Shoena Middlebrook v NSW Land and Housing Corporation and Anor [2005] NSWSC 673 (13 July 2005)

Last Updated: 15 July 2005

NEW SOUTH WALES SUPREME COURT

CITATION: Shoena Middlebrook v NSW Land & Housing Corporation & Anor [2005] NSWSC 673



CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): 30018/05

HEARING DATE{S): 7 July 2005

JUDGMENT DATE: 13/07/2005

PARTIES:
Shoena Annette Middlebrook (Plaintiff)
New South Wales Land & Housing Corporation, also known as the Department of Housing (First Defendant)
Consumer Trader & Tenancy Tribunal (Second Defendant)

JUDGMENT OF: Associate Justice Malpass

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): RT 04/57740

LOWER COURT JUDICIAL OFFICER: Member J Farey

COUNSEL:
Mr M Robinson (Plaintiff)
Mr A Jungwirth (First Defendant)

SOLICITORS:
Legal Aid Commission of NSW (Plaintiff)
New South Wales Land and Housing Corporation Solicitors (First Defendant)
I V Knight Crown Solicitor (Second Defendant)



CATCHWORDS:
Termination of residential tenancy agreement - duty to provide conciliation - threshold requirements - findings to be made - circumstances of the case and special circumstances.

ACTS CITED:
Consumer Trader & Tenancy Tribunal Act 2001, ss54, 65, 67, 68
Residential Tenancies Act 1987, ss57, 63, 64

DECISION:
The appeal is allowed
the orders made by the Tribunal on 9 February 2005 are set aside
this decision is remitted to the Tribunal and a re-hearing of the proceedings by the Tribunal is ordered
the first defendant is to pay the costs of the summons
the exhibits may be returned.


JUDGMENT:

- 9 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST


Associate Justice Malpass


13 July 2005


30018 of 2005 Shoena Annette Middlebrook v New South Wales Land & Housing Corporation & Anor


JUDGMENT

1 His Honour: A residential tenancy agreement (the agreement) came into being between the plaintiff and the defendant. The subject premises (the premises) are what is known as “social housing premises” and the tenant pays a significantly reduced rental.

2 The plaintiff has been in arrears of rent since 10 February 2001. The tenancy was terminated and subsequently reinstated on 10 February 2003.

3 On 10 March 2004, the defendant made application to the Consumer Trader & Tenancy Tribunal (the Tribunal) for, inter alia, termination of the agreement and possession of the premises (the premises).

4 The proceedings were first listed for 24 March 2004. The proceedings were adjourned until 7 April 2004. The plaintiff did not appear and ex parte orders were made for payment of arrears. The proceedings again came before the Tribunal on 26 August 2004. Again, the defendant did not appear and ex parte orders were made for the payment of arrears. On 13 October 2004, the proceedings were further adjourned. They were further adjourned on 28 October 2004. The proceedings were listed for hearing on 17 November 2004. Again, the plaintiff did not appear. Orders were made ex parte (including orders for termination of the agreement and possession to be given on 24 November 2004).

5 During this period, the plaintiff had voluntarily admitted herself (from time to time) as an inpatient of the psychiatric ward of Rozelle Hospital. She was admitted on 7 August 2004 for a period of about 12 days. She was admitted on 26 October for a period of about three days. She was admitted on 3 November 2004 for a period of about eight days. She was admitted on 17 November 2004 for a period of about eight days. This meant that she was in that hospital for a period of about 31 days over what was about a four month period.

6 The plaintiff made a successful application for a re-hearing. On 9 February 2005, a defended re-hearing took place. Both parties had legal representation. Orders were made which, inter alia, terminated the agreement and gave possession to the defendant (on 2 March 2005). The Tribunal has given both ex tempore and written reasons for the decision.

7 As at 9 February 2005, the arrears may have been nearly $2,000. The plaintiff may not have paid any rent since about August 2004.

8 On 2 March 2005, the plaintiff filed a summons in this court. She now proceeds on an amended summons filed on 27 June 2005. The plaintiff seeks relief pursuant to both ss65 and 67 of Consumer Trader & Tenancy Tribunal Act 2001 (the Act).

9 Section 65 enables the granting of relief where there has been either lack of jurisdiction or denial of procedural fairness. Section 67 provides an avenue of appeal in those cases where the Tribunal decides a question with respect to a matter of law. The section provides that a reference to a matter of law includes a reference to “a matter relating to the jurisdiction of the Tribunal”.

10 The section is intended to provide a narrow avenue of appeal. The avenue is not equivalent to an avenue of appeal available where there has been error in point of law. There is authority for the proposition that it should be confined to a pure question of law.

11 The amended summons sets out the grounds on which the plaintiff relies. A number of grounds are enumerated.

12 Generally speaking, they may be regarded as falling into certain categories. One category relates to allegations of lack of evidence and jurisdictional questions. Another category concerns decisions on questions of adjournment and, inter alia, the admissibility of evidence. A further category concerns allegations of, inter alia, irrationality, illogicality and misconception.

13 In addition, it is said that there was non-compliance with s54(1) of the Act and that there was error in determining that there were no special circumstances within the meaning of s64 thereof.

14 The hearing took place on 7 July 2005. Counsel for both parties have relied on detailed written submissions supplemented by oral argument.

15 At the commencement of the hearing, counsel for the plaintiff abandoned certain of the grounds of appeal (including the ground of irrationality, illogicality and misconception).

16 Whilst decisions made on questions of adjournment and the admissibility of evidence may give rise to procedural unfairness, in most cases they do not fall within the ambit of s65 (they are properly regarded as complaints of error in relation to the making of those decisions).

17 Whether or not there has been a denial of procedural fairness in such a case is a question to be determined having regard to the relevant circumstances of the particular case before the court. A party may be denied procedural fairness where a reasonable opportunity to present either information or argument is not afforded. In this case, it is unnecessary to further pursue these considerations, as the proceedings can be determined on other bases.

18 Section 54 is headed “Tribunal to promote conciliation”. It imposes a duty upon the Tribunal to use its best endeavours to bring the parties to a settlement that it acceptable to all of them, before making an order to determine any matter that is the subject of proceedings. The Act is silent as to any intended consequence by reason of non-performance of that duty.

19 The question of the consequences was not fully argued. In the present case, the parties were engaged in a re-hearing. Perhaps, that may be a matter of some significance. Again, for reasons already mentioned, it is unnecessary to further pursue this consideration.

20 The principal area relied on by the plaintiff goes to questions of jurisdiction. In dealing with that area, it is necessary to have regard to various of the provisions of the Residential Tenancies Act 1987 (the RT Act).

21 Part 5 of the RT Act is headed “Termination of residential tenancy agreements”. Division 2 thereof deals with notices of termination. Division 3 thereof deals with termination of residential tenancy agreements by the Tribunal.

22 I shall first mention the relevant requirements of Div 2. Section 57 enables the giving of a notice of termination on the ground that the other party has breached a term of the agreement. The section provides that a notice of termination has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given. Section 63 stipulates the form of the notice of termination.

23 I now turn to the relevant provisions of Div 3. Section 64 enables a landlord, not later than 30 days after the day specified for the delivering up of vacant possession, to apply to the Tribunal for an order terminating the agreement and an order for possession of the premises.

24 Subsection (2) thereof is in the following terms:-

64(2) The Tribunal shall, on application by a landlord under this section, make an order terminating the agreement if it is satisfied:

(a) in the case of a notice given by the landlord on a ground referred to in section 56, 57 or 61:

(i) that the landlord has established the ground, and

(ii) if the ground is a breach of the residential tenancy agreement, that the breach, in the circumstances of the case, is such as to justify termination of the agreement,

(b) that the tenant has seriously or persistently breached the residential tenancy agreement, or

(c) that, having considered the circumstances of the case, it is appropriate to do so.

25 Subsection (3) is in the following terms:-

64(3) Except as provided by section 66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part.

26 Subsection (4) is in the following terms:-

64(4) Without limiting the obligations of the Tribunal under subsection (2), in considering the circumstances of a case concerning social housing premises, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons,

(b) whether the breach of the residential tenancy agreement was a serious one (and, in particular, whether it was one to which subsection (6) applies), and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,

(c) the landlord’s responsibility to its other tenants,

(d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal,

(e) the history of the tenancy concerned.

27 As has been earlier mentioned, the Tribunal had before it a re-hearing ordered pursuant to s68 of the Act. It is common ground that a re-hearing is a hearing de novo. There is issue between the parties as to other aspects of a re-hearing (inter alia, as to whether or not evidence adduced in earlier hearings of the Tribunal may be treated as evidence in the re-hearing).

28 It appears that the agreement was not before the Tribunal in the re-hearing. It appears also that the notice of termination was not before it. There is issue between the parties as to what matters were in dispute during the re-hearing.

29 There is material that suggests the notice of termination may have been before the Tribunal in earlier hearings. There is evidence of admissions of breach of agreement. It is unclear from this evidence as to whether or not it can be regarded as an admission of the breach propounded in the notice of termination.

30 These considerations can also be put aside. It is unnecessary to further dwell on them.

31 The findings set forth in the reasons of the Tribunal contain, inter alia, the following:-

The issue before the Tribunal is whether the tenancy agreement should be terminated. These are the orders sought by the Applicant.

... ... ...

However, notwithstanding this, the statutory grounds for termination on the basis of 14 days rent arrears have been met, without contest. The Respondent agreed that she had not paid rent since August 2004, and that no repayments towards the arrears had been made since that date.

... ... ...

Prima facie, the Applicant’s case demands that the orders should be made.

The Legislation requires the Tribunal to take into consideration any and all special circumstances of the tenant, prior to making the order. S 64(2)(c)

... ... ...

“There must be found to exist circumstances which are special and particular in relation to the matter in question and of such weight and cogency as to justify the disregard of the general legislative intention...” (Brenner v Domalowski 56 SRNSW 246 at 248 [sic].)

There are no special circumstances for the Respondent made out by the evidence, sufficient to persuade the Tribunal that the orders for termination and possession should not be made.

32 In the present case, the Tribunal is prohibited from making an order terminating the agreement under s64 of the RT Act unless it is satisfied that the notice of termination was given and that it was given in accordance with Pt 5. In my view, s64 imposes threshold requirements that must be satisfied before the Tribunal can make an order terminating a residential tenancy agreement under the section. It must be satisfied of the matters specified in subs (2)(a)(i) and (ii) and subs (2)(c). When it is satisfied of those matters it can then address the requirements of s64(2).

33 Subsection (2) of s64 of the RT Act not only requires the Tribunal to be satisfied that the landlord has established the ground relied on pursuant to s57, but also that the breach, in the circumstances of the case, is such as to justify termination of the agreement. In the present case, it must also be satisfied that, after having considered the circumstances of the case, it is appropriate to terminated the agreement.

34 Before proceeding to make an order, it is incumbent upon the Tribunal to make the requisite finding in respect of each of these matters.

35 The Tribunal should make an order if it is satisfied as to each of the relevant matters specified in subs (2). The language of subs (4) regards these matters as “obligations”.

36 In my view, a reading of the reasons discloses that the Tribunal has failed to make all of the findings that had to be made pursuant to subs (2) and (3). It seems to me, for these reasons alone, that the order made by the Tribunal has to be set aside.

37 In performance of the obligations imposed by subs (2), to the extent that the have relevance, the Tribunal is to have regard to the matters referred in subs (4). Such provision contains no reference to any matter of the “special circumstances” of the tenant. It does refer to the “circumstances” of the tenant.

38 In my view, the Tribunal also misdirected itself in addressing those matters.

39 Not only did the Tribunal erroneously see the provisions as requiring it to have regard to special circumstances, both the reasons and the transcript demonstrate that it was misconceived in its approach to the question of onus.

40 In an application by a landlord under s64 of the RT Act for an order terminating a residential tenancy agreement, the landlord bears the onus of demonstrating to the Tribunal of an entitlement to that order.

41 In the light of what has already been said, it is unnecessary to consider any other matters that were argued by the parties.

42 The appeal is allowed. The orders made by the Tribunal on 9 February 2005 are set aside. This decision is remitted to the Tribunal. A re-hearing of the proceedings by the Tribunal is ordered.

43 The first defendant is to pay the costs of the summons. The exhibits may be returned.

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LAST UPDATED: 13/07/2005