Re Elaine Veronica Catanzariti v Arnold Whitehouse [1981] FCA 139; (1981) 55 FLR 426 (24 September 1981)

FEDERAL COURT OF AUSTRALIA

Re: ELAINE VERONICA CATANZARITI
And: ARNOLD WHITEHOUSE [1981] FCA 139; (1981) 55 FLR 426
No. A.C.T. G13 of 1980
Joint Tenancy - Landlord and Tenant

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fisher(1), Lockhart(1) and Kelly(1) JJ.

CATCHWORDS

Joint Tenancy - whether joint tenant entitled to let or use premises jointly owned to exclusion of other tenant - agency - Contract when made not professed to be made on behalf of principal - whether alleged principal can ratify - trespass to chattels.

Landlord and Tenant - Joint tenancy of premises - One joint tenant purported to lease giving exclusive possession of premises - Other joint tenant ignorant of lease - Lessee unaware of existence of joint tenancy - Rights of lessee to occupy premises - Whether lease can be ratified. The appellant and her husband were registered as the joint tenants of a Crown lease of premises in Canberra. The appellant left the premises in 1978 and in January 1979 her husband purported to let the premises to the respondent without the knowledge of the appellant. When the appellant learnt about the letting some months later she voiced no objection. In June 1979 the appellant moved into the premises herself and, while doing so, she interfered with the respondent's personal effects causing him to suffer damage and loss. The Supreme Court of the Australian Capital Territory having awarded damages to the respondent, an appeal was lodged.

Held, per curiam, that the appeal should be dismissed because the agreement between the appellant's husband and the respondent entitled the respondent to the use and occupation of the whole of the premises together with the appellant, and the appellant was not entitled to damage his goods and chattels.

Keighley, Maxsted & Co. v. Durant, (1901) AC 240; Howard Smith & Co. Ltd. v. Varawa [1907] HCA 38; (1907), 5 CLR 68, applied.

HEARING

Canberra, 1981, July 14; September 24. 24:9:1981
APPEAL.

Appeal to the Full Court of the Federal Court of Australia from the Supreme Court of the Australian Capital Territory (Connor J.) awarding the respondent damages for trespass to the respondent's chattels.

P. L. R. Sheils, for the appellant.

R. E. Williams, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Peter Smyth, Brewster & Co.

Solicitors for the respondent: Manfred Stinson & Dougall.
E. F. FROHLICH

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incident to the appeal.

DECISION

In an action between Arnold Whitehouse (the plaintiff in the action and the respondent to this appeal, to whom we shall refer as "the respondent") and Elaine Veronica Catanzariti (the second defendant in the action and the appellant in this appeal, to whom we shall refer as "the appellant") the Supreme Court of the Australian Capital Territory entered judgment against the appellant in the sum of $111.25 and ordered the appellant to pay the respondent's costs.

The Supreme Court's findings of fact were not disputed before us. They may be briefly stated. The appellant and her husband were the registered proprietors as joint tenants of the residue of the term of a Crown Lease of premises known as No. 113 Eggleston Crescent, Chifley.

In August 1978 the appellant left the premises and, after living with her mother for some months, she rented other premises in Yarralumla where, separately from her husband, she lived with the child of the marriage.

In January 1979 the husband purported to let the premises to the respondent for a term of twelve months at a rental of $80.00 per week. There is no doubt on the evidence that, when the agreement was made between the husband and the respondent, the respondent thought that the husband was leasing to him the house with the right to exclusive possession. The respondent did not enquire as to the state of the title which would have revealed to him the existence of the joint tenancy. He dealt solely with the husband who did not tell him that he and his wife were joint tenants.

In fact, the appellant knew nothing of the arrangement between her husband and the respondent at the time it was made. Thus the premises were let without the consent or knowledge of the appellant.

In February or March 1979 the husband introduced the respondent to the appellant and informed the appellant that the respondent was the person who was renting the premises at $80.00 per week and that the rental was being applied towards paying off the mortgage on the premises which had been on foot for some time, the appellant and her husband being the mortgagors.

The appellant voiced no objection; but subsequently became aware that the mortgage payments were not being made and, towards the end of May 1979, she went to the premises and told the respondent that, as she was no receiving any rent, she wanted him and his family to vacate the premises so that she could move back into the house some two weeks later.

During the period 9-11 June 1979, the appellant moved into the house herself, initially against the respondent's will. He, being uncertain of his legal position, agreed to allow her to return to the house and occupy one of its rooms. She made certain re-arrangements to the disposition of the furniture and other chattels in the premises to enable her to do this.

It is not disputed that the appellant occupied the premises for the purpose of ensuring that she would receive her share of the rent being paid by the respondent to her husband.

Various unfortunate events occurred when the appellant sought to occupy the premises, with consequent loss to the respondent in the sum assessed by the Supreme Court.

Proceedings were brought by the respondent against the appellant and her husband to restrain them from interfering with his right to occupancy of the house; but, although interlocutory injunctive relief was granted to him, the injunctions were discharged by the learned trial Judge at the final hearing as they were no longer necessary. Prior to the trial, the respondent had left the house and the appellant continued to reside there.

The appellant's husband did not enter an appearance in the action in the Supreme Court; and he is not a party to this appeal. It is common ground that this appeal relates only to the entry of judgment against the appellant in favour of the respondent in the sum of $111.25 being damages assessed for interference with or trespass to the chattels of the respondent and costs.

It is not disputed that, when the appellant's husband purported to let the premises to the respondent, he had no actual authority (express or implied) from the appellant to deal with her interest in the premises in any way. Nor is there any suggestion that the husband had any ostensible authority to let the premises on behalf of the appellant.

The respondent contends that at a later time, namely, about mid-1979, the appellant adopted or ratified the actions of her husband some months earlier so that the agreement then became an agreement binding upon her. The respondent contends that in consequence of such adoption or ratification, there was an implied covenant by the appellant of quiet enjoyment. It was alleged that the appellant breached that covenant in various ways in mid-1979, by breaking a window, entering through the space and proceeding to throw clothing, linen and crockery into the backyard of the premises. This apparently allowed the respondent's dogs, said to be known to the appellant to be then in or about the premises, to enter and cause damage to the clothing and linen of the respondent. The respondent contends alternatively that the judgment in his favour should stand because, on any view of the matter, the appellant, by her conduct, had interfered with his right to occupy and use the premises, whether it be a right exclusive of the appellant or a right to be exercised by them both and had also interfered with his personal effects in consequence of which he suffered damage and loss.

Although the facts are simple and of a domestic character, they give rise to a number of interesting and not uncomplicated questions of law.

Each joint tenant of an estate at law is entitled equally to use and occupy the whole estate. If one joint tenant purports to lease (or sub-lease, there is no difference in principle) his share or interest to a third person, all he binds by his lease is his own share. The share of his co-tenant is not bound. It follows that the lessee of one joint tenant cannot exclude the lessor's co-owner, or the co-owner's separate lessee, from such use and enjoyment of the land as co-ownership authorises: see Co. Litt. 186a; Litt, s.289; Cartwright's Case, cited in Putt v. Nosworthy, [1726] EngR 666; 1 Vent. 135; 86 E.R. 93; Wright v. Gibbons, [1949] HCA 3; (1948) 78 C.L.R. 313 per Dixon J. at p.330; Oates v. Oates, (1949) S.A.S.R. 37 at p.40; Frieze v. Unger, (1960) V.R. 230; Baxter v. Harrigan, (1963) N.S.W.R. 432; Hedley v. Roberts, (1977) V.R. 282 at p.286 et seq. It is however open to us to determine the fate of this appeal on grounds other than the rights inter se of co-owners and their privies to quiet possession and enjoyment of their separate interests in the land.

At the time the husband of the appellant agreed to lease the premises to the respondent, in truth all he could agree to lease was his interest as joint tenant with the appellant in the premises. The respondent thereupon became entitled, together with the appellant, to use and occupy the whole of the premises, neither being entitled to the use and occupation of any part of the premises to the exclusion of the other.

It was conceded by the respondent, and rightly so, that, at the time of the agreement, the appellant did not join in the agreement or otherwise dispose of her interest in the premises in favour of the respondent.

The trial Judge held that in mid-1979 the appellant ratified the agreement previously made by her husband with the respondent, whereupon the respondent became entitled as against her also to the exclusive possession of the premises.

The appellant contended that this finding of his Honour was erroneous because there could be no ratification unless the appellant's husband professed, at the time of making the agreement with the respondent, that he made it in his own right and on behalf of his co-owner, namely the appellant.

The appellant relied on the following passage from the dissenting judgment of A.L. Smith L.J. in Durant & Co. v. Roberts and Keighley, Maxsted & Co., (1900) 1 Q.B. 629 at pp. 633-634:-

"It will be seen hereafter that very learned judges over and over again have stated the law as regards ratification to be that, unless the contract made by the unauthorized agent purports or professes (which in my judgment is the same thing) to have been entered into on behalf of another, or the unauthorized agent, when he made the contract, assumed to be making it on behalf of another, then the contract made by the unauthorized agent is not capable of being ratified by a stranger to it; for to be capable of being ratified the contract must purport or profess to have been entered into by the unauthorized agent on behalf of another, or the agent must have assumed by what he did when he entered into the contract to have been acting on behalf of some person who afterwards proposes to ratify."

The House of Lords later agreed with the dissenting judgment of A.L. Smith, M.R. (his Lordship having been appointed Master of the Rolls in the meantime) in Keighley, Maxsted & Co. v. Durant, (1901) A.C. 240. The High Court followed the House of Lords in Howard Smith & Co. Ltd. v. Varawa, [1907] HCA 38; (1907) 5 C.L.R. 68.

The respondent did not dispute these propositions which in our view plainly apply to the present case. The evidence points overwhelmingly to the conclusion that the appellant's husband did not profess, at the time of the agreement with the respondent, that he was acting on behalf of the appellant. Indeed, the contrary was not really pressed. The appellant succeeds on the argument as to ratification.

Before leaving the question of ratification we should say that counsel informed us that the principles governing the doctrine of ratification to which we have referred and their application to the facts of this case were not the subject of argument before the trial Judge; so that his Honour did not have the benefit of the argument enjoyed by us.

The respondent then contended that, whatever the answer be to the appellant's case on ratification, the conduct of the appellant, after she resumed possession of the premises in mid-1979, constituted a breach by her of "her covenant for quiet enjoyment in favour of the respondent".

The argument fails because it rests on the assumption that the appellant breached a covenant for quiet enjoyment given by her to the respondent. Plainly, unless she can be held to have adopted or be otherwise bound by the agreement, she gave no such covenant. Adoption was not argued before the trial Judge or before us and we do not stay to consider whether the concept has application in the circumstances of this matter.

The outcome of the appeal turns, in our opinion, upon a different question. Although it appears that the respondent's case was pleaded and conducted both before the Supreme Court and this Court principally upon the basis that the appellant had breached what was alleged to be a covenant for quiet enjoyment given by her, it was nevertheless part of the respondent's case that the conduct of the appellant was an unlawful interference with the respondent's right to use and occupy the premises equally with the appellant and an unlawful interference with his personal chattels.

The agreement between the appellant's husband and the respondent entitled the respondent to use and occupy the whole of the premises together with the appellant. She retained her right as joint tenant equally to use and enjoy the whole estate. But she was not entitled to attempt to prevent the respondent from exercising his right of use and occupation. In particular she was not entitled to damage his goods and chattels. Her conduct in this latter regard constituted an actionable infringement of the respondent's rights. The damage sustained by the respondent as found by the trial Judge was caused by the appellant's unlawful conduct and she is guilty of committing the tort of trespass to chattels (Clerk & Lindsell on Torts, 12th Edn. para 891). It follows that the appeal must be dismissed.

The appellant filed, together with her defence, a counter-claim alleging in effect that in January 1979 her husband, as joint tenant of the premises, agreed with the respondent to lease his interest in the premises to the respondent for a term of twelve months commencing on 29 January 1979; that the appellant, as joint tenant, is entitled to enter thereon and to occupy the whole of the premises; that the respondent sought, by the proceedings in the Supreme Court, to exclude the appellant from entering the premises; and that, by agreement with her husband, the respondent excluded her from receiving rent until after 13 July 1979. She seeks a declaration that she is entitled to enter and occupy the premises and an order that the respondent vacate them. She also seeks damages and costs.

The trial Judge, having reached the conclusion that judgment should be entered in favour of the respondent, did not make any findings on the counter-claim.

Perhaps his Honour assumed that the counter-claim must necessarily fail as a consequence of the entry of judgment in favour of the respondent. Alternatively, he may have assumed that the appellant did not pursue the counter-claim because the respondent had vacated the premises. Some issues are raised in the Notice of Appeal which are somewhat relevant to the counter-claim; but as the trial Judge made no findings with respect to it and as it was not argued before us, we do not think it proper to deal with it.

It may be open to the appellant to pursue her counter-claim further in the Supreme Court but she will do so, of course, at her own risk as to costs. If she proceeds no further with it we do not see her as being at risk on the question of the costs of the counter-claim.

The Court orders that the appeal be dismissed and that the appellant pay the respondent's costs of this appeal.