Boele v Rinbac Pty Ltd - [2014] NSWCA 451

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boele v Rinbac Pty Ltd [2014] NSWCA 451
Hearing dates: 17 November 2014
Decision date: 19 December 2014
Before: Basten JA at [1];
Sackville AJA at [57];
Rein J at [102]
Decision:
Summons dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - appeal limited to question of law - whether error of law by Consumer, Trader and Tenancy Tribunal - whether District Court erred in failing to identify error of law by Tribunal - whether ground relied on by way of judicial review argued in District Court - whether any error of District Court involved jurisdictional error, error on face of record not being relied on
LANDLORD AND TENANT - retirement villages - termination of residence contract for breach of village contract - alleged breach by applicant in failing to occupy premises - whether breach justified termination order - whether Tribunal failed to consider whether the "circumstances of the case" warranted exercising power to terminate - Retirement Villages Act 1999 (NSW), s 134
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 67, 69
District Court Act 1973 (NSW), s 176; Pt 4
Industrial Relations Act 1946 (NSW), s 179
Retirement Villages Act 1999 (NSW), ss 11, 40, 112, 113, 134, 207; Sch 4
Supreme Court Act 1970 (NSW). s 69
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Boele v Rinbac Pty Ltd (District Court (NSW), Gibb DCJ, 5 December 2012, unrep
Brimelow v Sharpe [2012] NSWCA 345
Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Craig v The State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs [203] HCA 26; 77 ALJR 1088
Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421
Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218
Goodwin v Commissioner of Police [2012] NSWCA 379
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Ethic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282
Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; 249 CLR 398
Rinbac Pty Ltd v Boele (Retirement Villages) [2012] NSWCTTT 237
Rinbac Pty Ltd v Boele (Retirement Villages) [2013] NSWCTTT 421
Secretary of the Treasury v Public Service Association & Professional Officers' Association Amalgamated Union of NSW [2014] NSWCA 138
Texts Cited:
M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, 2013, Law Book Co) at [3.40]
'Jurisdictional Error and Beyond' (in M Groves (ed) Modern Administrative Law in Australia Concepts and Context (Cambridge University Press, 2014))
Category: Principal judgment
Parties: Pieter Boele (Applicant)
Rinbac Pty Ltd (First Respondent)
District Court of NSW (Second Respondent)
Representation: Counsel:
Mr J Glissan QC/Mr D Nagle (Applicant)
Ms M Allars SC/Mr G Lucarelli (Respondent)
Solicitors:
Platinum Lawyers (Applicant)
Landerer & Co (First Respondent)

File Number(s): 2014/135146
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2014-03-21 00:00:00

Before:

Cogswell SC DCJ

File Number(s):

2013/276281

Judgment

BASTEN JA: In 1992 the applicant, Mr Pieter Boele (jointly with his mother, since deceased) obtained a lease entitling them to reside in a unit in Woolcott Court Retirement Village in Wahroonga. The lease constituted a "residence contract" which was regulated by the Retirement Villages Act 1999 (NSW). That continued to be so after the village ceased to be a retirement village under that Act.

On 23 August 2011 the registered proprietor of the village (being the respondent, Rinbac Pty Ltd) filed an application in the Consumer, Trader and Tenancy Tribunal ("the Tribunal") seeking an order terminating the applicant's residence contract. Following the dismissal of a cross-application and an appeal from an order originally made, on 20 August 2013 the Tribunal made an order terminating the lease and requiring the applicant to vacate the premises.

From that order, the applicant appealed to the District Court, pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the Tribunal Act"), which provided an appeal where "the Tribunal decides a question with respect to a matter of law". By judgment delivered on 21 March 2014, Judge Cogswell SC dismissed the appeal. There is no appeal from that judgment, but the applicant has invoked the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW) seeking an order setting aside the judgment in the District Court.

For the reasons given below, the application should be upheld and the order of the District Court dismissing the appeal should be set aside. Because the reason for that conclusion is that there was error on the part of the Tribunal which the judge failed to identify, the only order available in the District Court was one upholding the appeal, setting aside the decision of the Tribunal and remitting the matter for further hearing. That order should now be made by this Court.

Grounds of application

The procedural history of this matter reveals confusion and missteps which are surprising, given the relative frequency with which this particular jurisdiction is invoked. The grounds ultimately relied upon in a further amended summons filed on 25 August 2014 were as follows:

"The District Court committed the following jurisdictional errors:

a. by not having regard to the purpose of the Retirement Villages Act 1999 in its application of s 134 of the Act.

b. by failing to properly apply the provisions of s 134(3)(a) by failing to consider the relevant circumstances when terminating the lease.

c. by failing to consider and determine the critical matters advanced by the applicant to the applicant's case when determining whether the lease should be terminated.

d. by failing to have regard to the material facts upon which the jurisdiction was purportedly exercised."

The first curiosity about these grounds was that they were identified as "jurisdictional errors". There is no privative clause or similar provision which would limit the jurisdiction of this Court to jurisdictional error: Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1 at [9]. It was open to the applicant to rely upon any error of law appearing upon the face of the record, which includes the reasons for judgment of the District Court, pursuant to s 69(4). Why the grounds sought to limit the jurisdiction in this way was obscure: it may have been thought at some stage that the exclusion of orders removing an appeal from the District Court to this Court in s 176 of the District Court Act 1973 (NSW) applied with respect to civil matters: however, it is accepted that that provision, appearing in Pt 4 of the District Court Act, headed "The criminal jurisdiction of the Court" does not have that application. Counsel said that the matters identified in the District Court appeal as errors on the part of the Tribunal were said to be "jurisdictional errors". That too is surprising: the reasons for judgment in the District Court are replete with references to "a question with respect to a matter of law", being the language of the appeal provision, s 67(1) of the Tribunal Act, but make almost no reference to jurisdictional error.

There is no doubt that the applicant was required in the District Court to identify a relevant legal error on the part of the Tribunal, and, in this Court, to identify legal error on the part of the District Court in dealing with the appeal before it. (There was no suggestion that there was any factual matter of a jurisdictional nature in issue.) Having identified a relevant error, it would have been a pure question of law to determine whether the error was jurisdictional or merely an error of law which appeared on the face of the record: there could have been no reasonable basis for the respondent to object to dealing with that issue of characterisation, even if it had arisen for the first time (which it did not) in the course of the hearing in this Court.

In any event, the parties dealt with the matter as one requiring the identification of jurisdictional error and this Court should adopt the same approach. (The conventional approach is that the jurisdiction under s 69 is constrained by the categories of error required to obtain a prerogative writ, prior to their abolition, but adopting an ambulatory approach to their scope: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 433 at [9].)

The grounds of appeal set out above did little to expose the particular error or errors relied upon by the applicant. That omission is only remedied by looking more closely at the circumstances of the contract and the basis upon which it was entered into.

Before taking that step, it is convenient to identify the legal context in which the Tribunal came to exercise its authority. The starting point for any consideration of jurisdictional error is the identification of the legal principles determining the essential limits of the power: M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, 2013, Law Book Co) at [3.40]. So far as the Tribunal was concerned, the critical provision was s 134 of the Retirement Villages Act which, relevantly, provided:

134 Termination on grounds of breach of village contract or rules

(1) The operator of a retirement village may apply to the Tribunal for an order terminating the residence contract of a resident of the village who breaches any village contract between the resident and the operator or breaches a village rule.

...

(3) The Tribunal may, on application made under this section, make an order terminating the residence contract, but only if it is satisfied that:

(a) the breach, in the circumstances of the case, is such as to justify termination of the contract, or

(b) persistent breaches by the resident or operator concerned are, in the circumstances of the case, such as to justify termination of the contract.

(4) If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned.

Section 134(3) confers a power subject to satisfaction of one of two criteria. In the present case, par (a) was relied upon, requiring the Tribunal to be satisfied as to a breach which, in the circumstances of the case, justified termination of the lease. Once that condition was satisfied, the power to terminate was engaged.

It is clear that the section envisages a two stage process, each having an evaluative component. The first step was to consider the relevant criteria as it was "only if" the Tribunal were satisfied as to the existence of one of the two criteria that the power was engaged. The relevant criterion in this case being (a), the first step was to identify a breach of the lease; the second was to evaluate the significance of the breach in the circumstances of the case in order to form a conclusion as to whether it was such as to justify termination of the contract.

The second stage was to consider whether to terminate the contract. In some cases, the conferral of a power subject to a condition of engagement may effectively constitute a power coupled with a duty to exercise the power, once engaged. That is not the way to read s 134(3). The power is engaged in circumstances where a breach justifies termination: in the ordinary use of language, to justify a course of action is not the same as to require it. Accordingly, once satisfied that a sufficiently serious breach had occurred to justify terminating the lease, the Tribunal should then have considered whether in all the circumstances, such a course was warranted.

As will be seen below, it is tolerably clear that the Tribunal did not take this two stage process. That would involve an error of law which might be analysed as an implicit decision that no such two stage procedure was required. Arguably the decision of the Tribunal might have been set aside on that basis, but that was not a ground of appeal to the District Court. Accordingly, it is not a matter which it is open to the applicant to rely upon in this Court. That is because the District Court did not fail to exercise its jurisdiction by failing to consider a point not raised before it. (At least, that is conventional reasoning: whether it is consistent with the approach of the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 is not a matter which was debated in this application.)

In seeking to establish legal error, the applicant's submissions focused on the failure of the Tribunal to give proper consideration to "the circumstances of the case" in assessing the seriousness of the breach and determining whether it justified termination of the contract. As will be seen, that exercise was critical in the present case: the sole breach upon which the Tribunal acted was the failure to comply with a single notice requiring the applicant to reoccupy the premises "or make arrangements satisfactory to" the respondent. The Tribunal did not find there were "persistent breaches", for the purposes of par (b). It was clear in these circumstances that the Tribunal, before exercising the power to terminate, needed to assess the seriousness of the breach by reference to:

(a) the right of the applicant to sublet with consent of the lessor, which consent could not be withheld in the circumstances identified in cl 7;

(b) the potential prejudice to the applicant from terminating the lease, and

A failure to approach the matter in this way might well demonstrate that there had been a failure on the part of the Tribunal to understand the limitation imposed by the statute on its conditional power to terminate the lease, or a constructive failure to carry out the evaluative function which was a necessary precondition to the exercise of the power.

Whether legal error in Tribunal's decision-making

In order to understand the reasons of the Tribunal, it is necessary to have regard to four aspects of the lease and the procedural history of the lessor's application before the Tribunal. First, chronologically, cl 3.4 was in the following terms:

"The Lessee covenants with the Lessor to pay to the Lessor on or before the commencing date of the term hereof a premium of the amount stated in Item 5 of the Reference Schedule by unendorsed Bank Cheque made payable to the Trustee to be dealt with by the Trustee in accordance with the terms of the Trust Deed."

The amount specified in item 5 was $148,000. The rent payable under the lease, also specified in the Schedule, was $1 per annum: Item 1. There was an estimate of "outgoings" and a deferred management fee of 2.5% of the premium per year: Item 2. The lessee's obligation was to pay the lessor an annual deferred management fee calculated from the date of commencement to the date of termination of the lease, but for a maximum of 10 years: cl 3.5. The balance of the premium was repayable "on termination" and was to be paid to the lessee by the trustee.

Secondly, there were a number of special provisions replacing the standard term used in the lease. The first, cl 3.6, required a refund due to the lessee on termination of the lease of certain moneys calculated in accordance with the trust deed, although the trust deed was not in evidence. The second, being the critical provision in cl 3, breach of which was established, was cl 3.2.3. Clause 3 was headed "Term and rent"; cl 3.2 commenced by fixing the term of the lease at 99 years. Clause 3.2.3 read as follows:

"The Lessor may by notice in writing left in the premises terminate this Lease if the Lessee ... permanently leaves the premises and the Lessee shall be deemed to have permanently left the premises if the premises are left vacant without prior arrangement with the Lessor or its agent for a period of not less than three months and the Lessor is not able after reasonable inquiry to locate the Lessee or does locate the Lessee and the Lessee does not reoccupy the premises or make arrangements satisfactory to the Lessor within two weeks after notice delivered by ordinary pre-paid post to the Lessee at such location."

The third special clause considered by the Tribunal related to a requirement under cl 4 of the lease for the lessee to contribute to the "general outgoings" of Woolcott Court. Clause 4.9 was an addition to the standard terms and read as follows:

"Notwithstanding the provisions of this Clause 4 the Lessee will not be obliged to contribute to the outgoings of the Serviced Apartments whilst the premises remain unoccupied by the Lessee or any Sublessee. The presence of the Lessee's furniture and effects in the Premises in itself shall not constitute occupation thereof."

Thirdly, there were two factual elements which formed the basis of the Tribunal's order. On 28 July 2011 the respondent gave the applicant a notice stating that if he did not reoccupy the premises or make arrangements satisfactory to the respondent within two weeks, he would be deemed to have permanently left the premises. On 3 August 2011 the applicant responded, reiterating an earlier request for permission to sublet until such time as he moved in. No arrangement for subletting was reached and it was not in dispute that the applicant did not reoccupy the premises within the period specified, or at any time before the Tribunal hearing. At the first Tribunal hearing in 2012 he apparently gave evidence that he intended to reside at the premises when he retired and that he was currently 69 years old and eligible to occupy the premises: Rinbac Pty Ltd v Boele (Retirement Villages) [2012] NSWCTTT 237 at [14]. His age was significant because, having been established as a retirement village, his lease required him not to reside there until he turned 55.

Fourthly, there were the procedural steps which preceded the present decision and appeal. The lessor's application first came before the Tribunal (constituted by Member Peter Smith) in May 2012. The decision, including a termination order, was delivered on 21 June 2012. Before the Tribunal the applicant submitted that cl 4.9 effectively overrode the requirement that he occupy the premises upon receipt of a notice under cl 3.2.3. The critical passage in the reasons of Member Smith in rejecting that submission read as follows:

"[18] The purpose of clause 4.9 is to provide a lacuna in the chain of occupation and relieve the lessee of the obligation to contribute to outgoings during this period.

[19] Clause 3.2.3 provides for the lessor to enforce the agreement and seek termination if the lessee does not re-occupy the premises or make arrangements satisfactory to the lessor. This enables the lessor to limit the losses that may arise from any extended period of vacancy.

[20] The Tribunal is satisfied that the clauses should be read broadly, rather than 'against' one another as suggested by the respondent in the submission.

[21] The respondent submits that the applicant did not respond properly to his enquiry on sub-letting to make satisfactory arrangements. I am not satisfied on the material provided that the respondent has put a substantive proposal to the applicant for consideration as a 'satisfactory arrangement.'

[22] I am satisfied that the respondent has breached clause 3.2.3 of the lease agreement by not occupying the premises and not taking action to remedy the breach upon being served a proper notice.

[23] The retirement village contract is terminated and the resident is to vacate the premises on 13 July 2012."

From this decision, the applicant appealed to the District Court. On 5 December 2012 Gibb DCJ set aside the termination order and ordered "a rehearing of the proceedings by the Tribunal in respect of the application for termination under s 134 of the Retirement Villages Act". It was that rehearing which came before the Tribunal constituted by Senior Member Geoffrey Meadows. After a hearing conducted on 5 and 6 August 2013, the Tribunal again made an order under s 134 terminating the lease: Rinbac Pty Ltd v Boele (Retirement Villages) [2013] NSWCTTT 421.

There were in fact two applications before the Tribunal at its second hearing, one being the lessor's application filed in 2011 seeking the termination order, the other being an application by the applicant seeking to have cl 3.2.3 avoided and giving permission to the applicant to sublet or assign the unit. He also sought an order, in the event that the lease was terminated, that the respondent pay him the amount of $148,000 plus an adjustment for inflation from January 1992. The background factual material and procedural steps were set out in the Tribunal's reasons at [1]-[17]. The bulk of the reasoning (from [18] through to [37]) addressed the lessee's application, which was rejected in all respects.

The background facts relevant to the lessor's application appeared in the first two paragraphs of the Tribunal's reasons for decision:

"[1] In 1992, Mrs Ida Boele and her son Mr Pieter Boele ('the lessee') entered into a lease granting a residence right to unit 17 in Woollcott [sic] Court Retirement Village ('the village'). The lease is a 'residence contract' within the meaning of the Retirement Villages Act 1999 ('the Act'). They paid the amount of $148,000.00 by way of a lease deposit which, in the usual way, was placed into trust. In 1992 the lessee had not yet attained the age of 55 and according to the terms of the relevant SEPP (as applied to the particular development) he could not reside in a retirement village. (At that stage, he had not retired and had no immediate intention of seeking to live in a retirement village.)

[2] Mrs Ida Boele died in 1995. The lessee still did not wish to reside in the village. At some time in the last few years of the twentieth century, the village and the trust failed and were liquidated. The precise terms are not important, but it must be noted that the monies put into trust were lost, at least those funds pertaining to the lease deposit of the lessee. Prior to the 2010 amendments to the Act, such funds had no protection. The money was lost."

When he turned to consider the lessor's application, he immediately stated the decision he had reached, namely that "the retirement village contract is terminated and the lessee is to vacate the premises within 60 days of the date of these orders and reasons": at [38]. The member then said at [39]:

"[39] I propose to consider the steps by which I come to this determination in some detail even though, as I understand the remitter from the District Court, I am limited to a consideration of whether the lease should be terminated pursuant to s 134 of the Act. As is usual in Tribunal reasons, the reasons of Member Peter Smith are fairly brief and, with the greatest of respect, I am not certain exactly what some of the findings necessary to his decision were."

Senior Member Meadows then indicated his agreement with pars 18, 19 and 21 of Member Peter Smith's findings, set out above at [22]. He made his own finding that there had been a breach of cl 3.2.3: at [41]. He continued at [42]:

"The remaining question is, has the lessor satisfied the provisions of s 134 of the Act, or rather am I satisfied those provisions have been satisfied."

At [45] he noted the terms of subs (3)(a). He then expressed his satisfaction that the circumstances of the case were sufficient to justify termination: at [47]. He explained his reasons in the following passage:

"The circumstances are, that by failing to occupy the premises, the lessee produces the inevitable effect that the lessor, while being responsible for the payment of outgoings in the sum of several thousands of dollars per annum, has no income from the premises (except for $1.00 per annum) and furthermore, no prospect of that situation changing while these circumstances continue. I accept the submission of the lessor that in such circumstances it would not be likely, or even possible, to sell the premises. However, I should make clear that my finding is not on the basis of the lessee failing to meet monetary obligations. That is not the case. That is why the breach is sufficiently serious to justify termination of the contract. The lessee is not required to meet monetary obligations unless he occupies the premises and the only means by which the lessor can protect its interests (in the absence of a 'satisfactory arrangement') is to require the lessee to reoccupy the premises. The lessee has not done so and therefore has breached clause 3.2.3. There is no other action the lessor can take in the circumstances of this contract and hence the breach is in my view sufficiently serious to justify termination."

It may be thought that this reasoning demonstrates a nice question in relation to the two-staged process outlined above. That is, in determining whether the circumstances of the breach were sufficient to justify termination, the member took account of the consequences of a failure to reoccupy the premises, namely the diminution of the pool of payments available to the lessor with respect to outgoings. Whether that was a circumstance relevant to the assessment of the breach or whether it should have gone to the exercise of the discretion in making the order is a moot point: it suggests that the staged process will not be one which can be strictly adhered to by reference to entirely discrete considerations.

More importantly, it is not in doubt that in this part of its reasons, the Tribunal took no account at all of the potential prejudice to the respondent of his assumed inability to recover any part of the $148,000 premium. Assuming a diminution in that sum on account of the deferred management fees by 25%, the applicant might still have expected, upon termination of the lease, to recover $111,000. Given that nominal rental was payable under the lease, that was the price which he had paid for a 99 year lease; it had been payable to the lessor, and was an amount which should have been returned to him on termination of the lease. On the stated assumption that no such payment was to be made by the lessor, or by the trustee, that was a highly material circumstance which warranted consideration in the exercise of the discretionary power to terminate the lease. On termination the lessor would get vacant possession, whereas the lessee would lose the major interest he had purchased without return of any part of his premium. The only conclusion reasonably available on the evidence is that that fact was not taken into account.

There was one further aspect of the hearing by the Tribunal which should be referred to. In the course of addressing the matters raised by the applicant on his application, the Tribunal considered whether if the lease were to be terminated, the registered proprietor should be required to pay compensation: at [19]. The amount of such "compensation" was intended to make good the loss suffered on the assumption that no amount would be repayable on termination of the lease in accordance with the requirements of the lease for repayment of the premium. In support of that claim, the Tribunal noted that the applicant had asserted on the evidence and the respondent had accepted that "the lessor purchased the premises at a discount (of about one-third in dollar terms) because they were burdened by a lease": at [20]. Thus, the applicant's claim was based on the proposition that, if the lease were terminated, the lessor would (a) obtain the benefit of a title free of the lease, (b) retain the discount in value obtained because of the lease and (c) incur no obligation to repay that part of the premium to which the lessee was entitled under the contract, on termination.

None of these elements was taken into account in determining whether an order for termination should be made.

Appeal to District Court

In the District Court, the judge identified four errors relied on taken from the applicant's written submissions at pars 22 and 23, namely:

(1) the Tribunal failed to consider the following matters:

(a) the respondent purchased the unit with knowledge of the applicant's non-occupation;

(b) the respondent failed to respond to the applicant's reasonable request to be permitted to sublet the unit;

(c) the applicant would lose the entire amount of $148,000 paid for the lease due to the insolvency of the trustee company which was a party to the lease; and

(2) the Tribunal purported to take into account the non-payment of outgoings by the applicant in circumstances where he was not occupying the unit, but did have regard to the inability of the respondent to collect outgoings unless it furnished a recurrent charge statement in accordance with ss 112 and 113 of the Retirement Villages Act, no such statement having been furnished.

In his District Court submissions at par 26, the applicant identified five matters which he said the Tribunal had failed to take into account, namely that:

(a) the respondent knew there was a lease on title and purchased the property at a significant discount because of the lease;

(b) the applicant was being asked to occupy the unit in circumstances where the respondent would not be in a position to offer the services which should be available under the Village rules;

(d) the applicant has been denied the opportunity to sublet the unit until he is ready to move in, and

(e) no recurrent charges schedule has at any time been provided by the respondent.

The errors identified at [33] above were addressed by the District Court: the Court did not expressly address the matters set out at par 26, which were not in identical terms. Thus (a) at 26 relied upon the respondent's knowledge of the lease and the discount obtained because of the lease. By contrast, the allegation at par 22 was that the respondent purchased the unit with knowledge of the applicant's non-occupation: there was no express claim that it was the non-occupation which led to the discount. Further, the second matter referred to, at (b) of par 26, namely that the services required under Village rules would not be available, was not identified in pars 22 and 23 and was not in terms dealt with by the District Court.

In dealing with the first matter, the primary judge said, at [16], that the Tribunal had dealt with the question at [20] and accepted that the respondent had bought the premises at a discounted price "because they were burdened by a lease". He then treated the Tribunal's factual finding as a rejection of the proposition that the lessor had purchased the unit "with the knowledge of the lessee's non-occupation of the unit".

This was a misreading of the Tribunal's reasons. It was not submitted to the Tribunal that non-occupation was the issue, but rather that the respondent had purchased in knowledge of the existence of a long lease and had obtained a discount on the market value of the premises without the lease. The complaint was that the Tribunal failed to take that fact into account in considering whether the lease should be terminated. This complaint was squarely raised in the District Court at par 26(a): the trial judge simply did not address that submission. Whether the respondent's knowledge of non-occupation was a matter relied upon by the Tribunal may be put to one side: the factor which was relied upon before the Tribunal was dealt with by it at [20], but not in respect of the power to order termination. This complaint, which had substance, was apparently misunderstood by the primary judge and therefore not addressed.

The second matter dealt with by the primary judge was the complaint that it was not non-occupation of the unit which was causing the respondent loss, but its failure to furnish a recurrent charge statement.

The reasoning of the District Court judge in respect of this matter is not entirely clear, as set out at [19] in the following passage:

"The first step is occupancy. I do not agree with the submission put on behalf of Mr Boele that he would not be liable for the outgoings without provision of the document. In other words, I do not accept that he would be liable under the statute."

It may be that there is a "not" missing from the last statement: in other words, the primary judge did not consider the provision of a recurrent charge statement to be a precondition to the liability of the applicant. In any event, no argument was put to this Court as to the operation of the Retirement Villages Act in respect of recurrent charges, so that that issue need not be considered further.

What appears to have decided the point for the primary judge was the first sentence set out above referring to occupancy. That passage in the reasons of the primary judge commenced:

"It seems to me that Mr Boele would liable, if he was occupying the unit, to contribute to outgoings by virtue of clause 4 of the lease."

That was the effect of additional cl 4.9 set out at [20] above. That conclusion is not challenged.

The third matter, dealt with by the primary judge, referred to as the "final error" relied on by the applicant, was the loss of the entire amount of the premium: at [20]. The primary judge accepted that the Tribunal "clearly attributed little weight to the fact that Mr Boele would lose his almost $150,000 in that context", the context being the applicant's complaint that certain rules were unjust, unconscionable, harsh or oppressive. The judge then noted the applicant's submission that the Tribunal should have had regard to that factor in exercising its discretion under s 134.

The judge agreed that the loss of money paid for the lease "was clearly a factor urged upon the Tribunal to consider by [counsel for the applicant] in its application of s 134": at [22]. The judge also accepted that the Tribunal "did not refer to this as a circumstance in applying s 134", and did not expressly take into account the fact of the loss in applying the section.

The judge then noted the respondent's submission that this was "an irrelevant consideration" and that "what the appellant paid to the original registered proprietor for the lease in 1992 can have no bearing on whether, over 20 years later in 2013, the appellant's breach warranted termination by a subsequent registered proprietor": at [23]. That submission was effectively accepted by the primary judge at [25] where he stated:

"Returning to s 134(3)(a), the focus is on the breach of the resident's contract. The grounds of termination, in that instance, concern an existing breach and the relationship between the existing resident and the operator, even though the operator is now the owner and lessor. In my opinion 'the circumstances of the case' by reference to which the breach is assessed, should be seen in the same context. It is, after all, the current breach of the current legal relationship which is being assessed. I regard the circumstance that the resident lost a lot of money some two decades before when the original operator went into liquidation as being too remote to constitute a relevant 'circumstance of the case' by reference to which the breach should be assessed as to whether the termination is justified or not. It is a regrettable event which occurred in the past and is a circumstance personal to Mr Boele rather than, in my opinion, relevant to his current legal relationship with his lessor, Rinbac Pty Ltd."

That reasoning may be summarised in the following propositions:

(a) the applicant invited the Tribunal, in considering whether to exercise its power to make a termination order, to take into account the fact that upon termination, the applicant would not recover that part of the premium which had been paid and which should have been repayable (in part) according to the terms of the lease;

(b) the Tribunal did not take that matter into account;

(d) therefore, the Tribunal did not err in law in failing to take it into account.

In my view, the primary judge erred in law in dismissing the applicant's complaints in respect of the first and third matters he considered. The failure to consider the complaint with respect to the first matter was a material error. There is no doubt that the Tribunal treated the failure to comply with a notice requiring that the applicant occupy the premises as having caused prejudice to the respondent, not because there had been continuing failure to occupy (a proposition expressly rejected at [46] in the Tribunals' reasons), nor because the applicant was "failing to meet monetary obligations": at [47]. Rather, the lessee was "not required to meet monetary obligations unless he occupies the premises and the only means by which the lessor can protect its interests ... is to require the lessee to reoccupy the premises." The seriousness of the consequence for the respondent was, the Tribunal found, because, there being "no prospect of that situation changing while these circumstances continue" it "would not be likely, or even possible to sell the premises."

This passage in the reasoning of the Tribunal was fraught with difficulties. First, it ignored the possibility of some arrangement as to subletting; secondly, it assumed that the situation (presumably non-occupancy) would continue indefinitely without considering whether that was in part caused by the intransigence of the respondent with respect to possible subletting. Thirdly, it assumed, apparently without evidence, that absent an occupant, the lease was virtually worthless. Even accepting all that to be so, the Tribunal failed to take into account any diminution of the prejudice caused to the respondent by obtaining the premises at a discount and the prejudice to the applicant in being deprived of property which he had obtained with a significant deposit of key money, which, it was assumed, would not be recoverable on termination.

Further, in specific reference to the nature of the third matter, the payment made by the applicant may have been "remote" in a chronological sense, but it was of immediate relevance in a legal sense. The premium was not just the price for obtaining the lease on otherwise favourable terms: the premium was a payment which, subject to certain deductions, the applicant was entitled to recover on termination of the lease, in accordance with the terms of the lease. The assumed fact that he would not be able to recover that amount on termination of the lease was a matter which the Tribunal must have taken into account in determining whether to order termination.

While it is true that that fact, together with loss of the right of residence, were the primary considerations affecting the making of the order, once a breach of the lease by the applicant had been identified, it was also a relevant circumstance in assessing the seriousness of the breach by the applicant and whether it warranted termination. If it did not, the power to terminate was not engaged. It may be that the judge did not mean to state that these were impermissible considerations (being the administrative law meaning of "irrelevant"), but he treated them as considerations deserving of so little weight as to make their non-consideration immaterial. What weight the Tribunal should have given to them, acting reasonably, would have been a matter for the Tribunal. It was undoubtedly open to the Tribunal acting reasonably, having considered all relevant matters, to conclude that the breach was not sufficiently serious to warrant termination. The true significance of a refusal to occupy the premises could only be properly evaluated in the context of the unusual features of the lease.

Jurisdictional error?

The final question, on the manner in which the case was run before this Court, is whether the error identified above constitutes jurisdictional error.

The failure to take into account a matter which the law requires the decision-maker to take into account is an error of law which can appropriately be described as a constructive failure by the Tribunal to exercise its jurisdiction. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, Gummow and Callinan JJ stated:

"[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. ...

[25] The question remains ... whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution."

The joint reasons also characterised that circumstance as a failure to "exercise jurisdiction in respect of a live application validly made to it": at [32]. (See also Kirby J at [88].) Following the analysis in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 at [5], the Full Court of the Federal Court (North, Logan and Robertson JJ) set aside a decision of the Administrative Appeals Tribunal in which the member had adopted the submissions of one party without acknowledging the course that was being taken. The Full Court stated at [5]:

"Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction."

This approach, followed in Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]-[25] is, perhaps, a preferable conceptual framework than the reference in Dranichnikov to a failure to accord natural justice. The word "constructive" may not be entirely apt, but it is understood as meaning "purported", in the sense of there being the appearance of an exercise of jurisdiction, but one which does not conform to the requirements of the law. Whatever language is used, such a failure will generally involve jurisdictional error, analogous to a legally erroneous refusal to exercise an available power: cf Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; 249 CLR 398 at [34] (French CJ) and [65] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It means that the process of decision-making in the Tribunal, being the very function vested in the Tribunal by statute, has miscarried.

If this were an analysis which should properly have been carried out in the District Court but was not, the error on the part of the District Court is also properly characterised as jurisdictional and should be set aside: Kirk at [71], [108], [109].

Relief

An order should be made setting aside the orders made in the District Court. Because it follows from the reasoning set out above that the District Court could only properly have exercised its authority by setting aside the order made by the Tribunal, it is desirable that this Court make that order, to avoid the imposition of unnecessary costs on the parties. Such an approach is consistent with that adopted in Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [4]-[5]. In similar vein, the orders should include an order that the respondent pay the applicant's costs, both in this Court and in the District Court. The matter should be remitted to the Tribunal to be determined according to law, and in accordance with the reasons given above.

SACKVILLE AJA: I am grateful to Rein J for explaining the complex and lengthy history of the dispute that has led to the application for relief in the supervisory jurisdiction of this Court. I do not need to repeat his Honour's account.

The applicant (Mr Boele) is the surviving sub-lessee under the sub-lease of Unit 17 at the Woolcott Court Retirement Village entered into on or about 29 December 1992 (Lease). The sub-lessor was Woolcott Court Pty Ltd (Woolcott). The respondent (Rinbac) is Woolcott's successor in title as sub-lessor. Where it is necessary to refer to the sub-lessor or sub-lessee, for simplicity I shall use the expressions "lessor" and "lessee".

The Proceedings

The Tribunal Proceedings

Rinbac sought an order from the Consumer, Trades and Tenancy Tribunal (Tribunal) pursuant to s 134 of the Retirement Villages Act 1999 (NSW) (RV Act) terminating the Lease. Section 134 is reproduced in the judgment of Rein J (at [107]).

The proceedings before the Tribunal were conducted on the basis that the Lease was a "residence contract" and a "village contract" for the purposes of s 134 of the RV Act. It was also common ground that s 134 applied to the Lease and that Rinbac was the "operator of a retirement village", notwithstanding that Woolcott Court had long ceased to be occupied as a retirement village: see RV Act s 11(1), (2), (5), (6). Similarly, it was common ground that Mr Boele was a "resident" for the purposes of s 134.

The Tribunal found that Mr Boele breached cl 3.2.3 of the Lease in that he had left the premises vacant for a period of not less than three months without prior arrangement and had not reoccupied the premises in accordance with a notice requiring him to do so: Rinbac Pty Ltd v Boele [2013] NSWCTTT 421 (Tribunal Decision). The Tribunal was also satisfied that the breach, in the circumstances of the case, was sufficient to justify termination of the Lease. The circumstances identified by the Tribunal (at [47]) were:

"that by failing to occupy the premises, the lessee produces the inevitable effect that the lessor, while being responsible for the payment of outgoings in the sum of several thousands of dollars per annum, has no income from the premises (except for $1.00 per annum) and furthermore, no prospect of that situation changing while these circumstances continue. I accept the submission of the lessor that in such circumstances it would not be likely, or even possible, to sell the premises."

The District Court Appeal

Mr Boele appealed against the Tribunal Decision to the District Court pursuant to s 67(1) of the Consumer, Trader and Tenancy Tribunal Act2001 (NSW) (CTTT Act). Section 67(1) provides as follows:

"If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision."

Mr Boele filed a document in the District Court incorrectly entitled Summons Seeking Leave to Appeal. This was subsequently treated as a Notice of Appeal. It included the following grounds:

"1. The Tribunal erred at law by failing to make any or any adequate finding in accordance with the requirements of section 134 of the Retirement Villages Act 1999 in relation to the seriousness of [Mr Boele's] purported breach of the Village Contract.

2. The Tribunal erred at law by failing to make any or any adequate finding in accordance with the requirements of section 134 of the Retirement Villages Act 1999 in relation to whether the seriousness of [Mr Boele's] purported breach of the Village Contract warranted termination of the plaintiff's lease."

The District Court identified the "question with respect to a matter of law" as whether Rinbac satisfied the provisions of s 134 of the RV Act: Boele v Rinbac Pty Ltd (District Court (NSW), Cogswell SC DCJ, 21 March 2014, unrep) (Primary Judgment) at [11].

The principal ground of appeal relied on by Mr Boele in his challenge to the Tribunal's decision was that the Tribunal had failed to take into account that if an order was made terminating the Lease, Mr Boele would lose the entirety of the amount he had paid to Woolcott as a "premium" pursuant to cl 3.4 of the Lease. It was common ground that Mr Boele had paid the premium of $148,000 on or about the date of the Lease. It also was common ground, both before the Tribunal and the District Court, that Mr Boele would be unable to recover that amount, given that the original operator of the retirement village, Woolcott Court Pty Ltd had been placed into liquidation on 23 July 2002.

The primary Judge noted (at [22]) that the issue of Mr Boele losing the money he had paid for the Lease was "clearly a factor urged upon the Tribunal to consider" in applying s 134 of the RV Act. His Honour accepted Mr Boele's submission that the Tribunal had not expressly taken the loss into account in applying s 134.

His Honour, however, rejected Mr Boele's contention that the Tribunal had erred in failing to take the loss into account on the issue of whether Mr Boele's breach of the Lease warranted its termination by a successor in title to the original lessor. His Honour reasoned as follows:

"[24] ...The question in one sense involves an issue of how wide the expression 'the circumstances of the case' are meant to extend. The section itself concerns the termination of a resident's contract. The relevant ground in the provision under consideration is breach of that contract. Residents' contracts can be terminated in other circumstances. ...

[25] Returning to s 134(3)(a), the focus is on the breach of the resident's contract. The grounds of termination, in that instance, concern an existing breach and the relationship between the existing resident and the operator, even though the operator is now the owner and lessor. In my opinion, 'the circumstances of the case' by reference to which the breach is assessed, should be seen in the same context. It is, after all, the current breach of the current legal relationship which is being assessed. I regard the circumstances that the resident lost a lot of money some two decades before when the original operator went into liquidation as being too remote to constitute a relevant 'circumstance of the case' by reference to which the breach should be assessed as to whether the termination is justified or not. It is a regrettable event which occurred in the past and is a circumstance personal to Mr Boele rather than, in my opinion, relevant to his current legal relationship with his lessor, Rinbac Pty Ltd.

[26] The Retirement Villages Act charges the Tribunal with determining what the circumstances are. The Tribunal in this case obviously took the view that the loss of the money, though regrettable, was a thing of the past. The Tribunal was charged by s 28(3) of the Consumer, Trader and Tenancy Tribunal Act with acting 'according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms'. ...

[27] ... I do not regard the Tribunal as being in error in not taking into account as part of the circumstances of the case the lost money. To my mind its omission was not only a proper rejection of an irrelevant circumstance, but was also consistent with the Tribunal dealing with the case in accordance with its 'substantial merits'."

Assumptions Underlying the Proceedings

This litigation, including the application to this Court, has some curious features. One concerns the parties' common assumption that the premium paid by Mr Boele on the commencement of the Lease is irrecoverable. The second concerns the artificial basis on which the application to this Court for judicial review of the Primary Judgment was conducted.

The Irrecoverability of the Premium

Under cl 3.4 of the Lease, Mr Boele covenanted to pay to the lessor (then Woolcott) a "premium" of $148,000. The payment was to be made by a bank cheque payable to the Trustee (Winchcombe Carson Trustee Co Ltd) and was to be dealt with by the Trustee in accordance with the terms of a Trust Deed. The Trustee was not a party to the Lease and the Trust Deed was not in evidence before either the Tribunal or the District Court.

Clause 3.6 of the Lease provided as follows:

"On termination of this Lease:

(a) the refund entitlement due to the Lessee shall be the redemption moneys calculated in accordance with the Trust Deed PROVIDED THAT the Lessee shall be entitled to the full amount by which the Lease Deposit to be paid by the Incoming Lessee (as defined in the Trust Deed) exceeds the Lease Deposit paid by the Lessee and accordingly for the purposes of this Lease paragraph 2.18.1 of the Trust Deed is deemed to be amended by the replacement of the words 'fifty percent (50%)' by the words 'one hundred percent (100%)'; and

(b) the Trustee shall, unless required by the Act or Code, pay the refund entitlement to the Lessee within 14 days of the date of commencement of a succeeding lease of the premises."

The calculation of Mr Boele's "refund entitlement" on termination of the lease requires reference to the Trust Deed, the terms of which are not known. Depending on the terms of the Trust Deed, the entitlement could amount to a significant proportion, if not the whole, of the premium paid to the lessor. There is a question of construction as to whether cl 3.6 of the Lease entitles Mr Boele, as the lessee, to claim the refund entitlement from the lessor on termination of the Lease, or whether he is limited to a claim against the Trustee. If the former is the correct construction of cl 3.6, it may be that Mr Boele can enforce his entitlement against a successor in title of the original lessor. This may follow from orthodox principles of tenancy law relating to covenants that touch and concern the land or, if they are not applicable, from s 40(1) of the RV Act (which permits a village contract between a resident and a former operator of a retirement village to be enforced against any operator for the time being of the village).

The parties appear to have conducted the proceedings on the basis that Mr Boele's premium was lost because the "trust [had] failed" (Tribunal Decision at [2]) or that the Trustee had gone into liquidation (Primary Judgment at [20]). However, there was no evidence before the Tribunal or the District Court that the Trustee had been placed in liquidation. Nor was there any evidence as to the status of the premium paid by Mr Boele, for example whether or not it was retained by the Trustee.

Despite these issues being drawn to the parties' attention during the hearing in this Court, each was content for the application for judicial review to proceed on the common assumption, adopted before both the Tribunal and the District Court, that Mr Boele would be unable to recover the premium (or any "refund entitlement"). I am prepared to adopt that course.

Is a Jurisdictional Error Required?

Mr Boele's Further Amended Summons (FAS) seeks an order in the nature of certiorari quashing the orders made by the District Court. The grounds are that the District Court committed jurisdictional errors including:

"b. by failing to properly apply the provisions of s 134(3)(a) by failing to consider the relevant circumstances when terminating the lease,

c. by failing to consider and determine the critical matters advanced by the applicant to the applicant's case when determining whether the lease should be terminated."

It appears that the FAS was drafted to refer to jurisdictional errors because it was assumed that s 176 of the District Court Act 1973 (NSW) precludes applications for judicial review of a decision of the District Court on appeal from the Tribunal. If the assumption was correct, the only basis for judicial review of such a decision would be to invoke the constitutionally entrenched supervisory jurisdiction of the Supreme Court to correct jurisdictional errors committed by inferior courts and tribunals: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531.

In fact the assumption is not correct. Section 176 of the District Court Act applies only in the criminal jurisdiction of the Supreme Court: Brimelow v Sharpe [2012] NSWCA 345 at [14]. Thus it was open to Mr Boele to challenge the District Court decision on the ground of an error on the face of the record: Supreme Court Act 1970 (NSW) s 69. However, Mr Glissan QC, who appeared with Mr Nagle for Mr Boele, accepted that in view of the language of the FAS and the written submissions, Mr Boele can obtain relief only by demonstrating that the District Court Judgment was affected by a jurisdictional error.

Reasoning

Construction of Retirement Villages Act s 134(3)

The starting point for a consideration of Mr Boele's submission in this Court is the proper construction of s 134 of the RV Act. Section 134(1) provides that the operator of a retirement village may apply to the Tribunal for an order terminating the residence contract of a resident of the village who breaches the village contract. The power to terminate the contract is conferred on the Tribunal by s 134(3). The chapeau to s 134(3) states that the Tribunal may make an order terminating the contract of a resident of a village who breaches a "village contract" but only if it is satisfied of one of the matters specified in subparagraphs (a) and (b).

Section 134 contemplates a two stage process. First, the Tribunal must determine whether it is satisfied of either of the matters specified in subparagraphs (a) and (b). Thus in a case where the operator relies on subparagraph (a), the Tribunal must consider whether it is satisfied that the resident's breach, in the circumstances of the case, is such as to justify termination of the contract. Only if the Tribunal is so satisfied is its discretion to terminate the residence contract enlivened. At that point the Tribunal must proceed to consider whether, in the exercise of its discretion, it should make an order terminating the contract. A finding that the Tribunal is satisfied that the breach is such as to justify termination of the residence contract does not necessarily mean that the Tribunal will make an order terminating the contract. Whether such an order should be made is a separate question.

The circumstances that the Tribunal must take into account in determining whether it is satisfied that the breach is such as to justify termination of the residence contract are not necessarily the same as the circumstances that it must take into account in determining whether to terminate the contract. Section 134(3)(a) assumes that a breach of the residence contract has been or can be established, but requires the Tribunal to consider whether it is satisfied that, in the circumstances of the case, the breach is such as to justify termination. The focus is on the breach and whether the Tribunal is satisfied that the breach justifies termination of the contract. The "circumstances of the case" referred to in s 134(3)(a) are those that are relevant to deciding whether the breach is such as to justify termination of the contract. The relevant circumstances, in the case of a residence contract constituted by a lease, might include the nature and seriousness of the breach, whether the breach was deliberate or accidental, the consequences of the breach for the operator and other residents of the village and whether the breach is remediable. This of course is not an exhaustive list.

Circumstances relevant to the question posed by s 134(3)(a) of the RV Act might also be material to whether the Tribunal, having satisfied itself that the breach is such as to justify termination of the contract, should exercise its discretion to make an order terminating the contract. But the circumstances relevant to the exercise of discretion may go well beyond those relevant to the question posed by s 134(3)(a). If this were not the case, presumably the section would simply have required the Tribunal to make an order for termination of the contract, once it was satisfied of one of the matters stated in s 134(3)(a) or (b).

In the case of a lease there may be circumstances personal to the lessee or his or her partner that have nothing to do with the acts or omissions constituting the breach or with the consequences of the breach itself. Yet those circumstances may be central to determining whether the Tribunal should exercise its discretion to make a termination order. Circumstances of this kind include the health of the lessee and his or her family, the lessee's financial position and any hardship that might be caused to the lessee by a termination order. The loss of moneys paid under a lease in consequence of an order for termination of the lease is a matter that the Tribunal may well be obliged to take into account in the exercise of its discretion.

Conduct of the Proceedings

Rinbac commenced proceedings in the Tribunal seeking, among other relief, an order terminating the Lease. Mr Boele filed a Response in the Tribunal in answer to Rinbac's Points of Claim. The Response did not plead expressly that the Tribunal should decline to make an order terminating the Lease (as sought by Rinbac) on the ground that Mr Boele would thereby lose the premium he had paid to the original lessor.

On 21 June 2012 the Tribunal (differently constituted) made an order terminating the Lease. This decision was set aside on appeal to the District Court on the ground that the Tribunal had failed to make the factual findings required by s 134(3) of the RV Act: Boele v Rinbac Pty Ltd (District Court (NSW), Gibb DCJ, 5 December 2012, unrep).

When the matter returned to the Tribunal, counsel for Mr Boele referred in oral argument to the adverse financial consequences that Mr Boele would suffer if the Lease was terminated. These included that "Mr Boele can't get his money back, he will lose the value of his lease". It is not clear whether the submission, which was not developed, was intended to identify these matters as "circumstances" to be taken into account in determining the question arising under s 134(3)(a), or whether it was intended as a broader submission concerning the exercise of the discretion conferred by the chapeau to s 134(3). If the latter was the intention, it was not made explicit.

The Tribunal does not appear to have understood Mr Boele to be submitting that it should undertake the two stage process to which I have referred. However, the Tribunal undertook the first of the two stages. It was satisfied that Mr Boele's breach of the Lease was such as to justify termination of the Lease. The Tribunal gave no separate consideration to the question of whether it should exercise it discretion to make an order terminating the Lease. Despite the submission of Ms Allars SC, who appeared with Mr Lucarelli for Rinbac on the appeal, even reading the Tribunal Decision with a generous eye does not enable it to be understood as having addressed the second stage of the inquiry required by s 134(3). The Tribunal took the view that having satisfied itself that the breach was such as to justify termination of the Lease, it should make an order for termination without further consideration of the circumstances relevant to the exercise of the discretion conferred by s 134(3).

I have set out the relevant grounds in the Notice of Appeal ([63] above). These grounds focus on the failure of the Tribunal to make findings as to the seriousness of Mr Boele's breach of the Lease and as to whether the breach justified termination of the Lease. They do not, in terms, identify that the Tribunal erred in law by failing to take into account the loss of premium in the exercise of the discretion, conferred by the chapeau to s 134(3), to make an order terminating the Lease. On a fair reading, the grounds complain of the Tribunal's findings in relation to the requirements of s 134(3)(a) - that is, the requirement that the Tribunal must be satisfied that the breach was such as to justify termination of the Lease.

Mr Boele's written submissions to the District Court suffer from the same lack of clarity as his submissions to the Tribunal. The key paragraphs in the written submissions are as follows:

"22. The [Tribunal] purported [to] have regard to section 134(3) ... in making its determination in the proceedings below. The [Tribunal] failed to consider the following matters:

a. The lessor purchased the unit with knowledge of the lessee's non-occupation of the unit.

b. The lessor had failed to respond to the lessee's reasonable request to be permitted to sub-let the unit.

c. The lessee would lose the entire amount paid for the lease due to the insolvency of the Trustee Company who was originally a party to the lease.

...

26. Had the [Tribunal] had regard to whether the termination was justified Mr Boele's registered lease would not have been terminated. [Mr Boele] relies upon the following matters to make good this submission:

a. Rinbac knew there was a lease on title and purchased the property at a significant discount because of the lease being on title;

b. Mr Boele is being asked to occupy the unit where Rinbac will not be in a position to offer the services which should be available under the Village Rules;

c. Mr Boele can not re-coup the $148,000 paid for the lease over the unit.

d. Mr Boele has been denied the opportunity to sub-let the unit until he is ready to move in;

e. The operator has not at any time complied with the RVA 1999 by providing a recurrent charges schedule."

Paragraph 26 of the written submissions seems to relate only to the Tribunal's finding that it was satisfied that the breach was such as to justify termination of the Lease. Paragraph 22 is perhaps more ambiguous, in that it does not make clear whether it is concerned with that finding, or whether it intends to complain about the manner in which the Tribunal exercised its discretion to terminate the Lease. Since Mr Boele made no complaint in the District Court about the Tribunal's failure to consider whether it should exercise its discretion in favour of terminating the Lease, it is difficult to construe paragraph 22 as complaining about the manner in which the discretion was exercised. This conclusion is reinforced by the grounds in the Notice of Appeal which, as I have noted, concentrate on the Tribunal's findings concerning the seriousness of the breach and whether it justified termination of the Lease. The Notice of Appeal does not identify matters that should have been taken into account by the Tribunal in exercising its discretion to order that the Lease be terminated. (Since the transcript of argument in the District Court appeal was not in the Application Books, Mr Boele has not shown that the oral argument took matters any further than the Notice of Appeal and the written submissions.)

The primary Judge seems to have understood Mr Boele's submissions as limited to a contention that the Tribunal should have construed the expression "circumstances of the case" in s 134(3)(a) more widely than it did. His reasons suggest that he did not understand Mr Boele to argue that the Tribunal had failed to exercise its discretion conferred by the chapeau to s 134(3), or that it had failed to take into account matters it was bound to consider in the exercise of its discretion. In my view, on the material before this Court, his Honour's understanding of Mr Boele's contentions was justified.

Did the District Court Commit a Jurisdictional Error?

In my opinion, the Tribunal clearly erred in law by failing to give separate consideration to whether it should have exercised its discretion to make an order terminating the Lease. But Mr Boele did not identify this as a ground of his appeal to the District Court and did not put the argument to the primary Judge (perhaps because no submission had been put to the Tribunal that it had to engage in a two stage process). Consequently, the primary Judge did not address whether the Tribunal erred in law by failing to consider and determine the question of discretion. Because the point was not taken before the primary Judge, he was not required to address this question and committed no error of law by omitting to do so.

Mr Boele did submit to the District Court that the Tribunal's satisfaction that the breach of the Lease was such as to justify an order for termination involved an error of law. The error was said to be the Tribunal's failure to take into account that Mr Boele had lost or would lose the premium paid to the lessor in 1992. Mr Boele also contended that the Tribunal had erred by failing to take into account the fact that Rinbac had purchased the unit with knowledge of Mr Boele's "non-occupation of the unit".

I accept the submission of Mr Glissan that the Tribunal did not take into account Mr Boele's loss of the premium when considering whether his breach was such as to justify termination of the Lease. It is true, as Rein J has pointed out, that the Tribunal Decision records on two occasions that Mr Boele had lost a substantial sum of money. But the Tribunal Decision refers to the loss only in the context of rejecting Mr Boele's claim that a clause should be added to the Lease requiring Rinbac to pay compensation to him upon termination of the Lease (at [19]-[20]). When considering whether Mr Boele's breach of the Lease was such as to justify termination, the Tribunal makes no mention of the loss or potential loss of the premium as a relevant consideration. The better view is that the Tribunal did not regard that loss as a matter relevant to the question posed by s 134(3)(a) of the RV Act.

In my opinion, however, the loss or potential loss of the premium was not a matter that the Tribunal was bound to take into account in determining whether Mr Boele's breach of the Lease (namely not taking or resuming possession of the premises when obliged to do so) was such as to justify termination of the Lease. The loss or potential loss of the premium was not a circumstance which was relevant to the question of whether the breach was such as to justify termination. The loss of the premium could not, for example, excuse the breach or mitigate its seriousness.

My conclusion that the Tribunal was not bound to take into account Mr Boele's loss of the premium on the question of breach in no way depends on when the loss occurred. The primary Judge thought that the loss was irrelevant because it had occurred in 1992, when the premium was paid. If the premium was in fact irretrievably lost, the loss could not have occurred any earlier than the liquidation of the original operator in 2002 and probably occurred much later. The point is that the Tribunal was not bound to take into account Mr Boele's loss of the premium in relation to the first stage of the inquiry required by s 134(3) of the RV Act, regardless of when the loss occurred.

I also consider that the Tribunal was not bound to take into account, on the question of breach, Rinbac's knowledge of Mr Boele's non-occupation of the unit or, for that matter, the "discounted" price paid by Rinbac for the unit. Neither of these matters was relevant to the question of whether the breach, in the circumstances of the case, was such as to justify termination of the Lease.

It follows from what I have said that the Tribunal did not commit an error of law by disregarding Mr Boele's loss of the premium and Rinbac's knowledge that he did not occupy the unit, when considering the question posed by s 134(3)(a) of the RV Act. The District Court did not err in failing to conclude that the Tribunal had committed an error of law. Therefore no question of the District Court committing a jurisdictional error arises.

It also follows from what I have said that the Tribunal may well have been bound to take into account Mr Boele's loss of the premium (and the other matters relied on by Mr Boele) at the second stage of the process required by s 134(3). That is, the Tribunal, having satisfied itself that Mr Boele's breach was such as to justify termination of the Lease, may have been required to take into account his loss of the premium and perhaps other matters in exercising its discretion to make an order terminating the Lease.

It was open to Mr Boele to appeal to the District Court on the ground that the Tribunal's decision raised a question with respect to a matter of law, namely its failure to take into account Mr Boele's loss of the premium and the lessor's knowledge of his non-occupation of the premises, in exercising the discretion conferred by s 134(3) of the RV Act: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390. As I have explained, Mr Boele's Notice of Appeal in the District Court did not identify this as a question of law presented by the Tribunal's decision. Nor did his written submissions identify as an error of law the Tribunal's failure to take into account Mr Boele's loss of the premium or the lessor's knowledge of Mr Boele's non-occupation when exercising its discretion to terminate the Lease.

In my view, the District Court did not address whether the Tribunal had erred in exercising its discretion because neither the Notice of Appeal nor the argument presented on behalf of Mr Boele identified any such error as a ground on which the Tribunal's decision was liable to be set aside. For this reason, the District Court's failure to address the argument did not amount to an error of law. In the absence of exceptional circumstances, the District Court cannot be found to have erred in law, much less to have committed a jurisdictional error, by reason of failure to consider an argument not squarely raised before it.

An Addendum

Since preparing these reasons I have read the judgment of Basten JA in draft. I do not disagree with the principles stated in his Honour's judgment. My disagreement relates only to whether the matters relied on by Mr Boele in this Court as constituting errors of law by the District Court were raised with sufficient clarity before the District Court. I appreciate that it follows from Kirk that there may be cases in which an inferior court or tribunal commits a jurisdictional error even if the point was not raised by one of the parties. But as a general rule, in my opinion, if a party seeks to invoke the supervisory jurisdiction of the Supreme Court on the ground of error of law, particularly when it is alleged that an inferior court has committed a jurisdictional error in hearing an appeal from a tribunal, it is important for that party to show that the relevant arguments were put to the inferior court with reasonable clarity. Otherwise the supervisory jurisdiction of the Court risks becoming not only a second avenue of appeal on questions of law, but an opportunity to raise new issues at the third stage of the proceedings. That cannot be conducive to the orderly and efficient conduct of litigation.

Conclusion

I agree with the orders proposed by Rein J.

REIN J: This is an application for judicial review of a decision of the District Court of New South Wales delivered on 21 March 2014 per Cogswell DCJ, which decision dismissed an appeal pursuant to s 67(1) of the former Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act") by the Applicant (Mr Peter Boele) in respect of a decision of the Consumer, Trader and Tenancy Tribunal ("the Tribunal") per Senior Member Mr G Meadows made on 20 August 2013 ("the Tribunal decision").

Mr J Glissan QC, with Mr D Nagle of counsel, appears for the Applicant and Ms M Allars SC, with Mr G Lucarelli of counsel, appears for Rinbac. The second respondent, the District Court, in accordance with normal practice in these types of matters, did not participate in the proceedings. We received detailed written submissions on behalf of the Applicant dated 18 July 2014 ("AWS") and on behalf of the Respondent dated 25 September 2014 ("RWS").

The Background

The background to the matter (taken largely from the history set out in the submissions on behalf of Rinbac, and which summary was not in contest) is as follows:

(1) On or about 29 December 1992 the Applicant and his mother Mrs Ida Boele as joint tenants entered into a sub-lease ("the Lease") with the sub-lessor, Woolcott Court Pty Ltd ("the Lessor"), of Unit 17 at the Woolcott Court retirement village ("Woolcott Court"), located at 1 Woolcott Avenue, Wahroonga ("the Unit").

(2) The Lease was for a term of 99 years, expiring 28 December 2091. The rent was one dollar per annum. By clause 4 of the Lease the lessee was required to pay a proportion of the general outgoing of Woolcott Court and the serviced units ("outgoings").

(3) The Lease was registered on the title.

(4) Clause 3.4 of the Lease required that at the time the Lease was entered into the lessee pay to the lessor by means of a bank cheque in the amount of $148,000 made payable to Winchcombe Carson Trustee Company Ltd ("the Trustee"). The Lease records that the lessee has received and inspected a copy of the "Trust Deed" dated 29 November 1991. Pursuant to clause 3.6 of the Lease, at termination of the Lease the lessee became entitled to a "refund entitlement", being the "redemption monies calculated in accordance with the terms of the Trust Deed and paid by the Trustee to the Lessee subject to the terms of the Trust Deed...". (See Application Book Vol 2, p 164).

(5) At the time of entry into the Lease Mrs Boele and the Applicant handed over a cheque for $148,000 made out to the Trustee.

(6) Mrs Boele passed away in 1995 and the Applicant became the sole lessee by survivorship.

(7) It was a term of the Lease that no person of less than 55 years age could occupy the Unit.

(8) On 12 October 2001 an administrator was appointed to Woolcott Village Pty Ltd ("the Operator"). The Operator was subsequently placed into liquidation on 23 July 2002.

(9) The mortgagee, Elliot Tuthill Nominees Pty Ltd ("ETN"), took possession of the village in 2002. No retirement village has been conducted at the site since 2005.

(10) In February 2011 ETN brought proceedings against the Applicant in the Supreme Court, seeking orders terminating the Lease, and seeking to recover outgoings in connection with the Unit. I held the Supreme Court had no jurisdiction and transferred the proceedings to the Tribunal: see Elliot Tuthill Nominees Pty Ltd v Boele [2010] NSWSC 103.

(11) In the course of the subsequent Tribunal proceedings, the mortgagee withdrew its application for orders terminating the Lease, but sought payment of outgoings outstanding since 2001 to 14 January 2011 when all of the units in the retirement village had been sold. The Tribunal ordered the Applicant to pay to ETN only that part of the outgoings attributable to water rates.

(12) ETN has since sold all of the units, including the Unit. On 14 January 2011 the respondent ("Rinbac") became the registered proprietor and lessor of the Unit. Rinbac paid $98,000 for the Unit. The purchase of the Unit by Rinbac was subject to the Lease.

(13) At the time Rinbac purchased the Unit it had been vacant for over ten years. At no time after his mother's death in 1995 has the Applicant taken up residence in the Unit.

(14) By notice dated 28 July 2011, given pursuant to clause 3.2.3 of the Lease, Rinbac gave the Applicant notice that since the Unit had been unoccupied without prior arrangement with Rinbac for a period of not less than three months, if the Applicant did not re-occupy the Unit or make arrangements satisfactory to Rinbac within two weeks of the notice being delivered, the Applicant would be deemed to have permanently left the Unit ("the Notice"), see Application Book Vol 2, p 196.

(15) (a) Clause 3.2.3 is in the following terms:

"The Lessor may by notice in writing left in the premises terminate this Lease if the Lessee (and where more than one person constitutes the Lessee all of such persons) permanently leaves the premises the Lessee shall be deemed to have permanently left the premises if the premises are left vacant without prior arrangement with the Lessor or its agent for a period of not less than three months and the Lessor is not able after reasonable enquiry to locate the Lessee or does locate the Lessee and the Lessee does not reoccupy the premises or make arrangements to the Lessor satisfactory to the Lessor within two weeks after notice delivered by ordinary prepaid post to the Lessee at such location."

(b) Clause 4.9 of the Lease is in the following terms:

"Notwithstanding the provisions of clause 4 the lessee will not be obliged to contribute to the outgoings of the Serviced Apartments whilst the premises remain unoccupied by the Lessee or any Sub Lessee. The presence of the Lessee's furniture and effects in the premises itself shall not constitute occupation thereof."

(16) In response to the Notice the Applicant did not re-occupy the Unit or propose any arrangements that may have been satisfactory to Rinbac to re-occupy the Unit.

In my view the primary judge was therefore correct to find no error in the consideration by the Tribunal of the fact that Rinbac could not obtain payment for outgoings from the Applicant whilst he was not in occupation as a circumstance to which they should have regard.

This leaves one matter which the primary judge said was not taken into account by the Tribunal as a circumstance but which he held did not need to be taken into account by the Tribunal - the unavailability of the premium.

Ms Allars contended that it should not be accepted that the Tribunal had failed to consider that circumstance. She pointed out that:

(1) The Tribunal had referred in [1] to the fact that the Applicant and his mother "paid the amount of $148,000 by way of a lease deposit which, in the usual way, was placed into trust".

(2) The Tribunal had referred at [2] to the matter saying:

"At some time in the last few years of the twentieth century, the village and the trust failed and were liquidated. The precise terms are not important but it must be noted that the monies put into trust were lost, at least those funds pertaining to the lease deposit of the lessee. Prior to the 2010 amendment to the Act, such funds had no protection the money was lost".

(3) The Tribunal (in rejecting the claims that a clause should be added) had referred to the matter at [19] saying:

"It is true that the lessee has without fault of his own lost a substantial sum of money and indeed it was suggested by Mr Nagle that this case was the, or one of the, triggers for amendments to the Act to the effect that moneys held in trust must be protected by a charge over the land. Whether that is true or not, such amendments came too late to protect this lessee and while any reasonable person must feel sympathy for his situation, that does not translate into an amendment to the lease making this lessor (or any later lessor) responsible for reimbursing those funds."

and at [20] the Tribunal said that it would not be fair to force a compensation payment on Rinbac:

"In circumstances where the lessor did not receive or have the use of, or any benefit from, the original funds not lost."

(4) At [15] the Tribunal said:

"In order to ensure fairness to both Applicants I have treated the applications together and have made decisions in relation to all issues, even if my decision in regard to one or other issues may necessarily entail dismissing some other issue. The result, I hope is quite clear."

(5) The Tribunal was required to give a brief statement of reasons and submitted that it not be fair to infer that the Tribunal did not take into account the fact that the premium had been lost as a circumstance in coming to its conclusion, particularly since the Tribunal had made it clear that the factual background was relevant to both Rinbac's claim and the Applicant's cross-application.

Ms Allars referred to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 [69] and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 615 [64] and also the approach in Wu Shan Liang set out earlier. I do not doubt that the Tribunal was proceeding on the basis that the premium had been lost, the only question is whether it can be inferred that whilst it did not expressly state that it was a circumstance which it took into account in determining whether the circumstances justified termination that it must have done so. I note that the primary judge's reading of the Tribunal's decision was that "the Tribunal clearly attributed little weight to the fact that Mr Boele would lose his almost $150,000 in that context". That comment rather suggests that his Honour regarded the Tribunal as having had regard to the premium as a circumstance but had treated it as of little weight, not as a failure to consider the circumstance at all. If that is correct it leads to the question as to whether the amount of weight placed on a circumstance could constitute an error of law at all. His Honour was of the view that the loss of the premium was personal to the Applicant and not "relevant to his current legal relationship with his lessor, Rinbac Pty Ltd". I take his Honour to have rejected the claim that there had been an error of law on this point because his Honour viewed the loss of the premium as irrelevant to the decision under s 134 of the RV Act.

I am unable to agree with his Honour's approach to the loss of the $148,000. In my view the fact that the $148,000 had been paid in 1992 and that it was not available to be returned to the Applicant was a circumstance to which regard should have been paid in deciding whether the breach justified termination although whatever weight would be ascribed to the fact is a different matter. In a reverse scenario (i.e. a decision by the Tribunal not to terminate the Lease where the $148,000 was available without regard to that fact) would in the same fashion be problematic.

I do not think the fact that the money had been lost (not 20 years earlier but when the Lessor went into liquidation or when the Trustee went into liquidation), avoids the need to consider the position as at termination i.e. that the inability of the Applicant to recover the premium which should (with any contractual adjustment) be paid to him, is not irrelevant because the money was handed over in 1992, and lost when the Lessor or Trustee could not repay it.

In concluding that the non-availability of premium is a circumstance to which regard should be had in deciding whether or not to terminate the Lease it is not, in my view, necessary to accept the Applicant's submissions that s 134 of the RV Act should be interpreted in a way to always protect the interests of residents and that this is the purpose of the Act. Two of the requirements for termination advanced by the Applicant (see AWS para 35) are not contained in section 134 and cannot be read into it. Whilst strictly not necessary to do so I should say that I am not persuaded that there is any substance in the approach to construction for which the Applicant contends and for the following reasons:

(1) The objects of the Act are those set out in s 3 and those objects do not include the object of protecting the interest of the residents wherever they conflict with those of the operators.

(2) S 134 provides that both operators and residents may apply for termination of the residence contract and no distinction is drawn between what is required dependent on whether the applicant is an operator or a resident.

(3) When regard is paid to the objects of the Act they do not point to a purposive approach of the type asserted by the Applicant. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 and Secretary of the Treasury v Public Service Association & Professional Officers' Association Amalgamated Union of NSW [2014] NSWCA 138 to which reference is made in the AWS, hold that construction must begin with the text itself. Those cases do not assist the Applicant.

Ms Allars pointed out that some of the submissions of the Applicant seemed to amount to criticism of the District Court decision on the basis that factual findings were not made, and that this complaint misconstrues the task of the District Court which was to ascertain whether or not the Tribunal had made an error of law. It is clear in my view that the District Court was restricted to considering errors of law and was not permitted to itself make findings of fact: see Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 ("Edyp") discussed below.

Whilst I have a real doubt as to whether the Tribunal did fail to have regard to the premium loss as a circumstance and a concern that too much attention may have been given to the way the reasons were expressed, I shall proceed on the basis that because the Tribunal did not specifically identify it as a circumstance in [47] of its decision it failed to do so.

Jurisdictional error

The question of jurisdictional error was comprehensively considered by the High Court in Craig v The State of South Australia (1995) 184 CLR 163 at pp 177-179 and later in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 ("Kirk"), and regard must be had to those decisions where jurisdictional error on the part of the District Court is asserted. In Kirk the High Court held that a conviction of an employer in the New South Wales Industrial Court for breaches of the Occupational Health and Safety Act 1983 (NSW) ("OHSA") had to be set aside because no particulars were given of the measures which the employer was said to have breached the OHSA by not taking and because he had been called as a witness by the prosecution.

I set out key paragraphs of Kirk in which the High Court reiterated and expanded on what had been said in Craig:

"[71] It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.

[72] First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error 'if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist' (emphasis added). Secondly, the Court pointed out that jurisdictional error 'is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers' (emphasis added). (The reference to 'theoretical limits' should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples:

(a) the absence of a jurisdictional fact;

(b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and

(c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

The Court said of this last example that 'the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern' and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.

[73] As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that - examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example."

The Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) also held that s 179 of the Industrial Relations Act 1996 (NSW) which purported to preclude rights of review by a superior Court was not valid insofar as it sought to preclude review for jurisdictional error and said:

"[100] This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non‑jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non‑jurisdictional error of law appearing on the face of the record is not beyond power."

In his article 'Jurisdictional Error and Beyond' (in M Groves (ed) Modern Administrative Law in Australia Concepts and Context (Cambridge University Press, 2014)) Professor Aronson sets out at p 256 generic instances of jurisdictional error:

(1) A mistaken assertion or denial of the very existence of jurisdiction.

(2) A misapprehension or disregard of the nature or limits of the decision-makers functions or powers.

(3) Acting wholly or partly outside the general area of the decision-makers jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances. An example would be a civil court trying a criminal charge.

(4) Mistakes as to the existence of a jurisdictional fact or other requirement, when the relevant Act treats the fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision. The fact or requirement is not such a condition precedent if it suffices for the decision-maker to come to its own opinion or satisfaction as to whether it exists. In that case, the opinion is challengeable only on the other grounds in this list.

(5) Disregarding relevant consideration or paying regard to irrelevant considerations, if the proper construction of the relevant Act is that such errors should result in invalidity.

(6) Some, but not all, errors of law. In particular, if the decision-maker is an inferior court or other legally qualified adjudicative body, the error is likely to be jurisdictional only if it amounts to a misconception of the nature of the function being performed or of the body's powers.

(7) Acting in bad faith.

(8) Breaching the hearing or bias rules of natural justice.

(9) Acting extremely unreasonably, whether in the exercise of a specific procedural power, or in the exercise of the substantive powers either to determine facts or determine an outcome.

It is an earlier list of these categories by Professor Aronson that is mentioned in Kirk at [71] set out above.

The Respondent submits that in contrast to a tribunal, an inferior court does not fall into jurisdictional error if it fails to take into account a relevant consideration it was bound to take into account or if it takes into account an irrelevant consideration and cites Craig at p 179, and Kirk at pp 572 [67] (RWS 3.4).

I accept this contention. In Craig the Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said at pp 179-180:

"...the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."

And see Kirk at [67] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The Respondent asserts that even if the Tribunal made a jurisdictional error by not considering the non-availability of the premium on termination that does not mean that the District Court decision is also infected with jurisdictional error. Nor does the District Court perpetuate an error of law by affirming the error so that the perpetuation constitutes jurisdictional error (see AWS at paras 18 and 19 and RWS 3.3), see [65] and [66] of Kirk.

The Respondent draws attention to two decisions to support its contentions: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 ("Coal and Allied") and Edyp at [55]-[56] per Allsop P, [61], [119]-[140] per Giles JA and [164]-[171] per Basten JA.

In Coal and Allied the High Court upheld an appeal from the Full Federal Court which had upheld an appeal from the Full Bench of the Australian Industrial Relations Commission. The Full Bench had quashed a decision of a presidential member of the Commission (Boulton J). The Federal Court had held that the Full Bench (Giudice J with whom Larkin J agreed) had taken an erroneous view of the law in determining that the presidential member had fallen into error. The plurality Gleeson CJ, Gaudron J and Hayne JJ in reaching their conclusion that the appeal from the Full Federal Court should be allowed said:

"[32] In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution."

Callinan J concurred with the plurality that the Full Bench had been exercising a power of rehearing which required it to find error on the part of the presidential member and that having found error its decision was within its jurisdiction.

In his dissenting judgment Kirby J emphasised that the distinction between jurisdictional error and non-jurisdictional error was still important in Australia (see p 228 [83]) but in his opinion the error made by the Full Bench was a jurisdictional error: at [88].

Edyp was concerned with an application for judicial review of a building contract case in which the builder sought in the Tribunal damages from a company and two directors of the company.

The Tribunal found in favour of the builder but did not enter an award against the individuals Dr Edyp and Ms Baumung. The builder appealed to the District Court pursuant to s 67 of the CTTT Act and sought and obtained an order that the directors were (in addition to their company) liable for damages for breach of the building contract. The builder contended that it had been common ground at the Tribunal hearing that the directors were parties to the building contract - the directors disputed that there had been any concession but agreed that the Tribunal had not dealt with the issue when on their case it called for determination and on the builder's case it had been conceded by the directors. The directors contended that there was no scope for an appeal under s 67 of the CTTT Act because there had been no 'decision' made by the Tribunal on the question of the directors' liability, and the District Court had exceeded jurisdiction by determining that issue. Basten JA in his dissenting judgment accepted that argument. The majority, Allsop P and Giles JA, in separate judgements, held that the Tribunal had implicitly decided a question with respect to matter of law. They also held that the District Court had engaged in fact finding beyond its jurisdiction but that the fact finding was not material to the order made because it was sufficient for the District Court to conclude that there had been an agreement between the parties in their conduct of the tribunal hearing which mandated judgment being given against the directors as well as the company if the company were held liable.

Whilst I think that Coal and Allied does support the Respondent's contention which I accept, I do not think that Edyp provides additional support - although it does demonstrate that even though the District Court in that case exceeded jurisdiction its decision was not flawed because the excess of jurisdiction exercised was unnecessary.

I note that the only case on jurisdictional error to which reference was made in the AWS or the Applicant's list of authorities was Craig and in neither written or oral submissions did counsel for the Applicant address the written and oral submissions of the Respondent on the question of jurisdictional error.

I return then to the key question of whether the District Court's erroneous rejection of the unavailability of the premium as a circumstance amounts to jurisdictional error. When regard is had to Craig and Kirk I see nothing in the decision of the District Court in which:

(a) The Court mistakenly asserts or denies the existence of jurisdiction;

(b) Misapprehends or disregards the nature or limits of its functions or powers in case where it correctly recognises that jurisdiction does exist;

(d) The Court has acted where a jurisdictional fact was required but did not exist;

(e) The Court had disregarded a matter that the relevant statute requires be taken account as a condition of jurisdiction or taking into account a matter required to be ignored.

I accept that the categories of jurisdictional error are not closed: see [73] of Kirk, and that the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern: see [72] of Kirk, but even accepting that the Tribunal committed a jurisdictional error by failing to have regard to a matter to which it should have had regard, the failure of the District Court on appeal to treat that failure as an error does not qualify as a jurisdictional error. Kirk holds that jurisdictional error is a meaningful phrase and it must therefore have identifiable content. As Kirk itself demonstrated where there has been some identifiable flaw in process (in Kirk permitting criminal charges to be heard without any clear particularisation of the measures which it was alleged should have been taken by the employer and permitting the prosecution to call the defendant its case), jurisdictional error of a type not easily characterised can occur. Here however whilst I do not agree that the loss of the premium was irrelevant no flaw in the process of the District Court has been identified and I do not think that the primary judge failed to address the relevant question or applied an inappropriate approach - rather he reached a conclusion on that point with which I do not agree.

That a party to a residence contract can be deprived of a premium which is supposed to be returned at the termination of the Lease is a most unfortunate outcome. As I have indicated there may yet be an avenue open to the Applicant which he has not yet pursued but as the Tribunal noted the RV Act has been amended to ensure that premiums of the kind paid here create a charge which runs with the Lease. Unfortunately that amendment did not, we were informed, apply to the Lease in contention.

The Discount Point

I have not referred to the discount point at [104](24). It is not identified at para 22 of the Applicant's District Court submissions as a matter which should have been taken into account and was not. I accept that it was mentioned at para 26 of the Applicant's District Court submissions but it was not identified as a separate discrete point to which the Tribunal failed to have regard and his Honour may have understood it to be put rather as a step to the asserted fact that the Tribunal had failed to have regard to Rinbac's knowledge of the non-occupation of the Unit by the Applicant, see [16] of his Honour's decision. Although the discount point is mentioned at para 26 of the AWS, at T31.4-T32.5 of the hearing I endeavoured to summarise the matters identified by the primary judge and was not informed that his Honour had failed to identify the discount point. Given the absence of the discount point from para 22 of the Applicant's District Court submissions I am not persuaded that the primary judge was being asked by the Applicant to treat that point as a circumstance to which the Tribunal ought to have had regard. Were it necessary to decide I would agree with Sackville AJA that the price paid by Rinbac was not relevant to s 134 in any event and if it was, for the reasons explained in relation to the premium point, I would not treat the failure of the primary judge to treat it as a jurisdictional error.

Conclusion

It follows in my view that no jurisdictional error has been identified in the decision of the District Court and accordingly that the summons should be dismissed. The Applicant should pay Rinbac's costs.

Addendum

I have had the benefit of reading the reasons of Basten JA and Sackville AJA in draft.

In relation to the reasons of Sackville AJA I agree with his Honour that neither the discount point or knowledge of non-occupation are relevant to s 134. I do not agree, with respect, that the Tribunal did not implicitly consider whether it should exercise its discretion and as I have explained I think that the premium was relevant to its consideration and in that respect I agree with the conclusion of Basten JA. I differ, with respect, to Basten JA on the question of whether the discount point was properly articulated in the District Court and also as to its relevance.

In relation to Basten JA's finding of jurisdictional error based on a failure of the primary judge to accord natural justice or constructive failure to exercise jurisdiction having regard to the primary judge's approach to the premium point and the discount point I have a real doubt as to whether that conclusion is open having regard to the basis on which the case was advanced by the Applicant before this Court but in any event I am not persuaded that the primary judge did not "engage with" and "consider" the premium point, even though he came to a view about its relevance different to my own. As I have noted I do not think that the discount point was properly articulated before the primary judge but even if it was I do not think it was relevant. I therefore do not regard what the primary judge did as involving any kind of jurisdictional error on his part even on this alternative basis assuming it to be open and its requirements met.

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Decision last updated: 19 December 2014

Medium Neutral Citation:	Boele v Rinbac Pty Ltd [2014] NSWCA 451
Hearing dates:	17 November 2014
Decision date:	19 December 2014
Before:	Basten JA at [1]; Sackville AJA at [57]; Rein J at [102]
Decision:	Summons dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - appeal limited to question of law - whether error of law by Consumer, Trader and Tenancy Tribunal - whether District Court erred in failing to identify error of law by Tribunal - whether ground relied on by way of judicial review argued in District Court - whether any error of District Court involved jurisdictional error, error on face of record not being relied on LANDLORD AND TENANT - retirement villages - termination of residence contract for breach of village contract - alleged breach by applicant in failing to occupy premises - whether breach justified termination order - whether Tribunal failed to consider whether the "circumstances of the case" warranted exercising power to terminate - Retirement Villages Act 1999 (NSW), s 134
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 67, 69 District Court Act 1973 (NSW), s 176; Pt 4 Industrial Relations Act 1946 (NSW), s 179 Retirement Villages Act 1999 (NSW), ss 11, 40, 112, 113, 134, 207; Sch 4 Supreme Court Act 1970 (NSW). s 69
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Boele v Rinbac Pty Ltd (District Court (NSW), Gibb DCJ, 5 December 2012, unrep Brimelow v Sharpe [2012] NSWCA 345 Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Craig v The State of South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs [203] HCA 26; 77 ALJR 1088 Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 Goodwin v Commissioner of Police [2012] NSWCA 379 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Ethic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; 249 CLR 398 Rinbac Pty Ltd v Boele (Retirement Villages) [2012] NSWCTTT 237 Rinbac Pty Ltd v Boele (Retirement Villages) [2013] NSWCTTT 421 Secretary of the Treasury v Public Service Association & Professional Officers' Association Amalgamated Union of NSW [2014] NSWCA 138
Texts Cited:	M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, 2013, Law Book Co) at [3.40] 'Jurisdictional Error and Beyond' (in M Groves (ed) Modern Administrative Law in Australia Concepts and Context (Cambridge University Press, 2014))
Category:	Principal judgment
Parties:	Pieter Boele (Applicant) Rinbac Pty Ltd (First Respondent) District Court of NSW (Second Respondent)
Representation:	Counsel: Mr J Glissan QC/Mr D Nagle (Applicant) Ms M Allars SC/Mr G Lucarelli (Respondent) Solicitors: Platinum Lawyers (Applicant) Landerer & Co (First Respondent)
File Number(s):	2014/135146
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2014-03-21 00:00:00 Before: Cogswell SC DCJ File Number(s): 2013/276281