Re Burton; - [2006] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE BURTON; EX PARTE ROWELL & ANOR [2006] WASC 277

CORAM: MARTIN CJ

HEARD: 9 NOVEMBER 2006

DELIVERED : 9 NOVEMBER 2006

FILE NO/S: CIV 1765 of 2006

MATTER :Application for a Review Order against His Honour Acting Magistrate Burton sitting in the Small Disputes Division of the Local Court at Busselton

EX PARTE
WARWICK HAROLD MITFORD ROWELL
GILLIAN ELIZABETH ROWELL
Applicants

Catchwords:

Magistrates - Application for a review order under s 36 Magistrates Court Act 2004 (WA) - Whether the Supreme Court has jurisdiction by virtue of the Magistrates Court lacking jurisdiction - Whether the Magistrate had jurisdiction under s 71 of the Residential Tenancies Act 1987 (WA) - Whether there was a tenancy for a fixed term on the facts as found by the Magistrate - Powers conferred upon a strata company - Lease of common property - Consideration of rights of tenants in common - Whether the strata company had the statutory power of agency created by s 19 Strata Titles Act 1985(WA) and could validly lease common property on behalf of the proprietors - Whether there was a residential tenancy agreement - Whether there was notice given pursuant to s 64 of the Residential Tenancies Act 1987 (WA)

Legislation:

Magistrates Court Act 2004 (WA), s, 35, s 36
Residential Tenancies Act 1987 (WA), s 26, s 64, s 71
Strata Titles Act 1985 (WA), s 3, s 19(2)

Result:

Order for review made absolute
The decision of the Magistrate be quashed
No order as to costs

Category: B

Representation:

Counsel:

Applicants: Mr G M G McIntyre SC
Intervenor: Ms P E Cahill and Mr C Garvey

Solicitors:

Applicants: Christopher Garvey
Intervenor: Shaddicks Lawyers

Case(s) referred to in judgment(s):

Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1991) 9 ACLC 324
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Royal British Bank v Turquand (1856) 6 E & B 327
The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission and Ors (2004) WASC 23

Case(s) also cited:

Nil

MARTIN CJ: This application is made pursuant to s 36 of the Magistrates Court Act2004 (WA) (the "Magistrates Court Act"), but in order to set the context for that section it is appropriate that I first refer to s 35 of that Act which provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer and the expression "court officer" is defined to include a Magistrate.
Section 36(1) provides that if a person is or would be aggrieved by one or more of the following:
"(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction …
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a 'review order') that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires."
I issued an order to review the decision of the Magistrate in this case some time ago and it is that review which comes before me now. Relevant also to my jurisdiction is s 26(1) and s 26(2) of the Residential Tenancies Act 1987 (WA) ("the Residential Tenancies Act") which provides:
"(1)An order made by a court under this Act, or by a registrar acting under section 13A(2), is final and binding on all parties to the proceedings in which the order is made, and on all persons who under this Act could have become entitled to be joined as a party to the proceedings in which the order is made, and no appeal shall lie in respect thereof.
(2)No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by it or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice."
Accordingly, the effect of the combined operation of those subsections is that the Court's jurisdiction is contingent upon a conclusion that the Magistrates Court lacked jurisdiction, because no complaint of lack of procedural fairness is made in this case.
The jurisdiction that was sought to be invoked before the Magistrate was that conferred by s 71 of the Residential Tenancies Act. Subsections (1) and (2), being the only parts of that section presently relevant provide:
"(1)Where an owner or tenant under an agreement gives notice of termination to the other under this Act and the tenant fails to deliver up possession of the premises on the day specified, the owner may, subject to section 62(5)(a), within 30 days after that day, apply to a competent court for an order terminating the agreement and an order for possession of the premises.
(2)Subject to this section, a competent court shall, upon application under the section, make an order terminating the agreement and in order for possession of the premises, if it is satisfied -
(a)that notice of termination was given by the owner or a tenant to the other and that it complied with and was given in accordance with this Act …"
In order to properly construe s 71 it is necessary to look firstly for what "agreement" means and that is defined in s 37 which provides, that within Div 2, within which s 71 is found, "unless the contrary intention appears, "agreement" means "a residential tenancy agreement".
This in turn, requires one to go to s 3 of the Residential Tenancies Act to identify the definition of a "residential tenancy agreement" and that section defines "residential tenancy agreement" to mean:
"[A]ny agreement, whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purposes of residence."
The notice that is said to enliven the jurisdiction under s 71(1) in this case is a notice of termination purportedly given pursuant to s 64(1), (2) and (3) of the Residential Tenancies Act. That section relevantly provides:
"(1)An owner may give notice of termination of an agreement to the tenant without specifying any ground for the notice.
(2)Where an owner gives notice of termination under this section, the period of notice must be not less than 60 days.
(3)This section does not apply in relation to an agreement that creates a tenancy for a fixed term during the currency of that term."
Again, in order to give meaning to that section one needs to go to the definition of "owner", which by s 3 of the Act is defined to mean:
"[T]he grantor of a right of occupancy under a residential tenancy agreement or his successor succeeding subject to the interest of the tenant."
It follows therefore that there are, in my opinion, three features of the jurisdiction conferred by s 71 of the Residential Tenancies Act upon the Magistrate.
The first is that there has to be an agreement; that is to say, a residential tenancy agreement as defined. The second feature is that there has to be an owner as defined by s 64 and that owner must have given a notice within the meaning of s 64. The third feature is that for s 64 to apply, at the time of the service of the notice, the tenancy must not be for a fixed term.
In my opinion, the jurisdiction of the Magistrate is contingent upon the satisfaction of all those matters as matters of jurisdictional fact and I think that is clear from the unequivocal language of s 71(1) which premises the making of an application for a possession order upon the giving of a notice of termination under the Residential Tenancies Act in respect of an agreement as defined by this Act.
It was put to me that s 12 and s 12A of the Residential Tenancies Act expand the jurisdiction of the Magistrate beyond that otherwise conferred by s 71. I do not accept that argument. Section 12 defines a prescribed dispute to mean any matter that may be the subject of an application under this Act other than an application made under the Residential Tenancies Act that involves a claim for an amount over the prescribed amount.
Section 12A provides that the Magistrates Court has exclusive jurisdiction to hear and determine a prescribed dispute. It seems to me to be quite clear to me that a prescribed dispute would only arise if there is a matter that may be a subject of an application under the Residential Tenancies Act and in the present context, that will only be the case if an application could be validly made pursuant to s 71(1). As I have observed, that requires the giving of a valid notice of termination pursuant to s 64 in respect to an agreement as defined by the Residential Tenancies Act.
The facts in this case are not contentious and I will take them from the Magistrate's findings. The applicant in the proceedings before the Magistrate was a strata title company that owns land in McLachlan Road, Dunsborough. On that land is a dwelling called "the pink house" or "cottage". Quite unusually, the cottage is situated on common property. By that finding, obviously the Magistrate means the common property created by the registration of the strata plan and he goes on to say that that is the property of the lot owners.
The respondents have lived in the "pink house" since 18 March 2002. The respondents before the Magistrate are, of course, the applicants currently before me. They are members of the applicant company.
The Magistrate made the following findings; namely, that the current applicants are proprietors of a lot created by the registration of the relevant strata plan, which is also common ground before me; there was a lease or purported lease commencing on 18 March 2002 and on 30 June 2004, there was a second lease or purported lease for one year; and that the purported lease or "agreement to take residential premises" is dated 2004.
In relation to that purported lease or agreement, the agreement states that the lease was for a fixed term of one year commencing on 30 June 2004 and expiring on 30 June 2005 with options to renew for two further one‑year periods. The agreement was in the names of the respondents to the proceedings before the Magistrate, the current applicants. It is also signed by R. Rowell, the then treasurer of the strata company. He is related to the respondents. Although the Magistrate does not explicitly say so, it is clear from the document which was before the Magistrate, and which is also before me, that the purported lessor, under the document to which the Magistrate refers, is the company created by the registration of the plan described in the lease document as Rosneath Farm Strata Co 35452.
The Magistrate went on to say that the respondents; that is the current applicants, say that by notice in writing to the applicant they exercised their option for the period 30 June 2006 to 30 June 2007. The Magistrate said he did not have a copy of the exercise of that option, but that is a curious observation; given that on the material before me, a copy of that document appears to have been attached to the written submissions that were lodged on behalf of the current applicants. That document is a document dated 1 January 2006 in which each of the current applicants stated:
"We have a tenancy agreement which expires on 30/6/06.
This letter is to confirm with you that we wish to exercise the option to extend the agreement, as in the past, by at (sic) a further year, to June 2007."
That notice was given to Rosneath Farm Strata Co council and was said to be re "the Pink House" lease. The Magistrate found that on 30 March 2006, a Form 1C 60‑day notice under the Residential Tenancies Act was given to the respondents requiring them to deliver possession on 12 May 2006.
The Magistrate also found that there was no resolution and no resolution without dissent passed by the strata company pursuant to s 19(2) of the Strata Titles Act 1985 (WA) ("the Strata titles Act") in relation to the entry into the lease dated 2004; that the respondents before him, the current applicants, were in possession and were paying rent; and that there was no proof of a first option having been exercised, but there was some proof of the exercise of a second option, but not without the required resolution or certificate, which I take to be another reference to a resolution pursuant to s 19(2) of the Strata Titles Act.
From those findings of fact the Magistrate made the following conclusions of law:
"I find that the respondent's occupancy and rent payment would have given them a periodic tenancy under the Residential Tenancies Act if the original document was executed correctly, but that they were tenants. I come to the conclusion that they are tenants at will because of the lack of a resolution in certificate."
I take that to be a conclusion by the Magistrate that because of the requirements of s 19 of the Strata Titles Act there was no valid tenancy in terms of the document dated 2004, nor any valid exercise of any option created by that tenancy. However, in the Magistrate's view, there was nevertheless a residential tenancy agreement within the scope of the Strata Titles Act not being an agreement for a fixed term.
Having arrived at that conclusion, the Magistrate then purported to exercise the powers conferred upon him by s 71(2) and to make an order for possession taking effect within four months of the date of his decision.
The first question that I think needs to be addressed is the question of whether there was a tenancy for a fixed term on the facts as found by the Magistrate. The Magistrate relied upon s 19 of the Strata Titles Act to conclude that there was not.
The applicants before me essentially rely on the indoor management rule to advance the proposition that s 19 provides no impediment to the creation of a lease which they say can be validly created pursuant to other provisions of the Strata Titles Act.
They rely upon the principle which can be traced back to the decision in the Royal British Bank v Turquand (1856) 6 E & B 327 and referred to more recently in cases such as Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd(1991) 9 ACLC 324.
The basic proposition of the applicants is that outsiders can deal with a company, in this case the strata company, on the assumption that internal management requirements have been met and they say that s 19 is simply an internal management provision. They do not expressly rely upon provisions such as s 128 and s 129 of the Corporations Act. If they did, questions might arise as to the knowledge of these applicants and whether they were in fact outsiders or insiders, but I do not think I need to go to those questions because, I think, there is a more fundamental problem in the path of the acceptance of the applicant's basic proposition.
That problem commences with s 17 of the Strata Titles Act which provides by subsection (1):
"Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
Section 19(1) provides:
"(1)Except as otherwise provided in this section -
(a)no share in the common property may be disposed of except as appurtenant to the lot of the proprietor thereof; and,
(b)an assurance of a lot operates to assure the share of the disposing party in the common property, without express reference thereto."
Section 35 of the Strata Titles Act provides the duties of strata companies and those duties include, amongst others, the duty to control and manage the common property for the benefit of all the proprietors. These and other provisions of the Strata Titles Act were considered by E.M. Heenan J in the decision in The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission and Ors(2004) WASC 23. After setting out the provisions to which I have referred, and some others, Heenan J observed at 15:
"These provisions show how the estate and interest in the individual lots in a strata scheme is held by the various registered proprietors of the respective lots, and that, in addition the registered proprietors themselves hold all the estate in interest in the common property as tenants in common in shares proportionate to their several holdings as recorded on the registered plan. In other words, all the estate in interest in the land and buildings comprised in the strata plan, including the common property, is held by the registered unit holders entirely. No estate or interest in any of the units or in the common property, is held by the strata company despite its authority to manage and control the operation of the common property or its power to levy the proprietors for expenditure associated with improvements, rates, taxes or other outgoings associated with the maintenance of the scheme property as a whole. This is the position in Western Australia. In some other Australian jurisdictions the common property is owned by the strata company - NSW, the ACT, NT and SA either as agent, trustee or nominee, but not so in this State."
I agree entirely with those observations from which it follows, I think, that s 35(1)(b), which confers power to control and manage common property, does not of itself confer power to lease that property because, of course, the power to lease property resides in the owners of that property and it is clear that under the scheme of this Act the owners of common property are the unit holders, not the strata company.
It is in that context that I think the operation of s 19 (2) falls to be evaluated and, of course, the context in which that section operates is subsection (1) which prohibits any disposal of a share in the common property except pursuant to s 19 or as appurtenant to a sale of the lot of the proprietor in the strata development. In that significant context, subsection (2) provides:
"… [A] strata company may, pursuant to resolution without dissent (or unanimous resolution, in the case of a two-lot scheme) and where satisfied that all persons concerned have consented in writing to the transfer or lease, execute a transfer or lease of common property, other than common property the subject of a lease accepted or required by the strata company under section 18(1)."
It is, I think, consistent with my view of the operation of this section that the power conferred upon the strata company is a power to execute a transfer or lease, not to itself grant the lease. That reinforces my view of the operation of the subsection which is to the effect that it provides a statutory form of agency whereby, provided the specified conditions are met, the strata company may act as the agent of all the proprietors of the common property by executing a lease giving effect to their grant of a tenancy to the relevant tenant.
That approach, I think, is reinforced by a consideration of the rights of tenants in common under the general law.
An appropriate place to start with a consideration of those rights is the decision of the High Court in the case of Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635. At page 643 Brennan J said this of the interests of a tenant in common:
"The share or interest which a tenant in common has in land is an 'undivided' share, that is to say 'a distinct share in property which has not yet been divided among the co-tenants'. A division of the property is repugnant to the nature of a tenancy in common, for it is an essential characteristic of a tenancy in common that each of the tenants has the right to occupy the whole of the property in common with the others. Like joint tenants, tenants in common have a unity of possession; unlike joint tenants, they need not have a unity of interest, nor a unity of title, nor need there be a unity in the time when the interests of the co-owners vest. Each tenant in common has a separate and individual title to the property, limited according to the estate or term granted to or required by the tenant. Thus one tenant in common may be seised of an estate in fee simple, another seised of an estate for life, while a third may be a tenant for a term of years, each of their interests being separately acquired at different times …" (footnotes omitted)

At 644 ‑ 645 Brennan J went on to make this observation in relation to tenants in common:
"… [N]either of the tenants in common can sell the entirety: each can sell only its own separate share. The shares of tenants in common are not carved out of, or engrafted onto some notional tenure of an estate in fee simple in the land amenable to sale by or on the application of one tenant. Nor are tenants in common equitable owners of land capable of compelling a sale of the legal title by a bare legal owner. The rights of ownership are exhausted by the shares of two tenants in common, each seised of and holding on his own behalf an estate in fee simple in a onehalf share in a parcel of land. If tenants in common concur in a sale of a parcel of land to a third party, each must convey his own share to the purchaser who takes a single estate in fee simple in the whole of the land. Or one tenant in common may take a conveyance of the shares of the other co‑tenants and acquire sole ownership of the land. But, if tenants in common do not concur in one or other of these courses, the only way in which one of them can secure a sale of the land is by applying for an order for sale under statute …" (footnotes omitted)
In the joint judgment of Deane, Dawson and Gaudron JJ in the same case at page 656, their Honours made this observation:
"As a matter of both law and language, there is a clear distinction between the individual interest or share owned by one of two or more tenants in common of a freehold estate in land and the freehold estate itself. While the theory of our land law is that the radical title of the Crown lies between the physical land and a freehold estate in it, the ownership of the freehold estate has long been, for almost all practical purposes, the equivalent of full ownership of the land. As a result, the freehold estate is, as a matter of legal and popular language, commonly treated as the land itself. On the other hand, the distinct 'interest or share' of one of two or more tenants in common of a freehold estate cannot, on any approach, be equated with the land itself. Indeed, an essential feature of the 'interest or share' of a tenant in common, and a condition precedent of its existence or survival, is that the tenant in common does not own the freehold estate and is unable alone to deal with 'the land'. It is that very distinction between the 'interest or share' of a joint tenant or tenant in common and the freehold estate which underlies the enactment of the long series of partition statutes directed towards facilitating or enabling a joint tenant or tenant in common to obtain an effective order for the partition or sale of the land itself …" (footnotes omitted)
It follows from that analysis of the rights of tenants in common, that the only way an effective lease conferring exclusive possession of the land could be obtained is from the tenants in common acting jointly.
In my view, it is that legal requirement that is recognised by s 19 which provides that such a lease can be granted provided that the requirements of subsection (2) are met. At the same time, the subsection prohibits the disposal of any interest in a single share by a proprietor other than pursuant to s 19 itself or as appurtenant to a sale of that proprietor's lot.
That, I think, is also consistent with the general law relating to the lease of land by tenants in common which I take to be accurately reflected in the following passage from Woodfall, "Landlord and Tenant" 28th ed, at par 1‑0134:
"Tenants in common need have only unity of possession; they may have unequal shares, and there is no right of survivorship. Each tenant in common could at common law make a lease in respect of his own share alone, the interest of each being separate and distinct, and if tenants in common are all joined in one lease it operated as a lease by each of his respective share, and a confirmation by each as to the shares of the others …" (footnotes omitted)
As I have observed, that position is modified by s 19(1) of the Strata Titles Act which precludes any tenant in common in the common property of a strata title development from disposing of their interest other than as appurtenant to a sale of the lot. Therefore there is a clear and coherent structure created by s 19 which prohibits any single proprietor from dealing with their share in the common property, other than by way of sale of their lot, but to otherwise provide a mechanism, whereby the strata company can act as the agent of the proprietors of the land for the purposes of leasing common property, but only if the requirements of subsection (2) are met; that is, only if a resolution is passed without dissent.
In this case the Magistrate found that there was no resolution passed without dissent. It follows that the company did not have the statutory power of agency created by s 19 and could not validly lease common property on behalf of the proprietors. That is not to say that the proprietors could not themselves have entered into an agreement, but in order to do so effectively under the general law, they would need to act jointly and there would need to be evidence of that fact. No such evidence was adduced before the Magistrate, nor did he make any finding to that effect.
It was submitted that s 35(1)(b) creates an alternative source of power in the strata company to lease land, in particular common property. I do not accept that argument.
It seems to me that the powers of the company with respect to the leasing of common property are quite clearly specified and articulated by s 19 and in particular, subsection (2). It would be quite inconsistent with that evident statutory scheme and inconsistent with the natural and ordinary meaning of the language used in s 35(1)(b) to construe the expression "control and manage" as including a power to lease separately and independently of s 19. The legislature has specifically addressed the issue of the lease of common property in s 19 and I would not construe s 35 as covering the same subject, but differently. Therefore, it seems to me, that the magistrate was correct in his conclusion that there was no valid lease,
The next question arising, however, is, "Was there a residential tenancy agreement?" If there was no residential tenancy agreement and because of the view I take as to the jurisdictional facts that must be established before power arises under s 71, it would follow that the Magistrate lacked jurisdiction.
I return to the definition of "a residential tenancy agreement" and note that it embraces agreements to confer rights of occupancy which are not exclusive. However, in this case it is clear that the case of the current applicants, when before the Magistrate, was that they enjoy an exclusive right of occupancy. No case was run to the effect that they derive the rights that they sought to assert before the Magistrate from their proprietorship of lots in the strata development and even if such a case had been run, it would have been doomed to fail because the definition of residential tenancy agreement still requires there to be an agreement, whether express or implied, and not a right derived from proprietorship.
Mere ownership of lots and the rights created by statute as a consequence of ownership of those lots could not, I think, by any stretch of the imagination fall within the notion of an agreement.
In my view, the current applicants could not have acquired any rights whatsoever under any agreement for exclusive occupancy, being the rights which they asserted before the Magistrate, unless they had dealt with all the tenants in common as owners of the common property pursuant to s 17.
That, I think, is clear from the authorities to which I have referred. Unless there was evidence or a finding of fact to that effect, given that the operation of s 19(2) was excluded for the reasons I have given, it could not have been concluded by the Magistrate that the current applicants were party to a residential tenancy agreement. Nor could they have derived any right from the individual proprietors of the lots acting alone because of the prohibition contained in s 19(1) which precludes any individual proprietor dealing with his, her or its interest in the common property other than pursuant to the section.
As I have observed, there was no evidence before the Magistrate to the effect that the applicants had dealt with all the proprietors in the strata development jointly, nor was any finding made to that effect.
It is possible that one can imagine facts that might give rise to that conclusion, but those facts were not established by evidence before the Magistrate and the question that is before me is whether, on the facts as found by him on the evidence that was before him, he had jurisdiction.
It seems to me that on the evidence before him and on the facts found by him, the Magistrate should have held that there was no residential tenancy agreement because the applicants did not have any right to occupy pursuant to any agreement, whether express or implied, with the only persons who could validly confer such a right to occupy, which is all the proprietors of the lots acting together.
Consequently, in my opinion, the Magistrate lacked jurisdiction under s 71, essentially because there was no residential tenancy agreement and therefore, there can have been no application under s 71(1), nor any notice validly given pursuant to s 64 of the Residential Tenancies Act.
Another question that arises is whether indeed any notice that was given pursuant to s 64 was in fact given by an owner within the meaning defined by the Residential Tenancies Act. It seems clear from the materials before the Magistrate that the resolution of the strata company, whereby it was resolved to give notice terminating the possession of the applicants, was not passed unanimously. So there would be a question of whether the proprietors not acting unanimously could in fact have validly given a notice under s 64. Nevertheless, it is not necessary for me to determine that issue because of the other views I have formed as to the lack of the Magistrate's jurisdiction.
I digress to observe that it seems, to me, to follow from this analysis of the Residential Tenancies Act that the only way exclusive occupation of "the Pink House" can be validly given to anybody, is either if all the lot owners act jointly or, alternatively, the mechanism provided by s 19 of the Strata Titles Act is utilised; namely, there is a resolution passed without dissent. It would follow that if there were any question in any other proceedings as to whether the current applicants had a right to exclusive occupation of "the Pink House," they would only be able to establish such a right if they could establish either that all the lot owners had jointly conferred that right upon them, or that an agreement had been entered into in accordance with s 19 of the Strata Titles Act.
I therefore conclude that the Magistrate entirely lacked jurisdiction on the evidence before him and on the facts that he found. That is because he should have found on the evidence before him that whatever rights of occupancy the applicants had, they did not have the right to exclusive occupation which they asserted, and they were not party to any agreement coming within the scope of the definition of a residential tenancy agreement.
I leave open the possibility on the facts that are common ground that the current applicants have a non-exclusive right of occupancy in common with all the other lot owners. That right of occupancy would, of course, be good as against third parties not being lot owners, but would not be good as against other lot owners.
It is put by the respondents that I should nevertheless uphold the order for possession; because under s 33 of the Strata Titles Act, the strata company is representative of all the proprietors and may take proceedings on their behalf.
It is therefore said, that because the company acts in that way and that because all of the proprietors are entitled jointly to occupancy of the common property, the company is the appropriate party to take proceedings to recover possession. The difficulty I have with that submission, though, is that that is not how the case was run before the Magistrate. The case that was run before the Magistrate was entirely put on the basis of an entitlement to an order under s 71 of the Residential Tenancies Act.
Had the case been put more broadly, I cannot anticipate or speculate as to what arguments may have been raised. Some propositions have been suggested from the bar table. Because of the possibility of other issues arising had the case been put that way, I do not think it would be consistent with the interests of justice for me uphold the order of the Magistrate, having concluded that he made it without jurisdiction.
For the same reason, assuming without deciding that I would have power to take that course under s 36(4) of the Magistrates Court Act, it is not a course that I would countenance in this case because the parties did not run the case broadly before the Magistrate, but confined it to questions under the Residential Tenancies Act. I cannot confidently predict what other issues might have arisen had they taken a different approach:
The orders I make therefore are:
1.The order for review be made absolute.
2.The decision of Magistrate Burton of 29 June 2006 be quashed.
3.No order as to costs.