Commonwealth of Australia v Patrick
[2015] FCCA 3413
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA v PATRICK & ANOR | [2015] FCCA 3413 |
| Catchwords: ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of a periodic tenancy agreement under s.85 of the Residential Tenancies Act 2010 (NSW) – respondents in possession of the premises for less than 20 years – whether termination of the tenancy agreement is granted – original tenancy agreement expired – first respondent notified of termination – first respondent has not lived at premises – interests of second respondent – predominant use of premises – termination of tenancy agreement granted – order for vacant possession suspended. |
| Legislation: Evidence Act1995 (Cth), s.140(2)(c) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 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 Saad v Fares [2015] NSWCA 385 |
| Applicant: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| First Respondent: | ANNETTE PATRICK |
| Second Respondent: | KEN SHIRVINGTON |
| File Number: | SYG 1811 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 Second Respondent: | Mr P. King |
ORDERS
The residential tenancy agreement in relation to the premises at 1962-1970 (also known as 1966) The Northern Road, Luddenham NSW 2745 comprising part of folio identifier Lot 1 DP 838361 (“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 1811 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Applicant
And
| ANNETTE PATRICK |
First Respondent
| KEN SHIRVINGTON |
Second Respondent
REASONS FOR JUDGMENT
The Commonwealth is the registered proprietor of the land situated at 1962-1970 (also known as 1966) The Northern Road, Luddenham NSW 2745 (“Premises”). The Premises are part of a larger area which the Commonwealth proposes to develop for the purposes of an airport.
On 22 May 2007 Ms Patrick and her husband, Kevin Dickinson, entered into a residential tenancy agreement (“Agreement”) with the Commonwealth in respect of the Premises. Ms Patrick says that she has never lived at the Premises and that her husband died in 2013. Mr Shirvington says that he lives in the Premises and sought to be joined as a party on that basis. The Commonwealth does not dispute that Mr Shirvington lives on the Premises and he was joined as a second respondent by consent. That does not mean, as Mr Shirvington submitted, that these proceedings have been consolidated with other proceedings to which Mr Shirvington was a party. There was no order to that effect and no application made for such an order. Ms Patrick has submitted to the orders of the Court save as to costs.
The Commonwealth gave a Notice of Termination in respect of the Premises on 29 November 2014 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 Shirvington did not vacate the Premises by that date and the Commonwealth now seeks orders terminating the Agreement and for vacant possession.
Mr Shirvington opposes the orders sought by the Commonwealth on a number of bases. The principal bases are:
i)no notice of termination was given;
ii)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;
iii)the Court does not have jurisdiction to make the orders because the legislation purporting to grant the Court jurisdiction is unconstitutional;
iv)the determination of the law to be applied by the Court was beyond the power granted by the relevant statute;
v)by operation of ss.81 and/or 119 of the Residential Tenancies Act 2010 (NSW) (“Tenancies Act”) the applicant has no right to proceed in this Court in respect of the relief sought; and
vi)the Court should refuse to exercise its jurisdiction to terminate the agreement as a matter of discretion.
In his response, Mr Shirvington also raised two matters that can be dealt with briefly:
a)First, he raised a number of 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 second 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.
The answer to 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)Secondly, he said that he cross-claimed for the uncompensated losses he has incurred in breach of the contract they have with the applicant in relation to the land and will provide particulars of the losses. No particulars have been provided of the alleged contract, breach or loss and no submissions were made in respect of the cross-claim adumbrated in the response. It is unnecessary to consider the issue further.
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 other 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.
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, to the extent that any of them is 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 Shirvington has occupied the Premises since about 2011;
d)on 25 May 2007 Ms Patrick, her husband Mr Dickinson and the Commonwealth entered into a residential tenancy agreement in respect of the Premises;
e)the term of the Agreement was 52 weeks from 25 May 2007 and expired on 22 May 2008;
f)Ms Patrick 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 Ms Patrick that it will likely require her to vacate the Premises by June 2015;
i)on 29 November 2014, the Commonwealth gave a notice of termination of the Agreement to Ms Patrick;
j)the Notice of Termination stipulated 15 June 2015 as the day on which the Agreement terminated and by which Ms Patrick was required to give vacant possession of the Premises to the Commonwealth;
k)Ms Patrick had indicated that she was not willing to vacate the Premises by that date and has remained in possession of the Premises; and
l)Mr Shirvington asserts a right to remain in occupation of the Premises.
Two of these facts were in contest: service of the Notice of Termination and the predominant use of the Premises. I will deal with the service issue later in these reasons. That issue also concerns the allegation by Mr Shirvington that he, and not Ms Patrick, is the tenant of the Premises.
Predominant use of premises
The finding at [10](g) above deals with Mr Shirvington’s second contention set out at [4] 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.
There was very little evidence about the use of the Premises. The Agreement gave the right to Ms Patrick and her husband to occupy the Premises and stipulated that no more than two persons could ordinarily live in them at any one time. There was no affidavit evidence about the use of the Premises, but Ms Patrick did give some oral evidence on that subject. I deal with Ms Patrick’s oral evidence in greater detail later in these reasons. For present purposes it is sufficient to note the following.
Ms Patrick said that, although neither she nor her husband had ever lived there, the night after she signed the Agreement, a woman called her and said: “I’m living in that house, not you”. Although it is not clear what this meant, it is most likely that the woman who called was saying that she proposed to live in the house with Ms Patrick’s husband, rather than that she was already living there. Ms Patrick explained that she discovered that her husband “loved women”. That discovery may have been by means of this phone call.
Ms Patrick also gave evidence that she put a driver in the Premises. Ms Patrick runs a transport company. Later she was asked about her statement in her affidavit that she believed the lease was in Mr Shirvington’s name. She replied:
Well, I leased it. I know that I leased it. Things didn’t work out with my partner an myself. I put one of the drivers in it. He paid rent to Mr Shirvington – Ken, and we went one – he picked me up one day and we went to the real estate to change it over into his name because I didn’t want it anymore and we had an agreement for him to store my machinery. I used to have forklifts. I believed that it wasn’t in my name anymore.
As I explain later, I have significant doubts about Ms Patrick’s evidence. However, I accept for present purposes that she has stored some forklifts there as part of the arrangement by which Mr Shirvington now lives on the Premises. However, I do not take this part of her evidence to establish that he was living on the Premises at the time the driver was living there. I accept that storage of the forklifts was for the purposes of Ms Patrick’s business. However, given the vagueness of the evidence, and the fact that the Premises are clearly used for residential purposes, I am not satisfied that the predominant use of the Premises is for the purposes of a business or for any other non-residential reason.
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 25 May 2007 and it expired on 22 May 2008.
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 January 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 I have noted, Mr Shirvington asserts that he is the tenant of the property. He relies on the evidence of Ms Patrick that he lives on the Premises and, as set out at [16] above, they went to the real estate agent to change the lease into his name. No details of that visit to the agents were given, and the fact remained that Mr Shirvington was never a party to a written agreement in relation to the Premises. There was no evidence of anything said by or on behalf of the Commonwealth to suggest that a tenancy had arisen or would arise. There was no transfer of the tenancy to him by Ms Patrick and her husband and there has been no recognition of him as a tenant or sub-tenant. In short, Mr Shirvington may live in the Premises, but he is not a tenant within the meaning of the Tenancies Act (see ss.3, 10, 74, 77), and no estoppel has arisen.
As Ms Patrick (or, for that matter, her husband or Mr Shirvington) 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 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. 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. Thus, the only question is whether it was “given” within the meaning of the Tenancies Act.
The evidence is as follows. Stephen Goodwin, a licensed process server says that he served Ms Patrick and Mr Dickinson with an envelope that he was informed contained the notice of termination and a document entitled “Tenant’s responsibilities and vacating checklist”. No objection was taken to that evidence. It establishes that the envelope referred to did in fact contain those documents. That fact is also supported by the evidence of Sarah Alderson and Vivienne Li. No objections were taken to their evidence and Ms Alderson was not cross-examined about her evidence about the preparation of the notice of termination for service.
Mr Goodwin explained that he served the documents “by delivering the same to Kevin Dickinson personally at 1962 – 1970 The Northern Road, Luddenham in the State of New South Wales.” If Ms Patrick’s evidence that her husband died in 2013 is accepted, which it is, then it would have been difficult to serve him personally in November 2014. However, Mr Goodwin says further:
At the time of service I said to the person served:
Are you Mr Kevin Dickinson?” He replied: “Yes.” I said: “I have an envelope for you and Annette Patrick.” I then handed him the envelope.
This shows that Mr Goodwin believed that he had served Mr Dickinson because a male person told him that he was Mr Dickinson. There is no direct evidence of who that was, but there is only one likely candidate: Mr Shirvington.
First, Ms Patrick gave evidence that she was very close to Mr Shirvington and sees him regularly. From that I infer that Mr Shirvington knew at least that Mr Dickinson was dead and most certainly that he was not living on the Premises. That inference is strengthened by the fact that Mr Shirvington was living on the Premises and, according to Ms Patrick, went with her to put his name on the lease. This supports the inference that he knew that Ms Patrick and her husband were in fact on the lease. Secondly, the evidence suggests that Mr Shirvington and his wife Debbie Shirvington were living on the Premises. Although Ms Patrick had put a driver in there at some point, there was no indication that that was on ongoing situation. Thirdly, it was a lie to tell Mr Goodwin that the speaker was Mr Dickinson, particularly in light of the fact that there was no evidence of any other Mr Dickinson. Fourthly, the only person with any interest in continuing to live at the Premises was Mr Shirvington and his wife. Thus, he was not only the only male on the Premises but the only male with any motive to lie. For those reasons, I find that the person to whom Mr Goodwin gave the Notice of Termination was Mr Shirvington.
The Commonwealth argued that it should be inferred that Ms Patrick received the notice from Mr Shirvington. The basis of that submission was Ms Patrick’s oral evidence. In her affidavit, Ms Patrick swore that the first time that she was aware that proceedings had been brought against her was when her barrister called her on 11 July 2015 to tell her that he had seen her name on a Court list and that she had to appear on 13 July 2015. She also said that she believed at that time that the lease was in Mr Shirvington’s name.
Under cross-examination Ms Patrick ultimately accepted that she had received court documents earlier. Mr King, who appeared for Mr Shirvington, submitted that Ms Patrick appeared “somewhat uncertain of her answers” with regard to the receipt of court documents. That is an understatement. Her evidence was inconsistent and evasive. While, at first, she gave the impression of being certain of her recollection, that confidence was undermined when confronted with an email exchange that took place on 7 July 2015 between her and a solicitor acting for the Commonwealth. Ms Patrick’s first response to being confronted with this was to say that she did not know the exact dates. That might have been true, but what she said in her affidavit was plainly false. I consider that she swore the affidavit without concern for the truth of what it contained. In reaching that conclusion, I have taken into account the gravity of such a finding: sub-s.140(2)(c) of the Evidence Act1995 (Cth); Briginshaw v Briginshaw (1938) 60 CLR 336; Saad v Fares [2015] NSWCA 385.
I add that it appears from the facsimile markings on the affidavit that a draft of the affidavit was sent to her from Davincar Pty Ltd, a company Ms Patrick said was owned by Mr Shirvington.
This casts a good deal of doubt over Ms Patrick’s evidence. However, I accept some of what she says. I accept, for example, that her husband died in 2013 and that she never lived on the Premises. I also accept her evidence that her husband loved women and that a phone call from a woman as to who was living in the Premises spelt the end of the plan to move there. I also accept her evidence that she and Mr Shirvington are close and see each other on a regular basis. It is for that reason that I find that she was at least aware of, and most likely received, the Notice of Termination.
Ultimately, however, it does not matter whether Ms Patrick received the notice. I am satisfied that Mr Shirvington was personally handed the document and, being married, was over the age of 16 at the time. He was served at the Premises. Thus, the requirements of s.223(1) of the Tenancies Act were satisfied and the notice was “given” within the meaning of that Act.
I would add that, even if I were wrong about Mr Shirvington, I would find that that provision had been met. Mr Goodwin knew that he was serving a notice of termination of a residential tenancy agreement. Although he does not mention in his affidavit the age of the person he handed the documents to, I infer that that person was over the age of 16 simply because Mr Goodwin was led to believe that he was talking to one of the tenants and the likelihood of such a tenant being under 16 is extremely low.
In those circumstances I am satisfied that a notice of termination was given in accordance with the requirements of the Tenancies Act.
Have the respondents vacated the premises as required by the notice?
While Ms Patrick has never lived on the Premises, her evidence establishes that Mr Shirvington is still living there. As that is with her consent, she 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 Shirvington.
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)Ms Patrick 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 Shirvington relies on a number of matters which I set out together with my consideration of them. Before doing so, I note that Mr Shirvington is not a tenant within the meaning of the Tenancies Act. Strictly speaking, his interests are contingent on the Agreement and Ms Patrick’s ongoing consent to him living there. As she consents to the orders of the Court, Mr Shirvington’s interests have no true relevance to the issues to be decided. However, as a matter of practical reality, I accept that the termination order will affect him and his wife and, for that reason, I have taken his interests into account as far as they arise from the evidence.
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 [82] – [85]. For that reason, I have considered Mr Shirvington 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 Second Respondent”
There is no evidence of any hardship beyond the ordinary inconvenience of moving house.
b)“The Second Respondent is aged or infirm and/or the Orders sought will adversely affect the health and livelihood of the Second Respondent”
There is no evidence to support this contention.
c)“The termination and/or eviction orders sought are retaliatory or partly retaliatory”
There is no evidence to support this claim.
d)“Having regard to the length of occupation of the lands in question and the property of the Second Respondent the period for vacating the lands is insufficient and unduly short”
There is little evidence as to when Mr Shirvington first moved into the Premises. The only date mentioned in connection with his occupation of the Premises was by Ms Patrick in her oral evidence, namely 2011. It is on that basis that I find that he has been living on the Premises since that time. In any event, the longest he could have been there was from shortly after the date of the Agreement, namely, 25 May 2007, some 7 ½ years before the Notice of Termination. He 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.
e)“There is no urgency for the Applicant to evict the Second 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 Shirvington 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] – [101]. In brief, the evidence does not support the claim.
f)“There is no suitable or available alternative similar leaseholds in the region of Badgerys Creek or Luddenham for the Second Respondents to rent or occupy on the same or similar terms”
Neither Mr Shirvington nor his wife gave evidence of any attempts to locate alternative suitable accommodation.
Mr Shirvington tendered a folder of material 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. There was no clear evidence about Mr Shirvington’s financial circumstances. For that reason, it would seem that the availability of community housing is not relevant to their circumstances. The second group of documents consist 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.
g)“The Applicant has offered to the Second Respondent no compensation for the loss of the Respondent’s 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. That is particularly so in the absence of any evidence about Mr Shirvington’s financial means.
h)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 [106] – [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.
i)Because the termination notice was served before the introduction of s.10AA into the FCCA, 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 Shirvington 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 Shirvington has put forward nothing of any substance in opposition to the orders sought and that Ms Patrick has consented to the orders of the Court save as to costs, I am satisfied that the appropriate date on which the respondents 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. 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:
(1)The residential tenancy agreement in relation to the premises at 1962-1970 (also known as 1966) The Northern Road, Luddenham NSW 2745, comprising part of folio identifier Lot 1 DP 838361 (“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 forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 21 December 2015
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