New South Wales Supreme Court CITATION : Big Toys v Bartlett [2001] NSWSC 625 CURRENT JURISDICTION: Common Law Division Possession List FILE NUMBER(S) : SC 12276/00 HEARING DATE(S) : 11 July 2001 12 July 2001 JUDGMENT DATE : 12 July 2001 PARTIES : Big Toys Pty Limited (Plaintiff) Jeffrey John Bartlett (Defendant) JUDGMENT OF : Brownie AJ at 1 COUNSEL : W. Haffenden (Plaintiff) N. Confos (Defendant) SOLICITORS : Andrew Cohen (Plaintiff) Comino & Pitsikas (Defendant) CATCHWORDS : No question of principle. CASES CITED : Codelfa Construction Pty Limited v State Rail Authority of NSW ( ) 149 CLR 377 DECISION : Judgment in favour of the plaintiff. Cross-claim dismissed. Defendant to pay the plaintiff's costs. - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 12276/00 Brownie AJ Thursday 12 JULY 2001 BIG TOYS PTY LTD v JEFFREY JOHN BARTLETT Judgment 1 HIS HONOUR: The plaintiff is the registered proprietor of some land at Botany on which there is a warehouse. The plaintiff leased the premises to the defendant, and the defendant conducted from there a business as a furniture removalist and a storer of furniture and other goods. 2 In the fullness of time when the parties had disagreed about a number of things, the plaintiff brought this action, claiming possession of the land. There was a defence and a cross-claim filed and the litigation had, it seems, a fairly unfortunate history. However, it was fixed for hearing yesterday and today. It seems that until last week it was, in every sense, an action for possession of land. That was the principal remedy the plaintiff was pursuing. It has now emerged, and it seems the plaintiff first learnt about it last week or thereabouts, that the defendant vacated the premises perhaps two or three months ago. 3 The lease has, on its face, now expired, on 30 June 2001. Since the defendant has vacated the premises and makes no claim to be entitled to remain in possession, the plaintiff no longer seeks an order for possession of the land. What is left is a claim for money and a cross-claim for money and both that claim and that cross-claim are for very small amounts of money, considering that the action has been brought in the Supreme Court. 4 However, when the matter was listed for trial yesterday it was, I thought, too late to do anything about that, and I simply heard the case. During the course of the hearing, the parties have managed to reach agreement about a number of things, even though a great deal remains in dispute. 5 The parties now agree that the total amount of rent payable over the three years of the period of the lease was $98,280 and that the amount of rent that the defendant actually paid was $70,426. The plaintiff claims the balance $27,854, and no more. It will be apparent from that summary that the defendant accepts that he did not pay $27,854 in rent which, on the face of the lease and putting aside various factual disputes, ought to have been paid. 6 It is apparent from the evidence that the defendant was in arrears fairly repetitively. There are two schedules in evidence detailing the dates on which rent was paid. That proffered by the plaintiff seems to be the more accurate, but it does not seem to matter terribly much. 7 The parties originally seem to have disagreed, relevantly for present purposes at least, about the installation by the defendant in the leased premises of a hot water service. I find that that was done by the defendant without prior notice to the plaintiff and that the defendant had no relevant rights in respect of the installation of that new hot water service. It seems more likely than not, on the evidence, that he installed it for his own purposes because he and/or members of his staff were sleeping in the premises. It is said that that was improper but I do not pause to examine that question. 8 All that seems relevant is that the defendant had no relevant right to claim from the plaintiff as he did a contribution towards the costs he incurred in installing the new hot water service. 9 It is common ground that the roof of the leased premises was significantly damaged in the hail storm which struck the eastern part of Sydney on 19 April 1999. I accept that there were a significant number of holes in the roof. I see no reason to doubt that the number was 38, it may have been more. I accept that the roof was quite significantly damaged. 10 It is, I think, now common ground that the plaintiff's insurer paid to the plaintiff an amount of $8,173.20 on account of the roof. The insurer's covering slip records a date 29 June 1999. The plaintiff's insurance broker apparently forwarded that onto the plaintiff under cover of a further note dated 5 July 1999. At the time it was very difficult, if not quite impossible, to obtain the services of qualified people to repair roofs except by getting in a very long queue and the fact is that the roof had not been repaired before December. That seems to have been because of a policy that domestic roofs would be repaired before commercial roofs. 11 The defendant now says that the hail storm and various things that flowed from that storm give him a right to abatement of rent and give rise to a cross-claim. The evidence about that defence and that cross-claim has occupied perhaps most of the hearing time. It seems quite clear that the defendant had something in the nature of temporary repair carried out to the roof very shortly after the hail storm and that it did not work as well as a permanent roof. That, no doubt, is why the roof was later repaired or replaced. 12 I accept that there was considerable penetration of water on the occasion of the hail storm, and that more likely than not, there were further penetrations of water in the months between April and December 1999. 13 The defendant says that approximately one-third of the floor area of the building on the leased land was unable to be used. I do not accept that. Mr Papalexion was, I thought, rather defensive about that and declined opportunities to corroborate what the defendant said about it. I should have thought that if the fact was, as the defendant said, that one-third of the floor space was not used at all for some eight months, there would have been some clear and unambiguous evidence about it. 14 A substantial attack was mounted on the defendant's credit and whilst I do not go so far as the plaintiff's counsel in criticising him, I do feel bound to say that the defendant's credit was very substantially dented. His evidence is in conflict with the evidence of no less than five other witnesses: Mr Full; Mr Dunn; Ms Volich; Ms Pribicevic; and finally Ms Tuckwell. I really see no reason why I should not accept the evidence of the last five named witnesses. 15 Once that is said, I think there is really not much more that can usefully be said comparing the witnesses generally, but there are other problems in the defendant's case. When he was cross-examined about the payment of rent, there was a great deal of cross-examination about the sequence in which cheques were written and the dates which were recorded on cheque butts. The explanation given was, I regret to say, profoundly unsatisfying. It is one thing to have two cheque books in use at the one time and to tear cheques out of a cheque book leaving the butts blank for a time, but it really is quite a different matter when one can see a reasonably consistent pattern where cheques for rent bear dates which cannot be reconciled with the sequence of other dates on the butts of a cheque book. 16 Similarly, what the defendant said about returning the keys of the premises to the plaintiff after he gave up possession is hard, if not quite impossible, to reconcile with the agreement as what happened, made between the solicitors for the parties. 17 What the defendant said about the damage to Ms Tuckwell's possessions cannot be reconciled at all with some of the things she says. Nor can his account, as to the matter generally, be reconciled with her account. 18 There is, I think, a substantial legal difficulty in relation to the claim for abatement of rent. Clause 9 of the memorandum incorporated into the lease provides that: "If the whole or any part of the demised premises shall be damaged by storm, tempest or other disabling cause so as to render the demised premises during the term substantially unfit for the use and occupation of the lessee, or so as to deprive the lessee of a substantial use of the demised premises..." 19 Then various things might follow, including a right to abatement of rent. In my view, the defendant has not proved that the demised premises were rendered substantially unfit for use and occupation of the lessee so as to deprive him of a substantial use of the premises. 20 I accept that there was damage to the roof. I accept that there was some water penetration during the succeeding period April to December 1999. I think that the rest of what the defendant says about it ought not to be accepted. 21 It was then contended, on behalf of the defendant, that clause 9 of the memorandum created an implied obligation on the part of the lessor, the plaintiff, to repair the damage. I do not think that is right, particularly having regard to clause 9.3. The implication of a term like that is all but impossible given the principles established by cases such as Codelfa Construction Pty Ltd v State Rail Authority of New South Wales 149 CLR 377 at 347. The lease is perfectly efficacious without the implied term contended for. The term contended for is not so obvious that it goes without saying, and I do not think it can be reconciled with clause 9.3 of the memorandum. 22 There is pleaded also a claim for damages of negligence, it being said that the plaintiff had a duty of care, to repair the premises. I am not conscious of any authority which supports the proposition and it seems quite contrary to principle. I would dismiss that cross-claim without further ado. 23 The defendant is in a quandary in relation to the cross-claim in that Mrs Tuckwell has plainly foreshadowed a claim against him and it seems that a Ms Armstrong also contemplates bringing a claim against him, but he lacks the capacity to prove the measure of their losses. However, given the findings I have just made, there is no valid cross-claim and the point is academic. 24 In those circumstances, I conclude that the plaintiff is entitled to judgment for $27,854 and that the cross-claim should be dismissed. 25 As to costs, the defendant has one point of merit. He says that the plaintiff waived the breaches of the lease pleaded in the notice to quit. I have not heard the plaintiff's counsel, but I am inclined to think that is right. However, the defendant did not plead that defence. Notwithstanding the earnest submissions of counsel for the defendant, I think it is plain that the defence ought to have pleaded: see Part 15, rule 13 and rule 15. The point only goes to costs and, until last week at the earliest, it was an action for possession of land. 26 In all the circumstances, I think the defendant must bear the plaintiff's costs of the proceedings generally. Last Modified: 07/26/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.