Chung & Anor v Air Raid Arcade Pty Ltd [2003] NTSC 17

PARTIES:	CHUNG, KANG FENG and 
	CHUNG, PISI CHUNG

	v

	AIR RAID ARCADE PTY LTD

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	AN APPEAL FROM THE LOCAL COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	LA1 OF 2003 (20009495)

DELIVERED:	6 MARCH  2003

HEARING DATES:	6 MARCH 2003

JUDGMENT OF:	RILEY J

REPRESENTATION:

Counsel:
	Appellant:	In person
	Respondent:	J. Tippet QC

Solicitors:
	Appellant:	In person
	Respondent:	De Silva Hebron

Judgment category classification:	C
Judgment ID Number:	ril0303
Number of pages:	9

ril0303

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Chung & Anor v Air Raid Arcade Pty Ltd [2003] NTSC 17
No. LA1 of 2003 (20009495)

	BETWEEN:

	KANG FENG CHUNG and SANDRDA PISI CHUNG
	Appellant

	AND:

	AIR RAID ARCADE PTY LTD
	Respondent

CORAM:	RILEY J

EX TEMPORE:       
REASONS FOR JUDGMENT

(Delivered 6 March 2003)

[1]	This appeal arises out of proceedings conducted in the Local Court at Darwin in 2002.  In those proceedings the appellants, Mr and Mrs Chung, were the defendants in relation to a claim for unpaid rent and outgoings by the landlord, Air Raid Arcade Pty Ltd.  In addition, there was a claim for the failure of the Chungs to deliver up the premises to the landlord in the same condition as at the commencement of the tenancy.  
[2]	It seems that there was no dispute that an amount of $13,970.03 was owing in respect of unpaid rent and outgoings, but the Chungs denied liability based upon allegations of breaches of covenants by the landlord, the performance of which, the Chungs claimed, was a condition precedent to their obligations to pay rent.  The presiding Magistrate rejected that argument and there is no appeal from that decision.
[3]	In relation to the landlord’s claim for damage to the premises, the learned Magistrate relied upon photographic evidence and the evidence of various witnesses to determine that the premises were not left in a state that amounted to good and tenantable repair.  He concluded that the respondent was entitled to damages in the sum of $7779 on account of the failure of the Chungs to yield up the premises in good and tenantable repair.  There is no appeal from that decision.
[4]	In the same proceedings, the Chungs counterclaimed and it is with relation to the matters raised in the counterclaim that this appeal is concerned.  It was the claim of the Chungs that the landlord failed to maintain sewer pipes in proper repair so as to prevent them overflowing into the leased premises causing filth of various descriptions, along with ‘noxious or unwholesome fumes and odours’ to intrude upon the premises.  It was alleged that, as a consequence, the Chungs had been unable to carry on their restaurant business and they therefore sought damages.
[5]	In determining this aspect of the counterclaim, His Worship referred to three clauses of the relevant lease.  Those clauses are as follows:
Clause 12.2:  The lessee shall give to the lessor prompt notice in writing of any structural defects which may from time to time become apparent in the leased premises; any accident to or defect or want of repair in any services or to fittings in the leased premises, excluding any minor matters which are properly repaired or rectified by the lessee; and any other apparent circumstances reasonably like to be or cause any danger, risk or hazard to the leased premises or any person therein.
Clause 15.5:  The lessor shall forthwith, upon receipt of a notice relating to matters referred to in clause 12.2, effect such repairs to the leased premises to remedy the matter raised in such notice, provided always that the lessor shall not be obliged to effect such repairs if the responsibility therefore is placed upon the lessee under this lease.
Clause 12.3(7):   The lessee shall, from time to time and at all times during the term:
(7) keep and maintain the waste pipes, drains and conduits originally within the leased premises in a clean, clear and free-flowing condition between their points of origin and their entry into any truck, drain and at the lessee’s own expense employ licensed tradesmen to clear any blockages which may occur therein, and in addition shall regularly clean and service any grease-trap provided for the exclusive use of the leased premises.
[6]	The learned Stipendiary Magistrate delivered a 54-page judgment on 16 December 2002.  In dismissing all but one of the claims in the counterclaim, His Worship concluded that he was unable to be satisfied on the balance of probabilities that the obligation to maintain the sewer pipes rested with the landlord.  He concluded at paragraph 229:
“There are three possible explanations for the problems that occurred.  The first is that there was a structural problem with the drainage and sewerage system.  If that were the case, then the plaintiff (landlord) would be obliged to maintain the pipes.  
The second is that other tenants in the arcade - eg the motel upstairs - were responsible for causing the blockages.  If that was substantiated, then it is arguable that the plaintiff (landlord) was under an obligation to prevent the conduct of other tenants from interfering with the defendants’ quiet enjoyment of the leased premises.  
The third is that the blockages were caused by the defendants (the Chungs) pouring fat down the drain.  If that were the case, then the plaintiff would bear no responsibility.  Indeed, the defendants would be in breach of clause 12.3(7) of the lease.”
[7]	And at 230:
“I have taken into account the evidence which suggests that there were other problems with the drainage, apart from those being experienced by the defendants in the leased premises.  However, the onus is on the defendants to establish a breach on the part of the plaintiff with respect to the problems which occurred on the leased premises.  In my opinion, all three hypotheses, to which I have referred, are of equal probability so that the choice between them is a mere matter of conjecture......”
[8]	The learned Magistrate went on to state that if he was wrong in that regard then the Chungs claim would still fail.  This was because they were obliged under clause 12.2 of the lease to give prompt notice in writing of any structural defects or defect or want of repair to any services, and no such notice was ever given.  Compliance with the requirement to give notice was not waived by the landlord and, in any event, the Chungs also failed to establish any damage flowing from any breach.
[9]	An appeal from the Local Court to this court is limited to questions of law, and the Supreme Court is empowered to make such orders as it thinks fit, including an order remitting the case for hearing to the Local Court, with or without directions on the law.
[10]	The grounds of appeal relied upon by the Chungs were as follows:
1.	The learned Magistrate erred in law in construing the terms of the lease between the parties to require the appellants to make all complaints and requests to the respondent, concerning maintenance, in writing in all the circumstances;
2.	The learned Magistrate erred in law in failing to make findings in respect of the crucial issues of causation of the blockage of the drains on the appellants’ premises;
3.	The learned Magistrate erred in fact and in law in failing to find a breach of the lease on the part of the respondent by failing to respond to the appellants’ request for rectification of the blocked drains which caused damage and loss;
4.	The learned Magistrate erred in fact and in law in determining that the evidence as to the financial losses of the appellant was not sufficiently cogent as to enable him to determine an approximate figure of the appellants’ losses by reason of the breaches of the respondent;
5.	The learned Magistrate erred in law in failing to give full consideration to the evidence before him and in failing to have proper regard to relevant considerations.
[11]	Mr Chung and Mrs Chung were represented by counsel in the proceedings before His Worship.  Mr Chung had legal assistance in preparing his notice of appeal.  However, on appeal he appeared personally to represent the interests of both appellants.  He sought an adjournment to enable him to seek further legal assistance, but I declined to grant the adjournment for the reasons I expressed at the time, and which are recorded in the transcript.
[12]	In presenting the appeal, Mr Chung did not appear to understand, or at least accept, that the right of the appellants to appeal was confined in the manner described in section 19 of the Local Court Act.  He sought to relitigate all of the issues raised in the proceedings below, together with further issues that had not been raised below.  He continually referred to matters that were not in evidence before His Worship.  He failed to address the issues raised by the grounds of appeal.
[13]	I sought to confine Mr Chung to the identified grounds of appeal, but without much success.  It follows that what was said by Mr Chung was not of great assistance to me.  He had a grievance and he wished to air that grievance, whether it continued to be relevant to the matters in issue or not.  Many of his complaints related to the conduct of his legal advisers.  He also suggested that there was bias on the part of the court because the court below was accepting of the landlord’s case rather than his own.
[14]	Doing the best I can in the circumstances, I address the grounds of appeal in order.  Ground 1:  the learned Magistrate erred in law in construing the terms of the lease between the parties to require the appellants to make all complaints and requests to the respondent, concerning maintenance, in writing in all the circumstances.
[15]	This ground ignores the primary finding of his Worship that the appellants had not discharged the onus that rested upon them to establish that the landlord had breached the lease in any way.  The court below found that it was unable to determine which of three possible sources was the cause of the drainage problems.  It therefore concluded that the onus resting upon the appellant to show a breach had not been discharged.
[16]	There was evidence upon which the court could find the existence of the three possible sources.  To have concluded as he did was open to his Worship.  There was no error of law demonstrated in that regard.  
[17]	The complaint that his Worship misconstrued the terms of the lease, as set out in appeal ground 1, even if established would not have any impact upon the outcome of these proceedings and need not be addressed.  In the event that I am wrong in that regard, it has not been demonstrated that his Worship erred in law in concluding as he did.
[18]	Ground 2:  the learned Magistrate erred in law in failing to make findings in respect of crucial issues of causation of the blockage of the drains on the appellants’ premises.
[19]	The appellant has not identified the ‘crucial issues’ referred to in the ground, other than to say they related to causation of the blockage of the drains.  The fact that his Worship addressed the issue is apparent from the conclusion to which I have referred in relation to ground 1.
[20]	In paragraph 230 of this reasons, he confirms that he has taken into account the other problems.  His finding was open on the evidence.  No error is disclosed in his reasoning.
[21]	Ground 3:  the learned Magistrate erred in fact and in law in failing to find a breach of the lease on the part of the respondent by failing to respond to the appellants’ request for rectification of the blocked drains which caused damage and loss.
[22]	His Worship addressed these issues.  He reached a conclusion based upon the evidence before him.  No error in his reasoning process has been established.  No error of law has been identified.
[23]	Ground 4:  the learned Magistrate erred in fact and in law in determining that the evidence as to the financial losses of the appellant was not sufficiently cogent as to enable him to determine an approximate figure of the appellants’ losses by reason of the breaches of the respondent.
[24]	This issue will only arise if one of the other grounds of appeal is successful.  Those grounds have not been established and there is therefore no need to address this ground.
[25]	In any event, his Worship discloses his reasoning process in paragraph 299 of his reasons for decision.  The view formed by his Worship was open to him on the evidence.  No issue of law arises.
[26]	Ground 5:  the learned Magistrate erred in law in failing to give full consideration to the evidence before him and in failing to have proper regard to relevant considerations.
[27]	This ground remains unparticularised.  His Worship set out his reasons for decision in a 53-page judgment.  Much of that document was taken up with a review of the evidence.  His conclusions were derived from that process.  I am unable to see where his Worship failed to give full consideration to the evidence or failed to have proper regard to relevant considerations.
[28]	In all of the circumstances, the grounds of appeal have not been established and the appeal must be dismissed.
[29]	In those circumstances, I make an order that the appellant pay the respondent’s costs of these proceedings.
[30]	Yes, adjourn the court, please.
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