Allkins and 1 Ors v Consumer Trader and Tenancy Tribunal and 1 Ors

[2006] NSWSC 1093

CITATION:	ALLKINS & 1 Ors v CONSUMER TRADER AND TENANCY TRIBUNAL & 1 Ors [2006] NSWSC 1093
HEARING DATE(S):	13/10/06
JUDGMENT DATE :	19 October 2006
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The application for extension of time is refused. The summons is dismissed. The plaintiffs are to pay the costs of the summons.
CATCHWORDS:	Appeal from decision of CTTT - alleged failure to give reasons and breach of statutory provisions - alleged denial of procedural fairness (an order that a dog be removed from a residential park) - alleged invalidity of pet rules - summons brought out of time
LEGISLATION CITED:	Consumer Trader and Tenancy Tribunal Act 2001 (NSW) Residential Parks Act 1998 (NSW)
PARTIES:	Juliet Elizabeth ALLKINS Lionel Neville CASSELL CONSUMER TRADER AND TENANCY TRIBUNAL VALHALLA VILLAGE PTY LIMITED
FILE NUMBER(S):	SC 30073/06
COUNSEL:	Ms J Needham SC (Pls) Mr G W McGrath (2nd Def)
SOLICITORS:	Legal Aid Commission of NSW (Pls) Tesoriero Henderson Cotter (2nd Def)
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	RP 06/04630
LOWER COURT DATE OF DECISION:	06/04/06

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

19 October 2006

30073/06 Juliet ALLKINS & 1 Ors v CONSUMER TRADER AND TENANCY TRIBUNAL & 1 Ors

JUDGMENT

1 HIS HONOUR: The second defendant owns and operates a residential park at Chain Valley Bay. It is known as Valhalla Village.

2 The plaintiffs located a moveable dwelling on a site in the village which is rented by them. It is occupied pursuant to a residential site agreement (the agreement).

3 The agreement contains, inter alia, the following:-

Resident’s Right To Quiet Enjoyment

“ 9 The park owner agrees:

9.1 that the resident will have quiet enjoyment of the residential site without interruption by the park owner or any person claiming by, through or under the park owner or having superior title to that of the park owner, and
9.2 that the park owner or the park manager will not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the resident in using the residential site.

Pets, Poultry and Animals

52 The resident agrees not to keep or care for any pets, poultry or animals on the site or in the dwelling, except as permitted by the park rules.”

4 The park rules (the rules) are made pursuant to s62 of the Residential Parks Act 1998 (NSW) (the Act). The section enables a park owner to make written park rules relating to the use, enjoyment, control and management of the residential park and in particular provides that the rules may relate to, inter alia, the keeping of pets. S63 makes the rules terms of the agreement. It also provides that a rule that is inconsistent with a term of the agreement that is not also a park rule is not a term of the agreement to the extent of the inconsistency.

5 The objects of the Act are set forth in s4A. The expressed objects are to, inter alia, set out the respective rights and obligations of park owners and residents, including their rights and obligations under residential tenancy agreements and to establish legislative protection for residents.

6 Section 20 of the Act is headed “Resident’s right to quite enjoyment”. It is in the following terms:-

“(1) It is a term of every residential tenancy agreement that:
(a) the resident must have quiet enjoyment of the residential premises without interruption by the park owner or any person claiming by, through or under the park owner or having superior title to that of the park owner, and
(b) the park owner or the park manager must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the resident in using the residential premises.
(2) A park owner or a park manager under a residential tenancy agreement must not, during the currency of the agreement, contravene or fail to comply with subsection (1).”

7 The relevant Valhalla Village pet rules contain, inter alia, the following:-

“1. Any and All pets entering Valhalla Village must first be approved by management;
2. If a resident moves into the village without a pet, they cannot obtain a new pet;
3. If a pet dies, it cannot be replaced ”

8 The plaintiffs had a dog, Jacko, which entered with approval, pursuant to the pet rules. He died. The plaintiffs sought to replace him with another dog, Ruffy. Ruffy was brought into the village without prior approval by management. Subsequent applications for approval were not granted.

9 The second defendant brought an application in the Consumer Trader and Tenancy Tribunal (the Tribunal). In substance, it was brought to enforce the pet rules in relation to Ruffy.

10 There was a contested hearing. At the hearing the second defendant was represented by its park manager. The plaintiffs were represented by the Central Coast Tenants’ Advice and Advocacy Service (the Service).

11 On 6 April 2006, the Tribunal made a decision which was in favour of the second defendant. Notice of the order was given to the parties (it was dated 7 April 2006). It contained the following:-

“On 6/4/06 the Tribunal made the following orders:
1. On or before 1/5/06 the respondent, JUILET ALLKINS AND LIONEL NEVILLE CASSELL, Valhalla Village, 103/274 Mulloway Road, CHAIN VALLEY BAY NSW 2259, is to remove permanently from the premises being Site 103, 274 Mulloway Road, Chain Valley Bay, the dog being kept by the respondent at those premises.
2. The respondent is to refrain from keeping any other dog on the premises for the balance of the term of the Residential Site Agreement.
Reasons:
A. I have jurisdiction in the matter.

B. I find that the three major submissions of the respondent are not sustainable in that:-
(a) the Park rules are made in accordance with Section 62 of the Residential Parks Act 1998
(b) the Park rules are not inconsistent with the Residential Site Agreement which by virtue of Clause 52 of that Agreement incorporates the rules in that agreement
(c) the fitness or otherwise of the respondent as a pet owner or her medical need for a companion dog are not sufficient reasons for an order in her favour.”

12 The plaintiffs did not apply for a rehearing.

13 The notice did not comply with s 49 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act) in the sense that it failed to indicate that any party may, within 14 days of receiving notice of the decision, request the Tribunal to provide a statement of reasons for its decision.

14 The notice of order was received by the Service on 10 April 2006. On 11 May 2006, the Service applied to the Tribunal for written reasons for its decision. The request for reasons was made outside the time allowed by s 49(2). An extension of the time for the making of the request was also sought. The Tribunal refused both the application for an extension and the request to provide a statement of reasons for its decision.

15 In this Court, the plaintiffs filed a summons on 26 May 2006. It claims various heads of relief. In essence, it seeks to have the orders of the Tribunal set aside.

16 Broadly speaking, there are two avenues of challenge. One concerns an alleged failure to give reasons and compliance with the provisions of s49 of the CTTT Act. The other concerns alleged invalidity of the pet rules. This aspect of the challenge relies on three contentions.

17 The avenues of challenge to the decision are provided by sections 65 and 67 of the CTTT Act. Section 65 enables relief (of the nature referred to therein) to be granted where there has been a denial of procedural fairness. Section 67 enables an appeal to be brought where the Tribunal decides a question with respect to a matter of law (it does not provide an appeal where there has been error in point of law).

18 The summons has been brought out of time. There seems to be a consensus that the default is in the order of about eighteen days. The challenge can only be maintained if an extension of time is granted. There was a consensus to the hearing of the summons together with the application for extension of time.

19 Section 67 provides a narrow avenue of appeal. It has been said to be restricted to decisions concerning pure questions of law. It does not accommodate complaints concerning the provision of reasons. If any relief is available concerning such a ground, the plaintiffs must look to s65. I shall return to that consideration in due course.

20 Before doing so, I shall proceed to consider the question of validity. Clause 52 of the agreement provided that the plaintiff was not to keep or care for any pets, poultry or animals on the site or in their dwelling, except as permitted by the park rules. The clause also incorporates the park rules into the agreement.

21 It was first said that the rules were inconsistent to the right to quiet enjoyment provided by s20 of the Act. The argument put in support of this proposition was done so briefly in the broadest of terms. This was a characteristic of the submissions made concerning validity. I am not satisfied that the rules concerning pets are inconsistent with the provisions of s20 of the Act (in particular I am not satisfied that they interfere, or cause or commit any interference, with the reasonable peace, comfort or privacy of the resident in using the site).

22 I should add that the submissions made on this matter by the plaintiffs suggest some misunderstanding of the rules. They do not restrict occupiers from owning a pet, they restrict entrance to the village.

23 Secondly, it is said that a duty should be implied, from both the objects of the Act and the general law, to exercise the power to make rules only in a reasonable manner. There was issue between the parties as to whether or not such a duty should be implied. In the present case, it is unnecessary to address that question. I am not satisfied that the exercise of the power was unreasonable.

24 The content of the rules would appear to reflect a policy to phase out pets from the village. It seems to me that such an approach was reasonable.

25 Thirdly, it is said that the power to make rules relating to the keeping of pets did not extend to the restriction of ownership of pets.

26 I have earlier referred to the misunderstanding of the rules. The power is expressed in the most general terms. In my view, it provided ample scope to enable the making of the rules. It seems to me that such a power enables the making of rules, inter alia, as to whether or not pets are allowed to enter the village and, if so, the terms upon which they are so allowed.

27 I now return to the matter of reasons. The plaintiffs have been represented by the Service. It is not said that the Service was unaware of the content of the provisions of s49 of the CTTT Act. Indeed, it would seem that they were aware. Not only did the Service make a request on behalf of the plaintiffs, it also sought an extension of time. In the circumstances, it does not seem to me that any breach of sub-section (i) thereof was of any consequence.

28 The statutory requirement to provide a statement of reasons only arises when the party complies with sub-section (ii). In this case, the plaintiffs did not comply with that provision.

29 Section 81 of the CTTT Act confers a general power to extend the period of time for the doing of anything under any Act in respect of which the Tribunal has jurisdiction.

30 By letter dated 19 May 2006, the Deputy Chairperson of the Tribunal advised that the request for reasons had been made out of time. The letter advised that this was the reason for the declining of the request. It also advised that the application for extension was also refused. It further advised that the Deputy Chairperson was not satisfied that his discretion should be exercised on the ground outlined in the letter of request made by the Service (the receiving of legal advice concerning the notice of order). There was no request for further reasons of these decisions made pursuant to s49 of the CTTT Act.

31 By way of further argument, it has been said by the defendant that the notice of order set forth sufficient reasons to satisfy any duty and complied with sub-section (iii) of s49 of the CTTT Act. If the matter needs to be decided, I express the view that the notice could be regarded as satisfying the same. Whilst the contents of the notice were undoubtedly succinct, (the statute provides that the “statement may be brief”) it set out the decision and reasons. In those reasons may be found what was regarded as the view reached on the three major submissions made by the plaintiffs (the submissions were said to be not sustainable).

32 There was no recording of what took place at the hearing. The Court has before it only documentary material that was placed before the Tribunal. The arguments of the plaintiffs have to be dealt with in the light of these difficulties. Largely, the issues agitated appear to be matters of law. The reasons for the findings on these matters appear to be set forth in the notice of order in (a) and (b) of B. The only factual issues would appear to be those which are the subject of the reasons set forth in (c) of B. The factual issues could not have been material to the result.

33 It might be added that it appears that the brevity of the reasons did not prevent or inhibit the preparation of grounds of appeal on the plaintiffs behalf.

34 Any complaint concerning reasons can only be accommodated pursuant to s65 of the CTTT Act. As appears from what has been earlier said in the judgment, I am not satisfied that there was any denial of procedural fairness in this case.

35 In my view, the challenge to the decisions of the Tribunal have failed. In such circumstances, it would be futile to grant an extension of time.

36 The application for extension of time is refused. The summons is dismissed. The plaintiffs are to pay the costs of the summons. The exhibit may be returned.

**********