N670

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

DAVID LAMBU

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani
Bredmeyer J

23 June 1988
8 July 1988

LANDLORD AND TENANT - Covenants - As to repair - By landlord - Covenant "to keep in good and tenantable repair" - Construction of - Damages for breach - Measure of - Where premises let in dilapidated state.

In an agreement for lease of a high covenant dwelling house "together with the furniture, fittings and household effects now or hereinafter [sic] issued to the tenant", the landlord covenanted with the tenant:

"To keep in good and tenantable repair the said premises and the furniture, fittings and household effects of the Landlord therein in respect of all damage caused by accidental fire or fair wear and tear."

In proceedings for the damages for breach of the covenant,

Held

(1) Properly construed the covenant required the landlord to keep the premises in the same state of repair as at the commencement of the lease.

Pembery v Lamdin [1940] 2 All ER 434, referred to.

(2) The measure of damages for a breach of the covenant was the difference in value to the tenant, of the premises from the date of the notice to repair down to the date of the assessment of damages, between the premises in their condition at the time of assessment, and their value if the landlord, on receipt of the notice, had fulfilled the obligations of his covenant.

(3) Where the dilapidated state of repair of the dwelling house, furniture and fittings was reflected in the low rent charged the landlord was required to maintain the standard of repair commensurate with that existing at the commencement of the lease.

(4) Damages, assessed as a diminution of rent over the period of the lease of K300, should be awarded.

Cases Cited

Pembery v Lamdin [1940] 2 All ER 434.

Statement of claim

These were proceedings in which the tenant of a government owned dwelling house sought to recover damages for breach of the landlord’s covenant to repair.

Counsel

S Sitapai, for the plaintiff.
Z Gelu, for the defendant.
Cur adv vult

8 July 1988

BREDMEYER J: This is a claim for damages of K6,500 for breach of a covenant to repair in a lease. David Lambu signed a tenancy agreement for the lease of a high covenant house at Gerehu on 6 September 1984. The agreement let the land, residence, and improvements, "together with the furniture, fittings and household effects now or hereinafter [sic] issued to the tenant" at a rent of K23 per fortnight. By clause 3(a) the landlord agreed with the tenant:

"To keep in good and tenantable repair the said premises and the furniture, fittings and household effects of the Landlord therein in respect of all damage caused by accidental fire or fair wear and tear."

What does that clause mean? Where the premises are dilapidated at the start of the lease, does it mean that the government has to put them in good repair and then keep them in good repair, or does it mean keep the premises in the same state of repair as they were in at the commencement of the lease? I have come to the view that the latter view is correct for three reasons. First, the covenant was not "to put and keep in repair" but simply to keep in good and tenantable repair. The former clause, "to put and keep in repair" is quite common in leases. Secondly, Halsbury’s Laws of England (4th ed, 1981), par 298 at p 231, says that the liability of a landlord to repair must be construed with reference to the state of the premises at the commencement of the lease, and the landlord is not bound to give to the tenant during the term a different thing from that which the tenant took at the commencement of the tenancy. Cases are cited for that proposition a leading one being Pembery v Lamdin [1940] 2 All ER 434.

Thirdly, the interpretation is reasonable; it accords with commercial reality. If premises are very dilapidated, the would-be tenant offers a low rent. Or, if the tenant wants K5,000 or K6,000 worth of repairs done at the outset he bargains with the landlord. He says "I would like the house to be painted" etc and the landlord says "I am willing to do that if you agree to a rent of K150 per week". In other words the rent is fixed by agreement to reflect the lack of repair, or the state of good repair, or the costs of putting the premises in a state of good repair. In this case a rent of K23 per fortnight is a nominal rent for a high covenant house at Gerehu. I take judicial notice of that. I consider that the government was only obliged under this clause to keep the premises in the same state of repair as they were in at the outset of the lease.

Certain furniture was in the house when it was leased but no schedule of furniture was annexed to the lease, thus the plaintiff has no claim for furniture which was not there.

I accept Mr Lambu as a truthful witness. He said that as he and his family began using the furniture it deteriorated. For example, as they used the dining table, the bottom began to rot away. The backs of the dining chairs came off and the scats of most of them came off. The frames of the lounge chairs came apart.

He said that in one bedroom the roof was leaking as he saw seepage marks on the ceiling. He said the verandah boards were not a problem when they entered the house but became a problem one or two years later as termites ate them and nails came loose.

Mr Lambu reported this lack of repair to the government, as he was required to do under cl 2(r) of the lease, but got no response. This lack of repair is a breach of the lease and sounds in damages.

Mr Lambu also gave evidence on leaking pipes. There is a separate clause in the lease requiring the landlord to repair leaking pipes but these were repaired so there is no breach there.

What is the measure of damages flowing from the breach? Mr Lambu claimed in the writ K6,500 damages. In evidence he said he borrowed K3,000 from the bank in January 1988. He spent K1,600 of the loan on replacing floor and wall tiles in the kitchen, bathroom and toilet, replacing flywire and verandah floor boards. He spent K750 on electrical work as follows:

- replacing all existing flourescent lights

- replacing faulty general power outlets

- replacing elements on the stove

- replacing drive belt for washing machine

- installing additional security lights

(This is not a repair.)

According to Halsbury, op cit, par 307, p 238, where there has been a breach by the landlord of his covenant to repair, prima facie the measure of damages for such a breach is the difference in value to the tenant of the premises, from the date he gave notice of the disrepair down to the date of the assessment, between the premises in their condition at the time of assessment and their value if the landlord, on receipt of the notice, had fulfilled the obligations of his covenant. In this case it would be from the date of notice until the date he ceased to be a tenant. I agree that that is a fair measure of the damages. It would be most unfair to award say K3,000 damages to Mr Lambu for the cost of putting the premises in the state of repair which the landlord should have maintained, because since cessation of the lease, Mr Lambu has become the purchaser. On 30 July 1987 he agreed to purchase the house for K23,301.04 in its unrepaired state. If the government had just spent say K3,000 on repairs, the purchase price may well have been K3,000 more. To award K3,000 now would be to give the plaintiff a double benefit, K3,000 plus a diminished purchase price.

Applying the principle quoted in Halsbury, I assess the damages due to the lack of repair as a diminution of rent from K23 to K19 per fortnight over the period of the lease. That is K4 per fortnight from 6.9.84 to 3.7.87 equals 75 fortnights x K4 = K300. I award damages of K300. I see no reason why I should not apply O 22, r 25 of the National Court Rules and I order costs to the plaintiff on the District Court Scale.

Judgment for K300

_____________________

Lawyer for the plaintiff: Karingu, Sitapai, Kemaken & Associates.
Lawyer for the defendants: P Paliau, Acting State Solicitor.