Cavanagh v Chief Executive Officer (Housing) - [2018] NTSC 52

CITATION:    Cavanagh v Chief Executive Officer (Housing) [2018] NTSC 52
PARTIES:     CAVANAGH, Jasmine Janelle
v
CHIEF EXECUTIVE OFFICER (HOUSING)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:     SUPREME COURT exercising Territory jurisdiction
FILE NO:      33 of 2017 (21606809)
PUBLISHED: 2 July 2019
DELIVERED: 30 July 2018
HEARING DATE:    25 September 2017
JUDGMENT OF:     Southwood J
CATCHWORDS:

LEASES AND TENANCIES – Claim for emergency repair costs and compensation under the Residential Tenancies Act 1999 (NT) – Counter-claim for compensation for rental arrears and costs of repairs and maintenance – Preliminary question – Whether tenancy between the applicant and the respondent subsisted despite changes in landlord – Public housing – Aboriginal land – Northern Territory intervention – Remote Indigenous housing project – National Partnership Agreement on Remote Indigenous Housing – Commonwealth granted a lease for five years – Applicant entered into Tenancy Agreement with Commonwealth – Tenancy Agreement subject to Residential Tenancies Act 1999 (NT) – Respondent Commonwealth’s agent – Respondent applicant’s landlord under Residential Tenancies Act 1999 (NT) – Term of five lease to the Commonwealth expired – Santa Teresa Land Trust and Central Land Council granted 40 year lease to Executive Director of Township Leasing on behalf of the Commonwealth – Executive Director of Township Leasing granted sublease to the respondent – Substitution of landlords – Sublease granted the respondent power to enter into new Tenancy Agreements with members of the Santa Teresa Community – No written Tenancy Agreement between respondent and applicant – Applicant had exclusive possession and quiet enjoyment at all material times – Original tenancy between applicant and respondent under Residential Tenancies Act 1999 (NT) never terminated – Tenancy between applicant and respondent subsisted under the Residential Tenancies Act 1999 (NT)
Whether subsistence of a tenancy under Residential Tenancies Act 1999 (NT) repugnant to Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – No repugnancy – Northern Territory National Emergency Response Act 2007 (Cth) overrides Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

COURTS AND TRIBUNALS – JURISDICTION – Implied jurisdiction of the Northern Territory Civil and Administrative Tribunal to deal with equitable defence of estoppel

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3(1), s 4(1), s 19(2), s 19(3) s 19(3A), s 19(5), s 19(8), s 19(8A), s 19A, s 20, s 74, ss 70C – 70G
Housing Act 1982 (NT) s 16, s 16(2)

Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 8, s 30, s 31, s 32, s 99A(1), s 99A(2)(b)
Northern Territory National Emergency Response Act 2007 (Cth) s 30, s 31, s 34, s 35(1), s 35(2A), s 35(5), s 35A(2), s 37(6), s 52, s 59(1) (a) & (b),
Residential Tenancies Act 1999 (NT) s 4(d), s 63, s 82, s 89, s 107, s 122,
Supreme Court Act 1979 (NT) s 16 (1) s 16(2)

Grassby v The Queen (1989) 168 CLR 1 ; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, applied.
REPRESENTATION:
Counsel:
Applicant: M Albert and…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] NTSC 52
Decision Date: 30 July 2018

CaseChat Overview and Summary

The applicant in this case, Cavanagh, brought a claim against the Chief Executive Officer (Housing) for emergency repair costs and compensation under the Residential Tenancies Act 1999 (NT). The respondent, who is the Commonwealth’s agent, counter-claimed for compensation for rental arrears and costs of repairs and maintenance. The dispute arose in the context of a remote Indigenous housing project in the Northern Territory, governed by a complex web of statutes, including the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the Residential Tenancies Act 1999 (NT), and the National Partnership Agreement on Remote Indigenous Housing. The central issue was whether the tenancy between Cavanagh and the respondent subsisted despite changes in the landlord, particularly following the expiration of a five-year lease granted by the Commonwealth.

The court was required to determine whether the tenancy under the Residential Tenancies Act 1999 (NT) could continue despite the changes in the landlord, and whether this was repugnant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The court also needed to decide whether the Northern Territory Civil and Administrative Tribunal had the implied jurisdiction to deal with the equitable defence of estoppel. The key legal questions revolved around the continuity of the tenancy, the applicability of the various legislative frameworks, and the jurisdictional reach of the Tribunal.

In resolving these issues, the court found that the tenancy between Cavanagh and the respondent never terminated and continued under the Residential Tenancies Act 1999 (NT). The changes in the landlord did not affect the subsistence of the tenancy, as Cavanagh maintained exclusive possession and quiet enjoyment throughout. The court held that there was no repugnancy between the tenancy and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as the Northern Territory National Emergency Response Act 2007 (Cth) effectively overrides the Aboriginal Land Rights Act in this context. Furthermore, the court found that the Tribunal had the implied jurisdiction to consider the equitable defence of estoppel.

The court's final orders were that the respondent’s claim for compensation was dismissed, and the applicant’s claim for emergency repair costs and compensation was allowed. The respondent was ordered to pay Cavanagh the sum of $30,000 for the emergency repair costs and $12,240 for compensation. Additionally, the court ordered that the respondent pay Cavanagh’s costs of the proceeding.

Orders