Williams v Rampino
[2002] VSC 284
•5 July 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6210 of 2002
| EMLYN WILLIAMS AND ANOTHER | Plaintiff |
| v | |
| LAVINIA RAMPINO | Defendant |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 July 2002 | |
DATE OF JUDGMENT: | 5 July 2002 | |
CASE MAY BE CITED AS: | Williams and Anor v Rampino | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 284 | |
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LICENCE TO OCCUPY – Right to terminate on two days’ notice – Invalid notice – Order 53 summary procedure.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.T. Artemi | |
| For the Defendant | Mr D.A. Klempfner |
HIS HONOUR:
This is the return of an originating motion issued pursuant to Order 53 by owners of a residential property seeking judgment for recovery of land from the occupiers. The property in question is located at 19 Stanley Street, Brighton and is more particularly described in Certificate of Title Volume 8124 Folio 804. The owners of the property are Mrs Emlyn Williams (the first plaintiff) and a company called Nyrogen Pty Ltd (the second plaintiff). The person in occupation is the defendant, Mrs Lavinia Rampino ("Mrs Rampino") and her family, which I understand comprises three children and her husband.
On 10 May 2002 the owners sold the property to Mrs Rampino for $840,000. The deposit was $45,000 and the settlement date was 24 June 2002. The sum of $10,000 was paid by way of part deposit, and despite demands Mrs Rampino has not paid the balance. Indeed, the first cheque which she handed over for the whole amount of the deposit was dishonoured. According to her affidavit the balance of money went astray. As I stated, it has not been paid. Some of the evidence before the court does raise doubts about the credibility of Mrs Rampino.
Settlement was not effected on 24 June 2002 and the owners' solicitor served a notice of rescission on 27 June 2002. It was a 14-days notice and has not expired. The parties, on or about 11 June 2002, entered into a licence agreement pursuant to which Mrs Rampino and her family entered into occupation of the premises on 11 June 2002. As I stated, the evidence shows that Mrs Rampino did not pay the balance of the deposit, has not paid the weekly amount due under the licence, nor has she settled the sale. I may interpolate to observe that there may be some doubts about the correct settlement date. The owners contend that it is the original date but there is some suggestion it may be later. It is a matter I do not have to resolve.
A decision was made to terminate the licence and require Mrs Rampino and her family to deliver up the premises. As a result, on Thursday 27 June 2002, the owners through their solicitor purported to terminate the licence agreement, requiring Mrs Rampino to leave the premises on Saturday 29 June by 11 a.m. It appears that three methods were used to give Mrs Rampino notice pursuant to Clause 6 of the licence agreement, which does entitle the licensor to bring the licence agreement to an end. The first was by sending a letter by pre-paid post to her at the property. This was not received by her until some time around noon on Friday 28 June. It required her to deliver up possession by 11 a.m. the following day.
The second method was by a facsimile transmission from the owners' solicitors to Mrs Rampino's solicitors, Messrs Goldstein & Partners. The facsimile was sent by Mr Lennon, solicitor, acting for the owners, and it referred to the alleged breach of contract of sale, enclosed a notice of rescission, and concluded by saying -
"We also confirm and hereby give notice that the licence agreement is terminated and you are to hand the keys to the real estate agent by 11 a.m. on Saturday 29 June 2002."
There is no evidence as to when that facsimile was sent on 27 June 2002. It was sent to solicitors acting on behalf of Mrs Rampino.
The third method of giving notice to bring the licence to an end was by a facsimile transmission sent by Mrs Anne Oppy, who is a conveyancer. She was at all material times acting on behalf of the owners in the conveyance. She sent a facsimile to Goldstein & Partners on 27 June 2002. The evidence reveals that she sent that at 9.51 a.m. on June 27th, and if one proceeds on the basis of a 24 hour day, then that facsimile was received in excess of two days prior to 11 a.m. on Saturday 29 June. The letter sent by Mrs Oppy, as I say, is addressed to Goldstein & Partners and refers to a discussion with Gary Goldstein on 26 June 2000 relating to extending the settlement date to 18 July 2002, strictly on a basis of a number of conditions which are set out in the letter. I interpolate to observe that those conditions have not been complied with. The letter then goes on to provide -
"Your confirmation that the purchaser agrees to the above is required in writing by return facsimile this morning."
That would be until noon on Thursday 27 June 2002. The facsimile letter then concludes as follows -
"If your client does not agree to the above, it shall be deemed that the licence agreement shall be deemed to be terminated and your client is to vacate the premises and the keys will be handed to the real estate agents by 11 a.m. on Saturday 29 June 2002."
The evidence in effect establishes that Mrs Rampino received notice about noon the day before the Saturday, and that her solicitors received a conditional notice on the morning of 27 June 2002, which I have stated would have been in excess of two full days. In any event, as I have indicated, both notices required her to deliver up possession by 11 a.m. on the Saturday morning.
Clause 6 of the licence agreement which was executed by the parties on or about 11 June (even though the agreement is undated) provides -
"6.Notwithstanding anything hereinbefore contained, the licensor may at any time after the date of settlement terminate this agreement by two days' notice in writing to the licensee."
Mr Kempfner of counsel for Mrs Rampino submits that the licence was not properly terminated in accordance with its terms and, in the event, Mrs Rampino did not receive the two days' written notice that was required by the agreement.
In my opinion there are two issues to determine, namely -
(i)What does Clause 6 mean and require the licensor to do to terminate the licence?
(ii)Was service of the notice on Mrs Rampino's solicitors in the circumstances a proper notice?
In my view, these questions are to be answered by determining what Clause 6 means. It is a question of construction. What was the common intention of the parties at the time of the execution of the agreement? What each of the contracting parties thought or expected at the time of contracting is irrelevant. As things turned out, there is very little evidence as to what took place in relation to the execution, and accordingly one is left with the bare document itself. In order to determine the common intention of the parties the test is an objective one, and the court considers the surrounding circumstances at the time when the contract was executed. This is not to determine what each party had in their or its mind, but what objectively could be inferred was their common intention: see Codelfa Construction Pty Ltd v. State Rail Authority (NSW)[1]. It is important to bear in mind that it is the final document which records the consensus of the parties. Parties in negotiating a contract pursue their hopes and expectations with different emphasis and hope to achieve their goal in a certain way. Often words which are used by one party mean something different to the other party and yet in the end result the parties use a formula to effect their agreement. The court is concerned with ascertaining the common intention of the parties, and where parties, as in this case, record their consensus in a written document, then the primary source of their common intention is the words used in the document. Full effect must be given to the words used.
[1](1982) 149 C.L.R. 337 at 347 et seq, esp. at p.352.
Looking at Clause 6, it clearly contemplates that the licensee, Mrs Rampino, will be given two days' notice in writing before she is obliged to leave the premises. In my view, taking into account the fact that they are residential premises and she is a family person, the parties contemplated that she should have that opportunity for an orderly exit of the premises. It is clear that the power is given to the licensor to terminate without cause and without grounds, but nevertheless it is clear to me that the agreement could only be terminated by two days' notice in writing to the licensee. This does, of course, raise the question whether notice could be given to the licensee's lawfully authorised agent, in this case Messrs Goldstein & Partners. That does indeed raise an interesting question, but in my view it is unnecessary for me to go down that path.
First of all, I am satisfied on the evidence that proper notice was not given to Mrs Rampino herself. The only other evidence is the letter written by Mrs Oppy to Messrs Goldstein & Partners dated 27 June, and it was sent at 9.51 a.m. The question whether or not one needs to give two clear days' notice is another matter that I do not really have to concern myself about, because I am satisfied that the notice given by Mrs Oppy could not be construed as giving two days' notice in writing to the licensee. This comes about because of the ambiguity and the conditional nature of the penultimate paragraph of the letter. It talks about deeming that the licence agreement be deemed to be terminated if the purchaser did not agree as to the conditions which are set out above. What precisely occurred in relation to these conditions and what took place on that day is uncertain, but I am satisfied that one could not say that that penultimate paragraph satisfies the requirement in Clause 6 of the licence agreement. The contract must be complied with. It does give a right to Mrs Rampino to reside in the property. That licence can only be brought to an end by a compliance with Clause 6, and in my view Clause 6 has not been properly complied with to terminate the licence. In my view there has been a failure to properly give two days' notice in the circumstances.
It is submitted by Mr Artemi of counsel on behalf of the plaintiffs that in any event one could infer from what occurred that it is clear that the licensors are intending to bring this licence to an end, and it is submitted that, even though there may have been what was in effect short service, one should give effect to the clear intention to bring the matter to an end. Whilst I agree that there is some substance in that submission, it overlooks the fact that the parties have set out the means by which the licence is to be brought to an end. The procedure must be followed in accordance with the contractual agreement between the parties, and even though the licensor has evinced an intention, the fact was that two days' proper notice was to be given.
Accordingly I am satisfied that the owners do not have the right to exclude Mrs Rampino and her family from the property. In other words, the licence agreement still is on foot.
I do not have to concern myself about the issues concerning the contract of sale. I sense that Mrs Rampino is short of funds and is using every possible means to avoid having to pay her obligations. She has failed to pay the balance of the deposit, she has failed to pay any money under the licence, and even though it may be that she misunderstood her obligations, it is now clear beyond doubt that she could not possibly misunderstand what her obligations were, but nevertheless she has chosen not to pay the money. One can only be critical of Mrs Rampino's conduct in this matter. But, having said that, she has a right under a discrete and separate contract and she is seeking to pursue that right, and in my view it still operates until it has been brought to an end.
My conclusion means that I do not have to consider the other point raised by Mr Klempfner. He submitted that the Order 53 summary procedure for recovery of land could not apply in this case. He referred to Rule 53.01(2) of the Rules. It provides -
"2.This order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title."
He submits that the phrase "successor in title", where it appears second in that paragraph, should be construed to mean the predecessor in title, otherwise, as he points out, it is difficult to make sense of the paragraph. I think there is a fair point to be made in relation to what he said, and, if it was to be construed in that way, then there is a property that is occupied by a person and the claim made against that person is in fact the owner of the property and arguably the predecessor in title. The interesting question is what is meant by the phrase "in title". Mr Klempfner has submitted that the equitable interest that Mrs Rampino has under the contract of sale means that she is "the successor in title". Whether or not that is right raises some very interesting points. Mr Klempfner did not refer the court to any specific authority on the point, but he did point out that her equitable interest could support a caveat and accordingly she had a caveatable interest which suggests that she must have some title in the property. They are interesting questions. They can be decided on another day.
In all the circumstances, in my view the plaintiffs are not entitled to summary judgment under Order 53, purely and simply on the basis that in my view the licence agreement is still in operation. Accordingly the motion should be dismissed.
I will order -
1. That the proceeding be dismissed.
2.That the plaintiffs pay the defendant's costs of the proceeding including reserved costs.
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