Matautia Developments Pty Ltd v Di Liristi

[2021] NSWCATCD 77

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Matautia Developments Pty Ltd v Di Liristi [2021] NSWCATCD 77

Hearing dates:

29 November 2021

Date of orders:

21 December 2021

Decision date:

21 December 2021

Jurisdiction:

Consumer and Commercial Division

Before:

K Rosser, Principal Member

Decision:

1. Leave for legal representation is granted.

2. The residential tenancy agreement between the parties is terminated immediately and the respondent is to give vacant possession of the residential premises to the applicant on 3 January 2022.

Catchwords:

RESIDENTIAL TENANCY – Termination and possession - Transfer from Supreme Court – Res judicata

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2010 (NSW)

Cases Cited:

Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58

Blair v Curran [1939] HCA 23; 62 CLR 464

Burns v Corbett [2018] HCA 15

Di Liristi v Matautia Developments Pty Ltd [2020] NSWCATAP 166

Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862

Di Liristi v Matautia Developments Pty Ltd (No 7) [2021] NSWSC 760

Ndaira v Allways Building NSW Pty Ltd [2018] NSWCATAP 279

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Matautia Developments Pty Ltd (Applicant)
Antonio Di Liristi (Respondent)

Representation:

Counsel:
A Avery-Williams (Applicant)

Solicitors:
Centurion Lawyers (Applicant)
Respondent (Self-represented)

File Number(s):

RT 21/29690

Publication restriction:

Nil

Reasons for decision

Introduction

1. These reasons for decision concern proceedings that were transferred to the Tribunal by the Supreme Court of New South Wales on 23 June 2021: Di Liristi v Matautia Developments Pty Ltd (No 7) [2021] NSWSC 760 Relevantly, in those proceedings Cavanagh J made the following order:

3) Order that the proceedings be transferred to the Tribunal for the making of an order for termination of the residential tenancy agreement dated 7 June 2019 and possession of the premises at … Austral in accordance with the declaration of the Court made on 11 June 2021.

2. Upon transfer of the proceedings, they were allocated the file number RT 21/29690.

3. In the transferred proceedings, the applicant sought the following orders:

1. The residential tenancy agreement between the parties is terminated immediately.

2. Possession of the premises to be given to the landlord immediately.

3. The order for possession is suspended for 7 days from the date of the Tribunal’s orders.

4. The applicant did not seek an order for payment of an occupation fee.

5. The respondent opposed the orders sought on the basis that the Tribunal has no jurisdiction to deal with the application. The respondent also argued that the termination notice relied on by the applicant is invalid and the issuing of the notice was not authorised by the applicant’s director. The respondent submitted that the Tribunal is not bound by Cavanagh J’s findings. In the event that the Tribunal made orders for termination and possession, the respondent sought four to five weeks to vacate the premises.

6. For the reasons that follow, I have made an order terminating the residential tenancy agreement and an order requiring possession to be given to the applicant on 3 January 2022.

Background

7. There is a residential tenancy agreement between the parties dated 7 June 2019. On 20 March 2020, the applicant’s solicitor issued a termination notice to the respondent. The notice required the respondent to give possession of the premises to the applicant on 6 April 2020. The notice listed the following alleged breaches of the residential tenancy agreement as grounds for termination under s 87 of the Residential Tenancies Act 2010 (the RT Act):

1. Use of the Premises for illegal purposes in breach of clause 15.1;

2. Intentionally or negligently caused or permitted damage to the residential premises in breach of clause 15.4;

3. Failure to keep the Premises reasonably clean in breach of clause 16.1;

4. Failure to notify damage to the Premises in breach of clause 16.2; and

5. Failure to obtain written permission to alter or add to the Premises in breach of clause 27.1.

8. The notice also stated that it was given on the ground that the respondent had intentionally or recklessly caused or permitted serious damage to the premises. On this basis, termination was also sought under s 90 of the RT Act.

9. The applicant subsequently lodged an application in the Consumer and Commercial Division of the Tribunal on 14 April 2020 seeking orders for termination and possession: RT 20/16607. The application first came before the Tribunal on 1 May 2020, when the Tribunal made procedural directions by consent, granted leave for legal representation and adjourned the matter for hearing.

10. The respondent unsuccessfully appealed the Tribunal’s decision to the Appeal Panel: Di Liristi v Matautia Developments Pty Ltd [2020] NSWCATAP 166. Among the issues raised on appeal was the order granting leave for legal representation, to which the tenant objected. In relation to this issue, the Appeal Panel found that Tribunal proceedings were of sufficient complexity for the parties to be given leave to be legally represented, in accordance with s 45 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act): Appeal Panel’s reasons for decision at [31]. The appeal was dismissed on 7 August 2021.

Respondent’s proceedings in the Supreme Court – summary dismissal application

11. On 5 March 2020, prior to the applicant commencing proceedings in the Tribunal, the respondent commenced proceedings in the Supreme Court of New South Wales by way of summons. The respondent sought a range of relief, including a declaration that the applicant was estopped from terminating the lease in respect of the premises at Austral. The respondent unsuccessfully sought summary dismissal of the applicant’s proceedings: Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862. In dismissing the summary dismissal application, the Court also found that the Tribunal had ceased to have jurisdiction to deal with the application for termination and possession, stating at [77] to [80]:

77 Since proceedings were commenced in this Court before the proceedings in NCAT and the issues in this Court relate to the termination and other aspects of the residential tenancy agreement, NCAT does not have jurisdiction to deal with Matautia’s application for termination and other aspects of the residential tenancy agreement, by virtue of cl 5(7) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

78 Pre-existing proceedings in a court, as defined in cl 5(1) of Sch 4, affect NCAT’s jurisdiction in relation to matters such as the first defendant’s application under the RT Act, which are allocated to the Consumer and Commercial Division of the Tribunal under cl 3(1) of Sch 4 to the NCAT Act. Clause 5 of Sch 4 to the NCAT Act relevantly provides:

“(1) Meaning of “court” For the purposes of this clause, court means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that—

(a) is empowered under any other Act, or

(b) by consent of, or agreement between, 2 or more persons has authority,

to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.

…

(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

(8) Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.

(9) Evidence from court proceedings In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.

(10) Clause prevails over other law This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.”

79 There was no dispute in the present case that this Court is a “court” for the purposes of cl 5 of Sch 4 to the NCAT Act.

80 Since these proceedings were commenced before the application was filed in NCAT and an issue relating to the termination of the residential tenancy agreement is the subject of a dispute in these proceedings, “the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue”. In the present case, it is apparent from correspondence to the parties from the Tribunal, which refers to the proceedings in this Court and its potential to affect the jurisdiction of the Tribunal, that the Tribunal is aware of the proceedings in this Court. Consequently, the Tribunal has “cease[d] to have jurisdiction to hear or determine the issue” of termination or any other relevant issues which are otherwise raised in these proceedings.

12. The applicant withdrew proceedings RT 20/16607 on 16 July 2021 and the application was dismissed.

Supreme Court proceedings – Findings on respondent’s cross-claim in relation to termination of the tenancy agreement

13. After a number of interlocutory issues were dealt with by Cavanagh J, the respondent’s proceedings in the Supreme Court were heard over six days in March 2021. The applicant filed a cross-summons in the proceedings, seeking a declaration that the respondent breached the tenancy agreement by introducing or causing or permitting to be introduced polluted material the subject of a Clean-Up Notice issued by Liverpool City Council. The applicant also pleaded breaches of various clauses of the tenancy agreement which it said were sufficient to justify termination of the agreement. The applicant sought an order for possession of the property, as well as damages. Alternatively, the applicant sought a contribution to the cost of the clean-up of the premises and payment of unpaid rent.

14. Cavanagh J’s judgment in respect of the substantive issues in the parties’ respective proceedings was published on 11 June 2021: Di Liristi v Matautia Developments Pty Ltd (No 6) [2021] NSWSC 663. Relevantly to these proceedings, Cavanagh J made the following declarations:

(2) I declare that the first defendant has validly terminated the residential tenancy agreement dated 7 June 2019.

(3) I declare that the first defendant is entitled to possession of the property.

15. Cavanagh J made a number of findings in relation to the termination notice and the claim under s 90 of the RT Act at [171] to [175]. The “first defendant” is the applicant in these proceedings and “the plaintiff” is the respondent.

171 The termination notice was issued by the first defendant through its solicitors. Whilst the plaintiff devoted some time in attempting to establish who was providing instructions and who was authorising the conduct on behalf of the first defendant, those matters are irrelevant. Whether the solicitors were directed to serve the termination notice by the director, a consultant or some other person acting with the authority of the first defendant, would seem to be irrelevant.

172 Further, a comparison of the termination notice with s 87 of the Residential Tenancies Act 2010 confirms that the notice complies with s 87.

173 Finally, bringing a large quantity of contaminated soil onto land without the consent of the lessor constitutes a breach of the tenancy agreement for the following reasons:

(1) firstly, the plaintiff has allowed the property to be used for the purposes of illegal dumping of soil contaminated with asbestos in breach of clause 15.1 of the tenancy agreement;

(2) secondly, in permitting contaminated soil to be dumped onto the property, the plaintiff has intentionally permitted damage to the property in breach of clause 15.4;

(3) thirdly, the plaintiff has failed to keep the property reasonably clean in breach of clause 16.1; and

(4) fourthly, the plaintiff has altered or added to the property without the first defendant’s written permission.

174 Further, I accept that the plaintiff has intentionally or recklessly caused or permitted serious damage to the property within the meaning of that term in s 90(1)(a) of the Residential Tenancies Act 2010.

175 In all the circumstances, I find that the first defendant has validly terminated the tenancy agreement. The matter should be remitted to NCAT to make the appropriate orders.

16. The respondent had argued that the applicant was estopped from terminating the tenancy agreement. In relation to this issue, at [176] to [179] Cavanagh J found (citation omitted):

176 Whilst the plaintiff’s pleading in relation to estoppel is somewhat vague, I understand that he asserts that:

(1) the first defendant is estopped from terminating the tenancy agreement because it consented to the introduction of the contaminated fill onto the land; and/or

(2) the first defendant is estopped from taking action which would interfere with the plaintiff’s rights to sublease part of the property.

177 For the purposes of the plaintiff’s claim, it is only necessary to say that the plaintiff must establish that the first defendant has, by its words or conduct, represented the existence of a fact or certain state of affairs and that the plaintiff, in reliance on such words or representation, has acted to his detriment. In those circumstances, the first defendant would be estopped from altering its position.

178 The plaintiff’s case on estoppel in respect of the sublease is unclear to say the least. It appears to be that, because there was a term in the tenancy agreement which permitted the plaintiff to sublease and because the plaintiff had a conversation with representatives of the first defendant about subleasing, the first defendant should now be estopped from doing anything which would interfere with the right to sublease.

179 There is a term of the tenancy agreement which permits the plaintiff to sublease. On his evidence, he was subleasing and deriving an income from the subleasing. However, he has not adduced any evidence which would suggest that the first defendant represented that it would not act to terminate the tenancy agreement (even though he was in breach of the tenancy agreement) because it would interfere with his right to sublease.

180 The plaintiff’s evidence on the second aspect of his estoppel claim is really his alleged conversation with Dean Alcorn. Mr Alcorn denies that such a conversation took place. I have already made findings on the factual issue.

181 The plaintiff has not discharged the onus which he bears in establishing the representations on which he relies. The plaintiff is not entitled to succeed on his estoppel claim.

17. Final orders were made on 23 June 2021: Di Liristi v Matautia Developments Pty Ltd (No 7) [2021] NSWSC 760 as follows:

(1) Judgment for the First Defendant on the First Defendant’s cross-claim against the plaintiff in the sum of $311,389.00.

(2) Plaintiff to pay the Defendants’ costs.

(3) Order that the proceedings be transferred to the Tribunal for the making of an order for termination of the residential tenancy agreement dated 7 June 2019 and possession of the premises at 62 Kelly Street, Austral in accordance with the declarations of the Court made on 11 June 2021.

18. As a result of order (3), the Tribunal received the transferred file from the Supreme Court on 5 July 2021. The file was given the current application number: RT 21/29690

19. On 8 July 2021, the Tribunal made the following orders:

This matter has been transferred to the Tribunal from the Supreme Court of New South Wales to make orders consequent to the Court's findings that the tenancy agreement has been validly terminated and that the landlord is entitled to possession: see Di Liristi v Matautia Developments Pty Ltd (No 6) [2021] NSWSC 663, in particular at order 3 and [171] to [175].

The following orders are made to facilitate determination of the relevant issue, that is, the making of orders for termination and possession:

1. The landlord is to provide to the tenant and the Tribunal details of the orders sought and any evidence and submissions in support of the orders sought by 16 July 2021.

2. The tenant is to provide to the landlord and the Tribunal any evidence and submissions in response to the material provided by the landlord by 23 July 2021.

3. The landlord is to provide to the tenant and the Tribunal any evidence and submissions in reply by 30 July 2021.

4. All lay evidence is to be in the form of a statutory declaration or affidavit.

5. In their submissions, the parties are to address whether a hearing can be dispensed with and orders made on the basis of the written material provided.

6. Documents must be provided in hard copy, in an indexed, tabbed and paginated bundle.

20. On 23 July 2021, time to comply with orders 2 and 3 was extended to 30 July and 6 August 2021 respectively.

21. On 25 July 2021, the respondent advised the Tribunal that there were pending Court of Appeal proceedings.

Court of Appeal proceedings

22. On 5 July 2021, the respondent filed a Notice of Appeal in the NSW Court of Appeal.

23. On 27 July 2021, Brereton J relevantly made the following order:

(2) Until the hearing of the appeal or earlier further order, the respondent be restrained from prosecuting any application for an order for possession in proceedings in the New South Wales Civil and Administrative Tribunal, including the transferred proceeding file number RT21/29690;

24. The appeal was heard on 3 November 2021. The Court reserved judgment and dissolved order 2 made by Brereton J on 27 July 2021.

25. As a consequence the applicant requested that the matter be listed for the purpose of the Tribunal making orders for termination and possession. The respondent opposed this course and sought an extended timetable to put on evidence and submissions, citing (among other issues) his health condition and the effects of the Covid-19 pandemic.

Tribunal proceedings – interlocutory issues

26. The matter was listed for hearing by the Tribunal on 29 November 2021. On 16 November 2021 the Tribunal, constituted by Deputy President Harrowell, made procedural directions setting a timetable for the filing and service of any further evidence and submissions. The Tribunal published written reasons for decision in respect of the listing of the hearing and the making of the orders.

27. On 25 November 2021, an email was received from a person who referred to himself as “Colin Security Investigator”. The email objected to the listing of the hearing, referring to the respondent’s health issues and listing the medication he takes. The email attached a medical certificate dated 16 September 2021 from Dr M Hamad from West Hoxton Medical Centre, stating that the respondent was “unfit for work/study’ from 18 September 2021 to 18 December 2021.

28. On the same date, the Tribunal, again constituted by Deputy President Harrowell, published the following orders and reasons for decision:

1. The proceedings remain listed for hearing on 29 November 2021.

2. Any further application for an adjournment by Mr Di Liristi is to be dealt with on that day and is to be supported my statutory declarations from relevant witnesses or medical reports from any experts.

3. Any medical reports must expressly deal with why Mr Di Liristi is unable to comply with the Tribunal's directions and why he is unable to attend a hearing by telephone or video link.

4. Mr Di Liristi has leave to be represented by a support person at the hearing on (date), subject to any order the Tribunal may make in connection with the particular person appointed. The name of that person and details of their relationship to Mr Di Liristi must be notified within 7 days from the date of these orders.

5. In the event Mr Di Liristi is incapable of conducting the proceedings due to his medical condition, consideration will be given to the Tribunal appointing a guardian ad litem under s 45 of the Civil and Administrative Tribunal Act 2013.

6. Any evidence in support of the application to adjourn as required by orders 2 and 3 must be filed and served by 9:00 am on 29 November 2021.

7. A copy of email from "Colin, Security Investigator" dated 25 November 2021 and the attachment thereto is to be provided to the applicant with these orders.

Reasons

Directions were made and reasons were previously given concerning when these proceedings should be heard. Due to the proximity of the hearing, any adjournment application should be dealt with at that time.

Tribunal hearing

29. The hearing proceeded on 29 November 2021. The respondent did not make a further application for an adjournment on the bases set out in his previous correspondence or in the email from “Colin, Security Investigator”.

30. Ms Avery-Williams of Counsel sought leave to appear for the respondent. The respondent objected to leave being granted. I was satisfied that leave should be granted and gave reasons for that decision orally. In summary, I gave leave because I was satisfied that the matter involved a degree of factual and legal complexity. The respondent did not seek an adjournment of the hearing when leave was given.

31. The respondent was self-represented. He provided documents to the applicant and the Tribunal prior to the hearing. Written submissions and an executed version of his affidavit dated 28 November 2021 were sent by email during the hearing.

32. At the end of the hearing, I reserved my decision.

Evidence and submissions

33. In making a decision in relation to the application, I have considered the following:

1. The bundles of documents filed by the applicant on 19 July and 26 November 2021 respectively, which were tendered and marked Exhibit A. These documents include submissions and the affidavits of Maroun Antoine Draybi dated 13 July 2021 and 25 November 2021. These affidavits deal with procedural issues.

2. The bundle of documents filed by the respondent prior to and during the hearing on 29 November 2021 which were tendered and marked Exhibit B. The documents include submissions and the respondent’s affidavit dated 28 November 2021. In his affidavit, the respondent states that he has been trying to move out of the premises since 3 November 2021. He refers to his need to remove a number of animals and a number of shipping containers from the property. The respondent also refers to the flooding of the property and the consequential bogging of cars, plant and farm equipment. In his written submissions, the respondent states that he will vacate by 3 January 2022.

3. The oral submissions made by the respondent and on behalf of the applicant during the hearing.

4. The various decisions and orders made by the Tribunal, the Appeal Panel, the Supreme Court and the Court of Appeal relevant to the dispute between the parties.

34. At the hearing, Ms Avery-Williams did not seek to cross-examine the respondent on his affidavit and the respondent did not seek to cross-examine the applicant’s witness on his affidavits.

Submissions of the parties

35. In summary, the applicant submits that the Tribunal is bound by the findings made by Cavanagh J and must terminate the residential tenancy agreement and make an order for possession of the residential premises. As noted above, the applicant seeks possession in seven days.

36. The respondent’s position is, in summary:

1. The Tribunal has no jurisdiction to make the orders sought by the applicant, on the basis of clauses 5(3) and 5(7) of Schedule 4 of the NCAT Act;

2. The Tribunal is not bound by Cavanagh J’s findings;

3. The giving of the Notice of Termination was not authorised by the applicant;

4. The Notice of Termination is invalid;

5. If the Tribunal terminates the tenancy agreement, the respondent requires four or five weeks in which to vacate the premises.

37. In relation to the jurisdictional argument, while the respondent referred both orally and in writing to cl 5(3) and cl 7 of Schedule 4, it is clear from the provision he cited in his written submission that he meant to refer to cl 5(3) and cl 5(7).

Issues

38. The issues to be determined in this application are:

1. Is the Tribunal precluded from hearing the application for termination and possession because of clauses 5(3) and 5(7) of Schedule 4 of the NCAT Act?

2. Is the Tribunal bound by the declarations and findings Cavanagh J made in Di Liristi v Matautia Developments Pty Ltd (No 4) [2021] NSWSC 661?

3. If so, what orders should the Tribunal make in respect of termination of the tenancy agreement and possession of the residential premises?

Consideration

Is the Tribunal precluded from hearing the application for termination and possession because of clauses 5(3) and 5(7) of Schedule 4 of the NCAT Act?

39. The respondent argues that the Tribunal has no jurisdiction to deal with the transferred proceedings because of the operation of cls 5(3) and 5(7) of Schedule 4 of the NCAT Act. In relation to this issue, the respondent relies on the judgment of Wright J in Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862. He submits that the Tribunal was made aware that it had no jurisdiction to hear the application on a range of dates from 24 April 2020 when the respondent sent an email to the Tribunal, until 20 July 2020 when Wright J’s judgment was published.

40. Clauses 5 of Schedule 4 of the NCAT Act relevantly states:

5 Relationship between Tribunal and courts and other bodies in connection with Division functions

…..

(3) Effect of application to Tribunal or court If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.

(4) Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.

(5) Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.

(6) For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant’s claim or is recorded in the record made by the Tribunal in accordance with this Act.

(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

(8) Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.

…..

41. For the following reasons, I am not satisfied that there is any substance to the respondent’s submissions in relation to cl 5(3) and cl 5(7).

42. First, this is not a case in which proceedings in the Tribunal were commenced before proceedings in Court. Clause 5(3) is therefore not applicable.

43. Second, in relation to cl 5(7), it is not in dispute that the Tribunal had no jurisdiction to hear and determine the landlord’s original application for termination and possession (RT 20/16607). This is because the respondent’s Supreme Court proceedings were commenced prior to the landlord’s Tribunal proceedings. This is what was addressed by Wright J in Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862, which is addressed at [77] to [80], which I have set out above.

44. However, the proceedings before the Tribunal are the same proceedings as the proceedings before the Supreme Court. This is the effect of the order transferring the proceedings to the Tribunal. Proceedings transferred to the Tribunal by a Court “continue before the Tribunal as if the proceedings had been instituted in the Tribunal”: See cl 6(2)(b) of Schedule 4.

45. While the respondent’s appeal of Cavanagh J’s judgment has as yet not been decided by the Court of Appeal, the transcript of proceedings in the Court of Appeal, which the applicant tendered as part of Exhibit A, demonstrates that (contrary to the respondent’s oral submissions at the hearing) the landlord’s proceedings for termination and possession were not at issue in the appeal. In relation to this, I note the following exchanges between the Court and the respondent’s counsel in the Court of Appeal, Mr Glissan:

Brereton JA: Mr Glissan, I think you said a moment ago and I think this is also in your written submissions, but just let me confirm it, that you don’t challenge his Honour’s finding that the bringing of soil onto the property was a ground justifying termination.

Glissan: Correct. I don’t challenge that finding.

Brereton JA: The argument is just about quantum of damages.

Glissan: Essentially, yes, but there’s also – the underpinning issue is whether there was evidence before his Honour that was admissible evidence that the appellant introduced asbestos contaminated soil onto the land.

Brereton JA: But that is relevant because that informs the assessment of damages.

Glissan: Correct.

….

Brereton JA: This Court, you told us, is not invited to interfere with the finding that the landlord is entitled to possession.

Glissan: Correct.

Brereton JA: So, it must follow that the landlord is, and you say since at least the date of the declaration and probably since 7 April 2021 has been entitled to possession.

Glissan: Correct.

……

Brereton JA: One thing, Mr Glissan: given the concession you make about the termination of the tenancy, and so on, you can’t support any further continuation of the anti-suit injunction directed to NCAT, can you?

Glissa: No, I don’t think so.

…..

46. At page 38 of the transcript, the respondent’s counsel agreed that the order made by Brereton J restraining the applicant from prosecuting any application for possession should be dissolved. The order referred to in [24] above was accordingly made when the Court of Appeal reserved judgment.

47. I am satisfied that the Tribunal has jurisdiction to deal with the application for termination and possession. That application is properly before the Tribunal because the proceedings have been transferred to the Tribunal in accordance with order 3 made by Cavanagh J on 23 June 2021.

Is the Tribunal bound by the declarations and findings Cavanagh J made in Di Liristi v Matautia Developments Pty Ltd (No 4) [2021] NSWSC 661?

48. The respondent submitted that the Tribunal is not bound by the findings made by Cavanagh J in Di Liristi v Matautia Developments Pty Ltd (No 4) [2021] NSWSC 661. This submission was not addressed in the respondent’s written submissions, but was made orally during the hearing.

49. In essence, the respondent argued that the Tribunal is not bound by Cavanagh J’s judgment, because the Tribunal is an independent body. The respondent referred to a judgment of the High Court in that context. The judgment the respondent sought to rely on was apparently Burns v Corbett [2018] HCA 15, although this is not abundantly clear, as the respondent did not cite the judgment by name.

50. To the extent that this was the judgment cited in support of the respondent’s submission, that submission is misconceived. In Burns v Corbett a majority of the High Court identified an implied limitation in the Australian Constitution which prevents state legislatures from giving state tribunals the jurisdiction to hear ‘federal matters’. The judgment is not authority for the proposition that this Tribunal is not bound by findings or decisions made by a superior Court. There is no doubt that the Tribunal is bound by a decision made by the Supreme Court.

51. Furthermore, I am satisfied that the principle of res judicata applies in such a way to make the Tribunal bound by Cavanagh’s J’s declarations and his findings in respect of the termination notice and termination of the tenancy agreement. In this regard, the concept of issue estoppel is relevant. This refers to the concept that when issues are finally determined in legal proceedings, those issues will be treated as having been already decided if they are brought up in other legal proceedings. Both orders and findings are affected by res judicata. In Blair v Curran [1939] HCA 23; 62 CLR 464, at 531-532, Dixon J stated that:

A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.

52. Contrary to the respondent’s submissions, I am bound by the declarations made by Cavanagh J. I am also bound by Cavanagh J’s findings concerning the issuing of the termination notice, the validity of the termination notice and the breaches of the residential tenancy agreement and s 90 of the RT Act. These findings are set out at [171] to [175] of the judgment in Di Liristi v Matautia Developments Pty Ltd (No 6) [2021] NSWSC 663, extracted at [13] above. My conclusion in this regard means that the respondent’s submissions that the termination notice relied on by the applicant is invalid and that the applicant’s director did not authorise the giving of the notice, both of which are the subject of findings by Cavanagh J cannot be further considered.

What orders should the Tribunal make in respect of termination of the tenancy agreement and possession of the residential premises?

53. As noted previously, Cavanagh J declared that the applicant had terminated the tenancy agreement with the respondent and that the applicant is entitled to possession of the premises. His Honour’s declarations did not specify a date on which the tenancy agreement ended. In addition, he ordered the transfer of the proceedings to the Tribunal to make orders for termination and possession in accordance with his declarations.

54. I am bound to make orders that are consistent with these declarations. I am also bound by Cavanagh J’s findings. However, there is some ambiguity in the declaration that the applicant had terminated the tenancy agreement, when considered in conjunction with the order transferring the proceedings to the Tribunal to make orders including an order for termination.

55. If an order is ambiguous, a court or tribunal that is required to interpret the order may have regard to “extrinsic material, including the reasons for judgment”: Hodgson JA in Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 at [29], referring to Justice P W Young, “Construing Court Orders” (1998) 72 ALJ 117.

56. The Appeal Panel in Ndaira v Allways Building NSW Pty Ltd [2018] NSWCATAP 279 considered this issue and stated at [37]:

In Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674 at [60] Basten JA summarised the general principle with respect to construing court orders. Highlighting his Honour’s judgment in Athens, Basten JA noted that Hodgson JA “also cited the proposition from Repatriation Commission v Nation (1995) 57 FCR 25 at 34, where Beaumont J said (Black CJ and Jenkinson J agreeing) that “evidence of surrounding circumstances is admissible to assist in [construction] of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has a ‘plain meaning’ (see Codelfa Construction Pty Ltd v State Rail Authority(NSW) (1982) 149 CLR 337 per Mason J at 352)”. This proposition was recently affirmed in Ross v Lane Cove Council [2014] NSWCA 50 at [30]–[31] (Leeming JA).””

57. In this case, I consider the surrounding circumstances to include the operation of the RT Act, which at s 81 provides:

81 Circumstances of termination of residential tenancies

(1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act.

(2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises.

(3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.

(4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs—

(a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises,

(b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant,

(c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant,

(d) the tenant abandons the residential premises,

(e) the tenant gives up possession of the residential premises with the landlord’s consent, whether or not that consent is subsequently withdrawn,

(f) the interests of the landlord and tenant become vested in the one person (merger),

(g) disclaimer occurs (such as when the tenant’s repudiation of the tenancy is accepted by the landlord).

58. In this case, neither s 81(2) nor any of the circumstances listed in s 81(4) apply. The wording of s 81(3) and the fact that the proceedings were transferred to the Tribunal to make orders for termination and possession lead me to conclude that Cavanagh J’s declarations should be interpreted so as to be consistent with the RT Act. The fact that Cavanagh J transferred the proceedings to the Tribunal to make an order for termination clearly indicates that he did not intend his declarations to have the effect of immediately terminating the residential tenancy agreement between the parties. Rather, the declarations are consistent with being a statement of the rights of the landlord in respect of termination of the tenancy agreement and possession of the premises. Accordingly, the tenancy agreement between the parties terminates in accordance with s 81(3); that is, when the Tribunal makes an order terminating the tenancy agreement.

59. I have accordingly made an order for termination of the residential tenancy agreement. The residential tenancy agreement ends immediately.

60. Section 83 of the RT Act relevantly provides:

83 Termination orders

(1) If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect.

…..

61. The applicant seeks an order for possession within seven days of the date of the orders.

62. The respondent’s written submissions state that he intends to vacate the premises by 3 January 2022. In his affidavit dated 28 November 2021, the respondent seeks four weeks to allow him to remove animals, personal belongings and containers from the premises. In oral submissions at the hearing, the respondent sought four to five weeks in which to vacate.

63. I am satisfied that the respondent should be ordered to give possession on 3 January 2022. I consider the seven day period sought by the respondent insufficient given that it is the Christmas period. I have also taken into account the respondent’s uncontested evidence concerning the need to remove animals and containers located at the property. An order requiring possession to be given on 3 January 2022 is in accordance with the respondent’s written submissions as to when he would be in a position to move himself and his belongings and is reasonable in the circumstances of the case. It is also consistent with the oral submissions the respondent made at the hearing as to how long he would need to vacate the premises.

Orders

64. I make the following orders:

1. Leave for legal representation is granted.

2. The residential tenancy agreement between the parties is terminated immediately and the respondent is to give vacant possession of the residential premises to the applicant on 3 January 2022.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 February 2022