Wallalong Land Developments Pty Ltd v Charles Joseph Warren

Case •

[2024] NSWLC 6

•

19 February 2024

No judgment structure available for this case.

Local Court


New South Wales

Medium Neutral Citation: Wallalong Land Developments Pty Ltd v Charles Joseph Warren [2024] NSWLC 6
Hearing dates: 19 February 2024
Date of orders: 19 February 2024
Decision date: 19 February 2024
Jurisdiction:Civil
Before: LCM Olischlager
Decision:

1. The Local Court has jurisdiction to hear and determine the application pursuant to s 18(1) of the Landlord and Tenant (Amendment) Act 1948 (NSW).

2.   The proceedings are adjourned for hearing 22 February 2024.

Catchwords:

Civil, Jurisdiction, Magistrates, Fair Rents Board, Residential Tenancies, Protected Tenancy, Special Jurisdiction of the Local Court

Legislation Cited:

Landlord and Tenant (Amendment) Act 1948 (NSW)

Fair Trading Legislation Amendment (Miscellaneous) Act 2018 (NSW)

Residential Tenancies Act 2010 (NSW)

Landlord and Tenant (Protected Tenancies) Amendment Act 1985 (NSW)

Landlord and Tenant (Amendment) Act 1987 (NSW)

Local Court Act 1982 (NSW)

Local Court Act 2007 (NSW)

Residential Tenancies (Amendment) Act 1989 (NSW)

Strata Schemes Management Act 1996 (NSW)

Justices Act 1902 (NSW)

Cases Cited:

Murray v Gibson (Tenancy) [2013] NSWCTTT 470

Category:Principal judgment
Parties: Wallalong Land Developments Pty Ltd (Applicant)
Charles Joseph Warren (Respondent)
Representation:

Counsel:

Mr Kilmurray (Applicant)

Mr James (Respondent)
File Number(s): 2023/00260686
Publication restriction: Nil

Judgment

  1. The plaintiff has filed a summons seeking orders pursuant to section 18(1) of the Landlord and Tenancy (Amendment) Act 1948 (NSW) and Schedule 2, Part 7 of the Residential Tenancies Act 2010 (NSW) that the fair rent of premises situated at and known as Lot 105 Flowers Drive, Catherine Hill Bay, NSW 2281 be determined by this Court.

  2. The defendant disputes that a Magistrate, or the Local Court, retains the necessary jurisdiction to hear and determine the relief claimed. The parties agree to the Court determining the discrete issue of jurisdiction prior to any hearing of the claim.

  3. By way of background, the Landlord and Tenancy (Amendment) Act 1948 was introduced to provide an independent mechanism for rental control. During the first half of the twentieth century, the lack of housing throughout Australia and the concerns regarding the harsh consequences of evictions led to the introduction of legislative protections for tenants. During World War II, the Commonwealth assumed responsibility for housing and passed legislation imposing national rental controls in 1939. After the end of the War, the power was returned to the States. New South Wales passed the Landlord and Tenants (Amendment) Act 1948 which provided a mechanism for fixing rental increases through the Rental Control Office and Fair Rents Board.

  4. Section 18(1) of the Landlord and Tenants (Amendment) Act 1948 provides:

18   Application to have fair rent fixed

(1)  The lessor, or a lessee who has paid, or has offered (either to the lessor personally or to the person to whom the rent is ordinarily paid) the money payable for, all rent due and payable under the lease up to a date not earlier than twenty-eight days before the date of the receipt of the application in the office of the clerk of the Board, of any prescribed premises other than shared accommodation (not being prescribed premises in relation to which a Fair Rents Board is not authorised to exercise the powers conferred by this Part), or the person having power to lease any such premises which are not leased in exercise of that power, may apply in writing to a Fair Rents Board to have the fair rent of the prescribed premises determined by the Board.

(2)  Such application shall be made to the Board nearest to the prescribed premises or to any other Board if that other Board is satisfied that hardship will not be occasioned thereby to any party to the determination.

  1. Section 12 of the Landlord and Tenants (Amendment) Act 1948 provides:

12   Powers of Secretary and Fair Rents Boards

(1)  The Secretary and each Fair Rents Board shall have and may exercise such powers and functions as are conferred upon him or her or it respectively by this Act, and may exercise those powers and functions:

(a)  in relation to all prescribed premises (including goods leased therewith), or

(b)  where the Governor by order published in the Gazette, declares that it is desirable that the powers and functions of the Secretary and of Boards shall be exercisable with respect to certain prescribed premises only, or with respect to a limited class of prescribed premises only—in relation to those prescribed premises (including goods leased therewith) only or to that limited class of prescribed premises (including goods leased therewith) only.

(2)  The powers and functions of a Fair Rents Board may be exercised by any Magistrate.

  1. The increased availability of housing in the latter half of the last century including the creation of social housing has reduced the need for strict rental controls. A number of amendments were introduced to the Landlord and Tenant (Amendment) Act 1948 with the object of reducing the number of tenancies that were subject to the provisions of the Act.

  2. In 1985, the Landlord and Tenant (Protected Tenancies) Amendment Act 1985 (NSW) amended the Act by inserting section 5AA, which provided that on and from 1 January 1986 no new protected tenancies were to be created. Where protected premises become vacant, the Act ceased to apply thereafter.

  3. As a result of these amendments there are very few protected tenancies within the meaning of the Act remaining within New South Wales. The Court is not aware of any claims under the Act being determined in recent times. The regulation of residential tenancies now almost exclusively falls under the provisions of the Residential Tenancies Act 2010 (NSW).

  4. The Fair Trading Legislation Amendment (Miscellaneous) Act 2018 (NSW) repealed the Landlord and Tenant (Amendment) Act 1948 effective from 1 July 2019.

  5. Schedule 2, Part 7, clause 24 of the Residential Tenancies Act 2010 contains the following savings provision:

(1) Despite its repeal, the 1948 Act continues to apply to prescribed premises, subject to the modifications specified in subclause (2), as if that Act had not been repealed –

(a) until the death of the lessee of those premises, or

(b) if a spouse or de facto partner resided with the lessee immediately before the lessee’s death, until the death of that spouse or de facto partner.

(2) Sections 83 and 83A of the 1948 Act, as continued by this clause, are modified as follows –

(a) be omitting section 83(1)(c)(ii) and (iii) and (2),

(b) by omitting “the spouse or such child, or the father or mother, as the case may be” from section 83(1) and inserting instead “that spouse”.”

  1. There is no dispute between the parties that the tenancy held by Charles Warren is a “protected tenancy” subject to the provisions of the Landlord and Tenant (Amendment) Act 1948. Mr Warren contends that he is a protected tenant under the Act and the applicant does not dispute that assertion. The property at Lot 105 Flowers Drive, Catherine Hill Bay has a cottage located upon it and Mr Warren has been in occupation of the premises since 1967. There is no written lease agreement between the parties in evidence, however, Mr Warren pays an amount of $8.50 per week or $50 per month for his occupation of the property.

  2. The applicant purchased the land on 13 February 2017 and concedes that Mr Warren assumed his late grandmother’s interest in the lease upon her death in 1967 and has remained in occupation since that time. Although the exact age of the cottage is unknown both parties accept that it was constructed prior to 16 December 1954.

  3. Sections 5A and 5AA of the Landlord and Tenancy (Amendment) Act 1948 contains a number of exclusions from the operation of the Act. I am satisfied that none of these exclusions apply and that the property is a “protected tenancy” under the Act.

  4. The question is whether a Magistrate or the Local Court has jurisdiction to make orders under section 18(1) of the Landlord and Tenancy (Amendment) Act 1948 to determine the fair rent of the premises situated at and known as Lot 105 Flowers Drive Catherine Hill Bay.

Submissions of the Parties on Jurisdiction

  1. Each party has filed and served written submissions on the issue of jurisdiction prior to the listing of this matter for determination.

  2. The applicant submits that the Landlord and Tenant (Amendment) Act 1948 provides a scheme whereby the fair rent for a protected tenancy may be determined. The power to make such determinations is conferred upon the Fair Rents Board and section 12(2) of the Landlord and Tenant (Amendment) Act 1948 provided that such power may be exercised by “…any Stipendiary Magistrate”.

  3. Upon the commencement of the Local Court Act 1982 (NSW) Schedule 1 clause 7(1)(c) the functions of a Stipendiary Magistrate were assigned to the Local Court. Section 12(2) to the Act was amended at that time to provide that the power may be exercised by “any magistrate”.

  4. The defendant submits that the summons filed by the applicant seeks an order from the Local Court. The defendant submits that there is no power conferred upon the Local Court either under the Local Court Act 2007 (NSW) or the Landlord and Tenancy (Amendment) Act 1948 (NSW). The Local Court is a court of statutory jurisdiction and has no statutory power to make a determination of fair rent.

  5. The defendant submits that the reference within section 12(2) that the functions and powers of a Fair Rents Board being exercised by a Magistrate is an administrative delegation as persona designata. A Magistrate does not constitute a Fair Rents Board and section 12 of the 1948 Act does not purport to assign the functions or powers of a Fair Rents Board to a Magistrate.

  6. The defendant submits that there are no Fair Rents Boards presently established within New South Wales. Section 9 of the Landlord and Tenancy (Amendment) Act 1948 permits the responsible Minister to establish a Fair Rents Board, however, the Minister has not done so. In the absence of any Fair Rents Board, there are no powers or functions which are capable of being exercised by any Magistrate.

  7. The defendant submits that, consequently, it is not open to any Magistrate to purport to exercise the power or functions of such a Board.

Consideration of Jurisdiction

  1. The Fair Rents Board was established pursuant to section 9 of the Landlord and Tenant (Amendment) Act 1948 provides:

9   Constitution and abolition of Fair Rents Board

(1) The Minister may, for the purposes of this Act, constitute Fair Rents Boards at such places as he or she thinks fit.

All Fair Rents Boards constituted or purporting to have been constituted in this State before the commencement of this Act under Regulation nine of the Commonwealth Regulations and in existence or purporting to be in existence immediately before such commencement shall be deemed to have been constituted under this subsection.

(2) The Minister may abolish any Fair Rents Board.

(3)  Where a Fair Rents Board is abolished, the Minister may, by order, make provision for the transfer of pending applications and appeals before the Board to some other Fair Rents Board and pending applications and appeals so transferred may be heard and determined by the Board to which they are transferred.

  1. Fair Rents Boards were administratively supported by a Rent Controller appointed under the Public Service Act 1902 (NSW) pursuant to section 11 of the Landlord and Tenant (Amendment) Act 1948.

  2. Upon the commencement of the Strata Titles Act 1974 (NSW), Fair Rents Boards were provided dual responsibility with the Strata Titles Boards. Section 5(6) of the Strata Titles Act 1973 (NSW) provided:

Every Fair Rents Board for the time being constituted under the Landlord and Tenant (Amendment) Act 1948, shall also be a Strata Titles Board.

  1. Although there appears to have been an administrative merger of the Fair Rents Board and Strata Titles Board, they retained dual but separate legislative identities. Fair Rents Boards remained legislatively recognised in the Landlord and Tenant (Amendment) Act 1948. Reference to Fair Rents Boards in section 5(6) of the Strata Titles Act 1973 was later omitted by schedule 2(1)(c) of the Strata Titles (Amendment) Act 1987 (NSW) which commenced on 30 September 1987 and a new section 98A referred solely to Strata Titles Board:

98A(1) Within a prescribed area, there shall be a Strata Titles Board which shall be constituted by a Magistrate sitting at a place approved by the Minister within the area.

  1. In 1987, the NSW Government introduced legislation that had the object of transferring the functions of the Fair Rents Board to the Residential Tenancies Tribunal. Schedule 2(3) of the Landlord and Tenant (Amendment) Act 1987 (NSW) provided:

Transfer of functions

13A. (1) Except as may be otherwise prescribed, a function that, immediately before the commencement of this section –

(a) was exercisable by a Fair Rents Board – is exercisable by the Tribunal instead of the Board;

(b) was exercisable by the Controller – is exercisable by the Tribunal instead of the Controller, or

(c) was exercisable by the clerk of a Fair Rents Board – is exercisable by the Registrar instead of the Clerk.

  1. This provision was assented to on 12 May 1987. However, the provision was repealed prior to commencement by the Residential Tenancies (Amendment) Act 1989 (NSW) on 2 June 1989. The second reading speech for the Residential Tenancies (Amendment) Bill 1988 (NSW) clarifies that this provision was repealed to avoid “…confusion by applicants as to the role of the tribunal and no perception created that it is a rent control mechanism”.

  2. The Strata Schemes Management Act 1996 (NSW) Schedule 4(9) subsequently abolished Strata Titles Boards and established Strata Schemes Boards. Strata Scheme Boards were comprised of members of the Residential Tribunal.

  3. In 2001, Strata Schemes Boards were renamed as the Residential Tribunal. On 25 February 2002, the Residential Tribunal and the Fair Trading Tribunal merged to form the Consumer, Trader and Tenancy Tribunal (CTTT). On 1 January 2014, twenty other smaller tribunals were integrated with the CTTT to form the New South Wales Civil and Administrative Tribunal (NCAT).

  4. The New South Wales Civil and Administrative Tribunal was conferred with jurisdiction to deal with tenancy and strata disputes. The exclusion of jurisdiction to deal with matters under the Landlord and Tenant (Amendment) Act 1948 (NSW) expressly remained in section 7 of the Residential Tenancies Act 2010 which provides:

7   Premises to which Act does not apply

This Act does not apply in respect of the following premises—

(a)  premises to which the Landlord and Tenant (Amendment) Act 1948 applies,

(b)  premises used to provide residential care or respite care within the meaning of the Aged Care Act 1997 of the Commonwealth,

(c)  serviced apartments, that is, buildings or parts of buildings used to provide self-contained tourist and visitor accommodation that are regularly cleaned by or on behalf of the owner or manager,

(d)  premises used as a hotel or motel,

(e)  premises used as a backpackers’ hostel,

(f)  a hospital or nursing home,

(g)  any part of a club used for the provision of temporary accommodation,

(h)  premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture.

  1. In Murray v Gibson (Tenancy) [2013] NSWCTTT 470 Member D Sheehan dealt with an application by the landlord for termination of a tenancy. The tenant resisted the application on the grounds that she occupied the premises subject to the provisions of the Landlord and Tenant (Amendment) Act 1948. The Member accepted that the premises were not excluded from the provisions of the Landlord and Tenant (Amendment) Act 1948 and concluded at [72] that the Tribunal did not have the relevant jurisdiction to deal with the application by reason of the exclusion of jurisdiction under section 7 of the Residential Tenancies Act 2010 (as outlined at [30]).

  2. The legislative history demonstrates that Fair Rents Boards continue to be recognised as a distinct and separate administrative body. While many tribunals were consolidated into the Civil and Administrative Tribunal, the Fair Rent Boards have been, and remain, outside the process of merger. There has never been a decision by the Minister to abolish any established Fair Rent Board.

  3. Curiously, while Fair Rent Boards continue to exist as an entity, there is no longer any members that comprise those Boards. The decision by the NSW Government to repeal the legislation that intended to transfer Fair Rent Boards to the Residential Tenancy Tribunal in 1987 while still transferring members that comprised those Boards into the Residential Tenancy Tribunal effectively removed the infrastructure that constituted Fair Rents Boards. References to ‘Rent Controller’ were repealed by Statute Law (Miscellaneous Provisions) Act 2002 (NSW) on 4 July 2002 and changed to references to the ‘Commissioner for Fair Trading’.

  4. As from 30 September 1987 Fair Rents Boards continue to exist in name only and not as a functioning tribunal. Fair Rents Boards remain as a historical vestige of rental control in New South Wales. There is no appointed member to constitute the Fair Rents Board. The absence of any designated membership reflects the practical reality that there were, by that time, very few tenancies remaining within New South Wales which might come within the jurisdiction of the Landlord and Tenancy (Amendment) Act 1948.

  5. The fact that Fair Rents Boards remain as a legally recognised entity means that the argument by the defendant that a Magistrate or the Local Court cannot exercise jurisdiction because there is no Fair Rent Board established must be rejected. The absence of any person currently appointed to constitute a Fair Rents Board does not detract from the existence of the Board itself as a separate legal entity with functions and powers capable of being exercised by any person authorised to do so by law (if they were appointed to do so).

  6. It must be said that the argument submitted and relied upon by the defendant is unattractive from a legal perspective. The submission that there is no existing Fair Rents Board for a Magistrate to exercise those functions would render the savings provision contained in Schedule 2, Part 7 of the Residential Tenancies Act 2010 to be of no utility. It could not have been the intention of NSW Parliament to retain rights yet provide no avenue for their exercise and function.

  7. A second jurisdictional issue arises as to whether a Magistrate can exercise the powers of a Fair Rents Board under section 18(1) of the Land and Tenant (Amendment) Act 1948 in a personal capacity or whether the powers are exercised as a Local Court.

  8. Wallalong Land Developments Pty Ltd have filed a Summons prescribed under the Uniform Civil Procedure Rules 2005 (NSW) seeking relief from the Local Court. Section 12(2) of the Landlord and Tenant (Amendment) Act 1948 refers to a Magistrate, as opposed to a Local Court, as having the authority to exercise the powers of a Fair Rents Board.

  9. Historically, jurisdiction was conferred upon Magistrates individually rather than as a Court. Magistrates were conferred a wide range of administrative and judicial responsibility under various legislation. By way of example, Magistrates were required to conduct inquiries under the Mental Health Act 1990 (NSW) to determine whether a person was to be held as an involuntary patient. Further, they were required to act as Mining Wardens under the Mining Act 1992 (NSW) dealing with disputes concerning mining claims.

  10. The Justices Act 1902 (NSW) section 10 consolidated a number of powers of magistrates:

10   Jurisdiction of Magistrates

(1)  Every Magistrate may do alone any act and exercise alone any power or jurisdiction which:

(a)  under any law in force at the commencement of the Justices (Amendment) Act 1947 may be done or exercised by any Police Magistrate, Justice or Justices, howsoever sitting and adjudicating or acting, or

(b)  under any law not containing an express enactment to the contrary made after such commencement may be done or exercised by any Justice or Justices howsoever sitting and adjudicating or acting.

And all the provisions of this or any other Act auxiliary to the jurisdiction of such Justice or Justices shall be applicable also to the jurisdiction of a Magistrate.

(2)  Such authority and jurisdiction shall extend and apply to cases where the act or jurisdiction is, or hereafter may be, required to be done or exercised by a Justice or Justices sitting or acting as a Local Court held:

(a)  at a particular place, or

(b)  within a particular district,

being a place or district, as the case may be, appointed under section 6 (1) of the Local Courts Act 1982 as well as to cases where the act or jurisdiction is not so required to be done or exercised.

Any enactment authorising or requiring persons to be summoned or to appear by or before a Justice or Justices sitting or acting as a Local Court held as referred to in subsection (2) shall in the like cases be deemed to authorise or require persons to be summoned or to appear before a Magistrate sitting or acting as that Local Court.

  1. It was only on the repeal of the Justices Act 1902 on 7 July 2003 that criminal and general jurisdiction was conferred upon the Local Court. On 7 July 2003 consequential amendments were made to the Local Courts Act 1982 (NSW).

  2. Part 6 section 35 of the Local Courts Act 1982 provided:

35   Matters that may be dealt with by Local Courts

(1)  If a Local Court is given power under any Act or other law to determine any matter or to make an order or impose a penalty, the matter is to be dealt with by a Local Court in accordance with this Part.

(2)  This section applies to a power conferred before or after the commencement of this section.

(3)  This section extends to the following matters:

(a)  matters for which a complaint could, immediately before the commencement of this section, be made to a Justice under the Justices Act 1902 in a case where a Justice or Justices or Magistrate had authority to make an order for the payment of money or any other order,

(b)  matters for which a complaint or an application could, immediately before the commencement of this section, be made to a Justice or Justices or Magistrate under an Act other than the Justices Act 1902.

  1. The Local Courts Act 1982 was replaced by the Local Court Act 2007 (NSW). Schedule 4 Part 2 Clause 9 provides the following savings provision:

9   Jurisdiction

(cf LCA 1982, section 7)

The Court has—

(a)  a civil jurisdiction consisting of the jurisdiction conferred on it by Part 3, and

(b)  a special jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to proceedings to which Part 4 applies, and

(c)  a criminal jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to criminal proceedings.

  1. These provisions have the effect of transferring jurisdiction formerly vested in Magistrates to the Local Court. I am therefore satisfied that the Local Court has jurisdiction to deal with the claim for relief under section 18(1) of the Landlord and Tenant (Amendment) Act 1948.

  2. I note that the plaintiff should have commenced proceedings in the Special Jurisdiction of the Local Court by way of Application Notice pursuant to section 45 of the Local Court Act 2007 rather than by way of Summons under the Uniform Civil Procedure Rules 2005. However, this irregularity is a matter of form, not substance. Local Court Rule 4.3 (contained within the Uniform Civil Procedure Rules 2005) permits the Court to make case management orders to promote the just, efficient, effective, and timely management of proceedings before the Court. I direct that the summons be taken to be an Application Notice for the purpose of these proceedings.

  3. Accordingly, the Court makes the following orders:

  1. The Local Court has jurisdiction to hear and determine the application pursuant to section 18(1) of the Landlord and Tenant (Amendment) Act 1948.

  2. The proceedings are adjourned for hearing 22 February 2024.

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Decision last updated: 29 October 2024

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