Marguerite Cottell v Jo Caddy No. SCGRG1510 of 1992 Judgment No. 3682S Number of Pages 3 Statutes Interpretation

[1992] SASC 3682

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Statutes - interpretation - Appellant sued for recovery of rent said to have been paid under mistake of law - Respondent instituted proceedings in the Local Court pursuant to Residential Tenancies Act 1978, 521 - Appellant applied to magistrate for an adjournment of those proceedings to allow Residential Tenancies Tribunal to consider an application under s9l to dispense with requirement of notice in writing of increases in rent under 534 - Magistrate refused adjournment, held the application under 591 was also before him and refused order sought from Tribunal. Held: Ss 21 and 90 must be read together - An application under s91 is exclusively for the Tribunal but application to recover could go to a court - Appeal allowed - Magistrate's judgment on both claim and counter-claim set aside - Matter should all be before Tribunal. Residential Tenancies Act 1978 ss 21,34,90,91 and Local and District Criminal Courts Act 1926 s58. In Re Residential Tenancies Act; Noy V Public Trustee (1985) 39 SASR 504, considered.

HRNG ADELAIDE, 21 October 1992 #DATE 5:11:1992
Counsel for appellant:     Mr R.W. Evans
Solicitors for appellant:    Armour and Co
Counsel for respondent:     Mr W.R. Retalic
Solicitors for respondent: Sykes Bidstrup

ORDER
Appeal allowed.

JUDGE1 PRIOR J The appellant was sued by the respondent for the recovery of rent said to have been paid under a mistake of law. The appellant was alleged to have failed to comply with s34 of the Residential Tenancies Act 1978. Section 34 requires any increase in rent payable under a residential tenancy agreement to be by notice in writing by the landlord to the tenant not less than sixty days before the increase applies. Section 90 of the Act was invoked by the respondent. She claimed to have paid increases in rent from January 1981 to January 1989 through a mistake of law, that mistake being that she believed she was bound to pay those increases when s34 of the Act applied to make the increase unlawful in the absence of a notice in writing. 2. Section 90 of the Act provides:-
    "Where a party to a residential tenancy agreement pays any
    amount to the other party under a mistake of law or fact
    relating to the agreement, that party may -
     (a) upon application to the Tribunal, recover that amount from
    the other party; or
     (b) in the case of payment by the tenant, deduct the amount
from rent payable under the agreement." 3. At the time these proceedings were instituted s21 of the Act provided:-
    "(1) Subject to this section, the Tribunal shall have
    exclusive jurisdiction to hear and determine any matter that may
    be the subject of an application to it under this Act.
     (2) The Tribunal shall not have jurisdiction to hear and
    determine any monetary claim where the amount claimed exceeds $2
    500 unless the parties to the proceedings consent in writing
    (which consent shall be irrevocable) to the claim being heard
    and determined by the Tribunal.
     (3) Where pursuant to subsection (2) of this section, the
    Tribunal does not have jurisdiction to hear and determine a
    monetary claim, the claim shall be justiciable by a court
    competent to hear and determine a claim founded on contract for
    the amount of that claim.
     (4) Where in any action in a court having jurisdiction
    pursuant to subsection (3) of this section the plaintiff
    recovers an amount less than the amount referred to in
    subsection (2) of this section, the plaintiff shall not be
    awarded any costs unless the court is satisfied that at the time
    of instituting the proceedings there were reasonable grounds for
    the plaintiff to believe that he had a claim for an amount
    exceeding the amount referred to in subsection (2) of this
section." 4. The respondent's claim was for more than $2,500. Proceedings were instituted in the Local Court, subsection (3) of s21 being relied upon. 5. In the course of the proceedings before the magistrate an application was made to have the proceedings adjourned to permit the hearing by the Residential Tenancies Tribunal of an application lodged with the Tribunal by the landlord for an order that s34 not apply in relation to this tenancy agreement. Section 91 provides:-
    "The Tribunal may, upon application by any person, if the
    Tribunal considers it necessary or desirable in the
    circumstances, order that a provision of this Act shall not
    apply to or in relation to any residential tenancy agreement or
    prospective residential tenancy agreement or any premises or
    shall apply in a modified manner specified in the order and the
order shall have effect accordingly." 6. The respondent's counsel opposed the adjournment. The magistrate refused it and upheld a submission that the power conferred on the Tribunal by s91 was available to him in the proceedings seeking recovery of the increase in rental. The magistrate refused to order that s34 not apply to the tenancy agreement and gave judgment for the respondent for $18,873.50 after allowing the appellant's counter claim in the sum of $1,000. 7. The appellant submits that the magistrate had no jurisdiction to hear the respondent's claim. In the alternative, it was put that the magistrate erred in refusing an adjournment to permit an application to the Tribunal and also erred in proceeding to consider the exercise of the jurisdiction conferred upon the Tribunal by s91 of the Act. 8. The respondent seeks to uphold the magistrate's jurisdiction to hear the claim and his refusal of the s91 order which the appellant sought from the Tribunal. 9. It was put that when exercising the jurisdiction conferred by subsection
(3) of s21 the magistrate was vested with all the Tribunal's powers and that any appeal from the magistrate's decision is governed by s29 of the Act so that an appeal is not competent to this court. 10. Nothing in the Act or the submissions persuades me that "Tribunal" in the Act is to be construed to include a court referred to in (3) of s21. The definition of the Tribunal in s5 does not help. An alternative to "the Tribunal" referred to in (a) of s90 is discovered by the terms of s21, not by construing "Tribunal" to include a court gaining a jurisdiction denied to the Tribunal but conferred on it. 11. The appellant submitted that the cause of action created by s90 is confined to applications within the jurisdiction of the Tribunal. The Tribunal's jurisidiction in this case being limited to $2,500, the remedy sought to be pursued in the Local Court is not a remedy conferred by law at all. Counsel sought to rely upon a decision of the Full Court in In re Residential Tenancies Act; Noy v Public Trustee (1985) 39 SASR 504. It was said that certain observations of the Chief Justice at pp508 and 509, together with an answer given to one of seven questions reserved for consideration of this Court, supported the submission. I do not agree that that case answers the jurisdictional questions now raised. 12. Section 90 must be read in conjunction with s21. That means that the words "upon application to the Tribunal" in s90, must be read not to deny a right of recovery for a sum beyond the jurisdiction of the Tribunal but to acknowledge that the application in this case was properly made to a Local Court in virtue of the provisions of subsections (2) and (3) of s21. Had the parties consented in writing under (2) of s21, the jurisdiction of the Tribunal was exclusive and not limited to a claim for $2,500. The reference to the Tribunal alone in s90 is properly understood against the reference to exclusive jurisdiction in the Tribunal in (1) and (2) of s21. A qualification to the application under s90 being to the Tribunal is expressed in (2) of s21. If the claim exceeds a certain amount consent in writing is required for the Tribunal's jurisdiction. In its absence, "the claim is justiciable by a court competent to hear and determine a claim founded on contract for the amount of that claim". 13. Sections 21 and 90 can and must be read together. To uphold the appellant's objection would be to make recovery of some amounts depend upon the written consent of the parties. That cannot be Parliament's intention. Parliament's intention was to permit a recovery in an ordinary court only if the Tribunal had neither the obvious jurisdiction nor that which depended upon written consent of the parties. It cannot have intended that recovery could be denied at all because an application lacked written consent. 14. Whilst upholding the magistrate's jurisdiction in the absence of written consent, I deny that he had the power to consider the s91 application. That was for the Residential Tenancies Tribunal alone. The magistrate ought to have granted the adjournment sought so that the Tribunal could consider the application made under s91. I reject the respondent's argument that s29 is the source of any appeal right. The right of appeal here arose under s58(1)(a) of the Local and District Criminal Courts Act, 1926. I extend time within which to set down the notice of appeal to permit the appeal to be determined on the notice filed. 15. I allow the appeal and set aside the magistrate's judgment on both the claim and counter-claim. The appellant has indicated that she intends to pursue the s91 application before the Tribunal. The parties should consider consenting in writing to the claim being heard by the Tribunal altogether. I make no order as to a rehearing at this time. Counsel for the appellant is content to have the judgment on the counter-claim set aside at this time, but without prejudice to the right to proceed afresh. There seems merit in everything in dispute being before the Tribunal. Liberty to apply.