Rossi v Alameddine

[2010] NSWSC 967

CITATION:	Rossi v Alameddine [2010] NSWSC 967
HEARING DATE(S):	27 August 2010
JUDGMENT DATE :	8 September 2010
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Davies J
DECISION:	(1) Judgment for possession of the premises known as 329 Wedderburn Road, Wedderburn, NSW being the whole of the land in folio identifier 14/740774 in the local government area of Campbelltown, parish of Wedderburn, county of Cumberland. (2) Judgment for the Plaintiff in the sum of $48,373.70 together with interest pursuant to s 100 Civil Procedure Act 2005. (3) Plaintiff granted leave to execute writ of possession, such writ of possession not to be executed before 5pm on 30 September 2010 but if the Defendant pays $9,000 to the Plaintiff prior to 5pm on 24 September 2010 the writ is not to be executed prior to 5pm on 26 November 2010. (4) The Defendant is to pay the Plaintiff’s costs. (5) Orders to be entered forthwith.
CATCHWORDS:	LANDLORD AND TENANT - residential tenancies legislation - jurisdiction - no defence that Supreme Court has no jurisdiction under the Act - lease by implication of law - Defendant in occupation during and after occupation by registered lessee - Defendant paying rent due under registered lease - expenditure by Defendant for benefit of the land - principle in Ramsden v Dyson - no unconscionable behaviour on owner's part - no right to set off.
LEGISLATION CITED:	Civil Procedure Act 2005 Landlord and Tenant Act 1899 Residential Tenancies Act 1987 Residential Tenancies Regulation 2006
CATEGORY:	Principal judgment
CASES CITED:	Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582 Beaton v McDivitt (1987) 13 NSWLR 162 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Cohen-Hallaleh v Cyral Rosenbaum Synagogue Pty Ltd [2003] NSWSC 395 Commonwealth v Rhind (1966) 119 CLR 584 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] (1987) 162 CLR 153 Ramsden v Dyson (1866) LR 1 HL 129 Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100
PARTIES:	Susanna Rossi (Plaintiff/Cross-Defendant) Khaled Alameddine (Defendant)
FILE NUMBER(S):	SC 2010/35522
COUNSEL:	M J Cohen (Plaintiff/Cross-Defendant) In person (Defendant)
SOLICITORS:	Dignan & Hanrahan (Plaintiff/Cross-Defendant) In person (Defendant)

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

8 SEPTEMBER 2010

2010/35522 ROSSI V ALAMEDDINE

JUDGMENT

The proceedings

1 The Plaintiff is the registered proprietor of a property known as 329 Wedderburn Road, Wedderburn. The property is about 45 acres in size and appears to be used for farming and/or commercial purposes.

2 There is apparently a house on the property where the Defendant has lived with his family for some years although the precise length of time he has been there is in dispute.

3 At various times the Plaintiff has entered into leases with companies and individuals but even during the time of the existence of some of those leases the Defendant and his family have resided on the property.

4 A Notice to Quit was served on the Defendant in December 2009. The Defendant remains in occupation of the property.

5 The Plaintiff now seeks possession of the property. She also claims rent said to be due from the Defendant since April 2009.

6 After service of the Statement of Claim the Defendant filed a Defence claiming to have been in adverse possession of the property since October 1997. In addition he claims to have expended money on the property, dealt with third parties including the Local Council as if the property was his own, and improved the property. He also filed a cross-claim claiming orders in respect of the adverse possession, but in the alternative claiming damages of $76,800 for what he has expended on the property.

7 The matter first came on for hearing on 4 August 2010 before me. On that occasion a Mr Pope, solicitor, appeared for the Defendant and provided a medical certificate suggesting that the Defendant was too unwell to come to Court for hearing. The solicitor also sought leave to withdraw from the proceedings, having given notice to the Defendant approximately a month before that if certain conditions were not met by a certain date he could not continue to act.

8 I did not consider that the medical certificate was adequate to explain the Defendant’s absence. I granted Mr Pope leave to cease to act on the condition that he inform the Defendant that the matter would proceed on the following day and that the Defendant should appear, if necessary, with further medical evidence if any further adjournment was sought.

9 On the following day the Defendant appeared. He sought an adjournment so that he could get a fresh lawyer involved in the matter. Since the Plaintiff had only on the preceding day served 2 affidavits on Mr Pope, said to be in reply but, in my view, containing material that ought to have been part of the Plaintiff’s evidence in chief, I granted the Defendant a further adjournment until 27 August 2010. The Defendant said he may wish to respond to the recent affidavits of the Plaintiff and I directed that any further evidence he wished to rely on was to be filed and served by 12 August 2010.

10 On 27 August 2010 the matter came before me for hearing. The Defendant was unrepresented. He had complied with my direction and had filed and served a further affidavit on 11 August 2010.

11 Shortly after Mr Mark Cohen, counsel for the Plaintiff, commenced to open the case for the Plaintiff, the Defendant announced that he was no longer asserting that he had a possessory title to the property. He said all he was interested in doing was negotiating either a further lease of the property or purchasing it from the Plaintiff. The Defendant said, however, that he disputed the claim made for rent by the Plaintiff on the basis that he was entitled to set off against that rent the cost of the work he had done on the property.

The relationship between Plaintiff and Defendant

12 It is first important to understand how the Plaintiff puts her case. What is clear is that there is no written agreement between the Plaintiff and the Defendant in respect of the Defendant’s occupation of the land. At one level, it was surprising that the Plaintiff’s evidence omitted to say much about the Defendant’s occupation of the land. Although there was a dispute about how long the Defendant had been in occupation, there did not seem to be any dispute that he had been in occupation for various periods of time notwithstanding that there were registered leases to other parties.

13 Bearing in mind that the first time the Defendant claimed he occupied the land was 1997, the first lease of any relevance was between the Plaintiff and Jean and Joseph Rizk of 12 August 1993. That lease provided for a 10 year term commencing on 14 August 1992 and expiring on 13 August 2002. It appears that this lease was surrendered on 7 May 1999.

14 The Defendant’s evidence is that during the lease to the Rizks he sought to purchase their leasehold interest in the property but this was not agreed to by the Plaintiff. The Defendant says that he went into occupation of the property whilst the Rizk lease was on foot, and he continued in occupation after the refusal by the Plaintiff to agree to the assignment of the lease.

15 Thereafter, on 12 May 2000 the Plaintiff entered into a lease with a company called Travimond Pty Ltd for 5 years commencing on 12 May 2000 and terminating on 11 May 2005. It seems that Travimond was a company controlled by the Defendant’s brother Omar Alameddine. According to the Plaintiff’s mother Anna Rossi (who has the Plaintiff’s power of attorney), she had a conversation in March 2000 with Omar Alameddine where he indicated that he wanted to enter into a lease over the property since the Defendant was in gaol, and that he (Omar) would use his own company Travimond as the lessee.

16 After the lease to Travimond expired in May 2005 Anna Rossi says that the Plaintiff re-entered possession of the property. Thereafter on 2 August 2005 Pope & Spinks, solicitors for the Defendant, wrote to the Plaintiff’s solicitors saying that the Defendant was desirous of re-entering possession of the property and asking if the Plaintiff would agree to a lease to the Defendant.

17 That resulted in the lease of 24 August 2005 to Australian Halal Products Exports Pty Ltd. Anna Rossi says that she understood that that Company was a company controlled by the Defendant and it was paying rent on his behalf. The Defendant’s evidence, however, was that he and Halal Products were “affiliated in business matters”. That was said to mean that he and the Company “used to trade together”. He said there was only one director of that Company and it was a man called Mohammed Ben Ahmed. He said he had an agreement with Mr Ahmed that he (the Defendant) could stay on the land. Mr Ahmed dealt directly with the agent Frank Antonuccio as far as the payment of rent was concerned. The Defendant said the lease was taken in the name of that Company because he “was having some complications, personal complications”. He said he did not have a company himself and the lease was supposed to be in the Company’s name. What all of that meant was not explained.

18 In any event, the lease to Australian Halal Products was for a 2 year period. It came to an end on 23 August 2007.

19 The Plaintiff’s case was that at the end of that lease the relationship of landlord and tenant arose between the Plaintiff and the Defendant. It was said to arise by implication of law from the fact that the Defendant was in possession of the land. It was said to be on the same terms and conditions as the lease to Australian Halal Products.

20 This was not quite the way the matter was pleaded, with the Statement of Claim relevantly saying this:

2. The Defendant occupied the property pursuant to a Lease which was entered into by Australian Halal Products Exports Pty Ltd (ACN 094 963 658) on the 24 ^th August, 2005.

3. The Lease expired on the 23 ^rd August 2007 and the Defendant remained in occupation of the property on a month to month basis.

21 This pleading was somewhat inconsistent with the way Mr Cohen put the case both in submissions and in cross-examination to the Defendant. It was asserted that the Defendant only went into possession of the property at the conclusion of the lease to Australian Halal Products in August 2007. The Defendant certainly denied that that was so, and he received support from the Plaintiff’s agent, Mr Antonuccio, who agreed that the Defendant moved into the property in 1997 and was living on the land during the period of the lease to Australian Halal Products.

22 The Plaintiff also put questions to the Defendant suggesting that he and Mr Antonuccio came to an agreement in about August 2007 that the Defendant would occupy the land on the same terms as were in the lease to Australian Halal Products. Questions of this type were put on a number of occasions to the Defendant who denied them every time. It can be assumed that the questions were put on instructions. It is odd, therefore, that at no time did Mr Cohen seek to lead evidence from any of his witnesses, and particularly from Mr Antonuccio who gave oral evidence, that there was such an agreement.

23 The matter was made more unusual by the fact that the Plaintiff led evidence of Mr Antonuccio’s ledger which showed that rent paid up to April 2009 was received on account of Australian Halal Products. Mr Cohen informed me that the ledger contained an error on its face. When he proceeded to ask Mr Antonuccio a particularly leading question about the nature of the error Mr Antonuccio said that there was no error and that he had always used the name Australian Halal Products Exports on the computer in relation to the rent.

24 The only change that took place at the end of the lease to Australian Halal Products was that the Defendant paid rent to the agent Mr Antonuccio until April 2009 when he defaulted as a result of a number of cheques he proffered being dishonoured. Those cheques were for $10,000 and $25,000 although they were not his personal cheques.

25 It is not entirely clear if the relationship between the Plaintiff and the Defendant is that of lessor and lessee.

26 One available conclusion is that Australian Halal Products merely held over after the expiry of the lease term. Strong support for that is found in Mr Antonuccio’s ledger and in his oral evidence. However, an ASIC search was tendered showing that Australian Halal Products was dissolved on 22 March 2008, although Mr Antonuccio was unaware of this until shortly before the hearing.

27 Another possibility is that the relationship between the Plaintiff and the Defendant was that of licensor and licensee. A third possibility is that there was a relationship of lessor and lessee on a monthly tenancy basis. As matters developed in the case, it does not really matter. Both parties seem to accept that the Defendant has been in possession of the property for some time, that no-one else has been in occupation since at least August 2007, that the Defendant has paid rent and was obliged to do so, and that the Plaintiff is now entitled to possession of the property.

28 On the other hand, I do not think there is any basis for suggesting that the precise terms upon which the Defendant occupies the land is governed by the terms of the lease to Australian Halal Products Exports Pty Ltd.

The Residential Tenancies Act

29 Although, as I have indicated, the Defendant abandoned his claim for adverse possession and, ultimately, did not dispute that the Plaintiff was entitled to possession, a preliminary matter arose by reason of the Residential Tenancies Act 1987. Section 71 of that Act provides:

No proceedings in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement shall be commenced by a landlord against a tenant or former tenant of the landlord.

30 The definition of Residential Tenancy Agreement appears in s 3(1) as follows:

residential tenancy agreement means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence:

(a) whether or not the right is a right of exclusive occupation,
(b) whether the agreement is express or implied, and
(c) whether the agreement is oral or in writing, or partly oral and partly in writing,

and includes such an agreement granting the right to occupy residential premises together with the letting of goods.

31 Residential Premises is relevantly defined in s 3(1) as follows:

(a) means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence.

32 Mr Cohen argued that because the property was farming land and the property was leased for commercial farming as demonstrated in the leases between the Plaintiff and various parties from July 1989, the Residential Tenancies Act did not apply. I do not think that is correct.

33 The Defendant gave evidence that he and his family had lived in a house on the land since 1997. Certainly, he was challenged as to the period of time he had lived there. He acknowledged that he did not live there permanently during the period he was in gaol from 2000 to 2002 although he said that when he was out of gaol on work release he resided at the premises.

34 What was unchallenged, however, was that he and his family had certainly lived there since a lease to Australian Halal Exports Pty Ltd expired in August 2007.

35 It seems to me that part of the premises (being the dwelling house) was used as a place of residence within the meaning of the definition of “residential premises”. Section 6 of the Act sets out the circumstances when the Act does not apply to a residential tenancy agreement. It was not suggested that these premises fell within any of the matters listed in s 6. I do not consider that the premises are excluded from the operation of the Act by anything contained in s 6.

36 In Cohen-Hallaleh v Cyral Rosenbaum Synagogue Pty Ltd [2003] NSWSC 395 Barrett J said:

[19] It seems to me that the correct approach in the present case is to have regard to the overall structure of the Act. Section 3(1) defines “residential tenancy agreement” in the way already noticed. The definition does not attempt to deal with anything beyond the existence of an agreement, the status of that agreement as the source of a grant of a right by one person to the other, the requirement that the grant be for value, the nature of the right as a right of occupation, the nature of the premises as residential premises and the existence, as the purpose of the occupation, of a purpose of use as a residence. If all these elements are found to exist, the parties’ agreement is a “residential tenancy agreement” regardless of any other relationship that may exist between them.

[20] The Act recognises, however, that certain premises and certain relationships are beyond its reach – or, more precisely, the Act puts certain premises and certain relationships beyond its reach. This is the effect of ss.6 and 7. Those provisions recognise that a “residential tenancy agreement” may exist between a person standing in a certain relationship to a property owner (for example, as boarder or lodger: s.6(1)(d)) or in relation to premises of a certain kind (such as a hotel or motel: s.6(2)(b)). The provisions then expressly exclude the particular cases from the Act’s application. The scheme of the Act is therefore such that its provisions apply to every “residential tenancy agreement” unless a particular provision otherwise dictates, there being, in my opinion, no scope to read down or qualify the definition of “residential tenancy agreement” itself by reference to supposed implications drawn from some relationship between the parties that is additional to or wider than the relationship that causes a “residential tenancy agreement” to exist between them. The only reading down the Act contemplates is that expressly directed by its own provisions, including ss.6 and 7.

[21] There is nothing in the Act indicating that an agreement otherwise falling within the definition of “residential tenancy agreement” is somehow put beyond the reach of the definition by the fact that the parties are employer and employee or that the right of occupation is incidental to employment or that the premises form part of or are associated with a place of employment. …

37 However, clause 20 of the Residential Tenancies Regulation 2006 provides:

A residential tenancy agreement is exempted from the operation of the Act if it relates to premises that are let to the tenant by the landlord for residential purposes but where the predominant use of the premises let is for the purposes of a trade, profession, business or agriculture.

38 This provision was not relied upon by Mr Cohen to suggest that it operated to exclude the Defendant’s agreement with the Plaintiff from the operation of the Act. There was not sufficient evidence for me to decide whether the predominant use of the premises was for the purposes of a trade, profession, business or agriculture. Mr Cohen drew attention to the purposes of each of the leases that had been entered into by the Plaintiff for the land since 1989, and also drew attention to what the Defendant said in his own affidavit concerning the animals and birds that he kept on the land.

39 On the other hand, Mr Antonuccio gave this evidence:

Q. And did Australian Halal Products carry on any business at the land?
A. Yes, always living there, in the premises.

Q. What was the business that you understood they were carrying on there?

A. Oh, a business, couple of ships (scil. sheep) couple of horses, that's all. I didn't see any business.

Q. When they went into occupation of the land in August 2005, was Mr Alameddine living there at that time?
A. 2005. I think, yeah. 2005. 2005 yes he lived there, of course.

Q. And did he stay living there when that company went into occupation of the property?
A. That's correct, yes.
Q. And what about the company Travimond that had a lease prior to Australian Halal Products, did it carry on business at the property?
A. No. No business. I didn't see any business there. Didn't see business, no.

HIS HONOUR: Yes do you want to ask anything arising out of that?
COHEN

Q. Who did you understand to be operating Australian Halal Products Export Pty Limited?
A. Sorry, can you--

Q. Who did you understand to be operating Australian Halal Products Exports Pty Limited?
A. I knew he got a business in Bankstown area, that's all I know. That's how I recall.

Q. At Bankstown?
A. Bankstown area.

Q. Not at Wedderburn?
A. Not Wedderburn.

Q. Not on the property?
A. Not on the property. I never recall.

40 It does not seem to me that the evidence was clear enough to find what the predominant use of the premises was. Certainly, Mr Antonuccio’s evidence rather suggested that there was no other use of the land apart from the Defendant’s residing there with some animals and birds.

41 There was at least an evidentiary onus on the Plaintiff, if she wished to show that the premises were excluded from the operation of the Act, and the matter was left sufficiently unexplored that the onus was not discharged.

42 The next issue was whether s 71 operated to deny jurisdiction to the Supreme Court since the present proceedings were to obtain recovery of possession of residential premises. The issue arose in Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100. In that case the Commonwealth defended the proceedings based on s 71 of the Act. It argued also that s 71 denied jurisdiction to the Supreme Court regardless of that defence.

43 The Court of Appeal, having examined the High Court’s decision in Commonwealth v Rhind (1966) 119 CLR 584, a decision that concerned s 2A Landlord and Tenant Act 1899, determined that there was no relevant difference between that section and s 71. Kirby ACJ, having examined each of the judgments in Rhind, concluded that the majority opinion was that s 2A should be regarded as a defence and not a provision that denied jurisdiction to the Supreme Court. He concluded, therefore, that s 71 should be read in the same way. Sheller JA expressed a similar opinion. Powell JA did not feel it necessary to come to a conclusion on that issue because he thought that the Commonwealth had a defence to the claim in any event.

44 In the present case, no defence has been raised by Mr Alameddine based on s 71. In those circumstances, and in the light of the decision in Whiteford, the proceedings are properly commenced in this Court. There is no other defence to the claim and an order for possession should be made.

The rent

45 The Defendant conceded on a number of occasions that he had been paying rent on his own behalf since August 2007, that it was only just and right to pay for something that a person uses, that he had not paid the rent from May 2009 and that he was liable to do so.

46 Having every regard to the fact that the Defendant was unrepresented, it seems to me that the concessions were properly made. The Defendant demonstrated that he was perfectly able to defend himself against Mr Cohen’s vigorous cross-examination. His attitude to the payment of rent was entirely consistent with what he said on a number of occasions throughout the hearing, that he acknowledged that the Plaintiff was entitled to the land and that he had a responsibility for paying for his occupation of the land. His main point was, however, that he had expended a great deal of money on the land including paying for fencing and other matters, and that those amounts should be offset against the rent that was claimed.

47 In the cross-claim filed on his behalf by Pope & Spinks there was detailed various expenses which totalled $76,800. However, the only evidence of monies that could be regarded as having been expended by the Defendant on the land were 2 invoices in relation to fencing which totalled $15,669.58. The Defendant’s explanation for this was that he gave all documents that he had to Mr Pope, his solicitor at the time, but he could not find the remainder of receipts and invoices for monies he had expended.

48 It should be noted that one of the invoices for fencing was addressed to Lannos Pty Ltd, a company of which the Defendant was a director at one time but has since ceased to be. The Plaintiff submitted that if the invoice was addressed to Lannos, the Defendant had no liability to pay it. The Plaintiff also submitted that there was no evidence that either of these 2 invoices had been paid.

49 There is, however, a more fundamental problem for the Defendant embodied in the principles from Ramsden v Dyson (1866) LR 1 HL 129 at 140-141. Even if it is assumed in his favour that all of the monies were expended for the ultimate benefit of the Plaintiff, there is no evidence that the Plaintiff agreed to the Defendant’s expenditure of the monies nor scarcely any evidence that the Plaintiff knew about any such expenditure. The highest the evidence rose was an assertion during the Defendant’s oral evidence in answer to a question that I asked as follows:

Q. Well, when you spent this money on the property--
A. Yes.

Q. --did you ever get the agreement of any of the Rossi family or Mr Antonuccio to spend the money--
A. At some stage.

Q. --or did you just do it?
A. When the Council issued orders, the orders were not issued to me to remove certain buildings from the property, which I did at my own expense. That was issued to Susanna Rossi.

Q. Yes.
A. And those buildings and the orders from the Council was complied by me.

Q. But the question was when you spent the money did you get the agreement of any of the Rossi family or Mr Antonuccio before you spent the money--
A. Yes--

Q. --or did you just do it?
A. --no, I just, I went to Mr Rossi's house, I was sitting with him, I had a cup of coffee with him, Mrs Rossi was present, and I told him why pay $11,000 when I can do it for less. That was the conversation that took place in regards to the Council orders.

Q. And when was that?
A. In 2007 sometimes. Can't recall the exact date.

Q. After the orders were issued by the Council in January?
A. Yes.

50 I do not place much weight on this evidence for these reasons. First, in his first affidavit of 28 June 2010, at a time when the Defendant had solicitors acting for him, he made no mention of this or any other agreement with the Plaintiff as far as the expenditure of money was concerned. If there was such an agreement it would provide the strongest basis upon which the Defendant’s claim could be made out. Moreover, his solicitors could be expected to know, at least in general terms, of the principles associated with a person expending money for the purpose of benefiting land belonging to another person.

51 Secondly, the Defendant was granted an adjournment on 5 August 2010 principally to be able to respond to, and obtain legal advice about, 2 affidavits served by the Plaintiff on 4 August 2010. One of those affidavits was from Mr Antonuccio dealing with the failures of the Defendant to pay rent since April 2009. An obvious response to that material, even to an unrepresented person, would have been to put forward the evidence to answer the claim for rent. That evidence might be expected to have supported the cross-claim made by the Defendant to offset the rent by reason of expenditure of monies. That is inextricably bound up with an agreement with the Plaintiff, or at least the knowledge of the Plaintiff, now asserted in oral evidence by the Defendant.

52 Thirdly, the oral evidence did not go so far as to suggest an agreement on the Plaintiff’s part. The Defendant only asserted that he asked the Plaintiff why one would pay $11,000 to carry out work that the Council required when he, the Defendant, could do it for less. At best, the evidence suggests some limited knowledge on the Plaintiff’s part rather than an agreement. The problem with it, however, is that the only work listed in the cross-claim relating to doing work as a result of Council orders is said to cost $19,000. Accordingly, the oral evidence cannot easily be related to the claim made by the Defendant.

53 In my opinion, the evidence does not suggest that it would be unconscionable for the Plaintiff to assert her strict legal rights in relation to any benefit to the land that the Defendant’s expenditure has brought about: Beaton v McDivitt (1987) 13 NSWLR 162 at 171-172; Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582 at 605-612; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] (1987) 162 CLR 153 at 165.

54 For these reasons, the Defendant has no right to set off any amounts he has expended against any rent he owes the Plaintiff.

55 The evidence with regard to the rent being paid by the Defendant was left in a most unsatisfactory state. The only documents put into evidence tending to show the rent that was due was, first, a copy of the lease to Australian Halal Products Exports which showed the commencing rent under that lease at $2,471.43 per month. The second document was Mr Antonuccio’s trust ledger report from 2 July 2008 to 27 November 2009. That document was difficult to understand. However, it had an entry on 6 April 2009 which said:

Rent Last Reneg OLD: 2718.57/M1 NEW: 2990.43/M1

56 There were then subsequent entries apparently showing receipt of amounts including $5000 apparently in cash, and thereafter two cheques which were dishonoured. Alongside each of those receipts was written “Rent 2990.43” followed by figures suggesting the amount of arrears, and then a series of dates which are not easy to understand.

57 The Plaintiff does not lead evidence of the renegotiation of the rent to $2,990.43 as the trust ledger report suggests happened. There is nothing in that ledger which shows an acknowledgement on the Defendant’s part that that was the rent because the only amount paid subsequently was the round figure of $5000, apart from the 2 dishonoured cheques that were also in round figures.

58 Two things, however, suggest that the rent, or at least, an appropriate occupation fee, is the figure of $2,990.43. The first is that Mr Antonuccio said that the ledger recorded the position with regard to the rent. Secondly, the Defendant acknowledged that he had to pay the rent payable under the lease to Australian Halal Products. As I have said, the lease showed the commencing rent at $2,471.43 per month. Clause 5.1 of that lease provided that the rent was payable at that amount as varied by Schedule 1 to the lease. Clause 5.2 said that the annual rent was to be reviewed in accordance with the provisions of Schedule 1. Schedule 1 provided that the yearly rent was to increase on each anniversary of the commencement date of the lease by 10% of the rent reserved in the year prior to the relevant anniversary. The rent payable, therefore, from 24 August 2007 (if that lease applied from that time) was in fact $2,990.43. Had it continued to be adjusted by an increase of 10% per year the Defendant would have been bound to pay $3,280.47 from 24 August 2008 and $3,608.51 from 24 August 2009. What is being charged to the Defendant from 6 April 2009 is therefore considerably less than he acknowledged he was bound to pay under that lease.

59 On that basis, therefore, I find that the rent payable from 6 April 2009 was $2,990.43. Alternatively, that is an appropriate occupation fee.

60 The outstanding amount to 5 September 2010 is therefore $48,373.70.

61 The Plaintiff seeks an order for indemnity costs on the basis that the defence claiming adverse possession was always hopeless. The Plaintiff relies on cases such as Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234.

62 Certainly, on the basis of reading only the Defendant’s evidence the case for adverse possession had no reasonable prospects of success and might be regarded as having been hopeless.

63 Nevertheless, I do not consider that this is an appropriate case in which to award indemnity costs to the Plaintiff. Although the Defendant was unrepresented, he had earlier been represented by solicitors when his Defence of adverse possession was filed and pursued. My assessment of the Defendant is that he was unlikely to have known of the concept of adverse possession unless he had been advised of it by a lawyer, or possibly some other person. My impression from what he said to me during submissions was that he had been advised about adverse possession after he received the Plaintiff’s claim.

64 The Plaintiff points to a copy of a judgment of this Court in proceedings brought by Mr and Mrs Rizk against the Defendant and a company whereby the Rizks obtained possession of land at 207 Wedderburn Road, Wedderburn against the Defendant and the company. It was submitted that this showed that the Defendant understood the concept of adverse possession and that he could not have been entitled to it in the circumstances. However, the document was never put to the Defendant in the witness box, and there is nothing on the face of it to suggest that it was given after a contested hearing. Its relationship to the Plaintiff’s land was not made clear. It does not seem to me to provide any assistance in determining if the Defendant himself knew of the principle of adverse possession and, by reason of this judgment, must have known he was not entitled to the Plaintiff’s land.

65 After the Defendant’s solicitor ceased to act in the proceedings and at the outset of the proceedings the Defendant said, as I have noted earlier, that he was no longer asserting he had a possessory title to the property. The proceedings always had to be heard to determine the disputed claim concerning rent and the right of the Defendant to offset his expenditure against rent. The defence of adverse possession did not, therefore, prevent an earlier determination of the proceedings.

66 For these reasons, I do not consider it is appropriate to order that the Defendant pay the Plaintiff’s costs on an indemnity basis.

Conclusion

67 Accordingly, I make the following orders:

(1) Judgment for possession of the premises known as 329 Wedderburn Road, Wedderburn, NSW being the whole of the land in folio identifier 14/740774 in the local government area of Campbelltown, parish of Wedderburn, county of Cumberland.

(2) Judgment for the Plaintiff in the sum of $48,373.70 together with interest pursuant to s 100 Civil Procedure Act 2005.

(3) Plaintiff granted leave to execute writ of possession, such writ of possession not to be executed before 5pm on 30 September 2010 but if the Defendant pays $9,000 to the Plaintiff prior to 5pm on 24 September 2010 the writ is not to be executed prior to 5pm on 26 November 2010.

(4) The Defendant is to pay the Plaintiff’s costs.

(5) Orders to be entered forthwith.

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