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Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 (9 February 2011)
Last Updated: 11 November 2011
This decision has been amended. Please see the end
of the decision for a list of the amendments.
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Case Title:
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Celermajer Holdings Pty Ltd v Kopas |
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Before:
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Decision:
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Declaration that no equitable life tenancy and order
for removal of caveat. As revised, orders for termination of tenancy and
possession.
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Catchwords:
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LANDLORD AND TENANT - whether owner of residential
premises is entitled to possession as against the long term occupants of those
premises - whether the defendants have an equitable life tenancy of the premises
- HELD - no equitable life tenancy - the nature
of the defendants' tenancy of
the premises - whether the premises are controlled premises, and the tenant a
'protected tenant', under
the operation of the Landlord and Tenant (Amendment)
Act 1948 (NSW) - HELD - the first defendant is the sole tenant pursuant to a
periodic monthly tenancy at common law on the terms of a previous
holding-over
tenancy - as revised, the plaintiff has established that the premises are not
controlled premises and that the tenant
is not a 'protected tenant' under the
Landlord and Tenant (Amendment) Act 1948 (NSW) - notice of termination valid
under the Residential Tenancies Act 1987 (NSW) - plaintiff entitled to
possession |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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Equitable Damages, Butterworths 1994 Fry on Specific
Performance (6th ed.) Meagher, Gummow and Lehane (4th ed.) Megarry's The
Law of Real Property, 3rd ed. On Equity, Young, Croft and Smith |
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Category:
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Parties:
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Celermajer Holdings Pty Ltd
(Plaintiff/Cross-Defendant) Jurai Kopas (Defendant/Cross-Claimant) Janice
Kopas (Cross-Claimant) |
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Representation
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Counsel: J E Marshall SC with P M Sibtain
(Plaintiff/Cross-Defendant) A E Maroya (Defendant/Cross-Claimants) |
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- Solicitors:
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Solicitors: Michael Michell & Associates
(Plaintiff/Cross-Defendant) McCabe Terrill Lawyers
(Defendant/Cross-Claimants) |
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File number(s):
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Publication Restriction:
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JUDGMENT
- HER
HONOUR : These proceedings involve a dispute as to whether the plaintiff,
Celermajer Holdings Pty Ltd ( CHPL ), the owner of residential
premises in Rose
Bay, is entitled to possession as against the long term occupants of those
premises (Dr and Mrs Kopas), following
service in October 2005 on Dr Kopas of a
Notice of Termination of Residential Tenancy Agreement. The premises in question
comprise
a two bedroom unit in a block of four units each of which is owned by
CHPL.
- The
Kopas family (Dr and Mrs Kopas and their son David) has occupied the unit in
question (Unit 3) since January 1984. Dr Kopas entered
into a Residential
Tenancy Agreement for a six month term on or about 6 January 1984. On the expiry
of that original term, Dr Kopas
continued in possession of the premises with the
consent of CHPL thus giving rise to a monthly holding over tenancy pursuant to
the
terms of the lease. CHPL has, on various occasions since 1992, commenced
steps to bring to an end the tenancy of Unit 3 and/or to
obtain possession of
the premises (but until the present application has not persisted with such a
course). For their part, Dr and
Mrs Kopas have staunchly resisted any attempts
at termination of their occupancy of the premises.
- Dr
and Mrs Kopas resist CHPL's claim in the current proceedings principally on the
basis of an alleged equitable life tenancy of the
premises. In the alternative,
they contend that the premises are "controlled" premises (and that Dr Kopas is a
protected tenant)
for the purposes of the Landlord and Tenant (Amendment) Act
1948 (NSW) (to which I will refer by way of shorthand as the Landlord and
Tenant (Amendment) Act ). They also allege breach of the alleged agreement
pursuant to which they say the equitable life tenancy arose and of a subsequent
agreement said to have been reached in 2000 in relation to the premises. Damages
are claimed on various bases, including damages
for breach of contract by reason
of alleged interference with the quiet enjoyment of the premises by the issue of
various notices
of termination over the years and/or damages for the value of
the alleged life tenancy (in lieu of specific performance).
- The
genesis of the current proceedings was the service on Dr Jurai Kopas of a Notice
of Termination dated 19 October 2005 requiring
vacant possession of the premises
on 28 November 2005. That Notice was expressed to be issued under s 56 of the
Residential Tenancies Act 1987 (NSW) (to which I will refer by way of
shorthand as the Residential Tenancies Act ). (Although the
Residential Tenancies Act has recently been repealed and the
Residential Tenancies Act 2010 (NSW) has come into operation, pursuant to
the transitional provisions of the 2010 Act the former Act continues to apply in
relation
to any application made to the Tribunal under the former Act and not
finally determined before the commencement of those provisions,
as it does in
relation to any termination notice given before the repeal of the former Act or
other action or proceedings commenced
before that repeal, relating to the
termination of an existing residential tenancy - Schedule 2 cll 5 & 6.)
- The
stated ground for termination of the residential tenancy agreement was the sale
of the premises to Celegroup Pty Limited, which
I understand to be related to or
part of the same group of companies as CHPL. On 30 November 2005, CHPL applied
to the Consumer Trader
and Tenancy Tribunal (to which, in both its current and
former emanations, I will refer as the Tribunal) for an order terminating
the
1984 residential tenancy lease.
- Dr
and Mrs Kopas then lodged a caveat on the title, claiming an equitable interest
under a life tenancy created by an agreement in
1992. On Dr Kopas' application,
the proceedings in the Tribunal were transferred by consent to this Court in
January 2006, where
the matter was ordered to proceed by way of pleadings. After
various iterations, the relevant pleadings comprise an Amended Statement
of
Claim filed by CHPL on 15 July 2008, to which Dr Kopas filed a defence on 15
December 2008 and a Further Amended Defence on 27
May 2009, and CHPL's reply
filed on 7 August 2009), on the one hand; and, on the other hand, a Further
Amended Statement of Cross-Claim
filed by Dr and Mrs Kopas on 27 May 2009, to
which CHPL filed a defence on 7 August 2009.
- Unfortunately,
there was no little delay in the matter progressing to a hearing, not least
because for some period Dr and Mrs Kopas
were not represented by lawyers and the
conduct of the matter was undertaken by their son who is not legally qualified
and was not
familiar with court processes. David Kopas, on behalf of his
parents, sought (and obtained) a vacation of the initial hearing dates
fixed for
hearing to commence on 4 May 2009 on the basis that he had not appreciated the
tasks necessary to prepare the matter for
hearing when earlier consenting to
directions made in that regard. Counsel subsequently briefed for Dr and Mrs
Kopas (Mr Maroya)
sought and obtained leave to file the Further Amended Defence
and Cross-claim and to file further affidavits from Dr and Mrs Kopas
(to address
the fact that much of their evidence was in inadmissible form, and, as Mr Maroya
conceded, would be liable to be struck
out if left as it was). I mention this
aspect of the matter as the leave given to file further affidavit evidence at
that stage of
the proceedings was on the basis that, other than as provided for
in the directions then given, no further affidavit evidence in
support of the
further amended defence and cross-claim was to be served without leave.
(Objection was later taken on behalf of CHPL
at the hearing to the attempted
reliance by Dr and Mrs Kopas on affidavit evidence other than in accordance with
those directions.)
- While
a variety of issues were raised in the pleadings, broadly speaking the principal
issues in dispute (on which CHPL's claimed
entitlement to possession of the
premises turns) at the hearing were as follows:
(i) the existence or otherwise of an alleged agreement in 1992 pursuant to
which Dr and Mrs Kopas contend they have been granted a
fixed term tenancy (that
fixed term being said by them to extend beyond their respective lives for a
period of 90 days from the death
of the last of them, though it was acknowledged
by Mr Maroya during the hearing that there would be a difficulty in the lease
subsisting
beyond the lives of either of the individual tenants and this was
referred to simply as a mechanism provision) (the 1992 Agreement
allegation);
(ii) the basis of the Kopas' current occupation of the premises in the event
that no binding agreement for a life tenancy is found
to have been made in 1992;
(iii) whether the premises are controlled premises, and Dr Kopas a protected
tenant, under the operation of the Landlord and Tenant (Amendment) Act
(the Protected Tenancy allegation);
(iv) the existence or otherwise of the alleged 2000 Agreement (the 2000
Agreement allegation); and
(v) the respective claims for relief: by CHPL (for declaratory relief/removal
of caveat/termination of whatever tenancy is found to
be on foot and an order
for possession of the premises) and by Dr and Mrs Kopas (for specific
performance of the alleged 1992 Agreement
or damages in lieu of specific
performance; for damages for alleged breach of the 1992 and 2000 Agreements; and
for exemplary damages).
- Issues
such as whether, if the 1992 Agreement was reached, it was too uncertain to be
enforceable and as to the authority of CHPL's
real estate agent to enter into
such an agreement, as well as the formal validity of the notice of termination,
need to be considered
in determining the above. There is also a claim for
damages for misleading and deceptive conduct in relation to entry into the 1992
and 2000 Agreements but it was accepted that this turns largely on the findings
in relation to the issues in (i) and (iv) above.
The validity of the termination
notice issued in October 2005 turns on the determination of issues (i) - (iii)
above.
- In
summary, CHPL seeks a variety of declaratory relief, the effect of which is to
sustain its claims that the only tenant is Dr Kopas
himself (ie, that he is not
in occupation pursuant to a joint tenancy with his wife) and that his tenancy is
a holding over tenancy
pursuant to the holding over provisions of the initial
1984 residential lease; that the 1984 lease did not operate under Parts 2-5 of
the Landlord and Tenant (Amendment) Act and that the premises are not
prescribed or controlled premises under that Act; that Dr and Mrs Kopas do not
have an equitable life
tenancy of the premises; that there was no agreement
reached in 1992 or 2000, as alleged; and that the 2005 Notice validly terminated
the tenancy. CHPL seeks orders that the caveat lodged by Dr and Mrs Kopas on the
title be removed and for possession of the premises
(or, in the alternative a
declaration as to its entitlement to terminate the lease and for possession of
the premises).
- By
their Further Amended Statement of Cross Claim, Dr and Mrs Kopas seek
declaratory relief to the opposite effect, namely as to their
claimed
entitlement to an equitable life tenancy, and for consequential relief or
further or in the alternative a declaration that
the premises are 'controlled
premises' and that Dr Kopas is a 'protected tenant'; and orders for the specific
performance of the
1992 Agreement by execution of a lease in registrable form
and further or in the alternative an order for damages representing the
value of
their equitable life tenancy, and/or for damages for breach of covenant and
exemplary damages in an amount to be assessed
by the court.
- As
I understand it, Dr and Mrs Kopas contend that even if the alleged 1992
Agreement is not established, the holding over tenancy
based on the 1984
residential tenancy agreement was terminated by the Tribunal in April 1992 and
thereafter any periodic tenancy
arising at common law was one to which Mrs Kopas
was a party (and a protected tenancy under the Landlord and Tenant
(Amendment) Act or, alternatively, a residential tenancy under the
Residential Tenancies Act ).
- If,
contrary to CHPL's principal position, CHPL's then property manager (Mr Wellner)
and Dr and Mrs Kopas are found to have reached
an agreement in terms of the
alleged 1992 Agreement, CHPL raises a number of defences to the claims made by
Dr and Mrs Kopas in relation
to that agreement, namely that Mr Wellner had no
actual or ostensible authority to bind CHPL to that agreement (and there was no
ratification by CHPL of the agreement); a limitation defence (raised in
paragraphs 15 and 24(c) of the Defence to the Further Amended
Statement of
Cross-claim); laches and delay; and that the alleged 1992 Agreement is not
amenable to specific performance.
Summary
- For
the reasons set out below:
(i) I am not satisfied that a binding agreement was reached between Mr
Wellner and Dr and Mrs Kopas on the terms of the alleged 1992
Agreement. (Had I
been satisfied that there was an agreement reached on 29 April 1992 on the
matters recorded in the 3 page handwritten
document of that date, I would have
held that the agreement failed for uncertainty as to the rent payable over the
term of the agreement.
While I am satisfied that Mr Wellner did not have actual
authority to bind CHPL to a life tenancy agreement, I consider it likely
that he
had ostensible authority to do so. (Had there been a lack of ostensible
authority, I would not have accepted that there was
any ratification by CHPL of
such an agreement.) In the event, I find that Dr and Mrs Kopas have not
established an equitable life
tenancy in the premises as contended (and hence
the caveat claiming such an interest should be removed from the title to the
premises).
(ii) the occupation of the premises by Dr Kopas from the expiry of the
initial term of the 1984 residential lease was pursuant to
a holding over
tenancy from month to month up until 23 April 1992; thereafter his occupation
has been pursuant to a common law monthly
periodic tenancy, on the terms of that
earlier holding over tenancy, by reference to an implied agreement reached on 29
April 1992
for the reinstatement of the tenancy which had earlier been
terminated by the Tribunal's orders on 16 April 1992; the sole tenant
at all
relevant times has been Dr Kopas;
(iii) (following the revision of this judgment and the findings made in my
reasons for judgment on CHPL's motion to vary), CHPL has
established that, as at
the time of the entry by Dr Kopas into the 1984 lease, the premises were not
controlled premises under the operation of the Landlord and Tenant
(Amendment) Act and hence has established that Dr Kopas was not a
protected tenant under that Act (and therefore the provisions of the
Residential Tenancies Act govern the residential tenancy agreement for
these premises);
(iv) I am not satisfied that a binding agreement was reached between CHPL's
real estate agent and Dr and Mrs Kopas on the terms of
the alleged 2000
Agreement; and
(v) as to CHPL's claims for relief, it is entitled to the declarations sought
in respect of the tenancy of the premises and to an
order for the removal of the
caveat lodged on the title, it is further entitled to an order for possession of
the premises (on the
basis that the October 2005 notice of termination was a
valid notice of termination under the Residential Tenancies Act). I
consider it appropriate in the circumstances of the case to order possession of
the premises to be given on a date 90 days from
the date of this judgment in
order to allow Dr and Mrs Kopas a reasonable period of time to secure
alternative accommodation;
as to the claims for relief made by Dr and Mrs Kopas, having regard to the
above findings, the claims based on the existence of both
the alleged 1992
Agreement and the alleged 2000 Agreement must necessarily fail, as does the
claim for damages for misleading and
deceptive conduct. (Had I found that there
was an enforceable agreement in terms of the 1992 Agreement binding on CHPL,
then although
such an agreement would in my view have been amenable to an order
for specific performance by ordering the execution of a lease in
registrable
form but omitting the various clauses that were, in effect, conceded to be penal
in operation, I would have declined
to grant such relief on the ground of
laches. I would also have found that no compensable damage had been sustained as
a result of
the repudiation by CHPL of any agreement in the terms of the 1992
agreement and would have made no order for damages for breach of
the agreement
or for exemplary damages; nor would I have granted any additional relief on the
misleading or deceptive conduct claim.)
Jurisdictional Issue
- Before
turning to the factual background to this matter (which spans a considerable
period), I deal first with the jurisdictional
issue raised by Dr and Mrs Kopas.
By paragraph 31 of the Further Amended Defence, Dr and Mrs Kopas deny that CHPL
is entitled to
the relief claimed, or at all, by reason of s 71 of the
Residential Tenancies Act . In paragraph 27 of the Further Amended
Statement of Cross-Claim, Dr and Mrs Kopas plead that, in circumstances where
CHPL places
reliance upon the Residential Tenancies Act as the basis of
the entitlement to relief claimed in its Amended Statement of Claim, CHPL should
have continued its application in
the Tribunal, which it is said is the proper
forum for CHPL's claim.
- As
noted in the brief introduction earlier, the application by CHPL for orders for
termination of the residential lease and for possession
of the premises was
initially brought in the Tribunal. There, as in these proceedings, Dr Kopas
raised the alleged 1992 Agreement
as invalidating the termination notice. The
application to transfer the proceedings to this Court was made by notice of
motion filed
by Dr Kopas seeking such an order pursuant to s 23 of the
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The order for
transfer of the proceedings was ultimately made by consent. There is no
suggestion that Dr Kopas foreshadowed
at the time that if the proceedings were
transferred he would seek to rely on s 71 as a defence to CHPL's claim. In those
circumstances, there is considerable force in CHPL's submission that it hardly
behoves Dr
Kopas now to complain that the proper forum for CHPL's claim was the
very forum from which he sought (successfully) to have the proceedings
transferred to this Court. Senior Counsel for CHPL, Mr Marshall SC, appearing
with Ms Sibtain, submits that the process by which
the proceedings were
transferred to this Court ought to be viewed as a waiver of such a defence and
that Dr Kopas is estopped from
raising this defence.
- Section
71 of the Residential Tenancies Act provides:
No proceedings in the Supreme Court, the District Court or the Local Court to
obtain recovery of possession of residential premises
subject to a residential
tenancy agreement shall be commenced by a landlord against a tenant or former
tenant of the landlord.
- In
Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100, Kirby P (as
his Honour then was), with whom Sheller JA agreed, held that s 71 of the Act
creates a defence to proceedings brought contrary to the terms of the section
but should not be read as denying jurisdiction
to this Court. It is submitted
for CHPL that any such defence is inapplicable where the proceedings were first
commenced in the Tribunal
and only later transferred to this Court (on Dr Kopas'
own application).
- It
is submitted that this Court has the power to make the orders sought by CHPL
under both s 64 of the Residential Tenancies Act and in its plenary
jurisdiction under s 23 of the Supreme Court Act 1970 (NSW). As to the
former, it is submitted that the reference to "the Tribunal" in s 64 can be
taken to be this Court when proceedings
have been transferred to it by the
Tribunal itself (s 3(1) providing that "tribunal" is to be taken as a reference
to the Tribunal "except in so far as the context or subject-matter otherwise
indicates or requires"). Reference is made to ss 72 and 120A of the
Residential Tenancies Act , as supporting the notion that this Court has
power to entertain applications of the present kind.
- It
is not suggested that this Court does not have jurisdiction to determine the
matters pleaded in the Further Amended Statement of
Cross-Claim relating to the
alleged equitable life tenancy referable to the agreement that Dr and Mrs Kopas
contend was reached in
1992, though that is an agreement which it is contended
also amounts to a residential tenancy agreement pursuant to s 13 of the Act.
Whether reliance can be placed by Dr and Mrs Kopas on s 71, therefore, goes only
to the claim for possession. Reference was made in this regard by Mr Marshall to
Maryska v Mason [2007] NSWSC 1222.
- In
Maryska , the plaintiff had a right of occupation pursuant to an oral
residential tenancy agreement, as defined under the Act. An issue raised
in the
proceedings before Palmer J was whether this Court should make an order for
vacant possession when the Tribunal had exclusive
jurisdiction. Palmer J was of
the view that where proceedings could not have been commenced in this Court to
recover vacant possession
from the tenant, this Court should not make an order
for vacant possession pursuant to a cross claim improperly commenced in this
Court. (I interpose to note that his Honour seems there to have been speaking in
terms of the exercise of a discretion to make such
an order, not suggesting that
there was no jurisdiction to do so.) Nevertheless, although his Honour was of
the view that vacant
possession should be sought in the Tribunal, he noted that
his judgment would establish that, as between the parties, there was no
estate
or interest in the premises other than a tenancy determinable according to law.
His Honour declined to make orders for vacant
possession but did order the
removal of the caveat in that case.
- In
the present case, the proceedings were in fact commenced by CHPL in the Tribunal
and it was Dr Kopas who sought the transfer of
the Tribunal proceedings to this
Court (without any suggestion that if CHPL consented thereto he would then deny
the jurisdiction
of this Court to deal with its claim), which then proceeded on
pleadings. CHPL did not improperly commence proceedings in this Court.
Rather,
it consented to the transfer of its Tribunal claim to this Court. I consider
that it is not open to Dr Kopas now to assert
that this Court is not an
appropriate forum for the determination of the present claims and that Dr Kopas
is estopped from relying
on any defence that would otherwise be available under
s 71 of the Residential Tenancies Act .
- Had
I considered otherwise, it would have been still have been open for me to
determine the remaining issues in the case (in particular,
the claimed
entitlement to an equitable life tenancy, on which the maintenance of the caveat
rests).
- Prolongation
of the litigious disputes between the parties, in circumstances where Dr Kopas
by his conduct has elected to have the
tenancy issues determined in this Court,
does not seem to me to be consistent with the just, quick and cheap resolution
of the real
issues in dispute in this Court. As I am satisfied that there is
jurisdiction to deal with all of the claims for relief, and there
has been a
contested hearing over a number of days on those claims, I consider it
appropriate now to determine all of those issues.
Facts
Entry into initial agreement in 1984
- As
noted earlier, by a standard form residential tenancy agreement dated 6 January
1984, CHPL granted to Dr Jurai Kopas a six-month
lease of the premises in
question, commencing from 9 January 1984, at a rental of $186 per fortnight;
rent being payable in advance
on the first day of each fortnight. A rental bond
of $372 was lodged. D r Kopas, his wife Janice Kopas and their son David Kopas
have lived in the unit since 1984.
- There
is no dispute that the initial residential tenancy agreement was in Dr Kopas'
name alone (Mrs Kopas confirming in the witness
box that her husband had always
"handled all that sort of thing" - T 14.46; see also T143.13; T 149.24; T 149.45
- and not suggesting
that prior to 1984 she was jointly entitled as a matter of
law to the tenancy of the premises).
- The
Residential Tenancy Agreement (which appeared to be in the form of a standard or
pro forma agreement) was signed on behalf of
CHPL by Mr Alex Wellner (a real
estate or property management agent acting on behalf of CHPL). Mr Wellner gave
evidence and was cross-examined
in these proceedings. (The execution by Mr
Wellner of the initial agreement lends support to the allegation that he had
ostensible
authority to bund CHPL to entry into tenancy arrangements in relation
to the property.)
- The
principal of CHPL at the relevant time(s), Mrs Christine Celermajer, developed
health problems (specifically, she was diagnosed
with Parkinson's disease) from
about 1991. Mrs Celemajer has progressive dementia and is in a nursing home. It
was not disputed that
as at the time of the hearing she was unable to give
evidence as to the events of 1992 and had been unable to do so for some time
due
to her significant cognitive impairment. No adverse inference can be drawn from
her failure to give evidence.
- The
1984 residential tenancy agreement contained a standard form holding over
clause, providing that if the landlord permitted the
tenant to continue to
occupy the premises after the expiration of the lease term then the lease
continued as a periodic lease from
month to month being terminable as provided
under clause 19(ii) of the agreement by one month's written notice. (There was
no reference
in the agreement to any matters of the kind referred to in section
5A of the Landlord and Tenant (Amendment) Act .) There seems no dispute
but that, from the expiry of the initial six-month term in July 1984, at least
until the events in April
1992 to which I will come shortly, Dr Kopas' occupancy
of the premises was as sole tenant under the holding over provisions of the
initial residential tenancy agreement.
- The
1984 residential tenancy agreement contained a special condition prohibiting the
tenant from keeping an animal or bird in the
premises or on the common area
without the written consent of the landlord, a provision of some relevance since
the keeping of dogs
in the premises became a point of some contention between
the parties in this case.
- 1991 CPHL
agency agreement with Raine & Horne
- In
1991, Mr Wellner changed real estate agencies, from S P Hilton & Co (the
previous real estate agents acting for CHPL) to the
principals trading as Raine
& Horne, Bondi Beach real estate agency. A Management Agency Agreement was
entered into between CHPL
and that agency in 1991. Relevantly, that agreement,
dated 27 February 1991, authorised the letting of properties on behalf of CHPL
on 6 month terms (which, in the absence of evidence of any subsequent
amendment to the authority so given, supports Mr Wellner's claim that he had
no
actual authority to grant a (potentially far longer) life tenancy on CHPL's
behalf just over 13 months later).
- From notice
of termination - March 1992
- On
2 March 1992, a Notice of Termination of Residential Tenancy Agreement was
issued (and addressed solely) to Dr Kopas, requiring
vacant possession of the
premises by 20 March 1992. It was signed by Mr Wellner on behalf of CHPL. The
Notice raised two grounds
of termination: first, "having 2 dogs inside the
premises" and, secondly, that rent had not been paid for 14 days (although, as
in
my copy it appeared that a line was drawn through items 2-5 of the copy
Notice in evidence, it is perhaps unclear whether reliance
was in fact being
placed on the second ground).
- As
to the keeping of pet dogs inside the unit, or in the common area of the
building, while this seems to have been a point of some
contention between the
parties from around 1992 onwards (Dr and Mrs Kopas contending that they had kept
pet dogs at the premises
since about 1989 in reliance upon oral permission to do
so by CHPL's then real estate agent), its only relevance for present purposes
is
insofar as it is submitted that this was permitted as a term of the (disputed)
1992 Agreement.
- As
to the alleged arrears of rent, while it is suggested that CHPL's subsequent
application to the Tribunal is inconsistent with 14
days' rent being owing as at
2 March 1992 (since the application lodged on 2 April 1992 referred to rent paid
up to 24 February 1992), it is not disputed that at some stage leading up
to April 1992 Dr Kopas had withheld rent for the premises (Dr
Kopas suggesting
that there were arrears of some 10 weeks). (Given that rent was payable in
advance, logically if rent had been paid
up to that date as the end of a
fortnightly period, then rent would have been again due on that date as the
start of the next fortnight
- hence as at 29 April 1992 there could well have
been about 10 weeks' rent due if, as the 2 April application asserted, no
payment
had been made from 24 February 1992.)
- In
the witness box, Dr Kopas accepted that the rent had been withheld because of
his complaint as to the state of the apartment block's
roof, which he said had
been leaking for six and a half years. Dr Kopas said that he had made complaints
for some time as to the
roof leaking (and, indeed, Mr Wellner, in the witness
box, accepted that complaints had been made in relation to the roof by other
tenants and said that the problem was with missing ridge-capping), though there
was no record kept of any such complaint by Dr Kopas
prior to 1992 (T 54). (Nor
was there any record of the Council order Dr Kopas said had been made for the
replacement of the roof,
which he raised in an application to the Tribunal
around this time.)
- The
withholding of rent by Dr Kopas from around March 1992 seems likely to have been
precipitated by storms in the eastern suburbs
of Sydney around that time that
were said to have been of some severity. Although Dr Kopas was vague as to the
date of the severe
storms in his suburb - in cross-examination putting the
occurrence of a severe storm as being in 1989, he did not deny that there
had
been storms over the years and he said that each storm had exacerbated the
problem with the roof. There was an insurance claim
referable to the roof (based
as I understand it on storm damage) made around mid 1992, (Dr Kopas having
referred to such a claim
before the Tribunal, having gone so far as to assert to
the Tribunal that it had been a fraudulent claim).
- Dr
Kopas gave contradictory evidence as to what advice he had obtained in 1992 from
a tenancy advisory service as to the withholding
of rent in light of the roof
problems. At first, in the witness box, he accepted that he had been advised by
"the tenancy advisory
services" that he should not have withheld the rent - T
57.26 (that evidence being consistent with what he had said in his far more
contemporaneous application to the Tribunal around April 1992). Logically, such
advice could only have been given after he had withheld rent (it being
retrospective in substance). However, Dr Kopas later denied in the witness box
that he had ever received
advice that he was not allowed to withhold the rent (T
79.48) and gave evidence that he had instead received advice from the tenancy
advisory services that he should not pay the rent but should retain it in a
separate account pending repairs to the roof (T 79).
(The possibility that he
had received conflicting advice on separate occasions, which could have
explained this inconsistency in
his oral evidence, is not maintainable in light
of his insistence that he had only once received advice from tenancy advisory
services
or somebody in Redfern in relation to this issue.)
- Whatever
advice Dr Kopas was given at the time, it is not disputed that he did
withhold rent in mid 1992 and it seems likely that he did so because of his
complaint
that the roof needed to be repaired (or replaced). Dr Kopas, in the
witness box, gave evidence of a conversation with Mr Wellner
in which Dr Kopas
said that he had told Mr Wellner "I'm withholding the rent. You repair me the
roof, I'll pay the rent" - T 55)
although he also said that he could not
remember why he had stopped paying the rent (T 68) and (at T 67) referred to a
telephone
call with Mr Wellner in which Dr Kopas said he was not sure whether he
had said he withheld the rent or had threatened to do so.
- Following
the issue of the March 1992 Notice of Termination, on 3 April 1992 an
application dated 2 April 1992 was filed by Mr Wellner
on behalf of CHPL with
the Residential Tenancies Tribunal (the precursor to the CTTT) (application RT
92-4440), in which orders were
sought "to end the residential tenancy agreement
and return possession to the owner" and for payment of "compensation of $1,110
in
place of missing rent since 24/2/92" and for "compensation of $370 relating
to prevention of letting [another unit] in the same building".
The form signed
by Mr Wellner included the statement that rent was only paid until 24 February
1992. That application was listed
for hearing on 16 April 1992. Notice of the
hearing date was sent to Dr Kopas on 7 April 1992.
- Tribunal
orders 16 April 1992
- There
was no attendance by or on behalf of Dr Kopas at the Tribunal on 16 April 1992
(apparently due to ill-health on the part of
Dr Kopas). In his absence, adverse
orders were made. Relevantly, those orders were for the termination of the
residential tenancy
agreement and for possession to be given to CHPL on 23 April
1992 (together with an order for payment by Dr Kopas of the sum of $1,559.28
immediately as arrears of rent to that date and rent up to 23 April 1992). The
precise form of the orders is not in evidence - rather,
what is in evidence is a
copy of the letter dated 21 April 1992 by which the Tribunal advised Dr Kopas of
the making of orders, the
first paragraph of which read:
1. Order for termination & possession: The tenancy agreement is
terminated and possession is to be given to the landlord on 23/4/92.
- The
making of these orders is of significance both when considering the context in
which it is said that the alleged 1992 Agreement
was reached and in determining
the status of the tenancy thereafter (if no agreement in terms of the 1992
Agreement is ultimately
found to have been made).
- It
is also significant that, on the making of those orders, it might be thought
(and Dr Kopas himself seems to have accepted - T 82))
that CHPL had the upper
hand (or, to use Dr Kopas' words in the witness box "had the cards in his hand"
T 82) in any negotiations
for the continued occupation of the premises by Dr
Kopas and his family. However, Dr and Mrs Kopas suggest (inconsistent with that
evidence) that there was some anxiety or concern on the part of Mr Wellner (or
the principal of CHPL, Mrs Christine Celemajer) to
negotiate with them to
resolve the dispute with the Kopas family at that stage (and Dr Kopas maintained
that in those negotiations
Mr Wellner had had to give him 'something' - T 82).
- As
noted, there was no attendance at the Tribunal on 16 April 1992 by or on behalf
of Dr Kopas when the orders for termination of
the lease and for possession of
the premises were made. Dr Kopas apparently received advice from the Tribunal of
the making of the
orders by the letter dated 21 April 1992 received by him on 23
April 1992 (according to the application he filed a day later on 24
April 1992).
- Dr Kopas' 24
April 1992 Tribunal application
- No
doubt precipitated by that communication, on 24 April 1992 Dr Kopas filed an
application in the Tribunal (RT 92-5320), seeking
an order for the payment to
him of the sum of $16,900 as "compensation" in relation to the roof of the
building, and an order to
vary or set aside the "existing" orders of the
Tribunal made in proceedings RT 92-4440 on 16 April 1992.
- The
reasons stated for the application were, first, that the roof had been leaking
for six and a half years (and it was said, though
there was no evidence other
than Dr Kopas' assertion that this was the case, that the inspector for health
and building in Waverly
Council "is putting an order against the landlord") and,
secondly, that Dr Kopas had not attended the hearing because of health reasons
and that his wife had been told to present a letter of explanation with a
medical certificate, which she had then done. The application
also contained the
statement (in Dr Kopas' handwriting), consistent with the evidence he gave the
first day of his cross-examination
but from which he resiled the following day,
that "I was explained today at the Tenancy Advisory Services about my rights and
duties
and I understand that I withheld payment incorrectly and that offsetting
payments against compensation can be ordered only by the
Tribunal. Due to my
state of mind I could not think about what action to take and how to go about it
and I ask for the Tribunal indulgence
on this point". (In the witness box, Dr
Kopas rather surprisingly said he did not know what "indulgence" meant in this
context -
T 59 - it appeared to me that his reluctance to accede to the
proposition that he had sought an indulgence was due to him being wary
of any
admission he might thereby be making if this were to be adverse to his case.)
- The
significance of the issue as to whether Dr Kopas was aware, as at 23 April 1992
or thereabouts, that he would or might not have
been legally entitled to
withhold rent due to a problem with the roof, on CHPL's case, is that it is said
that if this was his understanding
then it is inconsistent with clause C(1) of
the alleged 1992 Agreement (which provided that it was a breach of the agreement
if rent
was not paid for 90 days "without just cause") - and that Dr Kopas,
having realised this, was therefore seeking to distance himself
from such an
understanding (hence the change in his evidence on that topic).
- The
flavour of the cross-examination in this regard emerges from the following
extracts. First, at T 57-58:
Q. You see, what happened is on the
24th you went to the Tenancy Advisory Service to discuss your position as a
result of having received
that notice dated 21 April, you had received it the
previous day on the Thursday, that's what happened, isn't it?
A. I don't recollect at the moment.
Q. You got some advice from them which told you that you had done the wrong
thing, isn't that true?
A. Well, I got advice that I should not have withheld the rent.
Q. Exactly, you were told that you should not have done it?
A. I should not have withheld the rent, that's right.
Q. At that point, you knew you were in trouble, didn't you?
A. Of course I was in trouble . (my emphasis)
- The
following day Dr Kopas said (at T 79.33), inconsistently with what he had said
both in his 24 April application to the Tribunal
and in the evidence extracted
above, in the context of questions as to what would be "just cause" to withhold
the rent under the
alleged 1992 agreement (to which he gave the roof as an
example):
Q. You had been told by the tenancy advisory service that
you were not entitled to withhold rent because of a claim about the roof?
A. The tenancy advisory services, you mentioned it yesterday, I don't really
pick it up because I don't remember ever writing it.
The only record that I have
or memory that I have that before I withheld rent I spoke with somebody - I
spoke with few people or
somebody who was official, somebody from Redfern, I
don't know exactly what it was, but this is the one that said to me "Withhold
the rent and put the money aside, put the money aside. Don't spend the money and
the guarantee that they will repair - do the repairs"
and this is the bad advice
that I got. I don't remember any word that I spoke about tenancy advisory
services but if it is then please show me what it was.
Q. What you have just said is directly inconsistent to what you said
yesterday?
A. It might be inconsistent but as I say, that's yesterday was yesterday
and you spoke about tenancy services right yesterday and I remember it and
as far as I am concerned the only thing that could have
been a tenancy services
I spoke was in Redfern. I never got advice from a tenancy services not- that
I am not allowed to withhold the rent . (my emphasis)
- When
asked if the (contrary) statement in his application of 24 April was true or
false, Dr Kopas said he did not remember and could
not "relate to memory of
stuff that I don't remember". It was then suggested to him, but he did not
accept, that the fact that he
was aware as at 29 April of the inability to
withhold rent for a roof claim caused a problem for him in maintaining the 1992
agreement
because of an alleged inconsistency with clause (C)(1) of the
handwritten document. In that regard, as I understand it, the perceived
inconsistency arises insofar as clause C(1) might be said to contemplate that
the tenant will be entitled to withhold rent if there
were to be a 'just cause',
something that Dr Kopas might by then have understood, at least in relation to
matters such as roof problems,
would not automatically follow as a matter of
legal right.
- I
am not persuaded that there is necessarily an inconsistency - it could simply be
that, whatever the relevant legal rights, this
agreement was putting in place a
different regime. It might also be that this was a layman's attempt at providing
for abatement of
rent in some situations. What seems to me more of a problem for
the status of the alleged agreement is the uncertainty as to what
the parties
could be said objectively to have contemplated as a 'just cause' which would
entitle the withholding of rent. (At this
stage, I simply note that Dr Kopas'
contradictory evidence on the issue of what advice he had been given back in
1992 as to the withholding
of rent suggests that his evidence should be treated
with caution, at the very least because of the unreliability of his
recollection.)
- I
place more weight on what Dr Kopas' contemporaneous documents say as to the
advice he had received than his evidence in the witness
box some 18 years later
(which may, consciously or otherwise, have been affected by a realisation of
what evidence would be likely
to assist his case). Had Dr Kopas not understood
as at April 1992 that there was a risk he had not been entitled to withhold
rent,
then the statement in his Tribunal application would have been a
surprising concession.
- Given
the statement contained in the April 1992 Tribunal application lodged by Dr
Kopas, it is clear that at least by 24 April 1992,
and hence before the meeting
on 29 April 1992, Dr Kopas had some understanding (whether based on advice
received from tenancy advisory
services or otherwise and whether or not
consistent with any other advice he may have received) to the effect that he may
not strictly
have been entitled to withhold rent (since his own document records
this) and hence was in a position where he might not have a strong
legal
position upon which to rely at least in relation to his evident desire to remain
in occupation of the premises.
- Alleged 27
April 1992 meeting
- The
day on which Dr Kopas filed his application with the Tribunal (24 April 1992)
was a Friday. Therefore, it might be assumed that
it would be unlikely that
notification of the application by the Tribunal to CHPL (if sent by ordinary
post, as its letters on their
face seem as a matter of course to have been)
would have been received by Mr Wellner on behalf of CHPL (and therefore could
have
been any cause for concern by the landlord) by the following Monday (27
April). Yet it is on that date that it is said by Dr Kopas
(paragraph 69 of his
affidavit affirmed June 2009) that Mr Wellner came to visit him at the unit and
sought a meeting to resolve
matters with the landlady. (Mrs Kopas confirmed in
the witness box that Mr Wellner had visited the flat on 27 April 1992.)
- Initially,
both Dr and Mrs Kopas (and their son David, though he said in the witness box
that he did not take much interest in real
estate matters at that time) deposed
(in virtually identical terms) that Mr Wellner had come to plead with
them to resolve matters, though Dr Kopas' later affidavit (perhaps to remove the
basis of an objection as to its admissibility)
makes no reference to Mr Wellner
'pleading' with them. Dr Kopas was cross-examined as to whether the later
divergence in the accounts
given as to this meeting was an attempt to lend
verisimilitude to the Kopas family's evidence. He denied that it was. At T 60,
there
was the following exchange:
Q. At one stage you, your wife
and your son all asserted that he [Mr Wellner] came and pleaded with you?
A. Absolutely.
Q. But you no longer say that in your affidavit, do you?
A. I probably don't.
Q. That is one of the instances where there is now a divergence between you,
your wife and son in the affidavits?
A. I don't know what my son and my wife wrote in their affidavits regarding
this. I don't remember what they wrote . I don't think I am supposed to
remember what they wrote . (I emphasise the last sentence in the context of
the issue I will consider later as to the import of the substantially identical
evidence of the Kopas family prior to the most recent affidavit evidence adduced
from them).
- Mr
Wellner denies that he went to the Kopas apartment on that date and denies that
he pleaded with Dr and Mrs Kopas, stating in forthright
terms that this was not
in his nature (T 197.48), an observation consistent with that of his then
managing director, Mr Kemeny, and
with the impression I formed of Mr Wellner in
the witness box. It is also consistent with the state of events at that stage.
If,
as seems likely, Mr Wellner had not by then received any formal notification
from the Tribunal as to the application filed by Dr
Kopas on 24 April, then
presumably the only matter to be resolved (on CHPL's part) as at 27 April 1992
was when (and how) compliance
with the order for possession was to be secured
(possession having been ordered by the Tribunal to be provided on 23 April 1992
and,
as at 27 April, the Kopas family remaining in occupation of the premises).
There would surely be no reason for Mr Wellner to 'plead'
with the Kopas family
in that event (or for CHPL to be overly anxious as to securing an agreement for
vacant possession, when it
would have been open to CHPL simply to invoke the
procedures for compulsory eviction of the tenant relying upon the Tribunal
orders
to that effect).
- Pressed
as to the above, Dr Kopas, in the witness box, said for the first time that he
had telephoned Mr Wellner and told him about
the roof compensation claim. Dr
Kopas said that he had told Mr Wellner on 27 April 1992 (in a telephone call
"probably Friday maybe
Monday" that he intended to pursue compensation in other
civil proceedings - T 75). If that is in fact what happened then it is
surprising
that in the subsequent Tribunal applications and in the various
iterations of the Kopas family affidavit evidence there was no mention
of the
conversation. It seemed to me to have been proffered by Dr Kopas in
cross-examination to meet the suggestion that there was
no need for Mr Wellner
to have visited the apartment (or to have 'pleaded' with them to resolve
matters).
- In
the witness box, Mr Wellner was dismissive about the compensation claim (whether
that claim was one made in the Tribunal or made
elsewhere). He did not appear to
me (from my observation of the manner in which he responded to the pressure of
questions in the
witness box) to be someone likely to be readily alarmed by
threats of litigation (and had that been the case it might be thought
that steps
would have been taken at an earlier stage to repair the roof to avoid any
unwelcome confrontation - particularly given
Mr Wellner's acknowledgment of
other complaints in relation to the roof).
- The
Kopas family recollection that there was a sufficient measure of concern on the
part of the landlady (Mrs Celemajer) or Mr Wellner
to warrant a personal visit
to their apartment (and I can only assume that a visit of this kind was not the
standard form of communication
given the emphasis the Kopas family seem to
placed on it) does not seem objectively likely having regard to either the
chronology
of events or the experience of Mr Wellner in property matters. (Of
course, it may well be Mr Wellner had simply called in (without
there being any
element of 'pleading'), perhaps as a matter of courtesy, in order to discuss how
the premises were to be vacated,
and has forgotten over the years that such a
meeting had taken place - but that is not the evidence of any of the parties.)
- Other
than as a matter going to credit (or the reliability of the witnesses'
recollection of events), nothing turns on whether there
was a meeting on 27
April prior to the relevant meeting on 29 April 1992. Insofar as it is relied
upon as indicating an anxiety on
the part of Mr Wellner (or CHPL) to reach a
resolution of the dispute with Dr and Mrs Kopas, it does not seem to me that
even if
Mr Wellner did come to the flat to arrange a meeting this makes it more
likely that at the subsequent meeting Mr Wellner was prepared
to make the kinds
of concession necessarily involved in an agreement on the terms contained in the
3 page handwritten document.
- (Insofar
as the background to the 1992 application filed by his father is referred to in
David Kopas' February 2009 affidavit, I note
that in the witness box he
disavowed having taken much interest in what was occurring with the real estate
agents at that time. Therefore,
I can place little weight on his evidence as
confirming that of his father in this regard.)
- What
is not disputed is that on 29 April 1992 Dr and Mrs Kopas met with Mr Wellner at
the offices of Raine & Horne. Dr and Mrs
Kopas say that it was a lengthy
meeting in the afternoon (two or three hours). The reason Dr Kopas says that he
recalls it was late
in the afternoon was that he and his wife wanted someone
should be home by the time that their son (then in year 12) returned home
from
school (T 70). Mr Wellner denies that the meeting was a lengthy one (and, given
the relatively taciturn and dogmatic manner
in which Mr Wellner gave evidence,
it might be thought unlikely that any such meeting would have lasted for 2 to 3
hours). It was
suggested in cross examination of Dr Kopas that the alleged
lateness of the meeting was an attempt to explain away the fact that,
unlike the
one page typed document addressed to the Tribunal, the 3 page handwritten
document was not typed in the Raine & Horne
offices. He denied this.
- I
am not persuaded that there was a particularly lengthy meeting on 29 April 1992.
It does not seem consistent with a busy real estate
practice and there is no
detailed account of the discussion from which I could form the view that the
negotiations had been lengthy.
While it does seem likely that the meeting was
late in the business day (as Dr and Mrs Kopas say) since a letter to the
Tribunal
and admittedly typed on that date was post-dated 30 April (presumably
to accord with the date it was to be sent to the Tribunal),
that does not,
however, mean that it is unlikely that there was anyone else in the office who
could have assisted in the typing of
the handwritten document had he or she been
asked to do so.
- As
adverted to above, there is remarkably little detail provided by Dr and Mrs
Kopas of the discussion that took place during that
(allegedly lengthy) meeting
on 29 April 1992. Significantly, there is no account from Dr Kopas or his wife
as to any negotiation
in relation to any of the terms set out in the handwritten
document or any debate back and forth as to those terms, as one might
have
expected in a lengthy meeting devoted to reaching an agreement on such matters.
Dr Kopas, in the witness box, said that he had
taken notes during the meeting
but that after the agreement was prepared had thrown them away in a garbage bin
in the office (T 71).
There is no way to test that assertion.
- Dr
Kopas, by the time of this meeting, appears to have been aware that he had not
been (or at least there was a question as to whether
he had been) entitled to
withhold the rent. He took with him to the meeting a considerable sum (in cash
and by cheque) to pay most
of the arrears (around $1,480, there being two lots
of $370 remaining to be paid at the conclusion of the meeting), presumably in
anticipation that he would be required to pay the arrears before the landlord
would be prepared to consider allowing him to remain
in the premises.
- There
is a dispute as to whether the arrears were proffered at the start of the
meeting (as Mr Wellner's recollection suggests) or
after agreement had been
reached as to what was to occur in relation to the tenancy (as Dr Kopas says -
and which is said to be consistent
with payment of the arrears being in
accordance with whatever agreement had by then been reached). There is also a
dispute as to
whether the arrears were paid to an assistant in the office (as Mr
Wellner recalled in the witness box) or to Mr Wellner himself
(with he later
instructing an assistant to produce a receipt, as Dr Kopas contends). (The
significance of the presence or absence
of an office assistant at the time, as
noted above, goes to the likelihood that an agreement signed by Mr Wellner would
not have
been typed and/or witnessed by someone else in the office.)
- Interestingly,
the printed receipt issued (headed Trust Tenant Receipt) for the rental arrears
payment (on its face a pro forma computer
printout) bears the date 29 April
1992, thus suggesting it was printed on that date (which suggests that there was
still an assistant
in the office when it was printed, since it was not suggested
that Mr Wellner had himself printed the receipt). Also of interest
is the fact
that the tenant is there identified as "Dr J & J Kopas". There is no
suggestion that prior to the making of any agreement
on that date Mrs Kopas was
a tenant (as opposed to an occupant) of the premises. Hence a receipt addressed
to her of that date suggests
a lack of precision in the records of the agency.
(Even if it were the case that the records had been changed on that date, to
reflect
the new agreement for which Dr and Mrs Kopas contend, that surely could
operate only from that date and yet this was a receipt for
the preceding period
24 February 1992 to 20 April 1992 in her name.) Therefore, although reliance was
placed by Dr and Mrs Kopas
on the agency's records to suggest an acknowledgment
that Mrs Kopas was indeed a tenant (under the 1992 agreement), I doubt that
much
weight can be placed on them.
- Significantly,
it seems to be accepted by Dr and Mrs Kopas that, by the time of the meeting on
29 April 1992, they did not trust Mr
Wellner. Dr Kopas said that during the
meeting his wife had spoken to him in Italian to tell him to be wary of Mr
Wellner and Mrs
Kopas agreed that that was the case. She agreed that what was of
concern to her was whether Mr Wellner would abide by any agreement
reached at
the meeting. It is not clear why Mrs Kopas considered Mr Wellner to be
untrustworthy at that stage - although it is possible
that it was due to
complaints as to the way the roof problem had been handled up to that point by
the agency. However, the fact that
Dr and Mrs Kopas did not trust Mr Wellner
makes it objectively unlikely, in my view, that they would have been content to
accept
a copy of an unwitnessed handwritten document (even one signed by Mr
Wellner) as the only record in their hands of the agreement
they say had been
reached for a life tenancy.
- There
is some doubt as to whether, as at the time of the meeting, Dr Kopas was aware
that the monetary jurisdiction of the Tribunal
was then limited to $5,000
(making his $16,900 compensation claim beyond its monetary jurisdiction). The
Tribunal itself did not
write to Dr Kopas advising of the limits to its power to
order monetary compensation until 8 May 1992. However, in the witness box
(again, for the first time) Dr Kopas said (T 74) that he had received three
telephone calls from two people at the Tribunal earlier than that
advising him of the limit. It rather seemed to me that Dr Kopas was plucking his
recollection
of telephone calls (with surprising detail as to the number of
calls from the Tribunal and of the number of people who made them)
somewhat out
of the air that could only have been in order to justify the earlier assertion
that Mr Wellner had come to the flat
on 27 April to plead with him to resolve
matters. It is hard to believe that the various conversations that emerged for
the first
time in the witness box would not previously have found their way into
statutory declarations or affidavits of Dr Kopas. Dr Kopas'
first affidavit, to
the contrary of his oral evidence, suggested that his first contact with Mr
Wellner at around this time was the
meeting on 27 April (not that there had been
any earlier telephone call). (I also note that this evidence was given the day
after Dr Kopas said he had been quite disoriented due to his blood
pressure and not when he said he had been so affected, hence that cannot
be the
explanation for the inconsistency - T 75.)
- I
interpose to note that the amount of $16,900 claimed in Dr Kopas' 1992 Tribunal
application was said by Dr Kopas to have been calculated
by reference to the
rent paid over the previous six and a half years when the roof was leaking,
although there is no mathematical
calculation to show that this is the case. Dr
Kopas says that he had supporting documents in relation to his 'roof' claim,
which
he threw away when the rental bond was reinstated but he seemed there to
be referring not to the quantification of the claim but
to documents supporting
his claim that the roof needed to be repaired or replaced. Dr Kopas maintained
in the witness box that he
had paid rent for that period for something that he
did not get and therefore was entitled to the whole of the rent paid over that
period. For his part, Mr Wellner says that he was not concerned about the
compensation claim, as he knew the monetary limit to the
Tribunal's jurisdiction
- and even apart from that he seemed fairly dismissive as to the prospects of Dr
Kopas maintaining a claim
for recovery of the whole of the rent paid since the
commencement of the lease.
- According
to Dr and Mrs Kopas, at the meeting on 29 April they reached an agreement with
Mr Wellner which was written down by Dr Kopas
and was signed by each of Dr and
Mrs Kopas and by Mr Wellner. They also say that Mr Wellner telephoned the
'landlady' (Mrs Celermajer)
a number of times during the course of the meeting.
- As
noted earlier, Mrs Celermajer had been diagnosed with Parkinsons disease in 1990
(according to the affidavit read in CHPL's case
by her then doctor, Dr
O'Sullivan). Mr Wellner denied having telephoned Mrs Celermajer on 29 April 1992
and said (for the first time
in the witness box) that his instructions were not
to telephone her. Indeed Mr Wellner said that Mrs Celemajer was not physically
capable of holding a telephone for conversations at that time. It is not
suggested that Dr or Mrs Kopas were privy to any discussions
with Mrs Celermajer
nor that they heard Mr Wellner talking on the telephone to her. It can have been
no more than an assumption on
their part that Mr Wellner had telephoned Mrs
Celermajer (albeit such an assumption might possibly have been derived from
something
said to them during the course of the meeting by Mr Wellner). In the
face of evidence to suggest that Mrs Celemajer was unwell at
the time, then in
the absence of anything other than the Kopas' assertion that she had any active
input in the discussions on 29
April 1992 (whether or not limited to telephone
calls) I think that the evidence of Mr Wellner is more probable on this issue.
(The
suggestion of inconsistency of Mr Wellner's evidence as to instructions
received by a Mr Rutkowsky seemed to me to be explicable
by reference to that
gentleman having responsibility for decisions in relation to building matters
rather than the tenancy generally.)
- Central
to the present dispute is what was the agreement reached by the persons present
at the 29 April 1992 meeting. Going into the
meeting, the matters seemingly in
issue were the existing rental arrears (in respect of which a Tribunal order had
already been made),
the Kopas' desire to remain in the unit (notwithstanding the
order for possession that had been made) and the Kopas' wish to be compensated
for the damage caused by the leaking roof (and, if they remained in the unit,
for the roof to be repaired or replaced). I have already
noted Dr Kopas'
evidence to the effect that he had told Mr Wellner "You repair me the roof I'll
pay you the rent". There seems no
reason, with this being the context in which
the discussion took place, to expect that Mr Wellner would have taken it upon
himself
to offer what could only be seen (in my view) as a remarkable offer -
namely a life tenancy - in order to secure an agreement for
the roof claim to be
dropped (whether or not that claim was understood as going beyond the Tribunal's
limit of $5,000), though this
seems to be what must have happened if the Kopas'
version of events is to be accepted (let alone for him to have offered a life
tenancy
on the extraordinary terms of the 3 page handwritten document).
- In
that regard, it was the consistent evidence of the real estate agents who were
called to give evidence for CHPL that the grant
of a life tenancy was something
that to them (at least) was very unusual. While Mr Maroya emphasised that the
notion of a life tenancy
is not unknown, it must also be recognised that it is
by no means common where the arrangement is one reached in a commercial rather
than domestic or family context (or at least that seems to have been the import
of what was said back in 1972 by Jacobs JA when considering
the nature of a life
tenancy in Borambil Pty Ltd v O'Carroll [1972] 2 NSWLR 302 .
There, Jacobs JA referred to the observation in Megarry's The Law of Real
Property , 3 rd edn p 621 that, by the middle of the nineteenth century, the
practice of granting leases for life had declined (in the context
of his
Honour's discussion as to there being no distinction in the attributes at common
law between a tenant for life under a lease
at a rent and a tenant for life
under a settlement). Jacobs JA noted that the distinction was that where
property was let at a rent
for life the letting was properly described as a
'lease for life' but that where no commercial rent was stated it was more usual
to refer to the interest for life as a 'life tenancy'.)
- Therefore,
at least by 1972 it seems that there was some judicial and academic recognition
that life tenancies, in the sense of leases
for life at a commercial rent (which
is what the present life tenancy is suggested to be) had declined, so it would
hardly be surprising
that the real estate agents dealing with Dr and Mrs Kopas
would suggest such a thing to be unusual in their own personal experience.
- There
is no dispute that agreement was reached between Mr Wellner and Dr and Mrs Kopas
as to the one page typed letter sent to the
Tribunal (providing for the
withdrawal of Dr Kopas' application for compensation and for the rescission of
the 16 April orders obtained
by CHPL and for the repair of the roof). CHPL
maintains that this was the only agreement reached on that day. Dr and Mrs
Kopas, on
the other hand, contend that the one page typed letter (signed by Mr
Wellner and Dr Kopas alone) was part of a 4 page agreement,
the remaining 3
pages being comprised of the handwritten document dated 29 April 1992 and
bearing the signatures of each of Dr and
Mrs Kopas and of Mr Wellner. When
pressed as to what had been said in relation to the life tenancy, Dr Kopas said
"But all what he
said to me, you can stay there until the rest of your lives" -
T 78.41.
- As
the alleged 1992 Agreement is central to the dispute (and the terms of the
handwritten document are unusual, to say the least,
- described by Mr Maroya as
being in 'flamboyant language'), I set out below in full (with my emphasis where
italicized or emboldened)
the transcription provided by CHPL's legal
representatives of the handwritten pages:
29.04.1992
As a result of a meeting that was initiated by Alex Wellner (Raine &
Horne, Bondi Beach) on behalf and under instruction of Celemajer
Holding P/L,
the following Agreement/settlement was reached:- This Agreement is the written
Part of the Settlement that was reached
between Alex Wellner R/H BB as Agent and
Celemajer Holding P/L as Proprietor with Dr J & J Kopas (KOPAS) as a result
of Tribunal
cases No. 92/4440 and No. 92/5320 plus pending litigation in
other jurisdiction by Kopas against Proprietor/Agent regarding flat 3
......... Rose Bay 2029. These cases will be called the "Roof Case". The
purpose,
intention and spirit of this Agreement/settlement, is to settle this
dispute in good faith and to avoid further litigation about
this case ("Roof
Case"); and hopefully avoid future litigation in general. It is not done as a
ruse to weasel out of financial losses and "Have the Cake and eat it" by acting
in bad faith in the future. Both parties agree in good faith to abide by
this Agreement and the spirit of this agreement.
(A) Kopas agrees to the following:-
(1) Pay Rent arrears owing.
(2) Withdraw action in Tribunal No. 92/5320 concerning "Roof Case";
furthermore withdraws &/or does not initiate further civil
action in Court
regarding the "Roof Case" - for restitution of all rent paid from 1984 up to
today + costs + damages, and forgoes
these legal actions completely.
(3) Pay the appropriate rent promptly.
(4) Be responsible for the actions of his 2 dogs within the property, eg
cleaning.
(5) Accepts the offer for "the Rest of Kopas's Life" tenancy in flat 3
....... Rose Bay 2029 .
(B) Proprietor/Agent agrees to the following:
(1) Withdraws action for eviction & penalties in the Tribunal No. 92/4440
"Roof Case" and renounces further actions in this case,
and Restores Bond.
(2) Immediate notification in writing to undertake repairs to the flat &
replace the roof within 7 days or asap.
(3) Attend all major repairs & maintenance promptly & properly. Not
impede with actions or omissions or otherwise the right
of Kopas to Access, Use
and enjoyment eg - block access, cut utilities etc.
(4) Acknowledge & reaffirms Mrs Sertis's (S.P Hilton) oral permission to
have 2 dogs in the flat.
(5) (i) As acknowledgement/recognition for Kopas withdrawing and foregoing on
above legal actions specified, Prop/Agent offers to
grant Kopas - J & J
Kopas - Jointly &/or separately (in case of divorce or death of one Kopas)
to Remain [2]
tenants in flat 3 ........ Rose Bay 2029 for the "REST OF THEIR LIVES".
(ii) This "Rest of their Lives" Tenancy remains valid regardless who owns
property.
(iii) In case of death of both Kopas, the Prop/Agent commits to NOT ENTER
&/or SEIZE Property &/or POSSESSIONS of Kopas, for
a period of 90
(ninety) days. In this time, David Kopas &/or Agents for Kopas estate will
clear all Kopas's Possession &
the lease/tenancy will finally end with
Vacant possession. At this point the tenancy ends and DOES NOT pass over to
David Kopas or
any other heir.
(6) All communication by Prop/Agent to Kopas is to be in writing or to be
followed up in writing, otherwise they will be disregarded.
(7) Gives permission to Kopas to change locks and Prop/Agents renounces to
have duplicates. Permission to install appropriate security
system in the flat.
Prop/Agent CANNOT EVER enter the flat without Kopas being present &/or
without written consent by Kopas;
failure will be considered Break and Enter and
will be reported to Police as such.
(C) Breaches and results of Breaches of this Agreement/Settlement.
(1) Failure of Kopas to pay appropriate rent for a consecutive period
of 90 (ninety) days, without just Cause. Prop/Agent will then have the right to
pursue Kopas for the
amount owed in appropriate jurisdiction and pursue
termination of lease in the Supreme Court for breach + costs if they so choose.
(2) If Kopas Continues &/or restores abovementioned legal/actions in this
"Roof case", for compensation/damages & the like
in any jurisdiction (which
Kopas renounced), the Prop/Agent can seek termination of lease for breach in the
Supreme Court + costs.
(3) Failure of Prop/Agent to accept appropriate rent from Kopas &/or
reject rent payments, will be a breach & will imply an offer
of free rent
-Gratis- for the rest of the tenancy ("Rest of Lives") , which Kopas will
Automatically accept however, due warning & notice of 30 (Thirty) days from
Kopas to Prop/Agent has to be given
in writing stating breach & giving them
a chance to Remedy.
(4) (i) Failure by Prop/Agent to replace roof (as per above) is a breach.
Failure to maintain the property (the building in general
& my flat) to a
point that it becomes unliveable, structural damage & the such (like) is a
breech. It will give right to Kopas to issue a letter of demand (LOD) for all
the rent paid since 1984 to the time of the breach + specified
itself (oraly) no
matter how many years passed + costs + unspecified substantial damages .
(ii) If Prop/Agent tries to enter/seize Property/Possessions without
Permission &/or impedes, blocks Access, use & enjoyment
of Flat as
mentioned above for eg cutting utilities & the like it will result in
Automatic reversal of rent to $93 - (ninety
three) x week for the rest of the
Tenancy.
(5) If Prop/Agent seeks to invalidate/Renege &/or Terminate the
Agreement/Settlement, with deception, trickery, loopholes, technicalities
or the
like, in any court, it will be deemed "Bad Faith" & "Slight of Hand', and a
breach of this agreement and the spirit of
this agreement. It will result in a
Letter of Demand (LOD) for restitution of all rent paid since 1984 &
specified interests
(oraly), to the date of the breach, regardless the time
passed & costs & unspecified substantial damages. Furthermore the
rent
will revert to $93 (ninety three) x week, Automatically for the rest of the
tenancy.
(6) Any action seeking to terminate the lease and to invalidate/renege
this agreement in the Tribunal or like jurisdiction, is a breach,
and will
result in Automatic reversion of rent to $93. (Ninety three) x week for the rest
of the tenancy, if Kopas so wishes.
(7) Failure to pay any letter of Demand (LOD) in case of above specified
breaches, will result in legal action being taken by Kopas
in the Supreme Court
for the amount Stated in the LOD + costs.
(D) When does this lease/tenancy Ends.
(1) When both Kopas dies + 90 (NINETY) days.
(2) Unless otherwise agreed mutually in writing.
(3) In case of breach by Kopas as mentioned above, and subsequent Supreme
Court Order to end the lease as a result of the breach.
(4) Unless Kopas decides to end the lease. However in this case, Kopas has to
give notice of 13 (Thirteen) Months in writing to the
Prop/Agent, unless the
Prop/Agent waves this notice in writing.
(E) This Settlement/Agreement is effective immediately from 29.4.92.
In conclusion, both parties agree to abide by this Agreement/Settlement &
the spirit of this Agreement in good faith and acknowledge
this agreement to be
binding Contract Contract. The fundamental part of this agreement are written
above, however there is also an oral part , that elaborates aspects of this
agreement
+ minor aspects & details of the Lease/tenancy in general. It
is reiterated that neither party to this agreement will seek to circumvent or
attempt to annul this agreement for any purpose/reason, as it will signify
an
ultimate act of bad faith & deception; and as a consequence of such an
action, The "Guilty" party will bear the Penalties
& liabilities as
prescribed in this Agreement and also in Contractual Law .
- There
is no reference in the 3 page handwritten document to the one page letter to be
sent to the Tribunal (such as an agreement to
send a letter in the form of that
to be annexed or attached to the 3 page letter, simply a reference to the
withdrawal of the Tribunal
actions), nor is the one-page document marked as the
fourth page of a document. The one-page document on its face seems to be a stand
alone document recording at most an agreement reached by the two parties who had
signed the document for steps to be taken in relation
to the respective Tribunal
applications (and not an agreement between them and a third party not referred
to or a signatory to the
document).
- Mr
Wellner denies that he signed the handwritten document and denies that this
document was provided to him at the meeting in April
1992.
- Mr
Maroya points to various provisions which might be thought to be drafted in
favour of the landlord (such as the requirement for
lengthy notice by the tenant
to vacate the premises and the recognition that it was not simply the landlord
that might breach the
agreement). However, I find it difficult to accept that
this was not in overall terms an agreement decidedly favouring the tenant
(and
hence one less likely to find favour with a landlord).
- The
fact that the alleged 1992 Agreement refers to the "pending litigation" in
another jurisdiction is one of the textual matters
to which CHPL points as
giving the lie to the document, since it is said that as at the date the
agreement is said to have been made
there was no pending litigation in another
jurisdiction - the only application on foot being the 24 April application which
(unbeknownst
to Dr Kopas when made, and, depending on whether there had indeed
been the telephone calls to which he referred in his oral evidence,
also
unbeknownst to him at the time of the 29 April meeting) exceeded the
jurisdictional limit of the Tribunal. I place no weight
on the reference in the
handwritten document to "pending" litigation as supporting the inference that
the document was not created
on that date - because it seems to me (and I
concede that I am guilty here of understatement) that the document is not one
worded
with precision. In this regard, the reference to "pending litigation" in
another jurisdiction seems to me equally consistent with
Dr Kopas having
intended to refer to threatened litigation) as with the document having been
prepared at a later date (as CHPL contends).
(I note in due course the factors
that have led me to conclude that this document does not represent a binding
agreement concluded
on 29 April 1992, whether or not the notes were in existence
at that time.)
- According
to Dr Kopas, Mr Wellner kept the original signed handwritten pages and provided
Dr and Mrs Kopas with a copy of the handwritten
signed agreement. (As noted
earlier, it seems surprisingly trusting of Dr and Mrs Kopas to have left with Mr
Wellner the only original
copy of the document bearing his original signature -
given the evidence as to their lack of trust for him by the time of this
meeting.)
Also, according to Dr Kopas (but said for the first time in the
witness box), Mr Wellner was supposed to have had the handwritten
document typed
up, though there is no evidence that either Dr or Mrs Kopas later pressed him
for a copy of that typed document (as
one might have expected, given its
significance, had they been promised a typed copy or otherwise expected to
receive one).
- Some
weight was placed by Mr Maroya on Mr Wellner's answers in cross-examination when
questioned as to the document (particularly
the initial rather dismissive
response by Mr Wellner suggesting that he might not remember what his signature
may have been like
at the time followed by his assertion that he did remember it
and then his speculation as to how his signature might have ended up
on the
document). Mr Wellner did accept that the signature appearing on the copy
document looked to be his, but was adamant that
(however else the signature
might have got there) he had not signed the 3 page document.
- What
Mr Wellner says is that he signed, with Dr Kopas, the one page typed document to
be sent to the Tribunal, which was dated 30
April 2010. That document referred
to both of the Tribunal applications then on foot - 92/5320 (Dr Kopas'
compensation claim), stating
that this application was withdrawn, and 92/4440
(CHPL's application in which orders had already been made), stating that Mr
Wellner
rescind[ed] the " order for possession " as rental arrears had
been paid in full. The document also contained the signed undertaking by Mr
Wellner that "I also undertake
to effect repairs to said flat ... within 7 days
and arrange to replace the roof as soon as possible". CHPL's case is that this
one
page document contains the whole of the agreement reached on 29 April 1992.
- In
cross-examination, Mrs Kopas was asked why she, too, did not sign the one page
letter dated 30 April 1992 (and it was suggested
that she did not do so because
she was not a tenant). Mrs Kopas' response was that she did not know why she did
not sign the one
page typed document and that "They did not offer it to me. " Mr
Maroya submits that there was no reason for Mrs Kopas to sign the
document to be
forwarded to the Tribunal since s he was not a party to Mr Wellner's application
(the subject of the lower half of
the letter bearing his signature) nor was she
a named applicant to Dr Kopas' application (the subject of the upper part of the
letter
signed by her husband). That may well be the case and I draw little from
this aspect of the matter. What I consider more significant
is that there was no
reference in the 3 page document to any other document forming part of the
agreement (yet the author went so
far as to refer to "oral" parts of the
agreement which elaborated on aspects of it).
- Mr
Wellner adamantly denies having offered, or been instructed to offer, a life
tenancy (and, further, denies having been requested
by Dr and Mrs Kopas for a
life tenancy).
- The
letter of 30 April, relevantly, said in relation to Dr Kopas' application that
he withdrew that application for compensation against
CHPL "the owner of the
flat in which I am currently a tenant " (my emphasis) and, in relation to
the CHPL application Mr Wellner purported to "hereby rescind the order given on
16 th April 1992
against Jurai Kopas... The eviction order is not to proceed as
rental arrears have been paid in full. I also undertake to effect
repairs to
said flat within (7) days and arrange to replace the roof as soon as possible."
- Mr
Maroya places considerable weight on the wording of the letter insofar as it
related to the rescission of the Tribunal orders (in
the context of the
submission that this supported the finding of an agreement in terms of the 1992
agreement and as to the nature
of the tenancy if such an agreement were not
found to have been made). The relevant order, at least in the terms advised to
Dr Kopas,
was a composite order "for termination & possession" (not
surprising in that the issue of a notice of termination, even though
valid, did
not operate to terminate a residential tenancy agreement and hence a formal
order terminating the tenancy would be necessary).
- Mr
Maroya submits that the 30 April letter must be read as a request for the
Tribunal to rescind only the order for possession (ie
not the order for
termination), and he points to the reference, in the letter to the Tribunal, to
the eviction not proceeding). Hence,
he submits that the parties intended the
termination order to stand (and, as the submission goes, this must have been
because they
had agreed to a new tenancy arrangement). It would, however, surely
be unnecessary for the formal Tribunal order for termination
to remain on foot
if the parties had agreed to a new tenancy arrangement - since that agreement,
if inconsistent with the subsistence
of the holding over tenancy, would bring
about an implied termination of the latter. Therefore, I am not persuaded that
the 30 April
letter has the significance for which Mr Maroya contends - even if
I thought that the letter should have such a technical meaning
attributed to it,
and I do not.
- The
context in which it is suggested that this letter was written (ie after a signed
handwritten document in the 'flamboyant' terms
of the 3 page document) hardly
give any confidence that the letter to the Tribunal was crafted with such a
technical distinction
between termination and possession in mind; and even as a
standalone document (as it is on CHPL's case) I am not convinced that Mr
Wellner
had in mind a distinction between possession and termination - rather, his
letter referred in general terms to the orders
made on 16 April (and the
subsequent reference to the eviction order could be seen as a reference to what
would otherwise have been
the next step in the process of termination and the
one that, presumably, Dr Kopas was most concerned at that stage).
- According
to a 20 May 1992 letter from the Tribunal to Dr Kopas, the 30 April letter was
received on 15 May 1992 (the same day on
which Dr Kopas' application was listed
for hearing) and the Tribunal granted consent to the withdrawal of that
application. There
was no reference in the letter to CHPL's application (nor was
there any indication on the face of the letter to Dr Kopas that it
was being
copied to CHPL). There is no documentation to show what orders, if any, the
Tribunal made in relation to the CHPL application
(ie it is not clear whether
there was any formal vacation or rescission of the 16 April orders or whether,
if so, there was rescission
of only one part of the order referred to in
composite terms in the 21 April letter, such as an order for possession alone).
- There
was in evidence no letter from the Tribunal to CHPL (or Mr Wellner) similar to
that received by Dr Kopas in relation to Dr Kopas'
application (although Ms
Sibtain concedes that it might be inferred that such a letter would have been
sent and that it has simply
not been retained by CHPL or the real estate agency)
from which any conclusion could be drawn as to whether the Tribunal understood
the request as relating to an order for possession alone (assuming that the
orders were separately made in the first place).
- Conduct post
April 1992 "agreement"
- There
is no dispute that the full amount of the arrears the subject of the Tribunal's
16 April orders was paid on or around 29 April
1992 and that, in about May 1992,
the roof was replaced. (I note that the handwritten 3 page document required the
replacement of
the roof "within 7 days or asap", although the one page typed
letter simply undertook to arrange for its replacement as soon as possible).
The
repair (or, perhaps more precisely, replacement) of the roof was apparently
covered by an insurance claim made by CHPL following
the storms earlier that
year (which might well explain the apparent readiness of Mr Wellner at the
meeting on 29 April 1992 to agree
to its replacement), a fact of which Dr Kopas
seems to have become aware at some stage (though not necessarily on that day),
since
he later accused the landlord or its agent of fraud in relation to that
claim.
- Mr
Maroya relies on matters such as the payment of the arrears, repair of the roof
and the taking of no further action at that stage
in relation to the presence of
Mr and Mrs Kopas' dog on the premises, as evidence of the performance of the
1992 Agreement. The rent/roof
matters are, however, equally consistent with the
making of an agreement limited only to the matters referred to in the 30 April
letter to the Tribunal (and the presence of the dog seems to have been an issue
on which CHPL took an ambivalent attitude over the
years).
- No
further civil action was taken by Dr Kopas for compensation or otherwise in
relation to what was described by him as the "roof
case" and I understand that
there were no further complaints in relation to the state of the roof (although
there were ongoing complaints
about repairs within the flat or work to be
carried out to the common garden area).
- The
rental bond (that had apparently been called upon by CHPL in respect of the
arrears) was re-instated by CHPL on 20 August 1992.
(Dr Kopas later made some
complaint to the Tribunal as to the time it took CHPL to do so, although nothing
seems to turn on this
delay.) Dr Kopas said that once that was done, and the
roof replaced, he threw away all the documentation he had in relation to the
"roof case". In his April application to the Tribunal, Dr Kopas had referred to
a Waverly Council order for the replacement of the
roof, but there was no
evidence before me as to the making or service of any such order. (Again, it
seems to me surprising, if Dr
and Mrs Kopas were as untrusting of Mr Wellner as
they claim to have been, that they would have thrown away any documentation that
might have supported a claim in relation to the tenancy even if that claim had
been resolved. It is, however, consistent with their
focus, at the time of the
April meeting being on the need for repairs/replacement of the roof and with the
agreement reached on that
date being limited to the roof repairs and rental
arrears - a life tenancy going far beyond such matters.)
- Dr
Kopas said that he kept the photocopy of the handwritten 1992 agreement in a
folder with 'important' documents but that at some
stage thereafter he made a
further copy or copies of his original copy of the document (ie the one he says
was made of the original
signed version and handed to him on 29 April by Mr
Wellner), (of which further copy there were even more copies made in the course
of the proceedings) and at some unidentified time he threw away the original
copy.
- In
the witness box, Dr Kopas seemed to explain this by reference to his experience
in keeping photocopied documents (and he volunteered
the explanation that
sometimes the photocopying paper turned yellowish). In that regard, there is no
suggestion that his original
copy of the one page document had turned yellowish
or had itself been re-copied or thrown away). What was clear was that Dr Kopas
was unable to verify which (if any) of the various copies of the 3 page
handwritten document that were produced in answer to a call
for copies in his
possession was the original photocopy - not surprisingly, since his evidence was
that that had been thrown away.
- Somewhat
inconsistently, a lawyer writing on his behalf in 2006 (Mr Baker) did not at
that time indicate that the original photocopy
was no longer in existence. By
letter dated 24 February 2006, Mr Baker responded to a query as to the
whereabouts of the original
photocopy said to have been handed to Dr Kopas on 29
April 1992 as follows:
Mr Kopas has made a number of photocopies of the document provided to him. He
cannot ascertain which document was the 'original' photocopy
a response that is at best disingenuous in light of Dr Kopas' evidence in the
witness box that he had destroyed the version originally
given to him (T 47) and
no longer had that original copy. Mr Baker's correspondence (presumably written
on Dr Kopas' instructions,
although Dr Kopas refused to confirm or deny whether
those were his instructions as he did not wish to waive legal professional
privilege)
suggested that there was an original photocopy in existence but that
Dr Kopas was no longer able to ascertain which was the original.
I draw no
adverse inference from Dr Kopas' claim for privilege in this regard. However, it
means that I can only assume that any
solicitor in Mr Baker's position, writing
on behalf of Dr Kopas would have done so (consistently with his duties as a
solicitor)
on his client's instructions - hence there remains an unexplained
discrepancy between the respective responses.
- The
significance of the multiple, or perhaps better described as successive, copies
of the original photocopy is that it is not possible
for a forensic expert to
form a view as to whether the photocopy is a genuine copy of the original
document. At most, all the forensic
expert retained by the plaintiff (Mr
Anderson) was usefully able to report was that it was possible that there had
been a manipulation
of the document.
- In
his affidavit, David Kopas said that he became aware of the 1992 agreement
shortly after it was created (if so, that can only have
been via one or other of
his parents since he did not attend the meeting with Mr Wellner) though in the
witness box he said "I couldn't
really care less about real estate agents and
landlords and all that thing" in 1992 T 165.42 - which hardly suggests that he
paid
much attention to (or would have an accurate recollection of) whatever he
may have been told by them about the making of the alleged
agreement.
- April 1993
Notice of Termination
- On
6 April 1993, Mr Wellner sent to Dr Kopas (addressed to Yuri Kopas) a letter
referring to the dog being kept on the premises, under
cover of which he issued
a Notice of Termination dated 5 April 1993. The Notice of Termination (unlike
the letter) was addressed
to Dr J & J Kopas. Although the letter had
referred to the dog being kept on the premises (and, in its language suggested
that
this was the reason for the termination), the actual Notice was a notice of
termination "without grounds", ie without reliance on
any breach. (No action was
subsequently taken by CHPL in relation to this Notice, a fact to which Mr Maroya
seems to point as suggesting
a consciousness that CHPL was not entitled to
terminate the tenancy.)
- If
Dr and Mrs Kopas' version of the outcome of the 29 April meeting is correct (ie
that there was an agreement in the terms of the
3 page handwritten agreement),
then not only did the issue of the 1993 Notice amount to a glaring repudiation
of the acknowledgment
contained in that agreement in relation to the presence of
dogs in the flat (because clause (B)(4) of the handwritten document expressly
acknowledged and "reaffirm[ed]" oral permission to have 2 dogs in the flat)
(something that of itself raises the unlikelihood that
Mr Wellner would have
made such a brazen departure from its terms within 13 months of the agreement),
but also it would potentially
have put CHPL at risk of being said to have taken
"action seeking to terminate the lease" in breach of the agreement (so as to
expose
it to the possibility that Dr Kopas might contend for the automatic
reversion to a $93 rental). I say "potentially" because it is
by no means clear
whether the opening words in (C)(6) would extend to the mere issue of notices,
as opposed to being confined to
steps being taken for orders "in the Tribunal or
like jurisdiction". However, for someone in Mr Wellner's position, there might
well
be expected to have been care taken by him not to put the landlord at risk
of such an allegation, had the 1992 Agreement in fact
been made. (That
uncertainty is also a factor pointing to the objective unlikelihood that a
professional real estate agent would
have readily agreed to such a term, even if
uncertainty as to that particular term would not otherwise render the agreement
unenforceable.)
- What
happened in response to that (on its face glaring) breach or repudiation of the
alleged agreement in relation to the presence
of the dogs in the flat, is also
in dispute. Dr Kopas, in paragraphs 87-91 of his (first) affidavit of 17 June
2009 deposes to a
conversation with Mr Wellner said to have taken place after he
received the 1993 Notice in which Dr Kopas says he referred to the
1992
agreement. Dr Kopas says that he delivered a handwritten letter to Mr Wellner
(no copy of which has been produced, although
Dr Kopas signed a statutory
declaration in 2005 in which he purported to have a precise recollection of the
letter). In the letter,
that Dr Kopas said he hand delivered to Mr Wellner, he
says that he made his position clear in relation to the existence of the 1992
agreement. It seems to me highly unlikely that, had Dr Kopas referred to an
'agreement' in the sense of a written agreement, Mr Wellner
would not have
called for the production of the document at that stage (if, as Mr Wellner
contends, he had not seen any such document
at that time), as he did when the
alleged agreement was raised in late 2005, or taken steps to formalise the
agreement (so as to
remove room for later argument as to its contents or
import).
- There
seems no reason for Mr Wellner simply to have ignored the existence of an
agreement if he was aware (as on Dr Kopas' case he
must have been) that there
was in existence a copy of the agreement on which Dr Kopas was insisting he was
entitled to rely. Therefore,
the suggestion that there was a conversation (and
letter) in which the earlier agreement was specifically raised seems to me to be
inconsistent with the fact that no steps were taken either to document the
alleged agreement in a more formal way or to record Dr
Kopas' assertion (and
CHPL's denial, as presumably there would have been) that there had been such an
agreement.
- Other
than what was said to have been contained in the missing 1993 letter, or the
alleged conversation with Mr Wellner (which he
denies), it seems that no
complaint was made at CHPL's action in issuing this Notice (only a year after
the so-called 'rest of life'
or 'rest of lives' tenancy had supposedly been
agreed). In particular, there was apparently no allegation that the issue of the
Notice
was in breach of that agreement giving rise to any diminution in the rent
or that it was inconsistent with a right to remain in the
premises for life. The
real complaint made by Dr Kopas seems to have been as to the particular ground
raised in the letter accompanying
the notice but not repeated in the notice
itself (ie the suggestion that Dr Kopas was not entitled to keep dogs in the
unit), something
that, according to Dr Kopas, amounted to breach of an oral
permission that had much earlier been granted to him (and that had been
a matter
of ongoing tension between the parties).
- It
seems to me highly unlikely that a real estate agent in Mr Wellner's position,
if he had entered into a life tenancy arrangement of the kind comprised
in the alleged 1992 Agreement, would not have remembered so doing and
recorded
that in a tenancy file in some fashion (but later destroyed or mislaid the copy
since none has been produced). If so, then
I must assume that, if Dr and Mrs
Kopas are correct and there was an agreement reached on the terms of the 3 page
handwritten document,
then Mr Wellner in issuing the 1993 Notice of Termination
was knowingly acting in breach of that earlier agreement in circumstances
where
he must have expected that this would lead to the immediate production of the
earlier handwritten agreement and a claim that
he had wrongfully repudiated that
life tenancy agreement.
- In
other words, either Mr Wellner was willing brazenly to repudiate important
tenancy agreements (and there is no reason why I should
assume that he would
have had any interest in so doing) or Mr Wellner did not understand there to be
any binding agreement on foot
at that time, whether in relation to the keeping
of dogs in the unit or as to the duration of the tenancy. (Mr Wellner, for his
part,
denies that he was told about the alleged 1992 agreement at that stage.)
- April 1996 -
alleged meeting with Geoff Owen
- On
23 April 1996, Mr Geoff Owen (the Raine & Horne office manager at that time)
sent Dr and Mrs Kopas a letter stating that they
were keeping a dog on the
premises "without permission", and requesting the removal of the dog within 7
days (failing which, Mr Owen's
letter said that "we will be obliged to issue a
termination notice"). Again, Dr Kopas seems to have made no attempt to comply
with
that notice. Dr Kopas says that in late April 1996 Mr Owen visited the
premises. In paragraphs 92-97 of his affidavit of 17 June
2009 Dr Kopas further
deposes that he showed Mr Owen a copy of the life tenancy agreement on that
occasion and says that Mr Owen
was previously aware of it. (Mr Owen denies all
of this).
- Mr
Owen could only previously been made aware of such an agreement if he had seen
the handwritten document or a copy of it on the
tenancy file (or a reference to
it somewhere) or if someone such as Mr Wellner had told him that that was the
case. (Ms Sibtain contends
that the Kopas case theory is inconsistent, since if
Mr Wellner had wrongly disposed of or concealed the handwritten document, it
could not have come to the existence of Mr Owen before the alleged meeting with
Dr and Mrs Kopas in 1996; but if Mr Wellner had not
done so, then the document
should have been on the agency's files.)
- In
a statutory declaration signed in 2005 (Exhibit C), Dr Kopas refers to what he
said to Geoff Owen:
In this meeting, Geoff Owen was reminded
about our 1992 Agreement, in which J & J Kopas have permission to have
two dogs in the flat, and furthermore, J & J Kopas
have a life tenancy/lease
(my emphasis)
- Dr
Kopas uses the words 'life tenancy' when deposing in 2005 to what was said in
that conversation, though in the witness box he said
that he had not known or
heard of that expression until 2005. It seems to me that his use of the
expression in this context is more
likely to be the result of the statutory
declaration having been drafted at a time by which Dr Kopas was aware
that what he had termed a rest of life tenancy was known in law as a life
tenancy (and, it may well be that the declaration
itself had been drawn up by
his solicitor, Mr Baker, at the time) than as suggesting that Dr Kopas was
asserting that he had used
a term in 1996 of which he had only become aware in
2005. I read this paragraph as doing no more than setting out the effect of what
was allegedly said. Accordingly I draw no conclusion from the apparent
inconsistency between the manner in which the conversation
is said to have
proceeded and the time at which Dr Kopas says he first became aware of a 'life
tenancy' as to the veracity of the
declaration signed by Dr Kopas.
- However,
I accept Mr Owen's evidence that such a conversation did not take place to the
effect alleged by Dr Kopas (and his son).
Mr Owen gave evidence in the
proceedings by affidavit affirmed on 7 July 2010. In cross-examination he said
that he did not recall
"having a conversation with Dr Kopas at which his son
David Kopas was present in which [Mr Owen] told Dr Kopas that he had to get
rid
of his dogs or otherwise he had to vacate unit 3" and did not recall a
conversation with Dr Kopas in which he was told that Dr
and Mrs Kopas had struck
an agreement with their landlord that entitled them to remain in the unit for
the rest of their lives. Mr
Owen said that such a tenancy was "such an unusual
thing" that he "would remember it". (Although Mr Maroya suggested that the
notion
of a life tenancy was not something inherently unusual or unknown to the
law, I accept that it is likely to have been unusual in
a residential leasing
practice in the late 1990's and I see no reason to disbelieve Mr Owen's evidence
both in his affidavit and
in cross-examination that he did consider such an
arrangement to be unusual.)
- Dr
and Mrs Kopas also place weight on the fact that no action was taken to
terminate the lease after that visit, even though the dog
was not removed
(seemingly treating this as a concession by Mr Owen that the assertions made by
them - both as to the keeping of
dogs in the flat and as to the life tenancy -
were correct). However, it seems to me difficult to treat the lack of action by
the
landlord to terminate the tenancy at this stage as an acknowledgment that
the version of events put forward by Dr Kopas was correct.
It might equally be
that the landlord simply did not wish to precipitate further litigation at that
point and was prepared not to
insist on what it regarded as its legal rights.
- December 1999
Notice of Termination
- In
about 1999, Mr Owen left Raine & Horne. Ms Rachael Kwawegen then became the
property manager at Raine & Horne, with responsibility
for the CHPL
property. On 23 December 1999, Ms Kwawegen issued a Notice of Termination
(without grounds), addressed to Dr J &
J Kopas, requiring vacant possession
by 24 March 2000. The purpose of the issue of this Notice seems to have been to
permit the renovation
of the unit, since notices of termination were issued to
the other tenants in the building around that time and (following the vacation
of those other units) repairs were effected in early 2000 to all of the units of
the building other than unit 3.
- Mr
Maroya submits that this is consistent with a recognition by CHPL that there was
a life tenancy in respect of unit 3 (ie that it
pointed to the exclusivity of
enjoyment and use that the 1992 agreement gave the Kopas family). I think the
non-renovation of the
unit occupied by the Kopas family more likely to reflect a
difficulty in obtaining access to the flat or reaching agreement as to
the terms
on which the flat would be vacated (particularly having regard to the
intransigence of the Kopas family and their own stated
"siege mentality".
(Presumably, the renovation of a unit while occupied by tenants is a very
different matter from the renovation
of a vacant unit and the Kopas; and the
Kopas' own submissions to the Tribunal refer to the demands they placed on their
vacation
of the premises at that time, such as storage of their goods at the
landlord's expense.)
- Interestingly,
however, if the renovation works are to be seen as inconsistent with a life
tenancy having been granted, then so must
Dr Kopas' later complaint to the
Tribunal (that CHPL should have taken up his offer to relocate to another flat
and paid for storage
of his property in order to do the renovation works) must
also be inconsistent with a belief that there was a life tenancy. In any
event,
no action was taken in response to the non-compliance by Dr and Mrs Kopas with
this Notice.
- In
Dr Kopas' affidavit of 17 June 2009 (paragraphs 101, 105 and 106), he says that
he referred to the handwritten document in conversations
with Ms Kwawegen in
2000. She denies this. Ms Kwawegen says that had there been a reference to this
she would have remembered it.
(Again, there seems no reason why this would not
be the case. Ms Kwawegen has no personal interest in the premises and, having
not
been involved in the management of the property back in 1992, could hardly
be blamed for any difficulties arising from the unauthorised
grant of a life
tenancy had there been one earlier. Therefore, one might expected that if a
prior agreement had been referred to
by a tenant such as Dr Kopas, Ms Kwawegen
would have enquired as to others in the office as to its claimed existence and
taken some
step to have that issue resolved.)
- May 2000
Notice of Termination
- On
8 May 2000, Ms Kwawegen issued another Notice of Termination (issued to Dr J
& J Kopas), this time expressed to be pursuant
to s 61 of the Residential
Tenancies Act, on the ground that the premises had been "destroyed or rendered
wholly or partly uninhabitable". (Although it was submitted by Mr
Maroya that
the notice also was on the stated ground that "a notice of termination of a
residential tenancy agreement that creates
a tenancy for a fixed term...is not
ineffective because the notice is given before the day the term ends", as I read
this statement
in the notice was no more than a pro forma statement of what the
Act provided in relation to notices and not a ground of termination
as such.)
- On
23 May 2000, Ms Kwawegen filed an application (RT 00-19976) dated 19 May 2000 in
the Tribunal, seeking "return of possession" of
the premises on the grounds that
a s 61 notice had been issued; that the unit was "untenantable" and that the
"Contract frustrated notice ended 15//5/00" and tenant was
still in possession.
(There was in evidence a letter dated 16 May 2000 from a building maintenance
company referring to a water leak
in unit 3 that it was said needed to be fixed
as soon as possible as it was damaging the ceiling below.) This application
identified
the tenant simply as "Kopas". (It must be said that the lack of
conformity in the addressing of correspondence, notices and applications
throughout the period from at least 1992 suggests that it is difficult to assume
that there was any careful attention to detail in
that regard - and hence
difficult to see this as amounting to any form of admission or concession by or
on behalf of the landlord.)
- Ms
Kwawegen gave evidence in the proceedings and was cross-examined as to the basis
on which she had formed the view (expressed in
the subsequent application to the
Tribunal) that the unit was "untenantable". She could not recall whether she had
visited Unit 3
before issuing the s 61 Notice. Ms Kwawegen said that she had
telephoned the Department of Fair Trading "to source that information", by which
I assume she
meant that she had rung the Department in order to enquire as to
what was required for premises to be regarded as unfit for tenants,
although
that is no more than surmise on my part since Ms Kwawegen did not explain what
had been said by the Department in this regard.
- Dr
Kopas deposed to a conversation in which he says that Ms Kwawegen had told him
that they had found a way to get rid of him. Ms
Kwawegen presented in the
witness box as a quiet and non-confrontational witness. She has no personal
interest in the outcome of
the proceedings and did not appear to have any
vendetta or grudge against Dr and Mrs Kopas (although it would appear that she
has
been vilified by them insofar as Dr Kopas was prepared to level an oblique
accusation as to a history of dishonesty on her part).
In particular, I did not
form the view that there was anything sinister in the manner in which she had
formed the view that the unit
was untenantable. That was obviously a question of
fact but it may have been open to her reasonably to form the view that if the
other 3 units required renovation then so also would the unit occupied by Dr
Kopas (given the lack of a history of repair or renovation
to that unit). The
fact that Ms Kwawegen referred to enquiries of the Department of Fair Trading
suggests to me that she was careful
to ascertain that there was a proper basis
for the notice she ultimately issued, not that she was acting irresponsibly or
in any
way dishonestly in that regard.
- 2 June 2000
Tribunal hearing
- The
hearing of CHPL's application was listed for 2 June 2000. On that occasion Dr
Kopas did attend the Tribunal. He represented himself.
His son, David,
accompanied him. Ms Kwawegen represented CHPL. Another employee of Raine &
Horne, Mr Mark Glatter, may also have
been in attendance but he had no
recollection of doing so, or of the events that transpired on that occasion.
- Dr
Kopas (when giving evidence in the witness box) displayed some familiarity with
the procedures of the Tribunal insofar as he asserted
(dogmatically) that the
procedure to be adopted on 2 June (notwithstanding that the matter was then
listed for hearing) was that
the parties would be directed to have discussions
by way of attempts at conciliation and that if there were no agreement reached
the matter would then be listed for conciliation on a further date. This seems
to be the explanation proffered by Dr Kopas for the
fact that Dr Kopas did not
take with him to the Tribunal a copy of the handwritten document on which he now
relies for the allegation
that there was an agreement under which he (and his
wife) are entitled to a life tenancy of the premises. The evidence before me
does not suggest that there was any earlier hearing at which Dr Kopas had
attended, so that any such familiarity at that stage with
Tribunal proceedings
could presumably only have been gleaned if by then he had taken some advice as
to the Tribunal procedure (or
if he had had other disputes in the Tribunal).
- In
any event, there were discussions which took place between Ms Kwawegen and Dr
Kopas in the presence of David Kopas and perhaps
also Mr Glatter on 2 June 2000.
Whether they were actually in a room designated as a conciliation room or not is
unclear (and nothing
ultimately seems to turn on this); however, the fact that
discussions took place under the auspices of the Tribunal and not under
the
umbrella of a final (adversarial) hearing suggests to me that the parties would
not have intended (absent a very clear statement
of intent) to be bound by any
agreement that may have been reached in principle on that occasion.
- David
Kopas says that he took notes of the discussions and recorded the agreement
reached at those discussions, which he dated and
signed. Ms Kwawegen did not
recall whether Mr Kopas Jnr had made notes but (quite fairly) accepted that he
might have done so. However,
she does not recall seeing the notes and does not
recall herself taking notes.
- None
of Ms Kwawegen's evidence seems surprising in the context of the procedure in
matters before the Tribunal. It is common that
parties will participate in
discussions (on a without prejudice and confidential basis) in an attempt to
resolve matters prior to
hearing and may be ordered to do so in advance of a
hearing. I have difficulty in accepting that the parties can objectively be seen
as intending that discussions held in the context of a without prejudice
conciliation at the Tribunal (and even discussions held
less formally in the
environs of the Tribunal) not recorded in any signed document (such as Terms of
Settlement or a conciliation
report or the like) should have binding force.
- I
do not accept that, in the absence of a very clear statement that an agreement
reached in the course of such discussions was to
be binding, such discussions
can be seen as having been objectively intended to result in an enforceable
agreement. Had that been
the intent, then it seems to me most likely that the
agreement would have been noted in the Tribunal or recorded in some fashion
that
reflected a bipartite agreement (as opposed to notes taken, and not signed, by a
party with a clear interest in the outcome
of the dispute). Still less, can I
form the view that an unsigned "minute" of the discussions taken by a person
with a clear interest
in the outcome of the discussion and not acknowledged at
the time as accurate by the other party to the discussion in any contemporaneous
document, represents an agreement objectively intended by the parties to have
immediate binding effect.
- Dr
Kopas claims that the discussions on 2 June 2000 resulted in the "[negotiation]
of some additional clauses to the 1992 Agreement " (that being an
agreement to which he was not party, that was allegedly concluded when he was
not present, and in which he himself
says he had little interest at the time.
Among other things, it is alleged that, as part of the alleged 2000 Agreement,
the parties
agreed to "withdraw simultaneously" from the hearing of the Tribunal
application RT 00-19976.
- Clearly
an agreement or understanding of some kind was reached, in the sense that the
application was dismissed by the Tribunal on
the express basis that the parties
did not return to the hearing room (that presumably being a matter of agreement
or understanding).
(It seems to me that it is the fact that Ms Kwawegen was
prevailed upon not to return to the Tribunal hearing in a departure from
her
normal practice and in a manner that she may well have considered discourteous
to the Tribunal that is likely to have led to
any complaint as to duress of the
kind that Mr Wellner says (based on Ms Kwawegen's account of events) occurred on
that occasion.)
- There
is a dispute as to whether there was a binding agreement reached as noted in
David Kopas' handwritten notes (which refer to
matters such as setting up clear
and effective communication between each other, and in good faith; that CHPL
would promptly carry
out repairs and maintenance, including the lights in the
common hall area [unnecessary if the 1992 agreement was on foot]; that Dr
Kopas
would be consulted in connection with matters concerning repairs and maintenance
at the premises [again, arguably unnecessary
if the 1992 agreement stood]; that
Dr and Mrs Kopas would have exclusive access to the common laundry, and that
they would be entitled
to lock it; that Dr and Mrs Kopas would continue to keep
their two pet dogs upon the premises [unnecessary if the 1992 agreement
was
binding and on foot]; and that Dr and Mrs Kopas would be allowed to keep potted
plants in the common garden). It seems surprising,
if Ms Kwawegen (having
responsibility to her client as a property manager) had considered there to be a
binding agreement reached
in the discussions that took place at the Tribunal,
that she would have made no attempt thereafter to record that agreement in
writing
in some binding fashion.
- There
was no reference in David Kopas' notes to the 1992 agreement as such. Dr Kopas
maintains that he told Ms Kwawegen at the conciliation
hearing that she could
not "get rid of us" and that he had a rest of life tenancy. When pressed as to
what was said on that occasion,
at T 110, Dr Kopas says that Ms Kwawegen said
"you don't want to stay to eternity" (which seems to me inconsistent with her
then
having any knowledge of an alleged life tenancy) and that he said to her
that she could never evict him because of an agreement:
"I said you can never
evict we have agreement. She said I want to see and I said agreement irrelevant
if you say frustrated". Ms
Kwawegen's request to see the document perhaps
bespeaks an unwillingness on her part merely to accept Dr Kopas' word that there
was
any such agreement - in any event it seems to me consistent with Ms Kwawegen
having no knowledge of any such agreement. (From the
tenor of the exchange as
recounted by Dr Kopas, Ms Kwawegen might reasonably have considered this to be
no more than a bluff on Dr
Kopas' part, since there would seem to be no reason
for him not to have produced the agreement if it existed.)
- (Dr
Kopas' explanation for the fact that he did not take the 1992 agreement to the
2000 hearing varied from the assertion that it
was not relevant if the agreement
was 'frustrated' as Ms Kwawegen's notice had said - T 39.15; to him thinking
that the agent was
going on a 'fishing expedition' - T 40.10; to him wanting to
give the agents enough rope to hang themselves; to the explanation that
he knew
all that would happen on that date was the conciliation not the hearing as such.
A flavour of the strategic thought processes
of Dr Kopas in this regard can be
seen from T 41.44- T 42.10.)
- For
the Kopas family, weight is placed on the fact that, after the events of 2 June
2000, Dr and Mrs Kopas placed a lock on the door
of the (hitherto) common
laundry and thus had exclusive use of the laundry. Significance is attached to
this on the basis that it
is consistent with the alleged 2000 Agreement. (I note
that it seems that the 2000 renovations had created internal laundries in
the
other units, which might explain the preparedness of the landlord to allow the
Kopas family to have the use of the common laundry
apart from any alleged life
tenancy.) It does not seem to me that a huge amount of weight can be placed on
this - at one stage Dr
and Mrs Kopas also apparently put a latch lock on the
back yard garden area, though there was no suggestion that they were entitled
to
exclusive use of that area (and in fact this became an issue with at least one
of the other tenants - a dispute as to which was
recounted in Mrs Kopas' lengthy
handwritten statutory declaration in 2001). Nor do I think there is any
significance in CHPL having
agreed (on an interim basis), as Mr Wellner said, to
permit the exclusive use of the laundry pending the litigation.
- I
note in passing that Dr Kopas maintained that Ms Kwawegen had acknowledged the
exclusivity of use in relation to the laundry as
a justification for an increase
of the rent in 2000 (although, as I understand it, Dr Kopas is challenging that
increase). However,
any reference to usage of the laundry could equally be a
recognition of the de facto usage of the laundry on an exclusive basis without
acknowledging a right to do so.
- December 2000
Notice of Termination and renovations
- On
18 September 2000, a letter was issued to "Dr J & J Kopas" from the real
estate agency increasing the rental by $20 per week
to $270 per week. (The
current rent apparently remains at $270 per week, an increase to $290 per week
being the subject of an application
before the Tribunal. Dr Kopas has applied to
contest this (having "availed ourselves of the right to contest it at the
Tribunal"
T 36), and maintains that the current rent should be reduced as it is
excessive.) (In a statutory declaration made by one of the
CHPL directors, David
Celemajer, on 9 June 2001, it was said that all of the other tenants in the
building paid $30 - $50 per week
more by way of rental than the Kopas family -
suggesting that the rent paid for the unit was below market rent at that stage.)
- On
22 December 2000, a further Notice of Termination (without grounds) was issued
on behalf of CHPL and signed by Ms Kwawegen (addressed
to Dr J & J Kopas)
requiring vacant possession by 4 March 2001. Nothing seems to have followed from
this Notice - but, given
the timing, it might be inferred that it had been
intended to permit works to be carried out in the unit and/or in the common
areas
of the building.
- On
9 March 2001, Raine & Horne wrote to Dr and Mrs Kopas in relation to an
inspection of the flat. On 1 May 2001, Dr and Mrs Kopas
were advised by the real
estate agency that there was to be work undertaken to the rear common area and
that they were required to
remove all possessions from the common property
including any pot plants (a requirement with which it seems Dr and Mrs Kopas
took
issue).
- Dr Kopas' May
2001 application to Tribunal
- Dr
Kopas' response was to file an application in the Tribunal on 8 May 2001
(01/20163) seeking an order that the landlord "comply
with the agreement reached
on 2 nd June 2000 in the premises of the Tribunal in the conciliation phase
" (my emphasis). It might be thought that the reference to this being in the
conciliation phase is a concession that what happened
was in the course of
conciliation discussions (ordinarily held on a without prejudice basis).
Further, it is relevant to note that
this application (completed by Dr Kopas)
did not identify Mrs Kopas as a tenant but simply noted the tenant of the
premises as "Mr
Jurai Kopas".
- The
reasons stated for Dr Kopas' application included that repairs were not being
carried out; the "hostile and adversarial approach
and attitude by the agent;
that the letter of 1 May 2001 received on 7 May 2001 was in breach of the
agreement as to removal of pot
plants and other property from the (common)
garden; that the lights in the staircase in the common property were not being
replaced".
Details of the strata managing agent's insurer were sought
(presumably because Dr Kopas, having suffered a fall in the staircase,
was
contemplating some form of proceeding or claim for compensation). Dr Kopas
appears to have considered that CHPL had not maintained
insurance and was
anxious to avoid such a claim. That issue does not arise on the current
application.
- CHPL's May
2001 Tribunal application
- On
24 May 2001, Mr Wellner filed an application with the Tribunal (01/21987)
(identifying the tenant again as Jurai and J Kopas) seeking
various orders for
the agent and owner to enter unit 3 to repair and paint ceilings and for the
tenant not to interfere with any
tradesmen and for the tenant to remove his
possessions from the garden and to remove a padlock from the common laundry.
Reference
was again made to the keeping of a dog on the premises. (At around
this stage it appears that there were disputes between the Kopas
family and one
or more other tenants in the building - there being allegations, among other
things, by the Kopas family that they
had been the subject of religious
vilification - as well as disputes with the tradesmen engaged in relation to the
garden works.)
- May 2001
statutory declarations by Kopas family
- Apparently
in preparation for the hearing of Dr Kopas' May 2001 application, each of Dr
Kopas and David Kopas made statutory declarations
on 24 May 2001. Those
statutory declarations were in virtually identical terms. (Mrs Kopas, however,
made a declaration at around
this time which was in her own handwriting, quite
lengthy, and on its face a heartfelt complaint as to various matters. In her
statutory
declaration, Mrs Kopas deposed as to her suspicions of what Ms Kwaegen
had said and done; suspicions as to a relative of Mrs Celemajer
and as to the
perceived hostility of the then property management agent. The statutory
declaration also makes reference to what David
Kopas is said to have witnessed,
thus clearly going beyond Mrs Kopas' direct observation of events.)
- May 2001
Notice of Termination
- On
25 May 2001, Mr Wellner issued a Notice of Termination (without grounds)
requiring vacant possession by 28 July 2001. The Notice
was addressed to Jurai
Kopas (as tenant) and was served on Dr Kopas at a conciliation hearing at the
Tribunal, which had been scheduled
in connection with the application filed by
Dr Kopas earlier in May 2001. The corresponding application for orders was
addressed
to Jurai and J Kopas. Interim orders were made on 25 May 2001 granting
Dr Kopas leave to amend the application to provide details
in relation to the
repairs the subject of his application "and the prior agreement" - such
amendment to be by 8 June 2001 (and the
parties were encouraged to obtain advice
and have practical settlement discussions - a forlorn hope, it would seem,
although a subsequent
conciliation report, signed by Mr Wellner and Dr Kopas
noted an agreement at least in relation to access to the premises on a
particular
date by a tradesman, to which I refer below.)
- On
1 June 2001, the real estate agency wrote to Dr and Mrs Kopas advising of the
commencement of the gardening work.
- The
8 June 2001 amendment to Dr Kopas' application sought additional declarations in
relation to another unit in the building (in
relation to the keeping of a cat in
the premises and allegations of abuse aggression and religious vilification by
the tenant of
those premises - though it is not clear how it was thought to be
the landlord's responsibility for the behaviour of another tenant).
In the
amended application, Dr Kopas alleged that the landlord/agent had "ordered the
landscaper to remove and destroy my possessions
from the back yard".
- On
19 June 2001, the date on which the conciliation report referred to earlier was
signed, interim orders were made in both Tribunal
matters and they were
adjourned to a date to be fixed. In accordance with those orders, CHPL was
permitted to amend its application
to include an order for the tenant to comply
with the residential tenancy agreement and to remove the Kopas' dog from the
premises
(again, an application that was clearly inconsistent with the terms of
the alleged 1992 agreement). The conciliation report noted
that the tenant
agreed to give the landlord and his agent and a tradesperson access to the
premises on a particular date and between
particular hours. (It is to be noted
that, unlike the alleged 2000 agreement, on this occasion the agreement reached
between the
parties was clearly recorded in a conciliation report signed by the
parties, or their representative in the case of CHPL, on both
sides. It might be
thought that had the parties reached an agreement by which they intended to be
immediately bound during the 2000
conciliation discussions, then a similar
procedure would have been followed on that occasion.)
- Relevantly,
directions were made in both proceedings at this time (June 2001) for the
provision by both sides of all documents to
be relied on at the hearing of the
respective applications. This is relevant because the one document that Dr Kopas
did not provide
in compliance with this direction was the 3 page handwritten
document dated 29 April 1992. Mr Maroya submits that it was not necessary
for
the purposes of Dr Kopas' then application for him to rely on that agreement.
However, Dr Kopas seems to have understood that
what he was being ordered to
produce was the agreement that he contended was in existence - he having been
told by the Tribunal Member,
in effect, that he could not conduct litigation by
ambush (apparently this being a surprise to Dr Kopas). Dr Kopas said that it was
a deliberate decision not to make reference to the 1992 agreement in 2000 when
the matter was before the Tribunal (T 118.76). Dr
Kopas' explanation as to why
it was not produced in response to the order for production is somewhat more
Byzantine in its complexity
than that proffered by his Counsel - in essence, he
seems to have seen this document as his trump card, to be kept up his sleeve
until the very last moment and then used in order to catch Mr Wellner in a lie.
(For CHPL it is submitted that the reason the document
was not produced at this
stage was that it was only brought into existence at a later time.)
- On
9 August 2001, Mr Wellner wrote to the Tribunal seeking a further amendment to
CHPL's application to include "an order for the
tenant to get rid of his dog
from the premises both inside the flat or in the garden" (apparently in case the
reference to the premises
alone was not broad enough). Mr Maroya points to the
colloquial language used in this application when countering the submission
by
Ms Sibtain that Mr Wellner would not be likely to have signed the 1992
handwritten document agreement having regard to the language
used therein. (In
that regard, I think there is a difference between the expression "get rid of
the dog", as informal as that is,
and some of the more unusual language of the
1992 document, such as the reference to it not being "a ruse to weasel out of
financial
losses"). I note, in passing, that this letter refers to the tenant
(and 'his' dog) in the singular not the plural, which is consistent
with Mr
Wellner having the understanding that Dr Kopas was the sole tenant (though
inconsistent with other of the correspondence
and applications which refer to Dr
J and J Kopas, helpfully itemised by Mr Maroya).
- Both
matters were listed for hearing on 17 August 2001 before the Tribunal on which
occasion interim orders were made and further
amendments permitted to both
applications. Dr Kopas' application was amended to refer to rights in relation
to the common laundry
and pot plants "as per agreement of 2/6/00" and,
significantly, to seek an order to amend the lease to include a right to keep a
dog on the premises " as per agreement of 2/6/00, and on the basis that there
was an amendment by oral agreement over the years " (my emphasis). There was
no reference to any written agreement in 1992 in that regard (though the 3 page
document expressly confirms
permission for there to be a dog in the unit and
therefore it might have been expected that if the agreement was in existence
reliance
would have been placed on that agreement (rather than on the 2000
agreement, which is said to have been for the addition of clauses
into that
earlier agreement, and an earlier "oral agreement over the years"). Reference to
the 2000 agreement is apt to refer to
a standalone agreement. Nor was there a
reference to the alleged life tenancy in the application, as one might expect
given the significance
placed on this by Dr Kopas; the reference simply being to
a 'lease'. In the witness box, Dr Kopas said that there had been an oral
reference to the 1992 agreement before the Tribunal T 115, but there is no
evidence of this (and, as Dr Kopas is aware, no transcript
is provided of
Tribunal hearings - T 115 - hence it was suggested by Ms Sibtain that he was
aware there is no basis to verify his
assertion and thus had made it without
fear that it could be disproved by reference to Tribunal records).
- Dr
Kopas and his son both deposed to Mr Wellner having denied the 2000 Agreement at
the hearing before Member Borsody on 17 August
2001. In the later reasons for
Member Dellar's dismissal of Dr Kopas' non-economic loss claim, reference is
made by Member Dellar
to Mr Wellner's submission to the Tribunal that the 2000
agreement was made under duress, though it is not clear precisely to what
agreement Mr Wellner was referring - rather, it could simply have been the case
that Mr Wellner was submitting that whatever agreement
was contended to have
been reached at the conciliation it can only have been reached by duress rather
than admitting the reaching
of an agreement per se.
- On
23 October 2001 both matters were again before the Tribunal and interim orders
were again made, including orders noting an agreement
for certain repairs to be
effected and that "the landlord agree[d] that the tenant will continue to have
exclusive use of the common
laundry". (Perhaps in light of the agreement in
relation to the repairs, CHPL's application 01/21987 was subsequently withdrawn
-
the balance of that application which was not pursued relating to the
non-interference with tradesmen and the recurrent issue in
relation to the
keeping of the dog.)
- (Dr
Kopas later complained as to the fact that CHPL's application was permitted to
be withdrawn (on the basis that he was deprived
of an opportunity to seek costs
in relation to that application - although I note that the Tribunal's costs
jurisdiction is limited).
He applied by letter dated 25 February 2002 to the
Registrar requesting payment of $10,000, which he stressed was only part of the
costs incurred by him, in relation to the withdrawal of CHPL's application. In
addition, Dr Kopas accused Mr Wellner of committing
perjury by telling the
Tribunal that CHPL's application had been withdrawn "because they got everything
they want".)
- Dr Kopas'
non-economic loss application
- In
connection with Dr Kopas' application for non-economic loss, statutory
declarations were made by each of the Kopas family (including
Mrs Kopas)
attesting to the time "personally" spent by each of them in preparation of the
matter for hearing. Those declarations
were in virtually identical terms (there
being only minor differences). Each of the deponents (Dr, Mrs and David Kopas)
deposed to
having felt "besieged" ("totally" besieged in the words of David and
his mother; "very" besieged in the words of Dr Kopas) and to
having "personally
spent a minimum ... of hours" only dealing with the cross-claim (in David's
words) or dealing with the cross-claim
"in an active way" (in his mother's
words); and ascribed what was said to be a "modest" hourly rate for their time
of $15 per hour
(though I note that there is no suggestion that Mrs Kopas was
employed at this stage and hence could hardly have been deprived of
earning an
income by the need to deal with the cross-claim "in an active way", whatever
that means, and David Kopas is a writer who
has mainly worked from home over the
years).
- I
consider later what inference should be drawn (if any) from the similarity of
language in various of the documents affirmed or declared
by the Kopas family
members in the context of applications before the Tribunal and before this
Court. Suffice it at this stage to
note, however, that the declaration by Mrs
Kopas as to the time that she had personally spent on the cross-claims in the
Tribunal
proceedings are inconsistent with the evidence given by her in the
witness box as to that issue (see Mrs Kopas at T 150.20; T 150.36;
T 149; T
160.41). (David Kopas, having heard the cross-examination of his mother on this
issue and therefore perhaps being alert
to the difficulty in this line of
questioning, was more qualified in his responses - he says that he started being
involved in a
capacity of assistance in the 1999/2000 lead up (T 160) but his
active involvement in the Tribunal only began from about 2007 (T
160.28); he
then said that his statutory declaration as to hours "That - that could be
right" without sounding particularly confident
- T 161.35.)
- November 2001
- Dellar reasons
- On
17 November 2001, Member Dellar in the Tribunal dismissed Dr Kopas' application
for non-economic loss. A copy of the reasons for
dismissal of that claim were in
evidence before me and reference was made by Mr Maroya to the fact that in those
reasons Member Dellar
noted that, during the hearing of the proceedings, Mr
Wellner had contended that the 2000 Agreement was obtained by "duress".
- In
those reasons (which provide the only independent evidence of what occurred
during the hearing of Dr Kopas' application, Member
Dellar referred (para 6.3)
to the contention by Dr Kopas that the claim for storm damage in 1992 was
fraudulent (noting that the
claim of fraud was made on the basis that the damage
was pre-existing) and to the complaint by Dr Kopas that the painting and
wall-papering
was not done when the landlord had agreed to do it and to the
allegation that the money that should have been spent on repairs had
been
"improperly retained". At paragraph 6.10, Member Dellar referred to the issue of
renovations and noted that Dr Kopas had suggested
that his family move to a
vacant unit but that offer was not taken up and that Dr Kopas considered that
during renovations his property
should be stored at the landlord's expense. Dr
Kopas had apparently contended that the refusal of his proposals was
unreasonable
and that it was consistent with a wish by the landlord that he
vacate the premises.
- In
the context of the statement that Mr Wellner had contended that the 2000
"agreement" was obtained by duress (in paragraph 7.2),
Member Dellar referred to
threats that Dr Kopas would sue the owner over injuries (a reference it seems to
Dr Kopas having fallen
down the stairs in October 1999) where the owner appeared
not to be insured (although this seemed to form no part of the alleged
2000
agreement as pleaded by Dr Kopas).
- In
paragraph 9.4 of the reasons, Member Dellar noted a contention by Dr Kopas that
the agreement challenged by Mr Wellner (ie the
2000 agreement) "effects an
amendment of the tenancy agreement that limits in some way the right of
Celemajer to terminate the tenancy
on a ground otherwise available". There is no
reference to any contention by Dr Kopas that he (or his wife) had the benefit of
a
life tenancy. Rather, Member Dellar seems to have understood the submissions
put to him as asserting an amendment to the rights under
the tenancy arising
from the 1984 lease not any later (and separate) tenancy agreement (since, if
the latter, one would expect reference
to have been made to it).
- Member
Dellar dismissed the claim for non-economic loss on the basis that for such a
claim there must be an unreasonable interference
with the tenant's peace of
mind, comfort and privacy in using the premises or the quiet enjoyment of the
premises (and there was
no such interference found).
- Dr
Kopas subsequently accused Member Dellar of gross bias. He wrote to the Tribunal
on 6 January 2003 making various allegations as
to the manner in which the
Tribunal and its various Members had dealt with his application (referring to a
submission said to have
been for the Chairman's eyes only - hence, apparently
considering it appropriate not to provide a copy thereof to the opposing
litigant,
CHPL) and asserted that Member Dellar's judgment was superficial and
biased and that there had been a 'litany of irregularities'.
He expressed the
view that either through bias or total incompetence his case was being
sabotaged. Dr Kopas conceded in the witness
box that in this submission when he
made reference to an agreement in writing that had been provided to the Tribunal
he was there
referring to the one page typed document dated 30 April that he
showed to Member Dellar - T 130. (An application for a re-hearing
was refused.)
- This
brings me to the circumstances in which the present application arose. On 5
April 2005, Raine & Horne wrote to Dr J and J
Kopas referring to an
inspection of the premises. Later that month, by letter dated 28 April 2005,
Raine & Horne wrote to Dr
and Mrs Kopas informing them of the owner's
intention that the block of units be sold with vacant possession. A certificate
of valuation
was obtained on 16 May 2010 and unit 3 was valued at $310,000 (the
price for which the unit has been contracted to be sold).
- On
2 August 2005, a Notice of Termination was issued to Dr and Mrs Kopas, the
ground of termination being the sale of the unit. On
23 September 2005, an
application was filed in the Tribunal (05/46511), in which the tenant was
identified as J & J Kopas, seeking
an order for possession. That application
was subsequently withdrawn with advice to the Tribunal that a fresh application
would be
made in due course.
- In
the context of that application, each of Dr and David Kopas made statutory
declarations on 15 September 2005. Again, those statutory
declarations were
substantially the same in content (with minor differences in wording - for
example, "get rid of the dogs termination"
in one was the "get rid of your dogs
termination" in the other; or "sent to me by Geoff Owen" became "sent by Geoff
Owen"). Some
of the language was identical ("ad verbatim response"). The events
described in these statutory declarations relate to the alleged
meeting with Mr
Owen in 1996 to which I have earlier referred (a meeting said by both declarants
to be "etched" in their mind). The
conversation with Mr Owen is recounted in
identical terms and both Dr and David Kopas maintain that they were "completely
taken aback"
(though why David Kopas would be "taken aback" when he was not
privy to the alleged making of the 1992 agreement and had professed
to having
taken no real interest in such matters at that time was not explained). Both say
that "without second thought, we made
the mistake of showing Geoff Owen
our copy of the agreement". (my emphasis)
- Insofar
as David Kopas recounts in his statutory declaration the substance of Dr Kopas'
alleged telephone conversation with Mr Owen,
it seems that he saw no difficulty
in attesting to a conversation to which he was not directly privy and the terms
in which he couches
his reference to "our agreement" suggest a proprietorial
interest in the dispute not consistent with David Kopas being an objective
witness. In any event, the suggestion that showing Mr Owen a copy of the
handwritten agreement (which Mr Owen denies) was a 'mistake'
is interesting. It
is by no means apparent to me what mistake would be thought to be entailed in
showing the property manager proof
of the very agreement on which Dr Kopas and
his family rely for their contentions. (The only mistake, one might think, is if
there
was a concern that Mr Owen would then be put on notice of the (hitherto
unarticulated) assertion that there was such an agreement
and might make
enquiries within Raine & Horne as to what the position was in that regard
(potentially alerting Mr Wellner to
the existence of the document), which might
lead Mr Wellner to dispute at an earlier stage the authenticity of the
document.) As
at September 2005, on the Kopas' own evidence, no physical copy of
the document held by Dr Kopas had been given to Mr Wellner (or
anyone else at
Raine & Horne, though it was said to have been shown to Mr Owen in 1996).
- On
17 October 2005 CHPL entered into a Contract for Sale of the premises to
Celegroup Pty Limited for the sum of $310,000, under which
contract vacant
possession was required on completion. Completion was the later of 28 days from
the contract "or the date 7 days
after the existing tenant vacates". A statutory
declaration made by CHPL's lawyer, Mr Michell, in October 2005 referred to the
reorganisation
of the Celermajer family affairs and to the taking of a decision
in early 2005 to sell all assets owned by CHPL and then to liquidate
CHPL. Mr
Michell attested to arrangements having been made for the 4 units to be sold to
interests associated with each of the grandchildren
of Christine Celemajer; the
sale of which cannot proceed until vacant possession is obtained of each unit.
(Mr Maroya notes that
there is no evidence that any of the grandchildren or the
beneficiary of any discretionary trust to be established in the reorganisation
of the Celemajer family affairs, wishes to occupy the units themselves.)
- 19 October
2005 Notice of Termination
- On
19 October 2005, Mr Wellner issued the Notice of Termination that has led to the
current proceedings, requiring vacant possession
on 28 November 2005 and
specifying the basis of termination as the entry into the contract of sale. The
Notice and the subsequent
application to the Tribunal for an order for
possession (30 November 2005) were addressed only to Dr Kopas (which Mr Wellner
conceded
in the witness box was intentional, though he was not asked and did not
proffer a reason for that decision - it may be, for example,
that it was only at
this stage that there was careful attention given to who precisely was the
tenant of the premises, as opposed
to an occupant of the premises).
- On
30 November 2005, CHPL filed its application in the Tribunal an application
(05/56837), seeking orders terminating the lease and
for possession. That
application was addressed solely to Dr Kopas. A caveat was lodged by Dr Kopas,
in his name and the name of his
wife on 14 December 2005, claiming an equitable
life tenancy under the agreement dated 29 April 1992.
- In
evidence before me was a Trust Account Tenant Rent ledger printed as at 2
November 2005, which describes the tenant as Dr Jurai
Kopas. The receipt of rent
for the period from July 2003 is shown as received from Dr Kopas but the receipt
of rents from November
2003 is attributed to Dr J & J Kopas. (Any
significance in the joint terminology in that regard seems to be tempered by the
fact
that the ledger heading records Dr Kopas as the tenant and the joint rental
receipts seem to have been recorded only from November
2003 on that rental
period (there being a period from July to November of that year when there is no
such joint terminology).) The
references in the real estate agents records to Dr
Kopas on the one hand or to Dr and Mrs Kopas on the other show no real
consistency
over the relevant period.
- 14 December
2005 Tribunal hearing
- The
matter came before the Tribunal on 14 December 2005. On that occasion, Mr
Wellner was shown a copy of the 3 page handwritten document
held by Dr Kopas
(but seemingly, having regard to Dr Kopas' evidence in the witness box, this was
not the actual copy document that
Dr Kopas says was given to him as a record of
the agreement on 29 April 1992).
- Reliance
is placed by Mr Maroya on Mr Wellner's reaction when he was shown the copy of
the handwritten 3 page document at the Tribunal
on 14 December 2005 (to which he
had deposed in paragraphs 20-23 of his affidavit), namely that he had speculated
that the copy document
"may have been a copy of a record of discussion that
occurred during a conciliation during the course of a previous dispute before
the Tribunal many years earlier". In the witness box, Mr Wellner sought to
elaborate on that explanation. He maintained that he did
not know what that
document was (as he says he said at the time), saying that he had had no chance
to read it and observing that
it was 'a very hard handwriting' and then said at
(T 186) "I could have said that, you know, it could have been only what I
referred
to in the discussion on the conciliation".
- Mr
Wellner was adamant that the conciliation (ie whatever conciliation at which he
speculated there could have been discussion of
which this copy document was a
record) was not the meeting with Dr and Mrs Kopas on 29 April 1992. Mr Maroya
suggested that it could
only be that meeting because there was no tribunal
hearing in 1992 or in any year in the 1990's. Mr Wellner did not accept that and
said that he had had many conciliations between 1992 and 2005 with Dr Kopas (by
which I understood him not necessarily to be referring
to formal conciliations
in the Tribunal as such but also to be including any discussions in which a
compromise was sought to the
various disputes from time to time).
- In
that regard, a statement made in 2005 that something might have been a record of
a discussion many years earlier could have encompassed
discussions over a broad
period of time than the early 1990's (since it is by no means apparent that when
Mr Wellner had speculated
on this issue at the Tribunal he had had in mind the
date appearing on the handwritten document, which he said he had not had the
chance to read). Accordingly, I am not satisfied that he had meant to indicate
by that response in the Tribunal in 2005 that the
conciliation was many years
earlier than 1992.
- It
is suggested by Mr Maroya that the reason Mr Wellner was surprised by the
document being produced in 2005 was that he had not expected
it to re-surface
over so many years. Mr Wellner's response to this was short and to the point -
"This document never existed in 1992.
I didn't know how it surfaced before 2005.
I never seen it before."
- The
fact that Mr Wellner was surprised by the appearance of the document in 2005
seems to me to be consistent with his version of
events and more likely than the
alternative (which is that he was surprised because he had somehow concealed the
existence of the
document over the intervening years). (Indeed, had Dr Kopas, as
he says he did, already referred to the alleged document in a conversation
with
Mr Wellner in 1993, the only surprise one might have expected Mr Wellner to have
when it was produced in 2005 was that it had
not previously been raised by Dr
Kopas.)
- Transfer of
proceedings to this Court
- On
22 December 2005, Dr Kopas filed a motion in the Tribunal seeking to transfer
the proceedings to this Court. (On the same date,
the solicitor then acting for
Dr and Mrs Kopas (Mr Baker) wrote to CHPL's lawyers, requesting the grant of a
lease in registrable
form in the terms of the 1992 agreement.) The Tribunal
proceedings were transferred to this Court as earlier noted and, after some
delay, came before me for hearing in August last year.
- March 2006
rent application
- Meanwhile
in March 2006, Dr and Mrs Kopas made an application to the Tribunal to suspend
the current rent increase on the basis that
it was excessive (pursuant to s 46
of the Act) or in breach of s 45(4) and 46 of the Act and in breach of "our 1992
agreement". (Dr Kopas maintains that they are seeking a rent reduction.) The
latest rent increase
notification was from $270 per week to $290 per week.
Credibility of witnesses
- Before
turning to the particular issues for determination, I consider the credibility
of the main witnesses, bearing in mind that
criticisms have been levelled by
both sides at the other's witnesses.
- First,
as to the Kopas family, criticism was made of the fact that the various members
of the Kopas family had given what in some
instances were virtually identical
accounts of relevant events in statutory declarations and in affidavits over the
years (and that
slight differences had only emerged in their more recent
affidavits, with the suggestion that this was an attempt to restore
verisimilitude
to their evidence). There was also some criticism implicitly
levelled at the fact that David Kopas had remained in the courtroom
throughout
his parents' cross-examination.
- As
to the first matter raised, there are certainly cases in which it has been said
that the existence in evidence of substantially
identical affidavits (and here
there is no doubt that the first affidavits affirmed by the Kopas family before
they had legal representation,
and various of the statutory declarations made
over the years in the context of the tenancy disputes - particularly in May 2001
and
September 2005) contain substantially identical statements) may give rise to
an inference of collusion between witnesses, which inference
in turn may
diminish the weight or credit to be accorded to the evidence of those witnesses.
- Mr
Maroya points out that criticisms of this kind (and hence whether adverse
inferences as to credit should be drawn from the similarity
of the evidence in
question) must be carefully assessed (referring to Angaston and District
Hospital v Thamm (1987) 47 SASR 177).
- A
clear example of the identicality of evidence prepared in the preparation of
their ongoing tenancy disputes is that Dr Kopas and
David Kopas made out
virtually identical statutory declarations in 2005 as to the conversation that
is said to have taken place with
Mr Owen in 1996. As noted earlier, each of
these statutory declarations asserts that the maker could recall "ad verbatim"
the precise
words of the alleged conversation (and contains a reference to
identical thought processes).
- Cross-examined
as to this, Dr Kopas' evidence seemed to be that he believed that he had the
ability to recall the precise words used
by Mr Owen (verbatim or "word by
word"), or at least that was the case in 2005 when he made the statutory
declaration, and that he
believed his son (who he considers, with a father's
eye, to be a genius) also very likely had the ability to do so (T 49.40 to T
51.25), in the course of which there was the following exchange:
Q. You each made out statutory declarations in 2005 of the same conversation,
didn't you?
A. That's right.
Q. Nine years after the event?
A. That's right.
Q. The versions in those two statutory declarations are almost exactly the
same, aren't they?
A. If I remember correctly, more or less, yes. I think there's some slight
differences, but yes.
Q. You know, don't you, that the affidavits of you and your son do not have
the conversations any longer precisely identically, do
they?
A. That's right.
Q. That is because
A. Identically, you mean to the statutory declaration?
Q. Correct?
A. That's right, yes.
Q. That is because, isn't it, you have wanted to distance yourself from this
supposed ability to recall precise words?
A. Not at all.
and denied that the now 'subtle' differences in the more recent affidavits
(prepared no doubt with the assistance of the lawyers retained
for the hearing)
were for the purpose of lending verisimilitude to the evidence.
- It
is submitted by Mr Maroya that the close-knit character of the family and the
fact of their shared experience (to which Mrs Kopas
attested in
cross-examination at T 156.2) must inform the admission by Dr Kopas that he and
his son (and, it would seem, the family
in general) had discussed the events
from 1992 up to 2002 on numerous occasions by 2002 (T 49.3-14). Certainly, there
was a ready
acknowledgement by both Dr and Mrs Kopas that there had been
discussion as to the events that had occurred and Mrs Kopas accepted
that her
husband and son had looked at her draft affidavits in preparation for this
trial. For some period, David Kopas was assisting
in the preparation of the case
(and presumably in the preparation for that purpose of the first affidavits in
2009), as he seems
to have done in 2001 in the preparation of the material
earlier relied upon for his father's 2000 Tribunal application. (That said,
there is also a 14 page statutory declaration, marked as Exhibit 2, made by Mrs
Kopas in her own handwriting that bears no resemblance
to any of the other
statutory declarations made in the 2001 Tribunal proceedings by Dr and David
Kopas. Thus it is by no means the
case that on each occasion the family signed
statutory declarations in virtually identical form.)
- Mr
Maroya submits that there is a distinction to be drawn between the circumstances
considered in Macquarie Developments Pty Ltd and Anor v Forrester and Anor
[2005] NSWSC 674 (where Palmer J considered the weight to be attributed to
two affidavits dealing with critical discussions in virtually identical
terms)
and the present. That distinction, it is said, being that in Macquarie ,
the evidence in question had been prepared by a solicitor (who had "copied and
pasted" portions from each of the affidavits), whereas
in the present case the
relevant affidavits and statutory declarations had been prepared by David Kopas,
a non-lawyer. It was submitted
that non-lawyers might have considered it
important to have the evidence in identical terms.
- If
that is indeed the explanation it nevertheless does not address the unlikelihood
that each member of the family would have a precisely
identical recollection,
uninfluenced by the recollections of the others, of shared experiences; nor does
it address the fact that
on occasion one or more of the Kopas family deposed to
matters to which he or she was not directly privy and thus could only have
been
recording information conveyed by another. Nor does it explain the evidence by
the Kopas family members as to how these documents
came to be prepared - which
was to the effect that each had written (or dictated to David Kopas) their own
account of events. Dr
Kopas said of the 2005 statutory declarations - we spoke
about what happened then we sat down "and everybody wrote his version" T
78; he
denied copying the declarations.
- Relevantly,
in Macquarie , Palmer J noted that it was not simply the possibility of
collusion between witnesses that prejudiced the value of evidence prepared
in
this fashion, but also the possibility that the affidavit did not use the actual
words of the respective deponents:
[I]t is totally destructive of the utility of evidence by affidavit if a
solicitor or anyone else attempts to express a witness' evidence
in words that
are not truly and literally his or her own.
Save in the case of proving formal or non-contentious matters, affidavit
evidence of a witness which is in the same words as affidavit
evidence of
another witness is highly suggestive either of collusion between the witnesses
or that the person drafting the affidavit has not used the actual words of
one or both of the deponents . Both possibilities seriously prejudice the
value of the evidence and Counsel usually attacks the credit of such
witnesses, with good reason. (my emphasis)
Where the identity of evidence is due to collusion, the devaluation of the
evidence is justified but where, as in the present case,
the identity of
evidence is due entirely to a mistake on the part of a legal adviser, a witness'
credit and a party's case may be
unjustly damaged.
- In
other words, even if there has not been collusion as such between the witnesses,
in the sense of changing their evidence to make
it fit with that of another, the
fact that the affidavits may not contain the actual words of one or other of the
deponents devalues
their evidence.
- Here,
there seems to me to be a distinct possibility that at least one or more of the
Kopas witnesses' evidence reflects not what
that witness actually recalled,
independently of the others, of particular conversations or events, but rather
presents a common
recollection drawn from discussions between family members
over the years as to what had happened (and thus with whatever interpretation
or
gloss may have been placed, consciously or otherwise, on those conversations
over the years in the telling or re-telling of events).
This must be
exacerbated, in the case of David Kopas, by the fact that on his own evidence he
was not much interested in what was
happening in 1992 (therefore must be largely
reliant on what one or both of his parents have told them in that regard) and
was then
involved as his parents' representative and amanuensis to some degree
in the conduct of proceedings in the Tribunal and in this Court.
- Understandable
as it is that the family would have discussed their shared experience of the
tenancy disputes over the years, it nevertheless
means that their evidence must
be approached with some caution for the reasons suggested by Sperling J in
Seamez v Mclaughlin [1999] NSWSC 9 (in circumstances where his Honour
concluded, from the high degree of similarity in content, detail, terminology
and sequence, particularly
in relation to conversations, between the affidavits
of the three witnesses, that the affidavits could not have come into existence
without direct or indirect collaboration):
[a]cceptance of one of the three accounts of the events ... means not only
that the other two are not genuinely recollected, independent
accounts. It also
means that the authors of those other accounts have misstated the way in which
their respective accounts came into
existence, and seriously so. The credit of
the others would then be worthless.
- Here,
while I do not consider that the seemingly communal nature of the preparation of
the affidavits in this case renders the credit
of the witnesses worthless, it
suggests that care must be taken before accepting that the evidence of one or
other of the family
members as to his or her recollection of events provides
corroboration of the evidence of another.
- I
also note that the very fact that there were numerous discussions over the years
of the family's shared experience gives rise to
the difficulty recognised in
Watson v Foxman (1995) 49 NSWLR 315 (at 318-319), McLelland CJ in Eq (as
his Honour then was):
... human memory of what was said in a conversation is fallible for a variety
of reasons, and ordinarily the degree of fallibility
increases with the passage
of time, particularly where disputes or litigation intervene, and the processes
of memory are overlaid,
often subconsciously, by perceptions or self-interest as
well as conscious consideration of what should have been said or could have
been
said. All too often what is actually remembered is little more than an
impression from which plausible details are then, again often subconsciously,
constructed . All this is a matter of ordinary human experience. (my
emphasis)
- His
Honour went on to say that:
Each element of the cause of action
[there, for misleading and deceptive conduct, though his Honour noted that the
principles also
applied in considering a claim in contract or estoppel] must be
proved to the reasonable satisfaction of the court, which means that
the court
"must feel an actual persuasion of its occurrence or existence". Such
satisfaction is "not ... attained or established
independently of the nature and
consequence of the fact or facts to be proved" including the "seriousness of an
allegation made,
the inherent unlikelihood of an occurrence of a given
description, or the gravity of the consequences flowing from a particular
finding":
Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712 .
- In
Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810;
[2008] ATPR 42-410 (at [41]), referring to the above passages, Rares J said:
His Honour's observations as to the frailty of human memory are, of
course, not to be taken as limited simply to cases invoking claims
under the
Trade Practices Act or its analogues. They are just as apposite in a case such
as this where the question arises of what oral terms of the contract were
agreed
in the course of negotiations.
- Of
perhaps even more significance, in my view, than the fact that the earlier
affidavit evidence contained identical accounts of various
events, is the fact
that the deponents maintained that the documents prepared in this close-knit or
communal family fashion, nevertheless
reflect each individual's actual
recollection of events. Dr Kopas and his son purport to recall in almost
precisely the same words
conversations and thought processes many years after
the event (something inherently unlikely).
- Also,
at least in relation to the statutory declarations prepared by David Kopas in
2001 in the context of his father's then Tribunal
application, the evidence
given by Mrs Kopas and by David Kopas in cross-examination as to the level of
involvement each had in the
preparation of the Tribunal application is
inconsistent with what is stated in seemingly formulaic terms in their almost
identical
statutory declarations. This suggests that, if their evidence in this
Court is to be accepted on that point, then there was either
an inattention to
detail when the initial statutory declarations were made or an attempt at that
stage to overstate the level of
involvement each had had in the proceedings
(presumably in order to inflate the amount of the non-economic loss claim).
Either explanation
casts doubt as to the reliability of their evidence in these
proceedings.
- I
turn then to the respective witnesses.
Mrs Kopas
- Subconsciously
or otherwise, it seems to me likely that Mrs Kopas' recollection of events has
been influenced by what her husband
has said to her over the years as to those
events. She readily conceded that she had left matters such as the lease of the
premises
to her husband - he "handled" all such matters; she says that she was
not actively involved in the negotiations or discussion at
the 29 April meeting
(beyond warning her husband to be wary of Mr Wellner) and certainly did not
given any evidence as to what was
discussed over the course of the supposedly
lengthy meeting in relation to the terms of the alleged agreement; she did not
expect
to sign anything in relation to the tenancy and only did so when asked to
do so (which does not suggest an active involvement in
the terms on which the
tenancy arrangements were to continue); and what she did sign she said was a
document she understood was simply
to give her 'peace of mind'. None of that
would be inconsistent with Mrs Kopas having done no more than sign a note her
husband may
have prepared at some stage of what he might have sought to achieve
by way of resolution but that is not what Mrs Kopas says it was
- rather, she
says it was a binding agreement under which she had an entitlement to remain in
the premises for the rest of her life
(though it is not clear whether she was
aware of the terms on which that life tenancy was to operate).
- In
her evidence, Mrs Kopas was most passionate when explaining the damage
occasioned to her antique clothing and linen by the roof
damage and in her
insistence that she had carried out cleaning in the common areas. Her focus
seems to have been on those matters,
not the wherewithal of the lease
arrangements.
- Moreover,
on at least one occasion in the witness box Mrs Kopas put forward as an
assertion of fact (ie, "Alex typed it [the one page
30 April letter]" - T 145.3)
before then qualifying the answer and making it ultimately clear that this can
only have been an assumption
on her part (see T 145.3-32). Similarly it can only
be an assumption that Mr Wellner telephoned Mrs Celemajer 3 or 4 times (T
154.11).
Therefore, I am not persuaded that her evidence that her husband had
handed Mr Wellner the agreement and that he had read the agreement
and went
outside and said he was phoning the landlady (T 154.7) is a reliable
recollection of events, particularly when Mrs Kopas
freely conceded that she did
not understand the effect of the document and seems to have left the discussions
to her husband. Mrs
Kopas was adamant that Mr Wellner had said "look you can
stay there the rest for your lives" (T 160.10) (and she understood that
she had
certain peace of mind when she had the document) but a statement of this kind
seems to me to be extraordinary and I accept
Mr Wellner's evidence on this point
as the more credible.
- Therefore,
while I considered Mrs Kopas to be genuine in her belief that a life tenancy had
come into existence in 1992, I think it
likely that her recollection of events
has been largely influenced by her husband's account of events over the years. I
am not persuaded
that Mrs Kopas can reliably recall (independent of what her
husband has told her over the years) that Mr Wellner signed anything
on 29 April
1992 other than the one page typed document to the Tribunal.
David Kopas
- David
Kopas said, somewhat dismissively, that he had taken little interest in events
in relation to the tenancy in 1992. He admitted
that he had assisted his father
in the preparation of the various cases since 2002 (T 167.25), though mainly in
a secretarial role
at the outset it would seem, and said that his active
involvement in the dispute (or the litigation in relation to the dispute) dated
from about 2007 by way of assistance for his father. His recollection of events
around 2000 must surely have been influenced by his
father's (or mother's)
account of the events and alleged agreement that preceded them. (Indeed, his
advocacy on behalf of his parents
in the first occasion the matter came before
me, suggests that in the preparation of the evidence to that point he was
consciously
seeking to argue his parents' case - which must detract from the
objectivity of his own evidence.)
- In
the case of David Kopas, there is also a question as to what, if anything,
should be taken from the fact that he remained in court
during his parents'
cross-examination and took an active interest in certain of the evidence being
given by his father (particularly
in relation to rent invoices or the rent
ledgers). (His mother also did so, but as a party it is difficult to see how she
could be
criticised for so doing.) It seems clear that it was a conscious
decision of David Kopas to remain in the courtroom, since he must
have heard the
cross-examination of his mother in relation to the like topic. However, as
pointed out by Mr Maroya, the cross-examination
of David Kopas was not as
extensive as that of his father and I did not consider that the weight to be
given to his evidence is affected
by the fact that he had heard the answers
given by his parents in cross-examination.
- I
did raise, during his cross-examination, one issue in relation to an answer
given by David Kopas (T 165.11) in response to a question
as to why he was
checking documents while his father was giving evidence. Mr Kopas said "I was
checking documents at times at the
request of my parents' solicitor that was
asking me for information". Insofar as that answer suggested that there was a
contemporaneity
between the request by the solicitor and the checking of
documents by Mr Kopas, I felt it proper to draw to Counsels' attention that
I
had not observed requests having been initiated by the solicitor in the
courtroom but had observed that on occasion Mr Kopas had
communicated with the
solicitor. I did so having regard to what was said by Mason P in Kassem v
Crossley & Anor ; Kassem v Krayem & Anor [2000] NSWCA 276;
and what was said in Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, at
[2] and by King CJ in Angaston & District Hospital v Thamm (1987) 47
SASR 177, at 178-179, as to when it may be incumbent upon a judge, as a matter
of procedural fairness, to give notice to the parties of an
intention to rely
upon particular observations of a witness. As I made clear at the time, I had
formed no view as to the import of
those observations of Mr Kopas but felt I
should raise the issue in case it might be a factor that ultimately influenced
my view
of the evidence of the witness. I note that the circumstances in which,
as a matter of fairness, a judge should give notice that
he or she intends to
rely upon an observation of the witness in the witness box are the exception
rather than the rule ( Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, at
[2]). However, where it would not otherwise have been apparent to Mr Maroya what
had been observed and he would then not have
had an opportunity to address me on
that issue, I considered it appropriate to raise the matter.
- Mr
Maroya submitted that the two reasons given by Mr Kopas for checking the
documents (one out of filial concern for his father's
condition and the other
the requests of his parents' solicitor for information) could both have
conceivably have involved communications
with his parents' solicitor and not
only communications initiated by her . I accept that could well be so. My
query arose from the fact that, as I had understood Mr Kopas' response in the
witness box, he
was suggesting that the checking of documents had been done at
the request made of him by his parents' solicitor at that time - something
inconsistent with my observation. However, I accept that this may not have been
the intent of Mr Kopas' answer and that he could
have been addressing requests
for information made by his parents' solicitor at an earlier time. No adverse
inference can be drawn
from the fact that he was so doing, particularly in
circumstances where for some time he had had the conduct for his parents of the
preparation of the case and might be thought to be familiar with the documents
and best placed to assist the solicitor in that regard.
- Nevertheless,
I doubt that David Kopas' evidence can be regarded as uninfluenced by his
participation in the family conversations
in relation to the tenancy over the
years and his erstwhile role as an advocate for his parents' cause.
Dr Kopas
- Ms
Sibtain submitted that Dr Kopas gave inconsistent and implausible evidence. She
pointed to the apparent willingness of Dr Kopas
to make serious allegations of
fraud in relation to the landlord's conduct in making an insurance claim for
storm damage (Exhibit
H p3) (without, as he appeared to concede in the witness
box, information on the basis of which such an allegation could properly
be
made) and allegations of gross bias (in relation to the Tribunal Member who had
found against him) (Exhibit L p11) or dishonesty
of those with whom he had dealt
in relation to the tenancy.
- As
to the former, this allegation seems to have been based on little more than
surmise from the fact that there had been no investigation
of his unit and from
the fact that the roof had leaked before the storm the subject of the insurance
claim. Dr Kopas accepted that
he did not know much about the insurance claim (T
35.35) and had no knowledge as to whether anyone from the insurance company had
carried out an inspection of the outside of the roof (T 69.5), accepting that if
a claim were made then an insurance company would
investigate the claim (T
68.40). It is submitted by Ms Sibtain that Dr Kopas could have had no proper
basis for the allegation of
fraud and, on the material before me, that seems to
be the case. At the most, Dr Kopas was prepared to concede that "maybe fraud
I
would not use today because it's a little bit excessive but I definitely say it
was deceptive" (T 69).
- As
I understand it, and as recounted by Member Dellar, the allegation of fraud
rested on the making of a claim on insurance for the
repair or replacement of
the roof arising from the storm when there was a pre-existing problem with the
roof (although he seems to
have conceded that each storm had exacerbated the
then existing roof problems). He also seems to have it fraudulent or deceptive
for the landlord to accept money for repair of the ceiling, without the ceiling
in his apartment having been inspected or repaired.
- Dr
Kopas had no knowledge of the terms of CHPL's insurance policy (including as to
whether money paid under that policy was required
to be used for any particular
purposes) or of the circumstances in which the roof claim was made. Nor was
there any information before
me in that regard.
- I
think that little can be drawn from this other than that it suggests that Dr
Kopas was prepared to make a serious allegation as
to fraud without having all
the information before him which would enable such an allegation properly to be
made. While that does
not necessarily suggest that the present allegation has no
foundation (the respective circumstances of the allegations being quite
different) it does suggest a willingness to call in aid unfounded allegations in
order to support his case. More relevantly, it suggests
to me that Dr Kopas'
perception of events is coloured by his focus on how they affect him (ie an
inability to view events dispassionately).
(An example of this is the confidence
with which he seems to have asserted the proposition that because the roof had
leaked over
a six and a half year period then he should have the benefit of
occupation of the premises in effect rent free - "I paid something
for something
I should not pay for leaking roof" T 72.44.)
- As
to the allegations of bias and dishonesty, Dr Kopas readily accepted in the
witness box that he had accused Member Dellar of bias
and that he believed each
of Mr Wellner, Mr Owen and Ms Kwawegen to be lying. The allegation of dishonesty
also extended to Mr Kemeny
(who was not called for cross-examination). Dr Kopas
went so far as to hint at undisclosed misconduct in relation to Ms Kwawegen:
Q. And Ms Kwawegan, do you believe she's lying?
A. I know she's lying and she has a history . (my emphasis)
- I
do not see a basis on the evidence before me to make findings of dishonesty
against those individuals. However, to accept the version
of events proffered by
Dr and Mrs Kopas would require me to form the view that a succession of real
estate agents (none of whom has
any personal interest in the outcome of the
proceedings, other than perhaps the vindication of his or her professional
behaviour)
must either be lying on his or her oath or affirmation or have had
such a poor recollection of events (including events that in their
stated
experience would be very unusual) and that they were remarkably lax in their
record keeping and documentation of agreements
or arrangements reached on behalf
of their clients and disinterested in ascertaining the correct position when
(prior to late 2005)
it is said that there was reference to an earlier agreement
in respect of the tenancy. This defies credibility. The objective unlikelihood
of a series of professional real estate agents being similarly afflicted points
against the version of events put forward by Dr and
Mrs Kopas; and Dr Kopas'
willingness to accuse those with whom he has dealt (almost universally in this
case) as liars suggests to
me that he may be inclined to accuse those who
disagree with his recollection of events of dishonesty without accepting the
possibility
that there might be conflicting versions, honestly held, of the same
conversation.
- It
was further submitted by Ms Sibtain that an adverse view should be taken of Dr
Kopas' credit on the basis that he had given false
evidence before this Court in
relation to the advice received from the Tenancy Advisory Service on 24 April
1992 (T 57-58), which
is consistent with his handwritten application to the
Tribunal that day, contrasted with T 79-80 the following day. (Further, insofar
as he had said, to my recollection somewhat dismissively, when challenged with
the inconsistency that "yesterday was yesterday",
it was suggested that this
indicated that Dr Kopas was "not too concerned with being truthful" in this
Court.) My recollection of
the manner in which Dr Kopas answered this question
was that he was attributing any inconsistency in his evidence between the two
days on problems associated with his blood pressure on the first day (and
seeking to discount any significance that might be attached
to his answers and
that would be adverse to his case). I did not consider Dr Kopas to be exhibiting
a conscious disregard for the
truth in that exchange but did think that the
inconsistency in his evidence pointed to the danger of treating him as a
reliable witness.
- As
to his physical condition, Dr Kopas did exhibit some difficulty in reading
documents put to him in the witness box, and that difficulty
did seem to
increase during the first day of his cross-examination. Dr Kopas' family
exhibited some concern during the course of
the cross-examination as to his
condition, though it had not up to then been obvious to me that Dr Kopas was
suffering from anything
more than a difficulty in reading the documents (which I
had assumed to be due to bad eyesight). Once I was made aware of Dr Kopas'
blood
pressure problem, I adjourned to enable Dr Kopas time to have some water (he
being unable to drink the water provided for him
in the witness box), though he
had professed himself able to continue. When he returned to the witness box I
acceded to an application
for the cross-examination to be adjourned overnight.
In general, my observation was that Dr Kopas had been capable of understanding
and responding to the questions put to him but he did appear to have lost
concentration towards the end of his evidence on the first
day, which was
attributed to his blood pressure problems. (Mr Marshall, I might add, had been
unfailingly courteous in his cross-examination
of Dr Kopas; and gave Dr Kopas
the opportunity the following day to correct any answers that he felt had been
affected by his condition.)
- I
accept that there may have been room for genuine confusion on Dr Kopas' part in
relation to what advice had been obtained and when
from the Tenancy Advisory
Services (although, ironically, it was the answer given on the first day, when
it seems there was a problem
with his blood pressure, which is the only one
consistent with the documentation prepared by Dr Kopas in 2000). I would
nevertheless
give Dr Kopas the benefit of the doubt on this issue.
- Ms
Sibtain also drew my attention to evidence that suggested Dr Kopas had made a
false allegation to the Tribunal as to the existence
of a written agreement by
Mr Wellner at about the time of the renovations of the units in the block in
2000 to the effect that the
Kopas family could live in one of the other units
whilst their unit was being repaired. The allegation is contained in a
submission
to the Tribunal (Exhibit H p5-6). In the witness box, Dr Kopas at
first denied outright that Mr Wellner had done so and then seemed
to be less
confident about the proposition (from T 98.15-40):
Q. Did Mr
Wellner ever give you anything in writing to say that you could live in one of
the other units whilst yours was being repaired?
A. In writing? No, never.
Q. That would be false to say that, wouldn't it?
A. That he gave me something in writing, I can stay in any of the other
units?
Q. He never did, did he?
A. To give me writing, I don't recollect to give me ever, I don't
recollect at all.
Q. Didn't happen, did it?
A. As far as I recollect, no .
Q. You claimed he did when you wrote a submission to the tribunal, didn't
you?
A. Did I?
Q. You don't recall what fibs you told from time to time, do you?
A. You refer to submission of 2001 or 2, whatever?
Q. 2002?
A. Yeah, well, do you think I remember what was written in the submission? It
was a very very long submission that I dictated to my
son, more or less. I don't
remember what's written there. I don't remember every page that's written there.
I don't remember most
of the stuff that my wife wrote in her statutory
declaration of 14 or 16 or whatever pages she wrote at that time. (my emphasis)
- It
was submitted that this was a virtual concession by Dr Kopas that he could not
remember his own lies (since on that evidence the
assertion in the Tribunal that
there was a written agreement was false). I do not consider that the evidence
given in cross-examination
goes further than to show the unreliability of Dr
Kopas' present recollection of what happened years earlier (be that in 2005 or
in 2000).
- The
impression Dr Kopas gave me, during cross-examination, was of someone wary to
avoid being trapped in an admission against his
interest in some fashion - hence
his (quite legitimate) concern to avoid waiving legal professional privilege but
also his apparent
keenness to revisit on the second day of cross-examination any
inconsistency between his evidence in the statutory declaration of
2005 and his
evidence in the witness box as to the alleged conversation on 27 April 1992.
- On
occasion (understandable given that Dr Kopas has no doubt lived with this
dispute in his mind for a considerable period), in his
evidence Dr Kopas seemed
to wish to argue his case (such as when speculating as to why it would be in the
landlord's interests to
agree to the terms of the alleged 1992 agreement).
- Dr
Kopas' lack of trust for Mr Wellner (and/or the landlord) was apparent from the
ambush mentality he seems to have adopted in relation
to the Tribunal hearings -
he was adamant that he had not produced the 1992 agreement at the hearing before
the Tribunal because
he wanted to "set up" Mr Wellner, ie to "catch him in a
lie" - T 130 (though if he had, as he said he did, a copy of the signed
handwritten
agreement in his possession (and that had up to then been good
enough for him - such that he had not seen the need to press for a
more formal
agreement) then there seems no reason not to have produced that as soon as there
was any issue as to the keeping of the
dogs on the premises (ie back in 1993) or
when directly asked by the Tribunal Member in 2000 as to the agreement on which
he relied).
- According
to Dr Kopas' version of events (echoed in his son's evidence), Dr Kopas seems to
have been engaged in a strategy to outwit
Mr Wellner (apparently believing that
the latter was engaged in a fishing expedition to find out what documentation Dr
Kopas had,
when Mr Wellner asked him to produce the agreement he said was in
existence - T 139/140) rather than being prepared squarely to put
before the
Tribunal (or the landlord, through Mr Wellner) what he said was the agreement in
existence from 1992. (If so, that strategy
has backfired badly, because I am
left with real doubts as to the existence of the document in 1992 given that it
was not produced
or relied upon when one might logically have expected it first
to have been.)
- Dr
Kopas' tendency to seek to 'score points' off others or to outwit them seems to
be illustrated by the evidence he gave as to a
conversation with Ms Kwawegen in
which she seems to have understood him to be disavowing a desire to remain in
the premises (and
was pressing as to when he would be prepared to leave). Dr
Kopas explained that when he had denied wanting to live in perpetuity
in the
unit, this was referring to what he had understood was a lease in perpetuity
that could only be granted by the government.
That may be so, but the impression
that conveyed to me was that Dr Kopas had been willing to let Ms Kwawegen
operate under a false
assumption as to his intentions when he told her that he
did not want to live in the unit in perpetuity.
- The
overall conclusion I reached was that, prior to 2005, if Dr Kopas were able to
stave off attempts by the landlord to obtain possession
of the premises without
reliance on (and therefore scrutiny of) the 3 page handwritten document (as
happened in 2000) then he preferred
to do so and that the document was only
produced when Dr Kopas was forced to do so. That suggests to me a consciousness
that the
document might not bear the weight sought to be put on it by Dr Kopas.
- In
summary, I have difficulty accepting Dr Kopas' version of the events of 29 April
1992, largely because of the improbability of
an experienced real estate agent
entering into an agreement of the kind suggested and not documenting it other
than in the manner
suggested by Dr Kopas. I think it likely that Dr Kopas has in
his own mind come to believe that he has an entitlement to a life tenancy
but I
find his evidence in that regard improbable and that the more credible version
of events by far is that proffered by Mr Wellner.
- I
note that Ms Sibtain also submits that it is relevant that the only documents
from 1992 now come from Dr Kopas or his family (Raine
& Horne having long
since disposed of its 1992 files by the time the alleged 1992 Agreement was
first produced in December 2005)
but that they have not produced those documents
which one might expect had they existed (such as the original photocopy of the
document
they say was signed on 29 April 1992 or documents supporting their roof
claim for $16,900 or a letter said to have been produced
to Mr Wellner in 1993).
In this regard, the delay by Dr Kopas in producing the 1992 handwritten copy
might, to a cynical mind, be
seen not simply as an attempt to catch Mr Wellner
out in a lie but also to ensure that there was no documentary record to gainsay
his version of events - however, this was not put to Dr Kopas and I do not draw
any such conclusion.
CHPL witnesses
- As
to the witnesses for CHPL, the main attack on credibility was in relation to Mr
Wellner. In summary, Mr Maroya submits that Mr
Wellner's oral evidence should
not be preferred over the testimony of the Kopas family members, unless
independently corroborated
by reference to contemporaneous documentary sources.
As to the remaining witnesses, the criticism of those who were cross-examined
was as to their lack of recollection of the events in question. Mr Kemeny was
not cross-examined (Mr Maroya characterising his evidence
simply as self-serving
and being critical that there was no evidence as to Raine & Horne office
practice from which one might
assume he would have seen a copy of the agreement
had it been placed on file). Nor was the forensic expert (Mr Anderson), whose
evidence
was inconclusive in that he confirmed in effect that it would be
possible to carry out a cut and paste exercise in order to produce
a photocopy
of the 1992 Agreement bearing Mr Wellner's signature even if he had not signed
that document but that it was not possible
to determine this without reference
to the original photocopy.
Mr Wellner
- Mr
Wellner is elderly and has retired from practice. He has held various
professional certificates in relation to property management
and real estate. Mr
Wellner had worked at the Bondi Beach real estate agency since 1979 and had
managed the block of flats in question
from that time. As at 1992, Mr Wellner
had had 20 years experience as a property manager and he set out in his
affidavit the was
the most senior property manager in the agency. It was not
suggested that he had anything other than a business connection with CHPL
nor
was it suggested that he had any personal interest in the outcome of the
proceedings or any grudge to bear against the Kopas
family. Mr Wellner deposed
to having had experience in tenancy matters appearing on behalf of landlords in,
relevantly, the Tribunal.
- In
summary, Mr Wellner's affidavit evidence was to the effect that if the 3 page
handwritten document had been presented to him in
1992 for execution he would
have read the document and would not have recommended that the landlord enter
into such an arrangement.
He regarded the conferring of a life tenancy for
residential premises as extraordinary. Hence he was satisfied that, had he read
the document, he would have recalled it and that, had the occasion had ever
arisen for him to refer such a matter to the landlord,
he would have given a
strong recommendation that the landlord not agree to such a document. Mr Wellner
says that the document was
not presented to him for consideration by Dr Kopas in
1992 (or relevantly thereafter) and that no occasion arose for him to refer
the
matter for consideration by the landlord.
- In
addition, Mr Wellner denies having any authority to sign the document. Ms
Sibtain submits, therefore, that on Dr and Mrs Kopas'
case, Mr Wellner must be
lying about two things: first, about not having authority to sign the document;
and secondly, about not
having signed the document (and submits that it would
not be necessary to lie about both).
- Mr
Maroya was critical of the manner in which Mr Wellner gave his oral evidence,
submitting that at times he avoided answering questions
directly; that he was
guarded in his responses, or often answered before a question was asked, or
sought to anticipate the direction
of questioning; that he gave technical
answers (Mr Maroya referring, by way of example, to the answers given by Mr
Wellner to the
effect that an agreement was not binding if outside the Tribunal
hearing room); that he was unhelpful in his answers (to the point
it is said of
being obstructive); that he was not prepared to make concessions against CHPL's
interests until brought to specific
documents (something said to be unlike the
position of Dr Kopas); that on one or two occasions, he asked to be shown a
document or
pointed to evidence in support of the proposition put before
answering the question (in fairness I note that Dr Kopas also asked
to be shown
documents - at least in relation to questioning over the tenancy advisory
services issue); and that he was generally
reluctant to make concessions before
being forced to do so, or to acknowledge the import of a particular document
that he was asked
to consider.
- While
I would accept that Mr Wellner appeared less than enthusiastic at being required
to give evidence of events so long ago and
that he was somewhat pedantic in some
of his responses, I did not see Mr Wellner as an obstructive witness (and,
indeed, he was prepared
at times to enter into debate as to matters of
speculation - such as his response to the Tribunal in December 2005 when he was
first
presented with the copy document bearing his signature). Rather, it seemed
to me that Mr Wellner was forthright or dogmatic in his
manner. While generally
concise in his answers, he did speculate from time to time - though it seemed to
me that he thought he was
being called upon to do so. There were a number of
matters that Mr Wellner did not recall (which is not surprising given the lapse
of time and the fact that this was one of presumably many properties for which
he had management responsibility).
- Mr
Wellner was adamant that he had not agreed to, nor had he offered, (and had not
been authorised to do so) a life tenancy and that
he had not signed the 1992
handwritten agreement. I accept his evidence. It seems to me highly improbable
that an experienced property
manager would have done so (and even more unlikely
that if, for whatever reason, he had done so, it would not have been documented
and retained on the tenancy file).
- Mr
Maroya sought to draw an adverse inference from the fact that in Mr Wellner's
affidavit evidence there was repeated reference to
a tenant's request for
a life tenancy (referring to paragraphs 14, 17, 19 of Mr Wellner's affidavit
sworn on 4 August 2009), as suggesting a
distinction between an offer made by Mr
Wellner of such a tenancy (it being the Kopas' case that the life tenancy was
offered to,
not requested by, them). It was suggested to Mr Wellner in
cross-examination that this was a misleading way of characterising the
events of
29 April 1992. (Mr Wellner, it seemed to me, did not immediately grasp what was
being suggested - namely, that his affidavit
had been carefully crafted to avoid
an admission that he had offered a tenancy. I think at this point, as elsewhere
during is cross-examination,
he was at cross-purposes with the cross-examiner.)
I do not consider that, read as a whole, the affidavit suggests that it was
drafted
in such a fashion. (Indeed, it might suggest an assumption by Mr
Wellner, consistent with his evidence that he has never offered
a tenant a life
tenancy, that if any issue as to a life tenancy had been raised it must have
been at the suggestion of the tenant.)
In any event, when pressed as to this, Mr
Wellner's evidence was quite clear - put simply, in his 35 years in practice he
had not
been privy as agent to any arrangement whereby a residential tenancy
lease was granted on a life tenancy arrangement.
- It
was suggested that Mr Wellner had given contradictory evidence in
cross-examination (namely that he had been "intimidated" by Mr
Baker at the
Tribunal on 14 December 2005 and then, when asked about that 'intimidation',
proceeded to qualify his answer, culminating
in a contradiction of himself that
he had not been intimidated, but, instead "surprised...but totally
confused". It was noted that there was no mention in Mr Wellner's affidavit
of
any 'intimidation' by Mr Baker. That submission seems to have been made without
the benefit of the transcript, my reading of which
(supported by reference to my
notes of the exchange) is that what Mr Wellner had initially said was that Mr
Baker had produced the
document "in a way to intimidate me", not that he had
been intimidated. I saw nothing contradictory in that evidence. (I am not in
a
position to make any comment as to the conduct of Mr Baker, though on Mr
Wellner's version of events it might be thought he was
participating in some
form of trial by ambush inconsistent with the manner in which modern litigation
is to be conducted.)
- It
was submitted by Mr Maroya that Mr Wellner had also carefully prepared his
affidavit insofar as he had used the words "do not admit"
rather than "deny" in
relation to various matters (reference being made to paragraph 22ff of that
affidavit). I am not satisfied
that Mr Wellner can be taken to have appreciated
the formal distinction in pleadings between a non-admission and a denial (and,
indeed,
his answer in the witness box suggested to me that he thought they
amounted to one and the same thing).
- In
that regard, Mr Wellner's use of language was the subject of further comment by
Mr Maroya. As I apprehend it, it is suggested that
the statement in Mr Wellner's
"Submission to the Tribunal" in 2006 that "the so called agreement was never
brought into force by
the Respondent" in some way involved an admission that
there was some form of agreement reached (but not one that had in some way
been
implemented or become operative) (see T 189.22). I note that Mr Wellner spoke
with a marked accent, from which I infer that
English may not have been his
first language. Mr Wellner spoke in a somewhat stilted manner at times (eg T 184
- "Mrs Celemajer did
not authorise me of any offer of any life tenancy
whatsoever at any time since I know her") and it seems to me more likely that
this
was an example of stilted or awkward language usage on his part rather than
an implicit admission that there was in existence an
agreement that he has
staunchly (and consistently since it was first put to him in 2005) denied.
- Other
matters to which Mr Maroya referred as going to the assessment of Mr Wellner's
credibility were his evidence as to the contact
he had had with Mrs Celermajer
both in general and in the days the days leading up to the 29 April meeting and
the role that Mr Rutkowsky
(another director of CHPL) played in the giving of
instructions in relation to property matters for CHPL (said to be inconsistent
or raised for the first time in the witness box); his evidence as to the need
for repairs or replacement of the roof (on which he
is said to have wavered
considerably, conceding at T 190.25 that several letters had been sent to the
agency about the state of the
roof up to 1991); his evidence as to the payment
of rent in relation to the tenancy (about which I think it is fair to say his
evidence
was very broad brush); the circumstances in which Dr Kopas paid part of
the outstanding rent at the 29 April meeting (a matter on
which, contrary to the
suggestion that Mr Wellner was uncooperative and would make no concessions
against the CHPL interests, Mr
Wellner was prepared to accept what was put to
him by Mr Maroya, saying that he could not recall correctly it was too long
ago);
the evidence given as to the 1993 termination notice being served by
letter addressed to both Dr and Mrs Kopas (and his concession
that the
addressing of the 2005 notice of termination to Dr Kopas alone had been
intentional); and the evidence given by Mr Wellner
as to the fact that his
signature appeared on the copy of the handwritten document (Mr Wellner again
seeming to engage in speculation
or surmise, in perhaps similar fashion to his
speculation in 2005 as to what the document was).
- While
it might be that Mr Wellner could be criticised for engaging in speculation as
to various of the matters (including why it was
that documents were at times
issued to both Dr and Mrs Kopas), it seemed to me that in general what Mr
Wellner was seeking to do
was to answer the questions put to him to the best of
his recollection after many years and in circumstances where he is no longer
with the agency or practising as a property management agent. The reason Mr
Wellner was so adamant that the handwritten document
could not have been a
record of a discussion in late April 1992, as opposed to some other time, was
not clear to me. However, it
seems to me that Mr Wellner's evidence and his
conduct at the Tribunal in 2005 (and earlier in issuing the 1993 notice of
termination,
albeit in forwarding it to both of the principal occupants of the
unit) is consistent with Mr Wellner's denial that he had signed
the 3 page
handwritten document and that he had offered or agreed to a life tenancy in
respect of the premises.
- As
to the suggestion as to how his signature might have ended up on the document
when he says that he had not signed it, a possibility
that Mr Wellner readily
conceded had not been in his mind in 2005:
Q. This surmisal was not
something that you had in mind in 2005, was it?
A. Not at that time, no. At the time I did not know what it was. All I knew
was that I never signed this particular document. ,
it seems to me that (even apart from the fact that the surmise hardly
involves a startling suggestion - it being the forensic expert's
opinion, and
not particularly novel, that one could readily achieve such a result by a copy
and paste exercise), this is consistent
with Mr Wellner being genuinely confused
as to how a document he did not sign could be produced with his apparent
signature on it.
- While
I accept that there is no evidence from which I could conclude that a cut and
paste exercise was carried out by one or more
of the Kopas family in order to
create the document on which they now rely, it nevertheless seems to me that
there are only two sensible
possibilities consistent with the conclusion I have
reached (ie the conclusion that the copy document was not signed by Mr Wellner
as a record of any agreement reached with Dr and Mrs Kopas on 29 April 1992) -
either there was some form of documentary manipulation
(by one or more of the
Kopas family) to create a false document or else Mr Wellner signed something
that he believed was no more
than a record of discussions and not intended by
him to have binding force (nor treated subsequently in a fashion that suggested
it did have any binding force). Either way, the document in my view does not
constitute a record of a binding agreement.
Remaining real estate agency witnesses
- Both
Mr Owen and Ms Kwawegen have left the Raine & Horne Bondi Beach agency - Mr
Owen in 1998 and Ms Kwawegen in 2001. Mr Owen
has not been involved in property
management since 1998. They have no interest in the litigation and there seems
no reason not to
accept their evidence (relevantly, as to the unusual nature in
their experience of a life tenancy in such a situation and that they
were not
aware at the relevant time(s) of any such agreement). Mr Glatter remains with
the agency but had little recollection of
events. (Mr Kemeny's evidence was
unchallenged. Although Mr Maroya says that there was no evidence as to the
practice within the
Raine & Horne offices in relation to the retention of
documents and the like, the fact that in his considerable experience as
a real
estate agent Mr Kemeny had not had experience of a life tenancy of this kind and
his observation of Mr Wellner's manner in
negotiation or dealings in property
matters, supports the conclusion that Mr Wellner would not be likely to have
entered into an
arrangement of this kind with the Kopas family, let alone
offered one as Dr Kopas insists he did.)
Issues
(i) Alleged 1992 Agreement
- Was any
agreement in fact reached on the terms of the 3 page handwritten document?
- The
fundamental issue in dispute between the parties is whether a binding agreement
came into existence between CHPL, through its
real estate agent Mr Wellner, and
Dr and Mrs Kopas on 29 April 1992 in the terms alleged by Dr and Mrs Kopas.
- Relevantly,
they allege that the agreement was comprised by the three page handwritten
document which they claim Mr Wellner signed,
together with the one page typed
document forwarded to the Tribunal. Not only does Mr Wellner deny having signed
the three page handwritten
document (and denies that it was in existence at that
time, by which I understand him to mean that he was not shown the document
at
the time - since it is conceivable that Dr Kopas had prepared it prior to the
meeting, say for the purpose of setting out what
he sought to achieve from the
meeting, but without presenting it to Mr Wellner either for consideration or for
signature) but Mr
Wellner also denies that he was given authority to make such
agreement. Therefore, if I were to find on the balance of probabilities
that Mr
Wellner had signed the handwritten pages, then an issue would arise as to
whether he was authorised to do so and, if not,
whether it was binding on CHPL.
In that regard, Dr and Mr Kopas rely on Mr Wellner's ostensible authority, as
CHPL's property agent,
to bind it to any agreement reached at that meeting.
- CHPL,
in its Defence to the Amended Statement of Cross-Claim (paragraph 13) pleads in
further or alternative answer to the claims
made therein that the 29 April 1992
document is not enforceable by reason of incompleteness and/or uncertainty,
particularising this
allegation by reference to the lack of specification of the
amount of rent payable or how it is to be determined or for any increases
in the
term; the lack of specification with requisite certainty as to when rent is to
be paid and by reference to what period; and
the uncertainty of language such as
"appropriate" rent, "promptly", "specified interest", "jointly and/or
separately" and "just cause".
- The
critical factual issue is what happened at the 29 April 1992 meeting. There is a
clear conflict on the evidence between the respective
parties in this regard,
which is compounded by the dispute as to whether Mr Wellner visited the premises
on 27 April 1992 to request
such a meeting.
- As
to the latter, while it seems to me not inconceivable that Mr Wellner might have
attended the premises to suggest a meeting, there
is no evidence that this was
how he would ordinarily arrange such a meeting (as opposed to doing so by
telephone). That said, there
seems little reason for Dr and Mrs Kopas to have
invented a visit (other than to support their contention, not ultimately pressed
with the force that it was initially pleaded, that Mr Wellner did so to plead
with them in relation to a meeting or to suggest that
there was some anxiety on
the part of the landlord/agent to reach an agreement with them). Somehow a
meeting must have been arranged,
since it is not suggested that Dr and Mrs Kopas
arrived at the Raine and Horne premises unannounced on 29 April 1992 and just
happened
to encounter Mr Wellner. It may be more likely that they would remember
an occasion of this kind than Mr Wellner (on the assumption
that tenant meetings
were simply part of a busy property management practice at that time).
- In
any event, I do not consider that anything turns on this because even if Mr
Wellner did visit the premises on 27 April, I do not
accept that it is likely
that he 'pleaded' with Dr and Mrs Kopas to attend the meeting and to resolve
matters. Mr Wellner did not
strike me in the witness box as someone inclined to
'plead' for favours. He was businesslike and generally definitive in his
responses
in the witness box. Mr Wellner did not appear to be uncomfortable
during cross-examination. He was unwavering in his denial of the
1992 agreement
and dismissive outright of the suggestion that he had signed the document. Mr
Wellner was described by Mr Kemeny as
a tough negotiator and I would accept that
although a general description, it is one based on Mr Kemeny's observation of Mr
Wellner
over a long time.
- Moreover,
at that stage it seems to me more likely that Mr Wellner would have considered
that was in a position of bargaining power,
since CHPL had the benefit of the
Tribunal orders for possession and the most that Mr Wellner is likely to have
thought needed to
be negotiated as at 27 April 1992 were the arrangements for
vacation of the premises. Even if, by then, Mr Wellner was aware of Dr
Kopas'
Tribunal claim for compensation in relation to the roof, it is unlikely that
this would have been of concern to him given
his awareness of the Tribunal limit
on monetary compensation. Further, if there were any threat to commence other
civil litigation
there is still nothing to suggest that Mr Wellner would have
regarded Dr Kopas as having a substantial claim (a claim for refund
of rent paid
over the entire term of the lease, even had Mr Wellner been aware of it, seems
rather of an ambit claim in circumstances
where the family had had the benefit
of occupation over the relevant period and there was no suggestion that Dr Kopas
had made Mr
Wellner aware of any more substantial property damage claim) -
furthermore, if the order for possession were to stand then there
would not be
any immediate need for the roof to be repaired in order to meet a demand by Dr
Kopas of that kind and, in any event,
if there was an insurance claim available
to meet that cost then the liability of the landlord would be covered. Hence it
is hard
to see the basis for any anxiety or pleading on Mr Wellner's part.
- Therefore,
it seems to me unlikely that Mr Wellner would have been in the position (whether
on 27 April or on 29 April 1992) where
he saw any urgent commercial imperative
to reach an agreement with Dr Kopas and his wife for them to forego any
compensation claim
(or that he should do so, as the handwritten document would
suggest, on disadvantageous terms for the landlord). By contrast, Dr
Kopas and
his wife were in a far less secure position - orders for termination of the
lease and for possession of the premises having
been made (and, by then it would
seem, Dr Kopas having been made aware that he had not been entitled to withhold
rent as he had done).
The fact that Dr Kopas attended the Raine & Horne
offices with a substantial sum (partly in cash) for payment of the arrears
suggests that he was aware that he would need to make good the arrears if he
were to be permitted to remain in the premises (and
it is hard to see that he
could have had any comfort at that stage that he would be permitted to do so).
- As
to whether the arrears were paid at the outset of the meeting or only after an
agreement was reached for the rescission of the
order for possession (whatever
that agreement may comprise), there is nothing other than Dr Kopas' word against
that of Mr Wellner.
Is it objectively more likely that Dr Kopas would have
parted with the money for the arrears before securing some form of agreement
or
that Mr Wellner would have insisted on payment before any negotiation? The
description of Mr Wellner would suggest the latter
but in the absence of any
evidence as to how the discussions progressed between the three persons it is
difficult to say that one
version of events is the more credible than the other.
Mr Wellner accepted that what was put to him in cross-examination might be
right, given the passage of years since events occurred. Ultimately, I do not
think anything turns on this because even if Dr Kopas'
account is accepted on
this point the payment of rental arrears is not something consistent only with
the handwritten document -
it is equally consistent with the agreement that was
reached having been as set out in the typed one page document: for the
withdrawal
of Dr Kopas' compensation claim and the agreement of CHPL, through Mr
Wellner, not to enforce the order for possession.
- It
is consistent with Dr Kopas' earlier withholding of the rent, however, that what
he was seeking at the late April meeting was not
an agreement as to the term of
his tenancy but an agreement for the repair of the roof and to be permitted to
remain in possession
of the premises at all. In those circumstances there is no
logic to the alleged offer by Mr Wellner on behalf of CHPL of a life tenancy.
In
cross-examination, Dr Kopas accepted that as at March/April 1992, his attitude
was to the effect "I'm withholding the rent. You
repair me the roof, I'll pay
the rent'." As Ms Sibtain points out, this is the arrangement in effect recorded
in the 30 April 1992
letter alone.
- For
CHPL, a number of factors are pointed to as indicative that there was no 1992
Agreement comprising the 3 handwritten pages, including
the form and content of
the alleged agreement; it being handwritten and not witnessed; the bizarre
language of the document; the
improbability of a life tenancy being granted; its
extraordinary terms; the circumstances leading up to its alleged execution; the
delay in reliance by Dr and Mrs Kopas on the alleged agreement; and the lack of
corroboration of the existence of the alleged agreement
in any document prior to
2005.
- A
number of those factors relate to the content and form of the document, which
brings me to the terms of the handwritten document
itself. I accept the
submission made by Counsel for CPHL (both Mr Marshall SC and later Ms Sibtain)
that the alleged 1992 Agreement
is in extraordinary terms. It seems to me that
it is inherently improbable that Mr Wellner (or any professional property
managing
agent) would have signed a document in those terms. Mr Maroya submits
that the language of the document (flamboyant, and nebulous
in places, as he
concedes it to be) must be read having regard to the fact that it was prepared
by a layman - and notes that the
terminology used by Mr Wellner on occasion is
also not particularly formal (such as when he sought an amendment to a Tribunal
application
to seek an order that the tenant "get rid of" the dog). However, the
informality of the language is one thing; the content of the
so-called agreement
is quite another. For a start, Mr Wellner knew what a life tenancy was and so it
might be expected that if others
incorrectly referred to a 'rest of your lives'
tenancy he would correct it to avoid confusion. Furthermore, the suggestion by
Mr
Maroya that Mr Wellner had a desire to put matters to bed (T 240.50), and
hence would be prepared to accept oddity or flamboyance
of language in the
handwritten document, seems to hark back to the alleged anxiety to resolve
matters, of which I am not persuaded
there is any compelling evidence.
- For
a start, while I accept that the notion of a life tenancy is not per se unusual,
it must be remembered that this is a life tenancy
purportedly granted to persons
not related to the lessor (and who had apparently not proved to be complacent or
non-complaining tenants
up to that point) who could have had no reasonable
expectation of a life tenancy and for whose benefit the lessor would have had
no
particular reason to grant a life tenancy. At the time of the alleged agreement,
Dr and Mrs Kopas were in their 40's and Dr Kopas
accepted he was younger and
fitter. It might be expected that a life tenancy would therefore be of no little
duration.
- The
unusual nature of such a tenancy is illustrated by the evidence given by Mr
Kemeny, the managing director of the Raine & Horne
agency at the relevant
time (who has held a real estate licence for about 35 years), that he has not
come across a single instance
of a life tenancy having being granted to, or
sought by, a residential tenant (2 May 2008 affidavit paragraph 8). Mr Kemeny
went
on to explain what in his view would be the significant restrictions for a
landlord in granting such a tenancy. I do not place weight
on Mr Kemeny's
opinion in that regard, sound as it may well be. Rather, it seems to me to be a
matter of common sense that the grant
of a life tenancy to an unrelated person
in these circumstances (and particularly without very clear provisions as to
rental increases
and the like) would be surprising.
- Similarly,
Mr Wellner (at paragraphs 18-19 of his affidavit) deposed that in 35 years in
property management he did not encounter
any instance where a tenant of a
residential property had requested a life tenancy for the property or where one
was offered by a
landlord.
- (The
evidence of each of Ms Kwawegan, Mr Owen and Mr Glatter as to the fact that none
had experience of a situation in which a life
tenancy had been sought or granted
in respect of a residential tenancy, evidence which I have no reason not to
accept, I nevertheless
rely on only to the extent that it suggests that had they
been told of the existence of a life tenancy in favour of Dr and Mrs Kopas
or
seen any document relating to such a tenancy they would have been likely to
remember it (since they have a lesser degree of experience
in property
management than either Mr Kemeny or Mr Wellner).)
- There
is no suggestion in this case that CHPL (or Mrs Celemajer) was in the habit of
granting life tenancies or had done so for any
other tenant in the building -
yet, if the agreement is as it is phrased, this was an offer made by the
landlord to Dr and Mrs Kopas.
There seems to me to be no commercial
justification for the landlord to have made such an offer in this instance (the
suggestion
that this would remove the risk of periods in which the building
would be untenanted - put by Dr Kopas in the witness box - seems
to me to be an
unlikely motivation to agree to a life tenancy; there must be such a risk in any
tenancy arrangement and yet there
is no suggestion that it is normal practice
for landlords to seek to exclude such a risk by offering life tenancies).
- Furthermore,
the terms of this purported life tenancy themselves are extraordinary - not only
is the tenancy said to subsist beyond
the lives of the life tenants, but the
rent is simply specified as the 'appropriate' rent (with no mechanism for its
determination)
and provision for it to revert automatically to $93 per week in
the happening of events that themselves are not clearly articulated.
(Dr Kopas
said in the witness box "Our agreement was that the appropriate rent would be
decided according the condition of the flat"
T 83, though this was not stated in
the handwritten document.)
- I
find it extremely hard to believe that any professional real estate agent with
experience in the leasing and managing of residential
property (let alone
someone tough as nails as Mr Wellner was said to be) would have committed a
landlord to such an agreement.
- Mr
Maroya submits, in effect, that the seemingly penal parts of the document (in
Part (C)) could be ignored or not enforced. However,
the very presence of those
clauses makes it impossible to accept that someone in Mr Wellner's position
would have agreed to such
a regime (whether or not it might ultimately have been
enforceable).
- Some
of the features of the document might indeed be able to be dismissed as
referable to the fact that it was negotiated by non-lawyers
(and it is certainly
consistent with preparation by someone with an emotional investment in the
dispute). However, that begs the
question as to why Mr Wellner would have agreed
to enter into an agreement with such terms.
- Dr
Kopas said that Mr Wellner had telephoned Mrs Celemajer for instructions 3 or 4
times during the course of the meeting. The evidence
of Mr Wellner, supported to
some extent at least by Dr O'Sullivan's evidence, is that this did not happen
and it seems unlikely from
his account of the interaction with Mrs Celemajer
that this occurred. It seems to me far more likely that Mr Wellner would have
had
authority to agree to matters with tenants within a particular range without
the need to obtain specific instructions. However, I
very much doubt that the
grant of a life tenancy on such extraordinary terms would have fallen within the
scope of Mr Wellner's ordinary
instructions or authority - unless he had been
given carte blanche to deal with tenancy matters and there was no suggestion
that
this was the case.
- Mr
Maroya submitted that weight should not be placed on Mr Wellner's evidence in
the witness box that he had instructions not to telephone
Mrs Celemajer (given
that this evidence emerged for the first time in cross-examination and was not
referred to in his affidavit).
In that regard, Mr Wellner is not a party to the
proceedings and presumably his affidavit contains the responses he gave to
questions
put to him - the question as to what instructions he was given in
relation to contact with Mrs Celemajer is may not have been something
which
occurred to anyone to ask prior to Mr Wellner giving evidence in the witness
box. (It seems to me that this is less of an issue
than the late emergence of
the evidence from Dr Kopas, for example, as to the call he says he received from
the Tribunal to alert
him to its monetary limit - since Dr Kopas as a party has
been intimately involved in the preparation of the case over the years
and must
be assumed to have turned his mind well before the hearing to all of the matters
relevant to his case,) In any event, whether
or not Mr Wellner did telephone Mrs
Celemajer, I do not think I can infer that she gave him instructions to sign a
document in the
terms of the handwritten document (and, for what it is worth,
the expression of her desire, attested to by Mr Michell in 2005, to
make
testamentary provision for her grandchildren in relation to this block of units
seems inconsistent with any understanding that
unit 3 is encumbered with a life
tenancy of uncertain duration).
- The
factors that particularly weigh against the conclusion that there was a binding
agreement reached at the meeting on 29 April 1992
in the terms of the 3 page
handwritten document prepared by Dr Kopas are:
(i) the unconventional (and to my mind extraordinary) nature of its terms -
as noted above, I think it inherently unlikely that a
landlord would agree to
grant a life tenancy (to persons then in their 40's) with uncertainty as to an
essential term such as the
rent and with the penalty provisions contained
therein (such as the risk that if the tenant formed the view that there had been
an
inappropriate offer of rent there might be a reversion to a much lower (and I
would infer less than market) rate of interest), even
leaving aside the language
employed in the document itself;
(ii) the fact that it was regarded as an important document by Dr and Mrs
Kopas and they did not trust Mr Wellner, nevertheless they
did not press (until
2005) for the document to be more formally recorded (whether by way of the
provision of a lease in registrable
form or even by a typed up version of the
document being formally executed) and did not chase up Mr Wellner for a typed
document
even though it is now said that he was "supposed" to type it up;
(iii) again, notwithstanding that it was regarded as an important document,
Dr Kopas seems to have been remarkably unconcerned to
keep either the notes of
the contract (which he says he tore up) or the original document he says he was
given by Mr Wellner (explaining
the destruction of the original photocopy on a
practice of doing so with documents that turn yellowish over age); [I interpose
to
note that it seems to me that the most likely explanation for what occurred,
consistent with Dr Kopas evidence of tearing up the
notes of the contract, was
that Dr Kopas had made notes prior to the 29 April meeting, perhaps along the
lines of the 3 page document,
and that he later tore them up once the one page
typed document was signed on the basis that it was that document that recorded
the
parties' agreement - but if so then the current photocopy of the 3 page
notes must be a document created at a later time (which Dr
Kopas denies) and the
only explanation for Mr Wellner's signature must be that it was appended in some
fashion by Dr Kopas (which
was not directly put to him)]; and
(iv) most significantly in my view, the fact that no reference was made to
this agreement, after the 29 April meeting, on occasions
on which it might be
expected that reference to it would be made - such as when the 1993 Notice of
Termination was issued inconsistently
with the terms of the handwritten document
and, more importantly, in 2000/2001 when Dr Kopas was asked by the Tribunal
Member to
identify the agreement on which he was relying (after having been
told, in effect, that one cannot now conduct trial by ambush).
(True it is, that
Dr Kopas says that he informed Mr Owen of the agreement (and showed him a copy)
in 1996. However, I accept Mr Owen's
evidence that had he been told of such an
agreement (or shown it) he would have regarded it as so unusual that he would
have remembered
it. Whether or not the grant of a life tenancy per se is
unusual, I accept that Mr Owen would have regarded it as unusual having
regard
to his experience.)
- As
to (i), the unusual flavour of the alleged agreement is apparent from the text
as set out earlier. In particular, reference was
made to statements such as:
It [this Agreement] is not done as a ruse to weasel out of
financial losses and "Have the cake and eat it" by acting in bad faith
in the
future
and
If Prop/Agent seeks to invalidate/renege &/or Terminate the
Agreement/Settlement, with deception, trickery, loophole, technicalities
or the
like, in any court, it will be deemed "Bad Faith" & "Slight of Hand", and a
breach of this agreement and the spirit of
the agreement." (clause (C)(5))
- Weight
is placed for CHPL on the fact that the alleged 1992 Agreement speaks of "the
Rest of Kopas' Life" tenancy and "Rest of their
Lives" tenancy but does not use
the term "life tenancy". While Dr Kopas may not have known the meaning of that
term (he says that
he did not know the term "life tenancy" until 2005 when he
went to Legal Aid - T 31), Mr Wellner as an experienced real estate agent
must
have known the term. I accept that in discussion it is possible that Mr Wellner
might not have used the term (although this
seems unlikely if, as is alleged, it
was he who made the offer of a life tenancy), he would surely have known enough
to correct the
wording used in the handwritten document had he been asked to
sign it as a binding agreement.
- Similarly,
the seemingly uncommercial penal provisions contained in the so-called agreement
make it objectively unlikely that a landlord
would agree to them (whether or not
they were likely to be enforceable). So, for example, clause (C)(6) (which
provides that if the
landlord takes any action seeking to terminate the lease
this is a breach) and clause (C)(4)(ii) (which applies if the landlord or
agent
tries to enter the property without permission or impedes access, use and
enjoyment of the property) each go on to provide
that such conduct "and will
result in Automatic reversion of rent to $93 [per week] for the rest of the
tenancy, if Kopas so wishes."
. Even more astonishing, in my view, is clause
(C)(3) which provides that in certain circumstances failure of the agent or
landlord
to accept "appropriate rent" will not only be a breach but will amount
to "an offer of free rent - gratis - for the rest of the tenancy
("Rest of
Lives") which Kopas will Automatically accept " .
- Clause
(C)(5) provides that if the landlord seeks to invalidate/renege and/or terminate
the agreement "with deception, trickery, loopholes,
technicalities" , the tenant
can send a letter of demand "for restitution of all rent paid since 1984 &
specified interests (orally),
to the date of the breach, regardless [of] the
time passed & costs & unspecified substantial damages". The notion of a
real
estate agent readily agreeing to such a clause on behalf of a landlord
seems ludicrous.
- As
to the question of certainty of the agreement, there is also a difficulty in
that, on its face, it does not purport to encompass
all the terms of the
agreement but rather refers to an oral component, the content of which has not
been elucidated beyond the suggestion
that part of this related to who was to
determine the appropriate rent (T 83).
- As
to (ii), the three page document was never typed nor was Mr Wellner's signature
witnessed from anyone in the office (though Dr
and Mrs Kopas suggest that this
was due to the lateness of the meeting). No request seems to have been made for
a typed or counterpart
document to be provided. In cross-examination Dr Kopas (T
71.46) suggested that Mr Wellner had been to provide a typed copy (though
this
was not raised in Dr Kopas' affidavit evidence and was not put to Mr Wellner in
cross-examination):
Q: But you say there was no step taken to type
the other pages?
A. The three pages, Alex was supposed to type . He was to send a copy and he
never did it. The document with his signature was good
enough.
Q. You just said in evidence that Alex was supposed to type it and send it to
you, is that correct?
A. Yes.
Q. When have you ever said that before today, in writing?
A. I might not have said that before in writing, but it is irrelevant,
because at the end of the day, I had a document with his signature,
and that's
what counts.
- As
to (iii), Dr Kopas' evidence in the witness box seemed to be that he had not
only torn up the notes he made of the contract in
the 29 April meeting:
Q. But you say you made notes during the meeting which you tore up at some
stage?
A. Well, we wrote the contract, I tore it up.
but had also thrown away the original photocopy of the agreement. Earlier in
the proceedings, it seems that Dr Kopas said he had destroyed
the original
photocopy in 1996 because it was getting faded and was poor paper (transcript 6
March 2008 at p9). A similar explanation
was given at T 46-47 before me. This is
submitted by Ms Sibtain to be one of the implausible aspects of the case. It was
noted that
Dr Kopas had retained the one page typed document supposedly
photocopied at the same time (the original copy of which, it was submitted,
was
the top document in Ex K) and reference was made to the exchange at T.127.
- It
is submitted by Ms Sibtain that the fact that Dr Kopas refused to answer on the
ground of legal privilege leaves the letter uncontradicted,
Dr Kopas being the
only person who could have said that Mr Baker had mistakenly conveyed that
information to the plaintiff's solicitors
and therefore the evidence given by Dr
Kopas in the witness box as to the reason for destroying the original photocopy
should be
rejected. It is submitted that the real reason that the original
photocopy has never been produced is that it does not and did not
ever exist and
that the photocopy in evidence is the result of some form of documentary
manipulation or cut and paste in order to
place Mr Wellner's name on the foot of
the document. (Forensic evidence adduced by CHPL simply confirmed that without
the original
or the original photocopy it could not be determined whether this
was a true copy of the original.)
- As
to (iv), it does not seem to be disputed that the first time the copy of the
handwritten document was produced was on the occasion
before the Tribunal when
Dr Kopas' then solicitor (Mr Baker) produced it to Mr Wellner on 14 December
2005. Dr Kopas believed that
this took place in the conciliation room at the
Tribunal. A copy was not provided to CHPL's lawyers until 22 December 2005.
- It
is submitted that if there really was such a 1992 Agreement it is extraordinary
that it was not called in aid earlier and that
the explanation in paragraphs
122-123 of Dr Kopas' 2009 affidavit (that Mr Wellner had "the collateral purpose
of ascertaining if
I still possessed my copy of the 1992 Agreement") makes no
sense. I agree.
- There
was a suggestion that reference had been made to the 1992 Agreement in the
submission made by Dr Kopas to Member Dellar in 2002
but it seems that what was
in fact referred to was the single typed page. Reference is made by Ms Sibtain
to T 129-131 and to the
acknowledgment by Dr Kopas that the later submission of
10.01.03 (Ex L) referred only to the typed letter of 30 April 1992:
Q. And the document that you are talking about
A. Was the page number 4. [ie the 30 April 1992 letter]
Q. And that's the only document you handed up to Mr Dellar, page number 4,
isn't it?
A. That's the only document. We didn't want that's the only document. We
didn't want to hand any other thing.
- As
a matter of logic, Dr Kopas would have had no need to resort to the strategy of
setting up Mr Wellner or attempting to catch him
in a lie - the agreement, if it
existed, would speak for itself whether or not Mr Wellner had denied it and the
suspicion that Mr
Wellner was on a fishing expedition also seems to be beside
the point - either there was an agreement or there was not.
- Mr
Maroya submits that the 2001 Tribunal application was not in relation to the
quality of the tenancy and hence that it was not necessary
that the 1992
agreement be disclosed at that time. In that regard, Mr Maroya places weight on
Mr Wellner's concession in cross-examination
that the 2001 Tribunal proceedings
were "not a question about a tenancy". However, I do not accept that they were
proceedings in
respect of which the 1992 Agreement, had it existed, was wholly
irrelevant. Dr Kopas was initially seeking orders for compliance
with the 2000
Agreement (which on his case operated as an amendment to the 1992 agreement) but
when asked to identify the agreement
on which he relied for his rights he
produced only the 30 April one page document: he then pursued a claim for
non-economic loss
without apparently relying upon the very agreement under which
he would arguably have had an entitlement to support such a claim.
(In passing I
note that insofar as Mr Wellner made any concession as to the matters in dispute
in the 2001 Tribunal proceedings,
that is something on which I am in a position
to form my own view. Mr Wellner's view on this issue is not relevant to the
issues
for determination.)
- I
consider that the bringing of the application solely in Dr Kopas' name and the
failure to refer to the 1992 agreement tells against
Dr Kopas case. Not only was
there no disclosure of the fact (if it be the case) that Mrs Kopas was a joint
tenant but also Dr Kopas
did not disclose the 1992 agreement when directly asked
to identify the agreement on which he relied (even though the alleged 1992
agreement contained provisions for the carriage of repairs and on his version of
events was the only lease agreement on foot, hence
his claim must have been
based on that agreement) and even though the proceedings by CHPL would seem to
be in breach of the provisions
of the 1992 agreement. The later reliance on the
2000 agreement also made no reference to an earlier 1992 agreement.
- I
note that Mr Maroya relies on the fact that after 1992 there were instances
where Notices of Termination or other correspondence
were addressed to both Dr
and Mrs Kopas and that the rent ledgers made reference to both of them (as
indicative of a recognition
by the landlord's agent that there was in fact an
agreement under which both of them had the status of tenants). Mr Wellner's
evidence
was that this could have been a matter of courtesy (T 49); it might
also have been an oversight or mistake on the part of the agency.
An explanation
proffered for the rent ledgers is that rental payments were received at least on
occasion from a joint account and
it was surmised that the computer records had
been changed to reflect that fact.
- It
is submitted by Ms Sibtain that the rent ledgers (at tabs 112, 116 and 130 of
the tender bundle) show the tenant as Dr Kopas alone
and that the reference to
both Dr and Mrs Kopas is a reference to the payer of the rent, reflecting the
fact that rent is commonly
paid from cheques drawn on a joint bank account
(referring to T 45.42).
- Whatever
be the case in relation to the agent's computer records, I do not consider that
the (inconsistent) communications and correspondence
with both Dr and Mrs Kopas
in relation to the tenancy (as opposed to with Dr Kopas alone) is sufficient to
overcome the factors itemised
above which point to the conclusion that there was
no 1992 agreement as alleged.
- I
also note that, despite the importance now said to have been placed on Mrs Kopas
herself becoming a tenant (for life), there was
no reference to this in the
alleged 2000 Agreement or in the later 8 May 2001 application by Dr Kopas to
rely on the 2000 Agreement.
Nor is there a reference to it in the statutory
declarations of Dr Kopas and David Kopas in relation to that application
(Exhibits
D, E, F). (Ms Sibtain refers to the cross-examination of Dr Kopas on
this issue at T 101-104).
- Mr
Maroya also relies on the fact that after the alleged agreement was executed,
the rent arrears were paid and Dr Kopas forewent
any claim for compensation in
relation to the roof damage. For CHPL it is suggested that the so-called "roof"
claim was simply an
attempt to obtain leverage in the face of the difficult
position Dr Kopas was in by reference to the rental arrears and the order
for
possession that had been obtained. While I accept that there was a bona fide
concern in relation to the roof damage (and Mrs
Kopas spoke with some emotion as
to the damage sustained to her antique lace items), the fact that it was not
pursued could equally
be consistent with CHPL allowing Dr and Mrs Kopas to
remain in occupation of the premises without that occupation necessarily being
pursuant to a life tenancy.
- Mr
Wellner's response to the Tribunal in 2005 when he was shown the document with
his signature is not surprising if, as his evidence
suggests (and as Dr Kopas
seems to have been anxious to ensure would be the case), he was confronted
without warning with a handwritten
document the provenance and content of which
he had not had the opportunity to verify. At most it seems to me that Mr
Wellner's response
suggests that he would not be able to deny he may on occasion
have signed (perhaps by way of identification) notes of discussions
with Dr
Kopas - but it does not seem to me to warrant a finding that his denial in
relation to the agreement is false. (Nor does
the speculation that it might have
been signed in a previous "conciliation" assist, because although he was not
involved in any formal
conciliation with Dr Kopas prior to 1992 it is not clear
when he gave the answer in 2005 that he was referring to a conciliation
prior to
1992 as opposed to suggesting that this might have been a document of
discussions at some time after 1992 but before 2005;
moreover it is not clear
that his reference to a 'conciliation' was meant to be a reference to a formal
conciliation discussion.
As I understood Mr Wellner's evidence, what he was
surmising was that this could have been a document of the kind that he might
have
signed as a record of a discussion but that he did not sign anything of
this kind as recording an agreement (and that would be consistent
with his usual
practice of putting important tenancy documents into writing).
- I
find it inconceivable that if Mr Wellner, as a responsible and professional real
estate agent (with no apparent personal benefit
to be obtained from the grant or
otherwise of a life tenancy or the resolution of the tenancy disputes with Dr
and Mrs Kopas), had
left the meeting on 29 April 1992 knowing that he had
offered a life tenancy to Dr and Mrs Kopas and that it had been accepted by
them, that he would not then have proceeded to draw up a formal tenancy
agreement to that effect.
- For
CHPL, reliance was placed on the evidence of Mr Kemeny (the managing director of
the business known as Raine & Horne Bondi
Beach from about 1989 to 2004)
whose affidavit of 2 May 2008, on which he was not cross-examined, deposes to
experience holding a
real estate licence for about 35 years and the practice
within the office of Raine & Horne Bondi Beach during the time that he
was
managing director. At paragraph 10 he deposes to the practice within the office
that it is the landlord, through the property
manager that ordinarily prepares
any lease documentation in relation to residential property and that invariably
it is done by execution
of a standard printed form document. He does not recall
any instance of such a document being prepared by the residential tenant
rather
than by or on behalf of the landlord and says he is not aware of any instance of
a handwritten lease document being executed.
In his view, preparation of a
tenancy-related document in the manner of the handwritten 3 page document as it
appears on its face
would be contrary to prudent agency practice and the
practice within Raine & Horne Bondi Beach while he was managing director.
- Mr
Kemeny said (in paragraphs 6-7 of his affidavit):
6. I had never
seen the handwritten copy document or the transcript version before it was shown
to me on 17 April 2008. In fact, I
had never before seen a document even
remotely like that document in its terms. I regard the document as being
extraordinary in its
language and content and I am quite certain that I would
recall such a document if I had previously seen it.
7. Similarly, the first time that any mention was made to me of the claimed
existence of such a document was in the last year or two,
during the current
court proceedings. At no time before then was mention ever made to me, including
by any property manager working
for me at Raine & Horne Bondi Beach, of such
a document.
- Mr
Maroya submits that there was no evidence as to the management of files within
the Raine & Horne offices. However, Mr Kemeny's
evidence as to office
practice suggests that if Mr Wellner had executed the handwritten document as a
tenancy agreement then it was
contrary to the then managing director's office
policy and prudent office practice. Moreover, it would have been contrary to Mr
Wellner's
usual practice, to which he deposed in paragraph 29 of his affidavit,
of ensuring that important tenancy documents were typed and
signed in the
presence of a witness with the witness also signing the document. There is no
reason put forward (other than the alleged
lateness of the hour at which the
meeting concluded) to explain any deviation from standard practice in this
instance.
- On
the Kopas' case, either Mr Wellner or someone else must have destroyed or
concealed the original of the document as it has not
been produced. To the
extent that reliance is placed on knowledge by Mr Owen and Ms Kwawegen of the
existence of the agreement that
knowledge can only have been obtained by them
from a document on the file or what had been said to them by Dr Kopas himself
(thus
self-serving). They deny such knowledge. Ms Sibtain submits that if the
document was on the file for Mr Owen and Ms Kwawegen to know
of, then it is
inexplicable that Mr Kemeny (as the managing director of Raine & Horne)
would never have seen it. As noted earlier,
insofar as Dr Kopas' version of
events requires me to assume that a practice of concealment and dishonesty on
the part of successive
professional real estate agents with no apparent personal
interest in the proceedings, I am not persuaded that such a conclusion
is
warranted.
- Conclusion as
to existence of agreement in fact
- I
am not satisfied on the balance of probabilities that the handwritten 3 page
document was signed by Mr Wellner on 29 April 1992
nor am I satisfied that the
document records a binding agreement for the grant of a life tenancy to Dr
and/or Mrs Kopas.
- I
find that the only agreement entered into by Mr Wellner (on behalf of CHPL) on
29 April 1992 was an agreement with Dr Kopas for
the withdrawal of Dr Kopas'
application for compensation and for the Kopas family to be permitted to remain
in occupation of the
premises (which the parties sought to achieve by Mr Wellner
purporting himself to rescind the Tribunal orders made in the landlord's
favour
on 16 April 1992), on the basis of Dr Kopas' payment of the rental arrears and
Mr Wellner's undertaking that the landlord
would effect the roof repairs as soon
as possible.
- Strictly
speaking, therefore, the question of authority to enter into the 29 April 1992
agreement as alleged, does not arise.
- Had
I found that there was an agreement reached in fact between Mr Wellner and one
or both of Dr and Mrs Kopas on the terms of the
3 page handwritten document,
then the question of Mr Wellner's authority to bind CHPL would have arisen.
- The
Management Agency Agreement provides strong evidence of a lack of actual
authority. Under that agreement the authority of the
agency to bind CHPL to a
lease was clearly limited to a short term (6 month) agreement. There is nothing
to suggest that the scope
of that actual authority was widened in the space of
just over a year. Mr Wellner's evidence as to the lack of authority or
instructions
to bind CHPL to a life tenancy is credible. I find there was no
actual authority in this case.
- As
to ostensible authority, CHPL permitted Mr Wellner to hold himself out to
tenants of its property in Rose Bay as having authority
to bind it to matters
falling within the day to day aspects of property management - so, for example,
Mr Wellner (and later other
real estate agents) signed notice of rental
increases, signed notices of termination, notified Dr and Mrs Kopas of occasions
on which
access to the premises was required for the purposes of repairs or work
to the back yard, signed applications to the Tribunal and
attended at
conciliation and other hearings at the Tribunal without any suggestion that
there was no authority for them to do so.
Does this extend to a holding out to
commit CHPL to long term tenancy arrangements such as the alleged 1992
Agreement?
- In
Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) & Anor
[1964] 1 All ER 630, Diplock LJ explained that [at 644]:
...
"apparent" or "ostensible" authority, on the other hand, is a legal relationship
between the principal and the contractor created
by a representation, made by
the principal to the contractor, intended to be and in fact acted on by the
contractor, that the agent
has authority to enter on behalf of the principal
into a contract of a kind within the scope of the "apparent" authority, so as to
render the principal liable to perform any obligations imposed on him by such
contract.
- The
test was stated by Diplock LJ [at 646] as follows:
It can be
summarised by stating four conditions which must be fulfilled to entitle a
contractor to enforce against a company a contract
entered into on behalf of the
company by an agent who had no actual authority to do so. It must be shown: (a)
that a representation
that the agent had authority to enter on behalf of the
company into a contract of the kind sought to be enforced was made to the
contractor; (b) that such representation was made by a person or persons who had
"actual" authority to manage the business of the
company either generally or in
respect of those matters to which the contract relates; (c) that he (the
contractor) was induced by
such representation to enter into the contract ie
that he in fact relied on it; and (d) that under its memorandum or articles of
association the company was not deprived of the capacity either to enter into a
contract of the kind sought to be enforced or to
delegate authority to enter
into a contract of that kind to the agent.
- In
Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91, in considering the circumstance in
which a claim for breach of warranty of authority would lie, the High Court
commented that in
the area of real estate agency, there is limited scope of a
real estate agent to make such a warrant of authority, because a real
estate
agent rarely has any authority to enter into a contract binding upon the
principal and that, more often, a real estate agent
does little more than
represent the principal. Nevertheless it was recognised that there were
circumstances in which such a warranty
of authority might be seen to have been
given - including where a managing agent of real property has authority to enter
leases and
engage tradespersons.
- Here,
the scope of the activities that Mr Wellner (and the Raine & Horne agency)
was permitted to do on behalf of CHPL seems to
have covered matters not only to
do with access arrangements for the premises and rental increases, but
appearance at the Tribunal
to enter into conciliation hearings and the like. It
seems to me that there has been a holding out by CHPL that Mr Wellner (or those
after him at the agency who were designated as the property agent) had authority
to commit CHPL to matters relating to the tenancy
of the property and that in
the absence of an express limitation on that authority made clear to the tenant,
there was ostensible
authority to enter into a tenancy agreement (even one as
unusual as the one for which Dr Kopas contended).
- Therefore,
had I found that there was an agreement reached for the grant of a life tenancy,
I would have found that Mr Wellner had
ostensible authority to bind CHPL to its
terms (as unusual as they were).
- It
is submitted by Mr Maroya that if there were not to be found that Mr Wellner had
actual or ostensible authority to enter into the
1992 Agreement on CHPL's
behalf, it should nevertheless be found that Mr Wellner's execution of the 1992
Agreement was ratified by
CHPL such that the agreement is valid and effectual,
as if authorised by the principal in the first place. Again, this issue does
not
arise. However, for completeness, I note that if in the absence of actual or
ostensible authority in the present case I would
not have found that there had
been a ratification of the agreement by CHPL.
- In
Firth v Staines [1897] 2 QB 70 at 75, Wright J set out the three criteria
necessary to establish a valid ratification of an agent's act, those being that
the agent
whose act is sought to be ratified must have purported to act for the
principal; at the time the act was done the agent must have
had a competent
principal; and that at the time of the ratification the principal must have been
legally capable of doing the act
himself.
- Mr
Maroya accepts that in order for it to be said of a principal that he or she has
ratified the agent's act, it is necessary to demonstrate
that the principal had,
at the time of the ratification, knowledge of all the material circumstances
relevant to the act in question
(including that the principal was apprised of
the circumstances upon which to make a decision whether or not to ratify, citing
De Bussche v Alt (1878) 8 Ch D 286 at 313); noting that the principal may
not close his or her eyes to the obvious (Morison v London County Westminster
Bank Ltd [1914] 3 KB 356 at 385.)
- In
Harrisons and Crossfield Ltd v London and Northwestern Railway Co [1917]
2 KB 755 at 758, Rowlatt J said that ratification "is implied from or involved
in acts when you cannot logically analyse the act without imputing
such approval
to the party whether his mind in fact approved or disapproved or wholly
disregarded the question". This has been cited
with approval by the Court of
Appeal in Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [132].
Mr Maroya also notes that ratification may be implied from acquiescence in
conduct, where that acquiescence amounts to an adoptive
act (referring to
Tobin v Melrose [1951] SASR 139 at 147 per Ligertwood J).
- Here
it is said, and I accept, that Mr Wellner (pursuant to the pre-existing agency
relationship between CHPL and the Raine &
Horne agency) can only have been
purporting to act for CHPL; that CHPL was a competent principal and that it was
capable of granting
Dr and Mrs Kopas the type of life tenancy provided for in
the terms of the 3 page handwritten document. However, I do not accept
that
there was any implied ratification of that agreement, by acquiescence or
otherwise, bearing in mind that for such ratification
it would be necessary to
establish that CHPL was apprised of all the relevant circumstances in relation
to the decision to ratify
(or had taken steps consistent only with an acceptance
of the agreement).
- Mr
Maroya submits that the course of conduct after the signing of the 1992
Agreement between Dr and Mrs Kopas and Mr Wellner on behalf
of CHPL, during
which the substantial terms of the 1992 Agreement were performed, is amenable to
characterisation as a ratification
of Mr Wellner's agency. It is submitted that
one cannot logically analyse the post 1992 conduct without imputing such
approval on
CHPL's part. I have difficulty with that proposition.
- The
acts involved in receipt of rent and repair of the roof (and in permitting the
Kopas family to remain in occupation of the premises
in April 1992 rather than
enforcing the eviction order) would equally be referable to the then existing
tenancy arrangements being
revived following the agreement comprised in the 30
April letter and no more.
- Insofar
as Mr Maroya relies on the absence of any evidence of prompt disavowal on CHPL's
part of Mr Wellner's alleged act of agency,
there is no evidence to suggest that
CHPL became aware of the alleged act (ie the purported conferral of a life
tenancy) at any time
prior to 2005 (if it indeed became aware of it at that
time). Mr Wellner immediately disavowed any such agreement when it was alleged
before the Tribunal in 2000 and there is no suggestion that CHPL became aware of
that any earlier or had in any way affirmed the
existence of a life tenancy (or
acted in a way logically consistent only with adoption of such an arrangement).
- Therefore,
had I found that the 1992 Agreement was in fact reached by Mr Wellner with one
or both of Dr and Mrs Kopas at the 29 April
1992 meeting, then I would have
accepted that it was an agreement falling within the scope of Mr Wellner's
ostensible authority but
that if there were in fact no actual or ostensible
authority, then I would not have found that there had been any ratification by
CHPL of Mr Wellner's conduct in relation to the entry into any such agreement.
- Again,
the question of the enforceability of the alleged 1992 agreement by reference to
the areas in which it is said to be uncertain,
does not arise in view of the
findings I have already made. However, and again for completeness, I address
briefly the alleged defence
based on uncertainty.
- The
alleged uncertainty arises from the various parts of the agreement noted earlier
in these reasons. It seems to me that there is
a distinction to be drawn between
uncertainty as to the rent payable over the term of the tenancy (rent being,
even if not strictly
an essential term of a lease, then a term uncertainty as to
which can render void an agreement to lease) and uncertainty as to some
of the
other matters of which complaint is made (such as what is meant by 'promptly' in
the context of the agreement provisions or
those parts of the agreement which
seem designed to operate as penalties - such as what is meant by 'trickery'). In
that regard,
I would be inclined to see the obligation to pay rent in an
ascertainable amount (whether by reference to the tenancy agreement or
by
reference to a clearly identified mechanism external to the lease) as something
fundamental to a tenancy agreement (since it surely
goes to the root of the
contract from the point of view of the landlord other than in a lease where the
tenant has rent-free occupation).
- Where
there has been a failure to agree an essential term, then the contract will
fail, and it will not be a question of the court
striving to find a workable
operation for the contract - thus in Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445,
an agreement for the grant of a lease "upon such reasonable terms as commonly
govern such a lease" failed because there was no means
of determining the rent
payable (nor for determining the length of the lease).
- True
it is that the court will strive to give a reasonable meaning to a contract to
enable it to stand ( Hillas v Arcos Ltd [1932] UKHL 2; (1932) 147 LT 503 at 514 being
oft quoted in this regard, and will seek to uphold commercial arrangements
between parties (see Macfarlan J in Prints for Pleasure Ltd v Oswald-Sealy
(Overseas) Ltd [1968] 3 NSWR 761), where the parties have failed with
sufficient certainty to agree the essential terms of their agreement or where
there is no mechanism
to supply meaning to a term such as the payment of rent,
then it seems to me that this is fatal to the enforceability of the contract.
- Here,
the Kopas case is that the 1984 residential lease was terminated in 1992 (and
did not revive). The 1992 agreement for which
they contend simply provided that
Dr and Mrs Kopas agreed to "pay the appropriate rent promptly". No rent was
specified. Failure
to pay the "appropriate" rent for a 90 day consecutive period
(a very lengthy period of grace when one considers that the initial
lease
provided for fortnightly rent and the holding over tenancy was on a monthly
basis) gave CHPL the "right to pursue Kopas for the amount owed in the
appropriate jurisdiction and pursue termination of lease in the Supreme
Court for breach + costs if they so choose".
- Even
more problematic is the suggestion that the failure of the agent "to accept
appropriate rent" and or to " reject rent payments"
will be a breach and "will
imply an offer of free rent - Gratis - for the rest of the tenancy" (which, not
surprisingly perhaps especially
since Dr Kopas seems to have prepared the
document, the Kopas will "automatically accept". CHPL is given simply a 30 day
notice to
give it a chance to remedy in order to avoid such a result. Even apart
from the sheer implausibility of a professional property manager
agreeing to
such a provision, the uncertainty of it is obvious. How would a property manager
ever know whether refusal to reject
an amount of rent tendered as "appropriate
rent" by Dr Kopas was a breach of the lease?
- Had
it arisen, I would have been inclined to the view that there was sufficient
uncertainty as to the amount of rent payable over
the term of the life tenancy
to preclude a finding that there had been a binding agreement entered into on 29
April 1992 or that
such any such agreement that had arisen was enforceable. I do
not consider that the fact (as suggested for Dr and Mrs Kopas) that
an
application might be made to the Tribunal for a rental determination under the
Residential Tenancies Act would overcome the difficulty that no provision
has been made other than for payment of "appropriate" rent (and, on the Kopas
case,
the Residential Tenancies Act itself would not apply as the
premises are controlled premises, so one would be left to the determination of
the rent under that legislation).
- The
fact that "appropriate" is too vague is indicated by Dr Kopas' assertion in the
witness box that it was linked to the condition
of the flat when that had not
been stated in the document.
- As
to whether the agreement would be amenable to an order for specific performance,
Mr Maroya submits that as the 1992 Agreement is
in writing, and is supported by
the consideration of mutual promises and releases of the claims in the Tribunal
proceedings, any
"uncertainty" in the 1992 Agreement (in the sense complained of
by CHPL in paragraph 23 of its Defence to the Further Amended Statement
of
Cross-Claim) is a complaint ex post facto and is not capable of
preventing the specific performance of the agreement. It is noted that rent has
been paid (whether punctually
or otherwise is not clear, but no issue seems to
be taken on this point in relation to the uncertainty defence) and increased
from
time to time (most recently, although this is itself the subject of
dispute, in 2008). Mr Maroya submits that if there ever were
any uncertainty
(which is not admitted), the parties have been and are able to resolve it
amongst themselves.
- There
is, however, a distinction between a situation where uncertainty as to an
essential term leads to the conclusion that no binding
agreement has come into
existence and a situation where there is an agreement but the question is
whether one or more of its terms
renders it too uncertain to be enforced (or, as
in Parker , whether the uncertainty is such as to make a decree of
specific performance impossible). In the case of uncertainty as to the rent
payable, my view is that the uncertainty prevents the conclusion that there is a
binding agreement. The fact that there have been
rent increases (calculated off
the base of the initial provisions I assume) over the period does not seem to me
o answer the difficulties
inherent in the regime apparently contemplated by the
1992 Agreement.
- As
to the other aspects of the alleged agreement that are said to be uncertain, I
would have been inclined to the view that a number
of those (such as what was
meant by 'promptly' or 'bad faith' could be resolved by resort to common sense.
However, there is force
in the submission that, taken together, they make it
objectively unlikely that Mr Wellner would have accepted the terms of this
agreement
on the basis that on their face they are so uncertain - for example,
Dr Kopas made reference on a couple of occasions to how things
were 'as defined'
in the contract (when questioned as to what was meant by "bad faith", "trickery"
T 91). There are no such definitions.
CHPL could be forgiven for complaining
that it would not know at any time whether it might be asserted that it was in
breach of the
agreement in that regard (see for example at T 91, Dr Kopas said,
when asked if CHPL had acted in bad faith from 1992 to 2002, "Not
as we defined
it in this contract. It might have been bad faith but not as defined in the
contract. In my opinion they were deceptive
but not engaged in trickery as
defined in the contract"). The result of such 'trickery' or 'slight [sic] of
hand' is said to be a
demand may be made for restitution of all rent paid since
1984 "regardless the time passed", seemingly to an (orally specified) rate
of
interest, and the rent reverts to $93 per week (on top of which there will be
'unspecified substantial damages').
- Would
agreement be amenable to specific performance?
- Insofar
as Mr Maroya submitted that the 1992 Agreement was amenable to an order for
specific performance (referring to Chan v Cresdon [1989] HCA 63; (1989) 168 CLR 242 and
Watson v Delaney (1991) 22 NSWLR 358 at 366B); being couched in the
language of an instrument intended to create binding legal relations (noting
that it recorded an 'offer'
and 'acceptance' of the terms on which a right to
possession of the premises for the joint lives of Dr and Mrs Kopas (plus 90
days)
is granted), I accept that one might be able to prepare a registrable
lease containing the substantive lease terms (though I would
not envy the
draftsperson). I accept that the wording of the document seems on its face
intended to confer upon Dr Kopas and Mrs
Kopas the rights of tenants for that
period (citing Borambil Pty Ltd v O'Carroll [1972] 2 NSWLR 302 at 306-7,
per Jacobs JA; Greco v Swinburne Ltd [1991] VicRp 23; [1991] 1 VR 304 at 313-16). (In
Borambil , the court held that the Fair Rents Board had been in error in
determining that premises held under a lease for life were not for
a fixed term
within the meaning of the Landlord and Tenant (Amendment) Act .)
- Any
order for specific performance could not, however, encompass the execution of a
lease that contained what on their face seem to
be undeniable penalty clauses.
That seems to be conceded for the defendants, it being submitted by Mr Maroya
that to the extent that
the clauses in Part C that may constitute penalties,
they are only subordinate matters (there adopting the terminology of Lord
Chelmsford in Parker v Taswell ), and should not stand in the way of the
specific enforcement of the substantial parts of the Agreement going to the
terms of Dr
and Mrs Kopas' right of occupation (citing, Parker v Taswell
[1858] EngR 730; 2 De G & J 559 at 571-72; [1858] EngR 730; 44 ER 1106 at 1111, per Lord
Chelmsford; Meagher, Gummow and Lehane (4 th ed.) at [23-045]).
- In
Parker v Taswell , Lord Chelmsford distinguished the situation where
there was nothing to show how a provision in the contract (which was not an
insignificant
part of the contract nor a mere subordinate matter nor the
principal object of the contract) was to be given effect.
- I
accept that had there been an agreement reached on all essential terms of a life
tenancy, including rent, and was sufficiently certain
to be enforceable, then it
would be amenable to an order for specific performance and the fact that it had
not been formally executed
would not preclude it amounting to an enforceable
residential tenancy agreement pursuant to s 13 of the Residential Tenancies
Act . (Of course, this submission by Mr Maroya was on the assumption that
the protected tenancy allegation did not succeed, since if it
does the
Residential Tenancies Act does not apply to the tenancy.)
- Therefore,
in my view the alleged agreement (had I found it to have been reached) is too
uncertain as to rent to be enforceable but,
were that not to be the case and had
I found that there was a binding agreement in the terms of the handwritten
document, then (subject
to the laches defence) I would have considered this
agreement amenable to an order for the specific performance of the agreement
but
omitting those parts which I consider to be clearly penal in nature (in the
main, this being part (C) but also the closing paragraph).
- As
to the defence based on laches and delay, Mr Maroya submits that the particulars
to paragraph 25(1) of the Defence to the Further
Amended Statement of
Cross-Claim do not enliven the plea of laches. Those particulars refer to the
fact that documents available
relating to the 1992 dealings between the parties
are wholly or largely limited to such documents of which Dr and Mrs Kopas have
given discovery in the present proceedings. It is submitted by Mr Maroya that no
prejudice is pleaded, and that the evidence does
not disclose any.
- Mr
Maroya noted that laches does not of itself necessarily constitute a bar to a
claim for specific performance ( Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
at 433 per Dixon C] and Fullagar J; Meagher, Gummow and Lehane (4 th ed.)
at [36-030], referring to what was said in Fry on Specific Performance (6
th ed.) at paragraph 1110:
Where the contract is substantially executed, and the [applicant for specific
performance] is in possession of the property, and has
got the equitable estate,
so that the object of his action is only to clothe himself with the legal
estate, time either will not
run at all as laches to debar the [applicant] from
his right, or it will be looked at less narrowly by the Court, for the
[applicant]
has not been sleeping on his rights, but relying on his equitable
title, without thinking it necessary to have his legal right perfected
and at paragraph 1111:
Therefore, where a tenant holds under a contract for a lease, pays his rent,
and has possession of the property and the enjoyment
of the benefits given him
by the contract, the effluxion of time will not be a ground for resisting its
enforcement.
- Ms
Sibtain, however, noted that Fry goes on to say at paragraph 1112:
But possession, to save a purchaser from the usual consequence of delay, must
be possession under the contract sought to be enforced,
and the vendor must have
known or be bound to know that the purchaser claimed to be in possession under
the contract.
- Ms
Sibtain relies on this passage in circumstances where it is said (and on my
findings it is the case) that no one at CHPL or on
behalf of CHPL had any reason
to expect that the 1992 agreement was claimed to be in existence until 2005,
when it was immediately
disavowed by Mr Wellner.
- Has
there been laches? More than mere delay in asserting the rights under the 1992
Agreement is necessary - there must have been unreasonable
delay and substantial
detriment to CHPL by reason of that delay, so as to make it unjust or
inequitable for the claim to proceed
or the remedy to be asserted ( Lindsay
Petroleum co v Hurd (1874) LR 5 PC 221; Erlanger v New Sombrero Phosphate
Co (1878) 3 App Cas 1218; and see discussion in On Equity , Young,
Croft and Smith para [17.80ff].
- In
On Equity , the authors note that a risk of disadvantage or prejudice to
the defendant will not be sufficient and that the question is whether
the
defendant is in a substantially worse position if proceedings are brought now
rather than previously (see discussion from 17.130
in which the authors note
that the detriment may be forensic nature - where evidence is lost because or
witnesses become unavailable
or lose their memory or documentary evidence is
lost or has been destroyed). The authors say:
The question, however, is not whether any evidence has been lost, but whether
evidence which may have been "cast a different complexion
on the matter" has
been lost
noting that the matter calls for some peculation but is not a matter of pure
speculation and citing Orr v Ford [1989] HCA 4; (1989) 167 CLR 316.
- Here,
albeit that the pleading may have been infelicitously pleaded in this regard, it
seems clear that what is being asserted by
CHPL is that, by reason of the delay
on Dr Kopas' part in raising the existence of the 1992 Agreement (or perhaps his
delay in raising
the existence of an alleged written agreement, as opposed to
more general assertions that the landlord could not get rid of him),
evidence
from the real estate agent and from the Tribunal which may have cast a different
complexion on the evidence (as even the
absence of documentation in the agency's
file would do, if one could be confident it was a complete file) has been lost.
In the Tribunal's
case, records are routinely kept only for a limited period
(and no transcript of proceedings is available).
- The
delay is, on any view, lengthy. The first occasion on which the alleged
agreement might reasonably have been expected to be produced
was in 1993 when
conduct occurred that would have amounted to a breach of the agreement. Dr Kopas
claims to have objected at that
stage but I accept Mr Wellner's evidence that no
copy of the written agreement was produced at that time. In any event, in
2000/2001,
Dr Kopas was directly asked by the Tribunal to identify the agreement
on which he relied (and directed to produce copies of the documents
on which he
relied). He deliberately chose only to produce the one page typed letter. His
reasons for not producing the three page
handwritten document (assuming in his
favour that it was in existence, for the present purposes) are disingenuous in
circumstances
where it is now contended that the one page letter formed part of
a four page agreement which comprised those three pages. In essence,
what Dr
Kopas did (on his own version of the case) is to produce an incomplete copy of
the agreement on which he was relying in response
to the direction made by the
Tribunal.
- As
a result of the delay any relevant Tribunal records have now been lost (since
those are not kept beyond 7 years), Mrs Celemajer's
cognitive ability has been
significantly impaired (whether she could have given evidence had the matter
been raised in 2000/2001
is unclear but it seems reasonable to think that she
would have been better placed in 1993 to give instructions and/or to give
evidence
as to the matter had she then been asked to do so (as her diagnosis of
Parkinson's disease was then only fairly recent) and it is
reasonable to assume
that the tenancy files and recollections of the property management agents would
have been more readily available
and more acute.
- It
seems to me that there is a sufficient basis to infer that evidence which may
have cast a different complexion on the matter has
been lost.
- While
reference was made by Mr Maroya to the observations of Lord Chelmsford in
Parker v Taswell (to the effect that where possession of premises has
been taken by or under a contract, the court will "strain its power to enforce
a
complete performance" [1858] EngR 730; (2 De G & J 559 at 571; [1858] EngR 730; 44 ER 1106 at 1111), here the
case is one where Dr and Mrs Kopas are seeking, in effect, to maintain a right
to remain in the premises to the
exclusion of the landlord for the rest of their
lives without (in view of my factual findings) having drawn to the attention of
the
landlord's agent until some 13 years after they say it was reached the terms
of the agreement on which they rely for the right to
possession. In those
circumstances I do not consider the case to be one in which the court should
strain unduly to find an enforceable
contract.
- The
prejudice to CHPL, it seems to me, is obvious. It cannot obtain evidence from
Mrs Celemajer as to what was or was not said to
her at the relevant meeting or
thereafter; the so-called 'original' copy of the handwritten document is no
longer available (having
been destroyed by Dr Kopas) so cannot be forensically
tested; the records of the Tribunal have been destroyed and records that might
otherwise have been available at the agency have not been kept. All this while
Dr Kopas not only deliberately refrained from producing
any copy of the
agreement but positively asserted to the Tribunal that the agreement he relied
upon was something other than the
agreement now put before the Court.
- The
conduct of Dr Kopas in deliberately not drawing attention to the handwritten
document (in order to catch Mr Wellner in a lie or
to give the landlord or its
agent enough rope to hang themselves (when he has had every opportunity since
2000/2001 if not earlier
- as far back as 1993) to assert his rights and call
for an executed and registrable life tenancy is of relevance. This was a
deliberate
decision with the intent of achieving some form of forensic
advantage. That the reasons for the delay in asserting one's rights are
relevant
was recognised in Duke Group Ltd (in liq) v Alamain Investments Ltd
[2003] SASC 415.
- This
seems to me clearly to be a case of laches and would in my view preclude
enforcement of the alleged 1992 agreement. I note, of
course, that laches is
only available as a defence to equitable claims and would not operate as a
defence to claims for breach of
contract ( Orr v Ford ).
- Therefore,
had the issue arisen I would have upheld the defence of laches in relation to
the equitable claims in these proceedings.
(ii) Status of occupation of premises in light of finding that no 1992
Agreement as alleged
- What
then is the status of the occupation of the premises by Dr (and Mrs Kopas) in
the absence of any agreement in terms of the alleged
1992 Agreement? This turns
in the first instance on what was the effect of the 30 April 1992 letter. There
seem to be two possibilities
- either the Tribunal proceeded to vacate (or
rescind) all orders made on 16 April 1992 in relation to both the termination of
the
1984 lease and for possession of the premises (assuming that the orders were
made separately and not in composite form as summarised
in the 21 April 1992
letter), such that the holding over tenancy under the provisions of that lease
was in some way automatically
reinstated (as CHPL contends) and subsists until
it is terminated in accordance with its terms (as CHPL contends happened in
October
2005) or, following receipt of the 30 April letter, the most that the
Tribunal did was to rescind or vacate the order for possession
(as Dr and Mrs
Kopas contend - and hence the pleading in paragraph 25(i) of the Further Amended
Defence that the 1984 lease was terminated),
such that the 1984 holding over
tenancy remains terminated.
- In
the second scenario, in view of my finding that there was no 1992 Agreement, a
common law periodic tenancy must have arisen. It
seems to me most likely that
this was on the terms of the 1984 lease (as per the holding over tenancy in
place at the time of the
Tribunal's 16 April orders) either arising from the
agreement of the parties to rescind the order for possession (and, by
implication
from the reinstatement of the previous tenancy arrangements, on the
same terms as those arrangements (and hence a monthly tenancy
in Dr Kopas'
name). If not, then the alternative is that the common law periodic tenancy
arose from the acceptance of rent from time
to time over the years - a common
law tenancy of this latter kind being referable to the period for which rent is
paid (and in this
case it appears to be on a two weekly basis) - but with some
uncertainty as to what other terms were to govern the tenancy. It is
the
uncertainty in the latter scenario that inclines me to the view that the
periodic tenancy was one implied from the agreement
to 'rescind' the 16 April
orders and not proceed with the eviction (and thus, it seems, to treat the
holding over tenancy as reinstated.
- Mr
Maroya during submissions suggested that on this second scenario (ie where the
residential tenancy agreement had terminated but
there was no 1992 agreement,
there would be a tenancy at sufferance or at will. In Natural Gas & Oil
Corporation v Byrne & Boyle (1951) 68 WN (NSW) 207 , a lessee who
remained in possession after the expiration of the fixed term lease, without the
assent or dissent of the landlord
was said to be a tenant at sufferance. Here,
however, on any view, as at 29 April 1992 there was assent to the continued
occupation
of the premises and the acceptance of rent thereafter would give rise
then to the periodic tenancy. (In May v Ceedive Pty Ltd [2006] NSWCA 369,
Santow JA with whom Mason P and Beazley JA concurred, considering a tenancy
where there had been created a right to exclusive possession
for an indefinite
term, creating a tenancy at will, noted that on payment of rent it was a
periodic tenancy.) In the present case
the argument that there was a tenancy at
sufferance was not ultimately pressed.
- On
either of the two periodic tenancy scenarios, the tenancy would be terminable
(subject to the provisions of the Residential Tenancies Act or
Landlord and Tenant (Amendment) Act , depending on which is applicable)
on a period of notice corresponding to that periodic tenancy. Where doubt would
arise as between
the two scenarios is that where the tenancy arose from
acceptance of rent there would be an issue as to who precisely is the tenant.
(There is also an issue as to the period of time required for its termination at
common law though if the Residential Tenancies Act , the last point would
be moot as s 56 would specify the amount of notice required).
- There
is no evidence as to what the Tribunal did in relation to the letter of 30 April
1992 vis a vis the application by CPHL. (In
that regard, it seems to me doubtful
that the letter should be accorded a too-literal interpretation (ie as being
intended to apply
only to an order for possession of the premises and not to any
separate order that may have been made for the termination of the
lease. The
only pointer towards the interpretation advanced by Mr Maroya is the reference
to the eviction not proceeding but that
seems to me to require an assumption
(not warranted in my view) that Mr Wellner and Dr Kopas were using terms in as
very technical
sense and that the Tribunal would have interpreted or acted upon
the letter in that fashion. There is simply no evidence that the
Tribunal ever
did anything in relation to the 16 April orders.
- CHPL
relies upon the presumption of regularity for the proposition pleaded in
paragraph 17(a)(iii) of its pleading that on or shortly
after 30 April 1992 the
Tribunal revoked or rescinded (or should be taken to have done so) any previous
order made for termination
of the 1984 lease. It is said that the effect of the
30 April letter was to require or request the Tribunal to revoke or rescind
any
previous order for termination of the 1984 lease and that the absence of any
documentary record to the contrary allows such a
presumption to operate.
- Griffith
CJ in McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 at 850 approved
the formulation of the presumption of regularity by Brewer CJ in Knox County
v Ninth National Bank [1893] USSC 8; 147 US 91 at 97 (1893) that:
where an act is done which can be done legally only after the performance of
some prior act, proof of the latter carries with it a
presumption of the due
performance of that prior act.
- In
Minister for Natural Resources v New South Wales Aboriginal Land Council
(1987) 9 NSWLR 154 at 164 McHugh JA, as his Honour then was, stated the
maxim as follows:
Where a public official or authority purports to exercise a power or to do an
act in the course of his or its duties, a presumption
arises that all conditions
necessary to the exercise of that power or the doing of that act have been
fulfilled.
- Here,
the difficulty I see in suggesting that the presumption of regularity applies so
as to enable a conclusion to be drawn as to
what the Tribunal did or did not do
in 1992 on receipt of the 30 April letter is that it is not apparent that,
absent a formal rescission
or revocation of the orders made on 16 April 1992,
something else would have happened in relation to the tenancy. There is nothing
to suggest that there was any further act or exercise of power by the Tribunal,
conditioned on the revocation of the orders such
that one could say that for
that further act to have taken place the orders must have been rescinded. If,
for example, it was for
CHPL to take any further step for the implementation of
the eviction order before action was required by the Tribunal, then it is
not
apparent that the presumption of regularity would arise from the fact that the
orders were not enforced.
- In
any event, even assuming that the presumption applies and one can conclude that
the orders were rescinded or revoked, there is
no way of determining whether the
Tribunal would have construed the 'rescission' (implicitly) requested of its
orders as extending
simply to the so-called eviction order or as applying to all
orders in relation to the status of the tenancy.
- What
seems to me to be clear, however, is that the parties at the 29 April meeting
were in agreement that the Kopas family would be
permitted to remain in the
premises. Given my finding against there being an agreement in terms of the
handwritten document pursuant
to which such occupation was to be permitted, I
think it is reasonable to infer that what the parties objectively intended was
that
the tenancy would continue as it had done before the 16 April orders
(namely as a holding over monthly tenancy, with Dr Kopas as
the sole tenant). If
that tenancy was not in some way revived then this must mean that there was an
implied agreement arising from
the parties' acceptance that the tenancy should
be on the old basis. That seems to me to be the thrust of the parties' agreement
as represented in the letter of 30 April, namely that CHPL would, in effect,
treat the order for possession as rescinded; would not
proceed to have Dr Kopas
and his family evicted; and the parties would continue as if there had been no
termination of the holding
over tenancy.
- I
do not see the subsequent references to Mrs Kopas on the rent ledger (which
recorded receipt of payment of rent from Dr and Mrs
Kopas jointly, but named Dr
Kopas as the tenant) or in correspondence addressed in relation to the tenancy
(which I would be prepared
to accept was either a matter of courtesy, as Mr
Wellner suggested, or inattention to detail on the part of the agency) as an
admission
binding on CHPL that Mrs Kopas was herself a tenant of the premises. I
might have been more inclined to place weight on the nomination
of Mrs Kopas as
a tenant on some of the Notices of Termination and applications to the Tribunal,
had it not been for the inconsistency
in that regard and, significantly, the
fact that Dr Kopas' own application in 2000 did not refer to his wife as a
tenant (something
that might be thought would have been the case had he
understood her to be a tenant, as opposed to occupant of the premises, at the
time).
- Therefore,
whether or not the order that the lease was terminated remained on foot or was
rescinded or vacated by the Tribunal, the
position seems to me broadly to be the
same: in that the occupation of the premises (whether by an implied agreement to
reinstate
the holding tenancy or an actual reinstatement of that tenancy arising
from the vacation of all of the Tribunal's orders, on the
one hand, or by
reference to the payment of rent on a periodic basis on the other hand) is
pursuant to a monthly tenancy terminable
on one month's written notice (subject
to the provisions of the Residential Tenancies Act or Landlord and
Tenant (Amendment) Act , whichever is applicable).
- The
only relevant difference in this regard between the implied reinstatement of the
holding over tenancy and a periodic tenancy arising
at common law because of the
payment and acceptance of rent is that insofar as rent invoices may have been
issued to Dr and Mrs Kopas
jointly from time to time, and the payments were made
at least on occasions from a joint bank account, then this would suggest that
at
common law Mrs Kopas is a joint tenant and notice would have had to be given to
her to terminate the joint tenancy. However, the
evidence does not suggest that
payment was always made from a joint account with Mrs Kopas, which might cast
doubt on whether an
implication that she was a tenant, would have arisen in any
event.
- As
it is, I consider it more likely the parties did no more than assume that, once
the rental arrears were paid and the undertaking
was given for repair or
replacement of the roof, then the holding over tenancy which had been terminated
by the Tribunal's orders
was to be treated as having been reinstated.
- Accordingly,
I find that the occupation of the premises since 1992 has been a holding over
monthly tenancy, with Dr Kopas as tenant,
on the terms of the 1984 residential
lease as applicable to a holding over tenancy. Subject to the determination of
issue (iii),
that tenancy would be terminable under the provisions of the
Residential Tenancies Act , as in force prior to 31 January 2011 and the
notice of termination issued in October 2005 would be valid.
(iii) Protected tenancy claim
- Dr
and Mrs Kopas have pleaded, in the alternative, that the premises are controlled
premises and that Dr Kopas is a protected tenant
under the Landlord and
Tenant (Amendment) Act . The issue was raised by paragraph 4 of their
Further Amended Defence (as a plea made further or in the alternative to the
plea in
paragraph 3 of the Further Amended Defence that the provisions of the
1984 lease were superseded in about 1989 by the provisions
of the Residential
Tenancies Act 1987) and paragraphs 21 and 22 of the Further Amended Statement of
Cross-Claim.
- Pursuant
to s 98A of the Landlord and Tenant (Amendment) Act , once an issue is
raised as to the application of the Act, the onus lies on the party seeking to
deny the operation of the Act to
prove the facts necessary for such a conclusion
as a matter of law. That section provides as follows:
In any proceedings, civil or criminal, arising out of or taken under, or
purporting to arise out of or to be taken under, the provisions
of this Act in
respect of any premises:
(a) the premises shall be deemed to be prescribed premises, and
(b) the provisions of section 8 of Part 1, Part 2, Part 3 (other than
sections 85B to 87B, both inclusive) and Part 4 shall be deemed to apply in
respect of the premises,
unless the contrary is shown.
- In
Barilla v James, Wallace J observed at 748-49 that:
s 5A was inserted [into the Landlord and Tenant (Amendment) Act] by
Act No 46 of 1954 By this section it is provided that the provisions of Parts
II, III, IV and V do not apply in respect of a tabulated list of types of
dwelling-houses Still later (in 1958) paragraph (d) was added
to subsection (1)
of s 5A.
Stopping there it seems clear enough that the onus is on the landlord who
seeks to recover possession of a dwelling-house alleged
to be within the
provisions of s 5A to satisfy the appropriate court that such dwelling-house
falls within one of the tabulated types . (my emphasis)
- In
May v Ceedive Pty Ltd , the Court of Appeal confirmed that the onus lies
in a situation such as the present on CHPL and that the premises will be deemed
to be prescribed until the contrary is shown. By s 98A, therefore, Dr and Mrs
Kopas having contended that the Act applies, the onus rests upon CHPL to show
that the premises are not within
the operation of the Landlord and Tenant
(Amendment) Act (Abrahams v Senes and Buerger [1963] NSWR 1073 at 1077,
per Sugerman J). (In the context of the attempted reliance by Dr and Mrs
Kopas on evidence from the brother of a former and now deceased
tenant, Mr
Birzulis, Mr Maroya submitted that by reason of this it was not incumbent on Dr
and Mrs Kopas to plead anything other
than that this was a protected tenancy and
to invoke the statutory onus.) Mr Marshall did not dispute that the onus lay on
CHPL in
this regard (but, in relation to the Birzulis affidavit, contended that
it remained necessary under the Uniform Civil Procedure Rules (Part
14.14) for Dr and Mrs Kopas to plead any fact that would otherwise have caused
surprise. I consider this issue shortly).
- Relevantly,
the particulars provided of the allegation by Dr and Mrs Kopas that the 1984
lease amounted to a protected tenancy were
to the effect that the 1984 lease
satisfied the requirements of sections 5A and 5AA of the Act but had not been
registered under
s 5A (contained in paragraphs (a)-(c) of the particulars and
that (d) the residential lease that commenced on 19 November 1970 (that
being the prior lease to Mr Birzulis) and that was subsequently
registered by
CHPL on 25 January 1971 under s 5A of the Act is invalid because of (i)
incompleteness, uncertainty and/ or irregularity;
and (ii) that it had not been
legally and duly executed under s 5A of the Act.
- No
further particulars were provided as to the matters asserted in the particulars
(d)(i) and (ii) (although in the earlier iteration
of the pleading there were
particulars given of the alleged "uncertainty"). Those particulars were that
there was said to be uncertainty
as to the "legitimacy of timing" of a 1970
lease being registered in 1971; "uncertainty if [the tenant] was enticed
knowingly or
unknowingly to give up or forfeit rights" and/or whether there was
"some consideration like discounted rent"; as well as allegations
of uncertainty
and irregularity as to whether the provisions of s 5A(1)(d) were complied with
and whether the tenant was aware of
his legal rights; and a potential conflict
of interest on the part of the solicitor who certified the lease; and that the
"lessor
or agent may have likely misled the tenant about his legal rights"; and,
finally, uncertainty if the landlord had obtained vacant
possession prior to the
tenant commencing the lease). Ultimately, however, Dr and Mrs Kopas did not seek
to prove any of those matters
but rested on the statutory onus and contended
that CHPL had not proved that the premises were exempt by reference to s 5A of
the Landlord and Tenant (Amendment) Act .
- CHPL
denied the respective allegations that the premises were controlled (or
prescribed) premises (and that Dr Kopas is a protected
tenant) and has denied
that the 1984 lease operated (or operates) under Parts 2 to 5 of the Act
(paragraphs 20-22 of its Defence to the Further Amended Statement of Cross-Claim
and paragraph 2 of its Reply to the Further
Amended Defence) and went on to
assert, in its pleading, that:
(b) says further that, prior to the entering into of the 1984 lease the
premises were subject to a lease pursuant to s 5A(l)(e) of the 1948 Act
that was registered with the Department of Commerce, such that the provisions of
Parts 2, 3, 4 and 5 of the 1948 Act
then ceased to, and no longer, apply to the
premises in accordance with s 5A(1) of the 1948 Act. (my emphasis)
- It
is clear, therefore, that by its pleading CHPL denies that the Act applies to
the premises and invokes the existence of a prior
lease satisfying the
requirements of s 5A(l)(e) (not s 5A(1)(d)) as the basis on which the Act
is said not to apply to the premises. Where CHPL's position at the hearing
seemed to
depart from its pleaded case was that in its written submissions at
the commencement of the hearing, reference was also made to s
5A(1)(d) of the
Act and, in oral opening submissions, Mr Marshall made it clear that what CHPL
was invoking was that subsection (not subsection (e)).
- Mr
Maroya submits that where s 5A(l)(e) was pleaded and not s 5A(1)(d), it is not
open to CHPL now to assert a claim based on there
being a lease pursuant to s
5A(l)(d)).
- It
is certainly true that CHPL's position in this regard was somewhat changeable.
The Outline of Submissions served by CHPL prior
to the hearing, at paragraph 22,
(in accordance with its pleading) referred to a prior lease pursuant to s
5A(l)(e) of the 1948 Act
but subsequently there was reference to registration of
the lease in accordance with s 5A(1)(d)(ii). Mr Maroya emphasised that no
application to amend the pleading had been made (referring to T 21.33; T 271.25
where the issue in relation to the respective sub-sections
was raised). It was
said that paragraphs 22 and 23 of CHPL's submissions dated 27 July 2010 sought
impermissibly to combine some
of the requirements of s 5A(l)(e) with those of
sub-section (d).
- Mr
Maroya submits that the subsection (e) case was the case that Dr and Mrs Kopas
came to trial prepared to meet. (Interestingly,
the pleadings filed by Dr and
Mrs Kopas up to the latest version themselves referred to s 5A(d) in the
particulars to the allegation
that this was a protected tenancy. Therefore, at
least at one stage up to the time of the amendment, Dr and Mrs Kopas seem to
have
been proceeding to a hearing on the understanding that the case they had to
meet encompassed in some form the matters the subject
of that subsection.)
- In
its closing submissions, CPHL contended that, prior to entering into the 1984
lease, the premises were subject to a lease, dated
19 November 1970, pursuant to
s 5A (l)(d) of the 1984 Act that was executed in accordance with s
5A(1)(d)(ii) and was registered with the Department of Commerce (Rent
Control
Office) in accordance with s 5A(1)(d)(iii) (and contended that it was not
invalid for incompleteness, invalidity or uncertainty
as alleged by Dr and Mrs
Kopas). In oral closing submissions Ms Sibtain reiterated that CHPL put its case
as Mr Marshall had opened
(on s 5A(1)(d)) but that, for its pleaded case on s
5A(1)(e) (which I had rather understood from Mr Marshall was not being pressed),
CHPL relied on the matters certified in the registered lease.
- Is
it then open to CHPL to rely upon s 5A(1)(d) (having pleaded that a different
sub-section was the relevant section by which the
premises were excluded from
the operation of the Act)? It certainly cannot be said that Dr and Mrs Kopas
have acquiesced in any broadening
of the scope of the pleading, which refers
only to s 5A(1)(e) as the basis for the allegation that the 1970 lease had the
effect
of taking these premises out of the ambit of the Act.
- Einstein
J in Travel Compensation Fund v Blair [2003] NSWSC 720 at [29]- [30] said:
... It may be taken as a given that "the plainest and most fundamental of all
the rules of pleading" is that "all the material facts
constituting the cause of
action ought already to have been plainly stated in the pleading itself". [
Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB
72 at 75; see also H 1976 Nominees Pty Limited v Galli [1979] FCA 74; (1979) 40 FLR 242
at 246-7]
Further, whereas the object of particulars is to prevent the opposite party
being taken by surprise at the trial of an action and
to identify the issues of
fact to be investigated at the hearing, it is simply not the function of
particulars to take the place
of necessary averments in the pleading of the
material facts.
- In
fact, whichever subsection of the Act was being relied upon, it might equally be
said that the material facts on which CHPL relied
for the allegation that the
Act did not apply were not pleaded, in that there was no pleading of the
material facts relied upon for
the satisfaction of each of the requirements of
whichever sub-paragraph was invoked; all that was pleaded was the existence of a
prior lease and then what was pleaded was the conclusion that such a lease was
one 'pursuant to', or perhaps more aptly said as one
falling within, s 5A(1)(e).
However, that was not the criticism made of the pleading and there is no
suggestion for Dr and Mrs Kopas
that the defence did not understand CHPL to be
relying on the fact of the 1970 lease as taking the premises out of the
operation
of the Act.
- In
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets
Limited [2008] NSWCA 206, at first instance, McDougall J implicitly
recognised that in some circumstances the parties might, by their conduct of the
case,
acquiesce in the widening of the pleaded case. Here, as noted above, Mr
Maroya placed on record at least twice during the hearing
that Dr and Mrs Kopas
were not acquiescing in a departure from the pleaded case in this regard.
- On
appeal, Ipp JA considered the authorities and principles relevant to whether a
party would be allowed at trial to depart from its
pleaded case, noting that:
At trial, there may be a departure from the pleadings where adherence to
them would be unjust or unfair . In Banque Commerciale SA (in liq) v
Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11 ( Banque
Commerciale ) Mason CJ and Gaudron J said (at CLR 286-7; ALR 58-9):
The function of pleadings is to state with sufficient clarity the case that
must be met: In this way, pleadings serve to ensure the
basic requirement of
procedural fairness that a party should have the opportunity of meeting the case
against him or her and, incidentally,
to define the issues for decision. The
rule that, in general, relief is confined to that available on the pleadings
secures a party's
right to this basic requirement of procedural fairness.
Accordingly, the circumstances in which a case may be decided on a basis
different from that disclosed by the pleadings are limited to those in which the
parties have deliberately chosen some different
basis for the determination of
their respective rights and liabilities.
Ordinarily, the question whether the parties have chosen some issue different
from that disclosed in the pleadings as the basis for
the determination of their
respective rights and liabilities is to be answered by inference from the way in
which the trial was conducted.
It may be that, in a clear case, mere
acquiescence by one party in a course adopted by the other will be sufficient to
ground such
an inference.
Dawson J (at CLR 293; ALR 63) quoted the following statement by Isaacs and
Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq)
[1916] HCA 81; (1916) 22 CLR 490 at 517; [1916] HCA 81:
But pleadings are only a means to an end, and if the parties in fighting
their legal battles choose to restrict them, or to enlarge
them, or to disregard
them and meet each other on issues fairly fought out, it is impossible for
either of them to hark back to the
pleadings and treat them as governing the
area of contest.
and observed: (at CLR 296-7; ALR 66):
But modern pleadings have never imposed so rigid a framework that if
evidence which raises fresh issues is admitted without objection
at trial, the
case is to be decided upon a basis which does not embrace the real controversy
between the parties. Special procedures
apart, cases are determined on the
evidence, not the pleadings . (my emphasis)
- Ipp
JA extracted the following propositions from the authorities referred to above:
(a) The rule that, in general, relief is confined to that available on the
pleadings secures a party's right to a basic requirement
of procedural fairness.
(b) Apart from cases where the parties choose to disregard the pleadings and
to fight the case on additional issues chosen at the
trial, the relief that may
be granted to a party must be founded on the pleadings.
(c) It may be that, in a clear case, mere acquiescence by one party in a
course adopted by the other will be sufficient to ground
an inference that the
parties have chosen a different basis to the pleaded issues for the
determination of their respective rights
and liabilities.
(d) Acquiescence giving rise to a departure from the pleadings may arise
from a failure to object to evidence that raises fresh issues
- it is in this
sense that "cases are determined on the evidence, not the pleadings" .
(e) While cases are to be decided upon a basis that embraces the "real
controversy" between the parties, the real controversy has
to be determined in
accordance with the principles stated. (my emphasis)
- Ipp
JA, when considering the factors which would weighed against the making of a
discretionary decision to allow the plaintiffs to
depart from their case as
pleaded said that:
The principal factors contrary to such a decision included that the
appellants had not, as required, pleaded the elements of the particular
argument
either expressly or impliedly. The respondents did not know that that
evidence was being adduced in connection with the argumen t, that there was
no agreement to amend and the respondents did not agree to or acquiesce in the
appellants advancing that argument.
His Honour considered that had the
smoothing cover argument been pleaded, the case for the respondents may have
been conducted in
a different way . (my emphasis)
- In
the present case, Mr Marshall raised at the outset for CHPL the submission that
s 5A(1)(d) applied. Mr Maroya, though referring
more than once to the fact that
no such allegation was pleaded and that no application had been made to amend
and stating that Dr
and Mrs Kopas were at the hearing to meet a case based on s
5A(1)(e), did not point to any particular prejudice by allowing a case
based on
s 5A(1)(d) instead. It is not clear what other evidence would have been sought
to be made available, that was not otherwise
available in defending the s
5A(1)(e) claim (and the evidence of Mr Birzulis which was rejected would seem to
have had the same low
probative weight on the s 5A(1)(d) issue as it did on the
s 5A(1)(e) issue, as at most it would have prevented an assumption being
made
that there was vacant physical possession of the premises as at the date
immediately prior to the November 1970 lease - but
I was not asked to make that
assumption - and it would not have assisted in determining the date at which
vacant physical possession
may have been obtained).
- The
significance of the applicability or otherwise of the protected tenancy
legislation is that there was no evidence adduced to the
effect that the
purchaser of the unit wishes to live in the unit (hence the ground of
termination provided for under that Act in
the context of a sale of the premises
would not have been available - that ground only being applicable to occupation
by an individual
not a company). Therefore, the notice of termination would be
invalid.
- What
the pleading point comes down to is whether there is any prejudice (other than
whether it may affect the ultimate determination
of the issue in dispute) in
allowing a departure from the pleading where the pleading makes clear that what
CHPL is asserting is
that the entry into of the 1970 lease has the result, by
reason of the operation of s 5A of the Act, that the subject premises are
not
relevantly covered by the Act; the lease is in evidence; the matters that are
asserted to give rise to the conclusion that it
falls within s 5A(1)(d) do not
go beyond the lease itself (the only other matter being its registration); and
there has been an different
conclusion sought to be drawn at the hearing as to
which subparagraph of the relevant section was applicable as a matter of law.
I
cannot see any such prejudice (particularly where it is clear from the earlier
iterations of the defendants' own pleadings that
they were cognisant of the
matters the subject of s 5A(1)(d) and the only matters apparently sought to be
raised in that context
were of a highly speculative nature and unlikely to be
able to be established given the death in the interim of the tenant under
the
1970 lease).
- Therefore,
I am of the view that the failure to invoke or, if that be the case, correctly
to identify s 5A(1)(d) in the pleading would
not preclude a finding (if the
evidence before me so permitted) that the requirements of s 5A(1)(d) had been
satisfied - it being
clear on the pleadings that what CHPL was contending was
that the existence of the 1970 lease (and any legal conclusion to be drawn
from
this) had the effect as a matter of law that Parts 2 to 5 of the Landlord and
Tenant (Amendment) Act did not apply to these premises at the time of entry into
the 1984 residential lease. (I note that when the matter came back before
me on
CHPL's motion to vary after judgment on this matter was handed down, I gave
leave for the pleadings to be amended in order
to accord with the basis on which
the case was opened by Mr Marshall in this regard. Nevertheless, in publishing
this revised judgment
I include the consideration given as to the s 5A(1)(e)
issue for completeness.)
- I
turn then to the relevant provisions.
- Sub-sections
5A(l)(d) and (e) of the Landlord and Tenant (Amendment) Act provide as
follows:
(1) The provisions of Parts 2, 3, 4 and 5 do not apply in respect of the
following prescribed premises, that is to say:
...
(d) a dwelling-house or a residential unit:
(i) of which:
(a) vacant possession was obtained on or after the first day of January, one
thousand nine hundred and sixty-nine, or that was occupied
personally by the
lessor or his or her predecessor in title on or after that day, or
(b) vacant possession was obtained before that day and that has remained
vacant from the time when vacant possession was obtained
until that day,
(ii) that is the subject of a lease, being a lease, except where the lessee
is a company or other body corporate:
(a) the execution of which by the lessee was witnessed by a solicitor
instructed and employed independently of the lessor or by a
registrar of the
Local Court, and
(b) that bears a certificate by that solicitor or registrar of the Local
Court that he or she explained the lease to the lessee before
it was executed by
him or her, and:
(iii) the lease of which is after that day registered in the Department,
(e) a dwelling-house or a residential unit:
(i) of which vacant possession was obtained before the first day of January,
one thousand nine hundred and sixty-nine,
(ii) that is the subject of a lease:
(a) that was executed by the lessee before that day,
(b) being a lease, except where the lessee is a company or other body
corporate and the lease was executed by the company or other
body corporate on
or after the tenth day of April, one thousand nine hundred and fifty-eight:
(i) the execution of which by the lessee was witnessed by a solicitor
instructed and employed independently of the lessor or by a
registrar of the
Local Court, and
(ii) that bears a certificate by that solicitor or registrar of the Local
Court that he or she explained the lease to the lessee before
it was executed by
him or her, and
(c) that after that first day of January is registered in the Department, and
(iii) that, had this section not been substituted by the Landlord and
Tenant (Amendment) Act 1968 would, upon registration of that lease in the
Department immediately after its execution by the lessee, have been exempt from
the
provisions of Parts 2, 3, 4 and 5 under the section that this section
replaces as in force at the time when the lease was executed
by the lessee
- Sub-section
5A(1)(f) exempts from the operation of the relevant parts of the Act a
dwelling-house or residential unit to which the
respective provisions have at
any time ceased to apply by reason of paragraph (c), (d) or (e).
- Mr
Maroya submits that it is necessary for CHPL to establish that each of
the matters in (i), (ii) and (iii) of subparagraph 5A(l)(e) has been satisfied
(citing Barilla v James [1964-65] NSWR 741 at 742, per Walsh J and also
referring to Ex parte Stern; Re Harrington [1965] NSWR 93). In Barilla
v James, Walsh J (considering whether a lease registered pursuant to s
5A(l)(d) was in fact excluded from the provisions of Part III of the
Act) had
regard to s 5A(l)(d)(v) of the Landlord and Tenant (Amendment) Act (as it
then stood) which specified the requirement of registration and execution of
such a lease and said at p 742 said:
What is described in paragraph [5A(1)] (d) as that to which the provisions of
Part II to V do not apply is any dwelling-house that
has all the characteristics
which are the set out in five subparagraphs. A dwelling-house, if it does not
answer the description
contained in any one or more of these sub-paragraphs, is
not a dwelling-house covered by paragraph (d) and therefore, so far as that
paragraph is concerned, is not touched or affected by s 5A
- It
is submitted by Mr Maroya that CHPL has not been able to satisfy the test in
Barilla v James in relation to subparagraph 5A(l)(e)(ii)(a), namely that
the premises were the subject of a lease executed before 1 January 1969.
The only prior lease in evidence in the present case was that executed on 19
November 1970, ie well after the relevant
date. (The relevant date for the
purposes of s 5A(1)(d) is, of course, different - hence, one might think, the
late invocation of
that subsection.)
- There
is no dispute that at all times CHPL has been relying on the same lease, a copy
of which was in evidence. On the face of that
lease, the execution of the lease
by Mr Birzulis was witnessed by a solicitor (who certified that he was
instructed and employed
independently of the lessor) (Mr James Robert Markham).
The lease bears a certificate by Mr Markham to the effect that he duly attended
the lessee and explained the lease to him before it was executed by the lessee;
that he witnessed the execution by such lessee of
the lease; and that he (Mr
Markham) is a solicitor instructed and employed independently of the lessor.
- CHPL
also relies upon a Certificate dated 7 July 2010 provided by a Delegate of the
Director-General of the New South Wales Office
of Fair Trading pursuant to s
5A(10) of the 1948 Act, which certificate (by virtue of s 5A(10)((b) of the 1948
Act) is admissible
in any proceedings and is prima facie evidence first ,
that the lease specified in the certificate was registered in the Department on
the day specified in the Certificate and, secondly , of the particulars
certified in and by the certificate that the lease bears. Therefore, there is
prima facie evidence that Mr Markham
was independent in advising Mr Birzulis and
that he explained the lease to Mr Birzulis. I can only assume that included the
effect
of the provisions including clause 20.
- For
the reasons indicated in a short ex tempore judgment at the commencement of the
hearing, I rejected paragraphs 4 and 5 of an affidavit
on which Dr and Mrs Kopas
sought at the hearing to rely, namely an affidavit signed by a Mr Aldis Birzulis
on 23 March 2010. In objecting
to that affidavit, Counsel for CHPL indicated
that CHPL would strongly object to any attempt by Dr and Mrs Kopas to agitate a
case
under the 1948 Act that was broader than the case pleaded in the (Further
Amended Cross-Claim, paragraphs 21-22 and Further Amended
Defence, paragraph 4).
In particular, Mr Marshall contended that it was not open to Dr and Mrs Kopas
raise as a factual issue the
absence of vacant possession prior to 1 January
1969 (assuming that was what was sought to be raised by the Birzulis affidavit).
It was in this context that Mr Marshall pointed to the requirement in the
Uniform Civil Procedure Rules that a party must plead any matters that
might take the other by surprise. (I did not admit the evidence of the late Mr
Birzulis'
brother. My ruling was not based on the submission that this went to a
matter that should have been pleaded so as not to take CHPL
by surprise. I did
so because even on the affidavit it was unclear as to the date on which Mr
Birzulis had taken possession of the
premises in question, though it was
suggested that he had done so at a time prior to the 1970 lease. The uncertainty
of that evidence
meant that I considered it to be of low probative weight, which
was a factor (together with its lateness and prejudice to the plaintiff
in
relation to its ability to respond thereto) in my decision not to grant leave
for it to be adduced. Even had the relevant evidence
been admitted it would not
on its face have permitted a conclusion as to the existence or otherwise of a
lease satisfying the requirements
of 5A(1)(e)(ii).)
- If
the requirements of s 5A(1)(d) (or (e) for that matter) are satisfied (by
reference to the 1970 lease or otherwise) then s 5A(1)(f)
would have the effect
that thereafter (and hence by the time Dr Kopas signed the 1984 residential
lease) the premises would not be
premises to which Parts 2, 3, 4 and 5 of the
Act applied. (Moreover, insofar as the April 1992 events gave rise to a new
tenancy
that tenancy would not be covered by the Act either, again by reference
to s 5A(1)(f). (It might perhaps be inferred that the omission
from the
residential lease agreement in 1984 of a provision dealing with the matters
under the Landlord and Tenant (Amendment) Act
(as had the 1970 lease) was due to
an understanding or recognition that the premises had long ceased to be
controlled premises under
that Act, particularly in circumstances where the
lease agreements in question each appear to be prepared on a pro forma basis.)
- Looking
at the position, first, under s 5A(1)(e), there is no evidence as to the tenancy
of the unit prior to the commencement of
the19 November 1970 lease (Mr Birzulis'
evidence might have cast light on this but the relevant paragraphs were not
admitted over
the objection of CHPL and the affidavit was then not formally read
by Dr and Mrs Kopas). Nor was there any evidence of any lease
that had been
executed before 1 January 1969 that complied with the execution and
certification provisions of the section. No evidence
was provided as to vacant
possession in a physical sense prior to the commencement of the relevant lease.
- There
was in evidence a copy of a statutory declaration made in connection with the
application for registration of the 1970 lease
under s 5A of the Act (made by a
G Jackson from CHPL's then managing agent, SP Hilton & Co). The 1970 lease
was for a term of
26 weeks commencing on 26 November 1970. Reliance was placed
by Ms Sibtain on clause 20 of this lease, by which the parties agreed
to and
admitted the truth of the matters set out including that:
(b) all the facts, matters and circumstances referred to in at least one of
paragraphs (a) (b) (c) (d) (e) and (f) of s 5A(i) of the
... Act and necessary
to be established in order that the provisions of Parts II,III, IV and V of the
said Act shall not apply in
respect of this lease exist in relation to this
lease and the demised premises.
- The
lessee expressly acknowledged the lessor's reliance on the above clause and the
solicitor certified the explanation of the lease
to Mr Birzulis.
- Mr
Birzulis (having had the benefit of independent legal advice - as evidenced by
the certificate) therefore accepted that the premises
were not controlled
premises and must have done so by reason that all the matters in either (d) or
(e) were satisfied (as the previous
sub-paragraphs are not applicable to the
premises). For CHPL it is submitted that even if it is not open (as a matter of
pleading)
for it to rely on s 5A(1)(d), then it can nevertheless rely on the
1970 lease to conclude that as at 1970 the requirements of the
section had been
satisfied.
- Certainly,
as at 1970, the then tenant had accepted that to be the case, and had done so
following an explanation given by an independent
solicitor of in relation to the
lease. I can only assume (and, for clarification, by this I mean that I would
infer) that the solicitor
in question acted properly (in accordance with his
duties as a solicitor) and explained to Mr Birzulis the import of clause 20 of
the lease.
- However,
the evidence establishes no more than that, as at November 1970, the premises
were leased by a tenant who (having had independent
legal advice as to the
lease) was prepared to acknowledge and agree to the correctness of the
proposition that the requirements of
at least one sub-paragraph of s 5A were
satisfied such that the premises were no longer controlled premises. I would
assume (and
infer) that such an acknowledgement would not lightly be given by a
tenant who (had the facts been other than as acknowledged) may
have had the
benefit of a protected tenancy but I am not satisfied that this is sufficient to
permit the conclusion that on the balance
of probabilities there was, prior to 1
January 1969, a lease duly executed for the purposes of s 5A(1)(e) of the Act.
- Apart
from anything else, such a declaration could equally be consistent with the
acknowledgement of a state of affairs whereby there
was no relevant lease
executed prior to 1 January 1969 (hence s 5A(1)(e) could not be satisfied) but
that events had then arisen
to give rise to the operation of s 5A(1)(d).
- I
am not satisfied on the balance of probabilities that all of the requirements of
s 5A(1)(e) have been satisfied (and I note that
Mr Marshall on the motion to
vary confirmed that the claim based on this section was not pressed by CHPL).
- Turning
then to the position in relation to s 5A(1)(d), which (until the belated
amendment allowed by me on the motion to vary) was
not specifically invoked in
the pleading, at first blush the matter seems relatively straightforward. There
was in evidence a copy
of a prior lease, dated 19 November 1970, under which
lease vacant possession was to be provided to the tenant. For CHPL to have
been
in a position to provide vacant possession in the legal sense to Mr Birzulis on
the date of commencement in that lease, CHPL
must have had dominion or control
over the premises at some instant on or before that date (and hence it might be
thought that CHPL
must have had vacant possession at some time on or after 1
January 1969 if it had possession at the instant before commencement of
the 1970
lease).
- However,
it is clear on the authorities that what must be established is that vacant
possession in the physical sense was obtained
before the relevant date (for
present purposes that would be the commencement of the 1970 lease). (At the time
I published my initial
reasons I considered that clause 20 of the Birzulis lease
did not assist in this regard. For the reasons given in my judgment on
the
motion to vary, that was based on an incorrect understanding as to the import of
Barilla v James and I withdraw that comment.)
- In
Di Salvio [1965] NSWR 360, Wallace J considered an appeal by way of case
stated by the lessors, arising from the decision of the Fair Rents Board in 1964
that
the premises had not been excluded from the protection of the Act under s
5A(1)(e) because 'vacant physical possession' had not been
established. Although
his Honour accepted that 'vacant possession' can have somewhat different
meanings according to the context
in which the term is used, his Honour held
that vacant possession in s 5A(1)(e) normally means vacant physical possession
and not
merely legal possession. Reference was made by his Honour to the
decision of Brereton J in Williams v Carew [1964-5] NSWR 1715 as being a
special case.
- In
Williams v Carew , Brereton J had noted that the claimant had 'recovered
dominion and control' over the whole of the premises before the commencement
of
the defendant's term and there was then, apart from anything created by the
defendant, no existing occupancy. (There the claimant
had purchased a home that
was vacant; he and his family moved into occupation and part was sub-leased to
another person; when the
premises were leased to the defendant a certificate was
signed 2 days prior to the commencement of the lease and the claimant vacated
the premises the day before the actual commencement of the lease but one person
who had been a tenant of the claimant of part of
the premises was allowed by the
defendant to remain in the premises in anticipation of the defendant's own lease
commencing. The
fact that the claimant's tenant had remained on the premises
overnight was said to be an exercise of the defendant's own volition.)
- Wallace
J construed s 5A(1)(e)(ii) as meaning that an exemption applies to a dwelling
place of which a lessor has obtained vacant
(physical) possession on or after
the relevant date.
- In
Wilson v Walshe (unreported 31 May 1985) Smart J followed Di Salvio
but in any event was not satisfied that the plaintiffs had established that
they had recovered dominion and control over the premises
(noting that
Williams v Carew was an unusual case, and that it had proceeded on a then
prevailing view that the legislation required the establishment of vacant
possession immediately before the lease was granted and that vacant possession
at an earlier stage was insufficient). In Wilson , the tenant (the son of
the deceased original tenant) had been informed that if he wished to remain in
the premises, then subject
to the agreement of his deceased mother's trustee, it
would be on the basis of entry into a sublease and this would require him to
remove all his furniture and possessions but, in the end, the trustee allowed
him to remain without incurring the expense of so doing.
- Smart
L preferred the approach of Wallace J if that be in conflict with that of
Brereton J and noted that the terms of s 5A(1)(d)(i)
supported the view that
vacant physical possession was required.
- What
must be established in the present case, therefore, is that before the lease to
Mr Birzulis in 1970, the premises became physically
vacant (and, for the
purposes of whether the applicable provision is (d) or (e), what that date is)
(since the lease to Dr Kopas
was not itself certified and registered such as to
take it out of the operation of the Act).
- (I
note that the other requirements of the subsection have clearly been satisfied.
The lease is one executed as provided for in (1)(d)(i)(c)
and bears a
certificate as required in (ii)(b). It was registered as required under (iii).
On the face of the 1970 lease there is
nothing to suggest that it was
incomplete, uncertain or irregular (nor was I taken to anything to suggest that
was the case). Indeed,
it seems that those allegations hark back to a superseded
version of the pleading in which various criticisms were made as to the
circumstances in which the tenant may have signed the lease, containing as it
did an acknowledgement that the provisions of the Act
had been satisfied. The
matters raised in that regard in the previous iteration of the pleading have the
flavour of speculation and
bespeak a preparedness, as evident in Dr Kopas'
submissions to the Tribunal to which I have earlier referred, on the part of Dr
Kopas
to make allegations of impropriety without any established foundation for
so doing.)
- This
brings me to the reliance that can be placed on clause 20 of the 1970 lease. It
might be thought difficult to see how a tenant,
independently advised in late
1970, could properly have admitted to the matters set out in clause 20 of the
1970 lease (and in that
regard I note that the clause went further than an
agreement to a state of affairs, in its terms it was an admission) without
direct
knowledge of the relevant facts. (I had considered that there was a
difficulty in that those facts are not made plain on the terms
of the lease
noting that in Barilla , Wallace J made clear that parties cannot, by
agreement, take a lease out of the operation of the statutory protection
provisions
(referring for support in drawing that conclusion to the contracting
out prohibitions in ss 89 and 90). For the reasons set out in
my judgment on the
motion to vary, I consider that this does not cause the difficulty for CHPL that
I had envisaged.) These provisions
must be satisfied as a matter of fact.
- In
Barilla v James , execution of the lease had not been witnessed by a
solicitor as required by s 5A(1)(d). Walsh J said that:
...the impact of the restrictive provisions of the Act upon [a dwelling house
not answering the description in (d)] cannot be prevented
or altered, either by
agreement of the parties or by their conduct or by matters which, according to
ordinary principles, would create
an estoppel against one of them...
- His
Honour noted that the Act allowed parties to arrange a transaction of leasing in
such a way that the restrictive provisions would
not attach but did not allow
them to do so in any manner they might choose to adopt. Rather, it only allowed
them to bring it about
by entering into a lease which conformed to the
appropriate stipulations set out in one or other of the various paragraphs of s
5A.
His Honour said that estoppel could not be allowed to operate to deprive the
lessee of the statutory protection which otherwise it
would have:
It seems clear that unless [entry into a lease conforming with one or other
of the various paragraphs of s 5A(1)] any agreement of
the parties designed to
prevent the operation of the Act is equally ineffective, whether the parties
purpose is to make such agreement
before or after they enter into the lease
noting the effect of ss 89 and 90 of the Act (the provisions which preclude
contracting out of the provisions of the Act).
- (Smart
J commented that the case before him (in Di Salvio ) showed the value of
the doctrine of estoppel not operating and the importance of the requirement for
vacant possession in the operation
of s 5A(1) in circumstances where, in that
case, he found it hard to imagine that the defendant would have entered the
lease if he
had appreciated his statutory rights under s 83A of the Act as a
child of the deceased tenant and a pensioner as at the date of his
mother's
death. Similar considerations do not necessarily apply in this case.)
- I
had considered that Barilla v James (and particularly the observation in
that case that estoppel could not be used to deprive the lessee of the statutory
protection it
would otherwise have) precluded reliance on the certificate and
clause 20 of the Birzulis lease in the present case and, mindful
of the caution
expressed in Barilla , and of the protective nature of the provisions in
this legislation, I was of the view that I could not conclude that the basis for
the admission in clause 20 of the 1970 lease is that vacant possession had
physically been obtained by CHPL on or after 1 January
1969 and before the
commencement of the lease in November 1970 nor, as a matter of law, would such
an admission be enough (in the
absence of evidence that vacant possession of the
premises had been physically obtained as a matter of fact).
- I
noted that one perhaps incongruous result of such a finding would be that,
despite the reliance by Dr and Mrs Kopas in their case
on the termination in
1992 of the 1983 residential tenancy agreement (and therefore the fact that, on
their case, a new tenancy agreement
came into existence at a time well after the
time from which no new protected tenancies are to be created under the
provisions of
the Landlord and Tenant (Amendment) Act , that being 1
January 1986, the effect of s 5AA seems to be that this new (1992) tenancy
remains governed by the Act. Section 5AA
provides:
On and from 1 January 1986, the provisions of Parts 2, 3, 4 and 5:
(a) do not apply in respect of prescribed premises unless the premises were
the subject of a lease immediately before 1 January 1986,
and
(b) cease to apply, and shall not thereafter apply, to any such premises upon
vacant possession of the premises being obtained or
upon those provisions
ceasing to apply to the premises by reason of the operation of section 5A or any
other provision of this Act.
- Following
submissions made on the motion to vary, and further consideration of the
reasoning in Barilla v James , I am satisfied that Barilla v James does
not preclude reliance by CHPL on the certificate and clause 20 of the lease for
whatever
evidentiary value they may have and, for the reasons set out in my
judgment on that motion, having considered the appropriate inferences
open to be
drawn from the provisions of the 1970 lease (unrestricted as I thought I had
been by virtue of Barilla v James ), I now find that CHPL has satisfied
the onus that rests on it of proving that these are not controlled premises and
that Dr Kopas
is not a protected tenant. It follows that the Notice of
Termination of 19 October 2005 was not, as I had thought, invalid and that
the
application for an order for termination of the holding over tenancy and for
possession of the premises, as sought by CHPL, should
be upheld.
Formal validity of Notice of Termination
- For
completeness I note that paragraph 15 of the Further Amended Defence, among
other things, contains a denial that the October 2005
Notice of Termination
complied with sections 56 and 63(1) of the Residential Tenancies Act .
(Although at one stage there was an issue flagged as to whether Mr Wellner as a
consultant was in a position to issue a notice as
landlord or agent under the
Act, that was not ultimately pressed - T 28.5) The principal basis on which
invalidity of the Notice
was pressed at the hearing (T 17; T 28.5) is that, if
the 1992 agreement is established, then it is an invalid notice having been
served before the expiration of the fixed term of the tenancy - as pleaded in
paragraph 16 of the Further Amended Defence. However,
the point is also taken,
as pleaded in 15(iii) that Mrs Kopas was not served with any notice of
termination under section 63(1) of the Residential Tenancies Act .
(Further, as noted earlier, Dr and Mrs Kopas claim that the lease in question
was of controlled premises and accordingly it is contended
that the Notice of
Termination is therefore invalid pursuant to s 6(2)(a) of that Act.)
- As
the formal requirements for validity of the notice of termination dated 19
October 2005 are not put in issue it is not strictly
necessary to consider those
aspects of the matter. Suffice it to say that the evidence of CHPL is that the
Notice was served in compliance
with s 56 of the Act (after CHPL had entered
into a contract for the sale of the premises under which CHPL was required to
give vacant
possession); the notice specified a day (28 November 2005) not
earlier than 30 days after the date on which the notice was given;
the notice
was in a form that complied with the requirements of s 63(1) (in that it was in
writing, signed by CHPL's agent, identified
the residential premises the subject
of the residential tenancy agreement, specified the day on which vacant
possession was to be
delivered up, specified the ground on which the notice was
given, and included a statement to the effect that information regarding
tenancy
rights and obligations is contained in the residential tenancy agreement); and
the notice was served in compliance with s
130 of the Act by post to the
residential premises occupied by Dr Kopas (s 130(4)). (There is no suggestion
that, if Mrs Kopas is
found to be a tenant under the alleged 1992 agreement, the
October 2005 notice was properly served on Mrs Kopas as required under
the Act,
though clearly she has been on notice of CHPL's requirement that the premises be
vacated for some time.)
- Given
the revised findings as to the operation of the Landlord and Tenant
(Amendment) Act , the Residential Tenancies Act does apply to this
tenancy and the requirements of that Act were satisfied. (Had the Landlord
and Tenant (Amendment) Act been applicable then the requirements of that Act
would not have been satisfied in relation to the existence of a prescribed
ground
for termination. Section 63 of that Act provides that, except as provided
by Part 3, the lessor of any prescribed premises shall
not give any notice to
terminate the tenancy or take or continue any proceedings to recover possession
of the premises from the lessee
or for the ejectment of the lessee therefrom.
- Of
the prescribed grounds contained in Part 3 upon which a notice to quit may
be given (and relied upon in recovery proceedings), the one closest to the
present situation being that the lessor has agreed to sell
the premises (by an
agreement which, among other things, entitles the purchaser to vacant possession
of the premises and that the
premises are reasonably required by the purchaser
for personal occupation as a residence "by himself or herself or by some person
who ordinarily resides with, and is wholly or partly dependent upon, him or her"
(s 62(l)(i)). Section 63 specifies the period for
which a notice to quit is to
be given (determined by reference to the completed period of occupation. (In
passing I note that Section
68 prohibits the issue of a notice to quit (whether
on the same grounds as a previous notice to quit or on some other ground) within
twelve months after a decision refusing an order for recovery of possession of
prescribed premises without the leave of a court having jurisdiction
under Part 3 to do so, though such leave can be granted at the same time as the
court refuses
to make an order for possession in favour of the lessor).
(iv) Alleged 2000 Agreement
- The
2000 Agreement is said to have been reached in discussions taking place as part
of (or perhaps following) the conciliation process
in the Tribunal on 2 June
2000. At that point CHPL had served a notice of termination and then an
application for possession on the
basis that the unit was untenantable and Dr
Kopas had filed an application seeking a variety of other orders in relation to
the repairs
(and for details of CHPL's insurer in relation to a proposed
compensation claim). It is noted by Mr Marshall that the conciliation
was of a
dispute between CHPL and Dr Kopas. (It is submitted for CHPL that the 2000
Agreement, as alleged, cannot constitute a defence
to the claim for possession
of the premises and that a breach of that alleged agreement, which is denied,
could sound at most in
damages.)
- The
alleged 2000 Agreement is comprised in a handwritten document headed "Minutes"
prepared by David Kopas. The agreement is said
to be between CHPL and each of
the three members of the Kopas family (although it is not clear why David Kopas
would be party to
such an agreement even if, as the Kopas' contend, his mother
was also a tenant and hence might have been expected to be party to
any
amendment to the tenancy arrangements). Significantly, the handwritten document
was not signed by Ms Kwawegen or anyone else
on behalf of CHPL, nor was the
making of any agreement (let alone its terms) noted by the Tribunal in a
conciliation report or any
orders made on the day (unlike the subsequent 2001
conciliation agreement).
- The
handwritten minutes make no reference to the alleged 1992 Agreement or any life
tenancy. They do not identify Mrs Kopas as a tenant.
The subject matter of the
alleged 2000 agreement relates to matters concerning repairs and maintenance
(and the provision of insurance
information) as well as the exclusivity of use
of the external laundry. The document again employs somewhat unusual language
for
a commercial tenancy agreement insofar as it refers to the recognition of Dr
Kopas' requirements for 'peace of mind' in order to heal and records that
Raine & Horne will assist in that "(as well as other tenants in building)".
- Ms
Kwawegen was the main representative of CHPL at the Tribunal on that occasion.
(She may have been accompanied by Mr Glatter but
his recollection was very vague
as to this hearing and, if he was there as David Kopas' notes record, his
contribution to the discussion,
if any, must have been limited since he does not
feature prominently in the notes or minutes of the discussion.)
- Ms
Kwawegen did not have a clear recollection of the Tribunal proceedings in June
2000 and did not recall having taken any notes at
the discussion. No notes of Ms
Kwawegen were in evidence, although Dr Kopas deposed that there had been a
swapping of notes during
the discussions.
- Ms
Kwawegen deposed that her invariable practice in Tribunal proceedings (hardly a
controversial practice one would think) was not
to make agreements with tenants
that were not documented and signed by her or the landlord. (While she
apparently did not act on
this occasion on all matters in accordance with her
usual practice, insofar as she left the Tribunal without informing the Tribunal
Member and said that was something she would not usually do, I cannot infer from
this that Ms Kwawegen also departed from her normal
(or 'invariable') practice
in relation to entry into agreements by committing the landlord to a binding
agreement that was not formally
documented and signed on its behalf.)
- Dr
Kopas was cross examined as to the circumstances of the conciliation discussions
(at T 108-109):
Q. Let us go back to 2 June 2000. You claim that
you and your son reached an agreement with Rachel Kwawegan, don't you?
A. That's right.
Q. But you claim she had written out her own notes at the same time as your
son has written notes?
A. That's right.
Q. And you claim that you swapped the notes over, don't you?
A. To look at each other's notes, yeah.
Q. But you say that notwithstanding that you swapped notes, you never asked
her to put any initials on your copy?
A. No.
Q. You never asked that you each keep a photocopy of each other's notes?
A. No.
Q. Of course, by then, you had no trust for the agent, correct?
A. Correct.
- The
suggestion that, in circumstances where Dr Kopas did not trust the real estate
agents and, on his version of events, Mr Wellner
had already breached the 1992
Agreement within about 13 months of it being made, Dr Kopas would have been
prepared to rely simply
upon a handwritten agreement in the form of notes taken
by his son during a conciliation discussion with Ms Kwawegen without those
notes
being signed by her and without them being noted (or the fact of an agreement
being noted) by the Tribunal, seems to me to
defy belief.
- Much
weight was placed on the fact that, at the subsequent Tribunal hearing, Mr
Wellner asserted that the 2000 agreement had been
made under duress and there
was evidence that Ms Kwawegen, on her return to the office, had suggested that
she had been prevailed
upon by Dr Kopas and/or his son in some fashion. Mr
Wellner, of course, could not know whether any agreement on that occasion had
been procured by duress or otherwise, since there is no suggestion that he was
there. A feeling by Ms Kwawegen that she had been
in some way overborne in the
discussions could equally be consistent with her having agreed to walk out of
the Tribunal without pursuing
the matter or without informing the Tribunal
Member as with her having reached any agreement in the terms of the handwritten
notes.
- It
seems to me that the insurmountable difficulty for Dr Kopas and his family in
relation to the allegation that there was an agreement
on the terms of the
handwritten minutes, is in establishing an objective common intention on the
part of the respective parties immediately
to be bound by any agreement that
might in principle have been reached during or outside the conciliation
discussions in the Tribunal
in 2000.
- The
lack of a coherent written agreement signed and witnessed on behalf of CHPL
seems to me to point against any binding agreement
having been reached in 2000
particularly when the discussions were held in the context of a conciliation
process, the very aim of
which is to permit parties to entertain without
prejudice discussions. If the parties had intended a binding agreement to be
concluded
in such a discussion it seems almost inconceivable that a professional
real estate agent would not have required that it be formally
signed and
witnessed - and the making of the agreement noted on the Tribunal's record.
- I
cannot be satisfied that there was a binding agreement reached on the terms
suggested, and I cannot place reliance on David Kopas'
evidence as to the
content of the discussions on that occasion as it does not seem to me that his
recollection of events is independent
of that of his father. Even if there had
been an agreement binding on the parties in these terms, it could not operate as
anything
other than a standalone agreement (in light of my findings in relation
to the alleged 1992 agreement) and would give rise to no more
than a claim for
damages for any breach of any of the terms of that agreement.
- As
it is, I find that there was no binding agreement reached at the conciliation on
2 June 2000.
(v) Relief
- Given
the findings I have made, it is not necessary to address most of the claims for
relief made by Dr and Mrs Kopas based as they
are on the existence of a binding
agreement in 1992 and again in 2000. (As Mr Maroya conceded, the claim for
misleading and deceptive
conduct rests on there being an agreement found to have
been made in 1992 and/or 2000 - the alleged representations being that the
landlord would enter into the respective agreements and alleged
misrepresentation as to the nature of the interest that Dr and Mrs
Kopas would
enjoy in the premises (in reliance on which it is said that they entered into
the agreements - the damages being put
at the cost of securing alternative
premises in the same or similar locality and on the same or similar terms or
rent and the cost
of relocation; plus damages for the pain suffered). Similarly
the claim for damages in lieu of specific performance must fail.) However,
for
completeness, I consider briefly the damages claims that have been made and
address the defences raised by CHPL to the relief
claimed in relation to
specific performance.
- Dr
and Mrs Kopas claim that CHPL was in breach of both the 1992 and 2000
Agreements. The relevant breaches are pleaded in paragraph
15 of the Further
Amended Statement of Cross-Claim as follows:
(i) seeking to terminate the life tenancy;
(ii) refusing to execute a lease in registrable form in accordance with the
1992 Agreement (requests for it to do so having been made
in December 2005 by Mr
Baker and in July 2008 by a Mr Adams on their behalf);
(iii) applying to the Tribunal in proceedings seeking orders for termination
of the lease and possession (05/45611; 05/56837 - these
being the Tribunal
applications brought by CHPL in August 2005 and November 2005, the latter
ultimately being transferred to this
Court);
(iv) failing to carry out necessary and appropriate repairs at the premises
promptly and adequately [those are not further particularised];
(v) interfering with quiet enjoyment of the premises [a claim for damages for
non-economic loss for a similar breach having been dismissed
by Member Dellar in
2001];
(vi) acting "in a retaliatory and uncooperative manner";
(vii) seeking to prevent them from keeping pet dogs at the premises;
(viii) failing to recognise entitlement to, and interference with, exclusive
use of formerly common laundry;
(ix) seeking unilaterally to increase rent and/or enforce such increases of
rent;
(x) failing (since October 2005) to recognise Mrs Kopas as a tenant.
- It
can be seen that a number of the claimed breaches (i), (ii), (iii) and (x)
amount in effect to an alleged repudiation or denial
of the alleged 1992
Agreement. In that regard, it is difficult to see what loss has been suffered as
a result, since Dr and Mrs Kopas
have remained in the premises over the whole of
the relevant period. Similarly, the claimed breaches itemised in (vii) and
(viii)
insofar as they relate to non-recognition of rights under the disputed
agreements (1992 in the case of the dogs and 2000 in the case
of the laundry) do
not seem to have sounded in damage in that Dr and Mrs Kopas have continued to
keep at least a dog in the premises
and there is no suggestion that the interim
arrangement agreed at the Tribunal in relation to continuation of exclusive use
of the
laundry has been breached.
- As
to the allegation in relation to repairs, apart from the roof problem
(satisfactorily resolved in 1992) it is not clear what repairs
are said to
remain outstanding and I am not satisfied that I could have made any findings of
breach on the facts before me (particularly
given the apparent difficulty there
seems to have been in obtaining access to the unit to carry out the works - a
seemingly standard
notification to Dr Kopas in relation to an inspection (said
by Ms Spencer in the witness box to relate to mandatory smoke detection
units)
in 2007, for example, being met with a complaint as to interference on religious
grounds; and there was sufficient dispute
as to works in the garden as to lead
to Tribunal proceedings at one stage, to preclude a finding as to who was
responsible therefore).
Ms Baric (who also had an involvement from the Raine
& Horne agency in the management of the premises for a short while) gave
evidence as to the need for removal of a latch lock placed on the back gate by
the Kopas family and confirmed that there had been
repairs and maintenance in
respect of leaking taps, pipe work and stove repairs over the period she was
involved in the property
management - which was in the period around 2008.
Therefore, there seems to me likely to be an issue as to who bears
responsibility
for any delay in effecting repairs on a prompt basis.
- As
to the alleged breach of the covenant for quiet enjoyment, that relates to the
issue of Notices of Termination over the years.
I do not accept that the issue
of invalid notices (or notices in breach of the alleged 1992 Agreement) would
have amounted to breach
of the covenant for quiet enjoyment in this case.
- Mr
Maroya referred to Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723, where
Santow J, as his Honour then was, considered a claim for, inter alia, damages
for alleged breach of the covenant for quiet
enjoyment constituted by the
issuance of notices to quit, the requirement that the plaintiffs vacate the
premises (those being commercial
premises in a shopping centre), locking the
plaintiffs out of the shop and other matters. The claim for damages under this
head included
a claim of $10,000 for emotional distress and vexation. (Cole J
had previously made interlocutory orders requiring the lessor to
restore
possession to the tenants and had commented that the commercial conduct in
re-entering the premises was unacceptable in circumstances
where the lessor was
aware that there was a dispute as to whether or not the rent had in fact been
paid or as to the exact amount
of the rent outstanding.)
- His
Honour was satisfied that the re-entry by the lessor amounted to a breach and
that various of the heads of damages claimed were
recoverable but held,
following Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 that damages for
disappointment and distress were not recoverable - those damages only being
recoverable if occasioned by physical
inconvenience caused by the breach (or if
the object of the contract is to provide enjoyment relaxation or freedom from
molestation).
Relevantly, in the present context, it was not suggested in
Musumeci that the mere issue of notices to quit (without more)
constituted a breach of the covenant for quiet enjoyment.
- (I
note that it was submitted by Ms Sibtain that any damage caused by the issue of
notices was a situation deliberately brought about
by Dr and Mrs Kopas in saying
nothing about the agreement which they contended was in existence to preclude
the issue of such a notice.
However, given that CHPL denied the existence of
that agreement, I can only assume that the effect of Dr and Mrs Kopas raising
the
issue of the agreement at an earlier stage would simply have led to the
present dispute being determined at an earlier time.)
- The
loss and damage pleaded as having resulted from the alleged breaches is to be
found in paragraph 16 of the pleading:
(a) interference with quiet enjoyment;
(b) physical inconvenience distress vexation and frustration arising as a
consequence of
(i) unreasonable interruptions and disturbances to religious observations in
the knowledge that Dr and Mrs Kopas are observant Jews;
(ii) unreasonable interruptions and disturbances occasioned to Dr and Mrs
Kopas' religious observations in late September 2005 - late
October 2005 in the
knowledge that Dr and Mrs Kopas are observant Jews and such disturbances would
cause them great anxiety distress
and humiliation; [though I note that the
claims for exemplary or other damages for religious interference were not
pressed at the
hearing]
(c) loss of chance to prosecute Tribunal proceedings 92//4440; 92/5320 (these
being the April 1992 application for setting aside of
the 16 April orders, which
ultimately were treated as rescinded in any event, and for monetary compensation
on the roof case - recovery
under which would at best have been some $5,000);
(d) loss of chance to prosecute contemplated roof case.
- In
the previous iteration of the pleading, particulars of the loss had stated that
the current rent was $270 per week and that the
market rent for the premises was
$400-500 per week (an assertion seemingly inconsistent with the pending claim by
Dr Kopas in the
Tribunal for a rent reduction on the basis that the current rent
is excessive) and, if the tenancy were to permit dogs, the market
rent would be
$550 to $700 per week. (Dr Kopas maintains that he only agreed to the increase
to $270 per week in 2000 as they had
the exclusive use of the laundry and part
of the backyard T 36 - from which it seems that Dr Kopas either considers the
unit should
be immune from regular rent increases or that market rent has not
increased from 2000, which would seem surprising having regard
even to a
perfunctory view of the rental market in Sydney over the past ten years.)
- As
noted above the claim for damage referable to interference with religious
observances was not pressed (and nor was the claim for
exemplary damages in this
regard). As to the loss of the chance to prosecute the roof case in the
Tribunal, the damages for that
would seem to be minor insofar as there was a
monetary limitation in the Tribunal, the roof has been repaired and there is no
evidence
as to the value of the items said to have been damaged by water from
the leaking roof; as to what the loss of a chance to prosecute
that claim
elsewhere would be likely to sound in, I have insufficient information to be in
a position to form any view but again
in the absence of evidence as to
substantial loss it is difficult to see how this would translate to a
substantial damages claim
(as apparently contemplated by the 3 page handwritten
document). Moreover any abatement of rent by reference to the leaking roof
would
surely not lead to the restitution of all rental from the commencement of the
lease as this would take no account of the benefit
of occupation for that
period.
- Had
the 1992 agreement been established, then apart from the issue of laches, the
appropriate relief would have been to compel execution
of a lease. I would not
have found there to be any damages recoverable for the breaches alleged (nor
would I have been satisfied
that there was any breach other than the repudiation
of the agreement and I am not satisfied that any compensable loss was suffered
as a result). I am not satisfied that a claim for damages for breach of the 2000
agreement was established (even assuming I had found
such an agreement).
- Finally,
CHPL pleads, in paragraph 24(c) of the Defence to the Further Amended Statement
of Cross-Claim, that the claims for compensation
sought in paragraphs 5 and 6 of
the relief claimed are barred pursuant to s 14(l)(a) of the Limitation Act
1969 (NSW), s 82(2) of the Trade Practices Act 1974 (Cth) or by
analogy in equity.
- Mr
Maroya confirmed that in paragraph 5 of the claim, the 'relief claimed' is
Lord Cairns' Act damages. It is submitted by Mr Maroya that if Lord
Cairns' Act damages are available to Dr and Mrs Kopas, either in the
alternative or in addition to an order for specific performance (entitlement
to
that latter relief being a conceptual precondition as noted in Mc Dermott PM,
Equitable Damages , Butterworths 1994, p 65), that relief, by analogy,
would not be denied to Dr and Mrs Kopas.
- In
view of my findings, it is not necessary for me to consider this applicability
of a limitations defence, save to note that this
would depend on whether the
claim for damages were to be sustainable as a claim for breach of contract alone
(in which case it would
clearly be statute barred) or, as pleaded, a claim for
damages in lieu of or in addition to specific performance.
Relief claimed by CPHL
- It
is submitted by Mr Maroya that, leaving aside the question of s 5A of the
Landlord and Tenant (Amendment) Act, if Dr and Mrs Kopas succeed in their
reliance upon the 1992 Agreement, it must follow that the Notice of Termination
issued on 19
October 2005 is invalid (citing s 56(3) of the Residential
Tenancies Act ), by reason of its having been issued during the currency of
a fixed-term tenancy. I accept that submission, but note that Dr and
Mrs Kopas
have not succeeded on the 1992 agreement.
- Mr
Maroya further submits that if Dr and Mrs Kopas fail in establishing the
validity of the 1992 Agreement, then s 64(2)(c)(ii) of the Residential
Tenancies Act requires me to consider, in the circumstances of the case,
whether or not it should proceed to make an order terminating the residential
tenancy agreement. I accept that such consideration must be given in
circumstances where relief is sought for the termination of
a residential
tenancy under the Act.
- Section
64(2)(c) applies, inter alia, to notices under s 56 of the Act ( Roads
& Traffic Authority v Swain (1997) 41 NSWLR 452 at 455-56). In Swain
, Meagher JA observed that the Act was intended to balance the rights of
landlords and tenants and that the landlord does not have
an absolute right to
orders of termination of a residential tenancy agreement and of quiet possession
even if the notice of termination
served on the tenant is issued in the correct
form and is correct as to time.
- Rolfe
J, at first instance in Swain , had listed possible circumstances which
might have to be taken into account. That itemisation was of potentially
relevant circumstances
was in substance adopted in Adavale Realty Pty Ltd v
Williams [1996] NSWRT 190 by Member Keenan, namely the period that the
tenant had occupied the residential premises; the tenant's age; the tenant's
state of
health; the overall time in which the tenant had lived in the area in
which the residential premises are situated; the tenant's employment
status; any
renovations made by the tenant to the premises; friends and social contacts in
the area; rent payments being up to date;
any breaches of the residential
tenancy agreement; any complaint made against the tenant; any concession by the
tenant as to preparedness
to vacate the premises (in that case to permit a sale
to take place after which the tenants were to be allowed back into the
premises);
the fact that the premises are wanted for occupation by any other
person or for any other purpose. (There, as here, the tenants in
question had
occupied the premises for a lengthy period - 19 - 21 years. They were aged
between about 52 and 67 and largely unemployed.
They had lived in the area for a
period of around 25 to 40 years. They were not in breach of the leases nor the
subject of complaints
and were prepared to assist in relation to relocation for
the purposes of the sale.)
- Considering
the relevant circumstances in this case:
(i) Dr Kopas has remained in flat 3 with his family for some 26 years;
(ii) Dr Kopas is now in his late 60's;
(iii) Dr Kopas suffers from high blood pressure; he also suffered an injury
in 1999 from a fall down the stairs;
(iv) It is not clear whether Dr Kopas lived in the area for long before the
initial tenancy but he has lived in the area for at least
26 years;
(v) Dr Kopas is retired and lives with his wife, who does not work; their son
(though apparently having worked at times outside the
home) works from home as a
writer - there was no evidence as to his income or his ability to obtain paid
employment outside the home
(matters that would be relevant to his ability to
support or assist his parents if they were required to secure premises elsewhere
at a higher rental);
(vi) As to renovations, Dr Kopas asserts that some work has been carried out
in the unit (such as painting) but it is certainly not
the case that there have
been extensive renovations over the years. Mrs Kopas was adamant that she had
taken on the task of cleaning
the common area within the building;
(vii) There was no evidence as to the extent of the friends and social
contacts Dr Kopas and his family have in the area but I am
prepared to assume
they are likely to be not inconsiderable given the length of time he has been in
the area;
(viii) There is little evidence as to the ability of Dr Kopas to find
suitable accommodation in the area although I suspect there
would be a
difficulty in finding accommodation at the same rental rate (at least by
reference to what was asserted in the previous
iteration of the pleadings as to
market rent, which seems more likely than that the rent has been static over a
considerable period);
(ix) as to the rental payments, the amount of rent payable is currently a
matter in dispute; the current rent as increased by CHPL
is $290 per week; Dr
Kopas disputes that and I understand is paying the lesser sum of $270 per week
and seeking a further reduction
of rent. However, despite evidence from Mr
Wellner as to delay in payment of rent, I understand that (apart from the period
in 1992
when Dr Kopas withheld the rent due to his complaint over the state of
the roof), the rent has been largely paid up to date;
(x) as to any breaches of the agreement, breaches have been alleged on both
sides of the ledger, so to speak - on the part of Dr Kopas
the keeping of the
dogs in the premises would strictly speaking be a breach without the landlord's
written consent (although Dr Kopas
maintains that he received oral permission to
do so some time ago) There is no suggestion that there is any written consent. I
accept
that there is a genuine dispute as to this issue and nothing should be
taken from the possibility that this conduct may be in breach
of the lease;
there has also been a difficulty with access arrangements over the time and the
dispute as to exclusivity of use of
the laundry (Mr Wellner saying that there
was permission given at one stage but that this was only temporary; on the part
of CHPL,
Dr Kopas maintains in the present proceedings that there have been
various breaches but the only relevant ones in the absence of
a finding as to
the existence of the 1992/2000 agreements would be the claim for breach of the
covenant for quiet enjoyment constituted
by the issue of the notices of
termination;
(xi) as to the making of complaints by others against Dr Kopas, there is
evidence of some disputes both by and against Dr Kopas amongst
the tenants in
the building but there is insufficient evidence for me to form a view as to the
responsibility for this - I note however
that the Tribunal application in April
1992 had sought the intervention of the agent in resolving disputes of that
kind, suggesting
that the Kopas tenancy might not be trouble free from the
landlord's point of view;
(ix) as to the rental payments - that is a matter in dispute; the current
rent as increased by CHPL is $290; Dr Kopas disputes that
and I understand is
paying the lesser sum of $270 per week and seeking a further reduction of rent.
However, despite evidence from
Mr Wellner as to delay in payment of rent, I
understand that apart from the period in 1992 when Dr Kopas withheld the rent
due to
his complaint over the state of the roof, the rent has been largely paid
up to date;
(xii) there has been no concession by Dr Kopas (as there had been by the
tenants in Adavale ) of willingness to relocate to permit renovations or
to facilitate the sale of the property - however, given that the proposed sale
requires the provision of vacant possession, it is difficult to see what
concession would be feasible to meet the objectives of the
landlord as evident
from the contract for sale to Celegroup;
(xiii) there is clear evidence as to the fact that the premises are wanted
for another purpose and nothing to suggest that this is
not a genuine purpose;
there is nothing to show that the ultimate beneficiary (assuming there be one)
of the trust of which Celegroup
is the trustee wishes to occupy the premises
personally.
- Also
as a circumstance to take into account I note that there seems hardly to be an
harmonious and co-operative relationship between
Dr and Mrs Kopas and the
property management agents - I do not express a view as to who is to blame for
this and it may well be that
there is fault on both sides; as to contact between
the Kopas family and the landlord direct, there seems to have been very little
but the Kopas family have a perception (and Dr Kopas says that he was told this
by an agent at Raine & Horne) that one or more
of the Celemajer family wants
the Kopas family out of the flat.
- A
further circumstance to take into account is the conduct of Dr Kopas in
concealing the alleged 1992 agreement and in delaying any
claim of entitlement
to a life tenancy (conduct that of itself seems to have contributed to some of
the factors considered above,
such as length of tenancy and the matters that
flow from that). It would seem ironic if the fact of delaying making a claim
(with
the forensic prejudice that is likely to entail) ended up being a
principal contributing factor to the tenancy being extended, since
that would in
effect reward conduct (ambush litigation) against which the Court has set its
face.
- Additionally,
I note that s 65 of the Residential Tenancies Act provides in subs 65(1)
that:
The Tribunal may suspend the operation of an order for possession of
residential premises (other than premises which are part of the
landlord's
principal place of residence) for a specified period if it is satisfied that it
is desirable to do so, having regard to
the relative hardship likely to be
caused to the landlord and the tenant by the suspension.
- Having
now found that CHPL has discharged the onus upon it to establish that the
premises were not controlled premises, then the Residential Tenancies Act
applies to govern the termination of Dr Kopas' tenancy. In those circumstances,
having considered the matters referred to above,
I am of the view that,
notwithstanding the Kopas' family's long term residence in the premises, it is
not appropriate to grant relief
that would in effect deprive CHPL of the
opportunity to derive a commercial benefit from the property for an uncertain
term and grant
to Dr Kopas the very life tenancy he has been unable to establish
was ever agreed.
- Having
found that the tenancy has been validly terminated, then I consider that the
proper exercise of my discretion in relation to
the claim for possession is that
there should be an order for possession but that its operation should be
suspended for a period
to enable Dr Kopas and his family to relocate to other
premises (recognising that this may take some time and be at an increased
cost
to them). Ms Sibtain submitted that a 30 day period would be sufficient. I do
not agree. In that regard I note that the Residential Tenancies Act 2010
(although not applicable in the present proceedings), had it applied, would
have the effect that if the Tribunal considered it appropriate
in the
circumstances of the case to terminate a long term tenancy (one where there had
been continual possession for 20 years, such
as this) pursuant to s 94 of the
Act, the Tribunal would be prohibited from ordering vacant possession be given
earlier than 90 days
after the order was made.
- Therefore
I would have regarded a 90 day period to be the minimum that is appropriate in
the present case and I propose to order accordingly.
Orders
- For
the reasons above, I find for the plaintiff on all of its claims relating to the
agreements alleged to have been made in 1992
and 2000 and, relevantly, find that
neither of the defendants is entitled to an equitable life tenancy. For the
reasons set out in
my judgment on the motion to vary, I also find for the
plaintiff on the protected tenancy allegation. I therefore dismiss the
cross-claimants'
claims based on the alleged agreements and for misleading and
deceptive conduct and I grant the plaintiff's application for orders
for
termination of the relevant tenancy agreement and for possession of the
premises. I had considered that the following orders
would be appropriate in
light of my earlier findings, subject to submissions from Counsel as to the
final orders and any submissions
as to costs, if that be desired, at a
convenient time.
(1) A declaration that Dr Kopas is the only tenant of the premises described
in Schedule A.
(2) A declaration that the tenancy of Dr Kopas is pursuant to a common law
periodic tenancy on the terms of the holding-over provisions
of the residential
lease dated 6 January 1984 between Celemajer Holdings Pty Limited and Dr Kopas.
(3) A declaration that that the premises described in Schedule A are
"prescribed" or "controlled" premises within the meaning of those
terms under
the Landlord and Tenant (Amendment) Act 1948 (NSW) and that the provisions of
Parts 2-5 of that Act apply to those premises (as a consequence of which the
Residential Tenancies Act 1987 (NSW) and now Residential Tenancies Act 2010
(NSW) do not apply to the residential tenancy agreement constituted by the
tenancy the subject of the declaration in paragraph 2
above.
(4) A declaration that there is no "1992 Agreement" as alleged by Dr Kopas in
paragraph 6 of the Further Amended Defence of 27 May
2009 and as alleged by Dr
and Mrs Kopas in paragraph 4 of the Further Amended Statement of Cross-claim of
27 May 2009.
(5) A declaration that Dr and Mrs Kopas do not have an equitable life tenancy
in respect of the premises described in Schedule A.
(6) An order that caveat AB983341J in respect of the premises described in
Schedule A be removed.
(7) A declaration that there is no "2000 Agreement" as alleged by Dr Kopas in
paragraph 18 of the Further Amended Defence of 27 May
2009 and as alleged by the
Dr and Mrs Kopas in paragraph 8 of the Further Amended Statement of Cross-claim
of 27 May 2009.
(8) A declaration that the Notice of Termination dated 19 October 2005 served
by Celemajer Holdings Pty Limited on Dr Kopas was not
a valid notice in
compliance with the Landlord and Tenant (Amendment) Act 1948 (NSW) .
Schedule A
The land described in Folio Identifier 3/SP13165 and known as Unit 3/65
Chaleyer Street, Rose Bay, New South Wales.
- Having
regard to the findings on the motion to vary I have made orders in different
terms in relation to the matters in proposed orders
3 and 8 above and my final
orders will be as set out below.
(1) A declaration that Dr Kopas is the only tenant of the premises described
in Schedule A.
(2) A declaration that the tenancy of Dr Kopas is pursuant to a common law
periodic tenancy on the terms of the holding-over provisions
of the residential
lease dated 6 January 1984 between Celermajer Holdings Pty Limited and Dr Kopas.
(3) A declaration that that the provisions of Parts 2-5 of the Landlord and
Tenant (Amendment) Act 1984 (NSW) do not apply to the
premises described in
Schedule A by virtue of the operation of s 5A of that Act.
(4) A declaration that the Residential Tenancies Act 1987 (NSW) and now
Residential Tenancies Act 2010 (NSW) apply to the residential tenancy agreement
constituted by the tenancy the subject of the declaration in paragraph 2 above.
(5) A declaration that there is no "1992 Agreement" as alleged by Dr Kopas in
paragraph 6 of the Further Amended Defence of 27 May
2009 and as alleged by Dr
and Mrs Kopas in paragraph 4 of the Further Amended Statement of Cross-claim of
27 May 2009.
(6) A declaration that Dr and Mrs Kopas do not have an equitable life tenancy
in respect of the premises described in Schedule A.
(7) An order that caveat AB983341J in respect of the premises described in
Schedule A be removed.
(8) A declaration that there is no "2000 Agreement" as alleged by Dr Kopas in
paragraph 18 of the Further Amended Defence of 27 May
2009 and as alleged by the
Dr and Mrs Kopas in paragraph 8 of the Further Amended Statement of Cross-claim
of 27 May 2009.
(9) A declaration that the Notice of Termination dated 19 October 2005 served
by Celermajer Holdings Pty Limited on Dr Kopas was a
valid notice in compliance
with sections 56 and 63 of the Residential Tenancies Act 1987 (NSW) .
(10) An order under s 64(2) of the Residential Tenancies Act 1987 (NSW)
terminating Dr Kopas' lease of the premises described in Schedule A.
(11) An order under s 64(5) of the Residential Tenancies Act 1987 (NSW) in
favour of Celermajer Holdings Pty Limited for possession of the premises
described in Schedule A such order to take effect
90 days from the date of this
order.
(12) Judgment in favour of Celermajer Holdings Pty Limited for possession of
the premises described in Schedule A.
(13) Celermajer Holdings Pty Limited have leave to issue a Writ of Possession
upon the expiry of the period in order 11 above.
(14) Judgment for Celermajer Holdings Pty Limited on the Cross-clam and that
the Cross-claim otherwise be dismissed.
(15) Celermajer Holdings Pty Limited have leave to file an amended Reply and
an Amended Defence to Cross-Claim so that in paragraph
2(b) and 20(b)
respectively the reference to s 5A(1)(e) is amended to "s 5A(1)(d) and/or s
5A(1)(f) (but only insofar as sub-paragraph
(f) refers to sub-paragraph (d))".
Schedule A
The land described in Folio Identifier 3/SP13165 and known as Unit 3/65
Chaleyer Street, Rose Bay, New South Wales.
**********
Amendments
17 Jun 2011 Revised as referred to in the subsequent judgment of Justice Ward
of 14 April 2011 - [2011[ NSWSC 304. Paragraphs: [14(iii), (v)], [378], [379],
[393], [394], [396], [397], [398]
17 Jun 2011 Revised as referred to in the subsequent judgment of Justice Ward
of 14 April 2011 - [2011[ NSWSC 304. Paragraphs: [406], [410], [411], [412],
[415], [446]
17 Jun 2011 Revised as referred to in the subsequent judgment of Justice Ward
of 14 April 2011 - [2011] NSWSC 304. Paragraphs: [453], [454], [455], [456],
[457], Schedule A.
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