Sanders Executive Pty Ltd v Genovese
[2016] WADC 21
•25 FEBRUARY 2016
SANDERS EXECUTIVE PTY LTD -v- GENOVESE [2016] WADC 21
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 21 | |
| Case No: | CIV:1004/2014 | 16-18 & 21 DECEMBER 2015 | |
| Coram: | GOETZE DCJ | 25/02/16 | |
| PERTH | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's action dismissed Judgment on the counterclaim for the defendants in the sum of $2,791.50 | ||
| PDF Version |
| Parties: | SANDERS EXECUTIVE PTY LTD SALVATORE GENOVESE SANDRA JOY GENOVESE |
Catchwords: | Written offer to lease premises, never accepted in writing Periodic tenancy from month to month Land tax charged to tenant based on landlords' multiland ownership Commission charged Land tax and commission both paid over periods of time without tenant appreciating such payments Unilateral mistake Misleading and deceptive conduct Unjust enrichment Repairs at end of tenancy and claim for rent |
Legislation: | Limitation Act 2005 Property Law Act 1969 |
Case References: | Cielo v MG Kailis Gulf Fisheries Pty Ltd (1991) 104 FLR 189 Ideas Plus Investments Ltd v National Australia Bank Ltd (2006) 32 WAR 467 Redbridge London Borough Council v Robinson Rentals Ltd (1969) 211 EG 1125 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SALVATORE GENOVESE
SANDRA JOY GENOVESE
Defendants
Catchwords:
Written offer to lease premises, never accepted in writing - Periodic tenancy from month to month - Land tax charged to tenant based on landlords' multiland ownership - Commission charged - Land tax and commission both paid over periods of time without tenant appreciating such payments - Unilateral mistake - Misleading and deceptive conduct - Unjust enrichment - Repairs at end of tenancy and claim for rent
Legislation:
Limitation Act 2005
Property Law Act 1969
Result:
Plaintiff's action dismissed
Judgment on the counterclaim for the defendants in the sum of $2,791.50
Representation:
Counsel:
Plaintiff : Mr N P M De Kerloy
Defendants : Mr R H B Pringle QC
Solicitors:
Plaintiff : Mony De Kerloy
Defendants : Not applicable
Case(s) referred to in judgment(s):
Cielo v MG Kailis Gulf Fisheries Pty Ltd (1991) 104 FLR 189
Ideas Plus Investments Ltd v National Australia Bank Ltd (2006) 32 WAR 467
Redbridge London Borough Council v Robinson Rentals Ltd (1969) 211 EG 1125
- GOETZE DCJ:
Introduction
1 The plaintiff company trades as Mount Lawley Realty. The two directors of it are Mr and Mrs Sanders. In late 2004, they were looking for new premises for their business and made a written offer to lease property at 175 Walcott Street, Mt Lawley which is owned by the defendants, Mr and Mrs Genovese.
2 The written offer was never accepted in writing. However, Mr Sanders met Mr Genovese and/or Mr Genovese's employees with respect to Mr Sanders' requirements for repairs to the subject premises prior to commencement of the lease and occupancy. They also corresponded with each other.
3 The plaintiff company, through Mr Sanders, subsequently took possession of the premises in March 2005 and remained in occupation without dispute for over seven years until Mr Sanders learnt that Mr and Mrs Genovese were charging land tax calculated on the basis of Mr and Mrs Genovese owning multiple properties and that they were also charging an administration expense. When Mr Sanders discovered these charges in late 2012, he raised them with Mr Genovese who told him that if he did not like such charges then, his company was free to leave the premises, which it duly did in December 2013.
4 Sanders Executive then commenced this action seeking a refund of monies allegedly overpaid by way of land tax and management fees. Mr and Mrs Genovese have counterclaimed the cost of repairs to the premises to bring them up to a tenantable condition and loss of rent after Sanders Executive departed.
Background facts
5 The facts are, by and large, not disputed. Unless otherwise stated, the undisputed factual findings can be made as follows:
1. Mr and Mrs Genovese owned 175 Walcott Street, Mt Lawley. They rented it out. Their last tenant left the premises in 2003.
2. Mr Genovese instructed three or maybe more real estate agents to find a new tenant. Such instructions were oral.
3. Prime Property Agency Pty Ltd was one of the agencies instructed to find a tenant.
4. Mr Murray Franconi was a real estate agent with connections to Prime Property.
5. A sign was placed in the shopfront window at 175 Walcott Street referring to Prime Property and Mr Franconi. It also provided Mr Franconi's mobile telephone number.
6. Mr Sanders saw the sign. He rang Mr Franconi's number and twice, Mr and Mrs Sanders met Mr Franconi at the premises for inspection purposes.
7. On instruction from Mr and Mrs Sanders, Mr Franconi wrote up a standard form offer to lease the subject premises by Sanders Executive Pty Ltd t/as Mount Lawley Realty. That offer comprised certain terms, including:
(a) a three year lease from 1 February 2005, with two options of renewal for three years each;
(b) monthly rent in the sum of $1,136.33;
(c) rent reviews every three years;
(d) land tax payable by the lessee calculated on a single ownership basis;
(e) no administration expense; and
(f) the lessors to attend to certain repairs at the lessors' expense.
8. At some unspecified time, Mr Franconi took the written offer to Mr Genovese, but he did not show that offer to Mr Genovese. Rather, Mr Franconi first required a commission of $600 which Mr Genovese refused to pay, saying that such commission should be paid by the lessee.
9. In some way which the evidence does not reveal in detail, Mr Sanders and Mr Genovese and/or his staff met each other and they discussed Sanders Executive leasing the property, subject to certain repairs being undertaken by Mr and Mrs Genovese. Mr Sanders claims that there was an oral acceptance of the written offer to lease.
10. In cross-examination, Mr Sanders was asked who had accepted the written offer to lease. He said:
… I'm not sure. I think it was Franconi. It might have been Mr Genovese. I don't know. It wasn't important. What was important, that we had acceptance of our offer to lease 175 Walcott Street and that the conditions were going to be accepted and done. So I'm not sure …
11. Mr Sanders said acceptance was
because we got the keys, the conditions were put right and we moved in.
12. Mr Genovese said that Sanders Executive took possession of the premises 'through my office' and that Mr Sanders 'probably got the key from my office'.
13. In cross-examination, Mr Genovese said:
it was between me and Mr Sanders – not me but our office and Mr Sanders, you know. That all charges we – we would – and that went on for nine years ...
… It was conduct and then it went on for nine years.
14. Over a short period of time, the repairs requested by Mr Sanders were undertaken both by Mr Genovese's staff and Mr Sanders.
15. Ultimately, Sanders Executive took possession of the subject premises on 20 March 2005.
16. On 25 May 2005, Mr Sanders drew a cheque payable to Mr Franconi in the sum of $600 and left it at Mr Sanders' office front desk for Mr Franconi to collect. Mr Franconi did not collect it then. It never has been collected. Mr Sanders said that he drew this cheque at the request of Mr Genovese, who disputes this. Nonetheless, the cheque was drawn and tendered into evidence.
17. The first invoice from Mr and Mrs Genovese was dated 31 May 2005. This covered the rental period from April to June 2005 inclusive.
18. The rent per month claimed by the invoice was the sum of $1,136.33, together with a monthly charge for rates, land tax and insurance in the total sum of $657.07, plus GST. The invoice was paid.
It should be observed here, that, the sum of $1,136.33 matched the rent offered by Mr Sanders at [5.7] above. This sum was determined by reference to the monthly rent previously paid for the premises by Mr and Mrs Genovese's last tenant.
19. In 2006, a window at the premises was damaged and on 28 February 2006, Mr Sanders sent a facsimile transmission to Mr Genovese, including the following:
Checking the lease – the window maintenance is your cost.
Standard commercial/industrial property lease (Part A) clause 9.1.
Mr Sanders gave uncontradicted evidence that Mr Genovese paid for the damaged window.
Apart from this correspondence and rent review documents, there is no reference to 'the lease' until after the parties began to dispute the existence of a lease.
20. From May 2005 until October 2012, Mr Genovese's office sent monthly invoices to Sanders Executive respecting rent, rates, land tax and insurance. Each month, those invoices were duly paid. Mr Sanders personally received the invoices as incoming mail. He looked at them and then passed them on to his administration manager for payment without either of them having any further regard for the detail of their content.
21. Rent was not increased every three years in accordance with what Mr Sanders believed to be the rent review clause of the offer to lease. Rather, the documentary evidence shows the rent was reviewed annually from February 2007 onwards.
22. In most of the rent review documents from Mr and Mrs Genovese, there is reference to such reviews being 'as per Lease Agreement' but, details regarding the 'Lease Agreement' were not provided. The rent review forms seem to be pro forma documents. Mr Genovese said his staff would have sent these rent review documents.
23. When sending outgoings advices, Mr and Mrs Genovese did not indicate the method of calculation of land tax. Rather, in each year of the tenancy, an annual amount was simply claimed for the total of each of the rates, land tax and insurance. This total amount was then divided into a monthly component, which was then the figure included in each monthly invoice throughout the relevant year.
24. Prior to the 2010/2011 financial year, Mr and Mrs Genovese had not charged a management fee, but in that year, they charged a fee being 25% of outgoings and in each of the following two years, they charged 8% for what was then said to be for 'management' and 'administration' respectively.
25. For the 2012/2013 year, the annual outgoings advice and monthly calculation was dated 30 November 2012. When it was received at Sanders Executive, the administration manager was on leave. Mr Sanders then observed the amounts charged for land tax and the fee then described as an 'administration' expense. He made some enquiries and ascertained that the land tax charged to Sanders Executive was calculated on the basis of Mr and Mrs Genovese owning multiple properties. Mr Sanders also observed that, contrary to the written offer to lease excluding an administration expense fee, Mr Genovese was now charging such an administration expense.
26. Mr Sanders then made contact with Mr Genovese and referred him to the lease but, Mr Genovese said there was no lease. Mr Sanders referred to his offer to lease but, Mr Genovese said that that offer was never signed by him and he repeated that there was no lease between the parties.
27. Mr Genovese advised Mr Sanders that if he did not wish to continue to pay land tax and the administration expense, as had by then both been paid for some years, Sanders Executive could leave the premises. Mr Sanders then began to seek out alternative premises.
28. Some months later, Sanders Executive left the premises once alternative premises were available in December 2013.
Further findings
6 It is clear that the written offer to lease the premises was never accepted in writing by Mr and Mrs Genovese. Mr Sanders could only say, at best, that the written offer was orally accepted by either Mr Franconi or Mr Genovese. He could not provide any detail of the oral acceptance of the written offer to lease.
7 Mr Genovese did not specifically say that any other offer to lease was accepted. He was unable to say by whom, when or how any other offer to lease was accepted, other than that Sanders Executive went into possession and paid the monthly rent and charges. He referred to 'conduct' as indicating acceptance.
8 It is also clear, that, by some loose arrangement never precisely articulated in evidence, Mr Sanders met with Mr Genovese and/or with members of Mr Genovese's staff in early 2005 to arrange for repairs to the premises prior to Sanders Executive taking possession. Mr Sanders also undertook some repairs. Once all such repairs were completed to Mr Sanders' satisfaction, Sanders Executive then took possession on 20 March 2005. This timing of actual possession is at odds with the written offer to lease, which had provided for possession from 1 February 2005.
9 Thereafter, Sanders Executive paid monthly invoices in respect of rent, rates, land tax and insurance and from the 2010/2011 financial year, an administration fee. By November 2012, when Mr Sanders became aware of the problem with land tax and the administration fee, Sanders Executive had been paying land tax on a multi-ownership basis rather than a single ownership basis for seven and a half years and it had been paying an administration fee for the previous two years.
10 Absent written acceptance of the offer to lease, there was no written lease. It seems that Mr Sanders and Mr Genovese were both quite comfortable in not having either a written acceptance of the written offer to lease, or a written lease.
11 My finding is that there was a lease which was both partly oral and is to be inferred by conduct. Insofar as the lease was oral, it comprised conversations between Mr Sanders and Mr Genovese and/or his staff. Those conversations cannot now be detailed with any precision by anyone. However, it can be inferred that certain oral terms were agreed, being that the premises were to be repaired to Mr Sanders' satisfaction and that possession was then to be taken by Sanders Executive. The repairs were to be completed by Mr and Mrs Genovese but, Mr Sanders was also to undertake certain work on the premises and he did so. It can be inferred that the parties agreed to the delivery and taking of possession, because that in fact occurred and possession remained in the hands of Sanders Executive until returned to Mr and Mrs Genovese. To this end, the lease was performed.
12 There were either no further oral terms agreed as such or at least, no further oral terms have been proved by either of the parties. Rather, after the repairs were completed and possession was taken by Sanders Executive, Mr and Mrs Genovese sent an invoice on 30 May 2005 for rent, rates, land tax and insurance for the months of April, May and June 2005. Sanders Executive duly paid that invoice without query. This monthly procedure then continued until November 2012.
13 My finding is therefore, that, by reason of the monthly invoicing, it can be inferred that there was a periodic tenancy from month to month. By reason of s 71 of the Property Law Act 1969, it could not have been a periodic tenancy from year to year.
14 Further, it can be inferred that the lease was varied when rent and/or rates, land tax and insurance charges were increased and further still, the lease was varied from the time when the administration fee was introduced in the 2010/2011 financial year. Acceptance of the increases can be inferred from payment by Sanders Executive from the time when each of the rent and/or rates, land tax and insurance charges were increased. Acceptance of the administration fee can also be inferred from when it was first charged in the 2010/2011 financial year and then paid on a monthly basis, without query, until November 2012.
15 There is no evidence that Mr and Mrs Genovese knew of the written offer limiting land tax charges to an amount based only on single ownership and the written offer excluding an administration expense.
16 Mr Sanders did not 'look into outgoings'. He did not assume there would be anything wrong. His only aim was to pay the rent on time. His evidence was that he received the monthly invoices and he passed them to his administration manager for payment without query.
17 Sanders Executive paid land tax calculated on the basis of multi-land ownership from 2005 to 2012. Mr Sanders did not know his company was paying land tax so calculated but, he authorised payment of that land tax without question and without seeking any clarification until November 2012. He may have been mistaken as to what he thought was the basis of payment but, it cannot be said that Mr and Mrs Genovese knew of his mistake. It was not a mistake on their part. Rather, as Mr Sanders frankly admitted:
I've never had to worry about looking at invoices. I've just paid them. It might be slack, I know, but I've never had to worry. It's been a business arrangement on a professional basis.
18 Likewise, the fact that Mr and Mrs Genovese unilaterally determined to charge an administration fee from 2010/2011 onwards was something which was either known by Mr Sanders or should have been appreciated from its inception by him upon proper inspection of the monthly invoices.
19 Mr Sanders authorised payment of the monthly invoices, including land tax and the administration expenses, either knowing of them or not knowing and being reckless by not caring to make any inquiry with respect to the method of calculation of the land tax charges, or the existence of the administration expenses.
20 Mr Sanders' mistake in making payment of the invoices in respect of multi-ownership land tax and the administration expenses was not known to Mr and Mrs Genovese and as such, there is no remedy open to Mr Sanders: see Redbridge London Borough Council v Robinson Rentals Ltd (1969) 211 EG 1125; and Cielo v MG Kailis Gulf Fisheries Pty Ltd (1991) 104 FLR 189.
21 In any event, s 13 of the Limitation Act 2005 would limit any claim for reimbursement of land tax to six years prior to the issue of the writ on 2 April 2014.
22 In the circumstances, the claim for reimbursement of land tax and the administration expenses must be dismissed.
Misleading and deceptive conduct
23 Although it has been pleaded, Mr and Mrs Genovese have not been guilty of any misleading and deceptive conduct. Counsel for Sanders Executive did not make any submission about this at the conclusion of the trial.
Unjust enrichment
24 From the beginning of the tenancy until its end, Mr and Mrs Genovese charged monthly land tax. Each year, they provided an advice detailing the annual amounts claimed for each of the rates, land tax and insurance. The total was then broken down into monthly charge. The advices did not detail whether land tax was calculated on the basis of multiple or single land ownership.
25 From 2010/2011, Mr and Mrs Genovese unilaterally decided to charge an annual administration expense. The method of its calculation was detailed and it was then broken down into the monthly charge.
26 Mr Sanders simply received the monthly invoices, including detail as to land tax and administration expenses, and passed them to his administration manager for payment without question. Mr Sanders was not mistaken as to the amounts he was paying or indeed, as to what the invoices were for. Rather, Mr Sanders did not question the invoices.
27 There was nothing untoward on the part of Mr and Mrs Genovese in charging multi-ownership land tax notwithstanding the written offer to lease because, on the evidence, they had not seen that written offer. Nor was there anything untoward in them unilaterally imposing an administration expense into the monthly invoices from 2010/2011 onwards if they so chose, even if it is an expense more properly charged by real estate agents to landlords. Mr Sanders could then decide whether or not to pay. In the event, he paid that monthly administration fee without query until November 2012.
28 Mr Genovese claimed that Sanders Executive only ever paid a peppercorn rent or a very low rent which was determined by what the previous tenants had paid. He said that that rent had not increased during the 10 year term of the previous tenancy. This was a reason for him charging land tax on the basis of multi-land ownership and also for later charging an administration expense.
29 Mr Genovese's evidence was that the new tenant subsequent to Sanders Executive pays double the rent previously paid by Sanders Executive.
30 There was no expert evidence led at trial as to the fair market rental value of the premises.
31 Mr Sanders is a real estate agent and can reasonably be taken to have known a fair market rent or at least, a rent that was not too high, for the premises during the term of the tenancy. Mr Sanders was willing to pay the rent and other costs as requested and did so from 2005 to 2012 without query.
32 Mr Genovese had a tendency to generalize throughout his evidence. Although there was documentary evidence to indicate that Sanders Executive was charged the same rent as Mr and Mrs Genovese's previous tenants had paid at the end of their lease, there was no such documentary evidence with respect to rent paid at the commencement of the previous tenants' lease or what the tenant subsequent to Sanders Executive was paying for rent. I am not prepared to accept Mr Genovese's evidence as to rent absent documentary proof. As noted, there is no expert evidence as to rental values.
33 It can only be found that the rent paid by Sanders Executive was not too high.
34 Given the finding that the rent was not too high, it cannot be said that there was a failure of consideration, or that the payments of land tax and the administration expenses on top of the agreed and increased rent enriched Mr and Mrs Genovese by the receipt of a benefit or by imposing a countervailing detriment on Sanders Executive at its expense. Further, it cannot be said that it would be unjust to allow Mr and Mrs Genovese to retain these payments. There is no vitiating factor which assists Sanders Executive given Mr Sanders' authorisation in the manner previously described of the payment of monthly invoices until November 2012: Ideas Plus Investments Ltd v National Australia Bank Ltd (2006) 32 WAR 467 [63] – [67]. This is so notwithstanding the inability of Mr Genovese to justify the administration expenses.
35 In the circumstances, the claim for unjust enrichment must fail.
Counterclaim
36 The amended defence and counterclaim pleads that:
(1) Sanders Executive promised to carry out renovations and repairs to the premises during its occupation thereof and to keep the premises in good and proper order;
(2) Sanders Executive did not regularly maintain the premises in good and proper order;
(3) at the time of vacating the premises, they were not in good and proper order and repair; and
(4) Sanders Executive failed to pay rent and outgoings totalling $2,791.50 for the last month of its occupation of the property.
37 Mr Genovese gave evidence that Sanders Executive leased the premises at a low rent on the basis that Sanders Executive would repair and maintain the premises. This evidence does not match, and alleges more than, the pleaded promise referred to at [36.1] above. Mr Genovese was not able to give any detailed evidence relating to the promise. Mr Genovese was only able to say during his evidence-in-chief that Mr Sanders:
... would have came and saw me and we would have talked or I would have – we definitely went to his opening, whatever it was, cocktail … drinks and whatever.
38 Mr Genovese also said that he did not meet Mr Sanders on site. Mr Genovese said of himself that he was:
… a busy man, I'm telling you. It's – it's not – he'd [Mr Sanders] talk to the office and the – the office girl ...
39 Mr Genovese said that he did not get mixed up in the 'nitty gritty' of who organized repairs and renovations and what his maintenance man did to effect
repairs and everything to go with that
- prior to Sanders Executive taking possession. He had staff to do that.
40 In cross-examination, Mr Genovese said that Mr Sanders dealt with his office as noted above at [5.12 and 13].
41 Mr Genovese also gave evidence that Sanders Executive was to deliver up the premises in good order at the end of the lease. He was cross-examined as to the pleading requiring Sanders Executive to deliver up the premises in good and proper order as follows:
Well - well - but did - where do you say Mr Sanders is obliged to make these repairs?---Because he should have left the place in a good condition like he - - -
Well – but - - -?--- - - - took it at the beginning.
Well, correct me if I'm wrong. My understanding is that the obligations of a tenant are to leave the property as they - - -?--- As they - they got it.
Right?---Correct.
Right. Now, then there were all these repairs that were conducted that you've heard about. And you said you cooperated and did them together. So am I correct to assume after those repairs were done the property was in a better shape than it was before?---Not really. We - we brought it to a shape where we could lease it. And as you know, the - if you - - -
Well, okay. But I - - -?---If you read the correspondence [after the tenancy had ceased], you'll find that I asked Mr Sanders eight or 10 times, 'Please try and help us to bring the property up to scratch' - - -
Well, asking him - - -?--- - - -' 'so we can re-lease it'.
Asking him is one thing, but where was he obliged to do it? He was supposed to leave it in a good condition - - -
According to what - - -?--- - - - state of repairs.
According to what agreement - according to what document, do you say?---Well, it's - you know, when he was leaving, I said, 'Well, who's going to fix all these items up'.
Did – did - - -?---And he says, 'It's in better shape than when I got it', and I said, 'Not really because I can't lease the property the way it is'.
So there was a discussion---Yeah, yeah. I – mentioned - - -
But there was never any agreement or - - -?---He said, 'All you need to' – he said, 'Spend five or six grand, or give it a coat of paint. It'll be as good as new'. But that's – that's not so.
42 Counsel for Mr and Mrs Genovese referred to the text in Bradbrook, Croft and Hay, Commercial Tenancy Law (3rd ed, 2009) 242 [8.7] that:
An implied covenant on the part of the tenant to use the premises in a tenant-like manner arises from the very relationship of the parties; moreover, such a covenant is not displaced by an express covenant to repair, since the two covenants do not cover the same ground: City of Ballarat v Waller [1924] VLR 115; …
43 It can be readily accepted that there was an implied covenant on the part of Sanders Executive to use the premises in a tenant-like manner, with or without an express covenant to repair. This implied covenant required Sanders Executive to not be guilty of any negligent act or omission or to act unlawfully in respect of the premises. However, such an implied covenant does not require a tenant to make good any fair wear and tear occurring during the course of the tenancy.
44 There was no acceptable evidence from Mr Genovese to support his pleadings that Sanders Executive would renovate, repair and maintain the premises or that Sanders Executive would deliver the premises up in good order.
45 It is illogical to suggest that a periodic monthly tenant would agree to renovate and repair premises, and in this case including prior to taking possession of the premises and to maintain those premises in good and proper order, given that such tenant would then immediately be at risk of the landlord terminating the periodic tenancy at the end of any period in which the renovations and repairs had been completed. Mr and Mrs Genovese well knew that Sanders Executive did not have a tenancy for a period of years. Rather, they must have appreciated that the tenancy was from month to month, given that this was how the rent was charged and paid. They could not reasonably expect a monthly tenant to meet the obligations pleaded against Sanders Executive.
46 In these circumstances, it cannot be said that the promise to renovate, repair and maintain the premises and to deliver them up in good and proper order was made in consideration of low rent as claimed in evidence by Mr Genovese. There was no meeting of the minds in this regard.
47 It can be accepted that both Mr and Mrs Genovese and Sanders Executive were to carry out agreed renovations and repairs prior to the commencement of the tenancy, and that such renovations and repairs were carried out to the satisfaction of both parties, given that possession was handed over from 20 March 2005.
48 It cannot be found that Sanders Executive agreed to carry out renovation and repairs to the premises during its occupation thereof and to keep the premises in good or proper order and to deliver them up in such a state at the end of the tenancy. There is no acceptable evidence of this.
49 This then leaves the implied covenant to use the premises in a tenant-like manner. Clearly, fair wear and tear will occur to any building over an eight year period. However, as will be seen below, there is no evidence that any of the repairs requested at the termination of the tenancy were caused by any negligent act or omission or unlawful act on the part of Sanders Executive or any person for whom it is vicariously liable. The repairs required at the termination of the tenancy and being attributable to Sanders Executive only amounted to repairs for fair wear and tear.
50 Counsel for Mr and Mrs Genovese conceded that if there was no express promise by Sanders Executive to carry out repairs at the end of the tenancy, and it must be found that there was no such promise, then the implied covenant to use the premises in a tenant-like manner excepted fair wear and tear.
51 In the circumstances, the claim for repairs at the end of the tenancy as set out in the letter dated 22 January 2014 from Mr Genovese to Mr Sanders is dismissed. However, should this reasoning be incorrect, it is necessary to examine that claim.
52 The letter dated 22 January 2014 from Mr Genovese listed 24 items requiring repair to bring the place up to a 'rentable condition' does not however, detail the work involved and the cost thereof. To that end, Mr Genovese prepared a schedule for trial purposes entitled 'Repair/expenses invoices and quotations' – exhibit 18. That schedule itemised the following:
1. Doubleview Glass
2, 3 & 4. Pearce's Plumbing Service
5. Arns & Associates
6 & 7. Charles Parrella
8. District Court
9. Impulse Painting and Decorating
10. Internal work summary
53 Attached to the schedule are various documents detailing the separate amounts claimed under each of the 10 items.
1. Doubleview Glass
54 Mr Genovese said that 'there was a big hole in the front of the glass', which Mr Sanders had reported to the police.
55 There is no evidence that this repair was caused by any negligent act or omission by Sanders Executive or any unlawful act on its part.
2, 3 & 4. Pearce's Plumbing Service
56 This expense was incurred by reason that the dividing fence separating the next door neighbour's property fell down when the neighbour carried out certain demolition of buildings to the neighbour's property and vandals came and took copper piping (plumbing) away from the subject premises, which required replacement. Some work had to be done again. Mr Genovese was unable to explain the detail.
57 There is no evidence that this expense was incurred by reason of any negligent act or omission or any unlawful act on behalf of Sanders Executive.
5. Arns & Associates
58 This was a solicitor's memorandum of costs which counsel for Mr and Mrs Sanders conceded was not claimable.
6 & 7. Charles Parrella
59 These invoices were incurred by reason of repairs to the dividing fence caused by the demolition on the property next door as referred to above. A dispute arose between Mr and Mrs Genovese and their next door neighbour resulting in litigation which Mr Genovese thought was 'a waste of time', so he carried out the repairs himself. He sought to recover those costs from Sanders Executive.
60 There is no evidence that these costs were incurred by reason of any negligent act or omission or unlawful act on the part of Sanders Executive.
8. District Court
61 This cost was for a filing fee and is conceded to not be claimable.
9. Impulse Painting and Decorating
62 The expenses claimed here were not in fact paid at all by Mr and Mrs Genovese to Impulse Painting and Decorating Service but rather, it is just a quote and they arranged for their own subcontractors to carry out this work namely, Mr Clyde Naismith and Mr Mostyn Johns and others, whose work is included in the next item.
10. Internal work summary
63 Mr Genovese referred to his subcontractors' painting, replacing carpets, sanding floors, repairing telecommunications cables for the intercom, alarms and telephones, fixing leaking roof and other repairs.
64 Mr Genovese's subcontractor, Mr Clyde Naismith gave evidence that save for water damage repairs and some electric cabling repairs, the required repairs were all in respect of fair wear and tear. Mr Naismith did not say what had caused the water damage. He said the telecommunication lines were simply electrical wires being pushed back into cavity walls after being cut. He could not say whether they were operative or not. The evidence does not disclose what is to be made of this state of affairs.
65 Mr Mostyn Johns, another of Mr Genovese's subcontractors, could not say whether the repairs completed by him were only in respect of fair wear and tear or otherwise. He was not able to say what caused any damage of those items he was required to repair.
66 Other subcontractors employed by Mr and Mrs Genovese, and who each worked on the subject premises, were not called to give evidence.
67 There is no evidence or no acceptable evidence to suggest that any of the required repairs undertaken by the subcontractors was caused by a negligent act or omission or unlawful act on the part of Sanders Executive.
68 In all the circumstances, there is no or no acceptable evidence that the cost of repairs effected after the end of the tenancy were required by reason of Sanders Executive not acting in a tenant-like manner with respect to the use of the premises. Rather, the evidence points to the need for the repair of fair wear and tear of the premises and other items, such as the fencing and plumbing, being required by reason of the acts of third parties. It has not been proved that Sanders Executive caused any damage to the premises beyond fair wear and tear.
69 Mr and Mrs Genovese have also claimed the ongoing loss of rent after the termination of occupation by Sanders Executive. However that claim fails by reason that this was a periodic tenancy from month to month, such that either party could terminate the tenancy on one month's notice. Therefore, the claim is limited to one month's rent.
70 Mr Sanders agreed that Mr and Mrs Genovese are entitled to one month's rent. The claim will be allowed to that extent only in the sum of $2,791.50.
71 In these circumstances, the only allowable counterclaim is for one month's rent, rates, land tax and insurance in the sum of $2,791.50.
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