Cavanagh v Chief Executive Officer

Whether subsistence of a tenancy under Residential Tenancies Act 1999 (NT) repugnant to Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) - No repugnancy - Northern Territory National Emergency Response Act 2007 (Cth) overrides Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

COURTS AND TRIBUNALS - JURISDICTION - Implied jurisdiction of the Northern Territory Civil and Administrative Tribunal to deal with equitable defence of estoppel

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3(1), s 4(1), s 19(2), s 19(3) s 19(3A), s 19(5), s 19(8), s 19(8A), s 19A, s 20, s 74, ss 70C - 70G

Housing Act 1982 (NT) s 16, s 16(2)

Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 8, s 30, s 31, s 32, s 99A(1), s 99A(2)(b)

Northern Territory National Emergency Response Act 2007 (Cth) s 30, s 31, s 34, s 35(1), s 35(2A), s 35(5), s 35A(2), s 37(6), s 52, s 59(1) (a) & (b),

Residential Tenancies Act 1999 (NT) s 4(d), s 63, s 82, s 89, s 107, s 122,

Supreme Court Act 1979 (NT) s 16 (1) s 16(2)

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, applied.

Cavanagh v Chief Executive Officer (Housing) [2018] NTSC 52

[1] The applicant is a public housing tenant who lives in a house on Lot 190, Santa Teresa, an Aboriginal community located 85 kilometres from Alice Springs in the Northern Territory.

[2] In February 2015, 70 public housing tenants from Santa Teresa, including the applicant, filed proceedings against the respondent in the Northern Territory Civil and Administrative Tribunal ('the Tribunal'). In each proceeding, the respective applicant seeks emergency repair costs under s 63 of the Residential Tenancies Act 1999 (NT) ('Residential Tenancies Act') as well as compensation under s 122 of the Act for alleged delays in undertaking both emergency and non-emergency repairs.

[3] In each proceeding, the respondent resists the claims and has counter-claimed for compensation for rental arrears and the costs of repairs and maintenance resulting from the respective tenant's acts or omissions.

[4] On 13 April 2017 the President of the Tribunal referred the applicant's claims and the respondent's counter-claims to the Supreme Court under s 99A(1) and (2)(b) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) (Northern Territory Civil and Administrative Tribunal Act) on the grounds that because of the complexity, difficulty and novelty of the case, the proceeding would be more appropriately heard by the Supreme Court.[1] On 18 December 2017, on the application of the respondent, I remitted the proceeding to the Tribunal under s 16(1) and (2) of the Supreme Court Act 1979 (NT).

[5] On 22 August 2017 before remitting the proceeding to the Tribunal, I determined that the Court should decide the following five preliminary questions which were seminal to how the proceeding should be resolved in the Tribunal.

1. Whether, immediately prior to 21 September 2015, there subsisted between the applicant as tenant and any other person, or entity, as landlord, a tenancy within the meaning of the Residential Tenancies Act, and if so:

   1. with whom; and
   2. on what basis did it arise?

2. Whether (and, if so, how) any tenancy subsisting immediately prior to 21 September 2015 continued after 21 September 2015 as a tenancy between the applicant as tenant and the respondent as landlord within the meaning of the Residential Tenancies Act?

3. Whether an implied tenancy arises?

4. Whether the Tribunal has equitable jurisdiction?

5. Whether the legislation precludes the equitable estoppel raised by the applicant as a defence to the respondent's counter-claim?

[6] Questions 1 and 2 were the questions that most concerned the President of the Tribunal. He considered these questions in Cavanagh v Chief Executive Officer (Housing),[2] Cavanagh v Chief Executive Officer (Housing) (No. 2)[3] and Cavanagh v Chief Executive Officer (Housing) (No. 4).[4] Ultimately, the President did not answer the questions and, as I have stated, transferred the proceeding to this Court.

[7] On 25 September 2017 I answered the questions as follows:

1. Yes. Although there has been a substitution in landlords from time to time, at all material times, the 2010 Tenancy Agreement persisted by operation of the Residential Tenancies Act. See s 4, s 82, s 107, s 122 of the Residential Tenancies Act. [I should have also referred to s 89 of the Act].

2. Yes. The answer is as for question 1.

3. In light of the answers to questions 1 and 2 it is unnecessary to answer question 3.

4. It is unnecessary to decide the full extent of the Tribunal's equitable jurisdiction. However, the Tribunal has sufficient equitable jurisdiction to determine the estoppel pleaded by the applicant in the defence to counterclaim or any amendment thereto. The jurisdiction is implied in the grant of power to the Tribunal under s 122 of the Residential Tenancies Act.

5. It is unnecessary to decide this question. The pleading of the estoppel in the defence to counter-claim may require some refinement. It is within the jurisdiction of the Tribunal to decide if the provisions of the Residential Tenancies Act preclude the applicant from pleading the estoppel as pleaded, or as subsequently amended. The Tribunal has jurisdiction to determine all issues raised in the claim, the counter-claim and the defence to counter-claim including any amendments which fall within the scope of those pleadings.

[8] At the request of the applicant, a number of interlocutory matters, including amendments to the parties' pleadings and the provision of particulars to the respondent's counter-claim, were then attended to in this Court, before the matter was remitted to the Tribunal on 18 December 2017.

[9] At the time I pronounced the answers to the preliminary questions, I stated that I would publish full written reasons later. Following are my written reasons for decision.

[10] The land occupied by the Santa Teresa township and each of the 70 houses the subject of the Santa Theresa proceedings in the Tribunal, including the parcel of land on which the premises occupied by the applicant is located, is on NT Portion 317 CP 4196. This is 'Aboriginal land' within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('Aboriginal Land Rights (Northern Territory) Act').[5] The title to NT Portion 317 CP 4196 is held by the Santa Teresa Land Trust under s 4(1) of the Aboriginal Land Rights (Northern Territory) Act "for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission...".

[11] On 18 August 2007 the Northern Territory National Emergency Response Act 2007 (Cth) ('Northern Territory National Emergency Response Act') commenced. Under s 31 of the Act, the Commonwealth of Australia was compulsorily granted five year leases over 64 Northern Territory Aboriginal communities including NT Portion 317 CP 4196. The term of the lease commenced on 18 August 2007 and expired on 17 August 2012.

[12] As the President of the Tribunal stated, the five year leases under s 31 of the Northern Territory National Emergency Response Act were granted to the Commonwealth in a manner which constituted a radical departure from the manner in which leases to Aboriginal land are granted under s 19, s 19A, and s 20 of the Aboriginal Land Rights (Northern Territory) Act.

[13] Under s 35(5) of the Northern Territory National Emergency Response Act the Commonwealth could, at any time, sublease, license, part with the possession of, or otherwise deal with, its interest in a lease acquired under s 31 of the Act. Subsections 59(1)(a) and (b) of the Act provided that to the extent that a law of the Northern Territory is capable of operating concurrently with this Act, this part does not affect the application of the law to: (a) land covered by a lease granted under section 31; or (b) land in which a Commonwealth interest exists.

[14] By a Memorandum of Understanding made on 17 September 2007 the Commonwealth resolved to fund a Remote Indigenous Housing Project to be implemented by the Northern Territory.

[15] In 2008 the applicant entered into possession of Lot 190 at Santa Teresa.

[16] On 19 December 2008 the Memorandum of Understanding made on 17 September 2007 was confirmed by the National Partnership Agreement on Remote Indigenous Housing. The agreement was later extended to the 2017/18 financial year.

[17] On 2 July 2010, the Commonwealth and the applicant entered into a Tenancy Agreement for the premises at Lot 190 Santa Teresa. The Tenancy Agreement was made on a Panel Form R1 - Ags 31 on Northern Territory Government Department of Housing, Local Government, and Regional Services letterhead. The Tenancy Agreement contained the following provisions.

1. It defined Landlord as follows:

The Commonwealth of Australia represented by the Department of Families, Housing, Community Services and Indigenous Affairs (the Commonwealth).

To the extent that the context permits, a reference in this agreement to the Landlord includes [the Northern Territory] Department of Housing, Local Government, and Regional Services on behalf of the Commonwealth.

1. It specified a start date of 2 July 2010, and as to the expiry date stated, "Not applicable - Periodic Tenancy".
2. A weekly rental of $40 was specified.
3. Included the following declaration.

The Landlord agrees to grant to the Tenant the right of occupancy of the Premises and the Tenant accepts such grant for the Term and at the Rent in accordance with the terms and conditions set out in this document.

1. Under the heading 'TERMS AND CONDITIONS OF TENANCY AGREEMENT', stated, "the Landlord and Tenant hereby agree to be bound by the terms and conditions contained in the Remote Public Housing Tenancy Rules as attached (the Tenancy Rules) subject to any amendments, variations or special consideration set out in the Schedule below".
2. The third item in the Schedule stated that a minimum number of two occupants and a maximum of six occupants may reside at the premises. Persons, other than those named in the application for tenancy may not reside at the premises without the permission of the Landlord.

[18] The Tenancy Rules are on the header of the Northern Territory Department of Housing, Local Government, and Regional Services, and contain the following provisions.

1. Define Landlord as "the Landlord specified in the Tenancy Agreement".

2. Define Tenancy Agreement as "The Panel Form setting out the details of the Tenancy between the Landlord and the Tenant". This is obviously a reference to the document referred to at [17] above.

3. Define Regulations as "Regulations under the [Residential Tenancies Act]".

4. Define Tenancy as "The estate, interest and relationship created by this document, the Tenancy Agreement and the Schedule."

5. Rule 2, which states that the Landlord and Tenant must comply with the provisions of the Residential Tenancies Act.

6. Rule 3, which states that "This Tenancy is a periodic tenancy in accordance with the Residential Tenancies Act."

7. Rules setting out the Landlord's and Tenant's responsibilities and obligations in similar terms to the Residential Tenancies Act.

8. Rule 21, which is a termination clause consistent with the provisions of the Residential Tenancies Act. There is no evidence to suggest that the Tenancy Agreement made on 2 July 2010 was ever terminated under Rule 21, or s 82 or s 89 of the Residential Tenancies Act, or at all.

9. Rule 28, which states that "The Landlord and Tenant agree that this Tenancy is in substitution for any previous tenancy agreement between the Landlord and the Tenant so far as it relates to the Premises and that any such previous agreement is terminated by this Tenancy".

10. Rule 33, which states that "This Tenancy may only be varied by agreement in writing signed by the Landlord and the Tenant."

[19] It is apparent that the Tenancy Agreement entered into between the applicant and the Commonwealth on 2 July 2010 is a Tenancy Agreement which was made in compliance with, and subject to the Residential Tenancies Act. This is consistent with s 59(1)(a) and (b) of the Northern Territory National Emergency Response Act.

[20] It is also apparent that the respondent was the Commonwealth's agent under the Tenancy Agreement. There is an express reference to the respondent in the Panel Form R1 - Ags 31 on the first page of the document under a block which defines the Landlord. This is consistent with the National Partnership Agreement on Remote Indigenous Housing. As the respondent was the Commonwealth's agent, the respondent was also a landlord within the meaning of s 4(d) of the Residential Tenancies Act.

[21] On 17 August 2012 the Commonwealth's five year lease of NT Portion 317 CP 4196 expired.

[22] On 17 August 2012 the Commonwealth Department of Families, Housing, Community Services, and Indigenous Affairs sent a letter to the Northern Territory Department of Housing, Local Government, and Regional Services in the following terms.

I am writing in relation to the arrangement for continuing to deliver remote housing property and tenancy management services after the Commonwealth's five year statutory leases expire on 17 August 2012.

The Northern Territory and the Commonwealth Governments are both committed to the continuation of improved housing services under the National Partnership Agreement on Remote Indigenous Housing (NPARIH), delivered through the rollout of the Remote Public Housing Management Framework to remote communities. I am pleased that the work of our respective officials has resulted in a majority of the 64 five year lease communities agreeing to enter into long-term leases. It is essential that we continue to work together to finalise leases with as many of the balance of locations as possible and as quickly as possible.

Where long-term housing leases are not finalised by 17 August 2012, the preferred approach is to continue on an interim 'business as usual' basis, despite no formal underlying granted tenure. While in the long-term secure land tenure is required under NPARIH, the short-term arrangement will be in accordance with our commitment to providing safe and secure housing and appropriate housing services while leasing decision (sic) are made and technical processes are finalised.

People residing in the houses will continue to be managed as either tenants under the Residential Tenancies Act (RTA) or occupants with service contracts (legacy houses) by Remote Housing NT. RTA tenancy agreements can be created which impose landlord obligations on, in this instance, the CEO of Housing, even though no formal underlying leases have been granted by the land owner to the CEO of Housing. Terms and conditions of the newly created tenancy agreements are set out in Schedule 2 of the RTA.

The shorter term interim arrangements will allow for the continued provision of property and tenancy management including repairs and maintenance by the Shires, via an extension of the existing Service Level Agreements.

The NLC and CLC have had an opportunity to consider the proposed interim arrangements and have agreed with, and support, the continuation of property and tenancy management services by the CEO of Housing on this proposed basis.

These interim arrangements do not provide the stable legal basis for long-term housing service provision which leases allow, but can apply for a short-term pending the conclusion of lease negotiations. This is considered the most pragmatic way forward for all stakeholders, and will apply for a limited period while section 19 leases are being negotiated.

I am confirming that the Commonwealth agrees to this approach and will continue to work with the NTG as the NPARIH partner during the interim period to ensure improved housing services continue to be provided in remote communities, and achieve the joint resolution of any significant issues which may arise during that period.

[23] On 21 August 2012, the Commonwealth Department of Families, Housing, Community Services, and Indigenous Affairs and the Northern Territory Department of Housing, Local Government, and Regional Services co-signed the following letter to the Director of the Central Land Council.

The Northern Territory and Commonwealth Governments are committed to delivering high quality housing services to residents of remote communities. After the five year statutory leases expire on 17 August 2012, voluntary leases will be required in order to support the ongoing provision of the services. However, we also propose that services continue to residents and communities without secure tenure on a short term interim basis pending a decision by landowners on long-term housing leases.

We propose to put in place short-term interim arrangements for the communities listed in the annexure [including NT Portion 317 CP 4196], which will allow the Land Council time to consult and seek agreement from landowners for a long-term housing lease or more formal interim arrangements where landowners wish to have more time to consider the offer.

We seek your support for these arrangements which will be based on a 'business as usual' approach, to ensure that residents in those remote communities continue to have access to safe and secure housing and uniform property and tenancy management services while leasing decisions are made and technical processes are finalised. The arrangements will mean that Territory Housing has access to the land to continue its existing repairs and maintenance programme for all dwellings, as well as collecting rents and maintenance levies. Community residents will continue to be managed as tenants under the Residential Tenancies Act (RTA) where rent continues to be paid, or as occupants under a service contract where the existing maintenance levies continue to be paid. In practice, this will mean that tenancy or occupancy arrangements continue with rents and poll taxes/maintenance fees reinvested back into housing services, including the repairs and maintenance programme. It also means that the rights and responsibilities of tenants and occupants are, protected, and they can report faults or defects and expect that they will be repaired within an acceptable timeframe.

The short term interim arrangements will be based upon your support for Territory Housing to continue to access the land and charge rents and maintenance levies under arrangements created between the CEO of Housing and its tenants and occupants. The intent is for Territory Housing to continue to provide the property and tenancy management services under the Remote Public Housing Management Framework. However, as these arrangements are not underpinned by the required formal grant of tenure, service delivery on this basis cannot be fully assured. With this in mind it remains essential that we work together with you to facilitate putting in place long-term leases, or formal interim arrangements, as quickly as possible to provide certainty for communities and residents.

We would appreciate your confirmation that the Land Council agrees to this short-term interim approach.

[24] At this point, it is important to note that there is evidence in the letter sent by the Commonwealth Government to the Northern Territory Government on 17 August 2012 that both the Northern Land Council and the Central Land Council had agreed to support the continuation of property and tenancy management services being provided by the CEO of Housing on the basis outlined in the two letters. Further, all that was being sought in the letter dated 21 August 2012 was confirmation of what had already been agreed, namely, existing arrangements would proceed on a 'business as usual' basis. Further still, existing arrangements proceeded on a 'business as usual' basis for a period of three years, or thereabouts, without any objection by the Central Land Council, and ultimately matters were formalised by a written head lease to the Executive Director of Township Leasing with a sublease to the respondent.

[25] Throughout the period from 17 August 2012 to 21 September 2015 the applicant had exclusive possession and quiet enjoyment of the premises at Lot 190 Santa Teresa and, at least, from time to time she paid rent to the respondent. Further, as stated at [18] (subparagraph 8) above, the Tenancy Agreement made on 2 July 2010 was never terminated. Further still, the management role of the respondent for Lot 190 and other properties at Santa Teresa, as shown by: (i) the Tenancy Agreement made on 2 July 2010; (ii) the MOU made on 17 September 2007 between the Commonwealth and the Territory; (iii) the National Partnership Agreement on Remote Indigenous Housing; (iv) the Implementation Plans for the National Partnership Agreement on Remote Indigenous Housing between the Commonwealth and the Northern Territory; and (v) the conduct of the applicant and the respondent, demonstrates that the respondent continued to act as agent and therefore as a Landlord during the period from 17 August 2012 to 21 September 2015.

[26] On 21 September 2015, acting under s 19(3) and (3A) of the Aboriginal Land Rights (Northern Territory) Act, the Santa Teresa Land Trust and the Central Land Council granted the Executive Director of Township Leasing, on behalf of the Commonwealth, a 40 year lease over the "existing housing stock [and connected services]" including NT Portion 317 CP 4196. The lease is in writing and contained in a document headed, HOUSING PRECINCT LEASE PURSUANT TO S 19 OF THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 SANTA TERESA (the Housing Precinct Head Lease).

[27] Recital H of the Housing Precinct Head Lease states:

(a) the lessee will grant an initial sublease of the Premises to the Northern Territory Chief Executive Officer (Housing) a body corporate established under the Housing Act (NT); but

(b) subsequent subleases of the Premises, or part of the Premises, can be granted by the lessee to any appropriate body able to carry out the Permitted Use.

[28] Recital O of the Housing Precinct Head Lease states:

The parties acknowledge that the grant of this lease to the Lessee is to facilitate the provision of public housing. This is to be achieved by way of a sublease to a housing provider and it is intended that housing management issues associated with this lease will be administered by a sublease, in accordance with the terms of the sublease.

[29] Subclause 10.2(a) of the Housing Precinct Head Lease states:

For the purposes of subsection 19(8) of the [Aboriginal Land Rights (Northern Territory) Act] and pursuant to subsection 19(8A) of the Act the Land Council consents to the Lessee [Executive Director of Township Leasing]:

(a) granting a sublease or licence of the Premises or part of the Premises that is consistent with, and for the purposes of carrying out the Permitted Use (subject to clauses 10.3 and 10.4 as appropriate).

[30] Clause 11.1 of the Housing Precinct Head Lease states:

The Lessee must use its best endeavours to have in place a sublease or licence of part or all (as appropriate) of the Premises to an entity for the provision of public housing to the Community in accordance with the Permitted Use.

[31] Recitals H and O of the Housing Precinct Head Lease acknowledge that the purpose of the head lease was to formalise arrangements for the provision of public housing which were effectively already in place prior to the head lease starting. Clause 11.1 of the Housing Precinct Head Lease places an onus on the Lessee to confirm or, in effect, formalise the arrangements which were already in place in accordance with the letters set out at [22] and [23] above.

[32] On 21 September 2015, the Executive Director of Township Leasing granted a sublease of NT Portion 317 CP 4196 to the respondent starting on 21 September 2015 and expiring on 30 June 2018. The sublease is contained in a deed headed, SANTA TERESA SECTION 19 HOUSING SUBLEASE (the Santa Teresa Sublease).

[33] Clause 2.1 of the Santa Teresa sublease states:

In consideration of the rent and the Sublessee's covenants, the [Executive Director of Township Leasing] subleases to the Sublessee the Premises for the Permitted Use for the Term.

[34] According to clause 1.2 of the Santa Teresa sublease the Permitted Use "means the use of the Premises for the provision of Public Housing to the Community including: (i) the provision of tenancy management services; (ii) the construction, demolition, upgrading, extending, refurbishing, landscaping and maintenance of houses, Improvements and Services; and (iii) purposes reasonably incidental to (a) and (b) (sic) but not including the provision of office space, commercial premises or staff housing (except if consented to per clause 3.3)".

[35] Clause 3.1 of the Santa Teresa Sublease states that, "For the purposes of the Permitted Use the Sublessee must, during the term of the Sublease, ensure that the Premises are used to provide Public Housing. Clause 4.2 states, "The Sublessee may grant Tenancy Agreements for the purposes of carrying out the Permitted Use". In accordance with subclause 1.2 of the Santa Teresa Sublease, 'Tenancy Agreement' has the meaning given in the Residential Tenancies Act.

[36] The Santa Teresa Sublease effectively gave the respondent the power to enter into new Tenancy Agreements with members of the Santa Teresa Community, or to formalise in writing, if it considered appropriate, any tenancy arrangements that already existed between it and members of the Santa Teresa Community, including the applicant.

[37] Since 21 September 2015 no written Tenancy Agreement has been made between the respondent and the applicant.

The President's consideration of questions 1 and 2

[38] In Cavanagh v Chief Executive Officer (Housing),[6] before considering the answers to questions 1 and 2 at [5] above, which were raised in that case, the President of the Tribunal noted that the common position of the parties was to the following effect:

1. Before 21 September 2015 until [the present], there was a continuing tenancy agreement with the applicant from 2 July 2010 that is covered by the Residential Tenancies Act.

2. From 2 July 2010 until 21 September 2015, that agreement was between the applicant and the Commonwealth but that both the Commonwealth and the respondent were landlords for the purposes of the Residential Tenancies Act.

3. The respondent was agent for the Commonwealth for the purposes of this tenancy and accepts liability under the Residential Tenancies Act from 2 July 2010.

[39] The President then went on to make the following remarks at [64] to [90]:

The course of the Santa Teresa proceeding to date, and the movement in the positions that have been adopted by the applicant and the respondent in their various submissions, reflects the complexity of the legal issues affecting the question whether NTCAT has jurisdiction in the proceeding, and if so, the extent of that jurisdiction.

The apparent consensus reflected in the most recent exchange of submissions would ordinarily be considered a positive development.

Regrettably, I consider myself unable to proceed on the basis of the parties' agreed position.

The respondent's submission that, on and from 21 September 2015, it "became the landlord in relation to the existing tenancies" depends upon the subsistence of such tenancies, at the time of the grant of the Housing Precinct Head Lease and the Housing Precinct Sublease.

In order for that to be the case, tenancies created by the Commonwealth during the term of the five year lease (such as arising by virtue of the Panel Form dated 22 July 2010) must have continued after 17 August 2012.

Plainly enough, the tenants under any such continuing tenancies were the applicant and any other residents of Santa Teresa who had signed Panel Form agreements; but who was properly to be regarded as the landlord?

As I have noted, the respondent has conceded (in the same submission dated 31 March 2016) that it did not, prior to 21 September 2015, have any estate or interest in the Santa Teresa Land such that it was able to grant a right to occupy premises on that land.

The respondent's concession was, in my view, plainly correct.

Moreover - despite the applicant's submission [...] - the proposition that the respondent did not, prior to 21 September 2015, have any relevant estate or interest in the Santa Teresa land, is unaffected by the definition of "landlord" in section 4 of the Residential Tenancies Act.

Even accepting that the respondent may, by virtue of the Panel Form and associated arrangements, have been an agent of the Commonwealth - and therefore within paragraph (d) of the definition of "landlord"- it does not follow that the respondent thereby had all the rights and obligations of the landlord under the Residential Tenancies Act.

The definition of "landlord" in section 4 applies subject to the contrary intention. The fact that an agent of the landlord may, in certain contexts, be regarded as the landlord for the purposes of the Residential Tenancies Act does not mean the agent is to be so regarded for all such purposes. It would be absurd, for example, to suggest that the provisions of the Residential Tenancies Act that impose positive personal obligations upon a landlord (for example in relation to repairs and maintenance) impose like obligations upon a person (such as a property manager) acting as the landlord's agent. It would simply be absurd - and patently a "bootstraps" argument - to suggest that the respondent's character as an agent of the Commonwealth, and therefore "landlord" within the meaning of section 4, had the consequence that the respondent, in any relevant sense prior to 21 September 2015, could have granted the applicant a right to occupy Lot 190.

At the directions hearing on 6 May 2016 [...], I raised with the respondent's counsel the matter of who, in the respondent's submission, was properly to be regarded as the landlord for the period between 17 August 2012 and 21 September 2015.

The respondent's counsel accepted the relevant choice was between Santa Teresa Land Trust and the Commonwealth. He appeared to accept that the Land Trust was the more likely contender, but emphasised that was subject to the possibility that there were arrangements in place under which the Commonwealth was able to continue in the capacity it had acted prior to the expiry of the five year lease.

Ultimately, according to the respondent's counsel, there is no need to make a choice between the Land Trust and the Commonwealth; the landlord was either the Land Trust as the successor in title to the Commonwealth (and therefore landlord within the meaning of paragraph (b) of the definition in section 4 of the Residential Tenancies Act) or it was the Commonwealth (by virtue of the possible arrangements).

In the respondent's submission, the issue was moot because, whoever was the landlord, the key consideration was that the tenancies created during the five year lease continued. This was because they had not been terminated, either in accordance with clause 21 of the panel form, or section 82 of the Residential Tenancies Act, which relevantly provides: [...].

I cannot accept, having regard to the detailed and prescriptive regime for the creation of estates or interests in Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), that the Residential Tenancies Act could have the operation for which the respondent contends. Such an operation would, in my opinion, be inconsistent with, or repugnant to, that regime; or, to express the proposition in terms of section 74 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), section 82(1) of the Residential Tenancies Act is not, in the circumstances presently under consideration, "capable of acting concurrently with" Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

The rights and obligations of tenants under the tenancies created by the Commonwealth between 18 August 2007 and 17 August 2012 came into existence under and by virtue of the five year leases granted to the Commonwealth under Northern Territory National Emergency Response Act 2007 (Cth). As I noted earlier in these reasons, the granting of the five year leases involved a radical departure from the requirements of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) for the creation of estates or interests in Aboriginal land. This is no less true of subordinate estates or interests granted by the Commonwealth in its capacity as lessee under the five-year leases.

It can be noted here that the ALRA contains in section 19(2) express provision identifying the circumstances in which a Land Trust is permitted to grant an estate or interest for the use of Aboriginal land for residential purposes. Relevantly, such an estate or interest may be granted only to an Aboriginal and only with written consent of the Minister and upon direction of the relevant Land Council. Moreover, any such direction by the Land Council could only be given following the extensive consultations contemplated by section 19(5) of the ALRA.

On the approach urged by the respondent, section 82(1) of the Residential Tenancies Act could operate to substantially undermine section 19(2).

It is true, as the respondent has pointed out, that the NTNERA contained provision (in section 59) preserving the operation of Northern Territory laws to the extent they were capable of operating concurrently with it.

I have no difficulty with a general proposition that the Residential Tenancies Act is capable of operating in respect of a residential tenancy affecting Aboriginal land, whether created under section 19(2) of the ALRA or under a lease granted by virtue of NTNERA; however, I am unable to accept that section 59 of the NTNERA operates so as to, in effect, allow the Residential Tenancies Act to trump the operation of the ALRA in respect of the creation of estates or interests in Aboriginal land. In a context where the question is the legal effect of the expiry of a five year lease granted compulsorily (and extraordinarily) under the NTNERA, the capacity of the Residential Tenancies Act to operate concurrently with the NTNERA must be assessed having regard not only to the NTNERA but also the ALRA.

I finally note that in this context I can find nothing in the NTNERA to otherwise support a conclusion that an estate or interest subordinate to a five year lease compulsory granted under section 31 could, in the face of the tenure regime created under the ALRA, survive the expiry of the five year lease.

My conclusion that any tenancy such as arose under the Panel Form agreement dated to July 2010 in relation to Lot 190 did not continue after 17 August 2012 means that it is unnecessary to express a view on the question whether it was the Santa Teresa Land Trust or the Commonwealth that assumed the mantle of landlord under any continuing tenancy.

For the sake of completeness I should also note that I'm unpersuaded, having regard to:

• the letters referred to in paragraphs [27] and [28] above (including the absence of any evidence of a response to the letter to the Central Land Council dated 21 August 2012); or
• the fact, which I am prepared to accept, that the arrangements as between the Commonwealth, the respondent and the applicant under and by virtue of the Panel Form agreement continued in substance between 17 August 2012 and 21 September 2015;

that there was any agreement or other arrangement following the expiry of the five year lease by which the applicant acquired a relevant estate or interest in the Santa Teresa Land (that is, an estate or interest as a tenant that existed at the time of the Housing Precinct Head Lease and the Housing Precinct Sublease).

"Business as usual" may fairly have described the outward appearance of arrangements affecting the Santa Teresa Land after 17 August 2012; however, in light of the expiry of the five year lease, and in the face of section 19 of the ALRA, it was wholly inadequate to reflect the changes in legal relationships underpinning those arrangements.

In the circumstances I am presently inclined to answer the first of the questions posed on 6 May 2016, 'no'. It would follow that there is no need to answer the second question.

For the following reasons, I do not propose giving final answers or making orders at this time.

[40] Ultimately, the President of the Tribunal did not answer the questions posed by him on 6 May 2016. Instead, as is apparent from these reasons, he referred the whole of the matter to the Supreme Court.

[41] I disagree with the tentative conclusions of the President of the Tribunal.

[42] The first point to note when considering the answers to the first three questions at [5] above is that it was the intention of the Commonwealth Parliament that Part 4 of the Northern Territory National Emergency Response Act was to override the provisions of section 19 of the Aboriginal Land Rights (Northern Territory) Act and did so. The object of the Northern Territory National Emergency Response Act was to improve the well-being of certain Aboriginal communities in the Northern Territory. The object of Part 4 of the Northern Territory National Emergency Response Act 2007, which is the Part of the Act which overrides the provisions of the Aboriginal Land Rights (Northern Territory) Act, is to enable special measures to be taken to: (a) improve the delivery of services to Indigenous communities in the Northern Territory: and (b) promote economic and social development in those communities.

[43] Consistently with the objects of Part 4 of the Northern Territory National Emergency Response Act, very soon after the Act commenced, the Northern Territory entered into the Memorandum of Understanding with the Commonwealth and subsequently the National Partnership Agreement on Remote Indigenous Housing. Under clause 16 of the National Partnership Agreement on Remote Indigenous Housing, the Northern Territory has responsibility for:

• (a) provision of housing in Indigenous communities and through [...] Territory housing authorities be the major deliverer of housing for Indigenous people in remote areas of Australia;

• (b) ensuring provision of standardised tenancy management and support for all Indigenous housing in remote areas consistent with public housing standards of tenancy management including through, where appropriate, existing service providers; and

• (c) developing and implementing land tenure arrangements to facilitate effective asset management, essential services and economic development opportunities.

[44] Given the Northern Territory's obligations under clause 16 of the National Partnership Agreement on Remote Indigenous Housing and the provisions of s 16(2) of the Housing Act 1982 (NT), it is understandable that the respondent would be nominated as a Landlord in the Tenancy Agreement made on 2 July 2010 and that the respondent's obligations under the Tenancy Agreement would be consistent with the Northern Territory's obligations under the National Partnership Agreement on Remote Indigenous Housing.

[45] The second point to consider is, what interest did the applicant obtain under the Tenancy Agreement made on 2 July 2010? In this regard, it is important to look at the provisions of s 31, s 35 and s 59 of the Northern Territory National Emergency Response Act in the context of the object stated in s 30 of the Act.

[46] Subject to certain interests expressly stated in s 31 of the Northern Territory National Emergency Response Act, the section grants a lease of five years of the relevant land to the Commonwealth. Subject to s 34 of the Act, the grant excludes parts of the leased land that are subject to existing leases covering all or part of the land.

[47] Subsection 35(1) of the Northern Territory National Emergency Response Act states that "a lease granted under s 31 gives the Commonwealth exclusive possession and quiet enjoyment of the land while the lease is in force (subject to section 34, subsection 37(6) and section 52 of this Act or sections 70C to 70G of the Aboriginal Land Rights (Northern Territory) Act)". The sections of the Aboriginal Land Rights (Northern Territory) Act referred to deal with access to aerodromes, landing places of vessels, grades within communities, common areas, and access to courts for court hearings. Subsection 35(2A) of the Northern Territory National Emergency Response Act states that "subject to subsection (2D), the Commonwealth is entitled to use, and permit the use of, land covered by a lease granted under s 31 for any use the Commonwealth considers is consistent with the fulfilment of the object of this Part and is not entitled to use, or permit the use of, the land for any other use". Subsection 35(2D) of the Act provides that subsection (2A) does not limit Part 4 of the , which deals with mining and is not relevant to this proceeding. provides that "the relevant owner of land covered by a lease granted under may not vary or terminate the lease".

[48] Subsection 35(5) provides that:

The Commonwealth may not transfer a lease granted under section 31. However, the Commonwealth may, at any time, sublease, licence, part with possession of, or otherwise deal with its interest in the lease.

[49] The only qualification to the power of the Commonwealth to sublease part, or all, of its interest in the land granted to it as a lease under s 31 is that the Commonwealth is required to have regard to any guidelines that may be contained in a legislative instrument made by the Minister under s 35A(2) of the Northern Territory National Emergency Response Act. So that the Commonwealth was granted a broad power to sublease the land provided the sublease was consistent with the objects of Part 4 of the Act, and any guidelines promulgated by the Minister. No such guidelines were referred to the Court by the parties.

[50] It seems to me that the power granted to the Commonwealth was broad enough for the Commonwealth to enter into the periodic Tenancy Agreement with the applicant in accordance with the Residential Tenancies Act. Given that an object of the Residential Tenancies Act is to ensure tenants are provided with safe and habitable premises under tenancy agreements and enjoy appropriate security of tenure, such a tenancy agreement is consistent with both the objects of the Northern Territory National Emergency Response Act and the objects of Part 4 of the Act. There is nothing in the Act which precludes the Commonwealth from doing so. Section 59 of the Northern Territory National Emergency Response Act supports such a conclusion.

[51] Section 4 of the Residential Tenancies Act states, that a "periodic tenancy means a tenancy that is not a fixed term tenancy"; and a "fixed term tenancy means a tenancy for a fixed period specified in the tenancy agreement."

[52] As is apparent from what is set out at [17] and [18] above, the Tenancy Agreement made on 2 July 2010 is plainly a periodic tenancy to which the provisions of the Residential Tenancies Act apply. Under such a tenancy, the applicant is entitled to the protection and benefits of that Act. Under such a tenancy, the applicant is ordinarily entitled to exclusive possession and quiet enjoyment of the land until the tenancy is terminated under s 89 of the Act, or alternatively, s 82 of the Act.

[53] Section 89 of the Residential Tenancies Act states:

A landlord may terminate a periodic tenancy without specifying a ground for the termination by 42 days' notice to the tenant in accordance with s 101.

[54] Relevantly, s 82(1) (d) of the Residential Tenancies Act states:

(d) if a person with superior title to the landlord's title becomes entitled to possession of the premises under an order of the Tribunal;

[55] Further, s 107(1) of the Residential Tenancies Act states:

A person is not entitled, whether under a contract for the purchase of residential premises or a mortgage or otherwise than under this Act, to take possession of residential premises subject to a tenancy agreement so as to defeat the tenant's right to possession under the tenancy agreement, unless an order for possession of the premises is made by the Tribunal.

[56] Consequently, the applicant's interest, which is a periodic tenancy in lot 190 Santa Teresa granted by the Commonwealth, persisted after the expiry of the lease granted to the Commonwealth under s 31 of the Northern Territory National Emergency Response Act. Such a conclusion does not mean that the Residential Tenancies Act has of its own force overridden section 19 of the Aboriginal Land Rights (Northern Territory) Act. The reason this is so is that the applicant's tenancy was granted under s 35(5) of the Northern Territory National Emergency Response Act. Other than those I have mentioned above, there was no restriction on the terms or term of a sublease that the Commonwealth may grant under s 35(5); and the applicant's tenancy was not terminated. As I have stated, the Northern Territory National Emergency Response Act overrode the provisions of s 19 of the Aboriginal Land Rights (Northern Territory) Act. No new interest or tenancy was granted to the applicant upon the expiry of the lease granted to the Commonwealth under s 31. The applicant is an Aboriginal person and the periodic tenancy was granted for her benefit. Further, no significant burden was imposed on the Santa Teresa Land Trust as a result of the continuance of the applicant's tenancy. The applicant's tenancy could have been terminated by the Santa Teresa Land Trust by giving the applicant 42 days' notice in accordance with s 89 of the Residential Tenancies Act. While the Santa Teresa Land Trust was a landlord in accordance with the definition of landlord in s 4 of the Residential Tenancies Act until The Housing Precinct Head Lease commenced, the obligations of the landlord between 17 August 2012 and 21 September 2015, as agreed, were undertaken by the respondent. The respondent is still continuing to undertake those obligations under the Santa Teresa Sublease. In the circumstances, no question of repugnancy or conflict between the Residential Tenancies Act and the Aboriginal Land Rights (Northern Territory) Act arises.

[57] Furthermore, the obligations of the respondent under the Tenancy Agreement made on 2 July 2010 are to be determined in the context of the factual matrix in which the Tenancy Agreement was made. Otherwise, it is difficult to determine the efficacy of making the respondent a Landlord under that agreement. The factual matrix included the Memorandum of Understanding made on 17 September 2007, and the National Partnership on Remote Indigenous Housing. This must be so as the respondent was not a party to the Tenancy Agreement made on 2 July 2010. The Tenancy Agreement was to be executed by the applicant and a person authorised to exercise the powers set out in s 35(5) of the Northern Territory National Emergency Response Act. It is unclear if the respondent was such a person and, in any event, the copy of the Panel Form document at pages 55 to 56 of exhibit R1 is only executed by the applicant.

[58] Under the National Partnership on Remote Indigenous Housing the respondent was effectively given the obligations of the landlord under the Residential Tenancies Act. The respondent's role and obligations under the Tenancy Agreement made 2 July 2010 was to be an agent with the responsibilities and obligations of a landlord under the Residential Tenancies Act save that the respondent was not liable for the acts or omissions of a principal beyond the scope of its authority. Those are the obligations the respondent has performed since 2 July 2010.

[59] By virtue of the agreement referred to in the letter set out at [22] above, it was agreed that the respondent's role as agent, including the obligations of a landlord within the meaning of the Residential Tenancies Act, would continue, and the respondent continued to undertake such obligations after 17 August 2012. That role has since been confirmed by the Santa Teresa Sublease.

[60] Although there has been a substitution of landlords from time to time as a result of the expiry of the lease granted to the Commonwealth under s 31 of the Northern Territory National Emergency Response Act, and the Housing Precinct Head Lease and the Santa Teresa Sublease, at all material times, the 2010 tenancy has persisted by operation of the Residential Tenancies Act.

[61] The tenancy which persisted immediately prior to 21 September 2015 has continued for the reasons set out above. The respondent has not entered into a fresh lease with the applicant and the original periodic tenancy has still not been terminated. Since September 2017 the respondent has continued to manage the premises as a landlord. The respondent:

• (a) conducted a periodic inspection of the premises;

• (b) received, processed and attended to requests for repairs to the premises including contracting with Ingkerreke Outstation Resource Services to provide general housing maintenance services in the town of Santa Teresa and contracting with specialist plumbing and other contract service providers;

• (c) maintained a record of rental arrears (no rental payments were made) until 27 February 2017; and

• (d) since 31 May 2017 (re)calculated, arranged for, took receipt of and maintained records of rental payments.

[62] In summary, after the expiry of the lease granted to the Commonwealth under s 31 of the Northern Territory National Emergency Response Act the Santa Teresa Land has continued to be encumbered by the tenancy granted to the applicant under the Tenancy Agreement made on 2 July 2010. Where it applies, the Residential Tenancies Act carries significant consequences. Those consequences go beyond the regulation of the relationship between landlord and tenant. The tenant is entitled to vacant possession, quiet enjoyment and occupancy. Those entitlements are enforceable not merely against the landlord in the traditional sense but against the whole world, even the true owner.[7]

[63] Question 4 at [5] above, arose in this proceeding because, by way of defence to the respondent's counterclaim under s 122 of the Residential Tenancies Act, the applicant has pleaded an equitable estoppel and there is no express grant of a general equitable jurisdiction to the Tribunal under the Northern Territory Civil and Administrative Tribunal Act.

[64] The relevant grant of jurisdiction of the Tribunal for the purposes of this proceeding is contained in s 8, s 30, s 31 and s 32 of the Northern Territory Civil and Administrative Tribunal Act and s 122 of the Residential Tenancies Act. Section 30 of the Northern Territory Civil and Administrative Tribunal Act states that the Tribunal "has the jurisdiction conferred on it by this or any other Act". Relevantly, s 122 of the Residential Tenancies Act states that the Tribunal may, on the application of a landlord under a tenancy agreement, order compensation for loss or damages suffered by the applicant seeking compensation under s 122 be paid to the applicant by the other party to the agreement because the other party has failed to comply with the agreement or an obligation under this Act relating to the Tenancy Agreement.

[65] As it is s 122 of the Residential Tenancies Act that confers the relevant jurisdiction on the Tribunal, the question becomes what is reasonable and necessary for the determination of an application for compensation under s 122 of the Residential Tenancies Act; and specifically, whether the defence sought to be raised, or a defence of that nature, is reasonable and necessary for that determination. I agree with counsel for the respondent that the test is appropriately taken from the formulation of implied power in the judgement of his Honour Dawson J in Grassby v The Queen.[8] In Pelechowski v Registrar, Court of Appeal (NSW),[9] their Honours Gaudron, Gummow and Callinan JJ noted that "after referring to the proposition that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power, his Honour" Dawson J stated:

It is in this way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts of Westminster. On the other hand, a magistrate's court undoubtedly possesses jurisdiction arising by implication upon the principal that a ground of power carries with it everything necessary for its exercise... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.

[66] Further, as their Honours Gaudron, Gummow and Callinan JJ stated in Pelechowski v Registrar, Court of Appeal (NSW), Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:

whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'.[10]

[67] In Pelechowski v Registrar, Court of Appeal (NSW) their Honours went on to state:[11]

The term "necessary" in such a setting as this is to be understood in the sense given by Pollock CB in Attorney-General v Walker namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in [the relevant legislation]. In this setting, the term "necessary" does not have the meaning of "essential"; rather it is to be "subjected to the touchstone of reasonableness".

[68] It is with this principle in mind that consideration is to be given to s 122 of the Residential Tenancies Act. Consideration is to be given to s 122(3) of the Residential Tenancies Act and the matters set out there in, which involve similar notions to established equitable principles, and to the requirements of s 53 of the Northern Territory Civil and Administrative Tribunal Act including the requirement that the Tribunal must act fairly and according to the substantial merits of the matter that is the subject of the proceeding and the discretionary nature of an award of compensation. In the circumstances, it seems to me that it is reasonably necessary that the Tribunal has jurisdiction to determine if an equitable estoppel arises in defence to the counterclaim pleaded by the respondent or by way of determining what is fair compensation. Particularly, once it is recognised that the applicant's defence is in substance a complaint that it would be unfair to permit recovery of unpaid rent in the circumstances. Any objection to the Tribunal's jurisdiction to hear that complaint cannot be reconciled with the objectives of the Tribunal or the conferral of jurisdiction under s 122 of the Residential Tenancies Act.

[69] Consequently, I determined that the Tribunal has an implied jurisdiction to determine whether any estoppel pleaded by the applicant in response to the respondent's counterclaim arises or not.

[70] Having answered the questions as set out at [7] above, and dealt with the provisions of the Aboriginal Land Rights (Northern Territory) Act, it seemed to me that the matter conveniently fell for consideration by the Tribunal, which Parliament has determined is the appropriate Tribunal to determine claims made under the Residential Tenancies Act.

[1] Cavanagh v Chief Executive Officer (Housing) (No. 4) [2017] NTCAT 240 at [94].

[2] [2016] NTCAT 326.

[3] [2016] NTCAT 461.

[4] [2017] NTCAT 240.

[5] Aboriginal Land Rights (Northern Territory) Act, s 3(i).

[6] [2016] NTCAT 326.

[7] Residential Tenancies Act 1999 (NT), s 107(1).

[8] [1989] HCA 45; (1989) 168 CLR 1 at 16 to 17.

[9] [1999] HCA 19; (1999) 198 CLR 435 at [50]; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16 to 17.

[10] Ibid; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 17.

[11] [1999] HCA 19; (1999) 198 CLR 435 at [51].