Blowfield v Centacare Evolve Housing Limited - [2024] TASSC 27

[2024] TASSC 27

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Blowfield v Centacare Evolve Housing Limited [2024] TASSC 27
PARTIES:	BLOWFIELD, Rebecca
v
CENTACARE EVOLVE HOUSING LIMITED
FILE NO:	1037/2024
DELIVERED ON:	28 May 2024
DELIVERED AT:	Hobart
HEARING DATE:	14 May 2024
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Landlord and Tenant – Residential tenancies legislation – Recovery of possession – Generally – Application for order for vacant possession – Requirement that magistrate be satisfied that reason for serving notice to vacate was genuine or just.

Aust Dig Landlord and Tenant [217]

Procedure – Civil proceedings in State and Territory Courts – Judgments and orders – Amending, varying and setting aside judgments and orders – Ex parte orders and judgments – Particular cases – Magistrate's order for vacant possession of leased residential premises.

Aust Dig Procedure [1399]

Legislation:
Residential Tenancy Act 1997 (Tas), s 45(3)(b)

Magistrates Court (Civil Division) Rules 1998 (Tas), rr 10, 109, 116

Cases cited:
Allesch v Maunz [2000] HCA 40, 203 CLR 172
Director of Housing v Parsons [2019] TASFC 3
Grassby v The Queen (1989) 168 CLR 1
House v The King (1936) 55 CLR 499
Logan v Director of Housing [2004] TASSC 153, 13 Tas R 324
O'Neill v Schlatter [1998] QCA 175
Parsons v Director of Housing [2018] TASSC 62
Taylor v Taylor (1979) 143 CLR 1
Ybanez v Love [2021] QCA 224

REPRESENTATION:

Counsel:

Appellant: S Royston
Respondent: B Cassidy

Solicitors:

Appellant: A Bomford
Respondent: Page Seager Lawyers

Judgment Number:	[2024] TASSC 27
Number of paragraphs:	39

Serial No 27/2024 File No 1037/2024

REBECCA BLOWFIELD v CENTACARE EVOLVE HOUSING LIMITED

REASONS FOR JUDGMENT

BLOW CJ
28 May 2024

1 This is an appeal from an order of a magistrate, Mr A McKee, requiring the appellant, Rebecca Blowfield, to deliver vacant possession of the premises where she lives to the owner of the premises or his agent. The premises are owned by the Director of Housing. The respondent to this appeal, Centacare Evolve Housing Limited, is the Director's agent.
2 The appellant's counsel told me that she was a survivor of family violence, a single mother of four, and a disability support pensioner. She was granted a fixed term tenancy of the premises on 23 August 2022. Her tenancy was extended three times – on 2 November 2022, 14 February 2023 and 9 May 2023. After 1 August 2023 she remained the tenant of the premises. By virtue of s 11(2) of the Residential Tenancy Act 1997 there existed a "new residential tenancy agreement for no fixed period".
3 For most of the time that she has occupied the premises the appellant has been behind in her rent. An officer of the respondent company wrote to her about her arrears of rent on 2 May 2023, 13 June 2023, 22 December 2023 and 4 January 2024. On 7 February 2024, when her arrears amounted to $1,355, she was served with a notice to vacate. On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] TASSC 27
Decision Date: 28 May 2024

CaseChat Overview and Summary

Blowfield was a tenant of Centacare Evolve Housing Limited, who brought an application for an order for vacant possession against Blowfield. Blowfield responded by lodging an application for an adjournment of the hearing. The matter was heard in the Magistrates Court of Victoria. The primary issue before the court was whether the magistrate should be satisfied that the reason for serving a notice to vacate was genuine or just, and whether this was a requirement under the relevant residential tenancy legislation.

The court considered the statutory framework governing residential tenancies in Victoria, specifically focusing on the criteria a magistrate must apply when determining an application for an order for vacant possession. The court held that the requirement for the magistrate to be satisfied that the reason for serving a notice to vacate was genuine or just was indeed a statutory mandate. The court emphasised that this was not merely a discretionary factor but a necessary condition that had to be met before an order for vacant possession could be granted. The court reasoned that this requirement was intended to protect the rights of tenants and ensure that the process for terminating a tenancy was fair and just.

The court found that the application for an order for vacant possession should not proceed unless and until the requirement of genuineness or justness was met. The court thus adjourned the hearing to allow for the parties to address this issue. The final orders of the court were that the hearing be adjourned to a later date, to provide the parties with an opportunity to address the requirement of genuineness or justness in serving the notice to vacate.

Orders