Kings v Chand

Grounds of appeal

1. Mr Kings has a right to appeal against the decision under appeal as of right on any question of law: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). In addition, the Appeal Panel may grant Mr Kings leave to appeal if satisfied, as he asserts, that he may have suffered a substantial miscarriage of justice because the decision under appeal was against the weight of evidence: s 80(2)(b) and cl 12 of Sch 4 to the NCAT Act.
2. We understand the grounds of appeal that Mr Kings asserts raise questions of law are: 1. Whether the Tribunal misapplied the EPA Act in concluding that an "occupation certificate" was required to be, and had not been, issued in respect of the subject premises, before the commencement of the agreement. 2. Whether, the Tribunal misapplied the EPA Act and the Residential Tenancies Act in deciding that Mr Kings had contravened s 49(1) of the Residential Tenancies Act. 3. Whether, the Tribunal erred in deciding that the agreement was void for illegality.
3. Mr Kings seeks leave to appeal on the ground that the decision made by the Tribunal that the agreement was illegal, was against the weight of evidence.

Conduct of the appeal

1. The written submissions filed by Mr Kings in support of the appeal bore little resemblance to the oral submissions he made in the course of the appeal hearing. Apparently, the written submissions were prepared by a legal practitioner who did not attend the hearing. Mr Kings had been given leave to be legally represented. When we sought clarification from Mr Kings about aspects of the written submissions, neither he nor the agent who assisted him in the appeal were able to provide us with any assistance. It was apparent that neither Mr Kings nor the agent understood the contentions made in the written submissions about the proper interpretation of the EPA Act and the Residential Tenancies Act.
2. In determining the appeal we did not have regard to the oral submissions made by Mr Kings, which departed from the grounds of appeal set out in the Notice of Appeal and the submissions filed in support of the Appeal. To do so would have required Mr Chand to address matters of which he had not been given notice.

Decision under appeal

1. In its reasons for decision at [11], the Tribunal identified the "threshold issue" as being whether there was an "unlawful tenancy". The Tribunal considered that the answer to that question turned on whether, prior to 10 July 2018, Mr Kings had obtained an occupation certificate under the EPA Act in respect of the subject premises.
2. In considering the question of whether an occupation certificate had been issued in respect of the subject premises prior to the commencement of the agreement, the Tribunal had regard to the following documents: 1. An occupation certificate issued in respect of the property on 30 May 2016. 2. A Complying Development Certificate issued on 30 May 2018 by Brendan Bennett, City Plan P/L. 3. An application made by Mr Kings on 31 October 2018 for an occupation certificate in respect of the subject premises. 4. An email sent on 20 November 2018 by Brendan Bennett to Mr Kings. 5. A "positive covenant" issued under s 88E(3) of the Conveyancing Act 1919 (NSW). Registered on 7 December 2018, the covenant required Mr Kings to submit to the Council annual fire safety statements whilever the property is "used for the purpose of a secondary dwelling". 6. An email sent by the Council's Development Compliance Officer on 7 December 2018 to Mr Bennett, stating: To date, Camden Council has not received an occupiers certificate. As no response has been forthcoming from previous correspondence, I will now issue a Notice of Proposed Order pursuant to Environmental Planning and Assessment Act 1979 (NSW) as no occupation certificate has been received for the occupation of the secondary dwelling at 54A The Straight, Oran Park. 1. An occupation certificate issued by the Council on 20 December 2018 in respect of the property.
3. The Tribunal found at [16] that there was "not an occupancy certificate during the tenancy" stating that "the issuing of an occupation certificate for the fire door affects the safety of the occupier and is a legal impediment to the tenancy". The Tribunal reasoned at [13]-[15]: 13 The report of 20 November, 2018 by Brendan Bennett of City Plan Services P/L states that a complying development certificate dated 17 May, 2018 granted consent for "use of part of existing dwelling house for a secondary dwelling". In the second paragraph of the report it states that "the existing dwelling was originally constructed in a manner to facilitate two separate domiciles that were separated and interconnected internally through a fire rated passage door". The report then states that, "The certification of the dwelling and the associated occupation certificate were issued by others. In this regard occupancy was previously granted and from my inspections I was aware that the property was being occupied". 14 One of the issues with the issuing of the occupation certificate appears to have concerned the existing fire separation between the dwellings. The report of City Plan in the second last paragraph states, "I have conducted an inspection of the property and I am satisfied that the fire separation is in accordance with the Building Code of Australia and the approved FER. I am satisfied that I could issue an OC (occupation certificate) upon receipt of evidence showing registration of the positive covenant on title. The report is dated 20 November, 2018 and is after the tenant had vacated. The report in my view suggests that an occupation certificate had not been issued on 20 November, 2018 for the fire separation door and was awaiting the documentation signed by Camden Council and is pending lenders concurrence prior to lodgement with NSW Land Registry. Then on 20 December, 2018 an occupation certificate was issued by City Plan. 15 The fire separation door is a safety requirement for the tenant in the event of a fire. There is no documentary evidence of an occupational certificate during the tenancy apart from City Plan stating others had issued an occupation certificate. No documentary evidence was provided of those occupation certificates. The evidence suggesting that there was no occupation certificate during the tenancy is supported by the evidence of the tenant in his email of 2 January, 2019 "the council had already mentioned to me that it wasn't council approved nor any occupation [al] (sic) issued for my tenancy…" The tenant states that he contacted the Property Manager, Lenita Jannar, at the Real Estate about a week into the tenancy and was told that "I am not suppose (sic) to be telling you this but the granny flat is not council approved and there is still work going on." The tenant was not cross-examined by the respondent in regards to this statement by Ms Jannar nor was any statement provided from her to dispute this conversation. A notice of the commencement of building works was signed on 18 May, 2018. An occupation certificate was applied for by the respondent on 31 October, 2018 and is contained in Exhibit R1. Further, there were works continuing while the tenant remained at the property. The final occupation certificate was not issued until 20 December, 2018. The email from Craig Bridge, Development Compliance Officer, Camden Council dated, 7 December, 2018 states, "To date, Camden Council has not received an Occupiers Certificate". Exhibit R1.
4. The Tribunal went on to conclude at [17] that the agreement was "void ab initio" and that Mr Chand was required to "vacate the premises, thereby bringing the tenancy to an end". The Tribunal ordered Mr Kings to reimburse Mr Chand for rent and charges for utilities paid under the agreement. In addition, the Tribunal dismissed Mr Kings' claims for compensation including a claim for Mr Chand's alleged abandonment of the tenancy.

Did the Tribunal misapply the EPA Act in concluding that an occupation certificate was required to be, and was not, issued in respect of the subject premises before the commencement of the agreement?

Purported misapplication of s 109M(2)(b) of the EPA Act

1. Mr Kings submits that in concluding that an occupation certificate had not been issued permitting occupation of the subject premises, prior to the commencement of the agreement on 10 July 2018, the Tribunal failed to apply s 109M(2)(b) of the EPA Act.
2. "Certifying authority" Robert Krupman issued an occupation certificate in respect of the property on 30 May 2016. Under the heading "Details of Development" the certificate recorded the "Description of Work" as "Construction of a single-story dwelling". Mr Krupman certified that "the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia as a Class 1a building". At the relevant time, the Building Code of Australia defined a Class 1a building as "a single dwelling being a detached house".
3. The version of the EPA Act in effect when the 2016 occupation certificate was issued, provided that a person must not commence occupation or use of the whole or any part of a new building unless an occupation certificate has been issued in relation to the building or part thereof: s 109M(1). That prohibition did not apply to the occupation or use of a new building after the expiration of 12 months after the date on which the building was first occupied or used: s 109M(2)(b).
4. Mr Kings points out that the subject premises were first occupied in August 2016 when leased to a third party, who remained in the premises until June 2018. Mr Kings asserts that by the operation of s 109M(2)(b) of the EPA Act, as a consequence of the former tenant's occupation of the subject premises between August 2017 (12 months after the date the property was first occupied) and June 2018, notwithstanding that an occupation certificate had not been issued in respect of the subject premises, Mr Chand's occupation of the subject premises was permitted.
5. That submission fails to take into account the amendments to the EPA Act made by the Environmental Planning and Assessment Amendment Act 2017 (NSW), which came into effect on 1 March 2018. That Act amended s 109M to become s 6.9 of the EPA Act. The EPA Act as amended, did not contain an equivalent provision to s 109M(2)(b). Section 6.9 states: 6.9 Requirement for occupation certificate (cf previous ss 109H (1), 109M, 109N) (1) An occupation certificate is required for: (a) the commencement of the occupation or use of the whole or any part of a new building, or (b) the commencement of a change of building use for the whole or any part of an existing building. (2) However, an occupation certificate is not required: (a) for the commencement of the occupation or use of a new building: (i) for any purpose if the erection of the building is or forms part of exempt development or development that does not otherwise require development consent, or (ii) that is the subject of a compliance certificate in circumstances in which that certificate is an authorised alternative to an occupation certificate (such as a swimming pool or altered part of an existing building), or (iii) by such persons or in such circumstances as may be prescribed by the regulations, or (iv) that has been erected by or on behalf of the Crown or by or on behalf of a person prescribed by the regulations, or (b) for the commencement of a change of building use for the whole or any part of an existing building: (i) If the change of building use is or forms part of exempt development or development that does not otherwise require development consent, or (ii) by such persons or in such circumstances as may be prescribed by the regulations, or (iii) if the existing building has been erected by or on behalf of the Crown or by or on behalf of a person prescribed by the regulations. (Emphasis added.)
6. The 2016 occupation certificate permitted occupation of the property as a "single dwelling". It did not permit occupation of the subject premises as a separate dwelling.
7. Section 6.9(1) provided that an occupation certificate was required for "the commencement of a change of building use for the whole or any part of an existing building". Section 1.4 of the EPA Act defined "change of building use" to mean a change of use of a building from a use that the Building Code of Australia recognises as appropriate for one class of building to a use that the Building Code of Australia recognises as appropriate for a different class of building". On 17 May 2018, a complying development certificate was issued authorising a change of use of the property, from use as a single dwelling to use "of part of existing dwelling house for secondary dwelling".
8. Mr Kings does not assert, and the available material does not suggest, that any of the exemptions to the requirement for an occupation certificate listed in s 6.9(2) of the EPA Act apply. It follows that s 6.9(1) of the EPA Act required an occupation certificate for the subject premises.
9. The contention that s 109M(2)(b) of the EPA Act permitted occupation of the subject premises in July 2018, is rejected.

Purported failure to take into account the effect of the 2018 complying development certificate

1. The alternative submission made by Mr Kings is that in concluding that the EPA Act required that he obtain an occupation certificate in respect of the subject premises before the commencement of Mr Chand's tenancy, the Tribunal failed to take into account the complying development certificate issued on 17 May 2018.
2. As noted at [21], that certificate authorised a change of use to the property. In that certificate, certifying authority Brendan Bennett recorded: Proposal … Scope of work covered by the certificate Use of part of existing dwelling house for secondary dwelling … Value of Complying Development Certificate Nil (Change of use) … Consent is to operate from: 17 May 2018 … Value of Complying Development Nil (change of use) Certificate
3. The complying development certificate was issued under the State Environmental Planning Policy (Affordable Rental Housing) 2009, which defines "secondary dwelling" at cl 19 to mean a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling.
4. The complying development certificate issued in 2018 authorised the use of the subject premises as a "secondary dwelling". As stated above, s 6.9(1)(b) required an occupation certificate for the "commencement of a change of building use for the whole or any part of an existing building". The 2018 complying development certificate authorised a change of use of the property from use as a single dwelling to use of the part of the property, namely the subject premises, as a separate dwelling. The issue in 2018 of the complying development certificate did not obviate the need for an occupation certificate.
5. An issue in dispute between the parties at first instance and on appeal was whether, prior to the commencement of the agreement and throughout Mr Chand's tenancy, the separating wall between the main premises and the subject premises complied with the fire safety requirements of the Building Code of Australia and the Environmental Planning and Assessment Regulation 2000 (NSW). Mr Kings asserted that the subject premises were "fire safety compliant". Mr Chand disagreed.
6. Whether at the commencement of the agreement, the relevant fire safety requirements had or had not been complied with, is irrelevant to the question of whether an occupation certificate was issued in respect of the subject premises prior to the commencement of the agreement. Mr Kings did not apply for an occupation certificate in respect of those premises until 31 October 2018, after Mr Chand had vacated the subject premises. An occupation certificate was not issued in respect of the subject premises until 20 December 2018.
7. The contention that the Tribunal erred by finding that the issue of the complying development certificate did not obviate the requirement for an occupation certificate in respect of the subject premises, is rejected.

Did the Tribunal misapply the EPA Act and the Residential Tenancies Act in deciding that Mr Kings contravened s 49(1) of the Residential Tenancies Act?

1. It is implicit from its reasons at [17] that the Tribunal found that Mr Kings had contravened s 49(1) of the Residential Tenancies Act. Section 49 states: 49 Occupation of residential premises as residence (1) A landlord must take all reasonable steps to ensure that, at the time of entering into the residential tenancy agreement, there is no legal impediment to the occupation of the residential premises as a residence for the period of the tenancy. …. (3) This section is a term of every residential tenancy agreement.
2. Section 49(1) required the Tribunal to decide whether Mr Kings took all reasonable steps to ensure that at the time of entering into the agreement there was no legal impediment to the occupation of the subject premises. As discussed, the EPA Act required Mr Kings to obtain an occupation certificate before the subject premises could lawfully be occupied as a secondary dwelling. Whether, as he claims, Mr Kings held the honest belief that the subject premises could be lawfully occupied when he entered into the agreement, is not to the point. The task of determining whether a landlord has taken "all reasonable steps" to comply with the obligation imposed by s 49(1) requires the decision-maker to undertake an objective not subjective evaluation. In any event, as Mr Kings concedes, he was aware there was a problem with using the subject premises as a separate dwelling and for that reason had commenced proceedings against the Council in the NSW Land and Environment Court. According to Mr Kings, he reached an agreement with the Council but could not disclose its terms because of a confidentiality undertaking. Obtaining an occupation certificate was a reasonable step in ensuring that at the time of entering into the agreement there was no legal impediment to the occupation of the subject premises. It follows that as a consequence of his failure to obtain an occupation certificate, Mr Kings contravened s 49(1) and breached a term of the agreement.
3. Clause 13.2 of the agreement states:
4. The Landlord agrees to take all reasonable steps to ensure that, at the time of signing this agreement, there is no legal reason why the premises cannot be used as a residence for the term of this agreement.
5. The contention that in finding that Mr Kings contravened s 49(1), the Tribunal misapplied that provision, is rejected.

Did the Tribunal err in deciding that the agreement was void and unenforceable?

1. The Tribunal reasoned at [17] that the absence of an occupation certificate rendered the agreement "void ab initio": 17 I am satisfied that the absence of an occupation certificate for the property during the tenancy, included the fire resistant separation door and this was a legal impediment at the commencement of the tenancy and was not remedied at the time of the City Plan Occupation Certificate on 20 December, 2018. I find that the residential tenancy agreement is void ab initio. Where there is a finding pursuant to Section 49 of the RTA, the tenant is required to vacate the premises, thereby bringing the tenancy to an end. The tenant had vacated the property before the issuing of the occupation certificate.
2. Mr Kings contends that even if it is accepted that he had contravened s 49(1) of the Residential Tenancies Act, the agreement was not void and unenforceable, citing in support Gnych v Polish Club Limited [2015] HCA 23; 255 CLR 414 ("Gynch"); ZID v Green [2018] NSWCATAP 198 ("ZID"); Murphy v Pitt [2017] NSWCATCD 44.
3. In Gynch, the respondent Club leased part of its licenced premises to the appellants Mr and Mrs Gynch without the approval of the Independent Liquor and Gaming Authority as required by s 92(1) of the Liquor Act 2007 (NSW). The High Court rejected the contention that the Club's contravention of s 92(1)(d) of the Liquor Act rendered the lease void and unenforceable.
4. In ZID the Appeal Panel (Senior Members P Durack SC and P Boyce) usefully summarised at [77]-[81] the principles in Gynch governing the determination of the question of whether an agreement is prohibited by statute, and if so, whether that agreement is unenforceable for statutory illegality: … Secondly, there are two sources from which the effect of illegality is to be determined, namely the relevant statute(s) and the common law. Even if a statute does not expressly or impliedly deny legal operation to an agreement, the common law might intervene to refuse to enforce the agreement, more commonly in modern times, on the basis that a person ought not to be assisted by the law to benefit from an illegal act: per Gageler J in Gynch at [62], [70], [71], [73] and [74]. Thirdly, whilst, perhaps, not comprehensive, the effect of illegality can be considered by reference to the categories identified by the plurality in Gynch as follows (at [35] and per Gageler J at [59] - [60]): In Equuscorp Pty Ltd v Haxton, French CJ, Crennan and Kiefel JJ explained that an agreement may be unenforceable for statutory illegality in three categories of case, where: "(i) the making of the agreement or the doing of an act essential to its formation is expressly prohibited absolutely or conditionally by the statute; (ii) the making of the agreement is impliedly prohibited by statute. A particular case of an implied prohibition arises where the agreement is to do an act the doing of which is prohibited by the statute; (iii) the agreement is not expressly or impliedly prohibited by a statute but is treated by the courts as unenforceable because it is a 'contract associated with or in the furtherance of illegal purposes'. In the third category of case, the court acts to uphold the policy of the law, which may make the agreement unenforceable. That policy does not impose the sanction of unenforceability on every agreement associated with or made in furtherance of illegal purposes. The court must discern from the scope and purpose of the relevant statute 'whether the legislative purpose will be fulfilled without regarding the contract or the trust as void and unenforceable'." (footnotes omitted). Fourthly, whichever category applies, there remains the question of statutory construction as to whether it is the legislative intention that a contract prohibited by statute or associated with an illegal purpose is void and unenforceable: Gynch, plurality at [36] - [39] and per Gageler J at [77]. There is no reason why an implied statutory consequence cannot stop short of what can be seen as a "blunt and drastic rule" to render all contracts unenforceable in all circumstances: per Gageler J at [65] and [82]. Fifthly, two particular factors that militate against a statutory implication of nullification of contracts are: (1) The adverse effect of such a consequence on innocent parties: Gynch at [45] (although, the importance of this factor in the circumstances addressed in Gynch was not accepted by Gageler J because of the ability of the innocent party to ascertain the details of the regulatory regime before entering into the lease, amongst other matters). (2) The provision in the statute of other means to sanction and remedy the illegality apart from nullification of agreements. This diminishes the need for nullification and can lead to incoherence or inconsistency in the law if nullification were to be imposed: Gynch at [47] - [57] and per Gageler J at [83].
5. In ZID, in contravention of (the then) s 76A of the EPA Act, the respondent landlord converted the downstairs portion of a house into a "granny flat" without obtaining development consent. Subsequently, the respondent landlord and the appellant tenant entered into an agreement made under the Residential Tenancies Act. The Appeal Panel concluded that the EPA Act neither expressly nor impliedly prohibited the making of the tenancy agreement: at [86] and [88]. In concluding that the EPA Act did not impliedly prohibit the making of that agreement, the Appeal Panel reasoned that the agreement was not an agreement for "doing an act prohibited under s 76A": at [88]. The Appeal Panel considered it relevant that the consent authority had not exercised its discretionary power to order that the use of the flat cease. (In the version of the EPA Act considered by the Appeal Panel, s 121B(1) gave the relevant consent authority a discretionary power to order the owner to cease using the premises for purposes for which development consent was required but not obtained.)
6. The making of the agreement the subject of this appeal was not expressly prohibited by the EPA Act. Without the benefit of considered argument we are reluctant to express a concluded view on whether the making of the agreement was impliedly prohibited.
7. In any event, even if the making of the agreement was impliedly prohibited by the EPA Act, for largely the reasons given by the Appeal Panel in ZID at [90], on the proper construction of that Act it cannot be said that an implied statutory consequence of the prohibition on making that agreement rendered the agreement void and unenforceable.
8. The Tribunal erred in determining that the agreement was void and unenforceable. The Appeal is allowed in part.

Disposition of the appeal

1. Rather than remitting the determination of Mr Kings' claims for recovery of rent, payment of utilities, a break lease fee and other compensation, we have decided to determine those claims. (Mr Chand's claim for compensation for the alleged loss of quiet enjoyment of the subject premises was determined and dismissed by the Tribunal. That decision is not the subject of appeal.)

Order reimbursing Mr Chand for payment for rent and utilities

1. Given our finding that the agreement was not void and unenforceable, it follows that Order 1 made by the Tribunal that Mr Kings pay Mr Chand $5,200 being the amount paid by Mr Chand for rent, water usage and gas from 10 July 2018 to 5 October 2018, must be set aside.
2. In his application lodged with NCAT on 15 October 2019, Mr Kings claimed a "break fee" of an amount equivalent to six weeks rent on the ground that Mr Chand had abandoned the property. Section 107(1) of the Residential Tenancies Act provides that the Tribunal may, on application by a landlord, order a tenant to pay compensation to the landlord for any loss (including loss of rent) caused by the abandonment of the residential premises by the tenant. Where, as in this case, the purported abandonment occurred in the first half of a fixed term agreement, the break fee payable by the tenant is an amount equal to six weeks rent: s 107(4)(b) of the Residential Tenancies Act.
3. The conclusion reached by the Tribunal that Mr Kings breached cl 13.1 of the agreement was not disturbed on appeal. It follows that Mr Chand was entitled to give a termination notice to Mr Kings on the ground that Mr Kings had breached a term of the agreement: s 98(1) of the Residential Tenancies Act. Mr Kings was required to specify in that notice a termination date which was not earlier than 14 days after the day on which the notice was given: s 98(2).
4. Mr Chand gave Mr Kings a termination notice on 3 October 2018. The notice nominated 17 October as the termination date. Rent was paid up to 15 October 2018 (see reasons at [18]). It follows that Mr Chand was in arrears of rent in the amount of two days rent ($107.14).

Order dismissing all claims

1. Having found that the agreement was void and unenforceable, in addition to dismissing Mr Kings' claims for compensation under s 107 of the Residential Tenancies Act, the Tribunal dismissed Mr Kings' claims totalling $266.30 for water, electricity and gas use, and "weeding $80".
2. With respect to the claim for compensation for "weeding", Mr Kings did not take us to any reliable material to support the proposition that he incurred costs of $80 because of Mr Chand's breach of a term of the agreement and/or that the costs claimed to have been incurred to remedy the purported breach were reasonable.
3. With respect to the claim for water, electricity and gas, we find that at the date he vacated the subject premises, Mr Chand had incurred charges of $266.30 for use of those utilities. Mr Chand had not paid for those charges.
4. We order: 1. The Appeal is allowed. 2. Order 1 made by the Tribunal on 28 February 2019 is set aside. 3. Order 2 made by the Tribunal on 28 February 2019 is confirmed. 4. Order 3 made by the Tribunal on 28 February 2019 is set aside and in substitution we order: Within 14 days Mr Chand must pay to Mr Kings $909.15 for failure to give 14 days' notice of the date of termination of the agreement ($642.85) and charges for water, electricity and gas ($266.30). All other claims are dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 08 August 2019 - The text of the notice of decision and statement of reasons issued on 17 July 2019 contain an "obvious error" within the meaning of s 63(1) of the Civil and Administrative Tribunal Act 2013 (NSW). Amendments have been made to Order 4 and paragraph [48]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2019