Shehata v Argyle Community Housing Ltd
[2014] ACTSC 400
•10 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Shehata v Argyle Community Housing Ltd |
Citation: | [2014] ACTSC 400 |
Hearing Date(s): | 9, 10 December 2014 |
DecisionDate: | 10 December 2014 |
Before: | Walmsley AJ |
Decision: | Appeal allowed. See [32]. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – Procedure – Australian Capital Territory – leave to appeal from ACT Civil and Administrative Tribunal LANDLORD AND TENANT – Termination of occupancy agreement – by notice to vacate– validity |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86 |
Cases Cited: | Myers v Medical Practitioner's Board of Victoria (2007) 18 VR 48 Wiser v Havelock Housing Association Inc [2014] ASTSC 138 |
Parties: | Michael Shehata (Appellant) Argyle Community Housing Ltd (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr J Moffett (Respondent) |
| Solicitors Self-represented (Appellant) Meyer Vandenberg Lawyers (Respondent) | |
File Number(s): | SCA 99 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Civil and Administrative Tribunal Before: President of ACAT Date of Decision: 27 October 2014, 25 November 2014 Case Title: Shehata v Argyle Community Housing Ltd |
WALMSLEY AJ:
Background to the appeal
Mr Shehata has made an application for leave to appeal and if leave is given, to appeal from orders in the ACT Civil and Administrative Tribunal (ACAT). His application is under section 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). Section 86 states:
86 Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from—
(a) a decision of the appeal tribunal; or
(b) if the appeal president dismissed the appeal under section 80—the original decision of the tribunal; or
(c) if the appeal president decides not to deal with the appeal under section 85—the original decision of the tribunal.
(2) A party to an application in relation to a review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005 may appeal to the Supreme Court on a question of law from the original decision of the tribunal.
(3) However, the appeal may be brought only with the Supreme Court’s leave.
In the course of hearing the application, I gave leave. The parties then agreed that I should treat the hearing as one of the appeal as well as of the leave application. I accordingly dispensed with compliance with such rules as would have prevented that course.
Although the originating documents in this court named a number of respondents, those other than Mr Hamilton and Argyle Community Housing Ltd (Argyle) had been removed from the title to the proceedings in the ACAT and those names ought not to have appeared as parties in this court. As to the presence of Mr Hamilton's name on the documents, I could see no relevance in his being a party. His name was called yesterday but he did not appear. I ordered that his name be removed as a party and that the proceedings be treated as though the only parties were Mr Shehata and Argyle.
Mr Shehata represented himself on the hearing and Argyle was represented by Mr Moffett of counsel. I wish to indicate my gratitude to Mr Moffett and those who instructed him, for the high standard of preparation of their documents and, in the case of Mr Moffett, for his considerable assistance in the oral submissions that he gave, which helped me greatly in the resolution of the difficult issues of law and procedure which arose in the course of the hearing.
Factual background
The factual background to the matter is as follows. Argyle provides low cost accommodation to members of the Canberra community at Ainslie Village (the village), which is in the inner north of Canberra. On 12 June 2014, Mr Shehata and Argyle signed an agreement called an Occupancy Agreement (the agreement), by which Argyle let to Mr Shehata a room called Room 1, House B, at the village. The agreement, on the question of its duration, said the following:
The duration of the tenancy - whether for a fixed term or periodic
If for a fixed term…
The occupancy shall consist of an agreed fixed term:
From 12/6/2014 (commencing date) (inclusive) and
to 11/9/2014 (finishing date) (inclusive); and then
a periodic occupancy begins automatically after the fixed term has ended unless terminated by the Occupant or the Grantor in accordance with the Occupancy Agreement Terms.
If a periodic tenancy…
The agreement shall commence from 12/09/14 (date) and continue on a fortnightly basis until terminated by the Grantor or the Occupant in accordance with the Occupancy Agreement Terms.
It is necessary to consider the circumstances in which an occupier’s rights to occupy under the agreement could be terminated. Clause 10 has provisions which permit termination of occupancy by an occupant. Clause 11 concerns termination for an occupant’s failure to pay rent, and clause 12 for other breaches.
Under Clause 13.1, there may be termination with immediate effect if there is, for example, physical violence by an occupant towards another occupant or towards a visitor. Clause 13.2 concerns a right in Argyle to terminate if it wants to reconstruct the premises. Clause 13.3 is the termination provision directly relevant to this application and appeal and is as follows:
13.3 Termination of occupancy without cause
(a) Where this occupancy is for a fixed term, the Grantor may serve a notice to vacate during the fixed term requiring the Occupant to vacate the Premises at the end of the fixed term without cause, provided that:
(i) the notice is for not less than 28 days; and
(ii) the notice does not require the Occupant to vacate the Premises during the fixed term.
(b) Where this occupancy is or becomes a periodic occupancy, the Grantor may serve on the Occupant a Notice to Vacate without cause requiring the Occupant to vacate the Premises not less than 12 weeks from the date of service of the Notice and the parties agree that this notice is reasonable notice in those circumstances.
Thus there was a fixed term which ended on 11 September 2014. It is undisputed that the day before the fixed term ended, that is, on 10 September 2014, Argyle gave Mr Shehata a notice purporting to be given under Clause 13.3(a). By that notice, he was given 28 days notice to vacate, that is, by 4 pm on 9 October 2014.
Mr Shehata made an application to ACAT for a resolution of what he saw as a dispute about the efficacy of the notice. His application was before the ACAT at various times in September, October and November. The ACAT's jurisdiction to hear the dispute was not in issue. It ordered various stays to preserve the parties’ rights until resolution of the matters which were before it.
Ex parte orders were made on 24 October 2014 by Member Daniel. Mr Shehata did not attend on that day although he sent some medical evidence to the tribunal. He was treated as having made an application for an adjournment of the hearing of his application. That deemed application was refused. Orders made effectively refused his application for relief. He then applied for the orders of Member Daniel to be set aside and for a stay of execution on the orders. That application came before President Stefaniak on 27 October 2014. The learned president declined to set aside the ex parte orders, and made an order terminating the occupancy with effect from 4 pm that day.
President Stefaniak treated the matter before him ultimately as one of an appeal from the orders made by Member Daniel. He announced that he would issue a warrant for eviction, and he noted that Mr Shehata was in rental arrears of $887.60. On 21 November 2014, President Stefaniak ordered the ACAT registrar to issue a warrant for eviction forthwith.
Leave application
There is no appeal as of right to this court from an order of the ACAT. By virtue of section 86 of the ACAT Act, leave is needed. Mr Shehata filed in this court an application for leave to appeal and an affidavit in support together with what is called a Form 6.2 Application.
Although there was a requirement for him, when making his application, to file a draft notice of appeal, I dispensed with the need for him to do that, a course which in fact was suggested by Mr Moffett and one with which I respectfully agreed. In substance, Mr Shehata asked that the ACAT orders be quashed so that he be permitted to stay living in his room at the village.
The documents which were filed by Mr Shehata contain much that is irrelevant to the resolution of the matter, going mainly to his complaints about a fellow resident and about attitudes of some of the officers of Argyle, people with whose views and actions he takes issue.
One of his complaints, however, was that President Stefaniak had terminated what he called his tenancy contract. When I heard argument from Mr Shehata and Mr Moffett on the issue of leave, Mr Moffett took me to authority for relevant principles. He submitted that the basis for Argyle's right to possession of his room at the village was the notice of 10 September 2014. He submitted it was a valid notice and was properly authorised under clause 13.3(a) of the agreement. In the course of that argument, it became apparent to me that clause 13.3(a) did not authorise that notice, and that an error of law had accordingly been made by the ACAT in making orders based on the validity of the notice.
On this basis, I gave leave to Mr Shehata to appeal. I then invited further argument and ordered that the matter proceed as an appeal, and dispensed with compliance with such rules as would have prevented that from occurring. There was no objection to that course from either party, and again it was a matter which was recommended by Mr Moffett, this obviously being a course which would save costs and convenience for the parties.
When I gave leave, I had in mind the principles on a leave application under a provision similar to section 86 of the ACAT Act, which were set out in the judgment of Warren CJ in Myers v Medical Practitioner's Board of Victoria (2007) 18 VR 48 at [28]:
· whether leave is granted or not must always depend upon the justice of the particular case;
· if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
· the applicant need not establish an error below – that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
· although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
· once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
· where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, eg, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings. [citations omitted]
Her Honour there referred to the necessity for a leave applicant to identify a question of law relevant to the granting of relief on appeal.
Myers v Medical Practitioner's Board was referred to with approval by Burns J in Freeman Wiser v Havelock Housing Association Inc [2014] ASTSC 138, in particular, at [3] and [4].
The error I have identified above bears directly on the relief sought. It provides the basis for leave and it is sufficient also to dispose of the appeal.
Submissions
There was, in any event, no substantial additional argument made on the appeal, as it turned out. Mr Moffett did submit that if I found error (and he submitted I ought not), then it was merely one of fact and not one of law. Mr Moffett submitted to me that it had been open to Argyle to give the notice which it did, and the fact that it was given on the day before the expiry of the fixed term was not relevant to the outcome and did not affect its validity. However, I do not accept his submission. I consider a case has been made out to set aside the ACAT's orders.
Consideration
My reasoning, as to error of law which relates to clause 13.3(a) and the notice, is as follows.
The notice relied on by Argyle is dated 10 September 2014 and gives 28 days to Mr Shehata to vacate. However Clause 13.3(a) makes it clear that when Argyle wants to give a 28 day notice without cause, that notice must be given in the course of or during the fixed term and it must require the occupant to vacate the premises at the end of the fixed term.
There is no doubt that Argyle did comply with the requirement that the notice be given during the fixed term. However, the requirement, which in my view it did not comply with, was that it required the occupant to vacate the premises "at the end of the fixed term". The end of the fixed term was 11 September 2014, whereas the notice required him to vacate on 9 October 2014. Such a notice was not contemplated or permitted by the agreement. Because an occupant must be given 28 days' notice, for Argyle to avail itself of its right under Clause 13.3(a) it must ensure such a notice is given no later than 28 days before the fixed term expires. In this case, notice should have been given, at the latest, by 14 August.
As Argyle did not take the opportunity to give a 28-day notice when it could have, Clause 13.3(b) required that it give a 12-week notice if it wanted to avoid having to show cause.
There is, of course, a difficulty for Argyle with this construction. If, for example, between 14 August 2014 and 11 September, Argyle had realised its error in not giving a valid notice, it could not have given a notice without cause until the fixed term had come to an end. That is, Clause 13.3(b) only operates once the fixed term has come to an end. But that does not detract from what I consider to be the plain meaning of Clause 13.3(a).
Under the agreement, Argyle has a choice. If it wants to terminate at the end of the fixed term, it must ensure notice is given at least 28 days before the end of the fixed term, and so that it expires on the last day of the fixed term. If it fails to give notice in time, it can still give notice to terminate under a provision such as Clause 13.1, but it must then establish a factual basis for one of the grounds set out in Clause 13.1. Once the fixed term has expired, it can give a notice to vacate without cause but it must give a 12-week notice.
Thus I find that because the ACAT relied on the notice to vacate given on 10 September 2014 as the foundation for its orders, it made an error of law. This should not be seen as a reflection on the ACAT, however, because this issue was never the subject of any argument before the members of the tribunal who dealt with the matter.
By reason of the ACAT’s error in giving the relief it did, based on what I have found was an invalid notice to vacate, the necessary consequence is that the orders in the ACAT should be set aside.
Mr Moffett submitted that as Mr Shehata has been in possession for at least 12 weeks since the fixed term had come to an end, it should not necessarily follow that the appeal should succeed. But I do not accept that submission. An error of law was made. The notice was of no effect. He occupies under Clause 13.3(b) so he must be given 12 weeks' notice if Argyle wishes to obtain vacant possession without having to show cause. And the fact is, he has not had such a notice served on him.
Accordingly, I uphold the appeal. As Mr Shehata was self-represented and his filing fees were waived, I was told from the bar table yesterday, I do not consider that I should make any costs order.
Orders
I make the following orders:
· I give leave to appeal.
· I allow the appeal.
· I quash orders 2, 3 and 4 made by the President of ACAT on 27 October 2014.
· I quash the warrant issued by him on 25 November 2014.
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