Gold Export SI Ltd v Yam [2019] SBCA 3; SICOA-CAC 12 of 2018 (12 April 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Gold Export SI Ltd v Austin Yam
Citation:
Decision date:	12 April 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona; J)
Court File Number(s):	CAC 12 of 2018
Parties:	Gold Export SI Limited v Austin Yam
Hearing date(s):	8 April 2019
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Goldsbrough P Ward JA Wilson JA
Representation:	Mr. G Suri for the Appellant Mr. A Radclyffe for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electricity Regulations, Consumer Protection Act, s 24 and 25, Land and Titles Act, s136
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The appeal is dismissed and the orders of the High Court confirmed.
Pages:	1-9

JUDGMENT OF THE COURT

1. The appellant is a company, Gold Export SI Ltd (GESI) incorporated in Solomon Islands the directors of which are William Frederick Olsson and Gloria Elizabeth Olsson (The Olssons). This appeal relates to premises in Honiara owned by the respondent and managed by his company, Yam and Company (Yam) of which GESI was a tenant.
2. The present respondent, Yam, brought a claim in the High Court for Orders that the appellant vacate the premises, remove their personal effects forthwith and pay mesne profits at the rate of the monthly rental under the agreement from 1 August 2013 to the date the property is vacated and the effects removed. Yam’s case was that GESI had failed to give up possession on termination of the tenancy with the resulting loss of potential rental income.
3. A defence, set off and counter claim were filed based on allegations, inter alia, that the premises were in a dangerous condition and required improvements by the Olssons to make them habitable.
4. The brief facts may be gleaned from the judgment.
5. In June 2012, the two directors of GESI orally agreed to rent an apartment in Yam’s premises for a term of 6 months from 1 June 2012 at a rental of $10,000 a month. A written tenancy agreement was prepared and signed by which time the Olssons had occupied the apartment with their personal effects. After the first six months had expired, the parties agreed orally to extend the agreement for a further six months up to 31 May 2013 and Yam then drafted a further agreement at an increased monthly rent of $12,000 which the Olssons declined to sign. However, they continued to pay at the previous rate of $10,000.
6. The Olssons left the country in early August 2013 leaving their personal effects in the apartment. The next month, the respondent gave the Olssons notice to vacate the premises and remove their belongings.
7. The Olssons paid the rent at $10,000 but did not agree with various terms and conditions which they considered unfair and irrelevant. They said that, when they first entered the premises, they had found them filthy and there were problems with electricity meters, gas, pests and safety.
8. Following a trial, the learned judge found for Yam, dismissed the set off and counter claim and ordered the appellants to pay mesne profits of $210,000.00, interest thereon at the rate of 5% pa from the date of judgment until payment and costs.
9. By an amended notice the appellant appeals on three grounds which can be summarised:
   1. The learned judge, having noted evidence showing re-wiring was not to standard, cabling was not approved and no inspection was carried out by SIEA erred in law by:
      • (a) not concluding electrical installations were not carried out according to regulations;
      • (b) not applying Electricity Regulations 8, 36(2) and 41 to disentitle Yam from receiving mesne profits, interest or cost of services rendered;
      • (c) not applying Sections 24 and 25 of the Consumer Protection Act to disentitle Yam from receiving mesne profits, interest or cost of services rendered;
      • (d) not construing section 136 of the Land and Titles Act to disentitle the respondent from receiving mesne profits, interest or cost of services for leasing a dwelling house that is not fit for habitation at the commencement of the tenancy.
   2. The learned judge erred in law in adjudging that the liability of the appellant was calculable from 1st August 2013 to April 2015 and further in failing to consider section 145 (1) of the LTA for the purpose of determining possession and mesne profit;
   3. The learned judge erred in law in not allowing the counter claim for return of bond, gas bottle and padlocks removed and lost.
10. The first two grounds of appeal relate to suggested breaches of law on the part of Yam. They were raised by the claimants in the hearing and the learned judge found they did not arise on the facts of the case as revealed by the evidence.
11. The judge found that, after taking the first six months tenancy, the parties agreed to extend the agreement for a further six months but a dispute arose over the rent and the electricity charges. The Olssons refused to sign that agreement although they continued to occupy the premises and paid the rent. Another tenancy agreement was drafted in similar terms in May 2013 and, once again, the Olssons refused to sign.
12. Under the terms of the agreements (signed and unsigned) the Olssons were to pay the electricity charges. The dispute arose from the fact that they had apparently discovered at some stage in their occupancy that there was no separate meter to measure their consumption and, on their calculations, they were being overcharged. However, they continued to occupy the premises and paid the rent for June and July 2013 under the third agreement but at the previous lower rate.
13. By that time, an increasingly vitriolic email and postal correspondence demonstrated that the relationship between Yam and the Olssons had deteriorated and the Olssons started to raise various complaints about the condition of the apartment from the outset of the tenancy. The judge found that these complaints were the result of the escalating discord and they were not supported on the evidence:
    • “The manner in which the defendant described the general condition of the apartment was rather appalling in terms of unapproved re-wiring and installations, windows heavily barred, etc. It would appear that the apartment was in an absolute risk situation unfit for human habitation. Then why continue to accept residing since June 2011?
    • I noted the complaint arose when the second tenancy agreement was available for execution in June 2012. And perhaps these were the very reasons the directors of the defendant refused to sign. I have alluded earlier if such condition did exist from day to day that the apartment was not fit for human habitation. It was a 100% risk and the defendant should look elsewhere to find another accommodation. To live within the resident for a year before raising complaints that risk human life is an absolute nonsense bluff. All these, in my respectful view, boil down to the fact of refusal to pay increased rental and claim higher exorbitant power bills. The Olssons were given enough time to survey the apartment before signing the first agreement.
    • In normal and usual business of leasing out properties, a tenant is expected after one year of occupation, the rents to be increased. This is exactly what the claimant did. After one year of occupation, a new rental agreement with increased rental rate was given for signing. The defendant refused and relied on the above complaints. ... In my view the complaint may be valid but why waited until one year was over? The directors survived for the period of occupation, they were well and alive for one solid year. After that they complain of life-threatening elements
    • There are bulk of submissions in terms of evidence concerning re-wiring not to standard, cabling was not approved, no inspection by SIEA, etc. Again they are good evidence including correspondences relating to those. The reality is, if those complaints are life threatening, they ought to be raised immediately to be addressed. In the current case the directors had waited for a year or more before raising it. By the time the intention for doing so can be easily manipulated.
    • The same can be said with heavily barred windows, one double deadlock door. ... The complaint by the directors was an attempt to discredit the claimant’s property with disgruntles over various aspects.”
14. The Olssons left the country on 5 August 2013 leaving their personal effects in the apartment.
15. On 4 July 2013, prior to the Olssons’ departure, Yam had written to them concerning the increase in the rent under the new agreement, their complaints about wiring and drawing their attention to the terms of the agreement that laid the responsibility for utilities on the tenants. On 8 August 2103, they wrote under the heading “Re Tenancy Immediate Termination”:
    • “Further to our email dated 4 July 2013, please take note that due to the premises unsafe condition you have mentioned, we hereby withdraw our offer to renew the tenancy which had expired 30 June 2013.
    • As such we request your immediate action in vacating the house premises. Please do move our responsibly as we will not be responsible for missing item/s”.

Nothing was done by the Olssons and further demands were sent in September and October 2013.

16. On 21 January 2014, Yam wrote again to the Olssons:
    • “Let us reiterate that we have given you numerous notices that your tenancy has expired a very long time ago and you no longer have any right to occupy the premises.
    • You were well advised prior to your proposed arrival in Honiara, in October 2013 that you need to contact our office or our representing lawyer, in order to gain our supervised access in the property. The sole purpose of the supervised access is to enable you to remove your personal belongings only from the property.
    • The sole purpose of installing the padlock was to prevent you to enter the premises without our notice of which you have failed to do. You have not contacted us at all with regard to gaining access to the property. Neither have you made any attempt to remove your personal belongings from the premises. As you claimed that you have a lot of personal and electrical goods in the premises, without proper arrangement of man power and transport those cannot be cleared. You were to contact our office to arrange a suitable time for us to have a supervisor with you at all times while clearing the premises, which was not done.
    • Further your personal possessions outside the locked apartment are occupying our premises, which you had access to but failed to remove.
    • At no time have we denied you your supervised access to the property to remove your possessions.”
17. To this the Olssons emailed a curt response:
    • “No one including BJS has any authority to touch, interfere or remove our possessions. Please ensure correct legal process is followed in this matter.”
18. Further demands to remove their items and thereby return possession to Yam followed. The judge described his conclusions:
    • “On or about 5 September 2013, the claimant gave the defendant notice to vacate the premises and remove personal effects, but the defendant refused to do so.
    • Sometimes in October 2013, the Olssons returned to Honiara. On 22 October 2013, another letter was issued to the Olssons to remove their belongings, nothing was done. However, by virtue of the sworn statement deposed by Mrs Olsson filed on 14 June 2017, she deposed they were denied access to the apartment and their goods were spoiled and damaged.
    • What actually transpired on the day the defendant attempted to get to the apartment but was locked out is not very clear. There is no evidence from the police, there is no evidence from Consumer Rights Personnel. However, I have read the letter signed by both Olssons dated 29 October 2013 complaining about the lock out....
    • The issue of removing belongings would have taken place earlier than lying for two years in the apartment. The claimant probably would have been [co-operative] in October 2013 if the directors were genuine in their approach and made representation to the claimant and not a police officer who actually requested the keys, and whose presence was questioned by the claimant. By then the matter would have been resolved earlier.
    • On the other hand the defendant had failed to honour two notices to vacate. Things would have smoothly organised and repatriation done in harmony initially. There would be no more, or less courts involved. Within these two years the defendant did not even willing to remove their belongings. But hopefully the claimant would give in, a hope which was not forthcoming. Eventually I find the defendant is liable for the mesne profit as claimed.”
19. Later the judge reiterated those conclusions when dismissing the set off and counter claim:
    • “The directors argue that having incurred those expenses [to travel back to Honiara] they were not permitted to remove their belongings and said they were locked out. I have reiterated again that there was not well organised and supervised approach to allow entry. The claimant had denied any proper approach and supervision. Someone who claimed to be a police officer was referred to the claimants’ lawyer and had disappeared without trace.
    • It appears there is no evidence coming from the so-called Police Officer of any attempt by the directors to get their belongings. There was no mention of any arrangement to release the director’s belongings by the claimant or its agents or by its employees. It would appear there was nothing done. As a result notice to remove belongings were issued again on 28 February 2014. Alas after two years, those personal effects were removed.”
20. It is clear that the judge simply did not believe that the evidence supported the Olssons’ account of the reasons for their failure to pay and/or remove their personal effects and restore possession of the property to Yam. That was a decision open to him and we see no reason to interfere. Having reached that decision on the facts, the issues of law (repeated in grounds 1 and 2) bore no further relevance.
21. The appeal is dismissed and the orders of the High Court confirmed.

Goldsbrough P
Ward JA
Wilson JA