Narayan v Krishna [2012] FJMC 223; Civil Action 198.2009 (21 September 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI

CIVIL ACTION N0: 198/2009

BETWEEN:

PREM NARAYAN,
Plaintiff

AND:

AVINESH KRISHNA
Defendant

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Messrs Patel Sharma Layers for the Plaintiff,
Messrs Nands Law for the Dependant,

Date of the Judgment: 21st of September 2012.

JUDGMENT

1. The Plaintiff instituted this proceedings against the Defendant by filing a writ of summon together with his statement of claim seeking following orders inter alia,
   
   1. Judgment in the sum of $9,080,
   2. Cost of this action,
   3. Such other or further relief as this honorable court may deem just.
      
2. The plaintiff claims in his statement of claim that on or about 26th day of January 2009, the plaintiff and the Defendant entered into a tenancy agreement whereby the defendant was to rent the property owned by the plaintiff at Lot 15, kaba Street, Tamavua, Suva for a period of 12 months with effect from 15th of February 2009. The plaintiff further stated that the agreed rent was $850 per month. The defendant failed to pay the full rent of three months from 15th of May 2009 to 15th of August 2009. The defendant then vacated the flat without any defined notice of termination of the Tenancy agreement or have the defendant expressed any reason to vacate the flat.
   
3. The plaintiff further stated that the defendant had damaged the property and he had to spend a sum of $ 430. The plaintiff claimed the arrears of rent for 3 months (15th of May – 15th of August 2009), Rent payable for remaining term of Agreement (6 months), Incurring undue air fares to landlord resulting from breach of tenancy agreement, damages/general cleaning to premises totaling sum of $9,080.
   
4. The Defendant in his statement of Defence denied the plaintiff's claim and stated that he informed the plaintiff that he would vacate the premises by end of June 2009 and that is a sufficient and reasonable notice of termination. The defendant contended that the tenancy agreement is unreasonable and no specific clause of termination. The defendant denied any areas of rent money and affirmatively stated that he paid all due rent together with extra $600 at the time of handing over of the key. The condition of the house was really unsatisfactory at the time of the commencement of the lease and the defendant claimed that he handed it over in a good condition contrast to the condition at the time he commence the lease.
   
5. Subsequently, both the plaintiff and the defendant filed their agreed facts and the disputed facts in this case pursuant to order XVII of the Magistrates' courts' rules. The agreed facts and the disputed facts are;
   

AGREED FACTS

1. That the Plaintiff had let out his flat at 15 Kaba Street, Tamavua, Suva to the Defendant.
2. A Tenancy Agreement was signed on the 26th of January 2009 for a period of 12 months with effect 15th February 2009.
3. Rent was $850.00 per month payable on the 15th of each month.
4. That the Defendant has paid a sum of $3,400.00 to the Plaintiff
   

ISSUES TO BE TRIED BY THE COURT

1. Whether the Tenancy Agreement dated 26th January 2009 was unreasonable and unfair.
2. Whether the Plaintiff was entitled to claim bond money from the Defendant.
3. Whether the Defendant has paid all the Rent monies or does he still owes 3 months' rent to the Plaintiff from 15th May 2009 to 15th August 2009.
4. Whether the Defendant is deemed in possession of the premises until he handed over the keys on the 24th July 2009 to the Plaintiff.
5. Whether the Defendant is liable to claim rent for the remaining 6 months.
6. Whether the Plaintiff is entitled to claim for the air fares, damages and general cleaning to the premises.
7. Whether the Defendant vacated the flat without any defined notice of termination and without any valid reason.
8. Whether the Defendant paid extra sum of $600.00 to the Plaintiff.
   

6. The case was set down for the hearing on the 1st of April 2011. The plaintiff gave evidence for the plaintiff but did not call any witness. The defendant himself gave evidence on oaths. Subsequent to the record of evidence from the plaintiff and the defendant, the both learned counsels for the plaintiff and the defendant were invited to file their respective closing submissions which they filed accordingly. Further, I invited the learned counsel for the parties to file further submission on the legal issues which only the learned counsel of the plaintiff filed.
   
7. Having considered the pleadings of this proceeding, I now turn to briefly review the factual background of this case in line with the evidence adduced by the plaintiff and the defendant. The plaintiff claimed that the defendant approached him and expressed his willingness to rent out the flat at lot 15, Keba Street, Tamavua. After series of negotiation, the both parties agreed the rent money for a sum of $850 per month and entered into the written agreement to lease on the 26th of January 2009 for a period of one year commencing from 15th of February 2009. The plaintiff asked for bond as a security deposit at the commencement of the lease period which was not stipulated in the lease agreement. The defendant paid the bond and paid rent money up to 15 of May 2009 and defaulted payment of rent for a period 15 of May to 15th of August 2009. The Defendant vacated the flat on the 25th of June 2009 but handed over the keys on 24th of July 2009 wherefore the defendant was deemed to be possession for the month of 15th of July to 15th of August 2009 and the plaintiff is entitle for the rent of that period. Further the plaintiff claimed that he is entitle for the rent of the remaining period of the lease agreement as there is no termination clause stipulated in the agreement and the defendant is bound by the agreement to settle all the rent for a period of one year. The premature determination of the lease agreement forced the plaintiff to return to Fiji abandoning his stay in Australia thus incurred him unnecessary expenses for air fare. The plaintiff claims that he is entitle to claim his fare for air travel from the defendant. Moreover the plaintiff claim further $430 for the expenses for cleaning, repair of the flat which he had to incurred after the defendant vacated the premises. Plaintiff tendered eleven documents as plaintiff's exhibits.
   
8. In contrast to the plaintiff"s evidence, the defendant denied all these allegations of the plaintiff. He denied the payment of bond as it was not stipulated in the lease agreement and the money that he has paid the plaintiff has covered the rent for the period which he occupied the house. He vehemently denied any res of rent money. He categorically denied that he cause damage to the house and claimed that he actually return the house in good condition compare to the worst condition of the house at the commencement of the lease period. The defendant contended that he properly gave notice of termination and vacated the house. Moreover the Defendant has paid the plaintiff of $600 at the time of termination of the agreement which the plaintiff denied.
   
9. In view of the pleadings, agreed and disputed facts and the evidence presented before the court, I find the main issues to be determine in this judgment are that
   
   1. Whether the plaintiff is entitle to claim bond money as a security deposit in the sum of $850,
   2. Whether the plaintiff is entitle to claim rent money for a period of three months ( 15th of May 2009 to 15th of August 2009),
   3. Whether the plaintiff is entitle to claim rent for the remaining 6 months period of the lease agreement,
   4. Whether the plaintiff is entitle to claim for the air fare,
   5. Whether the plaintiff is entitle to claim damaged in the sum of $430,
   6. Whether the defendant has paid the defendant a sum of $600
      
10. In view of the evidence presented before me, the plaintiff and the defendant have not disputed the date of commencement of the lease period though the defendant claims that he moved into the flat at the beginning of the March. The date the defendant vacated the premises is also not disputed by the parties. Both plaintiff and the defendant agreed that the defendant has paid a sum of $, 3,400 to the plaintiff during the period of this tenancy agreement.
    
11. The burden of proof lies upon the party who substantially asserts the affirmative of the issue (Robins v National Trust Co. (1927) A.C.515). The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is " Ei qui affirmant non ei qui negat incumbit probation". It was held in Levy v Assicurazioni Generali (1940) A.C.791 that " this rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case; and partly because in the nature of things, a negative is more difficult to establish than an affirmative".
    
12. The standard of proof required in civil cases is generally expressed as proof on the balance of probability. Lord Denning in "Miller v Minister of Pensions (1947) 2 All E.R.372) held that "if the evidence is such that the tribunal can say "we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not".
    
13. Bearing in mind the aforementioned legal precedence on the issue of burden of proof and the standard of proof, I find that the burden is on the plaintiff is to prove on the balance of probability that he is entitle to claim the bond money in the sum of $850 as a security deposit at the commencement of the lease period.
    
14. It is evidence from the tenancy agreement, that there is no specific provision in relation to the security bond. The plaintiff contended that it was mutually agreed upon by the parties apart from the provisions of the agreement to pay $850 as a security deposit bond by the defendant. He tendered some e.mails correspondences that the defendant has corresponded with him in respect of the bond money. With those e-mail correspondences the plaintiff claims that the defendant agreed to pay the bond. The defendant admits his e-mail corresponding with the plaintiff however he denied that he paid the bond as he found that there is no specific provision stipulated in the agreement for bond money. Both parties agreed in their evidence that they made some variations to the agreement.
    
15. "In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties". ( Halsbury's Law of England, Fourth Edition, 27, pg 13). "The essential terms of an agreement to lease are the identification of the lessor and lessee, the premises to be leased, the commencement and duration of the term and rent or other consideration to be paid. If these matters are ascertained to be offered and accepted, it is sufficient. If any other terms are mentioned by one party, these also must be unconditionally accepted by the other party in order that there may be a concluded contract (Rossiter v Miller [1877] UKLawRpCh 168; (1878) 3 App Cas 1124). As long as the necessary terms, indicated above have not been agreed to or any additional term has been mentioned on one side and not unconditionally accepted on the other, the matter rests in negotiation and there is no concluded contract. ( Lucas v James [1849] EngR 476; (1849) 7 Hare 410) (Halsbury's Law of England, Fourth Edition, 27, pg 54)".
    
16. In view of the aforementioned legal principles, I find there is a valid tenancy agreement existed between the plaintiff and the defendant for the flat at Lot 15, keba Street, Tamavua. The issue now I have to ascertain is that whether there is a subsequent agreement between the plaintiff and the defendant in respect of the security bond in sum of $850 and an agreement to terminate the tenancy period at the end of June 2009.
    
17. The defendant in his cross examination admits that he paid $850 on the 2nd of March 2009. Furthermore, the defendant had written to the plaintiff in an e-mail on 16th of February 2009 that he should get the plaintiff bond money by month end. The defendant himself admits in his cross examination that the payment on 2nd of March 2009 was for the bond but later he realized that there is no provision for bond in the agreement wherefore unilaterally decided to consider that payment made on the 2nd of March 2009 as his rent money for the first month.
    
18. At this point, I am greatly assisted by the findings of Lord Blackburn in Smith v Hughes (1871)LR6 QB 597, Court of Appeal), where Lord Blackburn held that "I apprehend that if one of the parties intends to make a contract on one set of terms and the other intends to make a contract on another set of terms or as it is sometimes expressed, if the parties are not ad idem, there is no contract, unless the circumstances are such as to preclude one of the parties from denying that he has agreed to the terms of the other. The rule of law is that stated in Freeman v Cooke ( 2 Ex 663), if whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party and that other party upon that belief enters into the contract with him, the man that conducting himself would be equally bound as if he had intended to agree to the other party's term".
    
19. In view of these evidence presented by the plaintiff and the defendant and the findings of Lord Blackburn in Smith v Hughes (supra) I find that there is an agreement between the plaintiff and the defendant to pay a security bond in the sum of $850 at the beginning of the tenancy period. The defendant's conduct of accepting the terms of bond in his e-mail and his subsequent payment of $850 on the 2nd of March 2009 amount to his acceptances of the payment of security bond. I accordingly hold that there is an agreement for the security bond and the defendant paid it on 2nd of March 2009.
    
20. I now turn to the next issue that is whether the plaintiff is entitle to claim rent money for the period of three months covering the period from 15th of May to 15th of August 2009 and whether the defendant breached the terms of the tenancy agreement by prematurely and unilaterally terminating it on the 24th of June 2009.
    
21. Undoubtedly, with the payment of security bond on the 2nd of March 2009, the defendant has only paid rent up to 15th of May 2009 as both parties agreed in their pre trial minutes that the defendant made a total payment of $ 3,400. In view of the evidence of the plaintiff and the defendant, the defendant vacated the flat on the 24th of June 2009. The Defendant in his e-mail dated 5th of May 2009 informed the plaintiff that he will move out and again in his e-mail dated 18th of June 2009 informed the Defendant that he have decided to move before the end of month. The plaintiff in his e-mail dated 25th of June 2009 wrote to the plaintiff regarding the return of the key. These e-mail correspondences have specifically demonstrated the agreement of the plaintiff and the defendant in respect of the termination of this lease agreement. In view of these evidences and the judicial precedence I have set out above, I am satisfied that the parties have agreed to terminate the tenancy agreement at the end of June. The defendant properly terminated the tenancy period by properly giving the plaintiff a notice of termination and plaintiff by his conduct assented the notice of termination.
    
22. The defendant in his e-mail dated 18th of June 2009, only stated that he will move out before the end of the month and the plaintiff in his e-mail dated 25th of June 2009 wrote about the handing over of the key of the flat. These two corresponding of the parties indicates that the intention of the parties to terminate the agreement at the end of rental month of June which ends on 15th of July. Accordingly, I find that the Defendant is obliged to pay rent up to 15th of July 2009 and not up to 15th of August 2009. The delay on the part of the Plaintiff to collect the key could not put the defendant an obligation to pay the rent until the date of handing over the key. The defendant was in areas of two month rent money at the time he terminate the lease agreement.
    
23. The plaintiff has the right to keep the refundable security deposit of $850 to cover the unpaid rent money on one month and the Defendant is now liable to pay another month of rent money of $850.
    
24. There is no agreement between the parties for the Defendant to pay the rent for remaining six months of the agreement in the event of determination of the tenancy agreement prior to the expiration of the agreed tenancy period. In addition the parties had an agreement to terminate the tenancy agreement at the end of the month of June wherefore; I do not find any breach of agreement by the Defendant.
    
25. Since the parties agreed to the termination of the agreement at the end of June 2009, I do not find that the Defendant is liable to pay the air fare of the Plaintiff. Firstly there is no such agreement between the parties and also plaintiff did not provide specific evidence to prove his cost of air fare and the existence of such agreement with the Defendant.
    
26. I now turn to the issue of damages/ general cleaning. The plaintiff claims that he had to clean the house and repair the damages of the flat and incurred cost of $430. There is no evidence from the plaintiff to establish the nature of the damages to the flat and whether those damages was caused by the Defendant in his negligence or caused by fair wear and tear. It is the burden of the plaintiff to satisfy the court on balance of probability that the Defendant had caused damage to the flat contrary to the paragraph 6 of the Agreement to lease and the repairs done by him do not falls within the definition of the paragraph 7 of the agreement to lease. In view of the evidence presented by the plaintiff, I hold that the plaintiff has failed to prove such.
    
27. In respect of the Defendant's claim that he paid the Plaintiff an extra $600 at the termination of this lease agreement, it is the burden of the Defendant to prove his contention on balance of probability. The defendant stated in his evidence that he paid Plaintiff $600 in cash upon his return to Fiji to collect the key and his assurance of "pay something and settle this". The Plaintiff vehemently denies that he received such payment. The evidence shows that the defendant made all of his payment except this allege payment of $600 to the bank account of the plaintiff. The Defendant's explanation of paying it in cash is that the plaintiff was in Fiji and able to pay him in person. Having considered the deteriorating relationship between the parties at the time of the termination and the Defendant's vulnerable financial situation as its evidence from his e-mail corresponding with the Plaintiff to reduce the rent money during the last part of this tenancy agreement, I find it is not probable that he paid the plaintiff an extra $600 as he claims. Hence I determine the defendant's claim negatively.
    
28. Having considered the forgoing reasons, I answer the disputed issues as follows;
    
    1. Whether the Tenancy Agreement dated 26th January 2009 was unreasonable and unfair?

NO

2. Whether the Plaintiff was entitled to claim bond money from the Defendant? YES,
3. Whether the Defendant has paid all the Rent monies or does he still owes 3 months' rent to the Plaintiff from 15th May 2009 to 15th August 2009?

The Defendant owes two month rent money from 15th of May 2009 to 15th of June 2009,

4. Whether the Defendant is deemed in possession of the premises until he handed over the keys on the 24th July 2009 to the Plaintiff?

NO,

5. Whether the Defendant is liable to claim rent for the remaining 6 months? NO,
   
6. Whether the Plaintiff is entitled to claim for the air fares, damages and general cleaning to the premises?

NO,

7. Whether the Defendant vacated the flat without any defined notice of termination and without any valid reason?

NO,

8. Whether the Defendant paid extra sum of $600.00 to the Plaintiff?

NO

29. In conclusion, I hold that the Plaintiff has successfully proved on balance on probability that the Defendant owes one month rent money of $850. I accordingly order the Defendant to pay the Plaintiff sum of $850 with the interest of 5% p.a. from the date of this judgment till the payment made in full together with the cost.
    
30. The cost of this matter will be summarily determined with the presence of both parties.
    
31. Seven days to file notice of intention to appeal.
    

On this 21st day of September 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.