RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE SNOOK [No 2] [2007] WASC 255 (1 November 2007)

RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE SNOOK [No 2] [2007] WASC 255 (1 November 2007) - WASC 2007 case summary — Zoe

[101]

MS SNOOK: I - - I did, um, the - - there is somebody we can contact if - - if your Honour - -

HIS HONOUR: No, no, no - - you - -

MS SNOOK: - - if you wish further - -

HIS HONOUR: It's your case, ma'am, not me. I'm not the inquisitor.

MS SNOOK: Sure. I'm offering to you that they - - if you wish, I - - I sent it to somebody for legal - -

HIS HONOUR: You should have prepared your case. If you say there's something out there that you want to rely on, you should have prepared your case, you've had ... (indistinct) ...

MS SNOOK: I wasn't aware until yesterday that they didn't have a copy, I agree that - -

HIS HONOUR: Anyway, let's move on with it.

MS SNOOK: It would have helped if my computer hadn't died, because - -

HIS HONOUR: Yes.

MS SNOOK: - - most of my letters - -

HIS HONOUR: Your computer died - -

MS SNOOK: - - died on it.

HIS HONOUR: Mm hm, your computer died. The lawnmower broke down - -

MS SNOOK: But I did - -

HIS HONOUR: - - and so on and so on. Yes?

MS SNOOK: No, the lawnmower didn't break down - -

HIS HONOUR: Well - -

MS SNOOK: Um - -

HIS HONOUR: - - it wasn't working and you couldn't borrow one from the neighbour- -

MS SNOOK: Oh, I see what you mean, yes.

HIS HONOUR: - - that was why you didn't mow the lawn - -

MS SNOOK: Yeah, yeah - -

HIS HONOUR: - - and so on and so forth. Yes?

MS SNOOK: Um, all I'm saying is that there is a lawyer in Sydney, who it was sent to for - - to make sure it had been written - -

HIS HONOUR: Oh - -

MS SNOOK: - - legally correctly. I phoned him last night trying to see if he had a copy on his computer to get to the court in time, and unfortunately he doesn't, but he did send another copy back that the Sunset backpackers so it's possible that they have that, that - - so if it comes to it, we can - -

HIS HONOUR: Well it may not.

MS SNOOK: - - try and locate it for - -

HIS HONOUR: So it - - so there's a lawyer in Sydney now in the picture as well? All right.

MS SNOOK: What I send all my letters over there for - - for checking.

HIS HONOUR: Yes.

MS SNOOK: That I - -

HIS HONOUR: All right, well let's get back, I just wanted to just clear - -

MS SNOOK: Yeah.

HIS HONOUR: - - clarify about the option, and I just wanted - - you can get back on to the - -

MS SNOOK: Okay.

[112]

MS SNOOK: I don't. I haven't even looked for it since. That's the copy I had on record at the time. I was following the path that I needed to prove that it had been sent to Sydney, so I haven't looked for it since.

HIS HONOUR: All right. Well, if you - - if you want to - -

MS SNOOK: Because even if I had a copy of the final I can't prove that I posted it. So I'm trying to prove that a lawyer checked it, which would infer that I knew that it was needed and that, therefore, it was - - (TO WITNESS): You know, jolly well, that you can chuck it in the bin and deny that you ever got it.

HIS HONOUR: All right. Well, that's it. That's enough.

MS SNOOK: Whether I have the final or not.

HIS HONOUR: Any further questions?

MS SNOOK: Well, if you want - -

HIS HONOUR: She says she didn't receive it.

MS SNOOK: Do you want me to tender this email record or not, sir?

HIS HONOUR: Yes. Well, I'll take it into account. It's presumably dated and so forth and so on.

MS SNOOK: Yes, sir.

HIS HONOUR: Yes. You can show it to Mr Miller.

MS SNOOK: I'll just mark it, so that you don't have to trawl it.

HIS HONOUR: Have you finished with your questions for Ms Do?

MS SNOOK: Yes, sorry. I shouldn't handed it there. I should have handed - - Handed to Ms Do.

HIS HONOUR: Well, I don't think - - I mean, you can hand it to me as part of your case, since I'm letting you re-open your case and tender that. If Mr Miller has got any questions about it then I'll allow him to ask you a question about it.

MR MILLER: About this?

HIS HONOUR: Yes.

MR MILLER: It doesn't actually specify what the letter is about. It just says there's an email and - -

HIS HONOUR: So it's put to you that it doesn't specify - -

MS SNOOK: It does. It says: 'Re the letter to your landlords.'

MR MILLER: That's right.

HIS HONOUR: I see.

MS SNOOK: "Re the fax to your land - - " Here - - sorry, there: "As regards to your fax of the 5th of May, I suggest that you add that they are required to fix the outstanding problems to make the house habitable, court case or no court case."

MR MILLER: Yes, but it doesn't make any reference to the fact that you actually - - it's a letter stating that you want to exercise your option or the option.

MS SNOOK: Well, it's the fax of the 5th of May. I - -

MR MILLER: I know, but you don't have a copy of the fax and - -

HIS HONOUR: I see

[125]

I am satisfied, as I say, that on the balance of probabilities the tenant did forward the letter purporting to exercise her option to renew the lease. The correspondence she forwarded, however, was silent as I say - as I've already said, as to whether the election was for a period of six months or 12 months.

I'm satisfied on the balance of probabilities of this because I have had before me two parties who are assiduous in terms of their letter writing and because I find that given the personality of the tenant as I have assessed it in the course of this hearing it is not something she would have failed to do, albeit that she failed to specify the time period.

That is, I'm satisfied she sent the letter but I'm also satisfied that the letter does not make any mention of for how long the option is sought to be extended. Among the principles relating to options is that the appropriate question to be asked is what anybody who received the letter subsequently said to amount to the exercise of the option would fairly have understood to be the meaning of it. In all the circumstances of its receipt, see Prudential Assurance v Health Minders (1987) 9 NSWLR 673 at 677.

Certainly as I've already said and emphasised the letter unequivocally evinces a wish to exercise the option but for how long and if there is no mention of the term then can it be said to be understood to mean one term, for instance six months on the basis that the lease was originally for six months or the other being 12 months which is referred to in the option.

The seeds for this situation were sown when the parties hastily cobbled together the additional clauses. The presence of alternative periods may be said to effectively create the need for an unequivocal election for one term or the other. This is, I find, the law in relation to options. It is an issue that has arisen in other residential tenancy disputes in particular where the parties seek, as I say, to hastily or without advice cobbled together clauses.

If the person seeking to rely on the clause does not nominate the period then how can it be said to be unequivocal in the light of the wording of that clause. It is not appropriate for the court to guess or speculate what period was opted for. I am very conscious of the fact that in this point of the reasons it has the effect of essentially the tenant's case falling at what might be expressed as the last hurdle but as a matter of law, that is the position.

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Judgment (144 paragraphs)

RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE SNOOK [No 2] [2007] WASC 255 (1 November 2007)

Legislation Cited (2)

Cases Cited (5)