Kwok v NSW Land and Housing Corporation

Background

1. The second respondent, Mr Davison, now 89 years of age, leased premises at Marrickville from the Corporation under a residential tenancy agreement which commenced on 29 March 2010.
2. Ms Kwok occupied those premises from time to time but was never a tenant.
3. On 29 December 2017 Mr Davison was admitted to the Wallgrove Aged Care Facility at Lakemba NSW after suffering a serious stroke.
4. In the opinion of Dr R S Malik, set out in a report dated 2 February 2019, Mr Davison has, since suffering the stroke, required 24 hrs per day supervised care for all of his activities of daily living due to his co-morbidities, and was not a suitable candidate to be cared for at home unless there was 24 hr per day professional nursing care provided. No such nursing care has been or is contemplated to be provided to Mr Davison at the premises.
5. On 2 January 2018 orders were made by the Tribunal (in other proceedings) pursuant to s 25E and 25M of the Guardianship Act 1987 (NSW) ("GA"). In those proceedings the Tribunal ordered that the estate of Mr Davison be subject to management under the NSW Trustee and Guardianship Act 2009 (NSW) ("TAGA"), and that management of Mr Davison's estate was committed to the NSW Trustee and Guardian (the "Trustee").
6. The "estate" referred to in those orders is defined in s 38 of the GA to be the "property and affairs of a protected person".
7. Those orders having been made, Mr Davison became a "protected person" as defined in s 38 of the GA.
8. Under the TAGA the Trustee is authorised to exercise what is called "protective capacity". Section 3 of the TAGA defines "protective capacity" as: "a capacity exercised by the NSW Trustee under this Act in relation to managed persons or the management of their estates."
9. Section 16 of the TAGA authorises the Trustee to exercise a number of functions when acting in a protective capacity. One such function is the surrender of leases - s 16(1)(d).
10. The Trustee may also execute documents on behalf of a protected person when exercising a function in a protective capacity. Section 58 of the TAGA provides: 58 Execution of documents for managed persons (1) The NSW Trustee may execute and sign any document in the name of and on behalf of a managed person for the purpose of exercising a function in a protective capacity. (2) An exercise of a function by the NSW Trustee under this section: (a) is as effective as if it were exercised by the managed person, and (b) to the extent to which that person lacks capacity to exercise the function, is as effective as if the person did not lack capacity.
11. On 3 April 2018, and exercising its statutory authority as set out above, the Trustee entered into a Care and Accommodation Agreement Permanent Residential Care with DPG Services Pty Ltd (which, it appears, is the operator of the Wallgrove Aged Care Facility referred to earlier) for the accommodation and care of Mr Davison.
12. On 29 October 2018, as Mr Davison did not then need, nor was expected to need for the balance of his life, the premises he leased from the Corporation, and exercising its authority under ss 16 and 58 of the TAGA, the Trustee executed a document headed "Relinquishment of Tenancy Consent" (the "Relinquishment") on behalf of Mr Davison in relation to the leased premises.
13. That document provided that Mr Davison's residential tenancy agreement with the Corporation was (agreed to be) terminated on 4 October 2018.
14. The tenancy having been terminated by agreement, the Corporation sought possession of the premises. Ms Kwok, an occasional occupant of the premises, refused to vacate the premises.
15. Accordingly, the Corporation served a notice pursuant to s 95 of the Residential Tenancy Act 2010 (NSW) ("RTA"). Section 95 provides: 95 Occupants remaining in residential premises (1) This section applies if the tenant under a residential tenancy agreement who occupied or partly occupied the residential premises with another occupant no longer resides in the residential premises and the residential tenancy agreement has been terminated. (2) The landlord may give any remaining occupant of the residential premises a notice requiring the occupant to give vacant possession of the premises within a period of not less than 14 days. (3) The Tribunal may, on application by a landlord, make an order for possession of the residential premises specifying the day on which the order for possession takes effect if it is satisfied that: (a) notice was given in accordance with this section, and (b) the occupant has not vacated the premises, and (c) the tenant no longer resides in the premises.
16. Ms Kwok continued to refuse to vacate the premises notwithstanding the service of that notice. The Corporation therefore commenced proceedings in the Tribunal.
17. In those proceedings the Corporation sought an order for possession against Ms Kwok as contemplated by s 95(3). Its application also sought orders for termination, but those orders were otiose. Mr Davison's tenancy had terminated by agreement on 4 October 2018, and Ms Kwok was not a tenant and therefore had no tenancy to terminate.
18. The Tribunal below was satisfied that the requirements set out in s 95 were met and made an order that the residential tenancy agreement was terminated, possession was to be given to the Corporation immediately, but suspended the order for possession until 25 July 2019.
19. As is apparent, the order for termination was otiose as there had already been an agreement for the tenancy to be terminated. However, it was the order for possession pursuant to s 95(3) which affected Ms Kwok.
20. Ms Kwok appeals from those orders.

Grounds of Appeal

1. Ms Kwok makes a number of submissions and seeks to tender a number of documents headed "affidavit".
2. The submissions and documents refer to a large number of matters which are of concern to her vis-à-vis Mr Davison, such as the alleged sub-standard level of care he is receiving, his medical condition, her complaints about the appointment of the Trustee as Mr Davison's financial manager, her willingness to pay to look after Mr Davison, her desire that Mr Davison return to live in his home, Mr Davison's alleged wishes to return home and similar matters. However, none of those matters are relevant to this appeal.
3. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel said at [13]: "It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
4. We have examined Ms Kwok's oral and written submissions, and affidavits, for any arguable grounds of appeal, whether those that arise by right or those that may be argued with leave. We have found none.
5. With no disrespect to Ms Kwok, it is apparent from her oral submissions and written material that she does not comprehend the narrowness of the issues before this Appeal Panel, and before the Tribunal from which this appeal comes, nor that many of her complaints (see [23] above) are not relevant to this appeal.
6. Be that as it may, the Notice of Appeal contains three discernible grounds of appeal. We shall address each of those grounds.
7. Those grounds are: the Relinquishment was "a legal error" and should not have been admitted into evidence; no termination notice was given by Mr Davison in accordance with s 105 of the RTA; and Mr Davison revoked the termination notice.

Ground 1

1. No submissions have been advanced why the Relinquishment was a legal error, nor why it should not have been admitted into evidence.
2. We have examined and set out the statutory framework underpinning the authority of the Trustee to execute the Relinquishment earlier in these reasons. As far as we can discern there was no legal error in the execution of that document.
3. The document was clearly relevant to the Corporation's proceedings for an order for possession, as it was required to prove that Mr Davison had terminated the tenancy. The Tribunal is not bound by the rules of evidence, but even were that not so the provenance of the document was proved. Accordingly, there was no error in the admission of the document.

Ground 2

1. Section 105 of the RTA provides: 105 Termination by Tribunal on landlord's application after termination notice given by tenant The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) a termination notice was given by a tenant in accordance with this Division, and (b) the tenant did not revoke the termination notice before the termination date, and (c) the tenant has not vacated the residential premises as required by the notice.
2. A "termination notice" is defined in s 80 of the RTA as "a notice terminating a residential tenancy agreement". Such notices are utilised by both tenants and landlords in varying circumstances described in the RTA, and, in substance, is a notice by Party A to Party B notifying Party B that Party A is exercising his contractual or statutory rights to terminate a tenancy. Such notices are unilateral. That is, they are issued unilaterally by one party to the other and, if valid, bring an end to a tenancy whether or not the other party agrees.
3. However, in this case, no such notice was required. That is because there was a bilateral agreement between the parties in which they, as landlord and tenant, agreed to terminate the tenancy.
4. In such circumstances, that is where the parties agree, no notice is required to be served by one party on the other in order for the tenancy to be terminated. As s 81(e) of the RTA makes clear, a tenancy may be terminated where a tenant gives up possession of premises with the landlord's consent. This is what occurred in this case.

Ground 3

1. There was no evidence that Mr Davison had revoked anything, assuming it was open to him to revoke his agreement to terminate the tenancy.
2. In any event, even if Mr Davison had some capacity, the fact was that the Trustee had been validly appointed as Mr Davison's financial manager and had validly terminated the tenancy.

Conclusion

1. In our opinion the appeal should be dismissed.
2. Ms Kwok indicated at the appeal that if the appeal was to be dismissed the appropriate date for possession should be three months after the date of these reasons, the Corporation submitted one month was appropriate.
3. Ms Kwok has some physical difficulties but has premises elsewhere in which to live. In our opinion a little over one month is sufficient time for Ms Kwok to remove her belongings from the premises notwithstanding her difficulties.

Orders

1. Exercising our power under s 81(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) to make appropriate variations to the orders made below, we make the following orders: 1. Appeal dismissed. 2. Set aside the orders of the Tribunal made on 9 July 2019. 3. In lieu thereof, we make an order for possession, such order to take effect from 35 days after the date of these reasons.

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 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: 30 September 2019