Martin & Anor v Individual Homes Pty Ltd (In Liq) & Anor C9/2000 [2000] HCATrans 567 (12 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C9 of 2000

B e t w e e n -

ANTHONY GILBERT MARTIN and SUE DOLORES MARTIN

Applicants

and

INDIVIDUAL HOMES PTY LIMITED (In Liquidation)

First Respondent

BARRY ANTHONY TAYLOR (Liquidator)

Second Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 SEPTEMBER 2000, AT 2.06 PM

Copyright in the High Court of Australia

MR A.G. MARTIN and MRS S.D. MARTIN appeared in person.

MR F.J. PURNELL, SC: May it please the Court, I appear for the respondent. (instructed by Mallesons Stephen Jaques)

McHUGH J: Yes, Mr Martin.

MR MARTIN: Your Honour, this special leave, as far as the respondent has put the case to the Court, consists of two main issues. The first issue is that this is the sixth time that the applicants have approached this Court for special leave and in five previous occasions this Court has found it appropriate to refuse it and therefore, it should be refused again.

If I could answer the second one, which is the main issue, which I will address it at length, because this is a simple issue, there is no major question of law involved and I will address that at length in the 20 minutes that I have got. The first one is that the applicants' reply to the first issue is that that is the case, that this is the sixth time that the applicants have approached this Court for special leave; five previous times it has been refused, and the applicants submit that none of those things related to possession per se. This issue is to possession under common law and possession - summary order for possession under common law - and therefore it is a bit different.

In relation to that, if I could draw your Honours' attention to page 191 of the application book, the second-last paragraph. That is the comment of the Full Court of Miles CJ, Einfeld and Kenny JJ. If I could then ask your Honours to sort of look at the 191, 192, 193, Justice Gaudron's comments about the history of this case in the stay application. That is all - the reasons of the Full Federal Court of Miles CJ, Einfeld and Kenny JJ are on pages 69 to 87 of the special leave application book and I would not add any further on that first point that the respondent is putting.

The second issue that the respondent has submitted can be found in page 190 of the application book. It is in paragraph 2, your Honours, that:

No complex issue of law is required to be determined. Ultimately, this matter involves the taking of possession of property by a registered proprietor from tenants at will whose tenancy has been determined.

I acknowledge, your Honours, that the primary court judge and the court below viewed it exactly and precisely in that fashion. I humbly submit to your Honours that that is not the case; in fact, it is anything but that. In support of that, your Honours, I have - - -

McHUGH J: Why do you say that, Mr Martin? The highest that you seem to be able to put your case was that you had a tenancy at will. The evidence is overpowering that in so far as you did have a tenancy at will, there was a withdrawal of consent to the continuation of that tenancy at will. That being so, why was not the registered proprietor entitled to get possession of its property?

MR MARTIN: Your Honour, that is precisely how I would like to answer it, if I could sort of go in a systematic fashion, point by point. I have divided why it should not be the case in 10 separate subsections and if I could answer it in this fashion, your Honour, that if I could go to my additional documents - I am not avoiding it, your Honour, I will answer it precisely as your Honour said.

If your Honours could look at the first page in that book, your Honours - - -

McHUGH J: Page 1 of the application book?

MR MARTIN: No, your Honour, the page 1 of my authority book, with the blue cover.

McHUGH J: Yes.

MR MARTIN: Your Honour, I have put in a good copy because the application book, the copy that is put in, half of it is not readable. Now, to answer your question that (a), your Honour said that the highest that I could put forward is that we were tenants at will and that why should not a registered proprietor get possession of the property. I would say that (a) - and there has been a ruling on it - no court has decided on what the nature of our implied tenancy is, and that has been set out, if your Honours look at, in my reply, page 191 of the application book.

McHUGH J: What paragraph?

MR MARTIN: If your Honour looks at paragraph numbered 6, which is not paragraph 6, your Honour, the numbering is on 6.

McHUGH J: You are talking about line 9:

The precise nature of the arrangements between the Martins and Individual Homes regarding their residence remains unclear.

Is that what you are relying on?

MR MARTIN: If you look at page 191 of the application book, your Honour, it says:

All subsequent proceedings have arisen essentially out of efforts by Individual Homes, in liquidation, to recover possession of the property from the Martins, who have, on most occasions, not had -

not forgetting that. If you look at then what is paragraph 29:

".....In his reasons for judgment, his Honour referred only to a concession made by the defendants (the respondents on appeal) concerning the tenancy at will, not to any equivalent concession by the Martins. He made no finding in that latter regard....."

In paragraph 30:

"....Critically, in the present context, the respondents had not, prior to the delivery of the primary judge's decision, initiated any proceedings in the Supreme Court for the possession of the property that might have resulted in a writ of possession.

Now, if I could put it, your Honours, that the issue of possession of the property which is a residential lease in the Australian Capital Territory was taken to the court of proper jurisdiction under proper legislation on 13 July 1994 and, because of the strategic litigation instituted since then, which Justice Gaudron has identified and I will refer to it - - -

McHUGH J: But, how do you answer the point? You refer on page 191 to the judgment of 27 July 2000, but that judgment was delivered before Justice Higgins gave his decision in December 1999. His judgment makes it perfectly clear that you were - that the applicants were tenants at will and that the tenancy had been terminated. Now, at the stage when Chief Justice Miles and Justices Einfeld and Kenny made their decision, maybe the nature of your possession was unclear. It was not unclear after Justice Higgins made his decision.

MR MARTIN: Your Honour, if I could answer it (a) Justice Higgins did not make that we were tenants at will. Justice Higgins said that it does not matter whether we are tenants at will or tenants at sufferance or trespassers; (b) Justice Higgins arrived at that decision summarily, and the special leave is fundamentally and basically initially started that Justice Higgins did not conduct that hearing as set out by this High Court's determining case of Webster v Lampard. In Webster v Lampard this High Court set out that if the defendant has submitted evidence that would give rise to an arguable case, or issues which might subsequently give rise to an arguable case, then there is no ground to make summary judgment.

McHUGH J: That is the point. Justice Higgins thought that there was no substance in your claim and that is why he gave summary judgment. He found that you were in occupation of the premises without the consent of the registered proprietor and that you became a tenancy on sufferance and that your arrangement had been terminated. What more did the judge need before entering summary judgment for the registered proprietor?

MR MARTIN: Absolutely hell of a lot more, your Honour, is my humble submission to you, that if that was the case, your Honour, there is no statutory right of possession to a registered proprietor and this is what - there is complex points of law. This is not a third party - - -

McHUGH J: What do you mean, a registered proprietor has got no right to get possession?

MR MARTIN: Your Honour, the ACT Land Titles Act - my understanding is only section 96 of the ACT Land Titles Act gives a statutory right of possession and that is to a registered mortgagee. There is no statutory right of possession to a registered proprietor. Even if it is there, that was not pleaded.

McHUGH J: They brought an action for ejectment.

MR MARTIN: See, your Honour, this is exactly what I am submitting, and Justice Gaudron made the point that there has been four or five initiation in the Supreme Court, in the Magistrates Court, in the Residential Tenancy Tribunal. Now, eventually we approached Justice Higgins in action SC 182 on points of law, rulings on points of law. Now, he made those rulings of points of law. Only, and only after those points of law - ruling on points of law which have been set aside subsequently - based on those rulings summary judgment was applied and an appearance was then....subsequently and Justice Higgins, in a global fashion, made rulings on law on a multitude of issues.

If your Honours can give me an opportunity to go through page 1 of my additional book of authorities - - -

McHUGH J: But, Mr Martin, it comes down to this, does it not: you have no lease, at best you ever had a tenancy at will, a registered proprietor wants possession of the premises. Do you seriously contend that a registered proprietor cannot get ejectment in the Supreme Court?

MR MARTIN: Your Honour, two Full Federal Courts have ruled they do not have the authority, two Federal Court. The Federal Court of Justice O'Loughlin, Justice Whitlam and Justice Finn on 24 April 1998 ruled they do not have jurisdiction. The Full Federal Court of Chief Justice Miles, Justices Einfeld and Kenny have ruled they do not have jurisdiction. In the ACT the jurisdiction comes to the Magistrates Court under the Landlord and Tenants Act in particular.

McHUGH J: But that argument of yours has been ruled on and decided adversely to you.

MR MARTIN: I accept that it has been ruled on and ruled on adversely. It is my submission, your Honour - I mean I am not at all putting to your Honours that the primary court and this particular Full Court has ruled adversely on me, but I am submitting to you, your Honours, that the Full Federal Court, prior to this one, ruled that the Supreme Court had no jurisdiction. That was one of the points put in as an arguable case in front of Justice Higgins, which he ignored.

Subsequent to that, the Full Federal Court on 27 May 2000 have ruled again that the Supreme Court has got no jurisdiction. In line with your Honour's reasoning, if I could submit to your Honour, assuming the highest - and that is not the way I would like to put it - the way I would like to put it, the highest we can say is that we have got statutory estoppel, we have got equitable estoppel and we have a caveatable interest on the property. Apart from any implied tenancy right, whatever they may be, because it has not been determined and that has been Chief Justice Miles, Justices Einfeld and Kenny set it out, that no tribunal or court has found what the nature of our tenancy is.

McHUGH J: But Justice Burchett pointed out to you in his judgment in the Full Court in this matter that, earlier, you had at least two arguable defences, by the time the present proceedings came on, they had been ruled against you and you had no defences left.

MR MARTIN: I accept that is the comment Justice Burchett has made and I humbly submit to your Honour that he could not be more wrong. He could not be more wrong. If I could go through and show what are the basis on which - if I could go through the first page of my authorities quickly and I will tell your Honours the basis of arguable defence that we have got.

McHUGH J: Well, tell us.

MR MARTIN: Your Honour, in the first one, High Court authority of Webster v Lampard. Even if everything that Justice Higgins said and rule wa s correct, he cannot do that in a summary fashion.

McHUGH J: Why not? I was a party to the judgment in Webster v Lampard and there is nothing in the case, as far as I can recollect, which would prevent the judge, in this particular case, from making an order for summary judgment, based on the facts he found. He found you had a tenancy at will or on sufferance and it had been terminated and the respondent was the registered proprietor of the property. In those circumstances, why should not the judge strike out your defence and give judgment, summary judgment, for the registered proprietor?

MR MARTIN: Because there are statutory provisions under the ACT Land Titles Act, section 8, I have noted it down, which says one cannot do that to such people who have done improvements.

McHUGH J: You are relying on those sections. They apply to a registered proprietor, not to you.

MR MARTIN: But, your Honour, Justice Higgins - - -

McHUGH J: You were never the registered proprietor.

MR MARTIN: We have never alleged - we have not alleged that the respondent was registered as the proprietor by us. The respondent - if I could step over that, your Honour, if I could put then the second case that I reported, and Justice Higgins himself sat on it, and Justice Higgins himself ruled on it that a registered proprietor, a mortgagee or anyone who is applying for summary judgment should plead a statutory right in this Stanley Stergiou v Citibank Limited.

No 3 that I would say is in Manchester Corporation v Connolly. Even though it is a UK case, there has been serious doubt raised that there is no authority to make summary judgment for possession.

McHUGH J: Yes. Your time is up, Mr Martin. Mrs Martin, do you adopt - what is your position in this matter?

MRS MARTIN: I agree with what my husband has said, your Honour.

McHUGH J: Thank you, Mrs Martin. Thank you, Mr Martin. The Court need not hear you, Mr Purnell.

The Court is of the view that the judgment of the Full Court is not attended by any doubt. In those circumstances, the application for special leave to appeal is refused.

AT 2.28 PM THE MATTER WAS CONCLUDED