David John Green v John Taylor Sca [1990] ACTSC 38; (1990) 102 FLR 33 (18 October 1990)

SUPREME COURT OF THE ACT

DAVID JOHN GREEN v. JOHN TAYLOR
S.C.A. Nos. 1-28 of 1990
Magistrate - Criminal Law
[1990] ACTSC 38; (1990) 102 FLR 33

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Magistrate - appeal to Supreme Court against conviction.

Criminal Law - impose on the Commonwealth by untrue representation - nature of representation - whether payment of rent by stranger represented that lessee continued in possession.

Bacon v. Salamane [1965] HCA 22; (1965) 112 CLR 85

The Queen v. Baxter (1987) 88 FLR 456

Kennison v. Daire [1986] HCA 4; (1986) 160 CLR 129

Jacobsen v. Piepers; Ex parte Piepers (1980) 32 ALR 293

HEARING

CANBERRA
18:10:1990

Counsel for the appellant: Mr R.C. Refshauge

Solicitors for the appellant: Macphillamy Cummins and Gibson

Counsel for the respondent: Mr B. Taggart

Solicitors for the respondent: Director of Public Prosecutions

ORDER

In each matter the appeal be dismissed.

The convictions, penalties and orders of the Magistrate be confirmed except in relation to time to pay the fines.

The appellant be granted two months to pay the fine on the first charge, four months on the second, six months on the third, eight months on the fourth and ten months on the fifth.

Witnesses' expenses of $725.00 be paid to the ACT Housing Trust within twelve months of today.

On all the other matters no penalty be imposed and the appellant be admonished and discharged .

There be no order as to costs.

DECISION

David John Green appeals against twenty-eight convictions in the Canberra Magistrates Court on 6 December 1989 on charges under s.29B of the Crimes Act 1914 (Clth) alleging that on various dates at fortnightly intervals in 1988-1989 he did impose on the ACT Housing Trust, a public authority under the Commonwealth, by an untrue representation, namely, that Keith James Andrews was in possession of premises at 80 Lewin Street, Lyneham in the Australian Capital Territory in accordance with the terms of a lease dated 2 May 1967 between the said Keith James Andrews and the Commonwealth, made by the payment of rent due on the premises using a rent payment voucher in the name of the said Keith James Andrews and with a view to obtaining a benefit, namely possession of the said premises.

2. The essential facts are not in dispute. The appellant and his wife were friends of Keith James Andrews who entered into a lease with the Commonwealth on 2 May 1967 over premises at 80 Lewin Street, Lyneham. The lease was comprised by a printed document bearing the heading "Acknowledgement of Tenancy" and it provided for rent payable fortnightly in advance on the first day of each fortnight. At some time prior to 1980 the appellant and his wife came to Canberra and stayed with Mr Andrews for a short period of time at the premises. They returned to Canberra sometime between 1980 and 1985 and moved in with Mr Andrews. There was an arrangement between them and Mr Andrews that they would pay the rent and help Mr Andrews around the house. In accordance with that arrangement Mr Green or Mrs Green used to pay the rent in cash each fortnight at an office at Dickson, using for that purpose a rental voucher forwarded by the Department of Territories and made out to "K.J. Andrews, 80 Lewin Street, Lyneham". In 1985 Mr Andrews left the premises and went to live in Queensland. He took most of his household belongings with him and he gave the rest to Mr and Mrs Green. There was no arrangement between Mr Andrews and Mr and Mrs Green about what should happen in relation to the rent and domestic services such as the telephone or the electricity. Neither the appellant nor his wife took any steps to notify Telecom or the electricity authority that Mr Andrews had left the premises, and indeed the evidence suggests that the telephone account was opened by the appellant in the name of Andrews before Mr Andrews left for Queensland. In any event, those accounts continued to be paid in the name of Andrews. Mr and Mrs Green continued to pay the rent as before, using the vouchers forwarded in the name of Andrews.

3. The essential allegation against the appellant is that the use of the rental voucher made out in the name of Andrews amounted in the circumstances to a false representation that Mr Andrews was still in possession of the premises.

4. A number of submissions were put on the appellant's behalf by Mr Refshauge, who appeared for him. Reliance was placed on a number of provisions in the lease document and in particular clauses 15 and 16 which were in the following terms:
"15. I will not assign or sub-let or part with the

possession of the premises or any part thereof or
take in any borders (sic), lodgers or paying guests
without first obtaining the consent in writing of
the Commonwealth.
16. I shall be deemed to have parted with
possession of the premises in accordance with the
last preceding clause if I am absent from the
premises for a period of more than one month without
the consent in writing of the Commonwealth."

5. The chief submission was that it was not open to the Magistrate to find that the conduct of the appellant relied upon amounted to an untrue representation. More precisely, it was submitted that the conduct relied upon, that is to say, the payment of rent in conjunction with the use of the rental voucher in the name of Andrews, did not amount to the misrepresentation alleged, that is to say, a representation that Mr Andrews was still in possession of the premises at the time of payment. There is no allegation that the appellant represented himself to be Keith James Andrews.

6. Mr Refshauge submitted that generally speaking a tenancy continues until it is determined in accordance with the terms of the lease between the lessor and the lessee. I accept that that is a correct proposition, at least when the lease makes provision for determination; where there is no provision for determination the Court may have to import terms, and there are situations where a lease is determined by operation of law but that is not the case here. Clause 17 provides that the Commonwealth may determine the tenancy at any time by giving fourteen days previous notice in writing. Clause 18 provides that the tenancy may be determined by the tenant on giving fourteen days previous notice in writing, with certain conditions. Clause 19 gives the Commonwealth the right to re-enter and take possession if the rent or any part thereof (whether demanded or not) shall be unpaid for seven days after the day on which it is payable or if the tenant fails to observe or perform any of the terms or conditions of the lease.

7. The effect of the provisions of the lease is that the lease continues, despite any failure to pay rent or to observe any of the other conditions, until it is determined as provided. Hence, if the payment of rent is alleged to be a representation that the tenancy between the Commonwealth and the lessee was still on foot, then it was not an untrue representation. But significantly that is not the false representation charged. What is charged is a misrepresentation that Kevin James Andrews was in possession at the time of the payment of rent. The essential question then is whether the payment of the rent by the appellant in conjunction with the use of the rental voucher and in the light of all the circumstances amounted to that untrue representation.

8. A number of cases were cited by counsel for the respondent informant: for example Bacon v. Salamane [1965] HCA 22; (1965) 112 CLR 85, The Queen v. Baxter (1987) 88 FLR 456, Kennison v. Daire [1986] HCA 4; (1986) 160 CLR 129, Jacobsen v. Piepers; Ex parte Piepers (1980) 32 ALR 293.

9. The cases indicate that it is not necessary for the prosecution to prove that the person or body to whom the misrepresentation was directed acted upon that misrepresentation. Bacon v. Salamane to which reference was made is not concerned with whether there was a misrepresentation or not, but with the effect of the representation and whether the effect has to be on the performance of the contract rather than on its formation. The misrepresentation may be by words or conduct or both. Otherwise the cases cited are of very little assistance.

10. I think it is quite correct, as Mr. Refshauge submitted, that the payment of rent does not amount to a misrepresentation that the conditions of the lease are being complied with. Take the example of a tenant who is in breach of one or more of the obligations that are usually contained in a lease where the breach has not come to the notice of the lessor. The lessee will be astute to keep paying the rent if he or she does not want the lessor to determine the lease. Conversely no lessor would assume simply by receipt of rent that the tenant was complying with each and every obligation under the lease. However, every case has to be looked at in the light of its own facts. In the present case the appellant knew that it was highly unlikely that the lessee would ever return to the premises. The appellant and his wife had occupied the premises for some fifteen years and to the exclusion of Mr Andrews for at least three years. The appellant paid the rent using the vouchers forwarded to Mr Andrews during the whole of that period. The telephone and electricity accounts were maintained in the name of Andrews. There is no claim and no evidence that the rent was paid by the appellant as agent for Mr Andrews after he went to Queensland. On the whole of the evidence there is no doubt in my mind that the appellant intended at the time of each payment of the rent and by the use of the rent voucher in the name of Andrews to represent that Mr Andrews was still in possession. Whilst it is true that such a representation did not as a matter of law arise necessarily out of the payment of rent, the whole of the circumstances left the inference that the tenant continued in possession available to be drawn by or on behalf of the lessor and that was the impression intended to be given by the appellant. In my view, the Magistrate was correct in finding that there was the untrue representation charged.

11. Other submissions were made on behalf of the appellant which may be dealt with shortly. It was submitted that the representation was not false, that all that was represented was that the tenant remained entitled to possession though not in actual possession. For the reasons I have already given, I am of the view that the representation intended and available to be conveyed was that the tenant was in actual possesion, and further that that representation was untrue.

12. It was also submitted that the appellant's conduct was not directed as charged towards "obtaining a benefit, namely possession of the said premises" because the appellant was already in possession of those premises. The submission is rejected, because the charge is not one of obtaining possession, but of obtaining a benefit, particulars of the benefit being given as possession of the premises. Possession in this sense includes continuation of possession as well as entering into possession. In my view, the Magistrate was correct in convicting the appellant of each of the charges. In each matter the appeal is dismissed and the convictions, penalties and orders of the Magistrate confirmed except in relation to time to pay the fines. I grant two months to pay the fine on the first charge, four months on the second, six months on the third, eight months on the fourth and ten months on the fifth. On all other matters no penalty is imposed and the appellant is admonished and discharged. I make no order as to the costs of the appeal.