Kyriakou v Xie & ors.

reasons for decision 1By an application filed on 17 February 2014, Andrew Kyriakou sought various orders about when he resided in premises owned by Xiaofang Wang and Xuefeng Zhu and which were leased to Eileen Xie. 2When the matter came before the Tribunal on 12 March, I made various directions. These included the exchanging of documents, granting leave to both parties to be legally represented, and noting that as the applicant claimed that I was biased, not impartial and that I sabotaged his litigation, advising him that to ensure that I was not rostered to hear his claims at a future formal hearing, he should make an application, in writing, to the Deputy President of the Tribunal to that effect. 3There was a problem concerning the exchange of documents and so the proceedings were listed before Member Holles on 10 June 2014. That Member made directions to bring the litigation ready for the formal hearing, including granting leave to amend the claim. 4An amended claim was filed on 13 June 2014 in which the applicant seeks various orders. These were that in accordance with the provisions in section 77 of the Act he be recognised as a tenant; a declaration by means of section 11 of the Act that a specified agreement is, or is not, a residential tenancy agreement to which the Act applies; an order under section 47 of the Act for the repayment of rent; and an order pursuant to section 187 of the Act for compensation to be paid to him by the respondent. 5By a document filed on 10 June 2014, the applicant also sought an order for the payment of "$550-00 for removalist costs", "$660-00 in rent being that the premises were illegally operated and without council approval, significant compensation due to the malicious and constant harassment, intimidation, threats of assault, breach of the tenant's rights to quiet enjoyment and privacy where both the respondent and her boyfriend solicitor would constantly attend the premises and threaten, intimidate, harass and assault the applicant and the rest of the tenants", as well as compensation "for the serious security breaches at the subject premises by the respondent. There were no locks on the rear door which rendered the premises unsafe. Despite repeated requests for the landlord to address this problem, the respondent failed to respond." 6At the commencement of the hearing on 19 June 2014, the applicant applied to have me disqualified from hearing his claims. He asserted that when he wrote to the Tribunal registry, presumably in conformity with the earlier directions about the rostering of members, he was informed to make an application to the Member on the day of the hearing. 7The applicant claims that there is a history of complaints made about me, that I am not impartial, that I am biased, and that I am conducting a vindictive vendetta against him and his litigation. 8The solicitor representing the respondent called into question whether such a claim could be made without notice. The applicant responded that when legal representation was granted earlier in the proceedings, the formal procedure required had not been followed and that the solicitor, Mr Burrell, was the subject of a complaint which had been lodged with the Law Society of New South Wales. 9The applicant tendered a letter from an employee of the Minister for Fair Trading informing the applicant that the operations of the Tribunal fell under the portfolio of the Attorney General and that the applicant's representations had been forwarded to the Attorney. There was nothing produced by the applicant to demonstrate the extent of the complaints, nor the issues complained about, to substantiate the assertion that I should disqualify myself from hearing his claims. 10As well, the applicant tendered a copy of a letter he had received from the Professional Standards Officer of the Law Society indicating that officer would be dealing with a complaint about Mr Burrell made by the applicant to the Legal Services Commissioner. Mr Burrell indicated that he was unaware of any investigation into his conduct as a solicitor. 11This is not the first application by Mr Kyriakou that I have determined. In proceedings 13/52640, Member P Smith terminated a tenancy agreement the applicant had entered into with his then landlord, ordered the landlord be given possession of those premises and made ancillary orders. Appeals by Mr Kyriakou to both the New South Wales Supreme and District Courts to set aside or stay those orders were unsuccessful. 12As well, Mr Kyriakou lodged an application with the Tribunal to have those proceedings re-heard as he had not been able, due to ill health, to attend the hearing conducted by Member Smith. The rehearing application was refused by me and the New South Wales Supreme Court reviewed that decision. Mr Kyriakou was unsuccessful in that review. In dismissing the summons, White J remarked that having regard to the applicant's failure to adduce evidence to show what his defence would have been, he could not complain that the process was unfair: see Kyriakou v Long [2013] NSWSC 1890. 13By an application lodged on 14 February 2014 in proceedings 14/09829, Eileen Xie sought orders by the Tribunal to evict Andrew Kyriakou from the premises she leased from her landlords due to alleged breaches of the Act. Both parties appeared before the Tribunal on 19 February and an attempt to conciliate the dispute was unsuccessful. 14The guiding principle of the Tribunal is found in section 36 of the NCAT Act. The principle is to facilitate the just, quick and cheap resolution of the real issues in proceedings. Both a party to proceedings, and an Australian legal practitioner representing a party in proceedings, are under a duty to co-operate with the Tribunal to give effect to the guiding principle. 15While the parties were absent from the hearing room undergoing a conciliation attempt, I examined the application, together with the documents which had been filed. It appeared that section 10 of the Act might apply. Section 10 of the Act reads:- "10 Application of Act to occupants in shared households A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if: a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant. Note. Boarders and lodgers are not covered by this Act (see section 8 (1) (c)). An occupier may be recognised as a tenant (see sections 77 and 79)." 16I made photocopies of that section of the Act and when the parties returned from conciliation, they were both given a copy. Mr Burrell read the document and immediately withdrew the claim. Mr Kyriakou stood and declared that he wished to address the Tribunal. I informed him that as the claim had been withdrawn, there was nothing before the Tribunal and he was requested to leave the hearing room. Since then, Mr Kyriakou maintains that I determined the matter adverse to his interests by not allowing him to ventilate his submission on the applicant's claim. 17It is trite law to state that there are two types of bias: actual bias, inferred from the statements or conduct of a decision maker; or apprehended bias, where a fair minded lay observer might reasonably apprehend that a decision maker would not bring an impartial or unprejudiced mind to the dispute. 18The applicant has not produced any evidence to convince the Tribunal that any decision made by me, or my conduct, as a Member of the Tribunal could be found to demonstrate actual bias. 19Instead, the Tribunal approached the application on the basis that it is one of apprehended bias. The test for apprehended bias was expounded by the High Court of Australia in Johnson v Johnson [2000] HCA 48. At [11] the Court stated that test as - "...whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." 20Kirby J at [45] stated - "...that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal." 21The Tribunal is of the view that dismissing an application for a rehearing in one case, and not allowing a respondent to address the Tribunal in another after it had been withdrawn by the applicant, would not impart in the mind of a fair-minded lay observer that there might be a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to determine in the applicant's claim. 22Therefore, the application that I disqualify myself from hearing the claim was declined. 23I turn now to the applicant's substantive claims. 24Mr Kyriakou seeks damages under the Act on the basis that he is a tenant. To commence the proceedings, he relies on section 11 of the Act which reads - "11 Declaration by Tribunal The Tribunal may, on application by the Director-General or another person, make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies or that specified premises are, or are not, premises to which this Act applies. Note. Under section 195, the Director-General may intervene in proceedings before the Tribunal that are brought by another person." 25When regard is had to the note printed under the section, it appears that "another person" is not to be restricted to an employee or agent of the Director General, but applies to "another person". This is because the note allows for when any person commences proceedings, then, if required, the Director General may intervene. If the definition of "another person" was restricted to a narrow interpretation, there would be no necessity for the Director General to intervene in proceedings brought by his own agent. 26The Tribunal finds that Mr Kyriakou is "another person" who may make an application to the Tribunal for a declaration that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies. Consequently, the Tribunal may commence a hearing to determine the validity or otherwise of an agreement. 27The applicant cited many cases from various courts and tribunals which define a lodger. The common result of these cases is that a lodger is a person who resides in premises, may have exclusive use of a portion of those premises, and as part of the living arrangements, receives services from the head of the household, such as the provision of meals, a change of linen, a serviced room, etc. Ms Xie did not provide any such services and so the Tribunal accepts Mr Kyriakou's submission that he is not a lodger. 28To be recognised as a tenant, Mr Kyriakou relies on section 77 of the Act which reads - "77 Recognition of certain persons as tenants (1).The Tribunal may, on application by a person who is occupying residential premises, make an order recognising the person as a tenant under a residential tenancy agreement or join the person as a party to any proceedings relating to the premises, or both. (2).The Tribunal may make an order if: (a) the sole tenant under the residential tenancy agreement to which the premises are subject has died, or (b) the tenant no longer occupies the premises. (3) An order under this section may: (a) vest a tenancy over the residential premises in the occupant on such of the terms of the previous residential tenancy agreement as the Tribunal thinks appropriate, having regard to the circumstances of the case, and (b) vest the tenancy from a date that is earlier than the order. (4) An application for an order under this section may be made at the same time as any other application or during proceedings before the Tribunal or independently of any such other application or proceedings. (5) This section does not apply if the landlord is a social housing provider." 29Tendered to the Tribunal was a written residential tenancy agreement. The landlords were named as Xiaofang Wang and Zuefeng Zhu. There are two tenants named on the front page of the lease: Eileen Xie and Frank Ma but Frank Ma did not sign the agreement, it is signed only by Ms Xie as a tenant. The agreement granted Ms Xie exclusive occupation of the premises, the subject of the lease and these proceedings. 30Subsection 77(5) is irrelevant as the landlords are not social housing providers. 31Subsection 77(4) allows the applicant to bring the claim as he is seeking other orders in these proceedings, even if he no longer resides at the premises. 32Subsection 77(2) addresses the crucial issue. Subsection 77(2)(a) obviously does not apply as Ms Xie is not deceased. The applicant relies on section 77(2)(b). 33Much of the hearing was occupied by the applicant tendering documents. These documents are correspondence from various authorities and government agencies addressed to Ms Xie. The documents show an address other than that of the leased premises, the subject of this application. 34The purpose of the tender of these documents was to demonstrate that Ms Xie no longer occupied or resided at the premises while the applicant lived there. 35A residential tenancy agreement is an 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: see section 13 of the Act. This definition indicates that what is granted is a right to occupy residential premise, as opposed to commercial or industrial premises. 36The right to occupy residential premises continues until it is extinguished by the termination of the residential tenancy agreement only in the circumstances set out in the Act: subsection 61(1) of the Act. This may occur when one party gives the other a notice of termination and the tenant gives the landlord vacant possession of the residential premises: subsection 61(2). It may occur due to an order of the Tribunal: subsection 61(3). It may occur due to the other legal reasons set out in subsection 61(4). 37There is no requirement in the residential tenancy agreement or in the Act that a tenant has to reside or live in the leased premises. Several instances to demonstrate this fact spring to mind. Two examples will suffice. First, a prudent landlord might not enter into a lease of residential premises near a university with impecunious students who wish to live in the property, but rather have their more financially affluent parents sign the agreement as tenants, even though the parents have no intention to leave the family home. Second, a registered company may be a tenant. A company, although being a legal entity, is an artificial organisation which does not live anywhere. However, the company tenant is given the right to occupy residential premises and may allow any person to live there, subject to any restrictions in the lease: see section 13(4) of the Act. 38This conclusion is reinforced when regard is had to the meaning of "occupier" as defined by the New South Wales Court of Appeal. In Harris & ors v McKenzie & ors (1986) 9 NSWLR 139, Kirby P stated, at 147, that "'occupier' normally means the person who has the immediate supervision and control of premises and the power of permitting or prohibiting the entry of other persons" 39In Harris, the Court of Appeal was considering the situation where an organisation occupied premises within a university grounds. 40The requirement to reside in premises has been the subject of a decision of the High Court of Australia where, in Council of the City of Newcastle v Royal Newcastle Hospital (1956-1957) 96 CLR 493, at 501 the High Court cited with approval an English case in which it had been declared - "The owner of a vacant house is in possession, and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable as an occupier. If, however, he furnishes it, and keeps it ready for habitation whenever he pleases to go to it, he is an occupier, though he may not reside in it one day in a year." 41Subsection 77(2) contains two subclauses. Subclause (a) deals with the circumstances where the named tenant on a lease dies. Subclause (b) deals with a tenant who no longer occupies the premises. 42It is the view of the Tribunal that both these clauses are aimed at circumstances where the named tenant no longer has any connection to the property, that is, the tenant has surrendered the right of occupation of the premises. 43The written residential tenancy agreement between the landlords and Ms Xie grants her the right to occupy the premises. That right exists until the parties terminate that right, or an order is made by a court or the Tribunal. 44The Act recognises the difference between the verbs "occupy" and "reside". For example, section 106(4)(b) includes the phrase "the tenant no longer resides at the premises". This is in stark contrast to section 77(2)(b) where the phrase reads "the tenant no longer occupies the premises". It appears that the applicant has confused the word "occupies" with that of "resides". 45There was no evidence produced by Mr Kyriakou to demonstrate that Ms Xie no longer had a right to occupy the premises, even if she has another address to where her correspondence is posted. The landlords are named as respondents in these proceedings and they did not take the opportunity to demonstrate that Ms Xie either no longer occupied the dwelling, or that she had given them possession of the premises. 46Without any evidence to demonstrate that an order be made pursuant to subsection 77(3), due to the failure to fulfil the requirements of subsection 77(2), the Tribunal declines to find that the applicant is a tenant. It follows that there will be no declaration made, pursuant to section 11 of the Act, that the agreement the applicant had with Ms Xie was a residential tenancy agreement to which the Act applies. 47Returning to the requirements of section 10 of the Act, it is the finding of the Tribunal that -