Traill v Hill [1992] FJHC 43; Hbc0079d.92s (28 September 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 79 OF 1992

Between:

1. CECIL TRAILL
2. MARY TRAILL
(as sole executrix and trustee
in the Estate of William Traill)
Plaintiffs

- and -

WAINEWRIGHT HILL
Defendant

Mr. J. Semisi for the Plaintiffs
Defendant in Person

RULING

The plaintiff is a joint registered proprietor of a native leasehold situated at Delainavesi in Lami upon which is erected a house occupied by the defendant on an oral monthly tenancy.

On the 31st of January 1992 the defendant was served with a 'Notice of Quit' from the plaintiff's solicitors which gave him "one month's notice ... to vacate the (plaintiff's) property". The month expired at the end of February 1992 and these present proceedings were issued on the 12th of March, 1992.

The defendant in his affidavit in reply contests the legality of the 'Notice to Quit'. He also denies having received the 'notice' or being in arrears of rent. He further asserts that he has paid rent in advance up to the end of October 1992 as evidenced by a 'self-serving' letter he wrote to the plaintiff on the 28th of January, 1992. No receipts have been produced.

In his submissions before me in chambers the defendant expanded on the advance payments of rent stating that on the 17th of September 1991 he paid the plaintiff $1,200 in rental and then on the 2nd of October 1991 he paid her a further $1,500 making a total of $2,750. Neither of these matters are deposed to in the defendant's affidavit although they may be said to arise obliquely from his letter annexure 'A' to his affidavit of 23rd April, 1992.

On the defendant's own reckoning, assuming that his tenancy began in April 1991, at the rate of $300 per month he would have paid 9 months rent (i.e. up till the end of December 1991). At the rate of $150 per month however the rental would be exhausted at the end of October 1992.

In this latter regard the defendant's letter suggests that the rental of $300 per month was for a 'fully-furnished flat' and for "the flat without furniture and fittings" rental was to be $150. Again this is not deposed to in the defendant's affidavit and like the letter has not been answered in the plaintiffs' affidavits.

Be that as it may whatever might be the terms of the defendant's oral tenancy, it is common ground that in February 1992 the plaintiffs issued a Distress for Rent notice and actually seized and sold some of the defendant's chattels under the said 'notice'.

The details of the distress are not disclosed but if what the defendant claims in his letter of 28th January 1992, is correct then one would have expected the 'notice' to have been the subject matter of a legal challenge or a civil action for the recovery of damages.

Then the defendant refers to Section 89(2)(b) of the Property Law Act (Cap.130) which provides:

"(2) In the absence of express agreement between the parties a tenancy of no fixed duration ... may be terminated by either party giving to the other written notice as follows:

(b) Where the rent is payable for a recurring period of less than one year, notice for at least a period equal to one rent period under the tenancy and expiring at any time, ..."

In this regard the defendant deposed that the plaintiff in her affidavit stated that the relevant 'Notice to Quit' dated 30th January, 1992 terminated the defendant's tenancy on the "... 3rd of February 1992" which effectively gave the defendant '2 days notice' in clear breach of the above provision.

I cannot agree that there has been any breach of the Section. The notice in clear and unequivocal terms granted the defendant "... one month's notice from the date of this letter to vacate the said property" and the fact that the plaintiff may have misunderstood the meaning and effect of the notice does not alter its clear written terms.

In any event the month's notice has long expired and the defendant continues in occupation.

I am satisfied that the plaintiffs 'Notice to Quit' dated the 30th of January 1992 was a "legal notice to quit" which effectively terminated the defendant's monthly tenancy.

Furthermore the defendant has failed to satisfy me that he has a right to possession of the plaintiffs' land and accordingly there will be an order for vacant possession in favour of the plaintiff with execution stayed for a period of 2 weeks from the date hereof.

(D.V. Fatiaki)
JUDGE

At Suva,
28th September, 1992.

HBC0079D.92S