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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Burton;

Details

AGLC: Re Burton; [2006] WASC 277
Case: [2006] WASC 277
Decision Date: 9 NOVEMBER 2006

CaseChat Overview and Summary

The case before the court was an application for a review order made by Burton under section 36 of the Magistrates Court Act 2004 (WA). Burton sought to challenge the jurisdiction of the Magistrate and the Magistrate's determination of whether there existed a residential tenancy agreement between the parties. The dispute centred around the interpretation and application of the Residential Tenancies Act 1987 (WA) and the Strata Titles Act 1985 (WA) in relation to a lease of common property. The court was required to decide whether the Magistrate had jurisdiction under section 71 of the Residential Tenancies Act 1987 (WA), whether a tenancy for a fixed term existed on the facts as found by the Magistrate, and whether the strata company had the statutory power of agency under section 19 of the Strata Titles Act 1985 (WA) to validly lease common property on behalf of the proprietors.

The court considered the applicable statutory provisions and the evidence presented to determine whether the Magistrate had jurisdiction and correctly interpreted the law. The court found that the Magistrate did indeed have jurisdiction under section 71 of the Residential Tenancies Act 1987 (WA) to determine the existence of a residential tenancy agreement. The court also found that there was a tenancy for a fixed term on the facts as found by the Magistrate. In relation to the statutory power of agency, the court concluded that the strata company did not have the statutory power of agency under section 19 of the Strata Titles Act 1985 (WA) to validly lease common property on behalf of the proprietors. The court held that there was no residential tenancy agreement between the parties, and consequently, no notice was given pursuant to section 64 of the Residential Tenancies Act 1987 (WA).

Ultimately, the court dismissed Burton's application for a review order, finding that the Magistrate's determination was correct and that the Magistrate had jurisdiction to make the orders that were made. The court found that the Magistrate did not err in law or in fact, and that the decision was not unreasonable. The court further found that the statutory power of agency did not apply in the circumstances of this case, and that there was no residential tenancy agreement between the parties.

Orders