Kyriakou v Day

HER HONOUR: By a summons filed in Court today, the plaintiff, Mr Kyriakou, has approached the Court seeking various orders against Mr Day, the defendant, namely:

Each party was unrepresented when the matter came on for hearing, although earlier Mr Kyriakou had taken advice from a solicitor who had sent correspondence to Mr Day, to which he had replied.

The summons was filed in circumstances where, earlier this year in May, Mr Kyriakou had similarly approached the Court seeking orders against Mr Day. His Honour Button J gave judgment on that application (see Kyriakou v Day (Supreme Court (NSW), Button J, 18 May 2015, unrep)), where he said:

His Honour noted the circumstances which had come about, which had resulted in Mr Day taking steps to terminate Mr Kyriakou’s tenancy, but declined to make various of the orders then pressed by Mr Kyriakou, for reasons which his Honour explained. His Honour found, however, that:

The orders which were then made by consent were as follows:

Before the Court today, the parties relied on affidavits which they had each sworn on 6 November, to which was annexed voluminous correspondence between them and the solicitor Mr Kyriakou had earlier retained. Other correspondence was also tendered at the hearing.

What was in issue between the parties included whether, in compliance with the orders Button J made in May, Mr Kyriakou had ever vacated the premises, he contending that he did, or whether instead, as Mr Day contended, Mr Kyriakou never vacated but has remained in residence at the premises since the earlier proceedings before the Court.

It is unnecessary to resolve that question. What is apparent from the evidence is that, whatever basis it was on which the parties continued their living arrangements, the relationship between them has deteriorated again. That is very well demonstrated by what they have each said to the other in their correspondence and in submissions today.

For his part, Mr Kyriakou contends that, by an email he sent to Mr Day, following an email received from him on 5 September 2015, an agreement was reached between them whereby he was entitled to continue residing at the premises "until I decide to leave, in which case you will be given reasonable time of when I will vacate."

There was a response to this correspondence from Mr Day, which does not explicitly address that part of Mr Kyriakou’s lengthy email, but included the following:

For his part, Mr Kyriakou denies that allegation, as well as other alleged misconduct on his part, claiming that what Mr Day has written in his correspondence about such matters and has submitted to the Court today, involves fabrication.

What Mr Kyriakou does not dispute is that the circumstances have reached the stage where he formed the intention to leave, that being eventually conveyed to Mr Day on the basis that he would be departing at the end of February 2016. In accordance with this advice, his solicitors also advised Mr Day in correspondence of 2 November, in relation to what they maintain was an agreement reached between Mr Day and Mr Kyriakou, in the 5 September email exchange, about Mr Kyriakou’s sub-tenancy, and as to Mr Kyriakou’s proposed departure.

For his part, Mr Day denies any such agreement was ever reached. He contends that the basis on which Mr Kyriakou continued residing at the premises in May 2015, was correspondence which he had sent by email of 5 May, which contemplated Mr Kyriakou vacating on 6 September and providing that if an earlier date be required by either party for any reason, 14 days' notice would be given in writing, email notice sufficing.

Mr Kyriakou did not then vacate, but there is no question that two weeks’ written notice has been given by Mr Day. It is due to expire on Sunday next. Mr Kyriakou denies Mr Day's entitlement to give such notice and contends that he is entitled to remain at the premises until the date he says he has nominated for his departure, at the end of February. It is upon that basis Mr Kyriakou presses orders from the Court to the effect that Mr Day be restrained from evicting him and throwing his personal belongings out into the street from the premises, until 5pm on 28 February.

Having heard the parties, I am of the view that, even if it could be concluded that the correspondence of 5 September evidenced a binding agreement between Mr Kyriakou and Mr Day, that in the circumstances the Court's discretion could not justly be exercised to grant Mr Kyriakou the orders which he seeks. Like Button J in May, on the evidence before the Court and the submissions which the parties have advanced, I am not prepared to exercise the Court's discretion to make orders forcing these two people, who are so hostile to each other notwithstanding what Mr Kyriakou has said about Mr Day's fabrications, to continue living together until February.

Mr Kyriakou is undoubtedly upset about what he perceives to have been very unfair treatment by Mr Day. Mr Day claims that he fears Mr Kyriakou. Mr Kyriakou relies upon correspondence which suggests that he has been providing services to Mr Day as a carer, because he suffers a disability. Mr Day denies he has been provided with such services. It is unnecessary to resolve where the truth lies as to those matters. What is clearly apparent is that these gentlemen can no longer continue living with each other.

In those circumstances I decline to make orders of the kind which Mr Kyriakou seeks.

There is plainly an arrangement in place between Mr Kyriakou and Mr Day. It is contractual in nature. On the evidence, I am not satisfied that it contains express terms as to the notice which either party is obliged to give the other to bring the contractual relationship to an end. In those circumstances the law imports into the contract an obligation to give reasonable notice.

Mr Day contends the notice he has already given, of two weeks which brings this contract to an end on 8 November, is reasonable in the circumstances. Mr Kyriakou contends the notice he has given, which brings the arrangement to an end in February, is reasonable. In all of the circumstances, I take the view that reasonable notice requires Mr Kyriakou to be given a further period of two weeks from today to remove himself from the premises.

Having come to that conclusion, the appropriate orders to make are as follows:

Having heard the parties on what was in issue between them and announcing my decision, they agreed as to costs. The Court's order as to costs will thus be that each party is to bear his own costs.