Re Magistrate Martin Crawford; Ex Parte McCormack
[2020] WASC 236
•24 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE MAGISTRATE MARTIN CRAWFORD; EX PARTE McCORMACK [2020] WASC 236
CORAM: HILL J
HEARD: 4 JUNE 2020
DELIVERED : 24 JUNE 2020
FILE NO/S: CIV 1456 of 2020
MATTER: An application under the Magistrates Court Act 2004 (WA) s 36 for a review order against Magistrate Martin Crawford of the Magistrates Court at Perth
EX PARTE
CAITLIN McCORMACK
Applicant
Catchwords:
Application for review under s 36 of the Magistrates Court Act 2004 (WA) - Application for judicial review - Residential tenancy - Where notice of termination found to be retaliatory in part - Factors relevant to discretion of magistrate in exercising discretion whether to terminate lease - Whether magistrate erred in dismissing claim for compensation - No jurisdictional error demonstrated
Legislation:
Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 15, s 71
Rules of the Supreme Court 1971 (WA), O 56
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | In Person |
Case(s) referred to in decision(s):
Ashwin v Housing Authority [2019] WASC 144
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
Rayney v AW [2009] WASCA 203
Re Brian Charles Gluestein; Ex parte Anthony [2014] WASC 381
Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380
Re Magistrate Raelene Natasha Johnston; Ex parte Wallam [2017] WASC 226
Re Magistrate Steven Malley; Ex parte the Housing Authority [2017] WASC 193
HILL J:
On 31 March 2020, the applicant filed an application for review of a decision made on 19 February 2020 to terminate the lease of the applicant and her brother and requiring them to deliver up vacant possession on 15 March 2020. On 22 April 2020, the applicant filed amended grounds of application.
The application is made under s 36 of the Magistrates Court Act 2004 (WA) and O 56A of the Rules of the Supreme Court 1971 (WA) (Rules). Under O 56A r 2 of the Rules, the application was heard ex parte on 4 June 2020.
The grounds for the application are, in essence, that:
(a)the magistrate made a jurisdictional error in misconstruing the jurisdiction under s 71(2)(b) of the Residential Tenancies Act 1987 (WA) (Act) in finding that the termination of the lease was justified in all the circumstances when the notice of termination was served on the basis of no grounds and not for breach of the lease; and
(b)in dismissing the application by the applicant for compensation and other orders, the magistrate found that the applicant had not satisfied the requirements of s 32 of the Act when no application had been brought under that section.
The applicant seeks judicial review of the decision of the learned magistrate on 19 February 2020, together with orders for writs of certiorari and mandamus to issue.
Factual background
The applicant relies on four affidavits which have been filed in the proceedings, being affidavits dated 10 April 2020, 21 April 2020, 22 April 2020 and 4 June 2020. The factual summary is taken from these affidavits together with the reasons for decision of the learned magistrate.
In September 2018, the applicant and her brother, Thomas McCormack, entered into a 12 month fixed term residential tenancy agreement in respect of a property located at 71 Thomas Street Nedlands (Property) (Lease). After the expiry of the fixed term of the Lease, under s 76C of the Act, the applicant and her brother remained in occupation of the Property under a periodic tenancy on the same terms.
From September until November 2019, the applicant and the lessors were in discussions regarding entry into a new fixed term lease. On 4 November 2019, the lessor[1] sent a text message to the applicant stating that he would come to the Property on Friday 8 November 2019 to meet with them and sign a new residential tenancy agreement.[2] The proposed new fixed term lease included an increase in the weekly rent and was for a period of three months 'to be renewed 30 days before the end of the lease'.[3]
[1] The lessors were a husband and wife. The correspondence was almost entirety between the applicant and the male lessor. Where I refer to the 'lessor' in these reasons, it is a reference to the male lessor.
[2] Affidavit of Caitlin McCormack filed 3 June 2020, p 3.
[3] Affidavit of Caitlin McCormack filed 3 June 2020, p 3.
On 5 November 2019 the applicant sent a text message objecting to paying the increased rent until 31 days after entering the new agreement and raising numerous items which she said required repair at the Property. The text stated that 'prior to signing the new agreement', arrangements needed to be made to repair these items.[4]
[4] Affidavit of Caitlin McCormack filed 3 June 2020, p 5.
On the following day, 6 November 2019, the lessors issued a 60 day notice of termination to the applicant and her brother, under s 64 of the Act, requiring vacant possession of the Property to be given by 6 January 2020.[5]
[5] Affidavit of Caitlin McCormack filed 3 June 2020, p 7.
On 8 November 2019, the lessor responded to the applicant's text of 5 November 2019.[6] He expressed surprise at the list of maintenance issues and referred to his inspection on 12 August 2019 where, he said, none of the problems listed were present. Following this, the applicant and the lessor exchanged further emails in relation to these items.
[6] Affidavit of Caitlin McCormack filed 3 June 2020, p 37.
On 14 November 2019, the applicant and her brother served a notice on the lessors for breach of the agreement for failing to conduct repairs within a reasonable period of time.[7] A further notice of breach was served on 20 November 2019 for interference with quiet enjoyment and privacy.[8]
[7] Affidavit of Caitlin McCormack filed 3 June 2020, p 9.
[8] Affidavit of Caitlin McCormack filed 3 June 2020, p 10.
On 22 November 2019, the applicant and her brother commenced proceedings in the Magistrates Court against the lessor seeking compensation for breach or breaches of the agreement and enforcement orders to ensure repairs were carried out.[9]
[9] Affidavit of Caitlin McCormack filed 3 June 2020, p 11 - 12.
On 8 January 2020, the lessors commenced proceedings seeking orders for the termination of the lease and for the tenants to give vacant possession of the premises to them.[10] The application by the lessors was not in evidence before me.
[10] Affidavit of Caitlin McCormack filed 22 April 2020 [8].
Proceedings before the magistrates court
The applications were initially listed for hearing on 5 February 2020 but were adjourned for two weeks on the application of the applicant.[11]
[11] Affidavit of Caitlin McCormack filed 22 April 2020 [9].
On 19 February 2020, the applications by both the applicant and the lessors came on for hearing before Magistrate Crawford. Neither of the parties were represented at the hearing. The proceedings in the Magistrates Court were pursuant to the Minor Cases Procedure which requires the court to act with as little formality as the court thinks reasonable. Under s 21 of the Act, the court was not bound by the rules of evidence, but could inform itself on any matter in such manner as it things fit.
Shortly after the commencement of the hearing, the lessor produced a bundle of documents to the magistrate. The applicant says that she was not provided with copies of these documents by the lessor, had not been given prior notice of these documents and was not given an appropriate opportunity to review these documents.
While I accept that the applicant had not been given prior notice of the documents the lessor intended to rely on and was not provided with copies of the documents, I do not accept that she was not given an appropriate opportunity to review these documents. After hearing opening statements from the parties and explaining to them how the hearing would proceed, both parties indicated they had documents they intended to rely upon. The learned magistrate then stated:[12]
Now, give him – take a seat, [lessor]. You can look at that file and once you’ve finished looking, let me know. Similarly, Ms McCormack, have a look at the file that [the lessor] wants to hand up and familiarise yourself with it, and then, I will look at them both. Thank you. I will look at that one, now, whilst – if you've finished going through that one.
[12] ts 26, 19 February 2020.
The following exchange then took place between the magistrate and the applicant:[13]
[13] ts 27, 19 February 2020.
HIS HONOUR: Are you nearly there?
McCORMACK, MS: Yes. I'm in the last section, it would appear. I'm just quickly making notes of anything that I haven't seen before, I didn't know about. Sorry. Can I please clarify? Is David McEwen the electrician? Okay.
HIS HONOUR: Tell me when you're ready. You - - -
McCORMACK, MS: I think I’m literally in the - - -
HIS HONOUR: Notwithstanding being a quick reader - - -
McCORMACK, MS: Sorry. There's just a lot of information here that I - - -
HIS HONOUR: Okay.
McCORMACK, MS: - - - am only just seeing for the first time.
HIS HONOUR: Thank you.
McCORMACK, MS: Okay. I'm done. Sorry. Just because I can't remember things off the top of my head, I had to make little notes about things. Okay.
HIS HONOUR: Thank you. All right. Now, [the lessor] has got an opening statement. And I haven't yet seen because all that time was spent by the tenant going through it.
McCORMACK, MS: Sorry.
The time recording on the transcript suggests that this exchange occurred shortly before midday. The hearing commenced at 10.28 am. While it is not clear from the transcript how long the applicant was given to review the documents and take notes, the transcript records that she was given time by the magistrate, that she did not take any objection at the hearing to the matter proceeding or request further time to consider the documents.
Both the applicant and the lessor gave evidence at the hearing and were cross‑examined.
The lessor gave evidence of a conversation with his daughter on 1 November 2019 during which she expressed a desire to live at the property. His evidence was that following this conversation, he discussed the matter with his wife (the other lessor). They decided to issue a termination notice to the applicant and her brother so the Property could be renovated for their daughter to live in.[14]
[14] ts 34, 19 February 2020.
Following the close of evidence, each of the applicant and the lessor were given the opportunity to make closing submissions.
Magistrate's reasons for decision
The magistrate delivered his reasons for decision immediately following the hearing.
The learned magistrate accepted that the termination notice was issued by the lessor on 6 November 2019 following the complaint received from the tenants. His Honour found that the lessor was partly motivated to terminate the Lease by the steps taken by the tenants on 5 November 2019 (to enforce their rights under the Lease) but held that this gave rise to a discretion under s 71 of the Act whether or not to grant termination of the Lease.[15]
[15] ts 109, 19 February 2020.
The learned magistrate then had regard to other matters which motivated the lessor to issue the notice including the poor condition of the Property, the complaints from the local council, including a written notice issued on 18 September 2019, complaints from neighbours regarding rabbits that were kept by the applicant at the Property and the late payment of rent.[16] Although no breach notice had been served on the applicant and her brother in relation to these matters and the claim for termination of the lease was not based on a breach of the Lease, his Honour considered that these matters were relevant to his exercise of discretion under s 71(3). The learned magistrate found that the lessors would have extended the Lease for another short periodic tenancy if the tenants were ideal tenants but they were not.[17] On this basis, he ordered that the residential tenancy agreement be terminated and possession of the property be delivered up by Sunday, 15 March 2020.
[16] ts 110 ‑ 111, 19 February 2020.
[17] ts 111, 19 February 2020.
In respect of the applicant's claim for compensation, his Honour rejected the claim in its entirety. Crucial to this decision was the 'fact that there were no written complaints as to the items claimed on 5 November 2019'.[18] The learned Magistrate then went through each of the items in the applicant's claim and concluded:[19]
I am not satisfied the tenants have suffered any loss and damage with respect to the matters complained about. Certainly, they have not demonstrated that to my satisfaction.
[18] ts 111, 19 February 2020.
[19] ts 115, 19 February 2020.
His Honour then referred to s 32(3) of the Act which, in his view, the tenants were required to address. He considered that this section had potential application to the applicant's claim and to the extent that it did, he was not satisfied that the applicant had dealt with the matters required.[20]
[20] ts 115, 19 February 2020.
After delivering his reasons for decision, the applicant queried his Honour's reference to s 31 or d 32 of the Act. His Honour explained that he dealt with the applicant's application under the sections raised by the applicant and, to the extent required, under s 31 and 32 of the Act.[21]
[21] ts 123, 19 February 2020.
Subsequent events
The tenants did not vacate the property by 15 March 2020. As a consequence, on 23 March 2020, the lessors filed an application for a property (seizure and delivery) order[22] which was made on the same date.
[22] Civil Judgments Enforcement Act 2004 (WA), s 95.
On 24 March 2020, the applicant filed an application to suspend the order for enforcement under s 15 of the Civil Judgments Enforcement Act. The application was listed for hearing on 3 April 2020. The application for suspension of the order for enforcement was served on the lessors by email and registered post on 27 March 2020.
Notwithstanding this application, on 30 March 2020, the bailiff enforced the property (seizure and delivery) order and evicted the applicant and her brother from the Property.
On 31 March 2020, the applicant filed an application for judicial review in relation to the decision of the magistrate. From 3 April 2020 until 23 April 2020, the applicant sought, unsuccessfully, on three separate occasions, an interlocutory injunction to require the lessors to deliver up to her and her brother possession of the Property.
Legal Principles
Application for review
To grant an application for a review order under s 36 of the Magistrates Court Act, the court must be satisfied that the applicant has an arguable case that jurisdictional error of the type identified in s 36(1) of the Magistrates Court Act was made. The relevant classes of error include grounds that previously may have justified an order of mandamus, prohibition or certiorari. Relevantly, for the purposes of this case, pursuant to s 36(1)(c)(i), it includes the making of an order without jurisdiction or power.
This means that the court must be satisfied that the case has reasonable prospects of success.[23] It is important to stress that an application under s 36 of the Magistrates CourtAct is concerned only with the legality of the decision and not its merits.[24]
[23] Re Brian Charles Gluestein; Ex parte Anthony [2014] WASC 381 [42] (Beech J).
[24] Ashwin v Housing Authority [2019] WASC 144 [5].
To fall within s 36(1) of the Magistrate's Court Act, the error must be either a jurisdictional error or an error of law on the face of the record.[25] The grant of relief is pre‑conditioned upon establishing a reviewable error under s 36(1) of the Magistrates Court Act.[26]
[25] Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380 [7].
[26] Rayney v AW [2009] WASCA 203 [31] (McLure JA, Buss & Newnes JJA agreeing).
As was stated by Smith J in Ashwin v Housing Authority:[27]
Jurisdictional error refers to a failure to comply with one or more statutory pre-conditions or conditions, to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.
To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction. That is, the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks the power to do. (footnotes omitted)
[27] Ashwin v Housing Authority [8] ‑ [9].
In this case, the relevant decisions were made pursuant to the Act. I now turn to consider the relevant provisions of this Act.
Residential Tenancies Act 1987
The Lease was not in evidence before me. However, for the purpose of these proceedings, I accept that the Lease is covered by the Act as this was the basis upon which the hearing proceeded in the Magistrates Court.
Pursuant to s 12A of the Act, the Magistrates Court has exclusive jurisdiction to hear and determine disputes concerning residential tenancies.
Section 15 of the Act enables a lessor or lessee to apply to the Magistrates Court for relief where they allege there has been a breach of the lease agreement. On such an application, the court may, among other things, order payment of compensation for any loss caused by a breach of the agreement.[28]
[28] Residential Tenancies Act, s 15(2)(c).
Section 26 of the Act makes plain that an order made by the Magistrates Court is final and binding on all parties and that no appeal lies against the decision. Pursuant to s 26(2), no order shall be made under s 36 of the Magistrates Court Act unless the Supreme Court is satisfied that the Magistrates Court did not have jurisdiction under the Act in respect of the proceedings or that a party to the proceedings was denied natural justice. This includes circumstances where the Magistrates Court acts in excess of jurisdiction, either because it does not have jurisdiction or because it has exceeded the limits of its jurisdiction conferred on it by the Act.[29]
[29] Re Magistrate Raelene Natasha Johnston; Ex parte Wallam [2017] WASC 226 [23]
Division 2 of pt 4 of the Act prescribes the standard terms which residential tenancy agreements are required to include. These include the lessor's responsibility for cleanliness and repairs (s 42), urgent repairs (s 43), quiet enjoyment (s 44) and the lessor's right of entry of the property (s 46).
Part 5 of the Act deals with termination of residential tenancy agreements.
Under s 64 of the Act, a lessor can give not less than 60 days' notice of termination of a residential tenancy agreement to a lessee without specifying any ground for the notice. If at the expiry of the time set out in the notice of termination, the tenants do not vacate the property, it is necessary for a lessor to bring an application for an order under s 71 of the Act to obtain possession of the property. This section relevantly provides that:
(1)Where a lessor or a tenant under a residential tenancy agreement gives notice of termination to the other under this Act except under section 70A and the tenant fails to deliver up possession of the premises on the day specified, the lessor 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 this section, make an order terminating the agreement and an order for possession of the premises, if it is satisfied —
(a)that notice of termination was given by the lessor or tenant to the other and that it complied with and was given in accordance with this Act; and
(b)where the notice was given by the lessor upon a particular ground prescribed by this Act, other than a notice given by a lessor on a ground referred to in section 71C or 71H, that the lessor has established that ground and, in the case of notice upon the ground of a breach by the tenant of a term of the agreement, that the breach is in all the circumstances such as to justify termination of the agreement; and
(c)where the notice was given by a lessor upon a ground referred to in section 71C or 71H, in respect of the relevant matters referred to in subsection (3A).
…
(3)Notwithstanding subsection (2) the court may —
…
(b)refuse to make the orders under that subsection, if it is satisfied —
(i)that the lessor was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant; or
(ii)in the case of notice given by the lessor upon the ground of a breach by the tenant, that the tenant has remedied the breach, but in every case the court shall take into account any previous breaches of the agreement by the tenant; or
(iii)in the case of notice given by the lessor upon the ground referred to in section 69, that the consequences of the lessor continuing to be bound by the agreement would not be unduly burdensome to the lessor.
(4)Where in any proceedings upon an application under this section the court is satisfied that the tenant had, within the period of 6 months before notice was given by the lessor, complained to a public authority or taken steps to secure or enforce the tenant’s rights as a tenant, the burden shall lie on the lessor to prove that the lessor was not wholly or partly motivated to give notice by that fact.
If the tenant does not vacate the premises within the time ordered by the Magistrates Court, the lessor can seek and obtain a property (seizure and delivery) order pursuant to s 95 and s 96 of the Civil Judgments Enforcement Act.
Disposition
Ground 1
The applicant contends that the learned Magistrate misconstrued s 71 of the Act in taking into account matters concerning the history of the tenancy. She submitted that where a notice of termination has been served on the basis of 'no grounds' pursuant to s 64 of the Act, in exercising the discretion under s 71(3)(b) of the Act, the Magistrate could not take into account any previous breaches of the lease or other conduct. The only relevant consideration was whether the lessor was motivated to terminate the tenancy as a retaliatory action.
I do not accept this contention.
Under s 71(2)(a) of the Act, the court is required, upon application, to make an order terminating a residential tenancy agreement and an order for possession, if it is satisfied that the notice of termination was given and that it complied with and was in accordance with the Act.
Section 71(3)(b) provides an exception to s 71(2); namely that the court may refuse to make orders if satisfied that the lessor was wholly or partly motivated to give the notice by the fact the tenant had taken steps to secure or enforce their rights as a tenant. In my view, the use of the word 'may' gives the magistrate a discretion to refuse to terminate the tenancy where there is a finding that the notice was, at least in part, retaliatory.
If the legislature had intended that upon being satisfied that the lessor's action was retaliatory, the application for termination be refused, this section would have used the directive word 'shall' rather than the permissive word 'may'.
The question that arises for consideration is what matters are relevant to the exercise of the magistrate's discretion under s 71(3)(b) of the Act. This is a matter of statutory construction of the section. The proper approach to statutory construction was summarised by Buss JA in Caratti v Mammoth Investments Pty Ltd as follows:[30]
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. (citations omitted)
[30] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84 [390] - [392].
Extrinsic material may be considered in ascertaining the meaning of the section,[31] which includes explanatory memoranda, second reading speeches, and any reports made to or laid before Parliament.[32]
[31] Interpretation Act 1984 (WA), s 19(1)(a), 19(b)(i).
[32] Interpretation Act, s 19(2).
In Re Magistrate Steven Malley; Ex parte the Housing Authority, Le Miere J summarised the context of s 71(3)(b)(i) of the Act in the following terms:[33]
[33] Re Magistrate Steven Malley; Ex parte the Housing Authority [2017] WASC 193 [34] - [38], [40].
The lessor's right to terminate a residential tenancy agreement is restricted and regulated by pt V of the [Act]. A residential tenancy agreement is any agreement under which a person for valuable consideration grants to another person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises for the purpose of residence (s 3). Thus, pt V of the Act applies to private lessors as well as the Authority or any other social housing provider.
Section 60, which is in pt V div 1 of the Act, provides that a residential tenancy agreement shall not terminate or be terminated except in one of the specified circumstances. Relevantly, s 60(a) provides that a residential tenancy agreement shall terminate or be terminated where the lessor gives notice of termination under the Act and the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under the Act or a competent court, upon application by the lessor, terminates the agreement under s 71. The effect of these provisions is that a notice to quit, referred to in the [Act] as a notice of termination, does not of itself terminate the agreement unless the tenant delivers up possession of the premises or a competent court terminates the agreement.
Part V div 2 deals with the circumstances in which a lessor may give a notice of termination and the required period of notice. Section 62(1) provides that a lessor may give notice of termination upon the ground that the tenant has breached a term of the agreement and the breach has not been remedied. Under s 63 a lessor may give notice of termination on the ground that the lessor has entered into a contract for sale of the premises to which the agreement relates. Section 64 provides that a lessor may give notice of termination to the tenant without specifying any ground for the notice. Section 64(2) provides that such a notice of termination without any ground must be not less than 60 days before the day on which the tenant is required under the notice to give to the lessor possession of the premises. Section 64 does not apply to a residential tenancy agreement for a fixed term during the currency of that term.
Part V div 4 provides for a competent court to make orders terminating a residential tenancy agreement and for possession of the premises. A competent court is relevantly the Magistrates Court. Section 71(1) provides relevantly that where a lessor gives notice of termination and the tenant fails to deliver up possession of the premises on the day specified, the lessor may, apply to a competent court for an order terminating the agreement and an order for possession of the premises. Section 71(2) provides that subject to that section, a competent court shall, upon application under that section, make an order terminating the agreement and an order for possession of the premises if it is satisfied relevantly:
•that notice of termination was given by the lessor and that it complied with and was given in accordance with the Act; and
•where notice was given by the lessor upon a particular ground prescribed by the Act, that the lessor has established that ground and, in the case of notice upon the ground of a breach by the tenant of a term of the agreement, that the breach is in all the circumstances such as to justify termination of the agreement.
Section 71(3)(b)(i) provides that the court may refuse to make orders terminating the agreement or for possession of the premises if it is satisfied relevantly that the lessor was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant. Section 71(4) is a reversal of onus provision. It provides that where in any proceedings upon an application under that section the court is satisfied that the tenant had, within the period of six months before notice was given by the lessor, complained to a public authority or taken steps to secure or enforce the tenant's rights as a tenant, the burden shall lie on the lessor to prove that the lessor was not wholly or partly motivated to give notice by that fact.
…
At common law the lessor can give a notice to quit to the tenant for any reason or no reason at all. The Act modifies the common law by increasing the amount of notice to quit to 60 days. The Act provides that a shorter period of notice may be given, or an application may be made to the court to terminate the tenancy and order the tenant give possession of the premises to the lessor in circumstances where that is justified such as where the tenant has breached the tenancy agreement and failed to remedy the breach or has engaged in objectionable behaviour. Where the lessor gives notice to quit under s 64 the lessor may do so for any reason or no reason at all and it is not possible for the sufficiency of the reason to be challenged in court. That is subject to the qualification that the court has a discretion to refuse to terminate the agreement or order possession of the premises where the lessor was motivated to give the notice by the fact that the tenant had complained to a public authority.
As was noted by Le Miere J, the purpose of s 64 of the Act is to 'preserve the ability of a lessor to terminate a residential tenancy for any reason or for no reason at all, subject to the tenant have a reasonable period of notice'.[34] That is, this section preserves the ability of a lessor to take possession of their property while giving the tenant adequate time to find replacement accommodation.
[34] Re Magistrate Steven Malley; Ex parte the Housing Authority [48].
In relation to s71(3)(b)(i) of the Act, Le Miere J held that:[35]
Section 71(3)(b)(i) requires that an actual or operative reason of the lessor giving the notice be the fact that the tenant has taken the steps. That is the ordinary and natural meaning of s 71(3)(b)(i). The words 'motivated' and 'by the fact' in s 71(3)(b)(i) require an investigation of the reasons of the lessor for giving the notice. Action (in this case giving notice) is motivated by a fact, in this case the fact of the tenant having taken steps to secure or enforce his rights as a tenant, if that fact is an actual or operative reason for the action. Examining whether a fact is an actual or operative reason for an action calls for an inquiry into the mental processes of the person responsible for that action. A mere causal link is insufficient.
The words 'wholly or partly' mean that it is sufficient if the fact of the tenant having taken the steps is an operative reason for the lessor giving notice notwithstanding that there may be other operative reasons.
[35] Re Magistrate Steven Malley; Ex parte the Housing Authority [71] - [72].
Section 71(3)(b)(i) of the Act does not prescribe the matters that can be taken into account in exercising the discretion. The matters that are relevant are likely to vary from case to case and be fact dependent. However, the duration and history of the tenancy are likely to be relevant factors to take into account as are the other reasons the lessor had for giving notice to terminate the lease. In exercising its discretion, the court should also have regard to the purpose of s 64 of the Act which allows termination of a lease and recovery of possession of the land on reasonable notice in accordance with the Act without any requirement to provide reasons. This reflects the lessor's superior interest in the land.
In oral submissions, the applicant referred to a number of factual findings by the magistrate which she said were in error. These included inconsistencies in respect of the date on which the lessors decided to terminate the lease, the complaints made to the council and whether they had been resolved satisfactorily.
In this case, the learned magistrate considered whether the lessor was motivated wholly or in part in issuing the notice of termination by the applicant and her brother seeking to enforce their rights under the Lease. The magistrate answered that question in favour of the applicant. The magistrate correctly recognised that this finding did not require him to refuse the application to terminate the lease. His Honour had a discretion whether or not to order that the lease be terminated. In exercising his discretion, the learned magistrate took into account the factors that are relevant to the exercise of this discretion, namely that there were other reasons for the issue of the notice of termination, some personal to the lessor and their intended future use of the property, and some relevant to the history of the tenancy.
If there are any areas in his Honour's factual findings, these are areas within jurisdiction which do not empower this court to make any orders under s 36 of the Magistrates Court Act.
For these reasons, I am not satisfied that it is arguable that the magistrate misconstrued the discretion under s 71(3)(b)(i) of the Act or that there is any jurisdictional error in the learned magistrate's decision to terminate the lease.
Ground 2
The applicant contends that in dismissing the application by the lessees for compensation and enforcement of the lease, the learned magistrate identified a wrong issue, namely the sections under the Act on which the applicant relied in seeking relief.
The applicant also submits that the learned magistrate erred in finding that the applicant had not made any prior written complaints in respect of the items requiring repair prior to 5 November 2019.
The application filed by the applicant was made under s 15 of the Act and sought damages for breaches of a number of terms of the lease, including the standard terms set out in s 42 to s 44 of the Act.
The learned magistrate in his reasons specifically dealt with and considered each item of the applicant's claim for compensation and found that the applicant and her brother had not proved they suffered any loss, as required under s 15 of the Act. While he went on to refer to s 32 of the Act, this was not the sole basis for his reasons to dismiss the applicant's claim. For this reason, I do not consider that it is arguable that his Honour identified a wrong issue.
The applicant in oral submissions contended that the learned magistrate failed to take into account relevant considerations such as the health, mental health and financial status of the applicant and her brother and that he ignored relevant material tendered by the applicant.
Even if the applicant is correct in these submissions and there are errors in his Honour's factual findings (on which I make no finding), these are errors within jurisdiction which do not empower this court to make any orders under s 36 of the Magistrates Court Act.
Accordingly, I am not satisfied that it is arguable that there is any jurisdictional error in the learned magistrate's dismissal of the applicant's claims. The learned magistrate, in dealing with the applications, addressed all of the issues that were raised by the applicant and made findings that were open for him to make.
Conclusion
For these reasons, I consider that the application should be dismissed and will make an order to this effect.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill24 JUNE 2020
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