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Tai v Baleinagusui [2012] FJHC 1232; HBC274.2006 (25 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO.HBC 274 OF 2006

BETWEEN:

DAVID TAI AND MRS LING GAO
Plaintiffs

AND:

PENI TOA BALEINAGUSUI AND
DHARAM BALEINAGUSUI
First Defendants

AND:

SGT. SULIANO MOCEILEKUTU AND
THE COMMISSIONER FOR POLICE
Second Defendants

Mr N Nawaikula for the Plaintiffs.
First Defendants in Person.
Mr S Raramasi for the Second Defendants.

JUDGMENT

The Plaintiffs commenced this action by writ issued from the Court on 29 June 2006. Attached to the writ was the Plaintiff's Statement of Claim.

The Plaintiffs' claim arises out of a tenancy agreement dated 4 August 2004 made between the First Defendants as landlords and the Plaintiffs as tenants. Under the agreement the Plaintiffs leased the premises situated at 14 Mika Dreu Place Namadi Heights for a period of two years commencing on 8 August 2004 at a rental of $1,900.00 per month.

The Plaintiffs claim that on 19 April 2006 the First Defendants with their agents forcibly entered the rented premises and removed the motor vehicle belonging to the Plaintiffs. It is claimed that the First Defendants had retained the vehicle up to at least the date of issue of the writ.

It is also alleged that on 15 May 2006 the First Defendants locked the Plaintiffs out of the premises and prevented them from entering the rented premises.

The Plaintiffs allege that the First Defendants had no right and no court order that would have permitted the First Defendants to seize the motor vehicle or lock the Plaintiffs out of the premises.

The Plaintiffs claim that they suffered loss and damage as a result of the wrongful actions of the First Defendants. The Plaintiffs claimed that they were forced to live in a hotel since 19 April 2006. They claim that they had been denied the use of their motor car. They also claim that they were unable to operate their business because the First Defendants had confiscated their personal computer, diving compressor and business contacts.

In respect of the Second Defendants, the Plaintiffs allege negligence on the basis that the Second Defendants had failed to lay charges against the First Defendants for trespass, forcible entry and unlawful detention of goods. The Plaintiffs alleged that the events of both 19 April and 15 May 2006 had been reported to the Second Defendants on the day in question in both cases.

In the writ the Plaintiffs sought (i) an order directing the return of the motor vehicle, personal effects and the rented premises, (2) damages to be assessed and (3) costs.

In the Defence, the First Defendants allege that the Plaintiffs breached the tenancy agreement by failing to pay the monthly rental as and when it fell due. The First Defendants claimed that a breach of the agreement terminates the agreement. It was also alleged that the First Defendants levied a distress for rent and that their actions on 16 April and 15 May 2006 were lawful.

In paragraph 5 of the Defence the First Defendants refer to proceedings commenced by them in the Magistrates Court at Suva (No. 35 of 2006) which the Plaintiffs failed to attend. They raise issues of standing and res judicata in respect of the present action by the Plaintiffs.

The First Defendants also allege that the property is detained under distress for non-payment of rent under the Distress for Rent Act.

The First Defendants deny that the Plaintiffs have suffered loss and damage, or alternatively if they have, it is their own fault. Although there appears to be a claim for outstanding monies owing to the First Defendants, this has not been pleaded as a counterclaim and will not be considered.

The Defence of the Second Defendants was filed on 12 August 2008. The Court need not consider the claim against the Second Defendants as during the course of the hearing the Court ordered by consent that the action against the Second Defendants be struck out with no orders as to costs.

Pursuant to the Minutes of the Pre-Trial Conference ownership of the rented premises by the First Defendants and the terms of the tenancy agreement as pleaded by the Plaintiffs were agreed facts.

The hearing of the action commenced on 11 July, continued on 12 July and was completed on 13 July 2011. The Plaintiffs called two witnesses and the First Defendants called four witnesses to give evidence. At the conclusion of the trial the parties sought and were granted leave to file written final submissions. The Plaintiff filed written submissions on 7 February 2012 and the First Defendants filed written submissions on 2 September 2011 and 27 February 2012. The Plaintiffs have not filed reply submissions.

I am satisfied that on 7 March 2006 the Magistrates Court entered judgment for the First Defendants against the Plaintiffs in the sum of $5,700.00 plus costs. I am also satisfied that this claim was for unpaid rent owed to the First Defendants by the Plaintiffs. It is not clear from the sealed order for what period of unpaid rent the order covered. It is clear it was for three months rent at $1,900.00 per month. It would appear that by 19 April 2006 an additional three months rent was owing, bringing the total amount of rent owed by the Plaintiffs to $11,400.00.

I am satisfied that on 19 April 2006 the firstnamed First Defendant together with a licensed Bailiff attended at the rented premises. Later on the same day a real estate agent also joined them at the premises. There was a conflict in the evidence as to what was said, what happened and where on the premises certain events took place. The end result was that the firstnamed First Defendant arranged for the Plaintiff's vehicle to be driven away from the premises and parked at the home of the First Defendants situated next door to the rented premises. The firstnamed First Defendant maintained that this was pursuant to an offer made by the firstnamed Plaintiff during the course of discussions between the parties at the premises during the morning of 19 April 2006.

However the firstnamed Plaintiff did not give evidence and was not present during the trial. The evidence given by the second named Plaintiff on this matter was brief. She stated that the car keys were taken from where they had been left hanging. Under cross examination she admitted that the estate agent had gone upstairs to inspect the rooms and came back down with the car keys. She maintained that she did not hear the firstnamed Plaintiff give permission for the First Defendants' estate agent to impound the car.

The problem for the First Defendants is that the claim that the car was taken with the permission of the Plaintiffs was not pleaded nor referred to in the Defence. In their Defence the First Defendants have relied only their right to seize property as distress levied for rent. However, in a written police interview which was started at 9.40am and completed at 10.30am on 12 June 2006 the firstnamed First Defendant on page 5 stated:

"No. In fact David had given me the approval to keep his car until 8 May 06 when he will come and pay his rent and for me to release his car but until to date he has not come in to pay anything."

In the same interview the firstnamed Defendant accepted that this "deal" was not in writing but "he just verbally said it." The firstnamed Defendant stated that as at the date of the interview the car was still parked there and the estate agent held the keys.

The evidence that could have rebutted the claim by the firstnamed First Defendant should have come from David Tai, the firstnamed First Plaintiff. Mr Tai did not give evidence. The action had been mentioned on 25 March 2011 and on that day was fixed for hearing on 11 – 12 July 2011. Counsel for the Plaintiffs accepted and agreed to the trial dates. There was no acceptable reason for the firstnamed Plaintiff not attending the trial and giving evidence. There was no request for an adjournment to enable him to give evidence and there was no application for his evidence to be taken by any other alternative means (such as skype). Furthermore, the evidence given by the firstnamed First Defendant on this point, although not pleaded, was not objected to nor challenged by Counsel for the Plaintiffs. The failure to call the firstnamed Plaintiff to give evidence without a reasonable/acceptable explanation for not doing so permitted the Court to infer that the firstnamed Plaintiff may not have had anything useful to say in support of the Plaintiffs' position on this issue. As a result the failure to call the firstnamed Plaintiff is a fact which constitutes a separate item of circumstantial evidence in favour of drawing an inference against the Plaintiffs in respect of their claim that the vehicle had been seized. (See Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298).

On balance I find that the motor vehicle was removed from the rental premises with the consent of the firstnamed Plaintiff and driven to the premises next door where it remained as at the date of the issue of the writ.

As for the allegation of forcible entry on 19 April 2006 I find that the firstnamed First Defendant and his Bailiff did force the gates open since the Plaintiffs had changed the padlock. The First Defendants' key did not open the lock. I find that the firstnamed First Defendant and his Bailiff then entered the property, the ground floor of the premises and that the estate agent subsequently went upstairs. I also accept the evidence given by the firstnamed First Defendant that he did not enter the property with the intention of evicting the Plaintiffs. It appears the intention was to recover outstanding rent and/or to levy distress.

The issue is whether the firstnamed First Defendant was lawfully entitled to enter the property under those circumstances. By leasing the premises to the Plaintiffs the First Defendants deprived themselves of the right to possession during the term of the lease. If the First Defendants had entered without the Plaintiffs' permission or without reserving the right to do so (expressly or impliedly) they are liable to be treated as trespassers. Under the tenancy agreement the First Defendants had a right to enter on the rented premises at all reasonable time with the prior appointment with the Plaintiffs for the purpose of inspection and for maintenance and repairs work. While it may be that this clause does not assist the First Defendants, there are statutory provisions in the Property Law Act Cap 130 that need to be considered. Section 91 states:

"In every lease of land there shall be implied the following powers in the lessor, his personal representatives and transferees:

(a) that (he or) they may, by _ _ _ themselves, or _ _ _ their agents, at all reasonable times, enter upon the demised premises and view the state of repair thereof _ _ _;

(b) that whenever the rent reserved is in arrear he or they may levy the same by distress;

(c) that whenever the rent or any part thereof, whether legally demanded or not, is in arrear for the space of one month, or whenever the lessee has failed to perform or observe any of the covenants, conditions or stipulations contained or implied in the lease, _ _ _ he or they may re-enter upon the demised premises (or any part thereof in the name of the whole) and thereby determine the estate of the lessee _ _ _ but without releasing him _ _ _ from liability in respect of the breach or non-observance of any such covenant, condition or stipulation."

It is apparent that for the purpose of inspection or in the case of non-payment of rent the First Defendants were entitled to enter the premises either to serve a notice (if necessary) or to levy distress. They may also enter the demised premises with an intention to determine the tenancy by forfeiture or re-entry.

The term "distress" connotes an entitlement without legal process for a person to take into his possession the personal chattels of another person, to be held as a pledge to compel the satisfaction of a debt or demand. The right of a landlord to distress for arrears of rent arises at common law and need not be expressly stated in the tenancy agreement. The landlord may secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent is due (See 13 Halsbury Fourth Edition 107). To a limited extent the common law remedy has been modified by the Distress of Rent Act Cap 36. It should be noted that under section 3 (1) of the Act the requirement to hold a licence to act as a bailiff to levy distress for rent does not apply to a landlord in person. The only other restrictions imposed under that Act relate to articles that are exempt from distress and time for making distress. In my judgment the use of the word "seize" indicates that the act of levying distress is an event that occurs without the consent of the tenant from whom the goods were taken.

I accept that the firstnamed First Defendant, his Bailiff and agent attended at the premises with the intention of levying distress. Under section 91 of the Property Law Act they were entitled to enter the premises for that purpose. I accept that there were also other breaches of the tenancy agreement that the First Defendants were anxious to have rectified. As already indicated I have concluded that the firstnamed Plaintiff gave express permission for his vehicle to be driven away. It was not seized. No other goods were removed by or on behalf of the First Defendants.

Under those circumstances I am not satisfied that the removal of the vehicle by consent constituted distress for rent levied by the First Defendants or their estate agents. Furthermore, there was no breach of the Distress for Rent Act.

The only allegation against the First Defendants in respect of the events that occurred on 15 May 2006 is set out in paragraph 6 of the Statement of Claim. In my judgment the evidence indicated that the First Defendants exercised a landlord's right of forfeiture or re-entry. Although the tenancy agreement does not contain an express proviso for re-entry or forfeiture by the landlord for non-payment of rent, section 91 (c) of the Property Law Act implies that right into every lease of land. However there are some restrictions in general terms on the exercise of a right of re-entry or forfeiture that are set out in section 105 of the Property Law Act. Furthermore, pursuant to section 105 (6) the restrictions set out in section 105 apply where a right of re-entry or forfeiture is inserted into the lease in pursuance of the directions of any Act. However it is clear that the right of re-entry given under section 91 (c) is exempted by virtue of section 105 (9) which states:

"This section shall not, save as otherwise mentioned affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent."

The result is that when a landlord exercises a right of re-entry or forfeiture under the term implied by section 91(c) for the non-payment of rent, he is not required to serve on the tenant the notice specified in section 105 (1) of the Property Law Act.

I am satisfied on the evidence before me that as at 15 May 2006 the Plaintiffs were in arrears of at least three months rent and as a consequence the First Defendants were entitled to exercise the right of re-entry without prejudicing their claim for all rent due and payable as at that date. I am not satisfied that the allegation made by the Plaintiffs in paragraph 5 of the Statement of Claim has been established.

There was a great deal of evidence adduced by the Plaintiffs at the trial, most of which did not relate to the two claims set out in paragraphs 4 and 5 of the Statement of Claim. The Plaintiffs have failed in respect of both those claims.

There is no formal counterclaim nor any particulars of a counterclaim in the book of pleadings or on the file kept by the Registry for these proceedings.

In the end I make an order that the Plaintiffs claim be dismissed. The First Defendants are entitled to their costs in successfully defending the action. Up until 9 June 2011 the First Defendants were represented by legal practitioners. Thereafter they appeared in person. The trial took place in July 2011. Most, if not all, of the pre-trial interlocutory work and most of the preparation for the trial had been undertaken by legal practitioners. Under the circumstances I fix costs summarily in the sum of $1,200.00 to be paid to the First Defendants within 28 days.

The orders of the Court are

1. Judgment for the First Defendants.

2. The Plaintiffs' claim is dismissed.

3. The Plaintiffs are to pay the First Defendants' costs fixed in the sum of $1200.00 within 28 days from the date of this judgment.

W D Calanchini
Judge

25 July 2012
At Suva