Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Kenney & Anor (No.2) - [2017] FCCA 1323

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v KENNEY & ANOR (No.2)

[2017] FCCA 1323

Catchwords:
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of tenancy agreement – application for extension of time within which to apply for a warrant of possession – extension necessitated by the first respondent’s appeal and stay of orders previously made – discretion under s.121 of the Residential Tenancies Act 2010 (NSW) – application for extension of time granted.

Legislation:

Residential Tenancies Act 2010 (NSW), ss.80, 94, 121, Pt.5, Pt.6

Cases cited:

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors(No.2) [2017] FCCA 1014

King v New South Wales Land & Housing Corporation (1992) 26 ALD 684

Patrick Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 16

Applicant:

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

First Respondent:

PATRICK KENNEY

Second Respondent:

LEONA PAGE

File Number:

SYG 1798 of 2015

Judgment of:

Judge Smith

Hearing date:

18 May 2017

Date of Last Submission:

18 May 2017

Date of Orders Made:

18 May 2017

Delivered at:

Sydney

Delivered on:

23 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr J. Doyle and Mr D.W. Rayment

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the First Respondent:

Mr P. King

Solicitors for the First Respondent:

The People's Solicitor Pty Ltd

ORDERS (AS MADE ON 18 MAY 2017)

The time within which the applicant may apply for a warrant for possession is extended to 30 days from the date of this order.
The first respondent is to pay the applicant’s costs in the application in a case.
The applicant’s costs referred to in order 2 are fixed in the amount of $2,900.
Order 1 above be stayed for a period of 7 days from the date of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1798 of 2015

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

Applicant

And

PATRICK KENNEY

First Respondent

LEONA PAGE

Second Respondent

REASONS FOR JUDGMENT

The Commonwealth is the registered proprietor of the land situated at 30 (formerly Lot 11) Longleys Road, Badgerys Creek NSW 2555, (Premises). The first respondent lived on the Premises for approximately 17 years as a tenant. Although he first lived there with the second respondent, by the time these proceedings were brought by the Commonwealth, the second respondent no longer lived there and the first respondent lived there with Catherine Brabin. The second respondent took no part in the proceedings. For that reason, I will refer to Patrick Kenney as the respondent.
In June 2015, the Commonwealth commenced proceedings seeking orders terminating the residential tenancy agreement between it and the respondents in respect of the Premises and for vacant possession of the Premises.
Those proceedings were contested and after a number of hearings, I made the following orders on 21 December 2015:
1.The residential tenancy agreement in relation to the premises at 30 (formerly Lot 11) Longleys Road, Badgerys Creek NSW 2555 be terminated with immediate effect.
2.Vacant possession of the premises be given to the Applicant on or before 28 December 2015.
3.The order for vacant possession be suspended until 25 January 2016.
…
The respondent appealed from that judgment and on 22 January 2016 Robertson J stayed Orders 2 and 3.
On 2 March 2017, the Full Court of the Federal Court (Kenny, Robertson and Griffiths JJ) dismissed the appeal: Patrick Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 16.
On the same day, Griffiths J ordered that Orders 2 and 3 made by me and the Orders of the Full Court of the Federal Court be stayed for a period of 28 days to enable the respondent to decide whether or not to apply for special leave to appeal to the High Court of Australia.
On 3 April 2017 the respondent applied for special leave to appeal to the High Court and, on the same day, the stay ordered by Griffiths J on 2 March 2017 lapsed.
There has been no further stay of Orders 2 and 3 made by me on 21 December 2015.
The Commonwealth now seeks an extension of time within which to apply for a warrant for possession.
This application was heard with a number of similar matters on 18 May 2017 and I made orders on that day. These are my reasons for those orders.
These reasons are similar to the reasons I gave in the matter of Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors (No.2) [2017] FCCA 1014 (Uren) which dealt with the same issues and arguments by the parties in this application.
For the reasons explained by the Full Court of the Federal Court, the law to be applied to the dispute between the parties was the Residential Tenancies Act 2010 (NSW) (Act).
Section 121 of the Act relevantly provides:
121 Enforcement of orders for possession
(1)The principal registrar of the Tribunal may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if the principal registrar is satisfied that the order or a condition of suspension of the order has not been complied with.
(2)An application for a warrant for possession may be made immediately, if the order for possession so provides, or not more than 30 days after the date by which vacant possession was required or within such further period as the Tribunal may permit.
(3)Without limiting subsection (2), the Tribunal may permit an application to be made within a further period if the delay in making the application is attributable to genuine attempts by the applicant to reach agreement with the tenant for reinstatement of the tenancy.
…
(Emphasis in original)
The reference to “Tribunal” is taken to be a reference to the Court.
The “date by which vacant possession was required” referred to in s.121(2) of the Act was originally 25 January 2016; however, that changed because of the Federal Court orders staying the orders I made on 21 December 2015. In effect, Order 3 made on that day has been overcome by the stay ordered by Robertson J on 22 January 2016. The consequence is that the order for immediate possession took effect only on 30 March 2017.
The Commonwealth argues that the Court ought to allow a further period under s.121(3) of the Act for the following reasons:
(i)Order 1 made on 21 December 2015 operated to immediately terminate the residential tenancy. The order has never been stayed and so the respondent had no legal right to possession since 21 December 2015;
(ii)the respondent is in breach of Order 2 requiring him to give vacant possession to the Commonwealth;
(iii)the only reason why the Commonwealth has not moved more quickly to apply for a warrant is because the relevant orders were stayed until very recently; and
(iv)to refuse the grant of an additional period within which a warrant may be applied for by the Commonwealth would defeat the purposes for which the orders were made.
The respondent resisted the application on a number of bases.
Amongst those was the argument that the conferral on the Court of powers under the Act was unconstitutional. I note that, in support of an application for a stay of the order granting an extension of time within which to apply for a warrant in the matter of Uren, counsel for the respondent argued that I had not dealt with that argument in my judgment. That contention was correct, only in that I did not deal with the argument expressly. However, I observed in Uren, as I have observed at [12] above, that the law to be applied in these proceedings was the Act. That implicitly dealt with the argument and nothing further needs to be said about it. Indeed, as I noted in response to the argument in the application for a stay in Uren, nothing of any substance was said about it in the respondent’s oral submissions. The point was, and remains, unarguable in light of the decision of the Full Court.
Turning to the more substantial arguments, the respondent first argued that, in light of s.121(3) of the Act, the fact that the Commonwealth has given no assistance to him to move, weighs against any extension of time. The argument is based on the purpose of s.121(3) which is to encourage genuine attempts to resolve difficulties between the parties. The difficulty with this submission is that it ignores the opening words of s.121(3) “without limiting subsection (2)”. While it may be accepted that s.121(3) encourages negotiation between the parties, it does nothing to limit the power of the Court to extend time under s.121(2), even if such attempts to reach agreement do not take place. Certainly, it does not, in my view, make the existence of negotiations a prerequisite, or even necessarily relevant to the exercise of the power in s.121(2).
The respondent then argued that there was no evidence that the Commonwealth had approached the Registrar of the Court for the issue of a warrant, or that the orders made on 21 December 2015 had been served on the respondent. I do not accept that either of those matters makes any difference.
First, there is no express or implicit limitation on the power to extend the time within which to apply for a warrant connected with an application to the Registrar, or the service of the relevant orders. Counsel for the respondent referred to a decision of the New South Wales Residential Tenancies Tribunal[1] (RTT) in which, he said, the Tribunal held that there was no power in the Registrar to make an order for the issue of a warrant in the absence of proof of service of the orders. That however, addressed a different question to the one I am asked to consider. I am not determining whether to issue a warrant, but only to extend the time within which the Commonwealth might ask for a warrant to be issued. In any event, although the Registrar may properly refuse to exercise the power to issue a warrant for possession in the absence of satisfaction that a former tenant is on notice of the order for possession, I do not accept that he or she has no power to issue a warrant in those circumstances.
[1] As it was then known. On 1 January 2014, it became the NSW Civil and Administrative Tribunal, also known as “NCAT”.
Secondly, and in any event, the respondent was clearly aware of the orders made on 21 December 2015: he both appealed from them and sought a stay of them.
The respondent next argued that any extension of time ought to be subject to conditions, namely, that the warrant not be applied for within 90 days. In support of this, the respondent relied on the broad protective provisions in Pt.5 of the Act; commencing with s.80 and, in particular, s.94. He also relied on the decision of the New South Wales Court of Appeal in King v New South Wales Land & Housing Corporation (1992) 26 ALD 684 (King).
Part 5 of the Act deals with the termination of residential tenancy agreements. The residential tenancy agreement between the respondent and the Commonwealth was terminated in accordance with those provisions by Order 1 made on 21 December 2015. I do not accept that those provisions have any impact once an order for possession has been made and, as in this case, not complied with. It may be that those provisions were intended to address the imbalance of power between landlords and tenants, but that does not appear to be the purpose of the provisions in Pt.6 of the Act, such as s.121, which concern the recovery of possession of residential premises.
The decision in King does not assist the respondent. That case was an appeal by leave from the refusal by a judge of the Supreme Court of New South Wales to grant interlocutory relief pending the determination of a summons seeking judicial review of the decision of the RTT. The RTT had made an order for possession in respect of premises occupied by Mr King but had suspended that order subject to a number of conditions. It also ordered that, if Mr King did not comply with those conditions, the respondent could apply for the issue of a warrant of possession without further notice to Mr King. The case did not involve an extension of time under s.121(2), and gives no support to the proposition that such an extension can be made subject to conditions.
Even if I did have the power to impose conditions on the extension of time under s.121(2) of the Act, I would not impose any condition on that extension.
First, the delay has not been caused by the Commonwealth. Rather, the extension of time has been necessitated by the respondent’s appeal and the orders staying the orders of 21 December 2015 for possession. Although the respondent seems to have pursued his appeal with all due expedition, the appeal was ultimately unsuccessful.
Secondly, the respondent has no right to remain on the Premises and has known for many months of the possibility that he would have to leave with little or no notice.
Thirdly, the respondent has known since 30 March 2017 that the Commonwealth has had the right to immediate possession. Any delay in taking all necessary steps to vacate the Premises falls on him, as does any difficulty created by his failure to do so. The respondent’s evidence does not affect my view about that.
That evidence was that he had a number of dogs and horses and that this had presented a hurdle in finding another home. He also said that his time was taken up by looking after his 7 month old twins and, in addition, that he had to fit in looking for a new home around his work commitments. He said that his current rent was lower than that for comparable properties, that his financial resources were limited and that it would be difficult to look further afield for accommodation.
Most of this evidence was at such a level of generality that it was unhelpful. I am not satisfied that the respondent has made any real effort to find alternative accommodation and, while I accept that having young twin children, employment and pet animals might make the search for accommodation more difficult, I am not satisfied that that that supports the imposition of any conditions on the extension of time for an application for a warrant.
The delay in seeking the issue of a warrant has not been caused by anything other than the appeals brought by the respondent. The Commonwealth expeditiously applied for an order extending the time for applying for a warrant. It is entitled to immediate possession and the respondent is not acting in accordance with the orders of this Court.
In those circumstances the only reasonable decision is to extend the time to apply for a warrant. An extension of 30 days reflects the original limit in s.121 of the Act and provides for a sufficient opportunity to enforce the judgment obtained on 21 December 2015.
The respondent should pay the costs of the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date: 23 June 2017