Minotti v Bird
[2012] NSWDC 241
•07 June 2012
District Court
New South Wales
Medium Neutral Citation: Minotti v Bird [2012] NSWDC 241 Hearing dates: 7 June 2012 Decision date: 07 June 2012 Jurisdiction: Civil Before: Murrell SC DCJ Decision: Appeal dismissed. Termination and possession orders made by the Tribunal confirmed.
Catchwords: LANDLORD AND TENANT- 'give' notice- termination of tenancy- rent arrears- hardship to landlord- procedural fairness Legislation Cited: Residential Tenancies Act 2010 (NSW) ss 87, 88, 89, 93, 223
Consumer Trader and Tenancies Tribunal Act 2001 (NSW) ss 28(3), 49(3)
Interpretation Act 1987 (NSW) s 76(1)(b)Cases Cited: Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298
NSW Land and Housing Corporation v Dale [2005] NSWCTTTCategory: Principal judgment Parties: Mr Kevin Minotti (plaintiff)
Mrs Margaret Minotti (plaintiff)
Mr S Green (defendant)Representation: Mr Kevin Minotti (plaintiff)
Green & McKay Solicitors (defendant)
File Number(s): 2012/164041
Judgment
Mr and Mrs Minotti (the tenants) contend that the Consumer Trader and Tenancy Tribunal (the Tribunal) erred in law when, on 7 May 2012, the Tribunal terminated a tenancy agreement between the tenants and Mr and Mrs Bird (the landlords), and ordered that the landlords be given possession of their Coffs Harbour premises.
The tenants were substantially in arrears with their rent. On 27 March 2012, the landlords' agent left a termination notice in an envelope addressed to the tenants in the tenants' mailbox. On 28 March 2012, the tenants paid all rent arrears. At about that time, the termination notice came to the attention of the tenants. At the Tribunal hearing, the tenants asserted that they had been absent from Coffs Harbour until late on 28 March and it was not until 29 March that the notice came to their attention. The Tribunal recorded no firm finding on this point. For the purposes of the appeal, I will assume that it was on 29 March that the notice came to the attention of the tenants.
The tenants contend that the Tribunal erred in that:
(1) The Tribunal found that the termination notice was served on 27 March rather than on 29 March. Consequently, the Tribunal erroneously held that, when the notice was served, the tenants were in arrears with their rent.
(2) The ground for termination that was identified in the termination notice was the failure to pay rent for not less than 14 days (the ground specified in s 88(1) of the Residential Tenancies Act 2010), but the Tribunal terminated the agreement on different bases i.e. the frequent failure to pay rent (s 89(5)) and undue hardship to the landlord (s 93(1)), when neither of those grounds was nominated in the notice.
When Was The Termination Notice "Given"?
Section 87 of the RTA provides:
87 (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. ...
(4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that:
(a) the tenant has breached the residential tenancy agreement, and
(b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and
(c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
Section 88 provides:
88 (1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement solely arising from failure to pay rent (a "non-payment termination notice") has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given.
(3) A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord....
(emphasis added)
Section 223 of the RTA provides:
223 (1) A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by:
(a) in the case of a natural person:
(i) delivering it to the person personally at the person's residential or business address, or
(ii) delivering it personally to a person apparently of or above the age of 16 years at the person's residential or business address, or
(iii) delivering it in an envelope addressed to the person and leaving it in a mailbox at the person's residential or business address, or ...
The tenants relied upon Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298 to argue that, while s 223 of the RTA provides a means of service, it does not establish the fact of service. That case concerned the question of whether a tenant had been served with notice of a Tribunal hearing when the notice had been served in accordance with the Consumer, Trader and Tenancy Regulation 2009 but the tenant had not received the notice. Basten JA (Handley AJA agreeing) found that there was a practical inconsistency between cl 50(4) of the CTTT Regulation and s 76(1)(b) of the Interpretation Act 1987 (NSW) because the former implicitly excludes that which is permitted by the latter, the raising of a doubt as to whether a posted letter has been received. The Court held that the Interpretation Act should prevail. Similarly, in NSW Land and Housing Corporation v Dale [2005] NSWCTTT, the Tribunal held that the Interpretation Act applied in relation to the service of notices under the tenancy legislation that was then current.
In the present case, no question arises as to the application of the Interpretation Act. The RTA provides a complete code as to the manner in which notices may be given. In accordance with s 223 (1) (iii) of the RTA, the termination notice was "given" to the tenants when it was delivered to their mailbox in an appropriately addressed envelope, i.e. on 27 March 2012. As at 27 March 2012, the tenants were more than 14 days in arrears with their rent. The termination notice was not rendered ineffective by s 88 (1) of the RTA.
Ground For Termination
The reasons of the Tribunal were brief. The Tribunal is required to act with as little formality as the circumstances of the case permit: s 28(3) of the Consumer Trader and Tenancy Tribunal Act 2001. When requested, the Tribunal must provide a brief statement of reasons: s 49(3) of the Act.
In this case, having held that the termination notice was valid, the Tribunal was required to consider s 89 of the RTA, and the Tribunal did so.
Section 89 provides:
89 (1) This section applies if a landlord gives a tenant a non-payment termination notice.
(2) The Tribunal must not make a termination order on the ground set out in the notice if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord...
(5) The Tribunal may, on application by a landlord, make a termination order despite subsection (2) or (3) if it is satisfied that the tenant has frequently failed to pay rent owing for the residential premises on or before the day set out in the residential tenancy agreement.
(6) If the Tribunal makes a termination order as referred to in subsection (5), a warrant for possession may be issued as a result of that order, even if the tenant has paid all rent owing or complied with a repayment plan.
Section 89 does not provide an avenue for termination that is distinct from s 87. It mandates particular considerations that apply where a landlord gives a non-payment termination notice to a tenant. The Tribunal addressed those considerations. The Tribunal was aware of the constraints imposed by s 89(2). Although the tenants were up to date with their rent at the time of the Tribunal hearing, the Tribunal upheld the landlords' s 89(5) application for a termination order on the basis that the tenants had frequently failed to pay their rent. The Tribunal was empowered to proceed in that way.
In addition, the Tribunal noted that
"the landlord, I accept has suffered hardship from (past defaults in the payment of rent) and I cannot on the history of this matter accepted that the tenants would now comply with the RTA".
This statement was a reference to s93 of the RTA, which provides:
93 (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the landlord would, in the special circumstances of the case, suffer undue hardship if the residential tenancy agreement were not terminated.
The tenants contend that they had no notice of such an application and, although they were present at the hearing, they were not afforded an adequate opportunity to respond.
Section 67 of the CTTT Act does not confer upon the District Court jurisdiction to deal with an allegation of lack of procedural fairness in the Tribunal. In any event, on the material before the Court, it is not clear that the claim is well founded. Further, even if the claim could be established, the Tribunal has not erred in law in relation to the decision made under ss 87 and 89. The orders for termination and possession are independently supported by that decision.
The appeal is dismissed.
The Court confirms the termination and possession orders made by the Tribunal.
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Decision last updated: 24 January 2013
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