Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Odzic & Anor
[2015] FCCA 3363
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v ODZIC & ANOR | [2015] FCCA 3363 |
| Catchwords: CONSTITUTIONAL LAW – Jurisdiction of the Federal Circuit Court of Australia – judicial power – improper restraint on judicial power – acquisition of property other than on just terms – whether there was a “matter” – whether legislative instrument was unlawful. PRACTICE & PROCEDURE – Whether proceedings were properly constituted. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.9 Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth), ss.7, 8 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Commonwealth of Australia (As Represented By Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814 Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) v Rigney & Anor (No.3) [2015] FCCA 3133 Re Residential Tenancies Tribunal (NSW) and Henderson ; Ex Parte Defence Housing Authority (1997) 190 CLR 410 Saad v Fares [2015] NSWCA 385 |
| Applicant: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| First Respondent: | STOJAN ODZIC |
| Second Respondent: | MELITTA ODZIC |
| File Number: | SYG 1800 of 2015 |
| Judgment of: | Judge Smith |
| Hearing dates: | 18 & 19 November 2015 |
| Date of Last Submission: | 14 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Doyle, Mr D.W. Rayment & Ms A. Mitchelmore |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondents: | Mr P. King |
ORDERS
The residential tenancy agreement in relation to the premises at 1932 (formerly Lot 11) Elizabeth Drive, Badgerys Creek NSW 2555 comprising folio identifier Lot 11 DP 226448 (“Premises”) be terminated with immediate effect.
Vacant possession of the Premises be given to the Applicant on or before 28 December 2015.
The order for vacant possession be suspended until 25 January 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1800 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Applicant
And
| STOJAN ODZIC |
First Respondent
| MELITTA ODZIC |
Second Respondent
REASONS FOR JUDGMENT
Mr and Mrs Odzic live at 1932 Elizabeth Drive, Badgerys Creek New South Wales 2555 (“Premises”) as tenants of the Commonwealth pursuant to a residential tenancy agreement. The Premises are part of a site which the Commonwealth proposes to develop as a new airport. In order to proceed with the development of the site, the Commonwealth served on the Odzics a Notice of Termination in respect of the residential tenancy agreement nominating 15 June 2015 as the date of termination and by which vacant possession was required to be given it. When the Odzics did not vacate the Premises by that date, the Commonwealth commenced these proceedings, seeking orders terminating the residential tenancy agreement and for vacant possession of the Premises.
The Odzics contest the orders sought by the Commonwealth on a number of bases:
i)the law relied upon by the Commonwealth for the determination of the dispute between the parties does not apply because the Premises are predominantly used for non-residential purposes;
ii)the Court does not have jurisdiction to make the orders because the legislation purporting to grant the Court jurisdiction is unconstitutional;
iii)the determination of the law to be applied by the Court was beyond the power granted by the relevant statute;
iv)they say that they were induced into the lease with the Commonwealth by representations to the effect that they would be entitled to possession for 20 years and that they would receive at least 12 months’ notice of any termination of the tenancy; and
v)the Court should refuse to exercise its jurisdiction to terminate the agreement as a matter of discretion.
In their response, the Odzics also raise a number of other points that can be dealt with briefly:
a)They reserve the right to contend that they hold the land in adverse possession to the Commonwealth. As no such contention was made and no evidence adduced from which it might be inferred, it is unnecessary to consider this matter further.
b)They make three pleading points:
i)the applicant has failed to allege properly or at all and/or to particularise any right to possession of the lands the subject of the claim, and has failed to allege any lease, the relevant terms thereof, or the service of any notice to quit upon the respondents according to law;
ii)the applicant has failed to allege what right if any it has under the Residential Tenancies Act 2010 (NSW) (“Tenancies Act”) or to make a claim reliant on the terms of the said Act; and
iii)it was an express term of the residential lease between the parties that the tenancy ends by expiry of a properly given notice of termination served by the Commonwealth or by an order of the Residential Tenancies Tribunal, neither of which was alleged by the applicant nor has occurred.
With the exception of the last three words in the third of these points, the answer to each is that the application is not a pleading and the availability of the relief sought in the application must be dealt with on the basis of the evidence in the proceedings. The exception, namely that termination has not occurred under the residential tenancy agreement, is dealt with below.
c)They contest that letters sent to them by the Commonwealth’s property agents were lawful and effective notices of termination. The Commonwealth only relies on one notice. It is dealt with below.
There have been a number of proceedings brought by the Commonwealth against tenants and other occupiers of land in the vicinity of the Premises. The majority of those proceedings have fallen into two groups by reference to the length of time during which the tenants had been in possession of the land, namely, those who had been in possession for 20 years or more and those who had been in possession of the land for less than 20 years. Judgment has already been handed down in all of the first group of cases: see, for example, Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) v Rigney & Anor (No.3) [2015] FCCA 3133 (“Rigney”). These proceedings belong to the second group most of the proceedings in which were heard concurrently. Judgment in each of the matters heard concurrently has been handed down at the same time as judgment in this matter. I note that judgment in these matters was reserved before I handed down judgment in Rigney and the matters heard concurrently with it.
In spite of the differences between the two groups of proceedings, similar issues arose in both groups. For example, similar challenges were made in both groups of proceedings to the jurisdiction of this Court. Those challenges were dealt with extensively in the reasons for judgment in Rigney. For that reason, these reasons ought to be read together with my reasons in that matter.
Jurisdictional issues
I will first consider the jurisdictional issues. In order to do so, it is first necessary to outline the statutory framework the Commonwealth argues is relevant to these proceedings and then to deal with certain issues of fact.
The relevant statutory framework
As I explained in Commonwealth of Australia (As Represented By Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814 (“Hevers”) (one of the proceedings in the over 20 year group) subject to the jurisdictional challenges dealt with below, this Court has jurisdiction pursuant to s.10AA of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) in relation to Commonwealth tenancy disputes in which the Commonwealth is the lessor and a person other than the Commonwealth is the lessee. In exercising that jurisdiction in respect of land in New South Wales, the Court is to apply the Tenancies Act subject to some modifications and to the extent necessary to determine the dispute: Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (“Tenancy Disputes Instrument”), s.7.
A Commonwealth tenancy dispute includes a matter involving a lease, licence or other arrangement to possess, occupy or use land and a dispute about the termination of the lease, licence or other arrangement in which the Commonwealth is a party: FCCA Act s.5.
The Commonwealth argues that these proceedings involve a Commonwealth tenancy dispute. In order to understand the law that is to be applied in determining the dispute, it is necessary to have regard to the relevant provisions of the Tenancies Act.
Tenancies Act
The Tenancies Act relevantly commenced operation on 31 January 2011 and applies to residential tenancy agreements in respect of residential premises made before or after that date: s.6. “Residential premises” is defined to include any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence: s.3.
A residential tenancy agreement is an agreement under which a person grants to another person, for value, a right of occupation of residential premises for the purposes of use as a residence: s.13. An agreement may be a residential tenancy agreement for the purposes of the Tenancies Act even if the agreement does not grant a right of exclusive occupation, or grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities: s.13(3).
A residential tenancy agreement that is for a fixed term continues to apply after that term ends as if the term of the agreement were replaced by a periodic agreement and on the same terms as immediately before the end of the fixed term: s.18.
The critical provisions of the Tenancies Act are found in pt.5 and concern the termination of residential tenancy agreements. Importantly, s.81(1) provides that a residential tenancy agreement terminates only in the circumstances set out in the Tenancies Act. Division 2 of pt.5 (ss.84-95) makes provision for termination by the landlord. Section 84 provides:
84End of residential tenancy agreement at end of fixed term tenancy
(1)A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term.
(2)The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.
(3)The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4)This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended.
Section 85 deals with the termination of periodic agreements and provides:
85Termination of periodic agreement
(1)A landlord may, at any time, give a termination notice for a periodic agreement.
(2)The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
(3)The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4)This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
The Tribunal means the New South Wales Civil and Administrative Tribunal: s.3.
Section 83 of the Tenancies Act provides that, if the Tribunal makes an order terminating a residential tenancy agreement under the Act, it must also make an order for possession of the residential premises, specifying the day on which the order takes or took effect.
Tenancy Disputes Instrument
Sections 7 and 8 of the Tenancy Disputes Instrument are also important to the determination of the issues in these proceedings. They provide:
7 Law to be applied
(1)In determining a Commonwealth tenancy dispute involving land in New South Wales, the Residential Tenancies Act 2010 (NSW) and any regulations made under that Act are to be applied:
(a)to the extent necessary to determine the dispute; and
(b)subject to the modifications set out in section 8 of this instrument.
(2)The law mentioned in subsection (1) is the applicable NSW law.
8 Modifications of applicable NSW Law
(1)The applicable NSW law is to be applied as if:
(a)a reference to the Tribunal were a reference to the Federal Circuit Court of Australia; and
(b)a reference to the principal registrar of the Tribunal were a reference to a Registrar of the Federal Circuit Court of Australia; and
(c)a reference to the Sheriff, or to a sheriff’s office, were a reference to the Sheriff of the Federal Circuit Court of Australia.
(2)The Residential Tenancies Act 2010 (NSW) is to be applied as if it included the following section:
Despite anything else in this Act, if the Federal Circuit Court of Australia makes a termination order in respect of residential premises, the Court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord.
In very broad overview, the relevant effect of s.10AA of the FCCA Act and the Tenancy Disputes Instrument is that this Court has jurisdiction to determine an application by the Commonwealth, as landlord, for an order for termination (which includes an order for vacant possession).
Once it is established that a notice of termination has been served on the lessee, the Court must terminate the residential tenancy agreement. However, the date of vacant possession is still a matter for the Court’s discretion. Section 8(2) of the Tenancy Disputes Instrument amends the Tenancies Act so that the date for possession is the date that the Court considers appropriate.
Questions of fact relevant to the jurisdictional issues
I find the following facts, noting that, to the extent that any of them are controversial, my reasons for making the finding are set out further below:
a)the Commonwealth is the registered proprietor of the land comprised in folio identifier 1/838361 (“airport site”);
b)the Premises form part of the airport site;
c)the Odzics have occupied the Premises since January 2002;
d)on 27 November 2007 the parties entered into a residential tenancy agreement in respect of the Premises (“Agreement”);
e)the term of the Agreement was 52 weeks from 5 August 2008 until 4 August 2009;
f)that term has now expired;
g)the Odzics have been in continual possession of the Premises for less than 20 years;
h)the Premises are not predominantly used for non-residential purposes;
i)by letter dated 29 October 2014, the Commonwealth notified the Odzics that it will likely require them to vacate the Premises by June 2015;
j)on 26 November 2014, the Commonwealth served a Notice of Termination of the Agreement on the Odzics;
k)the Notice of Termination stipulated 15 June 2015 as the day on which the Agreement terminated and by which the Odzics were required to give vacant possession of the Premises to the Commonwealth; and
l)neither of the Odzics indicated that they were willing to vacate the Premises by that date and have remained in possession of the Premises.
Commencement of the Odzics’ possession of the Premises
The finding at [20](c) above requires some explanation. Kylie Blackwood, an agent for the Commonwealth, gave evidence that the Odzics took possession of the Premises in January 2002. Mr Odzic, on the other hand, said in his affidavit that they took possession in early 2001. However, Mr Odzic went on to say that, in agreeing to rent the Premises, he and his wife relied on a discussion that took place in December 2001. For that reason, even though I do not accept Mr Odzic as a truthful witness, the earlier date must have been a mistake. In any event, it does not matter which date is correct. What is important is that, on any understanding of the evidence, the Odzics have not been in possession of the Premises for 20 years or more.
Predominant use of Premises
The finding at [20](h) above deals with the Odzics’ first contention set out at [2] above. The relevance of that contention was explained in my judgment in Rigney at [8]-[23]. Briefly, the argument is as follows: first, the Tenancies Act does not apply to land that is predominantly used for agricultural purposes: s.7(h); secondly, the land which is the subject of these proceedings is predominantly used for the purposes of agricultural; and, thirdly, in those circumstances, the Court does not have jurisdiction in respect of the land.
The conclusion does not follow from the premises. As I explained in Rigney at [16], the only consequence of any conclusion that land is not governed by the Tenancies Act is that the Court must apply the common law to the dispute between the parties. In any event, the issue can be decided by reference to the second premise, namely the predominant use of the Premises.
Mr Odzic’s affidavit included the following evidence about the use of the Premises:
For the reasons which we have set out the predominant use of our land is other than residential, namely industrial and agricultural. We have a few sheep which we kill for meat and occasionally sell to make a little money, and sometimes 2 or 3 cattle to keep the grass down as well.
The only “reasons …set out” that can be gleaned from his affidavit are as follows:
Before we entered into occupation we told Bellero Real Estate (Marjorie Bellero) for the lessor that we owned farm equipment and came from another farm with tractors slashers, trucks, pumps, rotary hoes, fencing gates and containers and other farm equipment. We now have 7 containers in number on the land.
We have since 2001 built an excellent quality farm shed at a cost of $36,000 and placed 7 new containers worth $3000 each on the land storing some of the farm goods and equipment.
The land is 5 acres in area.
…
For the reasons I give below, I do not accept any of Mr Odzic’s evidence as truthful. Even if I did, I do not accept that his evidence establishes that the predominant use of the Premises is for industrial or agricultural purposes.
The precise question posed by s.7(h) of the Tenancies Act is whether the predominant use of the Premises is for the purposes of a trade, profession, business or agriculture. Industrial purposes are not one of the matters mentioned in the section. If Mr Odzic meant to say “business” purposes, the argument fails in any event. There is simply nothing to suggest any business purpose in the use of the Premises.
“Agriculture” is defined in the Macquarie Dictionary as the “cultivation of land, including crop-raising, forestry, stock-raising, etc.; farming”. Keeping farm equipment, even a large amount of farm equipment does not, in my view, amount to agriculture. There was no evidence that the Odzics used any of this equipment and, if so, for what purpose. The only agricultural activities that were referred to in evidence were the keeping of a few sheep and a few cattle. However, the cattle were, it seems, only there to keep the grass down. I am not satisfied that that activity was the predominant use of the Premises.
I considered the meaning of s.7(h) in Rigney and concluded:
[22]… In its context, there is no special meaning of the word “predominant”. Generally speaking, the predominant use of something is the main, prevailing or preponderant use of that thing. In an Act, the general concern is to ensure a balance between residential tenants and landlords. The exception in s.7(h) is clearly intended to capture premises that are mainly used for specific non-residential purposes such as business or agriculture. …
[23]The definition of “residential premises” assists in understanding this exception. Section 3 provides that “residential premises” means “any premises or part of premises (including land occupied with the premises) used or intended to be used as a residence”. This suggests that s.7(h) is not answered simply by arithmetic but rather, by qualitative analysis. …
Applying a qualitative analysis to the evidence in this case, it cannot be said that keeping a few sheep and a few cattle was the predominant use of the Premises. Rather, they are used predominantly as a home for the Odzics and their two children.
Service of Notice of Termination
The Odzics also contended that they have not been validly served with a notice of termination (cf. my finding at [20](j)). There are two aspects to this contention. The first, which appears in the Odzics’ response, is that the notices they were given did not amount to notices of termination. That is the only contention of which the Odzics gave any notice and it is dealt with further below. The second, which appeared for the first time in the written submissions filed by them on 14 December 2015, is that service of the notices was not proved. Instead, it is argued, the Commonwealth has only established service of an envelope. I reject that contention for the reasons outlined immediately below. I note in passing that, at [27] of his submissions Mr King stated that the Commonwealth “had complete notice” of the respondents’ case. That is clearly not correct.
First, Ms Blackwood, for the Commonwealth, gave evidence that Michael Guest, a licensed process server, served the respondents with a termination notice dated 24 November 2015. That evidence was not objected to and she was not cross-examined on it.
Secondly, Mr Guest swore an affidavit that he was given a number of envelopes by Vivienne Li and Joe Khayo of Wise McGrath, a firm of real estate agents. There were no objections to this affidavit and he was not required for cross-examination. Amongst those envelopes was one addressed to the Odzics. He says that he was instructed to “attempt to serve the envelopes at the addresses marked on the front of each envelope.” He says that he then “served the envelopes at the addresses marked on the front of each envelope as described in” his previous affidavits of service. Mr Guest’s previous affidavit in relation to the Odzics was sworn on 1 December 2014 and was not objected to. In that affidavit he stated that he delivered the notice of termination “by delivering the same to Stojan Odzic personally at 1932 Elizabeth Drive, Badgerys Creek in the State of New South Wales.” He said that he had the following conversation:
“Are you Stojan Odzic?” He replied “Yes.” I said “I have an envelope for you and Melitta Odzic”. I then handed him the envelope.
This conversation was not denied by the Odzics and they did not give evidence of the contents of the envelope.
Thirdly, Ms Li swore an affidavit saying that Dinesh Thambyrajah, another employee of Wise McGrath, returned to the Castlereagh Street office with a bundle of sealed envelopes that he had collected from Australian Government Solicitors. She then said that she and Mr Khayo divided the envelopes into three piles and gave one pile to each of three process servers including Mr Guest. There were no objections to her affidavit and she was not required for cross-examination.
Fourthly, Sarah Alderson affirmed an affidavit about the preparation of the envelopes. She said in her affidavit that she prepared affidavits for everyone whose name appeared on a list attached to her affidavit. The Odzics were on that list. There was one envelope for each tenant, pair or group of tenants. Each envelope was labelled with the address stated for the relevant tenant. On 24 and 25 November 2014 she inserted into separate envelopes, addressed respectively to each tenant or tenants, the notice of termination addressed to the relevant tenant or tenant. Those notices were annexed to the affidavit and included one addressed to the Odzics. Ms Alderson verified that each notice of termination was addressed to the same person or persons and contained the same address as the name and address appearing on the envelope before placing the notice in the envelope. She then sealed the envelope. On 25 November 2015 she saw all the envelopes prepared by her being collected by Mr Thambyrajah. There was no objection to any of this evidence.
Ms Alderson was cross-examined but it was never suggested to her that what was contained in her affidavit was not correct.
Counsel for the respondents now complains that Ms Alderson did not “evidence the envelope to the Odzics by attaching a copy to the affidavit in the usual way, and there is only hearsay evidence of the existence of such envelope with the address of the Respondents upon it.” That submission is rejected. Ms Alderson’s evidence was not hearsay. She prepared the envelopes. In any event, it was not objected to, no doubt in light of s.70 of the Evidence Act 1995 (Cth).
I find on the basis of that evidence that Mr Odzic was given an envelope with a notice of termination in it and by extension, that Mrs Odzic was given or served with a notice of termination pursuant to sub-s.223(1)(ii) of the Tenancies Act. The Odzics’ other arguments about the effectiveness of the service are dealt with below.
Resolution of jurisdictional issues
The jurisdictional questions, including those relying on aspects of the Constitution, were the same as those argued in Rigney. The parts of the judgment in Rigney dealing with the jurisdictional questions ([58]-[116]) are to be read together with and as part of these reasons. That case relied, in turn, on the decision in Hevers. The respondents in this case did not argue that Hevers was clearly wrong and have not satisfied me that their matter is relevantly distinguishable. On that basis, I am bound to apply it.
Before dealing with the particular questions that arise for determination, it is necessary to deal with one written submission made by counsel for the respondents. In his submissions filed on 14 December 2015, that is, almost one month after the hearing and after two extensions of time were granted to him to do so, he wrote the following:
There is a strange aspect to the proceedings, highlighted by Henderson’s Case which makes it clear that, for no sensible explanation the lessor has decided to sue the Respondents in its own courts [the Federal Circuit Court] giving rise to the public impression offensive to most lawyers that it is some sort of kangaroo court more favourable to the Commonwealth.
The reference to “Henderson’s Case” is to Re Residential Tenancies Tribunal (NSW) and Henderson; Ex Parte Defence Housing Authority (1997) 190 CLR 410. The issue in that case was whether the Residential Tenancies Tribunal of New South Wales (“Tribunal”) had jurisdiction over the Defence Housing Authority (DHA), a Commonwealth body established under a Commonwealth Act. The DHA sought to prohibit the owner of premises leased to the DHA and the Tribunal from proceeding with the hearing of an application by the owner with respect to those premises. DHA failed for reasons which are not necessary in the circumstances of this matter to explore. It suffices to say that the issues in the proceedings were the polar opposite to those in this case: the Commonwealth is not seeking to restrain proceedings brought by a landowner in a state Tribunal, but is bringing proceedings as landlord in a Federal Court constituted under Ch.III of the Constitution. The suggestion that the legislation that purports to give this Court jurisdiction thereby suggests that this Court is a “kangaroo court” is not one that can sensibly be made by any lawyer, let alone one who purports to have some expertise in constitutional law. I note that another of Mr King’s clients, Mr Shirvington, made a similar submission in other proceedings: see Rigney at [29]. It may be understandable for a non-lawyer to do so. It is neither understandable nor excusable for a barrister to repeat the submission without any comprehensible justification.
The questions set out below were adapted from the respondents’ response and submissions in this matter and in Rigney, as best as they could be understood. I am not satisfied that the questions to be asked, or their answers, are any different to the ones set out in Rigney. Those questions and the answers to them are set out below:
1)Was there, at the date of the application, a matter within the meaning of Constitution Chapter III and s.5 of the FCCA Act which the Court is required to resolve?
Yes.
2)Was it beyond the power of the Parliament under the Constitution to make the 2015 Commonwealth tenancy law or the March 2015 Tenancy Instrument to confer upon this or any Chapter III court the power to resolve the alleged dispute the subject of the application in that it impairs the separation of powers principle in the Australian Constitution?
No.
3)Was there any power under Constitution s.51 for the Parliament to make a law with respect to the land of the Respondent imposing the operation of the 2015 Commonwealth tenancy law and the March 2015 Instrument?
Yes.
4)Assuming the 2015 Commonwealth tenancy law is valid, is the March 2015 Instrument unauthorised and ultra vires?
No.
5)Is the 2015 Commonwealth tenancy law invalid by reason that it impairs the Constitutional guarantee against acquisition of property except on just terms as contained in s.51 (xxxi) of the Constitution?
No.
In regard to the first question, I note the contextual differences that arise from the fact that s.85 is applicable, rather than s.94 of the Tenancies Act. As I have noted above, the issues that arise in respect of tenancies where the lessee has been in possession of the land for less than 20 years are different to those in possession of the land for over 20 years. In this case, the respondents have put in issue whether, as a matter of fact, a termination notice was given to them. That is an existing controversy which, when decided by the Court, will determine the respective rights of the Commonwealth and the Odzics. For that additional reason, I have concluded that there is a “matter” within the meaning of the Constitution and s.5 of the FCCA Act. For those reasons, the jurisdictional challenges fail.
Consideration of substantive issues
In light of the statutory scheme outlined above, the first step in the resolution of these proceedings is to determine whether the duty to make a termination order arises. In essence, that requires consideration of whether a notice of termination has been given in terms required by the Tenancies Act and whether Mr and Mrs Odzic have vacated the property as required by the notice. The second step is to determine what the appropriate date is for vacant possession to be given. This involves some balancing of the parties’ interests. Part of this consideration could also involve the application of s.114 of the Tenancies Act to suspend the date of the order for vacant possession.
It is necessary, then, to turn to each relevant consideration.
Notice of termination
The Premises are part of the land comprised in certificate of title folio identifier 1/838361 of which the Commonwealth is the registered proprietor. Mr and Mrs Odzic came into possession of the Premises in early 2001. On 27 November 2007 they entered into the Agreement in respect of the Premises with the Commonwealth. The term was for 52 weeks beginning on 5 August 2008 and ending on 4 August 2009.
Another term of the Agreement was that at the end of that term the tenant could stay in the residential premises at the same or increased rent but otherwise under the same terms unless or until the agreement was ended in accordance with the Residential Tenancies Act 1987 (NSW). In other words, at the end of the term, the agreement continued as it had before but without any fixed term. For that reason, it was a “periodic agreement” within the meaning of the Tenancies Act at least from the commencement of the Tenancies Act in 2011: s.3. Further, the effect of s.18 of the Tenancies Act is that a fixed term agreement that continues after the day on which the fixed term ends, continues to apply as if the term of the agreement were replaced by periodic agreement.
As Mr and Mrs Odzic had not been in continual possession of the property for 20 years or more, s.85 of the Tenancies Act applied to the termination of the Agreement by the Commonwealth.
A termination notice under the Tenancies Act must set out the following matters: first, the residential premises concerned; secondly, the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given; thirdly, if the notice is not given under ss.84, 85, 96 or 97, the ground for the notice; and fourthly, any other matters prescribed by the regulations, in this case the Residential Tenancy Regulations 2010 (NSW). The termination notice must be in writing and be signed by the party giving the notice, or the party’s agent, and a termination notice for a periodic agreement may specify a day other than the last day of the period for the payment of rent as the termination date: s.82.
The Notice of Termination in this case was dated 24 November 2014 and served on the Odzics at their home on 26 November 2014. It correctly identified the Premises, set out the day on which the agreement was to be terminated (15 June 2015) and the date on which vacant possession of the Premises was to be given, being the same date as the date of termination. It was in writing and signed by an agent for the Commonwealth. There were no relevant regulations.
The Odzics argue that the notice was not “given” in accordance with sub-s.223(1)(a) and s.85 of the Tenancies Act. First, they say that, at most, the notice was in an envelope and “left at the address”. Secondly, they say that no attempt was made to serve the termination notice on Mrs Odzic at all. I have already considered and rejected those arguments at [31] – [39] above. They say (inconsistently with their earlier argument) that s.223 of the Tenancies Act does not apply to notices required to be served “by this Act” but only to notices served under a residential tenancy agreement. That is simply wrong. The chapeau to sub-s.223(1) provides:
A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by: …
(Emphasis added)
The Odzics next argue that Mr Guest’s affidavit refers to a table but that there is none. They are wrong. The table is on the second page of the affidavit and includes their names.
The final argument in relation to service is that service was required by the FCCA Act not the Tenancies Act “as it is the former upon which the lessor moves not the latter”. As I have explained earlier, the FCCA Act gives jurisdiction to this Court. An instrument made under the FCCA Act then stipulates the law that is to be applied in the exercise of that jurisdiction. The law to be applied is the Tenancies Act. I reject the respondents’ argument in this respect. I would, in any event, have been satisfied that, by handing the envelope to Mr Odzic for both him and Mrs Odzic, the agent of the Commonwealth “gave” the document in the envelope to both of them.
In those circumstances I am satisfied that a notice of termination was given to both Mr and Mrs Odzic in accordance with the requirements of the Tenancies Act.
Have Mr and Mrs Odzic vacated the premises as required by the notice?
In his affidavit affirmed on 15 November 2015, Mr Odzic stated that he and Mrs Odzic lived at the Premises with their two children. On the basis of that evidence, it is clear that they have not vacated the Premises as required by the notice of termination.
For those reasons, the matters in sub-s.85(3) of the Tenancies Act have been established and the residential tenancies agreement between the parties must be terminated.
The appropriate date on which vacant possession is to be given to the landlord
In considering this issue, it is convenient to deal first with the Commonwealth’s case before turning to the individual circumstances of Mr and Mrs Odzic.
The Commonwealth’s case
In the late 1980s and 1990s the Commonwealth undertook a land acquisition program in the Badgerys Creek area to acquire and reserve the land needed for an airport in Western Sydney. The acquisition program resulted in the acquisition by the Commonwealth of a large number of individual titles in the suburbs of Badgerys Creek, Luddenham and Greendale.
A 2012 Joint Study on aviation capacity in the Sydney region, commissioned jointly by the Commonwealth and NSW Governments, identified that the demand for passenger journeys in the Sydney region was forecast to more than double over the next 20 years and to double again by 2060.
On 15 April 2014, in a joint release with the then Prime Minister Tony Abbott, the Minister for Infrastructure and Regional Development, Warren Truss, announced that the site for Western Sydney’s new airport would be Badgerys Creek. He announced that, although the airport would not be fully operational for a decade, planning for the new airport would start immediately and construction should start in 2016. He also said that, because of the time it takes to plan and build an airport, the Government’s approach would be to build the roads first and the airport second. It was envisaged that most of the cost of the airport would be met by a private sector operator. Mr Truss also stated that the airport “would be good for economic growth and good for jobs both in Western Sydney and nationally”.
The evidence in respect of the development of the site for the airport was given on behalf the Commonwealth by Peter Robertson, a General Manager at the Department of Infrastructure and Regional Development. He is one of three Senior Executive Service staff members managing the proposed Badgerys Creek airport project and has been engaged on it since the establishment of the Western Sydney unit which is tasked with the management of the proposed airport. Mr Robertson is responsible for management of policy development for the project and project timeframes.
In an affidavit affirmed on 26 June 2015, Mr Robertson set out a number of reasons why vacant possession was urgently required by the Commonwealth. These reasons can be summarised as first, to enable the Commonwealth to comply with its project timetable; secondly, the growing incompatibility of continued residential accommodation with the ongoing investigation and demolition works both in terms of cost and delay impacts on the work at the site; and, thirdly, concerns as to the safety and security of the remaining tenants and the site.
Mr Robertson explained that planning for an airport requires substantial on-site technical work including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants.
In light of the occupation of parts of the site by the remaining tenants, the work had either been tailored to parts of the site of which the Commonwealth had possession, or, alternatively, the Commonwealth had to liaise with tenants to ensure that testing could be conducted safely without unnecessary disturbance. Mr Robertson explained that the additional work and costs that had resulted from working around tenants had been “considerable”, although he did not give any further detail in that respect. Notably, his evidence did not deal directly with the part of the site on which the Premises is located. Indeed, his evidence was that the planning, assessment, site management and preparation activities for the airport site were being undertaken on a “whole of site” basis for all of the land to be included in the airport site.
Mr Robertson described the process for accessing residential tenant blocks as being “extensive and time consuming”. The steps usually followed in accessing residential properties were:
a)Identify sites for access: contracted specialists would identify access requirements for all specialist investigations on the site and then submit a request for access to the Department. That request would then be reviewed by the Department in considered consultation with the property manager. Alternative access options would be identified, should there be tenancy considerations.
b)Seek consent from tenants: once the final list of survey sites was determined then the Department would liaise with existing tenants by way of letters prepared by lawyers and follow-up telephone calls.
c)Where tenants refuse access: a new survey site would need to be identified in accordance with the previous steps.
d)Finalise access to sites: when tenants are notified and consent is received, the lists of sites for access is finalised, mapped and sent to contracted specialists to be given to the survey team.
e)Access to sites on the day of investigations.
Mr Robertson explained that the constant requirement to seek consent might have an effect on the project’s timeframes and generated substantial costs with uncertainties relating to access causing “serious obstacles to planning, delay and costs for work on site”.
Mr Robertson stated that a minimum of 9 to 12 months was expected to be required to clear the Badgerys Creek site and that that timeframe was only achievable with multiple contractors working concurrently on the site with limited unfavourable weather. The expectation was also based on the assumption that there were multiple structures requiring demolition on 182 remaining properties after June 2015.
The entire site has now been declared as an airport site under the Airports Act 1996 (Cth) by operation of the Airports Legislation Amendment (2015 Measures No. 1) Regulation2015 (Cth) which was registered on 24 July 2015. Further, the Airports Amendment Act 2015 (Cth) came into force on 30 June 2015. That Act introduced provisions for a planning instrument for what is referred to as the Sydney West Airport (that is, the airport that is proposed to be developed on the airport site).
In an affidavit affirmed on 10 August 2015, Mr Robertson explained that one of the consequences of that declaration was that airspace could now be declared to aid in the prevention of any incompatible development taking place around the airport site that might limit its potential development as an airport.
As at 6 August 2015, 68 of an estimated 233 properties had been demolished, and a further 33 properties had been allocated for demolition to be completed before mid-September 2015, weather permitting. Mr Robertson said that there were still approximately 165 properties requiring clearance of structures and that only 45 of the 165 properties were available for demolition. Over 45% of the properties on site that require demolition had been cleared of structures. Further, 103 of an estimated total of 163 tenants had vacated the site, noting that some tenants have occupancy arrangements over multiple properties.
In his affidavit of 22 October 2015, Mr Robertson gave evidence that, as at that date, 117 of an estimated 163 tenants had vacated the airport site and that, once the airport site was vacated and the demolition program completed, it would be significantly easier and less costly to secure the whole site. He also said that a draft Environmental Impact Statement and draft Airport Plan had been released for public comment on 19 October 2015. The Environmental Impact Statement was expected to be finalised by June 2016 which would then allow for the Airport Plan to be determined. The determined Airport Plan will authorise Stage 1 development of the proposed airport to occur.
Mr Robertson was cross-examined on his affidavits. He accepted that his statement that the airport site was becoming increasingly derelict was a bit strong but his evidence was otherwise unaffected. I found that he gave truthful evidence at the hearing and I accept all of what he said then and in his affidavit.
I note that the Agreement between the parties contained a special condition, cl.42.1 that stated: “The tenant acknowledges that the premises form part of the proposed site for Sydney West Airport”.
On 29 October 2014 a letter was sent to Mr and Mrs Odzic (at the address noted in the Agreement) by the Commonwealth’s agent Preston Rowe Paterson (PRP) which relevantly informed him:
The Australian Government on 15 April 2014 announced that land owned by the Australian Government at Badgerys Creek will be the site for Western Sydney’s airport. I am writing to provide information about what this decision means for you, as an occupant on the Australian Government owned land at Badgerys Creek.
…
Since the date of acquisition, the land has been owned by the Australian Government in anticipation of a future decision on the location of an airport. The Government has now made that decision. The Government has recently commenced consultation with the Sydney Airport Group about developing and operating an airport at Badgerys Creek.
To implement the Australian Government’s decision, all properties on the site, including the property you occupy, will need to be vacated. …
In the coming weeks, you will receive a formal notice of termination of your tenancy. That notice will provide a specific date by which you will be required to vacate the property. It is likely that this date will be in June 2015 - but it will not be earlier.
…
The letter invited Mr and Mrs Odzic to contact a Wendy Salkeld by email or phone to discuss the contents of the letter or if they had any questions about the process.
On 24 November 2014, PRP issued a Notice of Termination addressed to Mr and Mrs Odzic (at the address noted in the tenancy agreement) together with a checklist outlining tenants’ obligations when vacating premises. The Notice of Termination and accompanying checklist were given to Mr Odzic on 26 November 2014 by a licensed process server.
The Notice of Termination notified Mr and Mrs Odzic:
The Commonwealth hereby gives you notice under section 85 of the Act [Tenancies Act]:
1)terminating the Tenancy Agreement in respect of the Premises on 15 June 2015 (the Termination Date); and
2)that You are required to give vacant possession of the Premises to the Commonwealth by the Termination Date.
(Emphasis in original)
Information was provided with the Notice of Termination which included an invitation to Mr and Mrs Odzic to contact PRP if they had “any questions or wish[ed] to clarify anything on the checklist”.
On 10 June 2015 a letter was sent to Mr and Mrs Odzic (at the address noted in the Agreement) by PRP which reminded them of the requirement to vacate the Premises on or before 15 June 2015 and informed them that if they failed to do so, the Commonwealth “will apply to the Court for an order for possession of the property in accordance with the law”. The letter enclosed a document entitled “Vacate Information for Residential Tenants on Commonwealth-owned Land at Badgerys Creek”. This included information about the initiation of court processes should Mr and Mrs Odzic fail to leave by the required vacancy date.
Mr and Mrs Odzic have not given vacant possession of the Premises.
The Respondent’s case
The Odzics relied on a number of matters in support of the argument that the Court should refuse the Commonwealth’s application. I have found that the Odzics were given a termination notice and, as a consequence, there is no discretion as to whether or not to make a termination order: Tenancies Act s.85. In their written submissions, the Odzics argue that there is discretion to refuse to make a termination order. They rely on the word “if” in sub-s.81(3) and s.188 of the Tenancies Act. Reliance on those provisions is misplaced.
Sub-section 81(3) provides that “a residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.” The reference to Tribunal is a reference to the Court in these circumstances. This provision says nothing about the power of the Court to make a termination order. Section 188 of the Tenancies Act provides:
The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders:
a)an order that the Tribunal may make under this Act,
b)an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings,
c)any ancillary order the Tribunal thinks appropriate,
d)an interim order.
That provision says nothing about the power of the Court to make a termination order. Section 85 on the other hand is clear. Section 85(3) says that the Court:
… must, on application by a landlord, make a termination order it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(Emphasis added)
There is no ambiguity in the word “must”. It means that, if the Court is satisfied of the relevant matters there is only one decision that can be made, namely, the making of a termination order.
However, I have considered the Odzics’ arguments on the basis that they might inform the question of the appropriate date by which vacant possession of the Premises ought to be given to the Commonwealth.
The first matter relied on by the Odzics was an alleged conversation in December 2001 with the then agent for the Commonwealth. According to Mr Odzic, the following representations were made to him during this conversation:
a)‘You would have at least 20 years from 2001 to remain in their premises at Lot 1 later changed to 1932 Elizabeth Drive Badgerys Creek’;
b)‘The airport to be referred to in lease documents will not be built until the earliest 2020’;
c)‘You will not be evicted for 20 years so long as you come into possession now as you are the sort of good tenants the Commonwealth wants and so long as you paid rent on time you will be able to remain’;
d)‘The Commonwealth is prepared to allow us at least 20 years of possession of the land as tenants’;
e)‘You will have at least 12 months to vacate the premises if the Applicant should ever give notice to vacate the land occupied by us’.
f)She also showed us 3 farms to inspect and said that they are finding hard to get good tenants.
(Errors in the original)
Mr Odzic then stated that he and Mrs Odzic relied on those representations by entering into the lease and later leases to the same effect and by “purchasing buildings and equipment for the land and thereafter using and possessing same [sic]”.
Mr Odzic was cross-examined on his affidavit. He was not an impressive witness. When it was suggested to him that it would in fact be difficult to remember exactly a conversation that had taken place over 14 years earlier, he explained that he had it in writing. He then said that that recount was in a letter that was sent (presumably to the agent). When he was challenged on this evidence, he changed his evidence, saying:
When you negotiate to do business with somebody or do something seriously, you remember, and we did have a back-up in my diary.
Mr Odzic next agreed to the suggestion that he paid very careful attention to agreements that he reached including commercial agreements that he signed. However, when he was taken to the copy of the Agreement which he had signed, he said that he did not know much about it, that the agent said “sign it and go” and, he said, that is what he and his wife did.
Mr Odzic’s evidence under cross-examination establishes, in my view, that he had fabricated his evidence about the representations made to him. It appeared to me that he gave whatever evidence suited his case and, when challenged on any aspect of that evidence, he changed it again to suit his case. I formed the view at the hearing that he was not telling the truth in the witness box and I do not accept any of his evidence apart from the fact that he lives on the Premises with his wife and two children. In arriving at this conclusion, I have taken into account the gravity of such a finding: sub-s.140(2)(c) of the Evidence Act 1995; Briginshaw v Briginshaw (1938) 60 CLR 336; Saad v Fares [2015] NSWCA 385.
Mrs Odzic did not give evidence.
For those reasons there is no foundation for the Odzics’ claim that a proprietary estoppel has arisen in their favour.
The Odzics next claim is that, if forced to move, they would lose the investment in the land (which he estimates as being in excess of $40,000) and would cost $10,000 to move (considerably less than the $600,000 referred to in the Odzics’ response). I reject the claim that they have made any investment in the land because I do not believe Mr Odzic’s evidence. Further, I find that any amounts spent by the Odzics on or in respect of the Premises were spent with full knowledge of the fact that they were tenants of the land and that there was a real possibility that they would be required to vacate the land in the event that the Commonwealth decided to use the land for other purposes including for an airport.
The third argument is that they are “relatively aged” and do not wish to move for the sake of their health and family. There was no evidence about the health of either the Odzics or their children. While it might be understandable that they do not wish to move, the fact that they must move is a consequence of being given a termination notice.
The fourth argument is that there is no urgency because the Commonwealth has given a 99 year right of refusal to open or use the site as a commercial airport to Macquarie Airports. There was no evidence of a 99 year right of refusal. In cross-examination, Mr Robertson was asked by Mr King about a “right of first refusal”. This appeared to have been a right granted to Southern Cross Airports Corporation Limited in the agreement for the sale of the Sydney Kingsford Smith airport. However, a right of first refusal is different to a 99 year right of refusal. While, taken at that level of generality, the latter could readily be used to prevent the development of an airport at Badgerys Creek, it is difficult to understand how the former could so be used.
A similar argument was made to the effect that there was no pending commercial requirement for the orders for termination for over 12 years and that there was significant doubt as to the true purpose of the lessor in applying for the orders sought. The Odzics speculate that “it is entirely possible, commercially speaking, that the lessor has a development purpose in dispossessing the Odzics and the other Respondents by making a large profit out of the ‘hollow log’ through sales to property developers of the valuable land at Badgerys Creek and Luddenham.”
Reference is made in the Odzics’ written submissions to “extensive documents” but none of those documents is specifically addressed in those submissions. In my view, nothing in the material before the Court supports the Odzics’ arguments. In particular, nothing undermines the strength of Mr Robertson’s evidence. I will deal briefly with the documents that could possibly be the subject of the Odzics’ submissions. Those documents are contained in a folder tendered in all of the matters heard concurrently and, in particular, are behind tab 2 of that folder.
The first document (pp.1-4) is unidentified and undated. It refers to two matters: first, it refers to “greenfield airports” and seems to give estimates of timelines for development and construction. Secondly, it sets out various suggested responses to various scenarios concerning Sydney (Kingsford Smith) Airport. None of this is inconsistent with Mr Robertson’s evidence that development of the airport will take some time, but that delay in vacating the site will have significant impacts.
The second document (pp.5-8) is a news report dated 15 April 2014. It sets out what it calls the “chequered history” of the proposal to develop an airport at the Badgerys Creek site but does not support the respondents’ contentions.
The third document (pp.9-55) sets out a very detailed chronology of the airport proposal. There are two versions: 29 June 1998 and September 2003. As such, these are matters of some historical interest. Nothing in them suggests that the current proposal is not bona fide.
The Odzics also refer to the fact that there are two other airports with capacity in Sydney and the fact that a number of other things must be done in order to develop the airport (including development approvals, master plans, airspace plan, the resumption of other properties, and road upgrades) to argue that there is no current need for possession of the land. Once again, none of these matters is inconsistent with the evidence of Mr Robertson. It is plainly the fact that an airport is not built overnight, at least in this country. That is not to say, however, that this means that there is no current need for vacant possession of land that will be within the site of the proposed airport.
The fifth argument is that there are no suitable or available alternative similar leaseholds in the region of Badgerys Creek. There is, however, no evidence to support this argument. Mr Odzic stated in his affidavit that they had been searching for alternative premises since October 2014 but had been unable to locate anything suitable. He also stated that, since March 2015 there were big crowds of people at any available properties with many of them being Badgerys Creek residents. I reject this evidence for the reasons I have given about Mr Odzic’s credit. In any event, the evidence is so general as to be unhelpful.
The folder of material referred to at [97] above included some documents relevant to the availability of accommodation in the Greater Western Sydney region. The first of those documents related to community housing. Mr and Mrs Odzic did not give any evidence about their financial circumstances other than that they were employed. For that reason, the availability of community housing is not relevant to their circumstances. The second group of documents consists of advertisements for rental accommodation that seem to have been downloaded from an online real estate website. However, they do not establish anything relevant other than that, at certain dates the properties shown in the advertisements were available for rent for particular amounts. There is no evidence that these were the only properties available, or what properties were available at other times or in other locations. None of this material carries any weight.
The sixth argument relied on by the Odzics is that the Commonwealth has offered them no compensation for the loss of their lease, the property affixed to it or for the costs of complying with the eviction notice. No basis was given in evidence or submissions for any right to compensation and, in any event, it is difficult to understand how such a right might affect the determination of an appropriate date by which vacant possession of the Premises must be given. That is particularly so in the absence of any evidence about the Odzics’ financial means.
The seventh argument concerns the proper parties to the proceedings. Mr Odzic says in his affidavit that “we paid the rent on the basis referred to above and that all four of us were in joint occupation of the land, i.e. as a family.” I reject that evidence for the reasons I have already given. Further, to the extent that the Odzics rely on this to suggest that their children are co-tenants, that reliance is misplaced. The Tenancies Act has specific provisions dealing with co-tenancy (see, for example, ss.10, 77 and 78). None of those provisions applies on the evidence in this case.
The eighth argument is that, as there was an express provision in the Agreement in relation to termination, the rights of the parties are governed by that clause. Clause 42.2 of the Agreement provides:
In the event that the Commonwealth of Australia requires vacant possession of the premises:
b)to develop the Sydney West Airport; or
c)for any other purpose
the landlord may terminate this Agreement by serving on the tenant written notice expiring six months from the date of the notice or on expiration of the fixed term (whichever is the earlier);
…
The argument is that the evidence did not establish the right to serve a notice under this provision. In particular, it was argued as I understand it, that in order for there to be a right of termination the Commonwealth had to require vacant possession and that there could be no such requirement without a decision of the Minister, Mr Truss. In the absence of evidence of such a decision there could be no requirement and so no right to terminate. I reject this argument.
First, the Agreement is subject to the Tenancies Act so that any termination must take effect under Part 5 of that Act. Indeed, the Odzics make this very point later in their submissions. Second, the evidence of Mr Robertson is that the Commonwealth “requires vacant possession of the premises”. This meets the condition precedent to the right of the Commonwealth to terminate the Agreement by six months’ written notice. Clause 42 does not refer to any decision of the Minister.
A related argument is that, cl.8 of the Agreement requires a party to apply to the Tribunal in order to terminate the Agreement, no such application has been made, and so the Agreement cannot be terminated. Clause 8 says no such thing. It relates to the use of the Premises. Note 8 in the Agreement does refer to applications to the Tribunal for terminations orders, but it only reflects the provisions of the Tenancies Act.
The ninth argument is that, because the termination notice was served before the introduction of s.10AA into the FCCA Act, it was not effective for the purposes of the Commonwealth law. Mr King’s written submissions were that the effect of the Commonwealth law was to repeal the State law with respect to leases at Badgerys Creek. The only support for that argument, however, was a reference to s.9 of the Acts Interpretation Act 1901 (Cth). That section was repealed in 2011 by the Acts Interpretation Amendment Act 2011 (Cth).
The Odzics also argue that, to allow the Commonwealth to rely on the notice of termination would be give retrospective operation to s.10AA the FCCA Act. That is not so. An Act does not have retrospective application simply because it requires consideration of past events. Further, just because notice was given “under” the Tenancies Act before this Court has jurisdiction in relation to Commonwealth tenancy disputes does not mean that it was not given “under” the Act once the Court did have that jurisdiction.
In short, the Odzics have presented no real basis to oppose the Commonwealth’s application.
Conclusion
Having considered the circumstances of this case as outlined above, I am satisfied that the appropriate date on which Mr and Mrs Odzic are to give vacant possession of the Premises is 28 December 2015, but that the order for vacant possession should be suspended until 25 January 2016 on the basis of the following reasons.
First, I fully accept the general importance of the development of a further airport in Sydney for both the economic and social wellbeing of this state, if not, this country.
Secondly, significant time, effort and money has already been put into preparation of the site for the future development of the airport and the continued presence of tenants on the airport site is to increase the amount of costs likely to be incurred by the Commonwealth in that development.
Thirdly, the safety of individual tenants will diminish as more and more tenants vacate the site.
Fourthly, Mr and Mrs Odzic have been on notice since at least the beginning of the current residential tenancy agreement of the possibility the land in Badgerys Creek will be used as an airport and the consequent need for them to give vacant possession to the Commonwealth for that purpose.
Fifthly, in fixing that date, I have taken into account the time of year, even though that was not addressed by any of the parties.
The Commonwealth sought orders for the issue of warrants for possession. In my view, the basis on which it sought those orders was unclear. The Tenancies Act makes provision for the issue of warrants (s.121) and, if it is necessary to do so, there is nothing preventing the Commonwealth from making use of those provisions.
For those reasons, I make the following orders:
(1)The residential tenancy agreement in relation to the premises at 1932 (formerly Lot 11) Elizabeth Drive, Badgerys Creek NSW 2555 comprising folio identifier Lot 11 DP 226448 (“Premises”) 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.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 21 December 2015
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