Kassem v Crossley & Anor; Kassem v Krayem & Anor [2000] NSWCA 276
Knox County v Ninth National Bank (1893) 147 US 91
Leybourne v Permanent Custodians Ltd [2010] NSWCA 78
Lindsay Petroleum Company v Hurd, Farewell & Kemp (1874) LR 5 PC 221
Macquarie Developments Pty Ltd and Anor v Forrester [2005] NSWSC 674
Maryska v Mason [2007] NSWSC 1222
McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835
Miller v Cannon Hill Estates Ltd [1931] 2 KB 113
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Morison v London County Westminster Bank Ltd [1914] 3 KB 356
Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723
Natural Gas & Oil Corporation v Byrne & Boyle (1951) 68 WN (NSW) 207
Orr v Ford (1989) 167 CLR 316
Parker v Taswell (1858) 2 De G & J 559; 44 ER 1106
Petersen v Moloney (1951) 84 CLR 91
Prints for Pleasure Ltd v Oswald-Sealy (Overseas) Ltd [1968] 3 NSWR 761
Roads & Traffic Authority v Swain (1997) 41 NSWLR 452
Seamez v Mclaughlin [1999] NSWSC 9
Tobin v Melrose [1951] SASR 139
Travel Compensation Fund v Blair [2003] NSWSC 720
Watson v Delaney (1991) 22 NSWLR 358
Watson v Foxman (1995) 49 NSWLR 315
Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100
Whitlock v Brew (1968) 118 CLR 445
Williams v Carew [1964-5] NSWR 1715
Wilson v Walshe (unreported 31 May 1985)
Texts Cited: 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
Category: Principal judgment
Parties: Celermajer Holdings Pty Ltd (Plaintiff/Cross-Defendant)
Jurai Kopas (Defendant/Cross-Claimant)
Janice Kopas (Cross-Claimant)
Representation: Counsel:
J E Marshall SC with P M Sibtain (Plaintiff/Cross-Defendant)
A E Maroya (Defendant/Cross-Claimants)
Solicitors:
Michael Michell & Associates (Plaintiff/Cross-Defendant)
McCabe Terrill Lawyers (Defendant/Cross-Claimants)
File Number(s): 06/255754
[2]
Judgment
1HER 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.
2The 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.
3Dr 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).
4The 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.)
5The 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.
6Dr 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.
7Unfortunately, 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.)
8While 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).
9Issues 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.
10In 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).
11By 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.
12As 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 ).
13If, 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.
[3]
Summary
14For 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.)
[4]
Jurisdictional Issue
15Before 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.
16As 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.
17Section 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.
18In 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).
19It 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.
20It 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.
21In 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.
22In 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 .
23Had 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).
24Prolongation 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.
[5]
Facts
Entry into initial agreement in 1984
25As 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.
26There 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).
27The 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.)
28The 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.
29The 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.
30The 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
31In 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
32On 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).
33As 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.
34As 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.)
35In 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.)
36The 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).
37Dr 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.)
38Whatever 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.
39Following 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
40There 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:
Order for termination & possession: The tenancy agreement is terminated and possession is to be given to the landlord on 23/4/92.
41The 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).
42It 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).
43As 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
44No 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.
45The 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.)
46The 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).
47The 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)
48The 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)
49When 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.
50I 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.)
51I 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.
52Given 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.
[6]
Credibility of witnesses
176Before 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.
177First, 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.
178As 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.
179Mr 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).
180A 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).
181Cross-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.
182It 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.)
183Mr 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.
184If 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.
185Relevantly, 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.
186In 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.
187Here, 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.
188Understandable 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.
189Here, 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.
190I 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)
191His 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) 63 CLR 691 at 712 .
192In 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.
193Of 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).
194Also, 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.
195I turn then to the respective witnesses.
Mrs Kopas
196Subconsciously 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).
197In 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.
198Moreover, 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.
199Therefore, 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
200David 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.)
201In 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.
202I 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.
203Mr 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.
204Nevertheless, 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
205Ms 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.
206As 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).
207As 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.
208Dr 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.
209I 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.)
210As 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)
211I 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.
212It 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.
213As 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.)
214I 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.
215Ms 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)
216It 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).
217The 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.
218On 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).
219Dr 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).
220According 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.)
221Dr 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.
222The 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.
223In 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.
224I 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
225As 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
226Mr 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.
227In 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.
228In 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).
229Mr 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.
230While 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).
231Mr 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).
232Mr 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.
233It 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.)
234It 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).
235In 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.
236Other 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).
237While 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.
238As 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.
239While 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
240Both 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.)
[7]
Issues
(i) Alleged 1992 Agreement
Was any agreement in fact reached on the terms of the 3 page handwritten document?
241The 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.
242Relevantly, 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.
243CHPL, 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".
244The 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.
245As 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).
246In 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.
247Moreover, 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.
248Therefore, 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).
249As 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.
250It 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.
251For 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.
252A 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.
253For 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.
254The 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.
255Similarly, 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.
256(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).)
257There 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).
258Furthermore, 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.)
259I 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.
260Mr 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).
261Some 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.
262Dr 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.
263Mr 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).
264The 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.)
265As 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))
266Weight 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.
267Similarly, 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 " .
268Clause (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.
269As 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).
270As 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.
271As 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.
272It 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.)
273As 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.
274It 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.
275There 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.
276As 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.
277Mr 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.)
278I 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.
279I 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.
280It 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).
281Whatever 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.
282I 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).
283Mr 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.
284Mr 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).
285I 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.
286For 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.
287Mr Kemeny said (in paragraphs 6-7 of his affidavit):
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.
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.
288Mr 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.
289On 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
290I 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.
291I 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.
Authority
292Strictly speaking, therefore, the question of authority to enter into the 29 April 1992 agreement as alleged, does not arise.
293Had 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.
294The 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.
295As 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?
296In 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.
297The 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.
298In Petersen v Moloney (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.
299Here, 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).
300Therefore, 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).
301It 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.
302In 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.
303Mr 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.)
304In 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).
305Here 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).
306Mr 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.
307The 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.
308Insofar 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).
309Therefore, 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.
[8]
Orders
456For 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.
457Having 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.
[9]
Amendments
17 June 2011 - Revised as referred to in the subsequent judgment of Justice Ward of 14 April 2011 - [2011[ NSWSC 304.
Amended paragraphs: [14(iii), (v)], [378], [379], [393], [394], [396], [397], [398]
17 June 2011 - Revised as referred to in the subsequent judgment of Justice Ward of 14 April 2011 - [2011[ NSWSC 304.
Amended paragraphs: [406], [410], [411], [412], [415], [446]
17 June 2011 - Revised as referred to in the subsequent judgment of Justice Ward of 14 April 2011 - [2011] NSWSC 304.
Amended paragraphs: [453], [454], [455], [456], [457], Schedule A.
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.
Decision last updated: 10 November 2011
Parties
Applicant/Plaintiff:
Celermajer Holdings Pty Ltd
Respondent/Defendant:
Kopas
Legislation Cited (8)
Landlord and Tenant (Amendment) Act 1948(NSW)
Residential Tenancies Act 1987(NSW)
Consumer, Trader and Tenancy Tribunal Act 2001(NSW)
Alleged 27 April 1992 meeting
53The 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.)
54Initially, 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).
55Mr 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).
56Pressed 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).
57In 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).
58The 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.)
59Other 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.
60(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.)
29 April 1992 meeting
61What 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.
62I 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.
63As 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.
64Dr 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.
65There 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.)
66Interestingly, 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.
67Significantly, 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.
68There 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.)
69I 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.
70According 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.
71As 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.)
72Central 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).
73In 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'.)
74Therefore, 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.
Alleged 1992 Agreement
75There 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.
76As 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 .
77There 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).
78Mr Wellner denies that he signed the handwritten document and denies that this document was provided to him at the meeting in April 1992.
79Mr 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).
80The 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.)
81According 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).
82Some 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.
83What 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.
84In 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).
85Mr 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).
30 April 1992 letter
86The 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."
87Mr 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).
88Mr 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.
89The 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).
90According 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).
91There 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"
92There 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.
93Mr 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).
94No 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).
95The 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.)
96Dr 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.
97In 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.
98Somewhat 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.
99The 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.
100In 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
101On 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.)
102If 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.)
103What 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).
104There 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.
105Other 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).
106It 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.
107In 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
108On 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).
109Mr 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.)
110In 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)
111Dr 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.
112However, 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.)
113Dr 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
114In 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.
115Mr 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.)
116Interestingly, 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.
117In 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
118On 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.)
119On 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.)
120Ms 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.
121Dr 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
122The 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.
123Dr 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).
124In 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.
125David 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.
126None 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.
127I 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.
2000 Agreement?
128Dr 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.
129Clearly 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.)
130There 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.
131There 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.)
132(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.)
Post 2000 events
133For 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.
134I 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
135On 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.)
136On 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.
137On 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
138Dr 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".
139The 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
140On 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
141Apparently 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
142On 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.)
June 2001
143On 1 June 2001, the real estate agency wrote to Dr and Mrs Kopas advising of the commencement of the gardening work.
144The 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".
145On 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.)
146Relevantly, 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.)
August 2001
147On 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).
148Both 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).
149Dr 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.
October 2001
150On 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.)
151(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
152In 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).
153I 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
154On 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".
155In 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.
156In 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).
157In 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).
158Member 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).
159Dr 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.)
2005
160This 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).
161On 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.
162In 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)
163Insofar 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).
164On 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
165On 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).
166On 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.
167In 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
168The 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).
169Reliance 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".
170Mr 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).
171In 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.
172It 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."
173The 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
174On 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
175Meanwhile 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.
Uncertainty
310Again, 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.
311The 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).
312Where 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) 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).
313True 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) 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.
314Here, 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".
315Even 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?
316Had 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).
317The 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.
318As 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.
319There 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.
320As 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?
321Insofar as Mr Maroya submitted that the 1992 Agreement was amenable to an order for specific performance (referring to Chan v Cresdon (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] 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 .)
322Any 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 2 De G & J 559 at 571-72; 44 ER 1106 at 1111, per Lord Chelmsford; Meagher, Gummow and Lehane (4 th ed.) at [23-045]).
323In 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.
324I 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.)
325Therefore, 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).
Laches
326As 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.
327Mr Maroya noted that laches does not of itself necessarily constitute a bar to a claim for specific performance ( Fitzgerald v Masters (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.
328Ms 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.
329Ms 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.
330Has 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].
331In 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) 167 CLR 316.
332Here, 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).
333The 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.
334As 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.
335It 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.
336While 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" (2 De G & J 559 at 571; 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.
337The 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.
338The 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.
339This 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 ).
340Therefore, 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
341What 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.
342In 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.
343Mr 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.
344On 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).
345There 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.
346CHPL 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.
347Griffith CJ in McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850 approved the formulation of the presumption of regularity by Brewer CJ in Knox County v Ninth National Bank 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.
348In 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.
349Here, 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.
350In 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.
351What 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.
352I 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).
353Therefore, 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).
354The 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.
355As 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.
356Accordingly, 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
357Dr 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.
Onus
358Pursuant 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.
359In 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)
360In 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).
Pleadings
361Relevantly, 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.
362No 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 .
363CHPL 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)
364It 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)).
365Mr 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)).
366It 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).
367Mr 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.)
368In 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.
369Is 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.
370Einstein 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) 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.
371In 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.
372In 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.
373On 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) 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)
374Ipp 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)
375Ipp 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)
376In 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).
377The 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.
378What 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).
379Therefore, 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.)
Relevant provisions
380I turn then to the relevant provisions.
381Sub-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
382Sub-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).
383Mr 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
384It 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.)
385There 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.
386CHPL 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.
387For 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).)
388If 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.)
s 5A(1)(e)
389Looking 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.
390There 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.
391The lessee expressly acknowledged the lessor's reliance on the above clause and the solicitor certified the explanation of the lease to Mr Birzulis.
392Mr 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.
393Certainly, 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.
394However, 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.
395Apart 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).
396I 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).
s 5A(1)(d)
397Turning 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).
398However, 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.)
399In 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.
400In 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.)
401Wallace 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.
402In 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.
403Smart 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.
404What 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).
405(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.)
406This 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.
407In 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...
408His 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).
409(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.)
410I 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).
411I 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.
412Following 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
413For 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.)
414As 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.)
415Given 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.
416Of 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
417The 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.)
418The 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).
419The 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)".
420Ms 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.)
421Ms 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.
422Ms 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.)
423Dr 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.
424The 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.
425Much 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.
426It 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.
427The 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.
428I 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.
429As it is, I find that there was no binding agreement reached at the conciliation on 2 June 2000.
(v) Relief
430Given 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.
Damages
431Dr 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.
432It 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.
433As 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.
434As 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.
435Mr 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.)
436His 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) 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.
437(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.)
438The 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.
439In 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.)
440As 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.
441Had 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).
442Finally, 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.
443Mr 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.
444In 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
445It 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.
446Mr 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.
447Section 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.
448Rolfe 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.)
449Considering 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.
450Also 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.
451A 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.
452Additionally, 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.
453Having 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.
454Having 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.
455Therefore 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.