Ebbett & Ebbett v Leasing Hotline & Ors [2000] QSC 486

I t012t, OO•ctt'0 State -Reporting Bureau 8 ~~!~::,~=~-~:~:~:: Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J No 10235 of 2000 DEBERA ANNE EBBETT and MICHAEL FREDERICK EBBETT and LEASING HOTLINE and CRAIG & LUCY PRIOR BRISBANE .. DATE 7/12/2000 JUDGMENT ~ th Floor, The Law Courts, George Street, Brisbane, Q. 4000 1 REVISED COPIES ISSUED State i,porting Bureau Date 15 I /)-/ t5 0 Applicants First Respondent Second Respondent Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 6 -- 0712200~ mat (Byrne J) HIS HONOUR: This is an application for final judgment in what is, in effect, a claim for specific performance of an agreement to grant relief pursuant to what is said to have been the due exercise of an option. The applicants are parties to a tenancy agreement under which they took on a lease -f'rom the second respondents premises at Tarnborine. agreement stipulated: Clause 8 of an annexure to the "At least 30 days ... before the expiry of the lease the tenants at their option may extended (sic) the lease for a further 12 months ... notice in writing ... provided that the tenants are not in breach of the lease the landlords will grant such an extension ... 11 It is common ground that the period of at least 30 days before the lease expired (at midnight on 13 November 2000) expired on 14 October, which was a Saturday. In these circumstances, the question is whether the notice of exercise of option required by clause 8 was duly given. The applicants' case is that by documents dated 12 October due notice was given, and that by one of them - a letter dispatched on that day with an accompanying cheque - rent was tendered, so that the applicants satisfied the 1 10 20 30 40 condition stated in clause 8 that they not be in breach of 50 the lease agreement when the option was exercised. It being accepted that notice to the first respondent is notice to the second for the purposes of clause 8, a 2 JUDGMENT 60 -- 2 of 6 -- 07122006 mat (Byrne J) question is whether the letter and accompanying cheque were received by the prescribed time. As it is common ground that if the envelope containing the letter and cheque were dispatched on 12 October it would have been received next day (Friday the 13th), the decisive question is whether the enve--lope and its contents were dispatched on 12 October. The only significance of evidence concerning the transmission of the facsimile on the same date now appears to be its potential to bear upon the likelihood that the letter was posted the same day. The facsimile transmission is recorded (in the fax machine) as having been sent at 10.45 a.m. to a number which is the number of the fax machine of the first respondent, the agent for the second respondents. Mrs Ebbett swears that she attended to it. Her evidence is also relied upon to establish that the envelope was dispatched on 12 October also. There are peculiarities surrounding the facsimile transmission. About a month or so later, a document dated and transmitted on 17 November was shown on the machine's records to have been transmitted on the 16th. And a Telstra account in respect of the facsimile machine, which is said to be the source of the fax transmission to the agent, contains no charge for the price of an STD call which would 3 JUDGMENT 1 10 20 30 40 50 60 -- 3 of 6 -- 07122000 mat (Byrne J) necessarily have been incurred if the facsimile machine had transmitted the document in question. The Telstra account shows only one STD debit in respect of that facsimile machine on 12 October, and it is not to the facsimile number of the agent as shown in the transmission's record produced by the facsimile machine. These peculiarities raise a doubt concerning the transmission of the facsimile on 12 October. The second exposes the possibility that the machine may have malfunctioned, recording the transmission as having taken place when it had not. On the other hand, as Mrs Ebbett indicated, it must not necessarily be assumed that the Telstra record is accurate. What, then, is the evidence about the envelope? It is franked in the office of Mrs Ebbett, who is a solicitor, as having been posted on 12 October. It also bears a differently impressed notation suggesting that it was posted at 6 p.m. on 30 October. The 30 October notation is said on behalf of the respondents to be explicable on the footing that the applicants, personally or through agents, arranged for the posting of the letter at about that time. It bears a postcode 4217. This is at the Gold Coast, which tends to reinforce an impression emerging from the evidence of Mrs Ebbett that the envelope was not posted by her on 30 October; for she lives and works away from the Gold Coast. How it came to be posted on 30 October at the Gold Coast 4 JUDGMENT 1 10 20 30 40 50 60 -- 4 of 6 -- 07122000 mat (Byrne J) may be a matter for speculation. a conclusion about that. But I do not need to form I accept the evidence of Mrs Ebbett. I am persuaded by what she has said both that the facsimile transmission was made by her machine on 12 October, and that the envelope containing the letter and ctteque were posted at the Beaudesert Post Office on the date franked, namely, 12 October. I consider it more likely than not, despite the absence of a Telstra debit for the transmission, that it was received in the first respondent's office. The evidence of Ms Clayson, who is the principal of the first respondent, is to the effect that she was unaware of the facsimile transmission having been received. But others were working in the office; and it is by no means clear that Miss Clayson was in the office that day much or at all. However that may be, the decisive question is whether the envelope was dispatched on 12 October by post. As I have indicated, I am satisfied that it is more probable than not that it was. On that basis, the applicants have demonstrated that the option was duly exercised, and that they are entitled to specific performance. I will leave it to the parties to 5 JUDGMENT 1 10 20 30 40 so 60 -- 5 of 6 -- 07122d0~ mat (Byrne J) agree upon a form of order consistent with these reasons. I order that the respondents pay the applicants' costs of and incidental to the proceedings, including reserved costs, if any, to be assessed. I order as per draft. I order that the exhibits in the case be immediately returned to the parties on whose behalf they were respectively tendered. 6 JUDGMENT 1 10 20 / 30 40 50 60 -- 6 of 6 --