Braune v Palupe [2005] WSDC 1 (18 January 2005)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

MARGARETE BRAUNE
also known as LAGI BRAUNE
of Ululoloa, Retired.
Plaintiff

AND:

TEVAUI LEE PALUPE
of Siusega, President of Mapusaga O Aiga Inc., Wesley Arcade.
Defendant

Counsels: Drake & Co. for plaintiff
Meredith & Ainuu for defendant

Decision: 18 January 2005

ORAL RULING OF NELSON, DCJ

The plaintiff seeks to recover rental arrears of $4,800 (representing three months arrears at $1,600 a month) which she alleges defendant is liable for pursuant to a tenancy agreement dated 7 July 2001 (“the agreement”). The plaintiff originally obtained a default judgment against the defendant but it appears from the court record the judgment was set aside and the defendant was permitted to defend the action. The agreement was produced as Exhibit “P -1” for the plaintiff and is signed by both the plaintiff and the defendant and a third person noted as “the administrator” – viz one Mr Peter Diethelm who was at all material times the resident agent of the plaintiff who left Samoa for her native Germany shortly after the agreement was signed and the defendant moved in to occupy the leased premises. The leased premises is the plaintiffs house. The administrators function was to collect the rent and as a friend of the plaintiff, to keep an eye on the property in her absence.

The evidence of the plaintiff and her administrator was that rent was paid initially to the administrator who onforwarded it to the plaintiff in Germany. The agreement specified that rental was to be paid monthly in advance and this arrangement was generally adhered to by the defendant give or take a few days. Thus rent for September was paid on 31^st August 2001, rent for October was paid on 3^rd October 2001 and rent for November was paid on 6^th November 2001. It is clear this was the parties understanding notwithstanding that the agreement refers in one part to payment for September being due “on the last day of September”. I accept that this was probably a translation glitch as submitted by plaintiffs counsel as English is not the first language for either the plaintiff or her administrator and it being obvious that they and not any lawyer drew up the agreement.

Things appeared to have gone smoothly until December 2001 when the rental payment became late. Mr Diethelm testified that he called the defendant and was told she would get some money from her brother to pay the rent. On 19^th December 2001, the defendant paid the rent for December 2001 and for January 2002. The rent for February 2002 however also became overdue and was only paid on the 4^th March 2002. No further rental payments were received from the defendant. It was also Diethelm’s testimony that at no time during the tenancy did the defendant complain about the state of the property except for the flood damage hereinafter referred to as a result of flooding of the property in March 2002 and May 2002.

The defendants evidence is she agreed to rent the plaintiffs house in July 2001. She says on the evening of the plaintiffs departure for Germany, she moved into the house and that the plaintiff produced the agreement just prior to leaving for the airport. She says she had no time to consider the agreement terms and although she had queries concerning same, she signed it nevertheless. The plaintiff and the defendant were friends before this fiasco with the house but it is not clear from the evidence what part this played in the defendant executing the agreement in these circumstances. What is clear is the defendant took possession of the premises on or about 8^th July 2001 and subsequently complied with the essential terms of the agreement viz. payment of rent at the time and in the manner stipulated. The defendant did not strike me as either unintelligent or uneducated and I have little difficulty in concluding that she well understood the conditions and implications of what she was signing and her subsequent conduct shows she regarded herself as bound by the terms of the agreement. In any event this issue was not advanced in any depth by defendants counsel as a basis upon which the agreement should be nullified. I also note it is not put forward as an affirmative defence in the defendants Statement of Defence.

The defendants main ground of defence is that on or about Saturday 23^rd March 2002, a flash flood unexpectedly occurred which substantially damaged the premises. She says water went right through the house very quickly, soaking the wooden floor and carpets and it damaged some of her personal belongings. She described the house in cross examination as a place that a river had run through and says even after cleaning the combination of dampness and an overpowering smell plus the presence of mosquitos and the general condition of the house rendered it uninhabitable. She also says she was traumatised by the experience and it became a very uncomfortable place to live. She did try to sleep there but after a night was driven out by the stench and the fear of further flooding. She described the house as “unsafe” and “not the same house she had rented”. She was forced to find alternative accommodation and moved most of her belongings out to a place at Siusega on Sunday, 24^th March 2002.

Initial attempts to locate the administrator were unsuccessful and it was not till later that week that he and the property insurers arrived to assess the damage. She said the insurers refused to pay for her alternative accommodation but did engage cleaners to clean the house. They did a good job but took up to two weeks to clean the carpets and dry out the house. On this issue the administrator’s evidence was that after being notified by the defendant of flood damage, he contacted the property insurers and met its representative at the premises a few days later. He agrees there was much damage: two to three centimetres of water in the main bedroom, soil and mud piled up on one side of the living room, wet carpets throughout with water damage also to the second bedroom of the house. He said he organised the plaintiffs ex-gardener who lives nearby to clean up the house and that he did a good job. The soil and mud were removed and only the wet carpets were a problem. These were waterlogged and if pressed on water would leak out. He had trouble finding appropriate cleaners as a special machine was required for the carpets and in the end had to resort to commercial cleaners. Their work was satisfactorily carried out and although the carpets still retained some dampness, in his opinion the house was liveable within a few days of said cleaning.

It is noteworthy that in evidence in chief he stated that the cleaning job carried out was not as comprehensive as the cleaning job carried out by a different cleaning company following the second flooding of the premises in May 2002. He says he returned to the house approximately one week or so later and found the carpets had dried and the house appeared to be occupied because “everything was in its proper place” and because he noticed a golf bag and shoes and some other personal paraphernalia. He inspected all the rooms and they “looked ok” to him. He was there for about an hour and did not notice any unusual smell although he conceded in cross examination that he did not sleep overnight in the house.

As for the second flood in May 2002 the administrator's evidence was not as precise or as certain. He stated the insurance company was responsible for that clean-up and when he inspected the property, it was a better job than the first clean-up. It seemed to me the administrator did not play as significant a role in this clean up as he did in the first cleaning up. He was also uncertain when the insurance company attended to the second clean up or how long it took. It appears likely he only inspected the house just before the plaintiffs return six days after this second flooding.

The plaintiff's ex-gardener was also called and he basically confirmed the administrators evidence. He said it only took one day to clean up the house and it was liveable from then on. However he also testified there were no carpets in the house only a wooden floor. The carpets were probably by this time with the commercial cleaners. His further evidence was that the house remained occupied because he noticed the defendants belongings were still there, but he also conceded in cross examination that at the relevant time he was no longer employed as a gardener and was only asked to come to assist. He also said the plaintiff has helped him and his family a lot and has always been good to them.

It is clear from this evidence the flooding that occurred on or about 23^rd March 2002 did have a substantial impact on the habitability of the premises. It was in my conclusion rendered uninhabitable for a period of at least one week and considering the extent of damage described by the various witnesses and the defendant's mercurial reaction thereto possibly uninhabitable as per its previous rented state for up to two weeks. If I err I will do so on the side of caution and accept the defendants evidence that for a two week period commencing from the last week in March 2002 flood damage made the premises unfit for occupation and for that period she should not be held liable to pay rent to the plaintiff.

But the evidence is also clear that in the time after that notwithstanding her evidence that she had engaged alternative accommodation at Siusega, the defendant was still legally in occupation and lease of the plaintiffs property until a second flooding occurred on or about Saturday, 18^th May 2002 when the premises were again flooded out and rendered uninhabitable. I reach that finding not only because the evidence establishes some of the defendant's properties and belongings were still on the premises but also because of the defendants own evidence that she regularly checked her email correspondence using the computer in the house and that she regularly paid the water and power bills for the property during this time. She also said she paid a person to maintain the gardens and the grounds which is one of her specific obligations under the agreement. She also testified she reported the May flooding to the insurance company and that the insurers duly attended to cleaning up the property. Furthermore it would be a very large coincidence that on the very day (in the early morning according to the defendant) of the plaintiffs unexpected return to Samoa, the defendant was found to be physically present on the property at which time she had some discussions with the plaintiff concerning rental arrears. It is also clear she failed to render the appropriate advises to the administrator in terms of the agreement if in fact she had decided to terminate the tenancy or move out of the premises. The administrators evidence was that there was no further contact with the defendant after the March 2002 clean up.

If the defendant was not in legal occupation pursuant to the agreement she was certainly in a continuing de-facto month to month occupation of the plaintiffs property. She is therefore in my judgment liable for rental as follows:

March 2002 (less the two weeks remitted as per above) $ 800.00

April 2002 $1600.00

Up to 18^th May 2002 – I fix at $ 800.00

$3200.00

The defendant has also argued that she does not have to pay any of this amount because when the plaintiff returned on 24^th May 2002, she discussed the rental arrears with the plaintiff and the plaintiff was so happy with the condition of the house that she forgave these arrears. The defendant then removed the remainder of her belongings and parted company with the plaintiff on good terms. She was surprised some months later to receive a letter from the plaintiffs lawyer claiming the arrears. She discussed this with the plaintiff who informed her she had changed her mind as she needed the money. The plaintiffs evidence is different. She says she went straight from the airport on 24^th May 2002 to the house and found the defendant there. They discussed the arrears and the defendant indicated she would pay it when she sells some land belonging to her at Aleisa. She agreed the house was in pristine condition and told the defendant it “looked fantastic”. She invited the defendant to continue to stay on with her but the defendant told her she would leave instead. The defendant packed up the rest of her belongings and left that night but did return subsequently to pick up some bits and pieces. She denies forgiving the arrears and says she was desperately short of funds and a request to the defendant for $300 at that time was declined.

Having due regard to the appropriate legal tests and standards I prefer the evidence of the plaintiff on this point. I have no doubt she returned early to Samoa (i.e. earlier than the termination date of July 2002 in the agreement) as she was concerned about the state of her property and non receipt of rent from the administrator. It would be inconsistent with this that she would suddenly forgo and forgive all the rental arrears. Perhaps that was the hope of the defendant but her failure to take any firm and positive action has been in the final analysis her downfall.

One final matter must be disposed of. It was argued by defendants counsel in his submission that section 106(a) of the Property Law Act 1952 (which deals with covenants implied into leases of land) requires this dispute be first referred to arbitration before it can be litigated in a court of law. This is a surprising submission since firstly section 106 applies specifically to leases of land as opposed to the tenancy of a house; and secondly because this argument is not in any way raised in the Statement of Defence filed by counsel for the defendant or raised in any pre-trial communications between counsels. As such counsel for the plaintiff rightfully claimed surprise and sought that the matter proceed to hearing and resolution by the court. I had little difficulty in ruling that the trial should proceed and left the issue to be determined as a part of this decision.

On this issue I am not persuaded section 106(a) even has any application – the dispute here arises from the agreement which prima facie seems to be an agreement to rent a house coupled with an obligation for the tenant to also care for its garden. But even if the matter could be brought within section 106(a) in the absence of any authorities from counsel, I do not accept the defendants submission that “unfit for occupation” is a subjective test to be determined solely by the lessee. The provision cannot mean that if a lessee determines for whatever reason he/she thinks fit that the property is so damaged that it is unfit for occupation, rent must therefore consequently abate in proportion to the damage as determined by him/her. For that would mean a most capricious tenant could refuse to pay rent for some insignificant and minor damage which in his view and in his unchallengeable view alone rendered the premises “unfit for occupation”. That cannot be the intention of the parties in particular a reasonable landlord willing to tenant his premises whether you apply the reasonable bystander test or some other test. For the sort of legal tests applicable see page 6 of this courts judgment in Chapman v Malifa unreported decision dated 23^rd January 2004. There must be an element of reasonableness imported into the equation so that unfitness for occupation is determined by applying an objective test of reasonableness taking all factors into account. The defendants interpretation would not in my view be a fair large or liberal interpretation of the statutory provision and I need go no further than the cardinal principle of statutory interpretation enshrined in section 5(i) of the Acts Interpretation Act 1974. In any event, the parties have elected court litigation as their forum of choice and have arguably waived any rights they may have had to arbitration. I am also not convinced this is a dispute that is arbitratable under the terms of section 106(a) as the dispute here is not about whether the house was unfit for occupation but is about how long it was in such a condition and state. The plaintiffs case as put through her counsel is she says only unfit for one or two days. The defendant says for up to at least two weeks after each flood. This is an argument as to the duration of the unfitness rather than an argument as to whether the premises were so damaged as to be at all rendered “unfit for occupation”. For these reasons I reject defendant's counsel's oral and last minute submission on this issue.

Accordingly, judgment will be given for the plaintiff in the sum of $3,200 plus costs to be fixed by the Registrar according to scale.

DISTRICT COURT JUDGE