HIS HONOUR: The application before the Court is made by the plaintiffs, Rachel Taylor Maytom and Pamela Maytom, seeking an urgent order to stay a notice to vacate in respect of a studio apartment in which they are residing at the Bayview Hotel, Woy Woy (Hotel).
Late yesterday (Friday, 28 June 2024), the Court was made aware by the Court's after-hours security officer that persons (I infer the plaintiffs) were potentially seeking to make an urgent application to the Court. There was no further notice to my staff of such an application until early this afternoon (Saturday, 29 June 2024). The plaintiffs, through communication that came to my staff, indicated that they may be able to arrive at court somewhere between 5:30 pm and 6:00 pm. Pamela arrived with her granddaughter, Stella, at about 8:00 pm this evening, with Rachel remaining at the Hotel. Rachel is the daughter of Pamela and mother of Stella.
I am dealing with the matter (out of usual court sitting hours) in urgent circumstances with the assistance of my Associate and Tipstaff, and the Court has been opened by an officer of the Sheriff.
The plaintiffs provided to my Associate a form of summons and, on the application, the plaintiffs relied upon an affidavit of Rachel dated 27 June 2024. Initially, the summons was not in a form that could be easily printed. During the hearing my Tipstaff was able to print part of the summons by taking screen shots of it and then eventually print all of it.
The summons seeks orders preserving the status quo to enable Pamela (and the others) to remain in her current accommodation (the studio apartment) whilst a claim of alleged discrimination against Pamela is fully investigated by the Anti-Discrimination Board and/or pending an application to the NSW Civil and Administrative Tribunal (NCAT).
[2]
Factual background
There appear to be 30 rooms at the Hotel, at least one of which is a twin room. There is also the studio apartment.
It appears that Pamela, Rachel, Stella and Pamela's cat (a government-approved assistance cat) have been residing at the Hotel for a period of about five years. It seems initially they were in a twin room which they were subsequently moved out of. They have been in the studio apartment for a lengthy period of time.
They have named Arthur Laundy and Stuart Laundy as defendants to the proceedings. This is seemingly on the basis that they believe that those gentlemen effectively own the Hotel. There is no formal proof before the Court to that effect.
Rachel's affidavit did not provide clear detail regarding the circumstances in which their stay in the Hotel had either originated or been formalised.
Thus, following their arrival at court, I spoke initially with Pamela to clarify some aspects of the matter and understand whether the Court had jurisdiction to deal with the claim for relief. Stella offered to speak for Pamela and gave some very brief assistance, but was unable to elucidate a number of matters. I called Pamela into the witness box and had her sworn in to give some evidence. Pamela was able to give some information but indicated that Rachel may have been better placed to do so. My Associate then arranged for an audio-visual link to be given to Rachel, and she has appeared by those means. I have not had her formally sworn in to give evidence but have simply asked questions about the matter to gain an understanding of it.
Rachel believes that the freehold of the Hotel (in other words, the legal title) may actually be held by Bayview Operations Pty Ltd, which as I understand it, she thinks is operated or controlled by Arthur Laundy and Stuart Laundy, possibly together with Sam Burgess and Luke Burgess (I infer the latter two gentlemen are the notable former rugby league players).
Rachel's affidavit, as elaborated by her orally, gives some of the recent background to the application. It is not appropriate to recite all of the details given the lateness of the hour and the urgency of the matter. The following details suffice.
On 10 May 2024, Rachel had a discussion with a person called Fiona Knight, who appears to be someone employed to work in the Hotel's public bar. The Hotel's accommodation, including the studio apartment, is located above the public bar.
During that conversation, Ms Knight indicated to Rachel that the Laundys were renovating the rooms upstairs in the Hotel, and that she was giving them a "heads up" that they would need to move out of the studio apartment in a period of about three months.
On 13 May 2024, Rachel received a letter, which appears to be a type of notice to vacate, in the following form (notice to vacate):
Dear Rachel Maytom
You are hereby officially notified to vacate the Studio Apartment by 30th June 2024.
The apartment must be clean and vacated by the end of the day and the key handed back to management by 5pm no later.
Please make sure rent is paid weekly up until this date.
We have management moving back into the apartment so they can be on site 24 hours.
We are happy to move you to a twin room down the hall.
Yours Sincerely
Management
As I understand it, since the plaintiffs' receipt of the notice to vacate, there have not been any subsequent approaches or discussions with anyone at the Hotel about what is to happen on 30 June 2024 (which is tomorrow). It is possible that nothing will happen, and that no one from the Hotel will seek to evict them from the studio apartment. On the other hand, it is possible that someone might.
[3]
Characterisation of the arrangement and nature of the application
I asked about the basis of the plaintiffs' entitlement to remain at the Hotel.
As best I can gauge, the arrangement according to Rachel is that there is no lease or tenancy between the plaintiffs and the Hotel or anybody on behalf of the Hotel.
Hotel premises are not premises to which the Residential Tenancies Act 2010 (NSW) (RTA) applies: see s 7(d) RTA.
Further, premises that are used as a hotel do not constitute either a general boarding house or an assisted boarding house within the meaning of the Boarding Houses Act 2012 (NSW) (BHA): see ss 5(3)(b) and 37(2)(a) BHA.
According to Rachel, the plaintiffs have a type of week to week tenancy whereby the Hotel does not have to give the plaintiffs any notice to vacate and, conversely, the plaintiffs do not have to give any notice in order to leave.
In that context, Rachel's affidavit attempted to address the plaintiffs' claim to remain in the studio apartment by seeking a type of interim order under s 105 of the Anti-Discrimination Act 1977 (NSW) (ADA) to stay the notice to vacate on the basis that the giving of the notice and the conduct of Fiona Knight constitutes discrimination against Pamela.
Separately from the discrimination aspect, Rachel's affidavit sets out a number of reasons why Rachel contends that the notice to vacate is formally defective. These include the fact that the notice was unsigned, and that there is no formal person on behalf of the Hotel who is named in the notice. It is evident from the notice letter that it has simply been ended with the words "Yours Sincerely, Management".
Other reasons which Rachel gives for the notice being invalid include that: it is "deceptive in nature" and conceals and suppresses all information on Pamela relevant to whether the decision is reasonable; and Pamela is being placed in "unjustifiable hardship pursuant to ss 49C(a) and (b)" of the ADA.
Pamela's circumstances are that she is 83 years old, vision-impaired and deaf, according to Rachel. Annexed to Rachel's affidavit is a medical certificate from Dr Amili Rahman at the Hornsby Fountain Medical Centre dated 20 June 2024. The certificate confirms that Pamela "suffers with complex medical needs which affect her functioning both cognitively and physically". Further, Pamela is due to undergo eye surgery in the first week of July, being next week.
Rachel claims that the notice discriminates against Pamela and fails to consider her disabilities, age and government-approved assistance cat.
[4]
Issues with the application
There are a number of difficulties with the application.
First, although Rachel and Pamela have a belief that Arthur Laundy and Stuart Laundy are the correct defendants, there is no strict evidence before the Court that they are in fact the owners of the freehold of the Hotel or otherwise the actual party with whom the plaintiffs have had an arrangement for occupation of the apartment and, accordingly, the appropriate persons to be defendants to the claim.
Indeed, as far as Rachel understands it, the Laundys seemingly have no awareness of the fact that the notice has been given.
Whilst I have raised questions as to whether there is anyone within the Hotel's accommodation management that may be a more appropriate defendant, there is no need for me to attempt to probe that aspect of the matter further, at least at this point.
The simple fact of the matter is that presently there is a lack of any clear material before the Court indicating that Arthur Laundy and Stuart Laundy are the proper defendants to the claim.
Secondly, another difficulty relates to the basis of the plaintiffs' asserted entitlement to remain in the studio apartment. It seems relatively clear that the accommodation within the Hotel is not regulated by legislation under either the RTA or the BHA. It may be that certain provisions of the Conveyancing Act 1919 (NSW) apply to it. However, even if that is the case, under the general law the arrangement between the parties, based on what I have been informed, appears to be an arrangement on which no notice to vacate is in fact required.
In any event, the plaintiffs have been aware of the request by "Management" to vacate the studio apartment since 13 May 2024.
Thirdly, in respect of the alleged discrimination claim, there is no evidence that the plaintiffs (or, specifically, Pamela) have filed any complaint with the Anti-Discrimination Board. In any event, it is not clear that the Supreme Court has jurisdiction under the provisions of the ADA to make any interim order sought.
Section 105 of the ADA is in the following terms:
105 Interim orders
(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order -
(a) to preserve the status quo between the parties to the complaint, or
(b) to preserve the rights of the parties to the complaint, or
(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,
pending determination of the matter the subject of the complaint.
(2) For the avoidance of doubt, section 62 of the Civil and Administrative Tribunal Act 2013 applies to an interim order of the Tribunal in the same way as it applies to a general decision of the Tribunal.
The terms of s 105 suggest that it is the Tribunal that may make an interim order, and only then on the application of the President, complainant or respondent after a complaint has been made.
In the limited time I have had available, I have only been able to locate one case that seemingly bears upon the matter, being the decision of Schmidt AJ in Senthilkumaran v Gosan Pty Ltd t/as Century 21 Classic Real Estate (No 2) [2023] NSWSC 442 (Senthilkumaran).
That case also involved a person who was unrepresented and who had pursued alleged violations of the ADA by an employee of the defendant real estate agency. The applicant claimed that he was a victim of racial discrimination which had wrongly resulted in him being served with an eviction notice requiring him to vacate the property at which he lived.
In dealing with the claim, her Honour set out a summary of how the regulatory scheme of the ADA operated and the involvement of NCAT.
Her Honour stated at [28]-[30] as follows:
28. The Anti-Discrimination Act deals with racial discrimination in Pt 2, making it unlawful to evict a person on the ground of race: s 20. Race is defined in s 4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin". The Anti-Discrimination Board is given the function of dealing with complaints about breaches of the Act: Pt 9. Such complaints must be lodged with the President: s 89A. After investigation and conciliation, unresolved complaints may in specified circumstances be referred to NCAT: Pt 9 Subdiv 6.
29. NCAT's complaint function in relation to discrimination complaints is regulated by Pt 9 Div 3. It may dismiss a complaint; make interim orders preserving the status quo or the parties' rights; and may make final orders, including orders requiring a respondent to perform any reasonable act: ss 102, 105 and 108.
30. It follows that it is NCAT which is empowered to restrain the pursuit of the eviction notice, which was served on Mr Senthilkumaran, if it was issued as the result of racial discrimination, as Mr Senthilkumaran complains.
Schmidt AJ then set out details relating to the BHA and the RTA at [31]-[41].
Relevantly, her Honour then stated at [42]-[44] as follows:
42. Cases which raise questions as to whether a particular arrangement falls under the Boarding Houses Act or the Residential Tenancies Act thus arise from time to time before NCAT: see for example Aquino v SPL Living Pty Ltd [2022] NSWCATCD 120.
43. Proceedings before NCAT are all regulated by the Civil and Administrative Tribunal Act. Appeals from decisions of NCAT are to an internal appeal panel in the case of an internally appealable decision: s 80. And with the Court's leave, to this Court on a question of law: s 83. This Court is also given power to judicially review NCAT decisions under s 69 of the Supreme Court Act 1970 (NSW).
44. This all helps explain Button J's observation that this Court is not the correct forum for Mr Senthilkumaran to pursue his dispute about the racial discrimination which he considers wrongly resulted in the eviction notice he resists. I agree.
To the extent that I have been able to determine in the urgent circumstances, Senthilkumaran appears to give some support for the view that I have formed, which is that the Court has no power to make an order under s 105 of the ADA. That power has been given by the legislature to NCAT when the conditions outlined in s 105 have been satisfied.
In the above circumstances, there is an insufficient prima facie case for the Court to make any form of restraining order.
Even if the Court were satisfied that there is a prima facie case, there would be questions of balance of convenience to address and the like.
Relevant to those matters would be the length of time that it has taken the plaintiffs since 13 May 2024 to seek any relief either with the Anti-Discrimination Board, NCAT or this Court.
Relevant also is the fact that it appears the Hotel has offered some alternative accommodation in a twin room down the hall, albeit such an option is not ideal from the plaintiffs' perspective.
[5]
Conclusion
In all the circumstances of the case, I decline to make any urgent interim order.
However, what I will do is give the plaintiffs permission to serve the summons on Arthur Laundy and Stuart Laundy by 2:00 pm tomorrow afternoon, with a view to bringing the matter back before the Equity Duty Judge on Monday morning.
In those circumstances, whist I am not making the interim order sought by the plaintiffs, I am making the following orders which facilitate the matter being brought back to the Court on Monday for the plaintiffs to have an opportunity to serve the Laundys and see perhaps if they might be able to reach an interim arrangement with either the Laundys or some other appropriate defendant. Whether or not they are able to do so is a matter about which it would not be right for me to further comment on, other than to observe that it is a possibility that they may.
The orders of the Court are as follows:
1. Upon Rachel Taylor Maytom, as first plaintiff, undertaking to pay the applicable filing fee, unless she is able to obtain from the Court a permission or order remitting the payment of the fee, grants leave to the plaintiffs to file in Court in the form initialled by Meek J, dated and placed with the papers:
1. the summons; and
2. the affidavit of Rachel Taylor Maytom sworn 27 June 2024.
1. Orders that the time for service of the summons, affidavit and these orders be abridged to 2:00 pm on 30 June 2024.
2. Directs that the summons be returnable before the Equity Duty Judge at 10:00 am on Monday, 1 July 2024 to be dealt with then or at such other time as the Court deems fit.
3. Orders that costs be reserved.
4. Orders that these orders be entered forthwith.
[6]
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Decision last updated: 03 July 2024