Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Stephens
[2015] FCCA 3403
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v STEPHENS | [2015] FCCA 3403 |
| Catchwords: PRACTICE & PROCEDURE – Whether proceedings were properly constituted. |
| Legislation: Evidence Act 1995 (Cth), s.70 |
| Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) v Odzic & Anor [2015] FCCA 3363 Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) v Rigney & Anor (No 3) [2015] FCCA 3133 Stephens & Ors v Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) [2015] FCCA 3404 |
| Applicant: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| Respondent: | RICHARD STEPHENS |
| File Number: | SYG 1809 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 Respondent: | Mr P. King |
ORDERS
The residential tenancy agreement in relation to the premises at 105 Lawson Road, Badgerys Creek NSW 2555 comprising part of folio identifier Lot 8 DP 3050 (“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 1809 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE & REGIONAL DEVELOPMENT) |
Applicant
And
| RICHARD STEPHENS |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
On 1 March 2004 Mr Stephens entered into a residential tenancy agreement (“Agreement”) as tenant in respect of the land situated at 105 Lawson Road, Badgerys Creek NSW 2555 (“Premises”). The Premises are part of a larger area of land of which the Commonwealth is the registered proprietor and which it proposes to develop for the purposes of an airport.
On 26 November 2014 the Commonwealth gave Mr Stephens a notice of termination of the residential tenancy agreement in respect of the Premises specifying 15 June 2015 as both the date of termination and the day on which vacant possession of the Premises was to be given. Mr Stephens did not vacate the Premises by that date and the Commonwealth now seeks orders terminating the residential tenancy agreement and for vacant possession.
Mr Stephens opposes the orders sought by the Commonwealth on a number of bases. The first is that no notice of termination was served on him or on Bradley Phillips or Geoffrey Merrett who live on the Premises. The second is that the law relied upon by the Commonwealth for the determination of the dispute between the parties does not apply because the Premises or part of them are not residential premises within the meaning of the Residential Tenancies Act 2010 (NSW) (“Tenancies Act”) and are predominantly used for non-residential purposes. Thirdly, the Court does not have jurisdiction to make the orders because the legislation purporting to grant the Court jurisdiction is unconstitutional. Fourthly, the determination of the law to be applied by the Court was beyond the power granted by the relevant statute. Fifthly, the Court should refuse to exercise its jurisdiction to terminate the agreement as a matter of discretion.
The first of these contentions contains two separate components. The first is that, because Mr Phillips and Mr Merrett lived on the Premise, they were tenants and so notice of termination had to be served on them as well, but was not. The second component was that, in any event, there was not service in the manner required. The first of these components can be dealt with briefly. The second is dealt with later in these reasons.
Mr Stephens gave evidence that he had never resided on the premises and that Mr Phillips and Mr Merrett are not his sub-tenants but jointly lease the house premises with him. He also said that they are not his employees but assist him by keeping an eye on the place and the business on the land. For reasons that I give later, I do not give weight to any of Mr Stephens’ evidence. However, even if I did accept it, what he says does not make the three other occupants tenants or co-tenants within the meaning of the Tenancies Act.
They are not parties to any residential tenancy agreement and have no “right to occupy residential premises under a residential tenancy agreement”, are not persons “to whom such right passes by transfer or operation of the law”, and are not sub-tenants of Mr Stephens: see Tenancies Act s.3. In light of that, there was no requirement to “give” any of them any notice of termination.
In any event, a document may be “given” to a person by delivering it personally to a person apparently of or above the age of 16 years at the person’s residential address: Tenancies Act sub-s.223(1)(a)(ii). That was done in this case. As will be seen, the evidence establishes that the notice of termination was personally handed to a person over the age of 16 on the Premises.
In his response, Mr Stephens also raised a number of other points that can be dealt with briefly:
a)He makes 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 respondent according to law;
ii)the applicant has failed to allege what right if any it has under the Tenancies Act or to make a claim reliant on the terms of the said Act; and
iii)he says that 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 serve by the Commonwealth or by an order of the Residential Tenancies Tribunal [sic] neither of which was alleged by the applicant nor has occurred.
The answer to all of these 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.
b)He contests that letters sent to him 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 one of the matters handed down at the same time as this judgment, I explained in some detail the relevant statutory scheme: see Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) v Odzic & Anor [2015] FCCA 3363 (“Odzic”) at [7]-[19]. There is no need to repeat that explanation here. The judgment in that matter ought to be read together with my reasons in this matter.
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.
Mr Stephens also brought proceedings against the Commonwealth with Mr Phillips and Mr Merrett seeking certain declarations and orders concerning the Premises. Those proceedings were heard concurrently with these proceedings. I have dealt with those proceedings in a separate judgment delivered at the same time as this judgment: Stephens & Ors v Commonwealth of Australia (As Represented By The Department of Infrastructure and Regional Development) [2015] FCCA 3404.
Before turning to the jurisdictional issues, it is necessary to deal with a number of factual issues.
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)Mr Stephens has occupied the Premises since March 2004;
d)on 1 March 2004 the parties entered into the Agreement in respect of the Premises;
e)the term of the Agreement was 52 weeks from 1 March 2004 and expired on 28 February 2005;
f)the respondent has been in continual possession of the Premises for less than 20 years;
g)the Premises are not predominantly used for non-residential purposes;
h)by letter dated 29 October 2014, the Commonwealth notified Mr Stephens that it will likely require him to vacate the Premises by June 2015;
i)on 26 November 2014, the Commonwealth served a Notice of Termination of the Agreement on Mr Stephens;
j)the Notice of Termination stipulated 15 June 2015 as the day on which the Agreement terminated and by which Mr Stephens was required to give vacant possession of the Premises to the Commonwealth; and
k)Mr Stephens has not indicated that he is willing to vacate the Premises by that date and has remained in possession of the Premises.
The finding at [14](g) above deals with Mr Stephens’s second contention set out at [3] 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 agricultural purposes; 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 Stephens’ evidence and claims relevant to this issue was:
a)he had never resided on the Premises;
b)Mr Phillips and Mr Merrett, who live on the Premises, assist with Mr Stephens’ business, but are not his employees or sub-tenants;
c)when Mr Phillips moved into the Premises, Mr Stephens said to him:
You are not my employees or tenants. I’ll pay the rent but with me you will be responsible for the house to the landlord through the local agent Pam. You will also assist me by keeping an eye on the place and the business on the land.
d)the house occupies approximately ½ an acre and is not fenced from the remainder of the land;
e)the house is used only as part of the business conducted by me on the whole of the premises as described further below;
f)Mr Phillips and Mr Merrett were “co-tenants”, in return for assisting Mr Stephens with his business conducted on the land in looking after the vehicles and equipment and maintaining the residence on the land;
g)the land is about 14 acres in area;
h)on the land at any one time are approximately 60 vehicles, comprising mobiles and static units, stored over about 8 acres;
i)a static unit is a vehicle without wheels used on construction sites and special events such as V-8 Super cars, the Royal Easter Show, rock concerts and local rugby league football games;
j)he owns one of the biggest businesses of its kind in the country conducted from the “yard” which is what he calls the Premises;
k)the mobile units are mobile food outlets that can be towed onto different locations all around Australia and then towed off;
l)apart from the use for storage as described above, he uses the land for the catering business of two companies;
m)there are sheds on the land comprising approximately another 2 acres where “we carry out maintenance of vehicles and other equipment especially catering equipment”; and
n)he has built new mobile and static units in the sheds and there are three half built units awaiting completion.
Occupation and use of Premises
Mr Phillips’ affidavit in relation to the use of the land was almost identical to that of Mr Stephens and, although it had less detail, Mr Merrett’s was also almost identical in relevant respects.
Mr Stephens was required for cross-examination but did not appear. Mr King, who appeared for Mr Stephens, proffered an explanation for this from the bar table, but there was no evidence as to why he was not able to appear either in person or by telephone. In light of his unexplained failure to appear and the consequent inability of the Commonwealth to test his evidence, I give Mr Stephens’ evidence no weight.
Mr Phillips was cross-examined. His evidence was that the house was used solely as a residence and that there was no office. He said that he and Mr Merrett were not paid anything, but maintained the Premises by mowing the lawn and similar things and, from time to time, helped out with things like pushing a trailer. He said that some of Mr Stephens’ people (by which I take to mean employees or colleagues) come to stay from time to time but he and Mr Merrett are the only permanent residents. They are free to move around the Premises and they keep some type of presence of security there for the equipment that is located there as well.
I accept that storing equipment on Premises constitutes a business activity. I accept that Mr Stephens does not permanently reside on the Premises because he is required to travel for his business. However, I do not accept his evidence that he has never resided there. First, because I give none of his evidence any weight and secondly because Mr Phillips gave evidence that Mr Merrett “came to occupy the land with” him and Mr Stephens. Mr Merrett’s evidence was that Mr Stephens “does not live on the premises and is often away on business”. While it is difficult to reconcile this evidence, I had the opportunity listen to Mr Phillips’ oral evidence (albeit by telephone) but did not have that opportunity with either Mr Merrett or Mr Stephens. Mr Phillips impressed me as an honest witness and I accept his evidence. That is not to say that I find Mr Merrett was not honest in his affidavit, only that it is to be understood as being consistent with that of Mr Phillips. In light of that, I find that when he said that Mr Stephens did not live on the premises, he meant that he did not live there permanently. I conclude that Mr Stephens uses the Premises for residential purposes as well as for business purposes.
There is no satisfactory evidence about the extent of time that Mr Stephens is away from the Premises; however, I do not think that matters. He agreed with the Commonwealth to pay rent for the Premises in order to be able to occupy them for the purposes of a residential tenancy for up to four people. There are four bedrooms, with two permanently occupied. I infer that one of the remaining bedrooms is permanently kept for Mr Stephens’ purposes, that is, so he can stay there whenever he is in Sydney. That is, even when he is away from home he uses the Premises for residential purposes.
In light of the similarity between the evidence of Mr Stephens, Mr Merrett and Mr Phillips in respect of the business use of the Premises, I have some hesitation in accepting that it is true. However, as I have said, I do accept Mr Phillips as a credible witness and it was not suggested to him that his evidence in this respect was not his own. On that basis, I accept that up to 60 vehicles are kept on the Premises and that there are a number of sheds there used for maintenance. That indicates that there is a substantial use of the Premises for the purposes of a business.
However, given that Mr Stephens, Mr Phillips and Mr Merrett use the Premises for residential purposes as do a number of Mr Stephens’ colleagues from time to time, I find that the predominant use of the Premises is not for the purposes of a business but for residential purposes. Accordingly, subject to the remaining jurisdictional arguments, the law to be applied in resolution of these proceedings is the Tenancies Act.
Were that not the case, in light of the weekly payment of rent, there would have been a periodic tenancy from week to week, terminable on one week’s notice.
Service of Termination Notice
Mr Stephens also contended that he has not been validly served with a notice of termination (cf. my finding at [14](i)). There are two aspects to this contention. The first is that the notices he was given did not amount to notices of termination. That is dealt with further below. The second 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.
First, Kylie Blackwood, an agent for the Commonwealth, gave evidence that Stephen Goodwin, 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 Godwin 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 Mr Stephens. 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 Godwin’s previous affidavit in relation to Mr Stephens 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 a male apparently over the age of sixteen years residing or apparently residing at 105 Lawson Road, Badgerys Creek in the State of New South Wales.” He said that he had the following conversation:
“Does Mr Richard Stephens live here?” The male person replied “Yes.” I said: “Do you live here?” The male person replied: “Yes.” I said: “Are you a family member of Richard Stephens?” He replied: “Yes.” I said: “I have an envelope for Mr Richard Stephens. Could you please pass it on to him for me?” He replied: “Yes.” Then I handed him the said envelope.
This conversation was not denied by either Mr Phillips or Mr Merrett or, indeed, anybody else and there was no witness who gave evidence for the respondent about 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 Goodwin. 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. Mr Stephens was on that list. There was one envelope for each tenant or 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 Mr Stephens. 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.
Mr King now complains that Ms Alderson did not “evidence the envelope and there is only hearsay evidence of the existence of such envelope with the address of the Respondents on 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 an envelope with a notice of termination in it was personally delivered to a person apparently over the age of 16 at the Premises and, by extension, that Mr Stephens was given or served with a notice of termination pursuant to sub-s.223(1)(ii) of the Tenancies Act. Mr Stephens’ other arguments about the effectiveness of the service are dealt with below.
Resolution of jurisdictional issues
The arguments raised in this case were the same as those argued in Odzic and are rejected for the reasons I gave there are at [40] – [44].
Consideration of substantive issues
In light of the statutory scheme outlined in Odzic, 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 the respondents 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 term of the Agreement was 52 weeks from 1 March 2004 and it expired on 28 February 2005.
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 Stephens has 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 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 given by delivering it personally to a person over the age of 16 years at the Premises on 26 November 2014. It correctly identified the property, 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.
In those circumstances I am satisfied that a notice of termination was given in accordance with the requirements of the Tenancies Act.
Has the respondent vacated the premises as required by the notice?
Mr Stephens gave evidence that his address was that of the Premises and that he was still in exclusive possession of them with Mr Merrett and Mr Phillips. On that basis it is clear that he has not vacated the Premises.
For those reasons, the matters in 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 Stephens.
The evidence in this matter concerning the circumstances relied on by the Commonwealth was the same as in each of the matters heard concurrently. I set out the effect of that evidence and my findings in Odzic at [59] – [81]. They form part of my reasons in this case but need only be summarised here as follows:
a)the development of a further airport in Sydney is of the general importance for both the economic and social wellbeing of Western Sydney, if not this country;
b)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;
c)the safety of individual tenants will decrease as more and more tenants vacate the site; and
d)Mr Stephens has been on notice since at least the beginning of the current residential tenancy agreement of the possibility of the use of the land in Badgerys Creek as an airport and the consequent need for them to give vacant possession to the Commonwealth for that purpose. That awareness was heightened by correspondence in October 2014 from the agents for the Commonwealth and put beyond doubt by the notice of termination served in November 2014.
Apart from the matters I have already dealt with, Mr Stephens relies on a number of matters in support of the argument that the Court should refuse the Commonwealth’s argument.
First, he argues that the power to make a termination order under s.85 is discretionary. That argument is rejected for the reasons I gave in Odzic at [83] – [85]. For that reason, I have considered Mr Stephens’ remaining arguments (as outlined below) 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:
a)The proposed termination and/or eviction will cause hardship to the Mr Stephens, Mr Phillips and Mr Merrett;
The evidence of hardship relied on was that Mr Stephens’ business would be severely damaged and compromised. Although Mr Phillips and Mr Merrett gave this evidence as well as Mr Stephens, only Mr Stephens could realistically know and I infer that the evidence of the other two witnesses was only based on what they were told by him. I give Mr Stephens’ evidence no weight and so reject this claim.
b)The cost of removing buildings and equipment to the respondent and which it has been represented to him he may take with him upon termination is at least $200,000;
There is no evidence to support this claim.
c)Having regard to the length of occupation of the lands in question and the property of the Respondents the period for vacating the lands is insufficient and unduly short;
Mr Stephens has been on notice of the need to vacate for over a year. There is nothing beyond mere assertion to suggest that that is inadequate time to prepare to vacate. In his affidavit, sworn on 2 June 2015, Mr Stephens stated that his teams needed another 3 to 6 months to vacate the land, especially going into winter. That period has passed and I infer that Mr Stephens has had plenty of time to vacate if he wished to. Any delay in doing so is his own fault and not caused by the amount of notice given by the Commonwealth.
d)There is no urgency for the applicant to evict the Respondent because the applicant within the last 10 years has given a 99 year right of refusal to open or use Badgerys Creek as a commercial airport in the Sydney Metropolitan region to Macquarie Airports the lessee and user of Kingsford Smith Airport a commercial airport within the Sydney Metropolitan region, and Macquarie Airports has no commercial use nor requirement nor interest nor plan to operate or use Badgerys Creek as an airport at any time in the foreseeable future including the next 30 years;
Mr Stephens also raised a similar claim, namely, that there was no pending commercial requirement for the orders for termination for over 12 years. I dealt with and rejected the same arguments in Odzic at [95] – [102]. In brief, the evidence does not support the claim.
e)There is no suitable or available alternative similar leaseholds in the region of Badgerys Creek or Luddenham for the Respondents to rent or occupy on the same or similar terms;
Mr Stephens did not give evidence of any attempts to locate alternative suitable accommodation. There is no evidence to suggest that it is not possible to find such accommodation within a reasonably short period of time.
A folder of material was in evidence that included some documents relevant to the availability of accommodation in the Greater Western Sydney region. The first of those documents related to community housing. I infer from Mr Stephens’ evidence about his businesses that this is not relevant to his 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.
f)The applicant has offered to the Respondent no compensation for the loss of the Respondents property affixed to the land or otherwise and for the cost of complying with the eviction notices.
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.
g)“As there was an express provision in the Agreement in relation to termination, the rights of the parties are governed by that clause”
I dealt with and rejected this and a similar argument in Odzic at [107] – [109]. The argument is rejected in these proceedings for the same reasons. In doing so, I note that the express provision in the Agreement was sufficiently similar to the one referred to in Odzic.
h)Because the termination notice was served before the introduction of s.10AA into the Federal Circuit Court of Australia Act 1999 (Cth), it was not effective for the purposes of the Commonwealth law
I dealt with and rejected this argument in Odzic at [110] – [111]. The argument is rejected in these proceedings for the same reasons.
In my view, Mr Stephens has presented no real basis for his opposition to the orders sought by the Commonwealth.
Conclusion
In light of the circumstances relied on by the Commonwealth as summarised above and the fact that Mr Stephens has put forward nothing of any substance in opposition to the orders sought, I am satisfied that the appropriate date on which Mr Stephens is to give vacant possession of the Premises is 25 January 2016. In fixing that date, I have taken into account the time of year even though that was not addressed by either 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:
a)The residential tenancy agreement in relation to the premises at 105 Lawson Road, Badgerys Creek NSW 2555 comprising part of folio identifier Lot 8 DP 3050 (“Premises”) be terminated with immediate effect.
b)Vacant possession of the Premises be given to the Applicant on or before 28 December 2015.
c)The order for vacant possession be suspended until 25 January 2016.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 13 January 2016
CORRECTIONS
Cover Sheet and Orders: Page 2, delete “Lot 1 DP 838361” and insert “Lot 8 DP 3050”.
Reasons for Judgment: Page 17, Paragraph 55(a), delete “Lot 1 DP 838361” and insert “Lot 8 DP 3050”.
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