Ren v Strata Corporation 12753 Inc (ABN: 77 343 530 199)
[2024] HCATrans 73
[2024] HCATrans 073
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A21 of 2024
B e t w e e n -
SI REN
Applicant
and
STRATA CORPORATION 12753 INC (ABN: 77 343 530 199)
Respondent
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION
ON MONDAY, 21 OCTOBER 2024, AT 9.32 AM
Copyright in the High Court of Australia
HER HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.
MS S. REN appeared in person.
MR E.G. BELPERIO appeared for the respondent. (instructed by Botten Levinson Lawyers)
HER HONOUR: The Court has received the special leave application, but also the application for a stay of the orders of the Court of Appeal. As I understand it, the Court notified the parties that the application for special leave can be and will be determined by 7 November and requested that the parties notify the Court whether in those circumstances there could be agreement to an extension of the orders of the court below. Are you aware of that, Mr Belperio?
MR BELPERIO: Yes, your Honour, my instructions are not to consent to a stay.
HER HONOUR: Okay, can I understand why that is? In circumstances where the information I have before me indicates that the physical work was done sometime in the latter half of 2018, there was a development consent granted – apparently retrospectively – for the works in October 2019, and then the respondent did not commence proceedings to have the tenants removed and the physical internal works dismantled and the unit restored until, as I understand it, August 2022. We are now in October 2024, which seems to suggest that the current condition of the building has been as it is for something in the order of four years.
So, I am just not quite following, given that this Court can give you a determination of whether special leave is granted or not by 7 November, which is two or three weeks away. What is the reason for the non‑consent to an extension of the orders by the same amount that the Court of Appeal extended them, which is one month on two months after 7 November?
MR BELPERIO: Your Honour, I can say no more than what Justice Bleby has observed in his judgment refusing a stay, pending special leave – and that is [2024] SASCA 120. My submissions are that the application for special leave has insufficient prospects of success, but on the matters that your Honour has raised – the length of time – Justice Bleby refers at paragraph 25 to the ongoing prejudice being suffered by the respondent, which is an unremediated unit which has safety issues, including that the South Australian Civil and Administrative Tribunal has recently ruled in June of 2024 that various issues:
amounted to defects which could demonstrate that the premises are unsafe or unsuitable for human habitation.
And the respondent ‑ ‑ ‑
HER HONOUR: Yes, I am aware of paragraph 25. Obviously, the Court of Appeal must have been aware of that when it itself made orders on 29 August 2024 and it extended the timeframe given by the trial judge for vacation of the tenancies by 28 September and restoration of the building work to 28 October. I may be wrong, but that suggests that the Court of Appeal did not see any particular urgency with the undoing of the works, in the sense that if there is a genuine risk to human health – say, from fire safety – it is inexplicable, to me, that the Court of Appeal would have give a month after the judgment to vacate the tenancies. When I look at paragraph 25, the safety issue is:
the lack of an electrical certificate of compliance in respect of the electrical defects in the bathroom and kitchen –
In terms of, at least, fire risk. Then, the evidence before this Court seems to include a certificate where those items have been – the council did a fire safety audit, according to this, on 18 July 2024, and it wrote to the applicant, it seems. It said that the fire safety detection system:
was functioning . . . and there were no isolations or faults on the building’s fire detection control and indication equipment. As the fire safety of the apartment was deemed adequate and the apartment layout reflected the approved plans with no significant departures from the approval, Council have no further actions to purse on the matter.
Based on that information, unless you are telling me there is more recent information, I am going to take that as an indication that there is no particular fire safety risk. Am I wrong to do that?
MR BELPERIO: There is certainly no further evidence before your Honour that I can point to.
HER HONOUR: So, the council have inspected this apartment as recently as 18 July and have said that fire safety is adequate? That is a fact that I am relying on? Unless you tell me to the contrary.
MR BELPERIO: Your Honour, on the basis of the evidence before your Honour, I cannot say anymore, but we do not ‑ ‑ ‑
HER HONOUR: And then the other reference is to a:
lack of adequate ventilation in the kitchen –
Again, the evidence is that the council granted a development consent and that this unit complies with the development consent. Is that not true?
MR BELPERIO: Your Honour, that was the subject of some evidence at trial that was related to development approval some time ago. In my submission, that is not relevant to the risk involved in the work that is being constructed, but I cannot ‑ ‑ ‑
HER HONOUR: I am having trouble following that, given that the council’s email on 17 September 2024 says:
the apartment layout reflected the approved plans with no significant departures from the approval –
Do you have any reason to doubt the accuracy of that that you can point me to?
MR BELPERIO: Your Honour, I do not doubt the accuracy of that letter, it is only that it is, in my submission, not a comment in relation to the safety of what has been constructed, but I accept, your Honour, that there is no evidence before your Honour that I can take your Honour to on this topic, other than what is in the judgments.
HER HONOUR: Yes, but what I am putting to you is that while there is a SACAT compliance notice, the issues that are raised by the compliance notice, as far as I can see, do not create any immediate or remotely urgent issue that would justify requiring the work to be undone and people to be evicted before 7 November.
I am looking for your assistance Mr Belperio, is there anything – because 7 November is not very far away and this has been going on for four years, and I am trying to work out whether the proper thing to do is simply to amend the two dates by the same time period the Court of Appeal did but after 7 November so that the special leave application, which has been expedited to 7 November to assist these parties – whether that is the appropriate resolution. Frankly, it is the appropriate resolution unless there is some evidence, of any kind, of any real risk to human health – and it would be fire, effectively – otherwise everything is the same for the last four and a half years.
MR BELPERIO: Your Honour, I cannot make any further submission, so I am ‑ ‑ ‑
HER HONOUR: All right. I totally understand why the Court of Appeal did not extend the stay, because it made its orders, but the special leave application is now filed and the Court of Appeal when considering the stay acted on the basis that it would take some months for the special leave application to be determined. As it is, the special leave application has been expedited and can be and will be determined by 7 November.
In the absence of any evidence from the respondent that there is any urgent, imminent – or even approaching urgent or imminent – risk to human health and safety as a result of the existing situation continuing for a short further amount of time to enable the special leave application to be determined, it is my view that there should be an extension of the time for compliance equivalent to that which the Court of Appeal itself granted but running from the date of 7 November.
In saying that, I have placed particular significance on the fact that the council conducted a fire safety audit – according to an email from the council – on 18 July 2024, which stated that:
there were no isolations or faults on the building’s fire detection control and indication equipment.
And the fire safety of the particular apartment was “adequate” and reflected:
the approved plans with no significant departures . . . Council have no further actions to pursue on the matter.
I have also taken into account that, in paragraph 25 of the reasons for decision of the Honourable Justice Bleby in Ren v Strata Corporation 12753 delivered on 9 October 2024, there is a reference to a decision of the South Australian Civil and Administrative Tribunal:
dismissing the applicant’s application for review of the decision of the Housing Safety Authority to issue a housing improvement order –
While that refers to:
the lack of an electrical certificate of compliance in respect of the electrical defects in the bathroom and kitchen –
there is also evidence postdating that of certification of all the electrical aspects of the apartment. While there is a reference also to:
lack of adequate ventilation in the kitchen –
and one of the rooms being used:
as a bedroom . . . smaller than the minimum prescribed size for a bedroom –
I infer from the evidence that this must have been the situation from the time that the internal works were carried out, which seems to have been throughout 2018 and 2019. Otherwise, the various matters in paragraph 25 have to be assessed in light of the fact that the council granted what was described as a retrospective development approval to these works on 10 October 2019, and the respondent did not file an application for the works to be removed and the unit rectified until 10 August 2022. That is, the existing situation has continued now for some four years.
It is in those circumstances that I would be minded to grant the equivalent extensions of time. Ms Ren, the orders I would be making, unless you say something to the contrary, are:
1.The date 28 September 2024 in order 4(a) of the orders of the Supreme Court of South Australia Court of Appeal made on 29 August 2024 is amended to 22 November 2024.
That is an equivalent period. The next order would be that:
2.The date 28 October 2024 in order 4(b) of the orders of the Supreme Court of South Australia Court of Appeal made on 29 August 2024 is amended to 20 December 2024.
I would also make an order to the effect that:
3.“Liberty to apply” in order 5 of the Court of Appeal’s orders is taken to apply to those orders as varied by orders 1 and 2.
The last order I would make is that:
4.Costs of the applicant’s application for a stay of the Court of Appeal’s orders be dealt with in the special leave application.
Ms Ren, those orders will be subject to whatever you wish to say to me. Those orders will be entered and sent to the parties.
The special leave application will be determined on 7 November. You will either be granted special leave to appeal or you will not. If you are granted special leave to appeal, the extensions of time that are in these orders would be open for further application to extend. So, if you get special leave to appeal, the dates in these orders can be looked at, and if the Strata Corporation has any actual safety evidence, they can be looked at as well.
If you are refused special leave, these orders will just stand, because you will have exhausted all your appeal rights. You will have nowhere further to go. If you are refused special leave, you will have to ensure the tenants vacate by 22 November, and you will have to undo the works by 20 December, but you will have liberty to go back to the Court of Appeal if it proves impractical to get the works undone by 20 December for some reason. You will be able to seek from them an extension.
The only other order I would make is I will give you liberty to come back to me before the dates and before 7 November. It is particularly for the respondent, if there is any safety issue evidence you can put it before me, but you have none at the moment. If there is not any, these orders would just remain. Does that make sense?
MR BELPERIO: Yes, your Honour.
HER HONOUR: Ms Ren, does that make sense to you?
MS REN: Your Honour, does that mean I do not need to pay the $7,000 cost ‑ ‑ ‑
HER HONOUR: The costs order? Are you seeking to enforce your – you have various costs orders below, do you not, Mr Belperio?
MR BELPERIO: Yes, your Honour.
HER HONOUR: Not just the 7,000.
MR BELPERIO: Yes, your Honour.
HER HONOUR: I would be minded to just stay the costs orders until determination of the special leave application on 7 November. Is there any reason I should not do that?
MR BELPERIO: No, your Honour.
HER HONOUR: I will add an order that:
5.Liberty to restore to both parties, before 7 November 2024, in the event of any material change of circumstances.
What that is meant to cover, Mr Belperio, is that if you actually do become aware of any safety issue, okay?
MR BELPERIO: Thank you, your Honour.
HER HONOUR: I give you that. Then order 6 will be:
6.The costs orders in favour of the respondent be stayed until determination of the application for special leave to appeal.
Yes? So, if you are refused special leave on 7 November, Ms Ren, you have exhausted – as far as this Court is concerned – everything. The costs orders will be enforceable from 7 November onwards, and the orders for removal of the tenants will have to be complied with by 22 November, and the order for the removal of the internal walls will have to be complied with by 20 December, although the Court of Appeal has said if you have a genuine problem, like getting that completed, you can go back to them for an extension. That is if special leave is refused on 7 November.
If it is granted, then we will have another look at it, okay. That changes things again. Does that make sense, Ms Ren? And costs is stayed.
MS REN: Yes, your Honour.
HER HONOUR: Yes, that makes sense?
MS REN: There is a $7,000 costs order from when I make an application to stay in the Court of Appeal. Does that mean this High Court decision overrides that decision?
HER HONOUR: It does not override it, it stays it until determination of the special leave application, which will be on 7 November.
MS REN: Okay.
HER HONOUR: It does not override it. All I am giving you is – because we can determine the special leave application quickly, I am giving you an extension of time to comply, but if special leave is refused on 7 November, all the costs applications below will be enforceable by the respondent against you. If it is refused, because that means you should never have got the extension of time from me. Well, you should have got the extension of time, but it means that there is insufficient merit in your special leave application, so there is no reason to overturn the costs order below.
MS REN: Okay.
HER HONOUR: Does that make sense?
MS REN: Okay.
HER HONOUR: All right. These orders will be typed up and the Registry will send them to the parties, and then you will be notified on, hopefully, 7 November, or shortly thereafter, which is that date I am told that the special leave application can be determined. As I say, these orders will then take effect. Even if it is refused, you still get 22 November and 20 December. I know you do not consent to it, Mr Belperio, but is there any reason that that is inappropriate, based on what I have said?
MR BELPERIO: No, your Honour.
HER HONOUR: As I say, if you do get any material information about a change of circumstances raising any safety issue, then it really is a matter for the respondent to bring it up. As I say, the council seems already to have inspected, so that is what I am relying on. If there is nothing else, I will adjourn and we will get these orders made up. Thank you.
AT 9.57 AM THE MATTER WAS ADJOURNED
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