Johnstone v Housing Authority - [2015] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JOHNSTONE -v- HOUSING AUTHORITY [2015] WADC 8

CORAM: EATON DCJ

HEARD: 14 JANUARY 2015

DELIVERED : 30 JANUARY 2015

FILE NO/S: APP 91 of 2014

BETWEEN: JASON ROGER JOHNSTONE
Appellant
AND
HOUSING AUTHORITY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOON
Citation  :PER/PLND/11597/2014

Catchwords:

Appeal from Magistrates Court - Residential tenancy of social housing - Implied tenancy

Legislation:

Magistrates Court (Civil Proceedings) Act 2004
Residential Tenancies Act 1987

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr J P King

Solicitors:

Appellant: Not applicable
Respondent: Department of Housing

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

Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242

EATON DCJ: On 23 June 2014 the Western Australian Department of Housing through its body corporate, the Housing Authority, lodged a claim for recovery of possession of real property in the Magistrates Court at Perth. The defendant was Jason Roger Johnstone then of unit 3, 25 Stannard Street, Bentley in Western Australia. The claimant was seeking vacant possession of that property from the defendant. The claim was opposed.
The matter came on for hearing before her Honour Magistrate Boon in that court on 15 August 2014. Mr Johnstone appeared in person. The Department was represented by counsel. Magistrate Boon, having heard from both, gave extempore reasons for her orders on that day. She observed that there was no factual dispute. She specifically found that there was no implied tenancy, there being an express tenancy in writing in respect of unit 3, 25 Stannard Street, Bentley as between the Housing Authority and Mr Johnstone's mother, one Beatrice Chappart. Mr Johnstone, she concluded, was not a party to that agreement. Her Honour made orders that he remove all personal items and give the claimant vacant possession of the premises within 14 days and that he pay the claimant's costs in the sum of $462.
On 5 September 2014 Mr Johnstone lodged an Appeal Notice in this court. His appeal was from the orders made by Magistrate Boon. He cited one ground of appeal in the following terms: 'unnatural justice'.
Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides that a party to a case that is not a minor case may appeal to this court against any order made by the Magistrates Court in the course of proceedings in the case or the judgment of the Magistrates Court in the case. It further provides that an appeal cannot be commenced more than 21 days after the date of judgment, unless this court gives leave to do so and that the appeal must be conducted in accordance with rules of court made by this court. This court must decide the appeal on:
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted. Leave may only be given in exceptional circumstances.
Rule 50 of the rules of this court provides that an appeal to this court must be by way of a reconsideration of the evidence that was before the primary court unless the parties agree otherwise and that, at the hearing of an appeal, a party must not adduce evidence that was not adduced in the primary court except with the leave of the court. Leave is not to be granted unless the court is satisfied there are special grounds for doing so.
Rule 51 provides that the grounds of appeal in a notice of appeal must not merely allege that an appealable decision is against the weight of the evidence or that it is wrong in law, they must specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law.
The Appeal Notice filed by Mr Johnstone on 5 September 2014 was filed within time but patently did not comply with the requirements of r 51. At a case management hearing on 21 October 2014 he was ordered, appropriately, to file and serve grounds of appeal by 7 November 2014. Mr Johnstone failed to comply. At a further case management hearing on 11 November 2014 he was ordered to file 'amended grounds of appeal' on or before 9 December 2014. This latter order was confusing because there never had been any compliant notice of appeal. It did not seek to reinforce the orders initially made but rather, directed that there be amended grounds of appeals when there was, in effect, nothing to amend.
On 8 December 2014 Mr Johnstone filed an amended appeal notice. He purported to include, in 11 numbered paragraphs, his grounds of appeal. In truth each numbered paragraph comprises a statement of fact with the exception of par 11 which asserts that there was 'an implied tenancy because he was paying rental with contractual arrangement for deductions every fortnight'.
On 9 December 2014 both parties to the appeal were ordered to file 'their submissions' not less than seven days prior to the hearing which was listed for 14 January 2015. The respondent complied with that order. Mr Johnstone did not.
It is the case that when the matter was heard in the Magistrates Court there was no evidence presented by either side, whether by way of oral testimony or by way of affidavit. The matter had originally been before Magistrate Lane in a listing conference on 10 July 2014. On that occasion the Authority was represented by counsel and Mr Johnstone appeared in person. She observed that what existed as between the parties was a legal dispute and adjourned the matter to a hearing on 15 August 2014 saying: 'Now, that's a hearing in relation to whether you have an implied tenancy or not'. She expressed the hope that Mr Johnstone might, in the interim, obtain both legal advice and representation at the adjourned hearing. She made no orders as to the provision of either evidence or submissions, in writing or otherwise.
Magistrate Boon, on more than one occasion during the hearing on 15 August 2014, noted that there was no evidence before her. She noted that the matter had not been listed for trial and that, based upon what she had heard both from counsel for the Authority and from Mr Johnstone, there appeared to be relevant factual disputes. She conducted the hearing as though it were a conference between the parties. Counsel for the Authority indicated that he was in a position to call a witness and prove various relevant documents. No witness was called. No evidence was given. It appears that the learned magistrate did view certain documents handed up by counsel for the Authority. Mr Johnstone was shown them and asked to comment. The documents referred to did not become evidence and do not form part of the court record. They were not precisely identified and were not the subject of oral evidence. What occurred on the afternoon of 15 August 2014 was more in the nature of a discussion between Mr Johnstone, counsel for the Authority and Magistrate Boon.
Magistrate Lane clearly told Mr Johnstone on 10 July 2014 that she was adjourning the application by the Authority to a hearing in relation to whether or not he had an implied tenancy. Mr Johnstone attended on 15 August 2014 in the expectation, understandably, that there would be a hearing on that issue. He was not told what to expect beyond that. There was no mention by Magistrate Lane of the need to call evidence or to make submissions.
During that subsequent hearing Magistrate Boon made it clear that, so far as she was concerned, the matter was not listed for a hearing. She said that her understanding was that it was a listing conference. That comment was made despite there being on the court file, a general order to the effect that the matter was adjourned to 15 August 2014 at 2.15 pm for legal argument as to an implied tenancy.
The apparent misunderstanding by Magistrate Boon as to the purpose of the hearing might serve to explain why it was that the matter proceeded the way that it did. The rules of the Magistrates Court make it clear that the purpose of a listing conference is to list cases for trial. The matter was conducted as though it was a conference rather than a substantive hearing. There was certainly no consequent listing for trial. Instead, final orders were made.
It is fair to say that when the matter came before Magistrate Boon she was acutely aware that there was no evidence before her in any form. The implication behind the adjournment by Magistrate Lane was that there was but one issue, that being whether Mr Johnstone could be said to be an implied tenant. That does seem to have occurred in the context of what was regarded, at least by both magistrates, as common ground, that being that there was no express tenancy as between Mr Johnstone and the Authority with respect to the premises concerned. There was no formal admission in that regard. The Authority contended that Mr Johnstone was a trespasser. He contended that he was a tenant.
If it were the case that there were no factual disputes, one might have expected, at the very least, that there be an agreed statement of facts in writing as between the parties forming part of the court record. There appears to have been no agreed statement of facts, written or otherwise. There does appear to have been an assumption that certain matters were not in issue but that conclusion was arrived at by Magistrate Boon after having earlier expressed concerns that there were unresolved factual disputes.
Section 13 of the Magistrates Court (Civil Proceedings) Act provides that in dealing with cases the court is to ensure that cases are dealt with justly and that, so far as is practicable, the parties are on an equal footing. Magistrate Lane had directed that there be a hearing on a point of law. It was clearly the case that Mr Johnstone, unrepresented before both Magistrates Lane and Boon, was not on an equal footing with his opponent. It would, in my view, have been inappropriate to have required that he provide written submissions in advance of the hearing of the discrete legal question isolated by Magistrate Lane. It is the case that the matter proceeded through the Magistrates Court from beginning to end without one word of evidence being given.
As mentioned, this court is obliged to deal with an appeal on the material and evidence that was before the Magistrates Court. There was no evidence. It was clearly necessary that the matter be dealt with on the basis of evidence. In the circumstances, I decided that there were special grounds and gave leave for the presentation of evidence on the appeal.
Mr Johnstone gave evidence. He was cross-examined by counsel for the respondent. A number of relevant documents became exhibits.
In the course of his evidence he said that he and his two dogs took up residence at unit 3, 25 Stannard Street, Bentley, the property of the Department of Housing, on the weekend before Easter 2014. His mother, Beatrice Chappart, never resided there. He said that she decided, not long after the tenancy was granted, that the driveway to the premises was too steep. Mrs Chappart is 68 years old and suffers from a hip problem. Walking up and down the driveway caused her pain such that she decided to request a transfer on medical grounds. During his period of residence at the subject property the appellant was visited by his mother from time to time.
The appellant had never applied for social housing because his mother had done so. He was considerably younger and had a dog to care for. The appellant formed the view that the Housing Authority had treated his mother badly.
Mr Johnstone said that representatives of the respondent contacted him not long after his mother relinquished her tenancy, urging him to vacate. He steadfastly refused to do so. Eventually he was offered an alternative, being 215/32 Dumond Street, Bentley and on 14 October 2014 moved there with his dogs. Prior to that he refused to move. When asked why he said:
They're going to force me to move from one place where I'm allowed to have two pets to another place that's going to be not permitted to have two pets.
In cross-examination the appellant said:
So far as I was concerned I was a resident at the house with my Mum. Unfortunately Mum had accepted the wrong house.
That latter comment is a reference to his mother's realisation, following the tenancy agreement being executed, that the driveway of the premises was too steep for her. The appellant ceased paying rent for the subject premises as at 15 May 2014. I assume that he withdrew his authority to Centrelink for deduction from his sickness benefit or that it was, by some other means, terminated.

The statutory background

The purpose of the Residential Tenancies Act 1987 (the Act) is to regulate the relationship of lessors and tenants under residential tenancy agreements in Western Australia. It applies to any residential tenancy agreement entered into, renewed, extended, assigned or otherwise transferred after its commencement. It has application to the matters before me. By the Act a lessor must not enter into a written residential tenancy agreement except in the prescribed form.
This matter involves residential accommodation provided by the Western Australian Department of Housing, referred to in the Act as 'social housing'. The phrase 'social housing tenancy agreement' means a residential tenancy agreement in respect of social housing premises.
The Act defines the term 'tenancy' to mean the right of occupancy under a residential tenancy agreement and the term 'tenant' to mean a person who is granted a right of occupancy of residential premises under a residential tenancy agreement.
There is a demand for social housing. By the Act a person seeking social housing may apply in writing. The Act sets out the relevant criteria for doing so.

Findings of fact

On 11 October 2010 the appellant's mother, Beatrice Germaine Chappart, applied in writing to the Department of Housing for housing (exhibit 2). On 6 November 2012 the applicant confirmed (in an annual review) her application for social housing (exhibit 3). On that occasion she added the appellant to her application as an additional householder. The next annual review occurred on 5 November 2013.
Mrs Chappart made an application for priority rental housing and on 19 November 2013 that application was approved. A letter to that effect was sent to Mrs Chappart on that day (exhibit 5).
By letter dated 13 March 2014 Mrs Chappart was offered rental accommodation in the South City Zone. It appears that events moved quickly because there was written confirmation of Mrs Chappart's acceptance of the offer, also dated 13 March 2014 (exhibit 6), the address of the property being Unit 3, 25 Stannard Street, Bentley in Western Australia. She was told that she would be required to sign a tenancy agreement in due course.
On 21 March 2014 Mrs Chappart did sign a Social Housing Residential Tenancy Agreement in respect of Unit 3, 25 Stannard Street, Bentley (exhibit 7). It was a term of that agreement that no more than two and not less than one person might ordinarily live at the premises at any one time. The rental was $155.40 per week, 'calculated by reference to the tenant's income and the income of all other persons residing in the premises' in accordance with a specified formula. Rent was to be paid fortnightly in advance commencing on 24 March 2014.
By cl 1 of pt B of the agreement the tenant has the right to exclusive occupation and quiet enjoyment of the residential premises during the tenancy. By cl 2 of pt B of the agreement it was expressed to have been entered into with the tenant on the grounds that the tenant is eligible to reside in social housing premises.
The appellant was not a signatory to the agreement, was not mentioned by name at all in it and seems not to have been a party to it. He contends that he is an 'implied tenant'. That contention appears to me to concede that he was not a tenant at material times. That is so in that there was an express tenancy of the premises evidenced by the Social Housing Residential Tenancy Agreement as between Mrs Chappart and the Housing Authority. In accordance with the terms of that agreement, Mrs Chappart, as the tenant, was entitled to allow one other person to live at the premises the subject of the tenancy. It was contemplated that the appellant would be that other person.
As between the parties to the tenancy, the tenant was obliged to consent to rental payments being deducted directly from social security entitlements in accordance with a Rent Deduction Scheme. In that regard Mrs Chappart and the appellant, on 13 March 2014, signed an authorisation (exhibit 9) enabling Centrelink to deduct from their fortnightly social security entitlements such amounts as may be due from time to time to the Housing Authority pursuant to the tenancy agreement. Both Mrs Chappart and the appellant provided their respective Centrelink reference numbers for that purpose. The appellant's evidence was to the effect that amounts due to the Housing Authority would be equally deducted from their respective social security entitlements.
I find that the appellant lived at the subject premises from on or about 12 April to 14 October 2014. He contributed to the rental until 15 May 2014 but paid no rent thereafter. On about 14 October 2014 the appellant and his two dogs moved into a Housing Authority residential property at 215/32 Dumond Street, Bentley where he is currently resident pursuant to a social housing tenancy agreement and paying rent in accordance with it.

An implied tenancy?

The appellant's contention to the effect that he had an implied tenancy is based upon the fact that he was paying rent by way of fortnightly deductions from his social security entitlements and that he was resident at the premises.
Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 was a case in which guarantors were parties to a lease. They guaranteed performance by the lessee of its obligations 'under this lease'. The lease was not registered under the Property Law Act 1974 (Qld). The lessee went into possession and paid rent. On default by the lessee, the lessor sought to recover the amount of rent owing from the guarantors. Section 43 of the Real Property Act 1861 (Qld) provided that, until registration, no instrument was 'effectual to pass any estate or interest' in land. Section 129(1) of the Property Law Act 1974 provided that no tenancy from year-to-year should be implied by payment of rent; if there was a tenancy, and no agreement as to its duration, then such tenancy should be deemed to be a tenancy determinable at the will of either of the parties by one month's notice in writing expiring at any time. The court held, by a majority, that, because the lease was not registered, by s 129(1) of the Property Law Act, it amounted to a tenancy at will terminable on one month's notice. Thus, the obligation to pay rent, because of the non‑registration of the lease, was an obligation to pay rent under the common law tenancy, but not 'under this lease'. The guarantors had only guaranteed the lessee's obligations 'under the lease' that is, under the lease meant to be registered. Their guarantee did not extend to an equitable tenancy at will.
The rationale of that case is based on the non-registration of the lease. The High Court said, at 246 and 247, that it was obvious the parties intended the lease to be registered. The lease was in the form appropriate for registration and was certified as correct for registration by the solicitors for the lessor or the solicitors for the lessee, and otherwise complied with the statutory requirements, so that it was in registrable form. At 248, the court said the failure to register the lease did not render it void. The lease was capable of being or becoming a source of rights. The existence of the unregistered lease brought into existence an equitable lease, and occupation and the payment of rent under the unregistered lease created an implied tenancy at common law.

The appellant in the matter before me contends that the fact of his occupation and payment of rent gives rise to an implied tenancy at common law. As the foregoing demonstrates, the factual circumstances and the statutory background in Chan v Cresden are very different from those of the appellant.
It is clearly the case that there was an express tenancy agreement as between Mrs Chappart and the Housing Authority with respect to the premises. There can be no doubt that, for the period of the tenancy, the appellant was lawfully entitled to be an occupant of those premises. He was not so entitled by reason of a tenancy, but rather as a licensee arising from tenant's permission to occupy the premises. His right of occupancy created no interest in the premises and without it he would have been a trespasser.
The distinction between a tenancy and a mere licence to occupy land is basic and fundamental. As an estate in land, a tenant must be granted exclusive possession; and certain rights and obligations naturally flow from the relationship of landlord and tenant. A licence is primarily a personal privilege; often a contractual right, but the only obligations are those arising from the particular bargain made between the licensor and licensee. ('On Distinguishing a Lease From a Licence' by DN Clarke in Canterbury Law Review (1985) at 390.)
Not surprisingly, Mrs Chappart wanted a contribution from the appellant so far as rental and outgoings were concerned. Both being in receipt of social security payments, it made good practical sense for each of them to arrange for regular fortnightly deductions from their respective payments. That is what happened.
A licence is merely a personal relationship between the parties, being in the matter before me, Mrs Chappart and her son, the appellant. It follows, in my view, that upon termination of the tenancy as between Mrs Chappart and the Housing Authority, Mrs Chappart's ability to give permission to others to occupy the premises ceased. It was certainly the case that there was only a contractual relationship as between the Housing Authority and Mrs Chappart with respect to the subject premises. The authorisation addressed to Centrelink for the deduction of amounts due to the Housing Authority conveys no interest in land and grants no right of occupancy, exclusive or otherwise. As between the Housing Authority and the appellant there was no intention to create a tenancy.
It is very clear that, there being a demand for social housing and a waiting list, individual applicants are assessed and prioritised according to established criteria. The appellant was never given a right of occupation, exclusive or otherwise, of the subject premises by the Housing Authority. He was permitted to occupy the premises by his mother, the tenant.
In Land Law, Peter Butt (6^th ed, 2010) at [15 17] the author says:
Where the right to occupy is granted verbally, without writing, the court must glean the nature of the right from the parties' words and conduct viewed in the light of the surrounding circumstances.
It is the case that on 23 April 2014 Mrs Chappart signed a 'Tenancy Vacating Form' (exhibit 8) indicating that she would vacate the property as at 28 April 2014. She gave as the reason for doing so: 'change of circumstances, property not suitable'. In support of the notice she completed a statutory declaration on 23 April 2014 confirming that she had vacated the premises and that she had removed all her personal property, authorising the Department of Housing to remove any remaining items on her behalf.
It follows from the termination of the tenancy as at 28 April 2014 that Mrs Chappart had no right to occupy the premises thereafter. Her ability, as the tenant, to grant a licence to her son to remain an occupant of those premises also came to an end. Thereafter the appellant, with no licence to occupy those premises as a licensee and no right to do so as a tenant, became a trespasser upon the expiration of reasonable notice of the termination of his licence.
Section 59C of the Act provides that a person who is not a tenant but who is occupying residential premises to which a residential tenancy agreement applies may apply to a competent court to be recognised as a tenant under the agreement or to be joined as a party to any proceedings before the court relating to the premises, or both. Such an application may be made at the same time as any other application or during proceedings before the court or independently of any such other application or proceedings. The court may make an order recognising the applicant as a tenant under a residential tenancy agreement. It may also make an order joining the person as a party to proceedings. In making the former order the court may order that the tenancy be continued on such of the terms and conditions of the residential tenancy agreement as it thinks are appropriate having regard to the circumstances of the case.
On the evidence before me, no such application was made.
By letter dated 1 May 2014 (exhibit 1) addressed to the appellant at the address of the residential premises the Department of Housing informed the appellant as follows:
The above property was vacated and the keys were handed back to the department by the tenant on 23 April 2014. As discussed with yourself on 24 and 29 April 2014 you are required to vacate the property as you are now illegally occupying the premises … If you do not vacate by Friday 9 May 2014 the department will have no option but to proceed with further legal action to recover the property.
It is the case that the appellant did not comply with that requirement. Proceedings for recovery of vacant possession were commenced on 23 June 2014. By the time her Honour Magistrate Boon made the order requiring that the appellant give vacant possession to the respondent on 15 August 2014, reasonable notice of the termination of his licence had long since expired. The appellant was obstinately refusing to vacate the premises because of his misunderstanding of the legal position in which he found himself, his need to have accommodation for both he and his dogs and his sense of grievance arising from his perception of unfairness to both he and his mother at the hands of the Housing Authority. Given the many demands upon that Authority for social housing and the need to manage those demands fairly to all applicants, the appellant's sense of grievance was unfounded.
My conclusion, having heard evidence, considered the relevant documentation and the submissions of the parties both, written and oral, is that the appellant, when the respondent commenced its proceedings for relief in the Magistrates Court, had no right to occupy the subject premises. He was never a tenant and any licence that he did have to be resident there had long since expired. He was a trespasser. His appeal against the order made by Magistrate Boon on 15 August 2014 must fail. It is dismissed.