Cohen-Hallaleh v Cyril Rosenbaum Synagogue - [2003] NSWSC 395

CITATION: Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2003] NSWSC 395 revised - 13/05/2003

HEARING DATE(S): 01/05/03, 08/05/03

JUDGMENT DATE:
13 May 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Summons dismissed

CATCHWORDS: APPEAL AND NEW TRIAL - plaintiff seeks review of decision of Consumer, Trader and Tenancy Tribunal - whether error of law - whether facts capable of supporting findings - whether "issue" concurrently before Industrial Relations Commission - LANDLORD AND TENANT - residential tenancies legislation - whether right of occupation granted by employment contract arises from "residential tenancy agreement"

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001, ss.65, 66 and 67
Industrial Relations Act 1996, s.106
Residential Tenancies Act 1987, ss.3(1), 6(2), 22(7)
Residential Tenancies (Residential Premises) Regulation, cl. 21

CASES CITED: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648
Facchini v Bryson [1952] 1 TLR 1386
Ford v Langford [1949] 1 All ER 483
E & W Hackett Ltd v Oliver [1953] SASR 19
Hyam v Yee [1997] NSWRT 194
McLeod v McLeod [1999] NSWRT 32
Metropolitan Fire Brigades Board v Tait [1949] VLR 231
Radaich v Smith (1959) 101 CLR 209
H A Warner Pty Ltd v Williams (1945) 73 CLR 421
Torbett v Faulkner [1952] 2 TLR 659

PARTIES :
Juda Cohen-Hallaleh - Plaintiff
Cyril Rosenbaum Synagogue Pty Ltd - First Defendant
Sir Moses Montefiore Jewish Home - Second Defendant
Consumer, Trader and Tenancy Tribunal - Third Defendant

FILE NUMBER(S): SC 2538/03

COUNSEL: Mr A Blank - Plaintiff
Mr G Lucarelli - First and Second Defendants

SOLICITORS: Plaintiff in person
Minter Ellison - First and Second Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 13 MAY 2003

2538/03 – JUDA COHEN-HALLALEH v CYRIL ROSENBAUM SYNAGOGUE PTY LTD & 2 ORS

JUDGMENT

Parties and proceedings

1 The plaintiff seeks orders directed towards review of a determination of the Consumer, Trader and Tenancy Tribunal (“CTTT”) on 28 March 2003 by which an order for termination and possession was made against the plaintiff in respect of an agreement between him and the owner of the property occupied by him (which I shall call “the subject premises”). That owner is the second defendant, Sir Moses Montefiore Jewish Home, a body constituted by statute.

2 The plaintiff is an orthodox Jewish rabbi. He was previously employed by the second defendant or its related entity, the first defendant, Cyril Rosenbaum Synagogue Pty Ltd. He occupied the subject premises in connection with his employment. The summons was prepared by the plaintiff himself and, while probably not conforming strictly to the requirements applicable to cases where review of a determination of the CTTT is sought, was accepted by the defendants as appropriate for that purpose. The plaintiff later obtained the services of Mr Blank of counsel who appeared before me when the matter was argued.

3 The plaintiff seeks to call in question the determination of the CTTT on five bases. First, he…

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: [2003] NSWSC 395
Decision Date: 13 May 2003

CaseChat Overview and Summary

The plaintiff, Cohen-Hallaleh, sought review of a decision of the Consumer, Trader and Tenancy Tribunal concerning the termination of their lease by the defendant, Cyril Rosenbaum Synagogue. The Tribunal had dismissed the plaintiff's application for an order restraining the defendant from terminating the lease, finding that the lease did not fall within the definition of a residential tenancy agreement under the Residential Tenancies Act. The plaintiff argued that the Tribunal had erred in law and that the facts were capable of supporting findings that a residential tenancy agreement existed. The court was required to determine whether the Tribunal had erred in law, whether the facts were capable of supporting the Tribunal's findings, and whether the issue was concurrently before the Industrial Relations Commission.

The court found that the Tribunal had erred in law by failing to consider whether the right of occupation granted to the plaintiff by their employment contract arose from a residential tenancy agreement. The court held that the lease did not fall within the definition of a residential tenancy agreement because the right of occupation was granted by an employment contract, not a tenancy agreement. However, the court found that the facts were capable of supporting a finding that the right of occupation granted by the employment contract arose from a residential tenancy agreement. The court also found that the issue was not concurrently before the Industrial Relations Commission.

The court allowed the appeal, set aside the decision of the Tribunal, and remitted the matter to the Tribunal for rehearing. The court held that the Tribunal should consider whether the right of occupation granted by the employment contract arose from a residential tenancy agreement and whether the lease fell within the definition of a residential tenancy agreement under the Act. The court did not make any orders as to costs.

Orders