Robyne Carlyle MARYSKA v Scot Gregory MASON & Anor

[2006] NSWSC 913

CITATION:	Robyne Carlyle MARYSKA v Scot Gregory MASON & Anor [2006] NSWSC 913
HEARING DATE(S):	5 September 2006
JUDGMENT DATE :	14 September 2006
JURISDICTION:	Common Law Division - Administrative Law List
JUDGMENT OF:	Associate Justice Malpass
DECISION:	I am satisfied that the plaintiff has discharged the onus of satisfying the court that the orders made by Tribunal Member Smith should be set aside. (see para.30)
CATCHWORDS:	Jurisdiction of the Tribunal - issue estoppel - requirements of s.64
LEGISLATION CITED:	Residential Tenancies Act 1997 S.64; Consumer, Trader & Tenancy Tribunal Act (NSW) Ss.65 & 67.
CASES CITED:	Plimmer v Mayor of Wellington (1884) 9 App Cas 699; Vinden v. Vinden [1982] 1 NSWLR 618; Olgilvie v. Ryan [1976] 2 NSWLR 504; Shoena Middlebrook v NSW Land & Housing Corporation & Anor [2005] NSWSC 673.
PARTIES:	Robyne Carlyle MARYSKA (Plaintiff) Scot Gregory MASON (First Defendant) The Consumer,Trade and Tenancy Tribunal (Second Defendant)
FILE NUMBER(S):	SC 30056 of 06
COUNSEL:	Mr M. S. Willmott SC ( Plaintiff) Mr R. Lee (First Defendant)
SOLICITORS:	John Simpson & Co Solicitors & Attorneys (Plaintiff) Sylvia Liddle & Associates (First Defendant) I V Knight, Crown Solicitor (Second Defendant)
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	RT 05/51791
LOWER COURT JUDICIAL OFFICER :	Tribunal Member Jeffery Smith
LOWER COURT DATE OF DECISION:	28 March 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

14 September 2006

30056 of 2006 Robyne Carlyle MARYSKA v
Scot Gregory MASON
JUDGMENT

1 The plaintiff was the mother-in-law of the first defendant. Her daughter, Kylie Yvonne Mason, was the owner of a property at West Hoxton (the property).

2 The plaintiff contends that she commenced living in the property in about 1997, pursuant to an oral agreement made with her daughter that enabled her to reside for life in the property upon the paying of $150 per week rent. It is also contended that the first defendant had knowledge of such agreement. There is evidence that the plaintiff paid for improvements to the property thereafter.

3 The marriage came to an end and a property settlement was reached. Pursuant to consent orders, the property came to be transferred to the first defendant.

4 The plaintiff further contends that, subsequent to that transfer, the first defendant assured her that the house was “yours as long as you need it”. There is evidence that thereafter, during 2002, the plaintiff paid for further improvements to the property.

5 In March 2005, the first defendant commenced steps to obtain possession of the property. An application was brought in the Consumer, Trader and Tenancy Tribunal (the Tribunal), on the ground of breach of the agreement due to non payment of rent. A contested hearing took place before a Tribunal Member (Mr Turley). The parties were legally represented. The Plaintiff resisted the allegation of breach. Another issue was also ventilated (it appears to have been dealt with on the basis that the plaintiff had a life interest in the property).

6 The Tribunal Member found that there was no arrears of rent and dismissed the application. In the course of his reasoning, he purported also to deal with the other issue.

7 In dealing with it, he first considered a document that had been relied on by the first defendant (“this one–page lease”). He came to the view that he should reject it. He then made the following observations:

“ The other thing that I then made a note of as we went along is that the mother had a life tenancy. It was created by her daughter. At that stage the daughter was the sole registered proprietor of the property. The daughter and son-in-law decided to separate and divorced and there was a settlement in the Family Court. Certain things happened in regard to other properties and Mr Mason was to solely get this property. Now it makes no mention whatsoever of a life tenancy. It makes no mention of anyone else having an interest in the thing, and this is where you may end up in appeal.
In my opinion the daughter’s actions and the former son-in-law’s actions at that time, even though they probably were not aware of the implications of what they were doing, in effect that said to me that the daughter’s interest in the property ended at that point and that Mr Mason became the owner of the property and the landlord, and had given no life estate to you, unfortunately.
They are my major two findings that emerge out of this matter. One is that I don’t trust this document at all; and, two, any life estate – and I have no doubt you had a life estate – ended at the time of the agreement in the Family Court. “

8 During the course of that hearing, the plaintiff did not expressly raise any question of jurisdiction. Subsequent to the decision, no challenge was brought to what was said by the Tribunal Member concerning the other issue. No proceedings have been commenced by the plaintiff to establish such a claim.

9 Shortly after the refusal of his application for a re-hearing, in July 2005, the first defendant commenced further steps to terminate the residential tenancy. The termination was sought “without any ground”. There is no dispute that the notice required by the Residential Tenancies Act 1997 (NSW) (the RTA Act) was duly given.

10 The first defendant’s application brought about a further contested hearing, before Tribunal Member Smith). Again, both parties were legally represented and the plaintiff sought to ventilate the other issue. It appears that largely the material that had been before Tribunal Member Turley was also placed before Tribunal Member Smith.

11 At a preliminary stage, Tribunal Member Smith dealt with what he described as the issue of life tenancy. His conclusion on this issue was expressed as follows:-

“ I am satisfied that the decision of the Tribunal in application RT05/16072 on the issue of life tenancy was final and the respondent is therefore estopped from further raising the issue. “

The Tribunal Member satisfied himself as to jurisdiction. He then proceeded to consider the evidence and made certain other findings on other issues.

12 In the latter part of the Reasons for Decision, the Tribunal member made the following observations:-

“ The tenant is 62 years of age, operating her own business (which is not thriving) in the area. The tenant has been in continuous occupation of the premises for some nine years and her adult son lives in close proximity. The tenant has expended funds on improvements to the premises (in 1999) in the expectation of residing there for some considerable period.
The landlord on the other hand has some financial difficulties and intends to sell the property to resolve those difficulties. It is not clear from the evidence how urgent such a sale is, as the landlord has resolved, at least for the time being, any difficulties with the mortgagee.
A residential tenancy agreement, whether oral or in writing, does not entitle a tenant to occupy the residential premises indefinitely. Prima facie the landlord is entitled to re-take possession of the premises after the end of any fixed term without necessarily giving any reason to the tenant, provided of course that he meets any statutory obligations in respect of notice. The Tribunal is, pursuant to Swain’s case, obliged to take into account all of the circumstances of the case and can refuse to make an order for possession.
In the circumstances of this case I am not persuaded that the tenant is entitled to resist the landlord’s application for termination of the residential tenancy agreement. The residential tenancy agreement I am considering of course is the fortnightly one as evidenced by the tenant’s regular fortnightly payments of rent. There is no evidence before the Tribunal of any incapacity of the tenant to pay market rent for similar premises in the area. Nor for that matter is there any evidence that the tenant needs to live in that particular area indefinitely. I am satisfied the landlord has met all statutory requirements and is entitled to the order sought.

13 The Tribunal Member came to make an order that the Residential Tenancy Agreement had been terminated and that possession was to be given to the first defendant.

14 The plaintiff has brought proceedings in this court. She proceeds on an amended Summons filed on 23 May 2006 (inter alia, it seeks the setting aside of the relief granted by the Tribunal Member).

15 Section 65 & 67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the CTTT Act) provide the areas of challenge to what was done by the tribunal member. For present purposes, the court is concerned with questions of lack of jurisdiction and the deciding of a question with respect to a matter of law.

16 It suffices to express briefly and in general terms the nature of the case presented by both parties.

17 The plaintiff contends that she has an equitable interest in the property (see, inter alia, Plimmer v. Mayor of Wellington (1884) 9 App Cas 699; Vinden v. Vinden [1982] 1 NSWLR 618; Olgilvie v. Ryan [1976] 2 NSWLR 504. It is said that the Tribunal did not have jurisdiction to entertain that matter. It is further said tha, to the extent that it did purport to deal with the matter, it did so erroneously.

18 The first defendant resists these contentions. Generally speaking, he takes the view that the question of the life estate was dealt with by Tribunal Member Mr Turley and that the plaintiff is now out of time to appeal against what was found by him.

19 The merits of the plaintiff’s claim to an equitable interest in the property was not a question that was fully argued before me. On the material before the Tribunal, it would seem that the plaintiff may have an arguable case. That this is so may not be in serious issue.

20 A determination of that issue is one that could be expected to involve questions of both law and fact. It is an issue that is the subject of competing evidence and it would seem that credibility findings would be required to resolve it.

21 The Tribunal lacks jurisdiction to entertain and determine such an issue. An appropriate forum is the Equity Division of this court. Moving on from the jurisdictional problem, other observations may be made concerning what the Tribunal did with what was before it.

22 To the extent that the issue was addressed in the Tribunal, it may be said that it was dealt with on a superficial basis. There were relevant questions of fact and law that were not addressed. It may have been determined on a point that was not argued by the parties.

23 The plaintiff contends that what was done by Tribunal Member Turley concerning it was also erroneous. In addition, there may be room for debate as to whether what was in issue before him was identical to what is now propounded by the plaintiff as her equitable claim.

24 In any event, It was an issue that did not have to be decided by him. He could have disposed of the application by finding that the first defendant had failed to prove its case of non-payment of rent.

25 Like Tribunal Member Turley, Tribunal Member Smith had no jurisdiction to entertain and determine such an equitable claim. Be that as it may, it seems to me that his decision on the issue of estoppel was otherwise erroneous. For completeness, I should add that it was not argued that such a question fell outside the scope of a question with respect to a matter of law.

26 Before concluding this judgment, it is convenient to briefly refer to two other matters raised by the plaintiff. One of the matters concerns the provisions of s.59 (3) of the RTA Act. This is not a matter that has been fully argued and may not have been ventilated before the tribunal. In any event, the application of the provisions depends on the plaintiff establishing an entitlement to “a fixed term”.

27 The other matter concerns the provisions of s.64 of the RTA Act. Subsection 2 thereof requires the Tribunal to make an order terminating the agreement if it is satisfied of the matters enumerated therein. The plaintiff contends that Tribunal Member Smith failed to address (c) thereof (that, having considered the circumstances of the case, it is appropriate to do so).

28 The importance of addressing the matters has been the subject of consideration in a number of cases (see, inter alia, Shoena Middlebrook v NSW Land & Housing Corporation & Anor [2005] NSWSC 673. A reading of the reasons of Tribunal Member Smith does not demonstrate express compliance with the requirements of the section. Indeed, a reading of the reasons might also suggest a misapplication of the onus. These questions could be the subject of considerable debate. However, the view may be ultimately formed that by implication, the requirements of the section have been met and that there was no misapplication of the onus. By reason of what has been said earlier, these questions need not be further explored.

29 It is unfortunate that the parties may now be facing yet further litigation. The costs to date are no doubt substantial. It may be that proceedings in this court are necessary to resolve the matter. If that be the case, the parties may be well advised to further pursue compromise.

30 Leaving that matter aside, I am satisfied that the plaintiff has discharged the onus of satisfying the court that the orders made by Tribunal Member Smith should be set aside. I reserve the question of costs. The plaintiff is to bring in short minutes of order.

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