Hart-Roach v Cady

[2011] WASC 90

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   HART-ROACH -v- CADY [2011] WASC 90

CORAM:   COMMISSIONER SLEIGHT

HEARD:   5 APRIL 2011

DELIVERED          :   5 APRIL 2011

PUBLISHED           :  8 APRIL 2011

FILE NO/S:   CIV 1578 of 2011

BETWEEN:   RUTH MARY HART-ROACH

Applicant

AND

NEIL CADY
First Respondent

JEWELL HOUSE (YMCA)
Second Respondent

Catchwords:

Injunction - Interlocutory injunction - Dispute as to whether applicant is in breach of an accommodation agreement and whether the owners of the premises are entitled to issue a notice of eviction - Whether applicant a tenant or lodger - Application of the Residential Tenancies Act 1987 (WA) - Court's discretion to grant interlocutory injunctions - Turns on its own facts

Legislation:

Residential Tenancies Act 1987 (WA), s 5, s 12A
Rules of the Supreme Court 1971 (WA), O 52 r 1(3)
Supreme Court Act 1935 (WA), s 25(9)

Result:

Application for interlocutory injunction allowed

Category:    B

Representation:

Counsel:

Applicant:     In person

First Respondent           :     No appearance

Second Respondent       :     No appearance

Solicitors:

Applicant:     In person

First Respondent           :     No appearance

Second Respondent       :     No appearance

Case(s) referred to in judgment(s):

Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425

Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464

Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148

Commissioner for Fair Trading v Holz [2005] WASC 202

Commissioner for Fair Trading v Voulon [2005] WASC 229

Eastcott‑Layton v Fast Bucks [1999] WASC 57

Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670

Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67

Re Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

1. COMMISSIONER SLEIGHT:  On the 5 April I granted an ex parte interim injunction to the applicant.  On granting the injunction I indicated that I would publish my reasons at a later date.  Set out below are those reasons.

The application

1. The applicant resides at Jewell House conducted by the YMCA in Room 413 pursuant to an accommodation agreement.  The first respondent is the accommodation manager.  The applicant has received an eviction notice dated the 4 April 2011, requiring her to vacate her room and leave the building by 10.00 am 5 April 2011.

2. The applicant seeks by way of a notice of originating motion an ex parte injunction.  By an amendment allowed by me, the applicant seeks the following orders:

   1)Orders:  That the eviction be estopped until there can be a full hearing of the matter.

   2)That Mr Cady ceases to provoke and degrade my status as a human being, and ceases to defame or libel me to third parties.

   3)That he addresses all 'complaints' about my conduct to the designated officer, ie working, at the Department of Consumer Protection.

   4)That the employees of Jewell House cease to act in a precipitous and irrational manner so that I have some semblance of peace and quiet enjoyment contingent on Order 3.

3. The application was supported by a purported affidavit that was signed by the applicant. However, the purported affidavit was not sworn before any authorised witness and did not comply with O 37 r 1 of the Rules of the Supreme Court 1971 (WA) in that it was not on a court heading. Further, the applicant sought to tender into evidence a bundle of documents which consisted of notices issued by the respondents and correspondence passing between the applicant and the respondents.

4. The applicant is unrepresented in these proceedings.  She is in a desperate situation as her accommodation is threatened and she needed an urgent injunction in order to protect the status quo.  In such circumstances it seems to me that the application should not be dismissed on the basis of a lack of correct form:  Re Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321 (Kirby J). The purported affidavit filed by the applicant states 'I Ruth Mary Hart‑Roach make oath and swear'. I treated this as an oath before me under s 4(3) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). I further directed that within 10 days the applicant file an affidavit annexing copies of the accommodation agreement and any other correspondence the applicant seeks to rely upon. In the meantime the notice in correspondence presented by the applicant will be marked MFI‑1 and held on the file.

History of matter

1. There has been ongoing disputation between the management of Jewell House and the applicant over various issues.  This disputation has occurred over several months.  The management of Jewell House has complained that the applicant stole an electric  iron of another occupant, that there have been complaints about the applicant from other occupants and that the applicant has used disrespectful language to a staff member.  The applicant disputes these allegations.

2. The eviction notice provided as follows:

   It has come to the attention of management that your behaviour has not been in line with your Accommodation Agreement. 

   You have received an official Verbal Warning (3^rd March), which is recorded on your Reservation Card and you have received a Final Warning Letter (3^rd March) which is also recorded on your Reservation Card. 

   This is the final breach of your Residential Agreement and has been recorded below and has also been added to your Reservation Card.

   Final Breach of Residential Agreement

   Breaching your agreement to stay at Jewell House referring to 'Respect must be shown to all guest and staff' This breach took place in reception area on the 4^th April 2011, and was witnessed by the Guest Service Supervisor and Guest Service Assistant.  Where you blatantly referred to the Guest Service Assistant as in front of other guests '... the moron behind the count ...'

   This behaviour does not conform to the Jewell House Rules. 

   As a result of your behaviour you must vacate your room and leave the building by

   10.00am on the ... 5th ......... of ......... April ......... 2011. 

Application for an injunction

1. Section 25(9) of the Supreme Court Act 1935 (WA) provides that a judge has jurisdiction to grant an interlocutory injunction in all cases in which it appears to the judge to be just or convenient that such an order be made, with such order being made either conditionally or unconditionally. An injunction may be made either before or at the hearing of any cause or matter.

2. Order 52 r 1(3) of the Rules of the Supreme Court provides as follows:

   In the case of urgency a person who intends to begin proceedings may make an application for the grant of an injunction before the issue of the writ or originating summons by which the cause or matter is to be begun, and the Court may grant the application on terms providing for the issue of the writ or originating summons, and such other terms, if any, as the Court thinks fit.

3. In this matter the applicant has not filed a writ or originating summons. The usual practice is that if an order is made a condition will be included that the applicant file a writ to commence proceedings:  Eastcott‑Layton v Fast Bucks [1999] WASC 57 [4] (Miller J).

Principles of an interim injunction

1. To obtain an interim injunction, the applicant must establish that there is a serious issue to be tried and that the balance of convenient favours the applicant:  Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425.

2. The likely success of the applicant at trial is a relevant factor as to whether there is serious question to be tried and whether the balance of convenience favours granting the injunction:  Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464, 472.

3. In Commissioner for Fair Trading v Holz [2005] WASC 202 Le Miere J stated as follows:

   The court must be satisfied that there is a serious question to be tried. If there is a serious question to be tried then the court must consider the balance of convenience. Once the court is satisfied that there is a serious question to be tried, the strength or weakness of the plaintiff's case may become a relevant factor touching on the balance of convenience or the exercise of the discretion [15].

4. The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial:  Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [11]; Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 [14].

5. It is relevant to consider whether an award of damages will be an adequate remedy.  Normally it must be shown that irreparable injury will be suffered if an injunction is not granted and will not be adequately compensated unless an injunction is granted:  Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, 153 (Mason ACJ).

Conclusion

1. In this case I conclude that there is an issue to be tried.  The applicant denies that she has been in breach of the accommodation agreement.  The applicant faces immediate eviction.  She is a person who has no alternative accommodation arrangements and if the injunction is not granted she will be placed in a situation which I conclude cannot be remedied by an award of damages.

2. The respondents are unlikely to be seriously inconvenienced by the granting of an injunction for a short period before it is given the opportunity to be heard on the matter. I conclude that the balance of convenience favours the awarding of an interim injunction.

3. There is a jurisdictional issue which will need to be addressed if the claim for relief of the applicant is to proceed to trial.  The question arises whether the accommodation agreement is a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 (WA). A residential tenancy agreement is defined in the Act as meaning any agreement, whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of a residential premises, for the purpose of residence. However, under s 5 the Act does not apply where the tenant is a 'border or lodger'. In Commissioner forFair Trading v Voulon [2005] WASC 229, Hasluck J considered what constitutes a lodger as follows:

   The decided cases indicate that an occupier of residential accommodation at a rent for a term is either a lodger or a tenant.  The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises.  In other words, a lodger is entitled to live in the premises but cannot call the place his own.  He resides essentially as an inmate in another person's house.

   When I apply this reasoning to the circumstances of the present case, I consider, as to the Robic and Wolfven agreements and the current agreement, that occupants pursuant to those agreements should be characterised as tenants.  The agreements in question allow for the occupant in question to lead essentially an independent existence and that appears to be how the various premises were conducted.  It is true that provision is made for the proprietor to enter each part of the premises but the services supposedly provided as an adjunct to the right of entry, such as inspection for the purpose of security or repair, or in relation to the mediation of disputes, are not of the domestic kind usually associated with a boarding house or the provision of services to lodgers.  There is no provision of meals or housekeeping services of a kind which might be expected under a lodging arrangement.

   When I draw together these various considerations I am unable to conclude that occupants of the subject premises pursuant to the former accommodation agreements or under the new accommodation agreement can be characterised as persons residing as an inmate in another person's house [81] ‑ [83].

4. Consideration will need to be given as to whether the applicant is a border or lodger and therefore excluded from the provision of the Residential Tenancies Act.  If the applicant comes within the Residential Tenancies Act then the Magistrates Court has exclusive jurisdiction under s 12A of that Act, assuming the dispute does not involve a dispute over the prescribed amount.

Orders

1. I am satisfied the following orders should be made:

   (1)The respondents be restrained and an interim injunction is hereby granted restraining the respondents from evicting the applicant from her room 413 at Jewell House pursuant to an eviction notice dated 4 April 2011 until further order of the court.

   (2)Within 10 days the applicant:

   (a)file and serve an undertaking as to damages in accordance with Consolidated Practice Direction 4.3.4 and in accordance with the usual form;

   (b)file and serve a writ of summons to commence proceedings seeking relief; and

   (c)file and serve a supplementary affidavit annexing a copy of the accommodation agreement and other correspondence that the applicant relies on.

   (3)The application otherwise be adjourned for 21 days.

   (4)Service of the injunction order to be made by facsimile today (9221 4694); and

   (5)Respondents be at liberty to apply on giving 48 hours notice to the applicant.