Hudson v Shevket
[2003] NSWSC 648
•22 July 2003
CITATION: Hudson v Shevket & Ors [2003] NSWSC 648 HEARING DATE(S): 2 July 2003 JUDGMENT DATE:
22 July 2003JURISDICTION:
Common Law Division
Administrative Law ListJUDGMENT OF: Master Malpass DECISION: The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibit may be returned. Any stay that has been ordered is set aside. CATCHWORDS: Termination of residential tenancy agreement - advance payment - variation of agreement or fresh agreement so as to create a fixed term tenancy after holding over - effect of advance payment. LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001, s 67.
Residential Tenancies Act 1987, Pt 2, s 54, s 55, s 58, s 58 (3).CASES CITED: De Nicholls v Saunders (1870) LR5CP 589.
Federal Commissioner of Taxation v Steeves Agnew & Co (Vict) Pty Ltd (1951) 82 CLR 408.PARTIES :
Thomas Hudson (Plaintiff)
v
Yialkin Shevket and Ozel Shevket (First Defendants)
Consumer, Trader & Tenancy Tribunal (Second Defendant)FILE NUMBER(S): SC 30014 of 2003 COUNSEL: N/A (Plaintiff)
Mr D L Warren (First Defendants)
N/A (Second Defendant)SOLICITORS: Aubrey Brown Partners (Plaintiff)
G Cerin (First Defendants)
I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)
LOWER COURTJURISDICTION: Consumer, Trader & Tenancy Tribunal LOWER COURT FILE NUMBER(S): RT 03/01243 LOWER COURT
JUDICIAL OFFICER :P R Smith, Member
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LISTMaster Malpass
Tuesday 22 July 2003
JUDGMENT30014 of 2003 Thomas Hudson v Yialkin Shevket & Ors
1 MASTER: A Residential Tenancy Agreement (the agreement) was made on 5 May 2001 for the period from 5 May 2001 to 3 November 2001. The rent was to be payable every week starting on 5 May 2001 in the sum of $115. The plaintiff was the tenant under the agreement. The first defendants were the landlords.
2 Subsequent to 3 November 2001, the plaintiff remained in occupation and tendered payments in respect of rent.
3 The first defendants purported to terminate the agreement. A Notice of Termination was served seeking possession on 23 December 2002. It was given pursuant to s 58 of the Residential Tenancies Act 1987 (the Act). The section enables the giving of such a notice without specifying any ground for the termination so long as 60 days notice is given. It is expressed not to apply to a Residential Tenancy Agreement that creates a tenancy for a fixed term during the currency of the term (subs 3).
4 Prior to the giving of the Notice of Termination, a payment of money had been made by the plaintiff. If it was to be treated as a payment of rent, it could satisfy the payment of rent up to 18 January 2003, together with an additional advance of $100.
5 The first defendants made application to the Consumer, Trader & Tenancy Tribunal (the Tribunal). Following a contested hearing, the Tribunal made an order for termination and possession and the tenant was required to give up possession on 19 February 2003. An order was also made for the payment of a daily occupation fee.
6 On 5 February 2003, the plaintiff filed a Summons in this Court purporting to appeal from the decision of the Tribunal. The grounds of appeal are set forth in the Summons. It might be said that the alleged error of law does not emerge with clarity.
7 The purport of the stated grounds was to challenge the validity of a termination on 23 December 2002 on the basis that rent had been paid up to 18 January 2003.
8 The evidence before this Court was sparse. No transcript was taken at the proceedings before the Tribunal. An affidavit from one of the first defendants annexed a copy of the Reasons for Decision of the Tribunal. Two affidavits from the plaintiff annexed certain copy documents and deposed briefly to certain matters that took place before the Tribunal. A copy of the agreement was also tendered (Exhibit 1).
9 The contents of the Reasons for Decision purport to record evidence tendered, the submissions made and “FINDINGS”. There was a finding that the plaintiff was holding over under the lease. There was a finding that a valid termination notice had been properly served seeking vacant possession on 23 December 2002. The balance of the “FINDINGS” (which occupied some five paragraphs) deal with matters which were not raised in this Court.
10 Before the Tribunal, the plaintiff appeared in person and the first defendants were represented by an agent. The legal representatives who appeared for the parties in this appeal were not in a position to provide much assistance as to what took place before the Tribunal.
11 I now turn to the case propounded by the plaintiff in this appeal. It may be that what was propounded was not a matter litigated before the Tribunal (it is not referred to in the Reasons for Decision). Also, it may be that it was one not spelt out by the grounds of appeal appearing in the Summons.
12 It was common ground that a payment was made prior to the giving of the Notice of Termination, which would satisfy the payment of rent up to 18 January 2003. Although it was not a matter essential to the position of the first defendants, there was dispute as to whether or not this payment could be characterized as a payment of rent.
13 The plaintiff contended that the making of that payment and the acceptance of it by the first defendants created a fixed term tenancy which expired on 18 January 2003. Accordingly, it was said that in those circumstances a Notice of Termination could not be given pursuant to s 58 of the Act.
14 There is a lack of evidence dealing with the circumstances of the payment. There was a lack of material to support what was accepted as a necessary assertion that the plaintiff had ceased to be a tenant holding over under the agreement by reason of either a variation to the agreement or a fresh agreement which created a tenancy for a fixed term.
15 Although it was not argued, it may be that there is a further problem for the plaintiff (the need for the variation or fresh agreement to satisfy the requirements of Part 2 of the Act). However, for present purposes, I put that matter aside.
16 Assuming that it was open to the plaintiff to put these submissions in the appeal, I am not satisfied that the case he propounds has been made out.
17 Assuming that the payment can be characterized as an advance payment of rent, there is authority for the proposition that payment of rent before it is due is not a fulfilment of the obligation imposed by the covenant to pay rent, but is, in fact, an advance to the landlord with an agreement that on the day when the rent becomes due such advance shall be treated as a fulfilment of the obligation to pay rent (De Nicholls v Saunders (1870) LR5CP 589 at 594 and Federal Commissioner of Taxation v Steeves Agnew & Co (Vict) Pty Ltd (1951) 82 CLR 408 at 418).
18 In further support of their opposition to this appeal the first defendants also look to the provisions of ss 54 and 55 of the Act. For present purposes, it is unnecessary to pursue these submissions.
19 This appeal is brought pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. Under that section, an appeal only lies where the Tribunal decides a question with respect to a matter of law.
20 I am not satisfied that there was any requisite error that justified the disturbing of the decision of the Tribunal. Accordingly, the appeal fails.
21 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibit may be returned. Any stay that has been ordered is set aside.
Last Modified: 07/23/2003
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