(2000) 201 CLR 552
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
[2006] HCA 27
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Source
Original judgment source is linked above.
Catchwords
(2000) 201 CLR 552
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256[2006] HCA 27
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Judgment (2 paragraphs)
[1]
Judgment
The plaintiff applies pursuant to r 13.1 of the Uniform Civil Procedure Rules ("UCPR") for summary judgment for possession of land and for leave to issue a writ of possession. The property concerned is a rectangular area of the seabed measuring 84.7 m2 located approximately 8 m to the north-west of the shoreline at Pearl Bay, a cove on Middle Harbour adjacent to the western shore of the Spit at Mosman.
The plaintiff alleges that the defendant has been the lessee of the property under a lease executed dated 17 May 2012 for a term of 20 years commencing on 14 December 2009. The defendant has not paid the reserved rent since 1 July 2012. Notice of termination for non-payment was given on 9 January 2018 and the plaintiff says the lease came to an end on that date. The defendant remains in possession.
On 13 November 2017, in separate proceedings removed into this Court from the Local Court, the plaintiff obtained default judgment for unpaid rent accrued up to 13 June 2014. The judgment was for a total of $8,661.14 inclusive of interest and costs. When the defendant applied to a judge of this Division to have that judgment set aside her application was dismissed on 6 December 2017. The Court of Appeal refused leave to appeal on 21 May 2018. The High Court refused special leave on 8 February 2019.
The plaintiff's present application includes a claim for summary judgment for further arrears of rent, in the sum of $11,395, for the period 14 June 2014 to 9 January 2018. Judgment is also sought for an unlawful occupation fee from 10 January 2018 to the present time.
Rule 13.1(1) of the UCPR requires that a summary judgment application be supported by evidence of the facts on which the plaintiff's claim is based and evidence of a responsible person within the plaintiff organisation that, in the belief of that person, the defendant has no defence. Both these requirements are satisfied by documents tendered on the application together with an affidavit of Robert Ghanem affirmed 8 February 2019. Mr Ghanem is a solicitor in the Crown Solicitor's office who has carriage of this proceeding.
The defendant filed an amended defence on 14 May 2018. She is unrepresented and has drafted the document herself. It does not disclose an arguable defence. In order to explain why that is so it is necessary to refer to some background events.
The plaintiff is a statutory corporation and is the successor to the Maritime Services Board of NSW, the Marine Ministerial Holding Corporation and the Maritime Authority of NSW, in that chronological order. For simplicity I will refer to each of these entities and to Roads and Maritime Services, without distinction, as "the plaintiff". The plaintiff is the registered proprietor of the seabed in the relevant part of Middle Harbour.
The defendant has since the 1980s occupied a houseboat moored over the leased property. For a term of three years from 1 January 1988 she had a lease from the Maritime Services Board of an area of 65 m2 together with the sites of two mooring chains that were laid in an offshore direction beyond the leased area. The houseboat consists of a rectangular ferro-cement pontoon with a timber superstructure. There is a rigid walkway from the inshore side of the pontoon to a concrete wall at the shoreline. Mooring lines and/or chains attach it to the shore and, on the offshore side, to mooring blocks on the seabed.
From 1995 (and perhaps earlier) the defendant was in dispute with the plaintiff about her rights in respect of the property. She brought proceedings in this Court against the plaintiff in 1995 and 2000. On 18 September 2009 the defendant entered into a Deed of Release with the plaintiff and with a firm of solicitors who had been advising her and against whom she had made further claims. By cl 4.1 of the Deed the defendant released and discharged the plaintiff from "any Claim". Claim was defined in cl 1.1(a) to include:
claim, suit, cause of action, obligation, demand or liability that exists at the time of this Deed, in law or in equity or under statute which arises out of, or is in any way connected with the matters recited in this Deed or the subject of the facts alleged in the Local Court proceedings or the Supreme Court proceedings.
The "matters recited in this Deed" were of such width that the above definition of Claim encompassed - and the defendant therefore released - any claim that she might otherwise have had by way of legal or equitable proprietary claim to the relevant area of the seabed or to the use or occupation of the site and any claim with respect to the mooring of her houseboat there or her use of it as a residence. In consideration for this release the Deed provided that the parties would enter into a lease in the form of an annexed draft. It was also agreed that the defendant be paid $700,000, which in due course she received.
By a combination of cl 2.1(a) and a Reference Schedule, the draft lease annexed to the Deed provided for a term of 20 years in respect of an area of 86 m2 in the location of the houseboat. This was shown on an attached survey plan. Cl 2.1(b) in combination with the Schedule provided for a non-exclusive licence over the locations of mooring chains marked on the survey plan. Under statute law that need not be cited for present purposes, a lease for 20 years of an area that was part of a larger title required that there should be a subdivision of the leased parcel. Subdivision in turn required that a survey be made and that development consent be given. The operation of the Deed was expressly conditional upon the plaintiff obtaining such consent within three months.
A survey was completed by 20 October 2009 and showed that the final measured area occupied by the houseboat was 84.7 m2. On 27 November 2009 development consent for the subdivision was given by the plaintiff itself, which was the relevant consent authority. The subdivision was registered as Deposited Plan 1146276. It showed three lots. Lot 1 was the 84.7 m2 over which the houseboat was moored together with the location of the rigid walkway to the shore. Lot 2 was in two parts, being the areas enclosed between the inshore side of the pontoon and the shoreline, one part on either side of the rigid walkway. Lot 3 was a perimeter about 1 m wide surrounding the other two lots on three sides. This perimeter projected out from the shoreline, perpendicular to it, on each side of the houseboat and across the offshore side of the houseboat. Together with the shoreline as the fourth side, this perimeter enclosed the area to be occupied by the moored houseboat, the rigid walkway and the shore side mooring lines.
Once the subdivision consent had been obtained, a lease in the form annexed to the Deed of Release was executed on 14 December 2009. The plaintiff then encountered difficulty in securing registration of the lease with Land and Property Information. Notwithstanding this, the defendant maintained her houseboat on the leased area and resided in it and paid rent up until mid-2012. By 17 May 2012 the plaintiff had prepared a fresh lease with some slight changes that satisfied the Registrar General. The parties executed this on 17 May 2012 and it was registered on 26 June 2012.
In her amended defence filed 14 May 2018 the defendant denies that a lease was executed on 17 May 2012 (par 3) then admits execution (par 3.1). It is clear beyond argument that the lease was executed. On every page of the registered lease there is a signature closely comparable to the defendant's signature on affidavits and other court process. The defendant has tendered no evidence to suggest that the signature is forged. The conflicting paragraphs of the amended defence are merely a manifestation of the incoherence of the pleading and of all aspects of the defendant's resistance to the plaintiff's claim.
The lease that was executed on 14 December 2009 has not been tendered. Upon execution and registration in mid-2012, the subsequent lease replaced the earlier document as the instrument under which the defendant has had her leasehold interest from 14 December 2009. In the remainder of these reasons I refer to the registered lease executed on 17 May 2012 as "the lease".
The covenant for rent in the lease is cl 3.1, as follows:
3.1 The Lessee must pay the Total Rent without demand and without set-off or counterclaim and free from any deductions, to the Lessor during the Term.
The amount of rent and the dates for payment are specified it Item 5 of the Reference Schedule. For the first two years it was $4,500 per annum payable in advance. For subsequent years the rent is calculated under a formula and is payable in advance either on the anniversary of the lease, or quarterly if the plaintiff agrees to this in writing.
Clause 12.3 provides that cl 3, concerning rent, is an essential term. Clause 12.4 specifies events of default that give rise to a right in the plaintiff to terminate, either by re-entry or by notice in writing. Extracts of the relevant parts of these operative clauses are as follows:
12.4 In the event that, at any time during the term:
(i) the Total Rent or any other money payable by the Lessee under this Lease remains unpaid for ten (10) Business Days after the date appointed for payment, with demand …
THEN the provisions of Clauses 12.5 and 12.6 of this Lease will apply.
12.5 Where any event referred to in Clause 12.4 … of this Lease occurs, the Lessor may, in its absolute discretion:
(a) terminate this Lease by re-entering and taking possession of the Premises with or without notice; or
(b) terminate this Lease by notice in writing to the Lessee …
It is not in contest that the rent payable under the lease has remained unpaid in breach of cll 3 and 12.4(i). The defendant has acknowledged non-payment in her amended defence. In oral submissions on the hearing of the plaintiff's notice of motion the defendant acknowledged that she has paid no rent since 1 July 2012. Demand for the rent was made before the plaintiff's notice of termination was issued on 9 January 2018, including by the commencement in 2013 of the proceedings that resulted in the default judgment entered on 13 November 2017 for $8,661.14. The notice of termination recited non-payment of rent from 1 July 2012. In par 12 of the amended defence it is admitted that this notice was served. The lease has been at an end since 9 January 2018.
To ascertain whether there is a triable issue upon which the defendant might resist the plaintiff's claim at final hearing, the Court is required to examine both the pleading and the evidence available on the summary judgment application. If a legally cogent defence is pleaded but depends upon allegations of fact that are shown by incontrovertible evidence to be without substance, then the plaintiff's application should succeed. The approach required to be taken to such an application is that stated by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at p 575-576, as follows:
It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
That formulation was repeated by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46]. See also Spencer v Commonwealth of Australia [2010] HCA 28 at [24] (French CJ and Gummow J) and at [53]-[55] (Hayne, Crennan, Kiefel and Bell JJ).
As best I can understand the amended defence, taking into account the defendant's oral submissions, it is intended to make the following assertions. In par 1 the defendant alleges that when the subdivision was carried out as required under the Deed of Release, the plaintiff failed "to subdivide her whole site". In submissions she explained that this refers to an area of 1300 m2 shown on a survey dated 8 July 2004. That survey depicts the location of the houseboat and of its moorings extending offshore. The surveyor's note shows a calculation of the total area enclosed by the mooring lines and the perimeter of the houseboat pontoon, namely, 1300 m2. The defendant asserts that she was entitled under the Deed of Release to have a lease in respect of this larger area.
This contention is fanciful and insupportable. On a straightforward reading of the Deed it very clearly identifies only the area under the houseboat as the property in respect of which it was agreed a leasehold would be granted. The parties did not contract under this Deed for the defendant to receive a lease of a larger area enclosed by mooring lines. Even if it were open to the plaintiff to re-agitate her entitlements under the Deed, rather than being bound by the lease that she executed and which has been registered, she has shown no arguable claim in respect of this larger area.
In par 1 of the amended defence it is further alleged that the defendant's "residential status [was replaced with] a recreational status" because the area leased to her is a "recreational mooring (boat) pen site". It was explained in the defendant's oral submissions that she claims to have suffered loss because her rights under the lease are no more than those of a licensee of a boat mooring and that the lease is consequently very much less valuable than a residential lease would have been. The defendant wishes to contend that she has suffered loss not only through receiving a leasehold of low capital value but also through being unable to pledge the lease as security for borrowings.
If this represents any claim at all it is not a defence to the plaintiff's demand for possession under the terminated lease. The lease provides in cl 4.1 that the premises are to be used for private purposes "in connection with the residential use" of the let area and in accordance with the "Permitted Use" as defined in Item 3 of the Reference Schedule. Item 5 permits securing the houseboat and walkway at the location. Special Condition 17, found in Annexure C to the lease, provides as follows:
17. Despite any other provisions of this Lease and subject to the Lessee complying with the requirements of the Law [defined as all statute and common law], including the Development Consent, the Lessor acknowledges that the Lessee may reside on the houseboat "Tanderra".
"Tanderra" has been the name given by the defendant to her houseboat since the 1980s.
The first reason why the assertion that the lease is not "residential" does not give rise to a triable defence is that, having regard to the provisions referred to in the preceding paragraph, the argument is negated by the unambiguous terms of the instrument. Secondly, the lease was executed and registered and binds the parties irrespective of whether it is properly characterised as "residential" or "recreational". Thirdly, the lease accords with the form of draft that was annexed to the Deed of Release. It is therefore the form of lease that the defendant agreed to take. The defendant's pleading shows no basis upon which she could contend that the lease is not binding.
Fourthly, if the defendant's intention was to deny the validity and enforceability of the Deed in order to assert that she was never bound to accept a lease in the form that was annexed thereto, she has not pleaded such a case. Fifthly, even if the defendant were to mount a case that the Deed did not bind her and that the lease, which conforms to the Deed, was not one that she was obliged to enter into, this would do no more than remove the only instrument under which she has, since 14 December 2009, occupied the leased area. The amended defence does not propound any alternative source of a legal right to remain in possession of this portion of the plaintiff's land.
In par 1.1 of the amended defence the alleged non-residential status of the lease is reiterated. This paragraph adds that the Deed of Release was fraudulent because at the time the Deed was executed the plaintiff had "plans … to remove the residential houseboats from the harbour". This loose allegation is not accompanied by any pleading of the several elements of falsehood, knowledge or recklessness as to untruth, materiality, reliance, causation and detriment that would be necessary to show that the Deed of Release is vitiated by fraud. Even if the defendant were to plead a complete cause of action challenging the validity of the Deed, the second and fifth points referred to above would still apply. The defendant is bound by the executed and registered lease, even if the Deed did not bind her to execute it. Neither an attack on the binding force of the lease or on that of the Deed under which she signed it can provide any case as to an alternative source of a right to remain in occupation of the land.
In par 2 the defendant baldly alleges that she "had not repudiated the contract by refusing to pay rent" and that such rent as she has paid from 14 December 2009 up to 30 June 2012 is "refundable to her". This is repeated in par 5, where it is said that the plaintiff "wrongfully charged rental" from 14 December 2009 and that the plaintiff's claim for rent accruing since 1 July 2012 "has been set off by the rental paid from January 2010 to June 2012". No factual or legal basis for these contentions is pleaded. Paragraph 2.1 pleads that the "plaintiff had made no attempt to mitigate its loss and refused all offers by the defendant to negotiate and settle the issues". These assertions are meaningless in the context and do not identify any triable issue concerning the plaintiff's entitlement to recover possession of the property.
In par 3 the defendant alleges that the plaintiff repudiated the original lease dated 14 December 2009, which could not be registered, and in par 3.1 she asserts that the plaintiff also repudiated the lease executed on 17 May 2012. No particulars of repudiatory conduct are given beyond "breaches of essential terms". In an earlier section of the pleading, where the defendant purports to specify relief claimed by her, it is alleged that she "elected to keep the lease contract going and sue for damages" (order 1). On the other hand, in oral submissions the defendant informed the Court from the bar table that she accepted the repudiation, after it had been pointed out to her that if the plaintiff had indeed repudiated then the effect of her acceptance would be to bring the term to an end.
There is neither a particularised allegation nor any evidence of breach of essential terms by the plaintiff. I do not attach significance to the defendant's conflicting claims, on the one hand to have kept the lease on foot and, on the other hand, to have brought it to an end. The net result is that her allegations of repudiation by the plaintiff hang in the air and are not connected with any other factual assertions that could combine to identify an arguable defence to the plaintiff's claim for possession.
In par 8 the defendant alleges that from August 2017 she "was exposed to the danger of worn and defective crane rigging" and to "asbestos dust" during works on a neighbouring houseboat. In par 8.1 it is alleged that a marine consultant engaged by the defendant to advise her in relation to these works was the subject of threats by the neighbour's contractors. These allegations are not in any way connected to others in such a way as to describe a defence to the plaintiff's claim for possession.
The remaining paragraphs of the amended defence repeat a number of matters already alluded to and do not raise anything additional. The 16 paragraphs of relief claimed at the commencement of the pleading might be simply disregarded as irrelevant to a defence. However, despite purporting to specify orders that the defendant seeks, these paragraphs contain allegations of fact and partial references to principles of law. I have therefore searched through them in the quest for an arguable defence that the defendant may be attempting to articulate. Nothing has turned up.
In the above summary I have quoted only a few phrases from the amended defence and have otherwise condensed the defendant's contentions. There are fifteen pages of this pleading, comprising much reiteration of the above-mentioned grievances and a sprinkling of inapposite fragments of law. If the defendant should prove the disconnected and disordered facts that she has pleaded and if she should invoke each of the legal concepts to which she has made imperfect reference, there would not be shown any basis upon which the plaintiff could be denied judgment for possession of the land and for the unpaid rent and the occupation fee.
On 12 April 2019 the defendant was directed to file by 17 May 2019 any evidence she wished to rely upon in opposition to the motion. None was filed. The defendant did not endeavour to read any affidavit at the hearing. She tendered a number of documents that were almost entirely repetitive of those in the plaintiff's court book, in particular in the attachments to the affidavit of Mr Ghanem. I have looked beyond the amended defence to ascertain whether, notwithstanding the defendant's inability to articulate an arguable case, the evidence might nevertheless disclose one. The answer is that it does not.
At the hearing the defendant sought to file in court a notice of motion claiming, inter alia, the following relief (underlining and anomalies of expression as in the original):
1. Judgment for the Defendant against the Plaintiff for unliquidated damages for the values of the residual years terms, of a recreational boat pen Domestic Lease, by termination of [the lease executed on 17 May 2012] by service of a Notice of Termination of Lease dated 9 January 2018 by the Plaintiff.
4. All rental found due to the Plaintiff under [the lease] shall be offset and the due amount is to be deducted from the Unliquidated Damages after final assessment.
5. The claims for unliquidated damages for the domestic lease must in no way whatsoever be taken to be part of any property claims in the other pleadings in proceedings 2018/83808 or in proceedings 2014/198018 and 2013/249441.
The plaintiff complained that she had been unable to file this notice of motion in the Registry because the staff would not waive the filing fee. There is no reason why filing fees should be waived for the defendant. At least ten decisions of this Court have been reported on Caselaw in the course of the defendant's dispute with the plaintiff over the past six years. These show that she has made numerous applications, almost invariably without reasonable ground and often repetitive of previous unsuccessful applications. The defendant is a very high volume user of the Court's resources. Prima facie, her high failure rate and the reasons given by judges on the numerous occasions on which her applications have been dismissed suggest that her frequent resort to this Court may well be vexatious within the meaning of s 6(c) of the Vexatious Proceedings Act 2008 (NSW). If the defendant should make any further application to which the plaintiff is a respondent, the plaintiff should examine carefully whether such application is supported by any reasonable ground. If not, consideration should be given to whether orders ought to be applied for under Vexatious Proceedings Act.
The fact that the defendant has for seven years not paid to a public authority any of the rent due under her lease is another reason why waiver of the filing fee for yet another application in this dispute would not be justified. A further reason, applicable to this particular notice of motion, is that the claims for relief are manifestly unsustainable. That was the reason for my refusal to entertain it on the morning of the hearing, irrespective of whether an undertaking to pay the filing fee should be offered.
Paragraph 1 of the relief sought in the proposed notice of motion lacks any foundation because the defendant does not have on foot a viable cross-claim for unliquidated damages upon any cause of action. Her amended cross-claim filed herein on 14 May 2018 was the subject of a strike out application upheld by Wilson J on 30 November 2018: Roads and Maritime Services v Maureen Young [2018] NSWSC 1867. The effect of that decision was to remove all but paragraphs 1-9 of the pleading. Those paragraphs are introductory and do not disclose a cause of action.
Paragraph 4 of the proposed notice of motion is integral to paragraph 1 and does not need to be considered separately. In paragraph 5, the first Court file number referred to is of this current proceeding. The third file number is of the plaintiff's action to recover rent up to 13 June 2014. That recovery action commenced in the Local Court and was removed into this Court. It resulted in the default judgment of 13 November 2017. That proceeding is now concluded and the file is closed. The second Court file number referred to in paragraph 5 of the notice of motion relates to the application for removal of the Local Court rent recovery action into this Court. Once the removal had been ordered, that matter was concluded. Accordingly, that file is also closed. Therefore, the defendant has no "property claims" in any of the three proceedings referred to in paragraph 5 of the proposed notice of motion and that paragraph is meaningless.
The plaintiff is entitled to summary judgment for the relief it has claimed. Judgment for the plaintiff will be entered for possession of the leased area. Leave will be granted to issue a writ of possession forthwith. Judgment will also be entered for the additional unpaid rent from 1 July 2012 to 9 January 2018 and for an occupation fee in respect of the defendant's continuing possession of the land from 10 January 2018 until she is removed. Subject to any submission the defendant may be able to make as to why costs should not follow the event, she will be ordered to pay the plaintiff's costs, which I would propose to assess forthwith in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).
[2]
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Decision last updated: 13 August 2019