Makucha v Henaford Pty Ltd
[2013] NSWSC 200
•12 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Makucha v Henaford Pty Ltd & Anor [2013] NSWSC 200 Hearing dates: 28 February 2013; 7 and 12 March 2013 Decision date: 12 March 2013 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to paras [72], [75] and [76] of judgment.
Catchwords: EQUITY - residential tenancies - applicability of the Boarding Houses Act 2012 - applicability of the Residential Tenancies Act 2010 - meaning of "hotel" - balance of convenience for injunctive relief Legislation Cited: Residential Tenancies Act 2010
Boarding Houses Act 2012Cases Cited: Re Adelaide Caravan Park Limited v Department of Industry, Technology and Commerce (1985) 7 ALD 756
Kenmax Pty Ltd v Sydney City Council [1996] NSW LEC 65.Category: Interlocutory applications Parties: Paul Makucha (Plaintiff)
Henaford Pty Ltd (1st Defendant)
Furnished Property Group Pty Ltd (2nd Defendant)Representation: Counsel:
In person (Plaintiff)
P Newton (Defendant) (7 and 12 March 2013)
Solicitors:
John De Mestre & Co (Defendants)
File Number(s): 2013/61450
Judgment
HIS HONOUR: This is an application for an interlocutory injunction to restrain the defendants from seeking to take possession of room 122 at 75 Wentworth Avenue, Sydney either until further order or for a period of at least eight weeks.
The plaintiff currently occupies that room. By his summons the plaintiff, who was self-represented, claims a variety of other relief to which I will return in due course.
The application for the injunction against the disturbance of his occupation is the only part of the relief claimed in the summons that is urgent. Other parts of the claims in the summons would need to be pleaded. It is not obvious that there is an intelligible legal basis for all of the relief sought in the summons.
The proceedings were commenced by an application before me in the Duty Judge List on 27 February 2013. On that day I made orders for short service and other orders in relation to the form of relief to be included in a summons which was yet to be prepared and the proceedings were stood over to the following day.
On 28 February 2013 I made an order for the joinder of the second defendant and granted an interim injunction up to and including 6 March 2013 to restrain the defendants from interfering with the plaintiff's occupation of the premises known as 122/75 Wentworth Avenue, Sydney in the building known as the Central Station Hotel.
I made an order for the service of affidavits proposed to be relied upon in relation to the plaintiff's claim for interlocutory relief.
The matter came before me next on 7 March 2013 in a busy Duty Judge List and had to be adjourned from that day until this morning. The injunction was extended until today.
This morning the plaintiff provided me with a copy of a summons which he said had been served on the Governor seeking my removal from office as a Judge of the Court.
The plaintiff made certain submissions in relation to that matter. After hearing him for some time I directed that I would not hear any further submissions on that question and invited Mr Newton of counsel to resume his submissions which were part heard. When the plaintiff continued to seek to make those submissions and indicated his unwillingness to comply with the direction --
[Plaintiff entered courtroom.]
SHORT ADJOURNMENT
[In the absence of the Plaintiff.]
The delivery of these reasons was interrupted by the further statements made by the plaintiff. The plaintiff was invited to make any submissions he might wish to make in relation to the issues raised on this application but did not take that opportunity. Instead he continued to address matters upon which I had said that I was not prepared to hear him any further. I indicated that I would order the plaintiff's removal from the Court if he continued to refuse to comply. After protesting the plaintiff ultimately withdrew.
Accordingly, whilst the plaintiff has made various submissions in support of his application during the course of the hearing, to which I will have regard, he did not take up the opportunity to complete submissions in reply to the submissions made by counsel for the defendants.
The plaintiff has occupied a room in the building known as the Central Station Hotel for some time prior to 1 February 2012. I infer that he has been a resident there for some considerable time before that date. He currently occupies room 122 in the Elizabeth Street wing of the building.
On 23 January 2013 the plaintiff was given formal notice to vacate the property by 28 February 2013. The owner of the building and the operator of the business intends to commence an upgrade of that section of the building.
The first defendant is the owner of the land and building.
The second defendant is the owner of the business carried on from the building which it describes as an hotel business.
If the premises are an hotel as the defendants describe it then there is no reason to doubt that the defendants are entitled to vacant possession of the room occupied by the plaintiff. Nothing has been put forward by the plaintiff which would establish any legal right he might have to occupy the room except an argument based upon the application of the Residential Tenancies Act 2010.
If the premises are not an hotel, there is a question as to whether the plaintiff is in occupation under a residential tenancy agreement and whether the defendants would only be entitled to possession pursuant to an order from the Residential Tenancies Tribunal.
The plaintiff argues that the Residential Tenancies Act or the Boarding Houses Act 2012 apply and that the defendants are not entitled to possession.
Section 7(d) of the Residential Tenancies Act provides that that Act does not apply to premises used as a hotel.
Section 8(1)(c) provides that the Act does not apply to an agreement under which a person boards or lodges with another person.
I can deal shortly with the plaintiff's reference to the Boarding Houses Act. The relevant parts of that Act dealing with occupancy principles have not yet commenced. Even if those principles had commenced they would not assist the plaintiff. Clause 10 of Schedule 1, yet to commence, would require that the plaintiff not be evicted without reasonable notice. But the notice given of more than four weeks would be reasonable. In any event, the Boarding Houses Act does not apply to premises used as an hotel. (See ss 5(3)(b) and 37(2)(a).)
The issues, therefore, are whether there is a serious question to be tried that the Residential Tenancies Act applies and, if so, where the balance of convenience lies.
The first defendant purchased the property in February 2012.
At about the same time, the second defendant purchased the business known as Central Sydney on Wentworth or Central Station Hotel. There are two buildings in the complex.
Mr Thorpe, a director of the first defendant and the second defendant, deposed:
"6. The Central Station Hotel provides services and staffing generally consistent with budget tourist and visitor accommodation, including a concierge desk and luggage storage. Guests may purchase breakfast packs from hotel staff, and drinks and snacks are made available via vending machines. Some rooms have their own bathroom, others do not. There is no dormitory-style accommodation.
7. Of the 140 guest rooms, about 120 rooms are normally occupied by tourists or visitors to the city, who pay by the day, and about 20 are occupied by guests who pay by the week.
8. We do not promote the hotel as being available for use as a long term residence and have not signed up any new guests of this kind since we assumed ownership of the business in February 2012."
The buildings are marketed as an hotel. The marketing material includes a brochure describing four classes of rooms being premium ensuite room, deluxe ensuite room, basic ensuite room and standard budget room.
The business is promoted through the internet using third party booking sites such as Wotif, HotelsCombined, TripAdvisor and Booking.com.
When the second defendant took over the business there were about 20 occupants who paid a weekly rate, not a daily rate. The plaintiff is one such occupant.
On 9 February 2012 occupants who had been living in the building for more than 30 days were given notice that the new management required them to sign an agreement with the hotel. That agreement described the occupant as a guest and included a term that the guest or hotel manager could terminate the "guest booking" on seven days' notice.
The plaintiff refused to sign that document. However, the plaintiff has signed a form called a "Guest Registration Form" which states that only registered guests are permitted in the hotel, that is, that no visitors are permitted. The form also states a time for check out.
Up to June 2012 the plaintiff's room, along with that of longer term residents who had stayed more than 30 days, received a weekly service including a change of sheets, vacuuming and rubbish removal.
On 26 June 2012 those longer-term occupants were advised that their rooms would no longer be serviced and that from that time they would be responsible for cleaning and maintaining their rooms. They were advised that the vacuum cleaner was available on request from reception and that used linen could be swapped for clean linen from reception.
The plaintiff confirmed that the management of the building provided linen.
He says that the occupants share not only a toilet and bathroom facilities but also a kitchen, although there was no affidavit evidence directed to that question.
The business employs 14 staff including duty managers, front desk staff, maintenance providers and cleaners.
Although the facilities provided in the premises occupied by the plaintiff appear to be extremely basic, the evidence is that the premises of which the plaintiff's room is part are an hotel. There is a reception desk which is manned. The building employs a number of staff commensurate with a hotel business. Food in the form of breakfast packs is available to visitors. Drinks and snacks are available from vending machines. Linen is supplied and luggage storage is available for the guests.
Except for the longer-term residents, to whom notice was given in June 2012, the rooms are serviced.
The management of the business now focuses its business on shorter-term guests.
The fact that the plaintiff's room is no longer serviced does not mean that the premises should not be characterised as a hotel. In any event, the management provides cleaning equipment to the plaintiff.
There is a range of available rooms offered for short-term occupancy to the public generally. That is not to say that the management might not be permitted to refuse entry to the building as an hotel to a person whom the management considered to be undesirable. But the business is marketed to the public generally, in particular, the travelling public.
The distinction between a basic hotel and a boarding house might not always be clear.
In the present case, it is clear that alcohol is not permitted in the rooms but that does not mean that the building is not used as an hotel. A temperance hotel is an hotel. Nor does the fact that the plaintiff is a long-term occupant mean that the premises are not an hotel.
The plaintiff submitted that the building did not conform with the requirements of the Building Code of Australia for an hotel. There was no evidence about that. The plaintiff made assertions as to what that Code required. But even if it is the fact that the building does not comply with the Building Code of Australia, and even if it does not comply with the terms of building or development approvals, that does not mean that the premises are not used as an hotel.
I was referred by the plaintiff to definitions in the Fifth Edition of Stroud's Judicial Dictionary of "hotel", "inn" and "inn-keeper" and I have considered those decisions as well as other authorities, including Re Adelaide Caravan Park Limited v Department of Industry, Technology and Commerce (1985) 7 ALD 756 at 765-767 and Kenmax Pty Ltd v Sydney City Council [1996] NSW LEC 65.
It is clear from the authorities that the word "hotel" is not a technical term with connotations derived from the common law as might be the case in relation to the word "inn".
What is denoted by the word "hotel" has changed over time.
The Macquarie Dictionary gives as its first definition of "hotel":
"A building in which accommodation and food and sometimes other facilities are available".
The premises satisfy that definition.
Importantly, in the present case, some food is available. The premises are marketed to the travelling public generally. That is to say, it appears that there is not the control over the choice of occupant that would be expected in the case of a guesthouse or a boarding house. Linen is supplied, the rooms are serviced, save for the longer-term residents to whom notice was given in June 2012.
In my view if the evidence remained unchanged at a final hearing, the defendants would establish that the premises are used as an hotel and that the Residential Tenancies Act does not apply.
On the evidence adduced on this application I do not consider that there is a serious question to be tried that that Act applies.
In any event, the balance of convenience would not favour the extension of the injunction.
The plaintiff says that he needs eight weeks in order to find alternative accommodation; at least I infer that that is his position from the form of the relief sought in the summons.
In the course of submissions he said that he had a large number of files and documents, which I understand he has obtained in connection with other proceedings in this Court which he would be unable to store elsewhere.
The plaintiff this morning tendered a letter from a Dr Summers who stated that the plaintiff is undergoing further tests for his heart and a pressure sore, that these procedures would not be completed until 4 April 2013 and that the plaintiff could not relocate at the present time.
I rejected the tender of that letter. It is hearsay, that is, it is not a statement that is made on oath in the proceedings. In any event, the doctor did not give his reasons for his conclusion that the need for on-going tests precluded the plaintiff's relocation.
The defendants are proposing to commence a redevelopment of the floor of the building in which room 122 is situated. Under the proposed development that room will become a kitchen or dining area. All of the other rooms on that level of the building have been vacated.
Mr Thorpe deposes that a construction certificate has been issued and that the plaintiff is the only guest who has not vacated the premises and that his continued presence is causing a loss of revenue estimated to be in the order of $4,500 per week.
Moreover, the defendants have offered assistance to the plaintiff to provide him with alternative accommodation. It appears that from about 25 or 26 February the plaintiff took the view that he would not leave. The defendants have put the plaintiff in touch with other possible organisations and provided him with copies of advertisements of other places available for lease but have not been contacted by him.
There was also evidence from the defendants that the plaintiff is a disruptive presence in the establishment.
In my view the balance of convenience would not favour the continuation of the existing orders even had I been satisfied that there is a serious question to be tried that the plaintiff has a legal right to continue to occupy his room.
For these reasons I order that the order made on 7 March 2013 that the operation of Order 3 made on 28 February 2013 be extended up to and including 12 March 2013 be discharged.
I have said that the balance of the claims in the summons do not have the same amount of urgency.
The summons includes a claim described as "negligence, damages, not less than $100 million" and "payment of all money 48 hours prior to Makucha leaving not less than $250,000 or such as the Court determines".
The summons also includes what appears to be claims for orders that the defendants provide the plaintiff with the names of all directors, reception staff, housekeeping staff, an Indonesian in-house builder and the names of female housekeeping staff who wear scarves.
It is not clear what the basis of these claims is. It may be that the plaintiff is seeking the names of potential defendants by way of an application for preliminary discovery under r 5.2 of the Uniform Civil Procedure Rules, but there is no notice of motion or affidavit which explains the basis of that claim. Nor is there any affidavit, let alone pleading, to support the balance of the claims in the summons.
The appropriate course is to stand over the summons for four weeks to the Registrar's List. If either the plaintiff or the defendants seek any interlocutory or summary relief, any such application should be made by way of notice of motion supported by an appropriate affidavit.
The plaintiff should also give consideration to the rules requiring the claim for damages to be pleaded.
The summons also describes the claim as including:
"Termination to achieve a criminal purpose
NSW Crimes Act
Attempted manslaughter
attempted murder"
Again, it is not clear whether the plaintiff in these proceedings is seeking to bring a criminal prosecution. If that is his intention then these proceedings are not the appropriate vehicle for such a claim.
It appears from documents tendered by the plaintiff and from statements made by him that he complains that in August of last year he was found on the floor of the room he then occupied and that he had been in that room on the floor for 72 hours before an ambulance was called, unable to move.
I apprehend that his claim for damages, and perhaps his claim for the discovery of names, may be in respect of that matter. The claim for damages would need to be properly pleaded.
For these reasons I stand over the summons to the Registrar's List at 9.00am on 9 April 2013 and I will hear the defendants on the question of costs.
[Counsel for the defendants addressed.]
The defendants seek an order for costs in respect of the application of which they have been successful.
In my view they are entitled to that order.
I order that the plaintiff pay the defendants' costs of the application for the interim injunction to restrain the defendants from seeking to disturb the plaintiff's occupation of the room he occupies.
These orders may be entered forthwith.
Decision last updated: 15 March 2013
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