Jim Foliou Samios v Augustin Petersilka [1993] ACTSC 35; (1993) 113 FLR 63 (16 April 1993)

SUPREME COURT OF THE ACT

JIM FOLIOU SAMIOS v AUGUSTIN PETERSILKA
No. SC43 of 1993
Number of pages - 5
Landlord and Tennant
[1993] ACTSC 35; (1993) 113 FLR 63

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Landlord and Tennant - Periodic tenancy - Termination of tenancy - Validity of notice to quit - Expiry at the end of one of the recurring periods of the tenancy - Insufficient evidence to ascertain date on which such period ends.

Commercial Tenancy Law in Australia; Bradbrook and Croft, 1990

Rowston v Sydney County Council [1954] HCA 66; (1954) 92 CLR 605

HEARING

CANBERRA, 19 February 1993
16:4:1993

Counsel for the Appellant/Plaintiff: Mr J Purnell

Instructing solicitors: Messrs Mallesons Stephen Jaques

Counsel for the Respondent/Defendant: Mr R Arthur

Instructing solicitors: Mr B Collaery

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed.

DECISION

HIGGINS J On 1 February 1993, the plaintiff took out a summons seeking summary judgment for possession of premises at Garema Place, Canberra City.

2. The facts deposed to by the plaintiff may be summarised as follows,
. The plaintiff became registered proprietor of premises the

subject of Crown Lease, Volume 1210 Folio 40 on 30 November 1992,
pursuant to a contract of sale with Gilroy Investments Pty Ltd
dated 22 October 1992.
. The vendor had entered into a registered sublease of part
of the premises with the defendant. That was a licensed
coffee lounge area.
. The sublease purported to commence "on and from the date of
commencement of business or 1st June 1991, whichever is earlier".
. The sublease was for a term of one year with an option for a
further term of four years plus a further term after that of five
years.
. The sublease contained a provision for "holding over" (cl.24).
. Taking the view that the sublease had expired, the plaintiff,
on 30 November 1992, caused a Notice to Quit to be served on the
defendant.
. The plaintiff took the view that the Notice determined the
tenancy of the defendant, as from 1 January 1993 and thereafter
the defendant "remains in occupation of the premises as a
trespasser" (per Statement of Claim 19 January 1993).

3. On or about 18 December 1992, the defendant paid $4,173.00. The plaintiff accepted it, he deposed, as "an occupation fee" rather than for rent.

4. The application was supported by an affidavit from Mr Geoffrey Hay, a solicitor. He annexed a letter dated 3 September 1992, from Mr Bernard Collaery a solicitor apparently then acting for the defendant. The letter rejected a proposal for a rent increase, noting that the term of the lease had then expired and the defendant had the option of moving out rather than accepting a rent increase.

5. The application for summary judgment came before the Master on 5 February 1993. Mr Arthur for the defendant, objected that the lease could not be shown to have expired on 31 May 1992. It could have expired earlier. If it did, the Notice to Quit did not expire and was not served on the day, or the anniversary of the day, on which the periodic tenancy began or ended.

6. The Master agreed with that submission. He refused summary judgment, with costs.

7. The plaintiff appeals from that order.

8. It is accepted by both sides that a Notice to Quit must, if it is validly to determine a periodic tenancy, expire at the end of one of the recurring periods. The end of a recurring period is defined as the last day of the expiring period or the first day of what would otherwise be the commencement of the new period (see Commercial Tenancy Law in Australia; Bradbrook and Croft, 1990). That position applies in the absence of agreement to the contrary. The agreement as to the date of commencement of the original term of 12 months, referred to in this case, is relevant only insofar as it prescribes the date of commencement and hence the date of expiry of each periodic tenancy following its end without exercise of the option for renewal of the lease for a term of years.

9. The agreement as to holding over was referred to in clause 24 of the sublease in the following terms,

"24.1 If the Lessee continues to occupy the Premises after
the end of this lease then the Lessee does so as a monthly tenant
at the rent then applying and on the conditions of this lease.
24.2 The monthly tenancy may be terminated by either party by 1
month's notice in writing to another."

10. That agreement changes neither the commencement date of each periodic tenancy so created, nor the need for a notice expiring at the end of it, of at least one month's duration, to terminate it.

11. The Notice to Quit was, as I have noted, served on 30 November 1992. It expired on 1 January 1993, which was described as "the end of the current period of your monthly tenancy".

12. The Master was undoubtedly correct in concluding that, on the evidence presented to him, the commencement of the tenancy, whilst no later than 1 June 1991, could well have been prior to 1 June 1991.

13. The commencement date is relevant only insofar as it governs expiry. Clause 28 provides for renewal of rent. It does indicate that the first rent period dates from 1 June 1991. Unfortunately for the plaintiff, that does not equate with an agreement that the lease will expire on 30 May 1992, whenever it should be deemed to have commenced. It remains a lease expiring 12 months from its commencement, whenever that was.

14. It is obvious that cl.28 is difficult to apply if the commencement date of the lease is uncertain. That uncertainty is a product of the evidence, or lack of it, rather than the clause itself. Clause 30 expressly recognises that expiry of the initial term of 12 months may be prior to 1 June 1992.

15. I accept that rent was "customarily" paid on or as at the first day of each month. In the absence of evidence to the contrary, that would establish the commencement date of each period of the monthly tenancy (see Rowston v Sydney County Council [1954] HCA 66; (1954) 92 CLR 605).

16. In the present case, however, the terms of the lease do not leave it open to permit that inference to be drawn. After all, whenever, before 1 June 1991, the lease commenced, rent was payable by instalments of $3,900.00 due on the first of each month commencing 1 June 1991. It is clear that the "rent day" was not intended to mark the commencement of the tenancy.

17. It follows, I think, that the Master's decision was correct. The appeal must be dismissed. It was not proved that the Notice to Quit validly determined the monthly tenancy.

18. I will hear the parties as to costs.