Commonwealth of Australia (As Represented By the Department of Infrastructure and Regional Development) v Shirvington

[2015] FCCA 1270

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v SHIRVINGTON [2015] FCCA 1270

Catchwords:
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – interlocutory application – application for an injunction restraining the applicant from various matters – no real or imminent threat that applicant will act inconsistently with its obligations under the Residential Tenancies Act 2010 (NSW) – application for interim injunction refused.

Legislation:

Residential Tenancies Act 2010 (NSW), ss.51, 52, 94(4)

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

Respondent: KEN SHIRVINGTON

File Number: SYG 648 of 2015

Judgment of: Judge Smith

Hearing date: 1 May 2015

Date of Last Submission: 1 May 2015

Delivered at: Sydney

Delivered on: 1 May 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Doyle & Mr D.W. Rayment

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr P. King

ORDERS

1. The application for an interim injunction filed by the respondent on 27 April 2015 be dismissed.

2. There be no order as to costs in relation to order 1.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 648 of 2015

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

Applicant

And

KEN SHIRVINGTON

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. In this matter, the applicant Mr Shirvington applies for an interim injunction restraining the Commonwealth from various matters. The orders are aimed at ensuring that the rights of Mr Shirvington under div.3 pt.3 of the Residential Tenancies Act 2010 continue up until the determination of this matter. Those rights include right to quiet enjoyment, use of the premises by the tenant and the general obligations under ss.51 and 52 of the Residential Tenancies Act.

2. Mr Shirvington relies upon two affidavits for the proposition that he has a reasonable apprehension that breaches of those rights are likely to occur if an injunction is not granted. Included in those are statements in an affidavit of the 17 April 2015 that he had been informed by his daughter Simone, and other residents of Badgerys Creek, that a property manager for the Commonwealth had said to residents in the area regarding present evictions from the Badgerys Airport area owned by the Commonwealth:

   … if you do not sign to collect your paperwork or are not out by 16 June, the Commonwealth and its agents will blacklist you and you will not be able to rent another property.

3. Mr Shirvington says he was also informed by another person that:

   If you do not vacate by 16^th June, the Commonwealth will cut power and water to the properties and stop garbage removals by the local government.

4. In another affidavit, Mr Shirvington says that he is disturbed about the amount of building materials being dumped on local roads and that asbestos had been left in damaged houses and that a number of residents in the area had received threats from the property manager to whom I have just referred, including:

   If you do not go voluntarily you will all be worse off if you do not cooperate by leaving now, you will be stopped from getting any lease in this part of Sydney.

5. Against that material is the plain fact that the Commonwealth has brought these proceedings in this Court seeking the determination of long term tenancies in the area in which Mr Shirvington is a tenant of a Commonwealth property. One of the matters that the Court has been asked to determine is the date on which vacant possession is to be given in which, according to s.94(4), is to be no earlier than 90 days after the date the order was made. Although there is some dispute about the jurisdiction of this court under the Residential Tenancy Act, for the purposes of the present application I will assume that I do have such jurisdiction and certainly that is the assumption that appears to be the basis of the application by the Commonwealth.

1. It is on the basis of that that I see that there is no real, certainly no imminent threat that the Commonwealth will exercise any of its rights as the landlord of the property upon which Mr Shirvington is the tenant which is inconsistent with his rights under the Residential Tenancies Act.  For that reason alone, I would refuse to grant any interim injunction.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 15 May 2015