Elias v Mt Warrigal Services [2001] NSWSC 794

New South Wales Supreme Court

CITATION : Elias v Mt Warrigal Services [2001] NSWSC 794 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11014 of 2001 HEARING DATE(S) : 30 August 2001 JUDGMENT DATE : 11 September 2001

Anthony Elias, Betty Elias (Plaintiffs) PARTIES : v Mt Warrigal Services Pty Limited (Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Local Court JURISDICTION : LOWER COURT Bankstown 471 of 2000 FILE NUMBER(S) : LOWER COURT J E Betts LCM JUDICIAL OFFICER :

COUNSEL : E A Collins (Plaintiffs) P Ginters (Defendant) SOLICITORS : Elias Gates & Associates (Plaintiffs) Hansons Lawyers (Defendant) CATCHWORDS : Appeal from decision of Magistrate - no error of law. LEGISLATION CITED : N/A CASES CITED : N/A DECISION : See Paragraph 25.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

TUESDAY 11 SEPTEMBER 2001

11014 of 2001 ANTHONY ELIAS & ANOR v MT WARRIGAL SERVICES PTY LIMITED JUDGMENT 1 The plaintiffs (as lessees) and the defendant (as lessor) on 30 August 1995 entered into a lease of shop premises at Gladesville (the Premises). The lease provided for a monthly rental of $2,773.33 commencing on 1 April 1995. 2 There was a holding over provision. It provided that the lessee shall become a monthly tenant paying monthly rent equivalent to what was being paid immediately prior to the expiration of the lease. 3 The lease expired on 31 March 1998. The plaintiffs remained in occupation. In July 1998, discussion took place between Mr Tokic (the defendant's agent) and the first plaintiff. Following the discussion, the plaintiffs proceeded to tender the sum of $820 per month in respect of rent (two payments were made). 4 In about August/September 1998, there was further discussion between them. Following the discussion, payments in the sum of $1,200 per month were made in respect of rent (six payments were made). 5 A letter dated 1 September 1998 was sent by the agent to the plaintiffs. It alleged arrears of rent. It seems to be common ground that the sum referred to in the letter was erroneous. Following the receipt of that letter, there was yet further discussion between Mr Tokic and the first plaintiff. 6 On 20 March 1999, the plaintiffs vacated the premises. On 20 April 1999, the defendant commenced proceedings against the plaintiffs in the Local Court seeking recovery of what it claimed to be arrears of rent. The claim was defended. The proceedings were heard on 20 February 2001 by Betts LCM. On 13 March 2001, judgment was delivered. The learned Magistrate found in favour of the defendant. A judgment was entered in the sum of $13,352.11 (the parties had agreed that this was the sum payable in the event that the claim for arrears was successful). 7 The question ventilated before the learned Magistrate was whether or not there had been variation of the lease. In substance, the plaintiffs were contending that in July 1998 the position was that they were not then able to pay the rental fixed by the lease and that they were contemplating vacating the premises. It was contended that there were two oral variations of the written lease. Firstly, that the discussion in July 1998 led to the rental being reduced to a sum of $820 per month. Secondly, that the discussion had in August/September 1998 led to a further variation which saw the monthly payment being increased to $1,200 per month. 8 Two witnesses gave oral evidence before the learned Magistrate (Mr Tokic and the first plaintiff). There was tender of documentation (largely this is the material contained in Exhibit A). 9 These proceedings were brought by Summons filed on 10 April 2001. It is sought to have the decision of the learned Magistrate set aside and the matter remitted to the Local Court for hearing according to law. 10 The Summons was heard on 30 August 2001. Apart from Exhibit A, the court had before it Exhibit B (the pleadings in the Local Court) and an affidavit sworn by Mr Elias (the solicitor for the plaintiffs). This affidavit annexed the transcript of the proceedings before the learned Magistrate (including the judgment). 11 It was common ground that relief is only available in these proceedings where error of law is demonstrated. It has to be an error of law which justifies the disturbing of the decision of the learned Magistrate. 12 Both counsel have prepared a written outline of submissions. Both counsel have supplemented these submissions by oral argument. 13 At the outset, I should briefly mention one matter. In her judgment, the learned Magistrate does not deal with any question of want of consideration. It was common ground that this question had not been ventilated before her. Accordingly, it can be put aside. 14 Broadly speaking, the plaintiffs look to three areas as demonstrating error of law. It was said that there was misdirection (she addressed the wrong question). There was said to be a failure to make necessary findings of fact. There was said to be either a failure to consider relevant matters or the taking into account of irrelevant matters. 15 I have carefully considered the submissions that have been made. In my view, the plaintiffs have failed to demonstrate error of law justifying a disturbing of the decision. 16 Before proceeding further, perhaps some preliminary observations need to be made. It may be that the learned Magistrate could have been more expansive in the expression of her reasoning process. It may be that there are instances where it could have been more carefully presented. However, it seems to me that in the circumstances of this case she has in effect sufficiently disclosed the reasoning process. 17 I do not propose to refer to all of the matters that were agitated during the hearing. I shall restrict the express mention to those which were given greater prominence. The express reference is not intended to be exhaustive. 18 Complaint is made that the learned Magistrate misdirected herself in seeing the question for determination as one of variation of the lease. It was said that she should have directed herself to the question of the precise terms of the variation. I am not satisfied that there was any such misdirection. 19 Regardless of what was raised in the pleadings, the case agitated by the plaintiffs in the Local Court was that there had in fact been variation. The plaintiffs were saying that the amount of rental payable under the lease had been reduced by oral variation. This was a matter upon which they bore the onus. It was up to the plaintiffs to make good the plea of variation of the lease. In substance, the defendant was saying that the discussion had both in July and August/September 1998 merely produced an indulgence or a forbearance (not a rent reduction). Further, it was saying that whilst the rental fixed by the lease would ultimately have to be paid, until things improved, the plaintiffs were to pay what they could afford. Further, it was saying that in August/September 1998, the plaintiffs were told that $820 wasn't sufficient and it was increased to $1,200. 20 There may have been some misunderstanding as to onus. The learned Magistrate appeared at one stage to accept a contention that it was up to the defendant to prove its case and that the plaintiffs had nothing to prove. If there was such a misunderstanding, it does not assist the plaintiffs in these proceedings. In substance, she decided that the onus of proof borne by the defendant had been discharged (that is, inter alia, that the provisions of the lease imposing the rental payable per month were still in force). It is implicit in what she had decided that the plaintiffs had failed to make good their plea of variation. 21 The learned Magistrate was faced with competing versions of discussion had on the three separate occasions. The plaintiffs complain that she failed to evaluate the evidence and make necessary findings in relation to the competing versions. 22 I do not accept these submissions. It seems to me that the effect of what was decided by her was a finding that she preferred the evidence of Mr Tokic to that of the first plaintiff. Such a finding resolved the questions of conflict in favour of the defendant. 23 The preference for the evidence of Mr Tokic provided a factual basis for her ultimate decision. I do not accept the submission that she either failed to consider relevant matters or took into account irrelevant matters. Even if a different view were taken on this submission, in my view, it does not give rise to an error of law in this case. 24 The plaintiffs have also raised an issue of ostensible authority. It appears from the judgment of the learned Magistrate that it had been argued that Mr Tokic had no authority to make any variation to the lease. Mr Tokic gave evidence to the effect that he considered he did not have such authority and made that known to the first plaintiff. It may be that this issue was not determined by her. The position is not entirely clear. Whether or not she did is of no significance, as the ultimate decision can be supported on other grounds. 25 As the plaintiffs have failed to discharge the onus borne by them, the claim made for relief in this Summons fails. Accordingly, I dismiss the Summons. The plaintiffs are ordered to pay the costs of the Summons. The Exhibits may be returned. **********