Wise v Consumer Trader and Tenancy Tribunal

[2005] NSWSC 947

CITATION:	Wise v Consumer Trader & Tenancy Tribunal & Ors [2005] NSWSC 947
HEARING DATE(S):	20 September 2005
JUDGMENT DATE :	26 September 2005
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The proceedings are dismissed; the plaintiff is to pay the costs of the proceedings; the stay ordered by Greg James J on 11 February 2005 is set aside; the exhibits may be returned.

CATCHWORDS:	Appeal - plaintiff identifies issues relied on in opposing application before Tribunal - alleged jurisdictional question and discretionary error - matters not ventilated before Tribunal - alleged error in fact findings.
LEGISLATION CITED:	Consumer Trader & Tenancy Tribunal Act 2001, ss65, 67 Residential Tenancies Act 1987, s64(2)(c)
PARTIES:	Clive Wise (Plaintiff) Consumer Trader & Tenancy Tribunal (First Defenant) ML Noble Properties Pty Limited (Second Defendant) Negoro Pty Limied (Third Defendant)
FILE NUMBER(S):	SC 30013/05
COUNSEL:	Ms J Pentelow (Plaintiff) Mr M Lowry (Second Defendant) (In person) Mr E Sanderson (Third Defendant) (In person)
SOLICITORS:	Peter Baker (Plaintiff) I V Knight Crown Solicitor (First Defendant) N/A (Second & Third Defendants)

LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	RT 04/36419
LOWER COURT JUDICIAL OFFICER :	Member S F Smith

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

Associate Justice Malpass

26 September 2005

30013 of 2005 Clive Wise v Consumer Trader & Tenancy Tribunal & Ors

JUDGMENT

1 His Honour: The plaintiff presently resides in Unit 1 of a block of eight units known as 39 Cornelia Street, Wiley Park.

2 The second and third defendants (the defendants) are the owners of Unit 1. The second defendant is a company of which Mr Lowry is a principal. The third defendant is a company of which Mr Sanderson is a principal. Messrs Lowry and Sanderson present themselves as small-time property developers with current financial difficulties.

3 The plaintiff has occupied Unit 1 for about 37 years. He is presently about 92 years of age.

4 The defendants acquired the block of units in December 2000. Subsequently, the units became the subject of a strata plan. The defendants have sold seven of the units. Unit 1 is now the only unit still owned by them.

5 In February 2001, a termination notice was served on the plaintiff and an application was made to the Consumer Trader & Tenancy Tribunal (the Tribunal). At the time, the plaintiff had not entered into any written agreement (he had a periodic tenancy) and he had been also occupying two lock-up garages.

6 In June 2001, the parties entered into a new arrangement. The plaintiff executed a residential tenancy agreement (the agreement) which gave him a fixed-term lease. It was for a period of two years (commencing on 31 May 2001 and terminating on 31 May 2003) and he ceased to occupy the two lock-up garages (receiving a car space instead thereof).

7 Prior to the expiry of that lease, by letter dated 26 March 2003, the plaintiff wrote to Mr Lowry seeking a renewal of the lease. Mr Lowry responded by letter dated 26 March 2003. I shall refer to the letters collectively as “the correspondence”.

8 The defendants gave notice of termination dated 17 May 2004. It was what is described as a “no grounds” notice which is given pursuant to s58 of the Residential Tenancies Act 1987 (the Act). The section is expressed not to apply to a residential tenancy agreement that creates a tenancy for a fixed term.

9 The plaintiff did not vacate the unit. The defendants applied to the Tribunal for an order terminating the agreement and an order for possession (pursuant to s64 of the Act).

10 The application came before the Tribunal on a number of occasions. Leave was granted to the defendants to amend the application to include grounds relating to hardship of the landlords.

11 The application came to a final hearing. Mr Sun (of David Kay First National Real Estate) appeared for the defendants. Ms Steele (of the Combined Pensioners and Superannuants Association of New South Wales) appeared for the plaintiff.

12 A detailed written submission (the submission) was made on behalf of the plaintiff. It identified the issues relied upon by the plaintiff in opposing the application (s64(2)(c) of the Act and the hardship that would be endured by the plaintiff should his tenancy be terminated).

13 On 20 December 2004, the Tribunal made the following orders:-

1. The tenancy is terminated as from 21st December, 2004.
2. Vacant possession is to be given by the tenant to the landlord on 15th February, 2005.
3. The tenant is to pay the landlord a daily occupation fee as from 22nd December 2004, at the rate of $20.71 per day until vacant possession is given.

14 The Tribunal has provided written reasons for the decision (the reasons). The contents of the reasons appear under various headings (including the headings “Proceedings”, “Applicants’ evidence”, “Respondent’s Evidence” and “Findings”).

15 Under the heading “Proceedings”, the following appears:-

The landlord brought the application for termination by notice filed on 29th July, 2004. There were several interlocutory hearings and an order for inspection of the premises by the landlord was issued. At the final hearing there was little disagreement about factual matters. The validity of the notice terminating the tenancy was quite properly conceded by the respondent. It was agreed that the real issue in dispute went to the exercise of the Tribunal’s discretion under s64(2)(c).

16 Under the heading “Findings”, the following appears:-

At the conclusion of the evidence I put it to the parties, and it was accepted by their representatives, that as the validity of the termination technicalities having been conceded my real task was to evaluate and to balance the discretionary factors. The main relevant factors were agreed as being:

· long tenancy

· aged and infirm tenant

· some work done on property over the years by tenant

· financial hardship to the landlords

· the reasonable availability of similar accommodation in the locality

· previous proceedings over 3 years ago withdrawn on a compromise

· the compromise included a 2 year lease

· the lease so granted expired about 18 months ago

· a former officer of a landlord company had written a letter in 2003

Ms Steele put to me that Mr Lowry’s letter really amounted to a promise of life tenure. She saw this as a strong point in the respondent’s favour. Having considered the matter I could not accept her interpretation of the letter. The letter was cordial and polite though vague or non committal on tenure into the future.
The length of the tenancy and the personal position of the tenant were strong factors weighing against granting the relief sought. The finely balanced evidence made this a difficult case. The central factor, however, was that to refuse termination of the tenancy would condemn the landlord to subsidising a tenancy for the rest of the respondent’s active life. The demise of rent control signalled a shift in social policy: welfare housing was confirmed as a community responsibility rather than a burden for private landlords. Moreover, I was satisfied that Mr Wise would have little trouble in finding other, probably better, accommodation and that a variety of agencies – governmental and private – would be available to help him.
Having carefully considered all of the relevant factors I have decided that the tenancy should be terminated. I do think that the respondent tenant should have some time to re-arrange his affairs and so I make the date upon which vacant possession should be given 15th February, 2005. The tenant is to pay an occupation fee at the rate of $20.71/day until vacant possession is given.

17 The plaintiff has brought proceedings in this court seeking the setting-aside of the decision of the Tribunal. He now proceeds on an amended summons filed in court on 20 September 2005. The proceedings were heard on that day.

18 The plaintiff had legal representation (including counsel). The defendants had earlier retained legal representation, but their solicitors ceased to act shortly before the hearing. It was said that this was due to the financial circumstances of the defendants. Messrs Lowry and Sanderson represented the defendants during the hearing, with Mr Lowry largely presenting their case.

19 The Consumer Trader & Tenancy Tribunal Act 2001 provides two avenues of challenge to a decision of the Tribunal. One is provided by s65. It enables the granting of relief where there has been either lack of jurisdiction or denial of procedural fairness. The other is provided by s67. It provides an avenue of appeal in those cases where the Tribunal decides a question with respect to a matter of law (which includes a matter relating to the jurisdiction of the Tribunal). It is this provision that is relied on by the plaintiff.

20 Section 67 is intended to provide a narrow avenue of appeal. The avenue is not equivalent to an avenue of appeal available where there has been error in point of law. There is authority for the proposition that it should be confined to a pure question of law. There is also authority for the proposition that it has application where the Tribunal has applied a wrong principle of law.

21 The plaintiff propounded two areas of challenge. One was presented as a jurisdictional question. The other concerned the exercise of what has been described as the discretion had by the Tribunal. It was not suggested that there had been denial of procedural fairness.

22 What was sought to be presented now as a jurisdictional question relied on the correspondence. It was said that this correspondence gave rise to a fixed-term tenancy for a period of a further two years and that no valid termination notice had been given by the defendants (the contention was that what should have been done was the giving of a notice of termination of a fixed-term agreement).

23 As is clear from the submission and the reasons, this jurisdictional question was not ventilated before the Tribunal. It was not an issue selected by the plaintiff and relied on by him in his opposition to the application. It seems to me to be unarguable that the correspondence could amount to a residential tenancy agreement that created a tenancy for a fixed term of two years. In my view, the notice of termination given by the defendants did not throw up any jurisdictional problems. I consider that the plaintiff’s contention is not only devoid of merit, but one that in the circumstances should not in any event be entertained in this court.

24 The plaintiff did rely on the correspondence before the Tribunal. It was put as giving rise to a promise of life tenure and to be taken into account as a discretionary matter. Whilst it was correctly rejected as giving rise to a promise of life tenure, it was taken into account by the Tribunal.

25 Section 64 of the Act provides that the Tribunal shall make an order terminating the agreement if it is satisfied, inter alia, that having considered the circumstances of the case, it is appropriate to do so.

26 The area of dispute before the Tribunal was confined to the consideration required by s64(2) of the Act. This is a provision which requires the Tribunal to consider the circumstances of the particular case before it and to then decide whether or not it is appropriate to make an order terminating the agreement.

27 The second area of challenge related to the task to be performed by the Tribunal pursuant to this provision. Counsel for the plaintiff has relied on detailed written submissions. In both those submissions and orally, counsel has contended that there were, inter alia, a number of relevant matters that were not taken into account and that there was in effect error in the understanding or use of material that was placed before the Tribunal by the defendants.

28 Before proceeding further, I should return to the matter of the narrow avenue of appeal that is available from a decision of the Tribunal. It was a matter that was not addressed during the hearing of the appeal and posed problems for arguments put in respect of the second area of challenge. On one view, the second area is misconceived.

29 However, for present purposes, it is unnecessary to dwell on these considerations. The second area can be disposed of without further trespassing upon such matters.

30 It appears from the reasons that a consensus emerged between the parties as to what were the “main relevant factors”. It was to these that the Tribunal looked in considering the circumstances of the case and in deciding that it was appropriate to make an order terminating the agreement.

31 The plaintiff is now seeking to agitate matters which were not selected by it as issues to be relied on in opposing the application and as a result were not ventilated before the Tribunal. It is unnecessary to address the question of whether or not any of them have relevance. In my view, the court should not allow them to be ventilated now.

32 The Tribunal gave considerable weight to the length of the tenancy and the personal position of the plaintiff (they were regarded as “strong factors”). The Tribunal was satisfied that the plaintiff would have little trouble in finding “other, probably better accommodation” and that there were other agencies available to help him.

33 It had regard to the factual background to the application (which it regarded as not really being contradicted by the plaintiff). This encompassed the financial impact a failure to terminate would have on the defendants.

34 The plaintiff also alleges error on the part of the Tribunal in the manner in which it understood or used material that had been relied on by the defendants (including a letter from a firm of accountants and a letter from Westpac to Mr and Mrs Sanderson and another of their companies (Keenwill Pty Limited)). Even if there had been error in relation to any of these matters (and I am not satisfied that there has been error), such error would not have assisted the plaintiff in this appeal. Any error could only relate to a finding of fact. For completeness, I should mention that the Tribunal realised that there were problems in handling this material and said that it made allowances in evaluating it. I see no reason to not accept the Tribunal’s observations on the matter.

35 In the circumstances, I am not satisfied that the Tribunal erred in performing the function required by s64(2)(c) of the Act.

36 The plaintiff bears the onus of satisfying the court that the decision of the Tribunal should be disturbed. In my view, he has failed to discharge that onus.

37 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The stay ordered by Greg James J on 11 February 2005 is set aside. The exhibits may be returned.

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