Diab v Consumer Trader and Tenancy Tribunal

[2003] NSWSC 694

CITATION:	Diab v Consumer Trader and Tenancy Tribunal & Ors [2003] NSWSC 694
HEARING DATE(S):	3 July 2003
JUDGMENT DATE:	6 August 2003
JUDGMENT OF:	Cripps AJ
DECISION:	(1) Leave to make application out of time to the Supreme Court granted; (2) Leave to appeal granted; (3) Appeal upheld; (4) The matter to be remitted to the Tribunal to determine the matter by way of rehearing and in accordance with the decision of the Court; (5) There will be no order as to costs.
CATCHWORDS:	s 22 Residential Tenancies Act 1987 - head lease for fixed term - sub-lease a periodic tenancy - eviction by police.
LEGISLATION CITED:	Residential Tenancies Act 1987, s 22
PARTIES :	Samir Tarjali Diab - Plaintiff Consumer Trader and Tenancy Tribunal - First Defendant Dannielle Kelleher - Second Defendant Jason Kelleher - Third Defendant
FILE NUMBER(S):	SC 30023/03
COUNSEL:	Plaintiff in person Second and Third Defendants in person
SOLICITORS:

LOWER COURTJURISDICTION:	Consumer Trader and Tenancy Tribunal
LOWER COURT FILE NUMBER(S):	RT01/37186
LOWER COURT JUDICIAL OFFICER :	Tribunal Memmber G G O'Keefe

30023/03

CRIPPS AJ

Wednesday, 6 August 2003

SAMIR TARJALI DIAB v CONSUMER TRADER AND TENANCIES TRIBUNAL & DANNIELLE KELLEHER & JASON KELLEHER

JUDGMENT

1 CRIPPS AJ: The plaintiff, Mr Diab, has made application to the court for an extension of time within which he should be permitted to seek the leave of the court to appeal a decision of the Consumer Trader and Tenancies Tribunal member, Mr G O’Keefe.

2 On 22 August 2002 Mr O’Keefe dismissed an application by the plaintiff for monetary compensation for alleged breaches of the tenancy agreement between himself and the defendants. Although not stated in the Tribunal’s reasons I have assumed it was exercising its jurisdiction pursuant to s 16(2)(d) of the Residential Tenancies Act 1987 (“the Tenancy Act”).

3 The plaintiff and both defendants appeared in person. There is no appearance on behalf of the Tribunal.

History

4 The defendants were the lessees of 64 Meyers Street, Roselands for a fixed term expiring on 7 July 2001.

5 In March 2001 the defendants permitted the plaintiff to share the premises in circumstances where, as found by the Tribunal, the relevant legal relationship between them was that of landlord and tenant and not that of occupant and lodger. Although dissatisfied with this finding I do not understand the defendants to challenge it in these proceedings and, in any event, it was a finding of fact and not one susceptible of an appeal to the Court in which questions of law only fall for determination (see s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (“the Tribunal Act”).

6 On 7 July 2001 the plaintiff was evicted from 64 Myers Street by the police in circumstances shortly to be set out.

7 On 21 September 2001 the plaintiff commenced proceedings in the Tribunal claiming to have been unlawfully evicted by the defendants and seeking orders that he be paid -

$300 for “breach of quiet enjoyment”;
$600 as “compensation for taking possession of premises without the correct order”; and
$1,000 as “compensation for non-economic loss”.

8 The plaintiff also sought an order that he be “allowed time to take action in the Tribunal”. There was no finding about this application but it is apparent from the decision of the Tribunal that leave must have been granted (see ss 16(1) and 84 of the Tenancy Act).

9 The plaintiff’s application came on for hearing on 23 April 2002 and 31 May 2002 and, as I have said, the Tribunal concluded that the relationship of landlord and tenant existed between the parties.

10 The Tribunal found -

“In the circumstances of this matter there are two tenancy agreements. One between the owners of the premises (head landlord) and the respondents (head tenants), and the other between the applicant (sub-tenant) and the respondents.

11 It found that the agreement between the head landlord and the respondents came to an end in accordance with s 53(a)(i) of the Tenancy Act (as to which see later).

12 The last-mentioned conclusion derived from findings by the Tribunal that the head landlord and the defendants had entered into a lease for a fixed term expiring on 7 July 2001. It found that “in early June 2001” the first-named defendant told the plaintiff that the defendants had been given oral advice that upon the expiration of the fixed term of their lease with the head landlord on 7 July 2001 they would be surrendering possession. There was conflicting evidence concerning what actually passed between the plaintiff and the defendants. However, the plaintiff gave evidence in which he said he knew of the claims of the head landlord for possession but he said that it “had nothing to do with me”.

13 The Tribunal found that at 9.30 am on 7 July 2001 the police evicted the applicant from the premises. It also found that the defendants were not present at the premises at the time of the eviction. It recorded that the evidence was that the defendants said that -

“They returned at about 10 to 10.30 am for the purpose of cleaning the premises. At this time the respondents (defendants) had no knowledge of the earlier attendance by police and had insisted they were not responsible in any way for the applicant’s eviction.”

14 The Tribunal made no finding on this matter for the reason that it concluded that the plaintiff could have no claim for breach of the tenant’s statutory right to quiet enjoyment conferred by s 22 of the Residential Tenancies Act 1987 because the relationship of landlord and tenant at the time of police eviction had ceased.

15 In so concluding the Tribunal relied on s 53 of the Act as follows -

“ Termination of residential tenancy agreements
A residential tenancy agreement terminates only in one or more of the following circumstances:
(a) if the landlord or the tenant gives notice of termination under this Part and:
(i) the tenant delivers up vacant possession of the residential premises on or after the day specified in the notice, or
…
(c) if a person having a superior title (for example, a head landlord), to that of the landlord becomes entitled to possession of the residential premises,
… “

16 The plaintiff was represented by an advocate who argued that the agreement between the head landlord and the defendants did not terminate on 7 July 2001 because the defendants had failed to give vacant possession and that was because the plaintiff was still physically present on the premises. The Tribunal rejected that argument and found -

“When two parties, by mutual agreement, terminate a contract to which they alone are privy, it is not open to a third party to assert that the contract is extant. But even if this were not so the applicant was not on the premises (having been evicted by police at 9.30 am) when the notice expired at midnight on the 7th.”

17 The Tribunal found that vacant possess “was delivered up by the respondents (the defendants) to the head landlord on the day specified on the notice and in accordance with s 53”. It concluded -

“On any view, the respondents (the defendants) could not give the applicant more notice to vacate the premises than they themselves had. That is, the respondents (defendants) could not give the applicant 60 days notice in circumstances where the head landlord was required by s 60 of the Act to give on 14 days notice of the termination of their fixed term agreement. If it were otherwise what would prevent the applicant as sub-tenant creating additional sub-tenancies effectively defeating the head landlord’s title indefinitely? It cannot be the law that the sub-tenant’s agreement extended beyond the fixed term of the head tenant’s agreement”.

18 Both parties have referred to the material put before the Tribunal concerning the eviction by the police. As I have said the Tribunal made no finding about this because it was of the opinion that the application must fail for the reasons referred to above.

19 I note that the police statement, tendered before the Tribunal, recorded that the landlord attended the Campsie Police Station and produced the residential tenancy agreement between the landlord and the defendants. The police were told that “someone by the name of Samir Diab … was residing at the above location and the victim [the landlord] had no knowledge of an agreement with this person”.

20 The police attended the premises, asked Mr Diab to produce “relevant paperwork” to establish an entitlement to be on the premises. The police requested the plaintiff to vacate the premises which he agreed to do within the following two hours. At 12 noon the plaintiff presented the keys to the Campsie Police Station.

21 On 24 November 2001 and after commencing proceedings in the Tribunal the plaintiff attended the police station at Campsie. He said the first-named defendant had told him that he had to be out of the premises by 7 July 2001. He said he rang “the residential tenancy tribunal as a result of this and was informed that I had to be given 60 days written notice to quit the premises”.

22 He said that he was given a reminder notice on 28 June 2001 that “all parties are to vacate the premises on 7 July 2001”. He said he showed rent receipts to the police but was evicted and that he wished “this matter to be recorded to assist his legal actions pending and no further police actions pending …”.

23 When the matter came on for hearing he defendants raised an issue concerning the compentency of the application before the Court. By operation of s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 and the Rules of the Supreme Court the plaintiff had 28 days within which to lodge his application for leave to appeal against the decision of the Tribunal. He did not do so until 6 March 2003. It also emerged in evidence that on 4 December 2002 he made an application under s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 for a re-hearing before the Tribunal but that was refused on 6 December 2002. The defendants were not notified of the application. The plaintiff has claimed that his reason for not appealing within the time prescribed was in part because of his depressive illness and an ulcer condition and in part because he was unsuccessful in the many attempts he made to get legal advice concerning the appeal. He also referred to the circumstance that it was not until 6 December that he was aware that his application for a re-hearing was refused. I should here mention that under the regulations he was obliged to make an application for re-hearing within 14 days of the date of the decision of the Tribunal.

24 Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 relevantly provides -

“(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.

(2) An appeal is to be made in accordance with the rules of the Supreme Court. The rules of the Supreme Court may provide that an appeal … may be made only with the leave of the Court.

(3) After deciding the question the subject of such an appeal, the Supreme Court may, unless it affirms the decision of the Tribunal on the question:

(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or

((b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.
(4) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Supreme Court remitted to the Tribunal.
…
(7) If a rehearing is held, fresh evidence, or evidence is addition to or in substitution for the evidence on which the original decision was made may be given on the rehearing.”

25 Section 22 of the Residential Tenancies Act 1987 provides -

“ Tenant's right to quiet enjoyment
(1) It is a term of every residential tenancy agreement that:
(a) the tenant shall have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (for example, a head landlord) to that of the landlord, and
(b) the landlord or the landlord's agent shall not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
… ”

26 In my opinion the Tribunal fell into error in concluding that, on the evidence before it, the relationship of landlord and tenant between the plaintiff and the defendants no longer existed as at 9.30 am on 7 July 2001. The fixed term did not expire until midnight on 7 July 2001. At that time the periodic tenancy, deriving from the title of the defendants, was still in existence. Whatever might have been the position had the police evicted the plaintiff on 8 July 2001 at the time of his eviction on 7 July the plaintiff was entitled, as against the defendants, to the protection of s 22 of the legislation.

27 There are cases in the books which establish that at common law the termination of a head lease for a fixed term also terminates a periodic sub-tenancy. There appears to be some doubt as to whether the operation s 53(1)(a) and s 53(c) operate to deny a periodic sub-tenant in possession entitlements under the relevant legislation at the expiry of the fixed term between the head tenant and the landlord. However, and in my respectful submission, that was not an issue in this case because the fixed term had not expired at the time the police were called in aid by the landlord.

28 It follows that the Tribunal erred in law in concluding that there was no relationship of landlord and tenant at the relevant time between the plaintiff and the defendants.

29 The fact that the defendants had no knowledge of the attendance by the police and were not responsible in any way for the plaintiff’s eviction may be relevant to the question of compensation but it did not relieve them of the obligations imposed on them by s 22. Section 22 would appear to abrogate the common law rule that ordinarily a landlord is not responsible for the acts of, inter alia, other persons claiming title paramount (in this case the head landlord). However, s 22(1)(a) would appear to guarantee the quiet enjoyment without interruption by a landlord who has a superior title – in this case the head landlord.

Orders

30 (1) Leave to make application out of time to the Supreme Court be granted;

(2) Leave to appeal be granted;

(3) The appeal be upheld;

(4) The matter to be remitted to the Tribunal to determine the matter by way of rehearing and in accordance with the decision of the Court.

(5) There will be no order as to costs.

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Last Modified: 08/11/2003