Wash Investments Pty Ltd v SCK Properties Pty Ltd
[2016] QDC 77
•8 April 2016
DISTRICT COURT OF QUEENSLAND
CITATION: | Wash Investments Pty Ltd & Ors v SCK Properties Pty Ltd & Ors [2016] QDC 77 |
| PARTIES: | WASH INVESTMENTS PTY LTD (A.C.N. 139 856 054) and PAUL ROYAL and YVONNE ROYAL v SCK PROPERTIES PTY LTD (A.C.N. 140 758 229) and CLAUDE ZARAFA and SINAN OKAN |
FILE NO: | D2920/13 |
DIVISION: | Civil |
| PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
| DELIVERED ON: | 8 April 2016 |
| DELIVERED AT: | Brisbane |
| HEARING DATES: | 26 October 2015; 21-24 March 2016 (inclusive); 29-30 March 2016 (inclusive); 1 April 2016. |
| JUDGE: | Ryrie DCJ |
| ORDER: | 1. Judgment for the 1st defendant in the amount of $118,469.55 plus interest, calculated pursuant to clause 5.7 of the lease, jointly and severally against the 1st, 2nd and 3rd plaintiffs. |
| CATCHWORDS: | LESSOR AND LEASEE – TERMINATION OF THE TENANCY – FORFEITURE - GENERALLY – whether the lessor was entitled to terminate the lease at common law and/or under the Lease – whether lessor entitled to terminate without giving requisite statutory notice under section 124 of the Property Law Act 1974 (Qld) – whether leasee’s conduct amounted to repudiation of the lease Acts Interpretation Act 1954 (Qld) ss 39, 39A Bill Duncan and Sharon Christensen, Commercial Leases in Australia (Thomson Reuters, 7th ed, 2014) – considered Apriaden Pty Ltd v Seacrest Pty Ltd & Anor [2005] VSCA 139 – considered and applied |
| COUNSEL: | A. Nelson (for the plaintiffs) P. van Eps (for the defendants) |
| SOLICITORS: | Stephens & Tozer Solicitors (for the plaintiffs) MBA Lawyers (for the defendants) |
Introduction
This action involves a variety of claims for damages made by the named parties. Damages are claimed by the 1st plaintiff from the 1st defendant for breach of contract (‘the lease’) in respect of an alleged wrongful repudiation of it by the 1st defendant on the 25th of June 2013. The 2nd and the 3rd plaintiff seek damages jointly and severally from the 2nd and the 3rd defendant respectively in a claim made for defamation. There had been an action for defamation against the 1st defendant also pleaded by all the named plaintiffs, however that was subsequently not pursued at trial. The 1st defendant has also made a counterclaim against all of the named plaintiffs (the 1st plaintiff as lessee and the 2nd and 3rd plaintiffs as guarantors under that lease) seeking damages for alleged breach of the lease. The damages sought in respect of each of those claims are set out in the pleadings.
In order to make this decision more readily understood by the parties, I intend to deal with each of those claims separately.
The Lease (1st plaintiff claim against the 1st defendant for breach of contract)
On or about the 14th of April 2011, the 1st plaintiff as lessee and the 1st defendant as lessor entered into a lease for an initial term of ten years ending on 21 June 2021 (Ex 1 Doc 22). The 1st plaintiff by way of security provided a bank guarantee in the sum of $41,250. The 2nd and 3rd plaintiffs (‘Mr and Mrs Royal’) guaranteed the performance of the 1st plaintiff under the said lease. Subsequent to the signing of that lease by the parties, the 1st plaintiff commenced its’ operation of a car washing business at Ningi on Bribie Island in about May of 2011. That business however struggled financially not long after it commenced trading, as early as November 2011, and ultimately fell behind in respect of its’ rent and outgoings obligations. On the 8th of August 2012, the 1st plaintiff was served with a Notice to Remedy Breach of Covenant (pursuant to s124 of the Property Law Act 1974 (Qld) (‘PLA’) in respect to its’ failure to pay the rent and outgoings that was owing at that time. It is uncertain whether that breach was rectified in full. Mrs Royal gave evidence that it was, however Mr Okan, a director of the 1st defendant, was not one hundred percent sure whether it was or not. He stated that he believed that it was not long after that that the 1st plaintiff went into ‘breach’ again (T6-73). The business in any event continued to struggle financially and by 2013 it had once again fallen well behind in respect of its’ rent and outgoings obligations (Mr Okan T6-74). Consequentially, Mr Okan says that he then sent and prepared a Notice to Remedy Breach of Covenant (‘s124 notice’) on the 4th of June 2013 to the 1st plaintiff.
On the 25th of June 2013, the 1st defendant re-entered and took possession of the demised premises where the business had been operating. The 1st plaintiff’s claim is that the 1st defendant wrongfully repossessed the demised premises at the time that it did because it was neither entitled to do so under the terms of the lease nor otherwise as no s124 notice had been sent or indeed, received. The 1st defendant on the other hand says that it was in fact so entitled, because the 1st defendant was in any event, in fundamental breach of an essential term of the lease by its’ continuing persistent failure over a lengthy period to comply with its obligations to pay rent and outgoings under the lease. This it was said was evidenced by its continued notification over the duration of the lease of an inability to meet those obligations and the ultimate notification which it made in writing on the 19th June 2013 that it would have no option but to close the business and declare bankruptcy if a rent reduction was not given as a matter of urgency. The 1st defendant says that it was therefore entitled at common law to exercise its’ right to terminate the lease at that time, and re-enter the demised premises in order to take back possession of it on the 25th of June 2013. The 1st defendant says that there is nothing in the terms of the lease, which, under those circumstances, requires the 1st defendant to have served any s124 notice upon the 1st plaintiff prior to taking that action.
The 1st plaintiff on the other hand says that irrespective of what right the 1st defendant says it had (whether that be under a term of the lease or a common law right) in respect of its’ entitlement to repossess the demised premises on the 25th June 2013, the 1st plaintiff says that the 1st defendant was nevertheless still required to have served a s124 notice on the 1st plaintiff in accordance with clause 17.2 of the lease in respect of any default arising under clause 17.1 before it re-entered and took back possession on the 25th June 2013.
The s124 Notice
As a consequence of the respective positions taken on this point regarding whether any s124 notice was in fact sent or indeed received prior to the repossession of the demised premises taking place on the 25th June 2013, this in turn occupied a large part of the trial.
The 1st defendant’s position was that it had in fact (through its’ director Mr Okan) sent a s124 notice on the 4th June 2013, dated 7th June 2013 (Ex 1 Doc 19, page 20) to the 1st plaintiff at its’ named address for notices as set out in Item 7 of that lease (namely 1 Sandheath Place, Sandy Point, Qld 4511). The evidence from Mr and Mrs Royal (the 2nd and 3rd plaintiffs) was that they denied ever having received that notice or any notice of that type at any point prior to the 1st defendant taking repossession of the demised premises on the 25th June 2013. Mr and Mrs Royal also denied being served with a Notice of Termination of Lease (pursuant to s132 of the PLA (‘s132 Notice’)) on that date (see also Second Further Amended Reply and Answer, paragraphs (3)(e) and (f) respectively, filed by leave 28/01/16) when the 1st defendant’s representatives attended to take repossession at the demised premises. I shall deal with the eviction later in my reasons.
The 1st defendant says on this issue that the question of whether a s124 notice was to be given or not to the 1st plaintiff before it took repossession of the demised premises is beside the point, because it says it had an entitlement at common law to do so. The 1st defendant in this regard relies on, as I have already indicated, the continued longstanding failure by the 1st plaintiff to meet its rent and outgoings obligations, the various communications by the 1st plaintiffs of their continued inability, particularly from mid to late 2012 and thereafter, to meet those obligations unless a rent reduction was given, and finally in light of the letter of the 19th June 2013 sent by its solicitors on its’ behalf. It is this letter that the 1st defendant says clearly evinces, at that point, that the 1st plaintiff no longer intended, nor could, fulfil the terms of the lease in a manner substantially consistent with its terms. As such, the 1st defendant says it was entitled to terminate the lease and re-enter.
Notice of Change of Address by 1st plaintiff
The PLA applies to a right of re-entry or forfeiture in the lease for a breach of a lease.[1]
[1]Property Law Act 1974 (Qld) ss 124, 132.
As such, the first issue that arises for determination in this matter is whether a s124 notice (Ex 1, pages 20, 20.1 and 20.2) was in fact sent, and if so, secondly, was it properly served and received by the 1st plaintiff. A further issue for determination is whether the s124 notice, as asserted by the plaintiffs in its pleaded case, was ineffective in any event due to the deficiency of its terms.
In determining these issues, I have had regard to the following evidence.
Item 7 of the lease states the address for notices in Clause 19.1, which sets out those addresses in respect of the Landlord and the Tenant. Clause 19.1 of the lease provides that the method of giving notice by either party shall be in writing and left at or posted by certified mail to the address of the party as set out in Item 7. The address for the Lessor in Item 7 is stated as C/- of Minter Ellison Gold Coast, PO Box 11, Varsity Lakes, Q. 4227. The address for the tenant is stated as 1 Sandheath Place, Sandstone Point, Qld 4511. There was no available evidence at trial which showed or supported a conclusion being drawn that any notice of a change of address by the tenant from 1 Sandheath Place, Sandstone Point, QLD 4511 to 29 Gecko Street, Ningi, Qld, 4511 given to Chad Freshwater of Richardson and Wrench Real Estate Agents by e-mail (Ex 1, page 167) was ever actually sent to the landlord’s address as specifically stated in Item 7 the Lease. Mr Okan gave evidence that neither himself nor his solicitors’ received a notice as stated in Item 7 of the lease (T6-77). He also gave evidence that it was only in late 2013, after it was brought to his attention by his solicitors, that he became aware that any notice of a change of address had been sent (T6-76 L 40).
Mrs Royal however told the court that she had sent a notice of a change of address by e-mail on the 16th December 2012 to Richardson and Wrench, which was the landlord’s property manager, and to the landlord, Mr Okan. While it does seem that her e-mail has cc’ed in the landlord (see Ex 1 page 354), that still did not satisfy what was required to be done under clause 19.1 of the lease with respect to notices, consent or approvals. I have no reason to doubt Mr Okan’s evidence that he had not received a notice of any change of address at that time, or indeed even if he did, that he had actually accepted that change as Mrs Royal herself confirmed in her evidence that she did not ever hear back from him. As such, any purported notice of a change of address by the 1st plaintiff in the manner that it was in fact communicated to the landlord, or indeed to Mr Freshwater, by e-mail from Mrs Royal in the manner she did was ineffectual in light of clause 19.1 of the lease.
It is accepted that there was in fact other correspondence subsequently received by the plaintiffs after they took up residence at 29 Gecko Place Ningi in December 2012 from Richardson and Wrench, Real Estate agents and property managers for the landlord. This included a notification of CPI increase and a few other statements (T2-45 L10 Mr Royal). There was however other documents in Exhibit 1 that also showed that statements were also still being addressed to the former address as stated in the Lease (1 Sandheath Place, Sandstone Point, Qld 4511) by Richardson and Wrench even as late as November 2014 (see Ex 1 page 247).
I have also had regard to the s124 notice dated 7th June 2013 itself (Ex 1 page 20, 20.1 and 20.2). It is clear on the face of that document that the address for the tenant was stated in accordance with Item 7 of the said Lease, and therefore correct. However, that is not the end of the matter as the 1st plaintiff maintained at trial, in accordance with its’ pleadings, that no such notice was ever sent.
Was the said s124 notice even sent?
The 1st plaintiff disputes that the said notice was even sent by the 1st defendant. Mr and Mrs Royal both said during their evidence that no such notice was ever actually received by them prior to their ‘eviction’ from the premises on the 25th of June 2013. Indeed, both of them said that it was only sometime after that date that they first saw that notice after their solicitor had shown them what had been received from the 1st defendant’s solicitors (T2-46 L15-Mr Royal says about 8 weeks after the 25th June 2013; and T3-64 L35-Mrs Royal says about 1 week into August). The defendant on the other hand says that the said s124 notice was in fact sent.
The point about whether or not that notice was even sent by Mr Okan on the 4th June 2013 became a contentious issue between the parties at trial. Mr Okan gave evidence that he had prepared that notice himself on the 4th of June 2013 (T6-75 and T6-93) using one of the computers available at his home. He stated that he had prepared that notice by using the one that had been sent previously to the 1st plaintiff in August 2012 (of which he had received a copy of it at that time). He had also requested a statement from Richardson and Wrench from either Matt or Chad Freshwater on the 4th June 2013 which he had then received by either fax or e-mail. He then prepared the said s124 notice which he identified at Ex 1 pages 20. 20.1, 20.2. He stated that he sent it on the 4th of June 2013 (as faintly noted on it in his handwriting) but had dated it the 7th of June 2013 in order to allow for 3 days postage. He stated that he then put the s124 notice in an envelope, addressed it to the tenant in accordance with the lease address (Item 7), put a stamp on the envelope and then posted it by putting it into a post box himself and ensuing that he had put his return address on the back of it (T6-76). He in effect confirmed this evidence again to me when I specifically questioned him about it (T7-32).
I accept Mr Okan’s evidence on this issue. I had no reason to reject his evidence. Mr Okan struck me as a truthful witness who made no attempt to embellish his evidence even when he had an opportunity to do so. For example, Mr Okan did not try to suggest that he had sent the s124 notice which he had prepared by certified mail (as was required under clause 19.1) or even by registered post after being given an further opportunity by me to do so. I find that his preparation of it using a previous notice, which had been sent to the 1st plaintiff earlier on in August 2012 which he had received a copy of from his solicitors at that time, as a reference tool when preparing his notice dated 7th June 2013 was entirely consistent with his evidence that he had also obtained a statement from Richardson and Wrench in order to prepare his notice to remedy breach at that time. That is particularly so having regard to the conversation which he had with Mr Zarafa in March 2013, which was to the effect that the 1st plaintiff was struggling to pay its rent and outgoings again, and were behind in respect of those obligations.
The submission made that Mr Okan did not in fact have a statement up to the 4th of June 2013 at the time that he sent it because he had must have only ever requested one in either late June 2013 or early July 2013 from Richardson and Wrench is rejected. The evidence which Mr Okan gave, which I had no reason to disbelieve, was that he had requested a statement from either Matt or Chad Freshwater on the 4th June 2013 which he had received by either fax or e-mail and had subsequently attached it to the said s124 notice that he had prepared. I have no reason to reject Mr Okan when he says that in preparing that notice himself he used two computers, in order to look at the previous notice sent in August 2012 and the lease itself, in order to prepare the latter notice (T6-102). He also gave evidence he didn’t save a copy of that latter notice on any of computers he was using. That isn’t in my mind particularly unusual as he stated that he had printed two copies of it at that time; one to send and one which he kept himself.
Mr Okan also gave evidence that on the 18th of June 2013 he had sent an e-mail to the 1st plaintiff asking if it had made a payment towards the rent and arrears (Ex 2 page 31) (T6-113). That evidence in my mind is consistent with Mr Okan determining whether or not the 1st plaintiff had in fact made any payment towards the outstanding arrears at that point in light of the notice which he had already sent. The fact that no mention in that correspondence was made by him regarding whether there had been any receipt of his notice sent on the 4th of June 2013, is of no real consequence in light of his evidence, which I accept, that he didn’t ask the 1st plaintiff if it had received the notice which had been earlier sent in August 2012 either (T6-113). It is also consistent with him simply wanting to know at that point if a payment had in fact been made by that stage towards the rent that was still in arrears (18th of June 2013). This is particularly so where some payments had been made by the 1st plaintiff from 3rd of June 2013 (Ex 2 page 27) but where there was an indication by Mrs Royal on the 14th of June 2013 that no payment could be made at that point (Ex 2 p30).
The 1st plaintiff also relied on evidence given by Ms Riek at trial in support of its submission on this issue. This evidence was led as part of the plaintiff’s case regarding the point as to whether or not the s124 notice could have even been sent on the 4th June 2013, as stated by Mr Okan, because the 1st plaintiff says that the evidence shows that the statement attached to that s124 notice could only have come into being (that is, created) either in late June and/or early July 2013.
Ms Letitia Riek was a bookkeeper at Richardson and Wrench at the relevant time. Ms Riek was referred to certain documents contained in Ex 1 for comment. She referred to certain documents in Ex 1 namely page 157 with reference to 180,181 and 182 respectively; page 178 and 263; page 184 with reference to 185 and 186 and finally to pages 187 and 188. She was also referred to page 20, 20.1 and 20.2 of that exhibit during her examination in chief. Ms Riek made the following points about those documents.
She said in respect to page 178, that she had referred this request, which was sent by the landlord to her on the 24th of June 2013, to Mr Freshwater as it wasn’t something that would be in her job role.
With respect to page 184, she stated that she had sent the statement up to the 4th of June 2013, referred to at page 185 and 186, to the landlord (Mr Okan) on the 29th of June 2013 because her principal, Mr Chad Freshwater, had asked her to do so. In respect to pages 187 and 188 she says that she was told it was wrong so she completed another one and sent it over to the landlord on the 1st of July 2013.
In order for all the documents to which Ms Riek was referred during her evidence to be more readily understood, and so that my findings in respect of them are clear, I shall set out the chronology of some of those documents referred to by the witness as follows.
·Page 157: request by Mr Okan 20/6/13 3.20pm. Ms Riek recalls sending a statement up to 24/6/2013 (Pages, 180,181 and 182) to Mr Okan on 24th June 2013 at 8.19am (Page 157)
·Page 178: This was an inquiry from Mr Okan (20/6/13 9.07am). Ms Riek says she referred this inquiry to Mr Freshwater.
·Page 184: Ms Riek says she sent the statement up to 4th of June 2013 (pages 185,186) on the 29th June 2013 to Mr Okan as this had been requested by Chad Freshwater. Ms Riek then was told it was wrong in respect of entries contained in it (unknown who told her this as she did not clarify), so she did up another statement up to 4th June 2013 (pages 187, 188) and sent it to Mr Okan on 1.7.2013 at 10.49am.
There was no mention in the evidence of whether Ms Riek (because she was not asked) had in fact actually sent another e-mail to Mr Okan on the 24th of June 2013 attaching a current statement. Ex 1 page 178 shows that an e-mail was sent at 8.18am that same day to Mr Okan from her. Put another way, it was sent one minute before the e-mail sent on the same day by her which she identified in her evidence with reference to Ex 1 page 157.
During the course of her evidence Ms Riek made the following comments; that she could not even specifically remember if she actually changed the address of the tenant on the statements to which she had been referred (commencing Ex 1 page 185 and page 188 respectively), nor could she in fact remember whether or not she had actually sent another statement up to the 4th June 2013 to the owner or not at another time. As she indicated (T4-14) she didn’t particularly look for that when going through other documents which she had her possession at a later time because she simply couldn’t remember now (T4-14 L24). She also confirmed that other staff within the office also had access to the computer and could provide a similar type statement to an owner, to that which she had been referred in examination in chief, if requested (T4-15). She also accepted that page 182 contained in the statement commencing at Ex 1 page 180 was created subsequently to the statement at Ex 1 page 185 (T4-15) by reference to the time periods on the face of those documents. She also noted that even though there were differences that she could see on those statements, that is as contained in Ex 1 at page 180 and 185 respectively, regarding the name of the owner (Sinan Okan) having been moved over in its’ position on that document, that the ‘m’ was cut off from the word ’from’, she could not explain, nor did she know nor indeed could she give any explanation at all as to why there was in fact those differences (T4-21).
After a careful consideration of the documents referred to in evidence by Ms Riek and having careful regard to her evidence in respect of them I make the following findings. I find that while Ms Riek did her very best to assist the court during her evidence, her evidence taken as a whole with the other evidence available on this issue (Mr Okan and Mr Freshwater), did not advance the ultimate submission made by the 1st plaintiff on this point.
For example, Ms Riek’s concession during cross examination that the creation of the statement commencing at Ex 1 page 180, by reference to the period to which it referred was therefore subsequent to the creation of the statement commencing at Ex 1 page 185, did little to assist the plaintiff’s case. Nor am I persuaded in any event that even if I accept that Ms Riek did create documents for the sole purpose of sending them on to an landlord, whether that be on the 24/6/13, 29/6/13 or the 01/7/13, that this in some way therefore supports a conclusion or even a reasonable inference being drawn that the statement that was said to be annexed to the s124 notice (found at Ex 1 pages 20.1 and 20.2, which is identical to the statement found in Ex 1 at page 188 and 189) was not in fact the same document that was in fact sent as part of the notice which was dated 7th of June 2013. As Mr Freshwater and indeed Ms Riek both conceded, there were other staff who had access to the office computer system and any of those staff could have accessed it to provide such a statement to an owner (landlord) if requested during June to July 2013.
It was submitted by the 1st plaintiff that the various statements sent by Ms Riek to Mr Okan, particularly the one on the 1st July 2013 (Ex 1 pages 188 and 189 which is in fact identical to the one said to have been attached to the s124 Notice sent on the 4th June 2013) could have only been created at that time by her and therefore Mr Okan could not have therefore sent it on the 4th of June 2013, as he stated in his evidence. If that submission were to be accepted as true, then one would have expected that Ms Riek would have been able to remember why that statement (Ex 1 pages 188 and 189) or even indeed the one she says she sent on the 29th June 2013 (Ex 1 page 185 and 186) which the 1st plaintiff said she must have only created on either of those days, had a different tenant address changed on it, had the name of the owner indented on it and the ‘m’ removed from the word ‘from’ to that statement which she says she had earlier sent on the 24th June 2013 (Ex 1 pages 180, 182 and 183). Her evidence was that she had no idea how that had happened nor could she explain those differences (T4-21).
A careful examination of the chronology set out above shows that a statement was sent to Mr Okan by Ms Riek on the 29th of June 2013 as a result of a request by him on the 20th of June 2013 (apparently to Chad Freshwater who couldn’t specifically remember) in order that he could be sent a copy of the tenant’s statement up to the 4th of June 2013. Mr Okan said that he had made such a request (Ex 1 page 177 which is the same as Ex 1 pages 157, 158) (T6-115) in order to see if the 1st plaintiff had in fact made any more payments and to see if his s124 notice had been remedied as he had not heard back from Mrs Royal regarding his query to her on the 18th June 2013 (Ex 2 page 31) as to whether any further payments had been made towards the rent in arrears. I accept that evidence. It must be remembered that by then that Mr Okan had said he had already sent a s124 notice on the 4th of June 2013. It was therefore not surprising then that a landlord would be following up whether payment had been made or not by the 20th of June 2013 in respect of it. As Mr Okan pointed out, he wasn’t the one who prepared or sent out the invoices or statements to the tenant; Richardson and Wrench were responsible for doing that. He also stated, which I accept as true, that he wanted to make sure that everything had been done correctly this time because of the problems that had occurred the last time a s124 notice had been sent to the 1st plaintiff in August 2012. Mrs Royal gave evidence and it was not disputed at trial, that calculation errors had occurred in relation to the earlier s124 notice sent in August 2012 in respect of rentals and outgoings actually owing.
It is also significant in my mind regarding the correspondence sent by Ms Riek to Mr Okan on the 29th of June 2013, and indeed on the 1st of July 2013, that by the time the 1st defendant had already re-entered and taken possession of the demised premises on the 25th June 2013, they had already received correspondence from the 1st plaintiff’s solicitors (dated the 19th June 2013) indicating that unless a rent reduction was given it would have to ‘close up shop’ (my words) and declare bankruptcy. They had also received correspondence by e-mail dated 27th of June 2013 (Ex 2 page 46) from the 1st plaintiff’s solicitors asserting that the rent and outgoings outstanding as at the date of ‘termination’ (being the 25th of June 2013) was in fact wrong and should have only been calculated at $28,274.95 and not at what had been claimed to be outstanding, namely $33216.17 in the s124 notice sent on the 4th of June 2013. Accordingly I find, having regard to the whole of the available evidence, that Mr Okan was seeking certain documentation from Richardson and Wrench after the 25th of June 2013 in view of the said correspondence from the 1st plaintiff’s solicitors to which I have just referred. As such, I find that his requests therefore for certain statements from Richardson and Wrench from late June and early July 2013, under those circumstances, does not support a conclusion or a reasonable inference being drawn that he was only seeking those statements at that time from the real estate agency because he did not in fact have a statement sent to him by that agency on the 4th of June 2013. This was a fact which he denied and I have no reason to reject.
The 1st plaintiff says the evidence of Ms Riek to the effect that she sent to Mr Okan on the 24th June 2013 the statement which appears at Ex 1 page 180 to 182, came directly from the Console Program and could not be edited in that form overlooks the fact that Ms Riek admitted that that was the current statement at that time up to the 24th of June 2013. The fact that the statement or any other tenant statement may only be ‘edited’ if transferred to excel or word is also of little moment particularly where Ms Riek admits that another staff member (confirmed by Mr Freshwater, the principal of Richardson and Wrench) could have access to the Console program and have sent a tenant statement to any owner at any given time, and as Mr Freshwater indicated, can change an address of a tenant within that Console program (T7-76).
The 1st plaintiff also says that the version of the statement sent to Mr Okan on the 1st of July 2013 (Ex 1 page 188) was only ever created by Ms Riek on that date. Ms Riek certainly did not say that in her evidence when regard is had to her evidence as a whole. She also stated that when she looked through other documents in her possession at a point much later to see if she had ever sent a statement on the 4th of June 2013 for that tenant to the landlord, she conceded she hadn’t in fact looked for that specifically (T4-14). As I already stated in my reasons, had Ms Riek only ever created the statement (Ex 1 page 188) on the 1st of July 2013 as the 1st plaintiff says, then one would have expected that she would have been able to account for the any differences in the format, tenant address and the like from the other statement she said she took directly from the Console Program on the 24th of June 2013 that day (Ex 1 pages 180 – 182).
The 1st plaintiff also submits on this issue that the fact that Mr Okan cannot now produce any relevant electronic copy of the s124 document he created at home, that the statement attached to it had no fax markings on it, and no e-mails were found by Richardson and Wrench relating to any request for such a statement on the 4th of June 2013 by Mr Okan or one having been sent to him by that means supports a conclusion or a reasonable inference being drawn that the s124 notice with its attached tenant statement up to 4th June 2013 was not in fact created until at least 1 July 2013. I am unable to accept that submission.
As I have already set out in my reasons, I accept Mr Okan’ s evidence insofar as the creation of the said s124 notice at home and the evidence which he gave which was that he had received a tenant statement up to the 4th of June 2013 from Richardson and Wrench on that date. Mr Okan said that he had in fact used the previous Notice to Remedy Breach document sent to him in August 2012 after it had been given to the 1st plaintiff by his solicitors. That document at Ex 2 pages 15 – 20 includes a reference (at page 16) to an attached invoice from Richardson and Wrench for the amount outstanding (at page 18). I find that it is clear on the face of the earlier notice which he used, that such an invoice was attached and as such I find that he did seek a statement from Richardson and Wrench on the 4th June 2013 in order that he could then send it with the s124 notice that he was preparing himself at that time.
There was in any event other evidence on this issue by Mr Freshwater. He confirmed in his evidence that all of his staff at Richardson and Wrench during June and July 2013 could have accessed ‘Console’, the computer program which was used to issue tenant statements. He also specifically recalled that Matt also worked at Richardson and Wrench at that time. That evidence confirms in my mind the evidence which Mr Okan gave regarding having obtained a tenant statement up to the 4th of June 2013 from Matt or Chad at that time in order for him to prepare his Notice to Remedy Breach dated 7th June 2013. I also accept Mr Freshwater’s evidence which was that at no stage did he tell someone in his office to change the address of the tenant as it appeared on the statement up to the 24th June 2013 (Ex 1 pages 185) which showed 29 Gecko Place. The 1st plaintiff says that because no documents were produced by Richardson and Wrench regarding any e-mail trail on the 4th of June 2013 attaching any statement sent to Mr Okan that day, or that Mr Okan has no produced any such e-mail (or fax) himself for that day or another day that he thought he may have communicated with Ms Riek on the 29th or 30th of June 2013 (T7-9 and 7-10) that these failures support a conclusion or a reasonable inference being drawn that he did not in fact have any statement up to the 4th June 2013 ever sent to him on that day by any staff member at Richardson and Wrench and had only in fact received such a statement on the 1st July 2013 from Ms Riek. For the reasons which I have already stated, having regard to the whole of the available evidence on this point, I do not accept that submission.
Finally, as a matter of completion I shall refer to the document created on the 26th of November 2014 (commencing at page 247 but specifically page 263). The fact that there are entries contained in that document for entries after the 4th of June 2013 in my mind does little more than to demonstrate that if those payments were received on the 11th and 12th June 2013 from the tenant, they would have then entered into that tenant’s rental and outgoings statements as a consequence of receipt of those amounts after the 4th of June 2013. That is precisely what Ms Riek confirmed and what she said could not be edited under the Console program, namely the actual receipt of payments received which had been entered into the Console program in respect of a tenant statement.
Accordingly, I find that notwithstanding Mr and Mrs Royal’s evidence at trial to the effect that they never saw or in fact received such a document, I am satisfied that the said notice was in fact sent by Mr Okan on the 4th June 2013 addressed to 1 Sandheath Place, Sandstone Point, Qld 4511.
However, that is not the end of the matter. As I have already indicated, the process for sending notices by either a landlord or a tenant under the subject lease appears to be set out in clause 19.1. There is however another provision in the lease regarding Notices and Servicing Notices (Clause 24). That seems however of no consequence as it specifically relates to Notices required to be given under the lease and not as required here in accordance with the PLA.
Was the s124 Notice properly served even if it was sent?
The initial Notice to Remedy Breach of Covenant (Ex 2, pages 15 and 16) delivered by the 1st defendant’s solicitors on the 8th August 2012, was accepted by the 1st plaintiff ‘by delivery’ as service even though it was addressed to the address where the business was in fact operating from (1102-1108 Bribie Island Rd, Ningi, Qld) which is not the address for service in Item 7. The method of service in respect of that notice was not given in accordance with Item 7 and Clause 19.1 yet it was nevertheless accepted by the 1st plaintiff as being compliant because according to Mrs Royal, the ‘breach’ in respect of which that notice was given was paid in full.
I turn now to the s124 notice under dispute. Mr Okan admits that he did not send the letter containing the said notice by certified mail. The 1st plaintiff says that is fatal as there has been no proper service of that notice upon the 1st plaintiff as required under Clause 19.1. It says that the 1st defendant has therefore not compiled with what was actually required under the terms of the subject lease with respect to notices. The 1st plaintiff says that coupled with the fact that Mr and Mrs Royal gave evidence that they never received any s124 notice even if it was sent, then the taking of the possession of the demised premises on the 25th June 2013 was a wrongful repudiation of the lease and the 1st plaintiff is therefore entitled to damages. The 1st plaintiff has substantially relied on the fact that no s124 notice was ever sent or received by the 1st plaintiff prior to re-entry. There is judicial suggestion however that a breach of s124 PLA in itself does not mean that the lessors had repudiated the lease.[2] As Judge McGill observed in Hsu, repudiation depends on what has been made manifest to the other party by words and actions.[3]
[2]Hsu & Anor v Graham Retailers Pty Ltd & Ors [2004] QDC 230, 17 (‘Hsu’).
[3] Ibid.
The 1st defendant on the other hand says that even though its’ primary submission is that nothing turns on this point in that it was not required to serve a s124 notice in any event, it says that the said notice was in fact sent, that it was properly served and received by the 1st plaintiff.
The 1st defendant relies on the decision of Justice Philippides in Grayprop Ptd Ltd v Maharaj International Pty Ltd (‘Grayprop’)[4] to show that certified mail no longer existed in Australia Post from as early as 2001. As such, the 1st defendant says that regard should therefore be had to s347(1)(d) PLA for assistance which allows for service on a company by usual pre-paid post. The 1st defendant says that having regard to that provision and s39A of the Acts Interpretation Act 1954 (Qld) (‘AIA’), the service of the said s124 notice was therefore compliant with the terms of the lease, Clause 19.1 and Item 7, as it was consistent with those Acts. Put another way, the 1st defendant says that even though the s124 notice was sent by ordinary post it was nevertheless validly served at the address for notices consistent with the Item 7 and Clause 19.1 of the lease, as it was sent to 1 Sandheath Place, Sandstone Point QLD 4511.
[4] [2001] QSC 387 [49].
It seems clear on the face of the lease that the parties intended that notices including s124 notices, required them to be served by a method of delivery which was something more than ordinary post. Otherwise, the insertion in Clause 19.1 would not have included a specific reference to ‘certified mail’ as a method of delivery if ordinary post was meant to be the method for delivery. The 1st defendant relies on the provisions of the PLA (s347) and AIA (s39A) stating that ‘registered post’ is only required for a ‘person’ and not a ‘corporation’. However, s347(1)(d) PLA says that in the case of a corporation, service of notice by ordinary post is effected by addressing it either at its registered office or principal place of business in the State. Ex 2 page 81, which is an ASIC and Business Names search conducted on 12th August 2013 for the 1st plaintiff, shows the current principal place of business as 29 Gecko Place, Ningi, Qld. Accepting for the moment the finding which I have already made that no proper notice of any change of address was given by the 1st plaintiff in accordance with Clause 91.1 and Item 7, it is arguable that the principal place of business at the relevant time was therefore 1 Sandheath Place, Sandstone Point at the time the s124 Notice was sent by Mr Okan. That would also be consistent with the address as stated in Item 7. However that is not the end of the matter.
As I already stated, the s124 notice here was sent to that address (even in the event that it is accepted that the principal place of business address at the time that notice was sent was consistent with the address stated at Item 7 of the lease) only by ordinary post. That however was not what the parties’ intended in respect of Clause 19.1 in that such notices were agreed to be delivered by a means other than just by ordinary post. Section 347(6) of the PLA also says that s347 of the PLA only applies ‘unless a contrary method of service of a notice is provided in the instrument or agreement or by this Act’.
I have given judicial notice to the decision of Grayprop where it was recognised that certified mail was an obsolete method of delivery even at the time the parties in the present case entered into the lease in 2011.[5] However, I am nevertheless of the view that the parties intentions regarding Clause 19.1 was that any notices that were to be given was to be something more than just simply posting it by ordinary post, which is what unfortunately happened here.
[5] [2001] QSC 387 [49].
Accordingly, I accept the submission made by the 1st plaintiff that even if it was found that a s124 Notice was in fact sent, that it still did not comply with Clause 19.1 of the lease, in accordance with what was the parties’ clear intentions were as the method of giving such notices. I should indicate for the purpose of this issue I also had regard to s109X of the Corporations Act 2011 (Cth) (Service of Documents - Service on a company by post to be made to the company’s registered address). No such service was effected here.
It is however still necessary for me to deal with the evidence given regarding Mr and Mr Royal and their respective denial regarding any receipt of that notice as this is relevant to explain the findings which I have made as to credit of witnesses.
Was the s124 Notice ever received?
Mr and Mrs Royal both gave evidence that after they left the Sandheath Place address in late 2012, arrangements were made for their mail to be delivered to their new address at 29 Gecko Place, Ningi. Those arrangements included having their mail delivered to their new address which apparently wasn’t that far away. Both Mr and Mrs Royal confirmed that their mail from Sandheath Place continued to be delivered to them by the tenant in residence, or as stated by Mr Royal, the Royals would sometimes collect their mail themselves (Mr Royal 3-48 and T3-61 L25 Mrs Royal). There was no suggestion that this ‘arrangement’ had failed in the past or that any of their mail had gone ‘astray’ in the past under this arrangement. As such, having found that I am satisfied that the notice dated the 7th of June 2013 was in fact sent on the 4th of June 2013 to that address, I find that it would have more likely than not have come to their attention notwithstanding that they had in fact moved in December 2012 to 29 Gecko Place, Ningi.
In other words, I do not accept Mr and Mrs Royal’s denial regarding any receipt of that notice. I find that the notice dated the 7th June 2013 posted to the Sandheath Place address would have found its’ way to that address within the normal delivery time (deemed in any event under clause 19.2 to be received if posted on the 3rd day after posting). I find this particularly so having regard to the arrangement that was put in place by them regarding delivery of mail to them at their new address.
I shall now refer to the other evidence available which I have considered which persuades me of this fact. Mr and Mrs Royal both gave evidence that during their eviction on the 25th of June 2013, they both independently informed their solicitor (Mr Stibbe) by phone that they had not ever received such a notice (i.e. s124 notice). Mrs Royal confirmed that she would have most certainly have rung up her solicitor had she received one between seeing him on the 6th June 2013 and being evicted on the 25th June 2013 (T4-49). The evidence available shows and supports a conclusion that had Mr Stibbe been informed of such, as stated by Mr and Mrs Royal by phone on the 25th June 2013, then his subsequent correspondence to the 1st defendant would have stated as much (Ex 2 page 46, Ex 1 page 363). Indeed that first letter states that even Mr and Mrs Royal considered the ‘matter would come to an end’ once the bond monies they requested were refunded to them and their equipment and stock as then listed was subsequently returned to them.
It is significant in my mind that that correspondence makes no reference whatsoever of any alleged failure on the 1st defendant’s part to serve a s124 notice particularly in circumstances where Mrs Royal gave evidence that after she told Mr Stibbe by phone on the 25th of June 2013 that they had never received a s124 notice prior to the day of their eviction, that he (Mr Stibbe) then stated that (in her words) ‘they would tackle it later’ (T4-50). Nor was there any mention of any alleged failure to serve a s124 notice in the second correspondence. When observing Mrs Royal give her evidence in respect of this letter (T4-52), I sadly formed the view that she was being deliberatively evasive in answering the questions that were posed. That is even after making allowances for the fact that the witness was being subjected to cross examination at that point about matters that had occurred a long time beforehand.
Secondly, it is also significant that at no stage thereafter, at a time when it would be expected particularly having regard to the fact that Mr Stibbe is an experienced commercial solicitor, was an application for relief from forfeiture[6] made to the court. If in fact the plaintiffs were intending to continue operating the car wash business in the future as they both stated, and having not received a s124 notice as required under the lease before their ‘eviction’ because of their failure to simply pay rent and outgoings on time, then it is curious that no such application was ever made in that regard. There was certainly opportunity for them to do so even notwithstanding they had been ejected from the premises on the 25th of June 2013. It was not contested that the landlord had attempted to run the business itself from that time up until the time that a new tenant was acquired on the 1st of November 2013. There was also the fact that the 1st defendant commenced operating the carwash business the next day which in itself is no impediment upon the 1st plaintiff seeking that relief. In other words, they could have simply returned to the premises and recommenced trading if such relief was subsequently granted as no other new tenant came into those premises under a lease until the 1st of November 2013. Accordingly, I reject Mr and Mrs Royal’s denials that they never in fact received the s124 notice sent by Mr Okan to them on the 4th of June 2013. It is nevertheless of little consequence now. Mr Royal, being the sole director of the 1st plaintiff, admits in any event to having seen that notice after it was sent to him by his solicitors about 8 weeks after his eviction.
[6] Pursuant to s 124(2) of the Property Law Act 1974 (Qld).
Notwithstanding that fact, I am satisfied, to the requisite standard required, that Mr and Mrs Royal did in fact receive the said s124 notice sent on the 4th of June 2013 shortly thereafter. Put another way, I reject their respective denials on this issue.
Was the notice in any event ‘deficient as alleged in the pleadings by the 1st plaintiff?
This was contended for by the 1st plaintiff in its pleadings and again, in submissions.
It is clear that the notice in question is in accordance with the correct form to be used (PLA, Form 7). It is also clear that it contains the necessary ‘Additional Note’ at the bottom of that notice, the absence of which can prove fatal.[7] The 1st plaintiff pleads that because the notice refers to the wrong property description (namely its survey plan number being 239574 instead of 239514), the wrong amount regarding its claim, as well as its failure to make clear the nature of the amounts owing/and or over what periods those amounts relate then the notice is ‘ineffective’ or put another way, is invalid.
[7]Ex parte Taylor (1980) Qd R 253.
Section 124(1) PLA requires that the notice specify the particular breach or breaches complained of in order that the lessee can remedy those breaches. It is trite to say that a notice is not invalid in every case where it complains of a default which does not exist or which has been remedied, or where it demands an excessive sum.[8] As noted by McMurdo J in that summary, it will be a question of fact and degree involved in each case and the most relevant factors determining validity will be the extent of the error and the capacity of the notice to give the mortgagor (or lessee as is the case here) a reasonable opportunity to do what he is obliged to do to remedy the breach.
[8] Elsafty Enterprises Pty Ltd v Mermaids Café and Bar Pty Ltd [2007] QSC 394 [86] per McMurdo J.
Having regard to the notice involved in the case before me, it cannot be said that the lessees in any way would have been misled regarding any misstatement of the Survey Plan number having regard to the description given of the property in its entirety. Nor can it be said that the 1st plaintiff would not have understood what amount was owing or over what period in view of the annexure to that notice. Nor can it be said that there is a great deal of difference in any event between the amount claimed of $33,216.17 and the amount which the 1st plaintiff says (which is denied) was in fact owing (namely $28,274.95 as at the 4th June 2013). Put another way, even if it was accepted that the document erroneously calculated the outstanding rent and outgoings up to the 4th of June 2013, it was not in my mind so substantial as to invalidate the notice. I also note in respect of this last point, that the Amended Statement of Claim filed on the 23rd June 2013 (Court Document 38) at paragraph 9(a) accepted, in any event, that the 1st defendant was entitled to an amount of $33216.17 to be retained. This was the exact same amount which the 1st plaintiff so alleges to be in error on the said notice when it was issued on the 7th of June 2013. Mr Freshwater, the principal at Richardson and Wrench, which was the property managers at the time, also considered that the statement annexed to the said notice up to the 4th of June 2013 (Ex 1 page 20.1 and 20.2) was correct (T7-71). Having regard to the notice and in particular it’s annexure, I am not persuaded that it was deficient as alleged. Accordingly, I find the notice compiled with s124 of the PLA in this regard.
‘The Eviction’ and s132 of PLA Notice
I shall now deal with the issue regarding the actual eviction and the s132 PLA notice served, as these matters are relevant as it relates to my assessment of the credibility of witnesses.
In its’ second further amended Reply and Answer, at paragraph 2(e), the 1st plaintiff asserts that they were not served with a s 132 PLA notice on that day that the document entitled ‘eviction’. This is because it is argued that the s132 notice was shown to the plaintiffs and was then simply placed on the desk in the office of the demised premises, and that they were then evicted without being provided with, or permitted to take, a copy of that document. The 1st plaintiff also contends that a document which was subsequently produced referred in any event to the wrong survey plan number. While the 1st plaintiff did not seriously contend at trial in respect of these allegations I do intend to deal with this issue in any event as it is relevant insofar as my findings as it relates to credit.
The evidence given by Mr and Mrs Royal on this issue did not support those pleadings. According to Mrs Royal, Claude Zarafa had a ‘notice’ (at least she thought it was), but that he threw it on the desk and she simply chose not to pick it up. She described that document as being folded in three and being just white on the outside so she didn’t read it. Notwithstanding the opportunity to do so, I find that Mrs Royal simply chose herself not to read the document which had been placed on the desk in front of her. On her own admission, she certainly had time to do so. She admitted that she had been given time to pack some things up, get into an argument with Mr Zarafa over his right to evict them and indeed call her solicitor on the phone, Mr Stibbe (T3-65). I therefore find it incredulous that Mrs Royal would not have picked up that document and read it especially when she knew she was being evicted immediately from the demised premises, had not according to her received any s124 notice and particularly when she had gotten onto the phone to her solicitor during the course of that ordeal. Accordingly, I reject the evidence of Mrs Royal on this issue. Sadly, her evidence especially on this issue caused me real concern regarding her veracity for truth as a witness as a whole. According to Mrs Royal, she did not consider she had actually received the s132 notice as “she did not pick it up and she did not take it so therefore she did not receive it” (T4-53 L30).
The evidence from Mr Royal was also unsatisfactory on this point. According to Mr Royal, Mr Zarafa actually told him that the bit of paper he placed on the office desk in front of Mr Royal was their ‘eviction notice’. He also admitted that he didn’t take much notice of that paper because he had then gotten into a ‘to and froing about it with him’ (T2-44 L43). He also conceded under cross examination that Mr Zarafa did nothing to stop him from reading it, yet he had stated in an earlier police statement that he had tried to read the document as he packed up some things, but that he didn’t get a chance as Mr Zarafa was in the office watching him and his wife at all times (T2-99). That evidence taken as a whole in my mind persuades me that Mr Royal was also being selective in his memory of the events of the 25th of June 2013 and was not being entirely truthful. I again find it incredulous that Mr Royal, with the past business experience he had, would simply choose not to read a document which had just been stated to him to be an eviction notice which was then placed in front of him on the desk. This is my finding even making allowances for any ‘upset’ that may well have arisen as a consequence of any ‘eviction’ taking place. That evidence to which I have just referred, when taken as a whole, also in my mind persuades me that Mr Royal like Mrs Royal, was not being entirely truthful.
Accordingly, I find that Mr and Mrs Royal were both given the opportunity to read the document provided to them and placed on the desk in front of them on the 25th of June 2013 by Mr Zarafa. I find that the document contained in Ex 1 page 51 was in fact the document which was given to them to read, but that they both simply, in the heat of the moment, chose not to look at it. I find nevertheless that it was properly served even in those circumstances. I also find that it was compliant with s 132 PLA. The misdescription of the survey plan number as already indicated is not enough to invalidate the notice.
I shall also now take the opportunity to talk about my general assessment of the respective witnesses, Mr Zarafa and Mr and Mrs Royal. I find Mr Zarafa to have been a truthful witness insofar as his recollection on the said eviction (T7-37). I find that the document which he says he placed on the desk of the office after it was flicked out of his hand by Mr Royal was in fact the s132 notice which had been signed by him. I have no reason to reject Mr Zarafa when he told the court that he wanted no trouble and that any dispute regarding property and the like could be left to the solicitors to ‘sort out’. That evidence is supported by other available evidence which shows that in fact the solicitors did subsequently engage in correspondence with each other regarding that point.
I also accept Mr Zarafa’s evidence when he said that he arranged for someone to come the next day to ‘run’ the business as he lived over an hour and a half away (Paradise Point) and he was running his own business at the time and he simply would not be able to do it. That is consistent with his evidence which was that he rarely attended at the carwash between that time and end of July 2013 other than to drop in periodically.
Mr Freshwater also gave some evidence on this issue. He recalled the ‘heated’ nature of the eviction which he considered to be quite normal in the circumstances. He specifically did not hear Mr or Mrs Royal indicating that they told Mr Zarafa that he couldn’t evict them because they had not been breached or that they told him that they hadn’t in fact ever received a Notice to Remedy Breach as required (T7-71 and again at T7-84). He specifically did not recall Mr Zarafa saying to Mr and Mrs Royal that ‘they haven’t remedied the default from the last year’ (T7-85) or that Mr Zarafa said’ don’t fight this, or our lawyers will suck you dry’ (T7-85). The evidence to which I have just referred is consistent with Mr Zarafa’s evidence on that point, which I accept where it conflicts with Mr and Mrs Royal’s memory of the events surrounding their’ eviction’.
Having carefully watched Mr and Mrs Royal give their evidence to the court, I find that while Mr and Mrs Royal both believed that their business could be ‘saved’ as an ongoing concern if a rent reduction could have been formally arranged with the landlord over the course of the lease, I did not find either of them to necessarily to be witnesses worthy of belief overall. In addition to the findings which I have already made regarding their lack of veracity for truth, especially with respect to any alleged failed receipt of the relevant notices in issue (s124 and s132 PLA notices), I have also had particular regard to the evidence which they both gave regarding the signing of the guarantee by them under the lease. Notwithstanding that an amended pleading by the 1st plaintiff (doc 53 paragraph 16) was subsequently abandoned (such amendment being made after an initial denial in respect of the signing of the guarantee under the subject lease was been given on oath by Mr Royal; see T1 -16), Mr Royal still nevertheless maintained during the course of his evidence to the effect that it was only now that he realised that he had signed the guarantee attached to the subject lease. He also maintained, even under cross examination, that he had made his initial denial in respect of his signing of it on oath because he had thought that he had only signed as guarantor under an agreement to lease (T2-41 and T3-29).
Having regard to those features that I have just mentioned, I shall, for the purpose of completion, briefly deal with what damages, if any, I would have awarded in the event that my findings in respect of the last point are found to be wrong.
I accept the submission made by the defendants that if any such award is made that it should be nominal. I make that finding on the basis that the publications were distinct and separate in nature and limited to only two people. Further there was no actual harm caused to the respective 2nd and 3rd plaintiffs by the alleged publications, and the reaction by the said two people upon being told was not determinate of this issue. I accept that if damages are awarded, they are to compensate a person for past, present and future harm done to him or her and their reputations by the publication of defamatory material.[50] An award of damages must also be sufficient to vindicate the plaintiffs’ reputations.[51] Here I note that in the written submissions made that an award of $50,000 is sought for the 2nd and 3rd plaintiffs. This is in contrast with the claim actually made in the pleadings. This is of little matter in any event as I consider that if any damages were awarded in respect of this matter I would have only awarded a nominal sum in respect of both plaintiffs to console them for not only the personal distress or hurt that they may have felt in having the publications recounted to them by two other members of the community in which they lived, but also by way of vindication.[52]
[50]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60.
[51]Cerutti and Anor v Crestside Pty Ltd and Anor [2014] QCA 33 [35].
[52] Ibid [35].
I would have awarded each of the plaintiffs a sum of $500.00
Orders
1. The claim for damages by the 1st plaintiff for breach of contract against the 1st defendant is dismissed
2. The counterclaim of the 1st defendant is allowed
3. The 2nd and 3rd plaintiffs’ claims for defamation jointly and severally made against the 2nd and 3rd defendants are dismissed.
4. The parties are to provide written submissions (no more than 5 pages) as to costs by email to my Associate, but not until after 28 days has expired from the date of publication of this judgment, unless the parties otherwise agree as to costs.
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