reasonable understanding of what is proposed to occur and what the potential consequences might be or, alternatively, it must give warning of consequences which put the person receiving it on notice and gives him a chance to take advice or negotiate.Proper notice cannot be partial, vague, incomplete portions of the truth gained second or third hand.

It follows that, in my view, the Plaintiffs must succeed.The failure to serve the initial notice upon them and the failure to serve other subsequent documentation, coupled with the failure of the Defendant's employees to discern the errors that had been made or to make greater efforts to communicate effectively with Mr. Peter Maroudas when the opportunity arose, renders the whole process a nullity.

In these circumstances, I make orders in terms of sub-paragraphs 15(a), 15(b) and 15(c) of the Statement of Claim which read:-

"(a) That the Notice of Intention dated the 27th day of May 1976 was not served on the plaintiffs pursuant to Section 74(1) of the Housing Improvement Act and is therefore null and void;

(b) That the Declaration dated the 8th day of July, 1976 was not served on the plaintiffs pursuant to Section 74(1) of the Housing Improvement Act and is therefore null and void;

(c) That any further Declarations made, including the Declaration of the 2nd day of September 1976, arising from the said Notice of Intention dated the 27th day of May 1976 and the Declaration dated the 8th day of July 1976 are null and void as they are predicated upon validity of the earlier Notice and Declaration;"

I will hear counsel as to the question of costs.

LATER IN COURT (28/11/96):

Plaintiffs entitled to declarations sought in paragraphs 15(a), 15(b) and 15(c) of the Statement of Claim.

The Defendant to pay the Plaintiffs' costs of the action to be taxed or agreed.