Jordan v Community Housing Limited - [2024] TASSC 63

[2024] TASSC 63

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Jordan v Community Housing Limited [2024] TASSC 63
PARTIES:	JORDAN, Lorraine
v
COMMUNITY HOUSING LIMITED
FILE NO:	1145/2024
DELIVERED ON:	12 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	29 October 2024
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Landlord and tenant – Residential tenancies legislation – Recovery of possession – Generally – Approved occupant denied continued occupation of premises by landlord following tenant's termination of lease – Whether a pre-existing lease agreement is required to constitute a "residential tenancy agreement" under s 10 of the Residential Tenancy Act 1997 (Tas) – No pre-existing lease agreement required provided necessary elements are satisfied – Landlord's adjustment of rent on basis of appellant's income as approved occupant constitutes grant of occupancy for value.

Aust Dig Landlord and Tenant [217]

Legislation:
Magistrates Court (Civil Division) Act 1992 s 28(2)

Residential Tenancy Act 1997 (Tas) ss 10, 11(1)(b), 16A, 57(3)-(4)

Cases:
Case v Frimont [2021] NSWCA 30

Director of Housing v Lefevre [2021] TASSC 33

REPRESENTATION:

Counsel:

Appellant: A Dinelli KC, S Molyneux
Respondent: F Brimfield

Solicitors:

Appellant: Tenants' Union of Tasmania
Respondent: Hall and Wilcox

Judgment Number:	[2024] TASSC 63
Number of paragraphs:	33

Serial No 63/2024 File No 1145/2024

LORRAINE JORDAN v COMMUNITY HOUSING LIMITED

REASONS FOR JUDGMENT

MARSHALL AJ
12 November 2024

1 This matter is an appeal from a decision of a magistrate, made on 30 April 2024, in which her Honour decided she had no jurisdiction to entertain an application by the appellant, purportedly made under s 57(3) of the Residential Tenancy Act 1997 ("the Act"). The appeal is brought under s 28(2) of the Magistrates Court (Civil Division) Act 1992. That section permits a party to a proceeding in respect of a minor civil claim, to appeal to this Court on the ground that the magistrate lacked or exceeded jurisdiction, or any other ground by leave. See Director of Housing v Lefevre [2021] TASSC 33 at [18] per Wood J.
2 Under s 57(3) of the Act, a party to a residential tenancy agreement may apply to the Magistrates Court for an order authorising that party to alter, add or remove any lock or security device. Under s 57(4) the Magistrates Court may make an order under s 57(3) if satisfied that it is reasonable to do so in the circumstances.
3 The reason for the application to the Magistrates Court under s 57(3) by the appellant was that on 29 September 2023, the appellant was locked out of her residential home by the respondent.
4 The reason for the lock out was that the respondent considered the appellant had no legal right to remain in that home. The home will be referred to in these reasons hereinafter as "the property". The respondent is treated as the owner of the property for practical purposes, pursuant to a residential management agreement under s 16A of the Act with Homes Tasmania.

Background Facts

5 In 2011,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] TASSC 63
Decision Date: 12 November 2024

CaseChat Overview and Summary

Jordan was involved in a legal dispute with Community Housing Limited. The conflict centred on the interpretation of the "residential tenancy agreement" as defined under section 10 of the Residential Tenancy Act 1997 (Tas), specifically whether a pre-existing lease agreement was necessary for such an agreement to exist. Jordan, an approved occupant, was denied continued occupation of the premises after the termination of the lease. The court was required to decide whether the landlord's adjustment of rent based on Jordan's income as an approved occupant constituted a grant of occupancy for value.

The court considered the legislative framework and previous case law to determine whether a residential tenancy agreement could be established without a pre-existing lease agreement. It concluded that the necessary elements of a residential tenancy agreement could be satisfied even without a formal lease, provided that there was an occupancy for value. In this case, the landlord's adjustment of rent based on Jordan's income as an approved occupant was deemed to constitute such occupancy for value. Therefore, the court held that a pre-existing lease agreement was not required to constitute a "residential tenancy agreement" under the Act.

Based on the court's reasoning, it found that Jordan was entitled to continued occupation of the premises. The court ruled that the landlord's actions in adjusting the rent constituted a grant of occupancy for value, thereby establishing a residential tenancy agreement. Consequently, the landlord's denial of continued occupation to Jordan was deemed unlawful. The court's decision reinforced the importance of considering the practical aspects of occupancy and income-based rent adjustments when interpreting the provisions of the Residential Tenancy Act 1997 (Tas).

Orders