Pidd v Toscana (WA) Pty Ltd P14/1999 [1999] HCATrans 460 (21 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P14 of 1999

B e t w e e n -

MICHAEL THOMAS HEWISON PIDD

Applicant

and

TOSCANA (WA) PTY LTD

Respondent

Application for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 11.56 AM

Copyright in the High Court of Australia

MR M.T.H. PIDD: I appear in person, if it pleases the Court.

MR M.H. ZILKO: May it please your Honours, I appear for the respondent. (instructed by Ilbery Barblett)

MR ZILKO: Your Honour, before Mr Pidd starts, there are in fact three errors in the application book. I do not know whether much will turn on them but it is appropriate, I think, that I give you the pages with the correct wording in them. The grounds of appeal were amended before the Full Court and Mr Pidd's application book does not contain those words which were included, with the leave of the Full Court.

GUMMOW J: Page?

MR ZILKO: Pages 22 and 23, your Honour. I have clean copies that I can hand to you.

GUMMOW J: Have you got copies for Mr Pidd?

MR ZILKO: I have. I think Mr Pidd has been informed about it by my instructing solicitors. The words that were added by the Full Court are underlined, your Honours.

GUMMOW J: Thank you. Yes, Mr Pidd. You have seen the system that operates. There is 20 minutes and after 15 minutes there is an orange light that goes on.

MR PIDD: I hope not to take that much of your time.

GUMMOW J: Yes, thank you.

MR PIDD: As a lay person, and merely a truck driver, I address this honourable Court with considerable trepidation, particularly bearing in mind the recent reported comments of his Honour the Chief Justice on - - -

GUMMOW J: Do not be intimidated by that, just take us to what you say is the heart of the matter that raises a question of law that we should get involved in, in other words, where the Full Court of the Supreme Court went wrong in your - - -

MR PIDD: The common law has long recognised that any substantial and unauthorised interference by the landlord with the right of the tenant to exclusive possession operates to technically evict a tenant and concomitantly to suspend the obligation of the tenant to pay rent for so long as the interference continues. The origin of this protection and of the possessory rights of the tenant enshrined in the doctrine of eviction can be traced back to at least 1849, Morrison v Chadwick, and was accepted, without question, as recently as 1960 by the English Court of Appeal in Commissioners of Crown Lands v Page. In this respect, I draw the attention of the Court to paragraphs 10 and 11 of my summary of argument and to the authorities cited there on page 64 of the application book.

GUMMOW J: Yes, we have it.

MR PIDD: The liability of the tenant to pay rent, and the corresponding liability of the landlord not to interfere with the tenant's enjoyment of what he has granted, flow out of the grant of the estate and are independent of the covenant. And, 11, the tortious or wrongful deprivation by the landlord of the enjoyment by a tenant of part of the demised premises creates a suspension of the entire rent during the continuance of the deprivation. The tenancy is not thereby put to an end and the tenant is not discharged from the performance of his covenants other than the covenant to pay rent.

If I may go back, your Honour, my argument mainly comes that the Full Court of the Supreme Court of Western Australia fell into serious error by treating the issue before it as nothing more than a proper approach to assessing damages for breach of covenant in a lease and in this respect unquestioningly applied the decision of this honourable Court in the Progressive Mailing House Pty Limited v Tabali Pty Ltd which I will hereinafter refer to as Tabali. If the result of the decision in Tabali is as stated by the Full Court it is a result which has escaped the attention of the learned authors of the various texts on the law of landlord and tenant.

So far as I have been able to ascertain they all, without exception, deal with the issue not under the topic of breach of covenant but under the heading of rent and as one of a number of matters which go to suspend or abate the obligation of a tenant to pay rent. In this respect, I refer the Court to Halsbury's Laws of Australia volume 16, particularly paragraphs 245-3065 and 245-3070 which - - -

GUMMOW J: I think the problem, Mr Pidd, in a way, is that those cases that you refer to, those authorities you are referring to do not quite meet the particular facts here. That is to say, you continued to enjoy use of part of the premises and in a way that is what brought this case into the sort of measure of damages problem that they were concerned with in the courts below.

MR PIDD: Again, if I may refer to Tabali, his Honour Justice Deane of this Court in Tabali, paragraph 4 of his reasoning said:

The actual application to leasehold interests of the common law doctrines of frustration and termination for fundamental breach involves some unresolved questions which are best left to be considered on a case by case basis whereby adequate attention can be focussed on particular problems which might be overlooked in any effort at judicial codification.

I believe the Full Court has overlooked this admonition.

GUMMOW J: Yes.

MR PIDD: The research that I have done, your Honour, says that a wrongful intentional variation of the lease by the landlord can be considered to be an eviction and as an eviction it would lead to an abatement of the rent, as well as other breaches. I am asking you to look more at the law that was used by his Honour in the District Court to come to his conclusions than the findings of fact which he actually outlined in his reasoning. And, for those reasons, it is my respectful submission that it is incumbent on this Court to resolve the uncertainty introduced into the law by the decision of the Full Court.

GUMMOW J: Thank you. We do not need to call on you, Mr Zilko.

This case is dependent upon the particular findings of fact which were made rather than the questions of basic principle which, as has been said this morning, it is sought to agitate in this Court. In particular, the matter depends upon the characterisation of the conduct of the respondent as such a breach of a covenant of quiet enjoyment as to amount to eviction of the applicant tenant. Given that the tenant continued to use part of the premises after the landlord had taken the steps complained of, in our view the result is that there is no reason to think that the Full Court of the Supreme Court of Western Australia wrongly characterised the events to which it then applied the principles of law. Accordingly, there is no reasonable prospect of success of an appeal to this Court. The application for leave to appeal is refused.

MR ZILKO: Your Honours, I seek an order for costs.

GUMMOW J: I think it has to be with costs, Mr Pidd. It is refused with costs.

AT 12.09 PM THE MATTER WAS CONCLUDED