Soare v Residential Tenancies Tribunal/Residential Tribunal

[1999] NSWSC 1003

CITATION:	SOARE & ANOR v RESIDENTIAL TENANCIES TRIBUNAL/RESIDENTIAL TRIBUNAL & ORS [1999] NSWSC 1003
CURRENT JURISDICTION:	Common Law Administrative Law List
FILE NUMBER(S):	30039 of 1999
HEARING DATE(S):	31 August 1999
JUDGMENT DATE:	1 October 1999
PARTIES :	Sorin Soare and Liliana Soare-Cernaianu (Plaintiffs) v Residential Tribunal (First Defendant) Christiano Bagnara and Giacinta Bagnara (Second Defendants)
JUDGMENT OF:	Master Malpass

LOWER COURT JURISDICTION:	Residential Tenancies Tribunal/Residential Tribunal
LOWER COURT FILE NUMBER(S) :	99/01365
LOWER COURT JUDICIAL OFFICER:	N Vrabac

COUNSEL :	Mr R Killalea (Plaintiffs) Submitting Appearance (First Defendant) Dr J G Renwick (Second Defendants)
SOLICITORS:	Kalmath Lawyers (Plaintiff) I V Knight - Crown Solicitor, Submitting appearance (First Defendant) Kemp Strang (Second Defendants)
CATCHWORDS:	Appeal where a question with respect to a matter of law has been decided; No question of law.
ACTS CITED:	Residential Tenancies Act 1987, s 65 (2) (b), s 57, s 107, s 110. Residential Tribunal Act 1998, s 63. Supreme Court Rules 1970, Pt 13, r 5.
CASES CITED:	RTA v Swain (1997) 41 NSWLR 452.
DECISION:	See paragraph 20

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

MASTER MALPASS

FRIDAY 1 OCTOBER 1999

30039/1999 SORIN SOARE & ANOR v RESIDENTIAL TENANCIES TRIBUNAL/RESIDENTIAL TRIBUNAL & ORS

JUDGMENT


1   In 1995, the plaintiffs became the tenants of premises known as 2/5 Bowman Street, Richmond (the premises). The landlords were the second defendants.

2   It appears that the plaintiffs made a claim for damages which related to a defective hot water service. It had been brought out of time and was dismissed on 6 January 1999 by the Residential Tenancies Tribunal (the tribunal). The second defendants served a Notice of Termination and also brought an application for termination and vacant possession of the premises in the tribunal.

3   On 2 February 1999, by Summons the plaintiffs commenced proceedings in this Court. The process sought the setting aside of the order dismissing their application. In relation to that matter, the plaintiffs were claiming that there had been a denial of natural justice, a failure to consider all orders sought and a failure to fully give an opportunity to fully present claims.

4 The second defendants’ application in the tribunal came before a member (Mr Vrabac). There was a hearing on 23 February 1999. The plaintiffs appeared in person. They were provided with a Romanian/French interpreter. Mr Devine of Havelock Real Estate appeared for the second defendants. Certain findings were made. Certain orders were made. This material may be found in a written document which records the orders made and the reasons for the “interim decision”. It was the second defendants’ case that there had been a breach of the agreement by reason of the non-payment of rent. The plaintiffs advanced an argument that by reason of the contents of a letter dated 4 June 1998 there had been a waiver in relation to the payment of rent. The member found that there had been no such waiver. He found that there had been a breach of the agreement by reason of the arrears in rental. An order was made to pay the arrears of $520 by 9 March 1999. Questions of hardship were argued. The member found that the hardship seemed to be greater on the second defendants than the plaintiffs. He further found that the second defendants were entitled to issue a Notice of Termination pursuant to s 57 of the Residential Tenancies Act 1987 (the Act). The further hearing of the second defendants’ application (including the issue of retaliation) was adjourned to another hearing day.

5   In the proceedings then in this Court, further Notices of Motion were filed (on 8 March and 10 March 1999). In these applications, relief was sought in relation to what happened on 23 February 1999. Again, there was a claim of denial of natural justice. The Summons was amended.

6 On 30 March 1999, the arrears of rental were paid by the plaintiffs. On 1 April 1999, an application for the summary dismissal of the proceedings then in this Court came before Dunford J. Judgment was delivered on that day. The judgment records that all submissions made on behalf of the plaintiff were recorded in the transcript. Dunford J said that he could see no error of law and was satisfied that the second defendants were entitled to summary dismissal and he made an order pursuant to Pt 13 r 5 of the Supreme Court Rules 1970.

7   The judgment delivered by Dunford J records inter alia that he dealt with matters which are sought to be re-agitated in these proceedings. I shall mention some of the matters recorded in the judgment. It records that he perused the reasons given on 23 February 1999. It appears that his Honour dealt with submissions concerning alleged errors of law and denial of natural justice. His Honour observed inter alia that the reasons disclosed no error of law or denial of natural justice. He observed that it had been suggested that the reasons did not correctly represent what had transpired at the hearing. He further observed that no justification had been shown for him to go behind those reasons. He did not accept the contentions that there were defects in the proceedings and that the tribunal did not take into account various parts of the evidence which were available. He saw certain of these complaints as amounting to no more than a submission that the tribunal came to the wrong decision. Specific reference was made to an argument as to waiver. In relation to this matter, his Honour observed “once again I can see no error of law”. A question relating to the use of the interpreter was also unsuccessfully raised.

8   The proceedings in the tribunal came back before the member on 28 April 1999 (there is evidence that it had also been before the tribunal on 31 March 1999). An order was made for termination and possession (possession to be given on 10 June 1999).

9   By document dated 3 May 1999, the tribunal gave notice of the orders made on 28 April 1999 and provided reasons for the decision. By document dated 29 June 1999, it provided amended reasons. It is convenient to digress and observe that these documents are largely similar in substance. It may be that they contain some factual error. In my view any such error is not of significance.

10 On 18 May 1999, the plaintiffs sought a re-hearing of the decision of the tribunal. This application was unsuccessful (it was refused on 24 May 1999). Whilst it has been said that this may have been dealt with as an application pursuant to s 110 of the Act it was in fact made to and determined by the Residential Tribunal as an application for re-hearing pursuant to s 63 of the Residential Tribunal Act 1998.

11   The present proceedings were commenced by Summons filed on 1 June 1999. Pursuant to an order of this Court, the plaintiff filed Points of Claim. The document sets out four categories of complaint. The relevant headings are “ Re Swain’s Case” (RTA v Swain (1997) 41 NSWLR 452), “ Bias Issues ”, “ Failure to Exercise Jurisdiction & ‘Wednesbury’ Unreasonableness ” and “ Decision not open on the Facts ”. These proceedings are in effect an appeal under s 107 of the Act. A number of affidavits have been filed in support of the appeal.

12   The second defendants have brought a Summary Dismissal Application. This application was heard on 31 August 1999. All parties were represented by counsel.

13   Section 107 of the Act deals with “Appeal against decision of Tribunal with respect to matter of law”. It enables only a restricted ambit of challenge to be brought to this Court. An appeal lies only where “the Tribunal decides a question with respect to a matter of law”. The reference to “a matter of law” is expressed to include “a matter relating to the Jurisdiction of the Tribunal”.

14   I shall first look at the complaints which are made under the heading of “ Re Swain’s Case ”. It is said that the tribunal failed to make any decision in relation to the issues of hardship. This submission is clearly erroneous. I have already referred to the finding made on 23 February 1999. Any complaint as to this finding should have been agitated before Dunford J. More of the reasoning process was disclosed in the documents dated 3 May 1999 and 29 June 1999. Questions of inter alia hardship were taken into account in considering whether or not to make an order terminating the agreement. It is said that the tribunal erred in law by not considering the provisions of s 65 (2) (b) of the Act. This contention is also erroneous. The matter of the remedying of the breach was taken into account. This appears from the documentation which disclosed the reasoning process. There is a further attempt to re-agitate the merger question. This is an abuse of process as the question was finally dealt with in the appeal before Dunford J.

15   I now turn to the “ Bias Issues ”. The Points of Claim allege actual bias only. Evidence in support of these issues is to be found in an affidavit sworn on 22 June 1999. Paragraphs 2 - 31 set forth in that affidavit relate to allegations as to what took place on 23 February 1999. The vehicle for the ventilation of these complaints was the appeal which came before Dunford J. Although the relevant transcript was not placed before this Court, it appears that matters of denial of natural justice were agitated before his Honour and rejected by him. I should also add that it appears that questions of bias were not raised before the tribunal. There are also complaints made as to alleged matters taking place on 31 March and 28 April 1999. I have carefully perused each of the various matters of complaint. I am satisfied that any case founded on denial of natural justice in respect of these matters (or any of them) is doomed to failure.

16   Although the case as pleaded was restricted to an allegation of actual bias, it was still sought to agitate a case based on apprehended bias. For completeness, I should observe that the alleged matters do not throw up any legal basis for disturbing the orders made by the tribunal.

17   The matters which appear under the headings “ Failure to Exercise Jurisdiction & ‘Wednesbury’ Unreasonableness ” and “ Decision not open on the Facts ” have at least in part been dealt with earlier in this judgment. As I have said, no appeal lies in respect of matters of fact. There is no remedy merely because the plaintiffs may be unhappy about the decisions made by the tribunal. This Court is not at liberty to intervene simply because it may have taken a different view on evidence. I am unable to identify error of law in relation to any of these matters.

18   The court has a discretionary power to summarily dismiss proceedings. The authorities make it clear that the remedy should be exercised only in what might be described as clear cases. The onus demonstrating an entitlement to such relief rests with the applicant. The power is exercised so as to ensure that justice between the parties is best served.

19   I am satisfied that this is one of those clear cases. I should add that there has now been an application for re-hearing and two appeals in respect of the second defendants’ application to the tribunal. Justice requires that litigation be brought to finality.

20   I order that the proceedings be dismissed. The plaintiffs are to pay the costs of the proceedings. The exhibit may be returned.

21   In conclusion, it may be helpful to make a general observation relevant to what are often referred to as minor administrative appeals. Generally speaking it may be an unproductive exercise to pursue summary relief in administrative appeals. There is the risk of two hearings rather than one. Mostly the hearing of the appeal itself will occupy little more time than the hearing of a summary relief application.


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Consent orders filed in the Court of Appeal.

The Court orders that by consent:

1. The appellant be granted leave to appeal;
2. The appeal be allowed save as to costs.
3. The orders of Dunford J in the Court below be set aside.
4. The orders of the Residential Tribunal in proceedings numbers 98/36546 and 98/31791 be set aside.
5. Each party pay its own costs in the Court of Appeal and in the proceedings below.

Ordered: 14 September 2000
Entered: 14 September 2000

Last Modified: 01/15/2002