Young v Chief Executive Officer (Housing)

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN AND GLEESON JJ

WAYNE MATTHEW YOUNG AS ADMINISTRATOR
OF THE ESTATE OF KWEMENTYAYE
YOUNG & ANOR  APPELLANTS

AND

CHIEF EXECUTIVE OFFICER (HOUSING)  RESPONDENT

Young v Chief Executive Officer (Housing)

[2023] HCA 31

Date of Hearing: 16 March 2023
Date of Judgment: 1 November 2023

D5/2022

ORDER

1. Appeal allowed.

2. Set aside order 4 of the orders made by the Court of Appeal of the Supreme Court of the Northern Territory on 4 February 2022.

3. The respondent pay the appellants' costs of the first and second grounds of the appeal to this Court.

On appeal from the Supreme Court of the Northern Territory

Representation

M L L Albert for the appellants (instructed by Australian Lawyers for Remote Aboriginal Rights)

N Christrup SC, Solicitor-General for the Northern Territory, with H H Baddeley for the respondent (instructed by MinterEllison)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. KIEFEL CJ, GAGELER AND GLEESON JJ. The dispositive question in this appeal is whether the Civil and Administrative Tribunal of the Northern Territory ("the Tribunal") is empowered by s 122(1) of the Residential Tenancies Act 1999 (NT) ("the Act") to order that a landlord compensate a tenant for distress or disappointment suffered by the tenant as a normal healthy reaction to a failure on the part of the landlord to comply with a statutorily imposed term of a residential tenancy agreement that the landlord take reasonable steps to provide and maintain security devices necessary to ensure that residential premises are reasonably secure. The answer is that the Tribunal is so empowered.

    Facts and procedural history

  2. Ms Young was the tenant of residential premises at Ltyentye Apurte, also known as Santa Teresa, an Aboriginal community approximately 85 kilometres from Alice Springs. The Chief Executive Officer (Housing) ("the CEO"), a corporation sole established under the Housing Act 1982 (NT), was the landlord. For 68 months, the premises had no back door in the doorframe.

  3. The written form of tenancy agreement between the CEO and Ms Young was not in accordance with s 19(1) of the Act in that it did not contain terms to the effect of each term specified by the Act to be a term of a tenancy agreement. The consequence was that, for the purposes of the Act, the tenancy agreement between the CEO and Ms Young was taken by s 19(4) of the Act to be the prescribed tenancy agreement set out in Sch 2 to the Residential Tenancies Regulations 2000 (NT). As required by s 49(1) of the Act, cl 12(1) of the prescribed tenancy agreement provided that "[t]he landlord will take reasonable steps to provide and maintain the locks and other security devices that are necessary to ensure the premises and ancillary property are reasonably secure".

  4. Ms Young applied to the Tribunal for an order under s 122(1) of the Act that the CEO compensate her for…

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Details
Case
[2023] HCA 31
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia by Ms Young, a tenant, against the Chief Executive Officer (Housing) ("the CEO"), her landlord. The dispute arose from the CEO's failure to provide a back door for the residential premises Ms Young occupied for 68 months. Ms Young sought compensation from the Civil and Administrative Tribunal of the Northern Territory for distress and disappointment caused by the insecurity she felt due to this breach of her tenancy agreement.

The central legal issue before the High Court was whether the Tribunal had the power under s 122(1) of the Residential Tenancies Act 1999 (NT) to order a landlord to compensate a tenant for distress and disappointment resulting from the landlord's failure to comply with a statutorily imposed term requiring reasonable steps to ensure the premises were reasonably secure. This also involved considering whether common law principles of remoteness, which typically preclude recovery for mere distress and disappointment unless consequential upon physical inconvenience, applied to this statutory compensation scheme.

The High Court reasoned that the object of s 49(1) of the Act, which mandated landlords to provide and maintain security devices, was to protect both the physical and psychological well-being of tenants, aligning with the Act's broader aim of ensuring safe and habitable premises. The Court held that the statutory right to compensation under s 122(1) was not limited by common law remoteness principles in a way that would exclude compensation for distress and disappointment. The Court found that the CEO's breach of the obligation to provide a secure premises directly caused Ms Young's distress and disappointment, and therefore, compensation for this loss was permissible under the Act.

The High Court allowed the appeal, setting aside an order made by the Court of Appeal of the Supreme Court of the Northern Territory. The Court also ordered the respondent to pay the appellants' costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside order 4 of the orders made by the Court of Appeal of the Supreme Court of the Northern Territory on 4 February 2022.

3. The respondent pay the appellants' costs of the first and second grounds of the appeal to this Court.

Background

Background to the litigation

KIEFEL The dispositive question in this appeal is whether the Civil and Administrative Tribunal of the Northern Territory ("the Tribunal") is empowered by s 122(1) of the Residential Tenancies Act 1999 (NT) ("the Act") to order that a landlord compensate a tenant for distress or disappointment suffered by the tenant as a normal healthy reaction to a failure on the part of the landlord to comply with a statutorily imposed term of a residential tenancy agreement that the landlord take reasonable steps to provide and maintain security devices necessary to ensure that residential premises are reasonably secure. The answer is that the Tribunal is so empowered.Facts and procedural history Ms Young was the tenant of residential premises at Ltyentye Apurte, also known as Santa Teresa, an Aboriginal community approximately 85 kilometres from Alice Springs. The Chief Executive Officer (Housing) ("the CEO"), a corporation sole established under the Housing Act 1982 (NT), was the landlord. For 68 months, the premises had no back door in the doorframe. The written form of tenancy agreement between the CEO and Ms Young was not in accordance with s 19(1) of the Act in that it did not contain terms to the effect of each term specified by the Act to be a term of a tenancy agreement. The consequence was that, for the purposes of the Act, the tenancy agreement between the CEO and Ms Young was taken by s 19(4) of the Act to be the prescribed tenancy agreement set out in Sch 2 to the Residential Tenancies Regulations 2000 (NT). As required by s 49(1) of the Act, cl 12(1) of the prescribed tenancy agreement provided that "[t]he landlord will take reasonable steps to provide and maintain the locks and other security devices that are necessary to ensure the premises and ancillary property are reasonably secure". Ms Young applied to the Tribunal for an order under s 122(1) of the Act that the CEO compensate her for loss or damage she claimed to have suffered because of non-compliance by the CEO with the tenancy agreement. Her application included a claim to be compensated for loss or damage by way of distress and disappointment due to the insecurity she felt because of the CEO's failure to provide a back door in compliance with the term of the tenancy agreement imposed by s 49(1) of the Act. Taking the view that an external door is not "a security device" within the meaning of s 49(1) of the Act, the Tribunal found no breach of the term of the tenancy agreement specified in that sub-section and on that basis dismissed the application for compensation for non-compliance with it[1].[1]Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7 at [165]-[166]. On appeal on a question of law to the Supreme Court of the Northern Territory under s 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT), the CEO conceded that an external door is a security device within the meaning of s 49(1) of the Act, that having a back door was necessary to ensure that the premises were reasonably secure, and that the CEO had failed to comply with the term of the tenancy agreement specified in s 49(1) of the Act[2]. [2]Young v Chief Executive Officer, Housing (2020) 355 FLR 290 at 314 [87].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, GAGELER AND GLEESON JJ GORDON AND EDELMAN JJ
The remaining issue on this appeal is whether s 49(1) of the Residential Tenancies Act had such an object. Section 49(1) created a term of the tenancy agreement concerned with the security of the leased premises. The leased premises were to be used as a home. The object of that requirement of security was protection of the physical and psychological well-being of the tenant. One of the objects of the Residential Tenancies Act is "to ensure that tenants are provided with safe and habitable premises under tenancy agreements"[85]. The concerns of that object of safety, being both physical and psychological well-being, are reflected in the obligation created by s 49(1), which provides for both the physical safety and the psychological security that come with a reasonably secure premises.[85]Residential Tenancies Act 1999 (NT), s 3(d). Conclusion The appeal should be allowed. The proper interpretation of s 122 does not require the Tribunal to engage in a search for new rules limiting compensation under the Residential Tenancies Act. In the application of general contract law rules, an object of the term of the tenancy agreement created by s 49(1) of the Residential Tenancies Act was to provide a tenant with the peace of mind that comes with secure premises. The Chief Executive Officer (Housing) breached that obligation. The right in s 122 for Ms Young to obtain compensation for loss or damage suffered because of that breach includes the disappointment and distress suffered by Ms Young. In the notice of appeal and joint submissions filed on behalf of the appellants, the costs of both appellants were sought in this Court if the appeal were allowed. There was no demur from that aspect of the relief sought. Further, orders were made by consent at the commencement of this appeal concerning Order 5 of the orders of the Court of Appeal of the Supreme Court of the Northern Territory and the further orders sought by Ms Young, including an order quashing the decision of the Tribunal and remitting this matter back to the Tribunal for determination according to law, are not appropriate orders to make in this appeal. There is also no necessity to substitute for Order 4 of the orders of the Court of Appeal an order quashing the orders for compensation to Ms Young and Mr Conway (Orders 2 and 3 of the orders of the Northern Territory Civil and Administrative Tribunal given on 27 February 2019). Any such orders concerning compensation, and any substitute amount, should be made in the pending appeal to the Court of Appeal concerning the proper quantum of the Tribunal's award of compensation. For these reasons, orders should be made as proposed by Kiefel CJ, Gageler and Gleeson JJ.Postscript On 7 July 2023, after these reasons had been finalised, this Court was informed by the solicitors for the appellants, with the consent of the solicitors for the respondent, that Ms Young had passed away. The solicitors for the appellants advised the Court that they would seek instructions from Ms Young's estate to apply for an order substituting her estate as the first appellant. On 26 October 2023, consent orders were certified by the Court, substituting the administrator of the estate of Ms Young as the first appellant.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER AND GLEESON JJ, GORDON AND EDELMAN JJ

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