CROKER v PERKS & Anor

Supreme Court of NSW|1999-07-14|Before: Barr J

New South Wales Supreme Court CITATION : CROKER v PERKS & Anor [1999] NSWSC 752 CURRENT JURISDICTION : Administrative Law List FILE NUMBER(S) : 30003/99 HEARING DATE(S) : 14 July 1999 JUDGMENT DATE : 14 July 1999

Clayton Robert CROKER (Plaintiff) v PARTIES : Edward PERKS (First Defendant)

LOWER COURT JURISDICTION : Residential Tenancies Tribunal LOWER COURT FILE NUMBER(S) : 98/36532 LOWER COURT JUDICIAL OFFICER :

COUNSEL : Plaintiff: In Person First Defendant: E Olsson Plaintiff: In Person SOLICITORS : First Defendant: Christine Turnbull Solicitor Second Defendant: Australian Government Solicitor CATCHWORDS : CASES CITED : Residential Tenancies Tribunal Act 1987 ss 3, 6, 52, 53, 64, 65, 80, 83, 107 and 110. DECISION : Summons dismissed; The plaintiff must pay the costs of the first defendant in an amount to be agreed or assessed.

THE SUPREME COURT REVISED OF NEW SOUTH WALES ADMINISTRATIVE LAW LIST

30003/99 - CLAYTON ROBERT CROKER v EDWARD PERKS & ANOR

JUDGMENT 1 HIS HONOUR: By his summons filed on 11 January 1999, the plaintiff seeks against the first defendant, Edward Ernest Perks the following orders:

An order that personal property in detention be returned. 2. The order of the Residential Tenancies Tribunal be set aside. 3. The sum of $100,000.00. 4. Damages. 2 The summons was amended pursuant to directions made by the Administrative Law List Judge to add the Residential Tenancies Tribunal as a defendant. The Tribunal has filed an appearance and submits to the orders of the Court save as to costs. 3 According to the evidence of the first defendant, which I accept as accurate and truthful, he is and was at all material times a part owner and the manager of premises at 33 Cooper Street, Surry Hills. The premises contain fifteen rooms which are available for occupation on a weekly basis. There is no minimum or maximum time set for which a person can stay. No written agreement is entered into by any person staying in a room. The first defendant keeps a key to each of the rooms and enters them as necessary to check on their cleanliness. Most rooms are cleaned weekly and common areas are cleaned daily. A person wishing to stay pays a fee for the room and is provided with sheets, bedding, pillows, pillow slips and a towel. There are two kitchens and three bathrooms which are shared by all the occupants of the rooms. Each person taking a room is shown a list of house rules. 4 The first defendant has an office on the premises and he is present there between 8.30am and 6.30pm on each weekday and at other times on Saturdays. 5 I accept that this was the state of affairs during the time leading to the events complained of by the plaintiff. 6 On 9 September 1998 the plaintiff went to see the first defendant and asked whether there was a room available. The first defendant told him that there was at $100 per week. He explained about the supply of sheets and the like and about the rules for sharing the kitchen and the bathroom. He told the plaintiff about the cleaning arrangements and gave him a printed list of rules. One of the rules was as follows: 12. Tenancy - Your room is let on a casual basis. Occupation may be terminated at any time by either party for any reason. 7 The rules were set out under a heading including the words Moira Private Hotels. 8 I accept the evidence of the first defendant that the plaintiff stayed in the premises for about ten weeks and paid each week the amount he was required to pay. 9 On 12 November 1998 his rent was due for payment and the first defendant asked the plaintiff where his rent was. The plaintiff said that he could not pay. Later on the same day, the first defendant handed the plaintiff a Notice to Pay. It was dated 12 November 1998 and set out certain material before stating: Your rent is overdue and must be brought up to date by paying $100 on or before 19.11.98.

Should you fail to meet this request your room will be emptied of all personal belongings and stored at your cost. On payment of outstanding monies your goods will be returned. 10 The Notice was signed by the first defendant. 11 Six days later the first defendant again asked the plaintiff to pay rent and the plaintiff said that he was too busy to see the first defendant. 12 Two days later the plaintiff put a note under the first defendant's office door. The substance of it stated that the plaintiff had consulted the Department of Fair Trading and had been advised that the first defendant had to give sixty days' notice requiring the plaintiff to leave the premises. The note threatened or promised to call the police if the first defendant attempted to evict the plaintiff. When he received the note the first defendant opened the door and found the plaintiff on the other side. He told him that he would have to leave and the plaintiff refused. 13 Later that day the police arrived at the request of the first defendant and escorted the plaintiff from the premises. 14 Before the plaintiff left the premises, the first defendant told him to take all his belongings but the plaintiff said that he could not take them all and that he had nowhere to put them. The first defendant said that he would store them at the premises and that the plaintiff could leave them there for a week until he found somewhere else to put them. 15 The plaintiff, the first defendant and the attending police officers moved the plaintiff's goods into a room adjoining the one the plaintiff had occupied. The first defendant locked the room, put the key in an envelope and had the plaintiff sign his name on the envelope. That was done in the presence of the police and at their suggestion. 16 Thereafter the plaintiff did not return for his belongings and the first defendant was obliged to move them to storage in another building. 17 The first defendant has provided the Court with an inventory of the goods dealt with in that manner. 18 The plaintiff made a complaint to the second defendant, the Tribunal. 19 During the hearing of the claim on 4 December 1998, the first defendant asked the plaintiff what he wanted to do about his belongings. The plaintiff refused to talk about them. 20 The Tribunal is constituted by s 80 of the Residential Tenancies Act 1987. By s 83 it has such jurisdiction as is conferred and such functions as are conferred or imposed on it by or under the Act or any other Act. 21 By subs (3) it has jurisdiction in respect to the claim by a landlord or a tenant under a rental tenancy agreement in respect of a rental bond. 22 There are various means by which a party to an agreement by which premises are occupied may bring a claim before the Tribunal. For example, by s 52 a landlord shall not willingly contravene or fail to comply with an order that a tenant's rent shall not exceed an amount specified by the Tribunal. S 53 provides for the termination of rental tenancy agreements. S 64 provides for applications by landlords for orders terminating tenancies and ordering possession. S 65 provides for the suspension or refusal of orders for termination. So far as the present case is concerned, it is in respect of rental tenancy agreements that the Tribunal has jurisdiction. The term "rental tenancy agreement" is defined in s 3 of the Act as follows: residential tenancy agreement means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence:

(a) whether or not the right is a right of exclusive occupation,

(b) whether the agreement is express or implied, and

(c) whether the agreement is oral or in writing, or partly oral and partly in writing, 23 The definition continues: and includes such an agreement granting the right to occupy residential premises together with the letting of goods. 24 It is not all occupied premises which come within the purview of the Act. S 6 of the Act provides that: This Act does not apply to a residential tenancy agreement … (d) if the tenant is a boarder or a lodger. 25 By subs 2(b) the Act does not apply to any part of a hotel or motel. 26 The precise nature of the complaint made by the plaintiff to the Tribunal has not been put into evidence in this Court. However, the Court has a document issued by the Tribunal on 7 December 1998 entitled "Notice of Order". Relevantly, that document says this: The application is dismissed because:

Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. The premises operate as a boarding house and the Tribunal has no jurisdiction. 27 By s 111 of the Act no appeal lies from an order of the Tribunal except as provided by ss 107 and 110. 28 S 110 has no application here because it deals with applications by parties to proceedings before the Tribunal for orders varying or setting aside orders made in proceedings before the Tribunal. The intention is that those applications be heard and determined by the Tribunal itself. 29 By s 107(2) an appeal applies to this Court if in the proceedings before the Tribunal the Tribunal decides a question with respect to a matter of law. A party to the proceedings who is dissatisfied with the decision may appeal to the Supreme Court against the decision. 30 There is no provision for an appeal against a finding of fact. 31 Of course, a finding of fact without evidence itself constitutes an error of law. However, the plaintiff in argument before this Court conceded that there was evidence from the first defendant before the Tribunal to the same effect as was given here, namely, that the premises were occupied as a boarding house. It was submitted, nevertheless, that the Tribunal ought not to have come to that conclusion because the evidence was untrue. 32 It seems to me that the Court has no power to enquire into the process by which the Tribunal decided to accept the evidence before it that the premises was occupied as a boarding house. 33 The Tribunal having reached that finding, the conclusion which rested upon it that it lacked jurisdiction seems to me to have been inevitable in view of the provisions of s 6(1)(d) of the Act. 34 The plaintiff's claim to have the Tribunal's determination set aside fails. 35 The plaintiff claims the return of his goods. I accept the evidence of the first defendant which I have summarised above and the effect of which is that the plaintiff has had a number of opportunities to remove his goods from the places where the first defendant has kept them. I am satisfied that he has not received his goods because he has failed to make reasonable arrangements to collect them. The first defendant makes no claim to them and they continue to be available for the plaintiff to collect if he will only assert his reasonable rights. 36 In these circumstances no occasion arises for the Court to make any order for the return of personal property. 37 The plaintiff makes a claim for damages. Insofar as his claim rests upon any challenge to the Tribunal's determination or on the assertion that the first defendant has detained his goods, it fails for reasons which I have already explained. 38 In an affidavit sworn on 3 March 1999 the plaintiff asserted a large number of facts in support of his claim for damages. He said that the premises were of poor condition and very untidy, that persons who took drugs came to the premises from time to time and that the indicia of drug use were found upon the premises from time to time and that on one occasion people broke into the premises. The plaintiff asserts that he was obliged to call in the police to see to these matters but that they would not assist him. 39 The plaintiff asserts that the Notice of Demand for rent amounted to demanding money with menaces constituting a crime. He asserts that on an occasion when they spoke about rent, the first defendant assaulted him by pushing him in the chest. He asserts that the entry by the first defendant into the plaintiff's room on occasions constituted some kind of entry with criminal intent. He asserts that correspondence passing between the first defendant and the plaintiff amounted to false representation or the use of a false instrument constituting criminal offences. There is no substance in any of these assertions. 40 The plaintiff claims to have suffered damage by interruption to his law studies and in other ways. I am not satisfied that the plaintiff has suffered damage at all, but if he has I am satisfied that it has not been occasioned by anything done or neglected to be done by the first defendant. 41 The plaintiff's claim for damages fails. 42 The summons is dismissed. 43 The plaintiff must pay the costs of the first defendant in an amount to be agreed or assessed. **********

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Judgment (15 paragraphs)

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Cited By (3)