to save the great expense of landlords and tenants in this area of the law. I wholeheartedly agree with his Honour's observation.
14 The first point raised by the landlord's second notice, the gravamen of which I have set out, was that the lessees' notice was insufficient to exercise the option. Mr Beasley, of counsel, who appeared for the landlord, reminded me of what I had said recently in Tsaoucis v Gallipoli Memorial Club Limited (1998) NSW Conv R 55-860. That decision was affirmed by the Court of Appeal. However, I cannot, with respect, see how one can compare the circumstances of the present case with the circumstances in Tsaoucis' case, and the mere fact that notices contained similar phraseology is not sufficient. The Tsaoucis case really concerned a notice that was given well in advance of when it should have been given, and that was the key point in the case. The present notice was given within the three-sixth period that it was required to be given.
15 In my view, looking at the notice fairly, particularly the final paragraph, it is a notice intending there and then to exercise the option, though the penultimate paragraph shows that the tenants were also proposing that they would be happier with a five plus five year lease rather than that to which they were strictly entitled under clause 26.
16 Accordingly, in my view, that argument does not assist the landlord.
17 The landlord's next argument is that the tenants were in breach of the lease as at 15 June 1998. The landlord says they are so in breach for two reasons:
(a) breach of clause 9(c)(iv) re painting; and
(b) breach of clause 9(a) maintaining the premises in good and substantial repair.
18 However, no notice was given under s133E of the Conveyancing Act 1919 by the landlord within the required time, as a result of which that section operates that no such acts or omissions, even if established, can be relied on by the landlord.
19 A problem occurs with a condition such as clause 9(a). As I have said, this was one of the alleged breaches as at 15 June 1998, which was relied upon by the landlord. By an amendment made today, the landlord also said in paragraphs 19 and 20 that there was a breach of clause 9(a) in that the plaintiffs failed to effect repairs to the tiles in units 6 and 9 between 25 June 1998 and 21 August 1999. This is rather odd because the lease finished on 30 November 1998. But putting that aside, one has a second breach of what would appear to be a continuing covenant.
20 As quite clearly appears from the standard textbooks of landlord and tenants, there are three different types of covenants to repair which are common in leases:
(a) a covenant to put in repair;
(b) a covenant to keep in repair; and
(c) a covenant to yield up in repair.
Both (a) and (c) are covenants which may be breached once and for all, and then give rise to only one claim for damages: see for instance, Coward v Gorton (1866) LR 2 CP 153 at 169 to 170. However (b) is a continuing covenant, which may be the subject of separate breaches. I did worry that the fact that a s133E notice had not been given in respect of the covenant in clause 9(a) meant that no breach of clause 9(a) could be relied on by the landlord. However, on more mature consideration, it seems that the words "acts or omissions" were raised deliberately by the Legislature in s133E of the Conveyancing Act so that, even though one has the same covenant, one can look at different breaches.
21 The next matter is whether the landlord or the tenants were guilty of any breach of clause 9(a). This is a very awkward matter and raises at least two problems. The first is whether the problem of the tiles was one which, to quote clause 9(a), involved "the Lessee to do any work of a structural nature". Mr Morahan, counsel for the tenants, said it did. Mr Beasley said it did not.
22 The position was complicated because two "experts" gave slightly different views as to the problem. Looking at the matter sensibly on the evidence, the problem was that the tiles became heated, the adhesive on the floor tiles deteriorated so that the adhesive could no longer hold the tiles in place. Probably there was an inadequate allowance for expansion and when the tiles expanded and the adhesive was no longer capable of retaining them they "popped up".
23 The work that was required to be done was one of three possibilities:
(a) re-lay the tiles by putting more adhesive on them, though one would have thought that would be a rather short term solution because as soon as the adhesive went again the same problem would recur;
(b) re-lay the tiles with proper expansion and proper adhesive; or
(c) remove the tiles.
24 It does not seem to me that any of those three pieces of work involved interfering with the structure of the building; see Hampson v Clyne (1967) 86 WN (NSW) (Pt 1) 321, 322. What clause 9(a) contemplates is that the tenants have the use of the building, but that the wholeness of the building is a matter for the landlord alone. Anything that interferes with the stability of the whole or involves interference with structural members is something for the landlord. Other work is work for the tenants.
25 It may well have been that the tenants would have had to get the landlord's consent to do work which, without that consent, might be a breach of clause 9(b) or 9(d) of the lease. But, even the shortsighted solution (a) that I have mentioned above, could actually have been done by the tenants without being a problem to anybody.
26 Thus, in June/July 1998, it was a matter for the tenants to repair this defect and they have only themselves to blame for any consequences of non-repair, at least up to 2 September 1998 when the landlord made it impossible for them to repair.
27 There was some discussion as to whether renewing the tiles or removing the tiles was a matter of repair. I was referred to authorities such as Lurcott v Wakeley [1911] 1 KB 905. Really, the matter is one of fact. There is a delineation between renovation on the one hand and repair on the other, but many repairs do involve renewing something.
28 Accordingly, between 25 June and 2 September there was a breach of clause 9(a).
29 It is hard to classify the landlord's action on 2 September 1998. I suppose practically speaking, the landlord just thought the units were unsafe, and acted without thinking through the legal ramifications. However, the landlord really had the option of either putting an end to the lease altogether, or doing nothing. The tenants' lease, in any event, was to continue through to 30 November 1998 and the landlord had no right to go onto the premises at all, except for the purposes authorised by the lease such as inspection after due notice. The tenants say that there was a breach of the covenant to peaceably possess and enjoy without interruption by the landlord's action on 2 September 1998. That must be so.
30 Furthermore, the involvement of the landlord was something which would have constituted a trespass against the tenants but the plaintiffs have elected to sue in contract rather than in tort. A further consequence of the action of the landlord is that, as a person cannot benefit by their own wrong, any obligation on the tenants to repair after 2 September until 30 November was, at least, put into suspension because the landlord had put it out of the tenants' power to do so. Moreover, the landlord cannot be heard to say that it had acted wrongfully in acting as it did. Although there was a breach after a reasonable period from 25 June - it continued until 2 September 1998 - there was thus not a breach on 30 November 1998 in respect of clause 9(a).
31 I have put further consideration of clause 9(a) aside for a short time.
32 The other breach is non-payment of rent.
33 The tenants again, it would seem, by some gut feeling, rather than consideration of their legal position, abated the rent from August through to November because they could not let units 6 and 9 due to the problem with the tiles.
34 The question is whether, under clause 11, the premises were substantially fit for use and occupation during this period. If they were, then clause 11(d) would make the rent abate. It seems to me that the landlord's action on 2 September amounts either to an admission, or conduct from which one can readily infer that both landlord and tenants thought that the units were unfit for use and occupation. That is, they were in the same condition from the time of the explosion of the tiles until 2 September. The same must have been the situation in August. Accordingly, in my view, the rent properly abated from August until November, and there was no breach of the covenant to pay rent.
35 Returning then to clause 9(a), there is the matter that the tenants did not have to repair damage caused by reasonable wear and tear. The onus was on the tenants to show that the problem was caused through reasonable wear and tear. But, in my view, on my finding that it was gradual wearing out of the adhesive, then the effects of heating after that wearing down, the problem would appear to be one that was caused by reasonable wear and tear.
36 However, that may not be the end of the matter because, although there was a problem that was caused by reasonable wear and tear, the result was that one had this ridge in the middle of the floor which called out for remedial action and the remedial action was one which had to be done by the tenants. The cases show that if one has a problem through reasonable wear and tear, which results in the premises being exposed, for instance, to water so that they would suffer damage, the obligation under the covenant is on the tenant to make that repair: Regis Property Company Ltd v Dudley [1959] AC 370. It seems to me that the present case falls within that category, so that even though the original problem came through reasonable wear and tear, its manifestation was one that it was a breach for the tenants not to have repaired.
37 One then has to face the problem as to what s133E of the Conveyancing Act really means. It has been the subject of a series of decisions in this court, unfortunately, not all going in the one direction. In previous cases, I have said that where a notice has to be given X months before the end of the lease, and there is an obligation on the tenant to keep the premises in proper repair until the end of the lease, s133E covers the situation up to the notice and thereafter one relies on general equitable principles; see Brennan v Kinjella (1993) 6 BPR 13, 168.
38 The Chief Judge has said that one allows the landlord in such a situation the appropriate period from the end of the lease in which to give the notice: Nessmine Pty Ltd v Devuzo Pty Ltd (1989) NSW Conv R 55-496. Both Bryson J, in Rethmeier v Pioneer House Pty Ltd (1990) NSW Conv R 55-516, and Windeyer J, in the Flagstaff case, declined to follow both those cases and said that the teeth in s133E are drawn at the date of the notice and thereafter the old law of Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) 59 SR (NSW) 122 applied. That law was that a clause such as clause 26 gave to tenants the right to accept the landlord's offer of a new lease if, and only if, they strictly complied with every condition of that offer. If they did not comply with every condition of that offer, then there was just no contract and if there was no contract then it was not possible for equity to give any relief against forfeiture.
39 In my view, in the present case it does not matter which line of authority one follows, as due to the peculiar drafting of this clause the tenants are still entitled to succeed. As I have said, I agree with Windeyer J's remarks that this is a matter that requires the urgent attention of the Legislature, and if more money were involved in the present case, I might have referred it to the Court of Appeal.
40 However, in my view, the approach taken by myself in earlier cases or that taken by the present Chief Judge is more in accordance with what the Court of Appeal said as to the wide construction that must be given to s133E. In Stellar Mining NL v Evanel Pty Ltd (1983) NSW Conv R 55-118 at 56,867, Hope JA, with whom Glass and Samuels JJA agreed, said: