New South Wales Land and Housing Corporation v Quinn - [2018] NSWDC 161 - NSWDC 2015 case summary — Zoe

NSWNSWDC

New South Wales Land and Housing Corporation v Quinn

[2018] NSWDC 161

District Court of NSW|2015-08-12

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2015-08-12

Catchwords

[2014] HCA 18 Amalgamated Engineering Union (Aust Section), Ex parte
Re Jackson (1937) 38 SR (NSW) 13
[1989] HCA 15 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 Blair v Curran (1939) 62 CLR 464
[1939] HCA 23 Cachia v Isaacs (1985) 3 NSWLR 366 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378

Source

Original judgment source is linked above.

Catchwords

[2014] HCA 18 Amalgamated Engineering Union (Aust Section), Ex parteRe Jackson (1937) 38 SR (NSW) 13[1989] HCA 15 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 Blair v Curran (1939) 62 CLR 464[1939] HCA 23 Cachia v Isaacs (1985) 3 NSWLR 366 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378[2012] HCA 56 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594[2011] HCA 22

Judgment (46 paragraphs)

[1]

Enfield v Development Assessment Commission (2000) 199 CLR 135 Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 Harrington v Lowe (1996) 190 CLR 311 Henderson v Henderson (1843) 3 Hare 100 Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512 In re Athlumney; Ex parte Wilson [1898] 2 QB 547 Jackson v Goldsmith (1950) 81 CLR 446 Mathieson v Burton (1971) 124 CLR 1 Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22; Maxwell v Murphy (1957) 96 CLR 261 Minister for Natural Resources v Aboriginal Land Council (1987) 9 NSWLR 154 Mulgrave Central Mill Co Ltd v Hagglunds Drives Pty Ltd [2001] QSC 040 New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338 O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 Ousley v The Queen (1997) 192 CLR 69 Pollnow v Armstrong [2000] NSWCA 245 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Services (1979) 2 ALD 86 RS Howard & Sons Ltd v Brunton (1916) 21 CLR 366 Secretary of State for Social Services v Tunnicliffe [1991] 2 All ER 712 Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 Twadell v NSW Land and Housing Corporation [2014] NSWSC 7 Wandsworth London Borough Council v Winder [1985] AC 461 Zistis v Zistis [2018] NSWSC 722 Texts Cited: Commonwealth of Australia v Cockatoo Dockyard Pty Limited [2007] HCATrans 150 Judicial Review of Administrative Action and Government Liability, Mark Aronson, Matthew Groves, Greg Weeks, 6th edition (2016) Second Reading Speech for Housing Bill 2001 Category: Principal judgment Parties: New South Wales Land and Housing Corporation (plaintiff) Robert Quinn (defendant) Representation: Counsel: Mr A Di Francesco (plaintiff) Mr R Dalgleish (defendant)

[3]

Judgment Table of Contents Heading Paragraph A. Introduction 1 B. Jurisdiction 2 C. The statutory basis of the claim 3 D. The issues 9 E. The nature of the action 15 F. The issue estoppel 18 (a) The principle 18 (b) The Tribunal determination 22 (c) The estoppels that arise 24 (d) Exceptions to issue estoppel 31 G. The collateral attack 39 H. The authority of the Cancellation Notice and November 2012 decisions 53 (a) The extent of the backdating power and rebates "granted under this Part" 54 (b) What rebates are "granted under this Part"? 69 (i) Is there a statutory basis in a former Housing Act for the grants of subsidy to Mr Quinn? 80 (ii) Is a grant of a rebate or subsidy the "execution" of an "approval"? 85 (iii) What subsidy was "in force immediately" before the commencement of clause 5(2)? 88 (iv) "The corresponding provision" 90 (c) Effect of purported cancellation of earlier subsidies 101 (d) Decisions made by the Corporation 117 (i) Documentary evidence 121 (ii) Ms Pickering 132 (iii) Mr Cureton 144 (iv) Mr Fester 148 (v) Analysis 151 (vi) The delegated authority of the General Manager or other officers to cancel rebates 162 (vii) Agency, the Carltona Principle and the authority of the General Manager and other officers to cancel rebates 181 (viii) Which Director-General? 196 (ix) The Recovery Decision 206 I. The prior investigation into weekly income 210 J. Requirement to repay rebated amount 225 K. The correct amount of the rebates 226 L. The limitation period 228 M. Section 41 of the Residential Tenancies Act 2010 233 (a) Prospective rebate cancellation 234 (i) A different date of effect 234 (ii) Severance 238 (iii) A later decision 241 (b) Residential Tenancies Act 2010 244 N. Date of vacant possession 251 O. Orders 260

[6]

C. The statutory basis of the claim

The Corporation's claim to recover the rebates arises out of s 57 of the Housing Act 2001 ("the 2001 Act").
Section 57 of the 2001 Act (as at November 2012) provides: "57 Cancellation or variation of rental rebate (1) The Corporation may, after conducting an investigation under section 58, vary or cancel any rental rebate granted under this Part. (2) The Corporation is to determine the date (being a date occurring before, on or after the making of the determination) on which the variation or cancellation has effect or is taken to have effect. (3) The Corporation is to give notice in writing to a tenant of any decision to vary or cancel any rental rebate being received by the tenant and is to include in the notice the date on which the variation or cancellation takes effect or is taken to have effect. (4) If the Corporation reduces or cancels a tenant's rental rebate under this Part with effect from a preceding date, the Corporation may, by notice in writing to the tenant, require the tenant to pay to the Corporation: (a) an amount equal to any rental rebate or part of a rental rebate received by the tenant on or after the date that the variation or cancellation took effect to which, because of the variation or cancellation, the tenant was not entitled, and (b) interest (at the rate prescribed under section 101 of the Civil Procedure Act 2005 in respect of unpaid judgments) on any outstanding amount under paragraph (a) from a date specified in the notice, being a date not earlier than the date on which the notice is issued to the tenant. (5) Any amount (together with interest) referred to in subsection (4) that is unpaid may be recovered by the Corporation as a debt in any court of competent jurisdiction."
Section 58 provides: "58 Investigation of application (1) The Corporation may make an investigation to determine the weekly income of: (a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, and (b) any other resident of the house in which that person resides. (2) The Corporation may require a person who is an applicant for, or a recipient of, a rental rebate under this Part to produce such evidence as the Corporation thinks fit of the person's weekly income and of the weekly income of any other resident of the house in which that person resides."
Accordingly, the Corporation is entitled under s 57(5) to recover an unpaid amount in a s 57(4) notice. A notice under s 57(4) is a notice by the Corporation requiring the tenant to pay to the Corporation an amount of rebate that has been cancelled retrospectively under s 57(1) and (2), that is, a cancellation with effect from a preceding date so that under s 57(4) "the tenant was not entitled" to that rebate.
Subsections 57(1) and (2) require the decision to cancel the rebate ("Cancellation Decision") to be: 1. by the Corporation; 2. after conducting a s 58 investigation; 3. of a rebate granted under Part 7 of the 2001 Act; and 4. with effect from a specified date, and that date must be prior to the date of the cancellation if the cancellation is to enliven a right of recovery under s 57(4) and (5).
The statutory requirements for recovering all or part of the cancelled rebates require a valid Cancellation Decision, and a decision and notice in compliance with s 57(4) ("Recovery Decision").

[7]

D. The issues

The proceedings were not at all concerned with whether the financial position or weekly income of Mr Quinn justified him receiving a rebate. Neither party made submissions on this issue, nor did the evidence go to it. That is because the statutory action for recovery of a cancelled rebate does not involve proof of a lack of entitlement to a rebate; Mr Quinn's wealth or income was not an element of the cause of action. So there was no debate about Mr Quinn's financial circumstances. But there nevertheless remained a number of issues that arose out of the statutory action.
Mr Quinn says that s 57 does not entitle the Corporation to recover the rebates, for a number of reasons: 1. The Corporation did not cancel the rebates under s 57(1) or determine the date of effect of the cancellation under s 57(2) (i.e. did not make a Cancellation Decision) because the November 2012 decisions (the decisions as reflected in the Cancellation Notice and the Repayment Notice) were made without the authority of the Corporation. 2. The Corporation did not conduct an investigation to determine Mr Quinn's weekly income under s 58(1), as is required by s 57(1), before any Cancellation Decision. 3. The Corporation did not require Mr Quinn to pay to the Corporation the correct amount of the rebates granted under Pt 7 of the Act and purportedly cancelled under s 57(1), but demanded an excessive amount. 4. The proper amount of the rebates is not proved and therefore is unable to be required to be paid under s 57(4)(a). 5. Any debt for rebates prior to six years before the proceedings were commenced is statute-barred under s 14 of the Limitation Act 1969. 6. The rent payable by Mr Quinn (after any rebates) could not be increased except in accordance with s 41 of the Residential Tenancies Act 2010 ("RTA"), and that did not occur until September 2013, effective 25 November 2013.
The Corporation alleges that Mr Quinn cannot dispute the existence or validity of the November 2012 decisions, but is precluded by an issue estoppel arising from the decision of the Tribunal on 15 May 2014 determining the existence and validity of a Cancellation Decision.
The Corporation also alleges that irrespective of an issue estoppel the existence and validity of the November 2012 decisions cannot be challenged in this Court for that would be a "collateral attack" which, in this Court at least, is confined to jurisdictional challenges to decisions. The Corporation submits that purported decisions can only be challenged by an application to the Supreme Court for orders in the nature of prerogative relief.
The parties also disagree as to the date Mr Quinn vacated the premises and thereby ended the obligation to pay a daily fee.
These are the issues between the parties. They can be listed as: 1. The issue estoppel. 2. The collateral attack. 3. The Cancellation Decision by the Corporation. 4. The prior investigation into weekly income. 5. The requirement to repay the rebated amount. 6. The correct amount of the rebates. 7. The limitation point. 8. The application of s 41 of the RTA. 9. The date of vacant possession.

[8]

E. The nature of the action

In New South Wales Land and Housing Corporation v Diab, [2] Leeming JA, with whom Beazley P relevantly agreed, [3] stated at [61]: "The exercise of the power to cancel a rebate with effect from an earlier time gives rise to an obligation to repay a sum of money…the obligation to repay the cancelled rebate is, or is analogous to, a quasi-contractual, or restitutionary, right to recover money paid to the use of Mr Diab."
The meaning of this passage is informed by the relevant issue in Diab: whether a retrospectively cancelled rebate creates a non-payment of rent. The quoted passage was part of the reasons why no non-payment of rent arises from a retrospective cancellation but was not concerned with the elements of the statutory action. Accordingly, the passage should not be read as authority for a proposition not in issue in Diab, that the mere cancellation of rebates with effect from a preceding date, under s 57(1) and (2), gives rise to an obligation to repay in the absence of a s 57(4) decision to recover the retrospectively cancelled rebates. It seems unlikely that the right not to be arbitrarily deprived of one's own property would be displaced by the terms of s 57(1) to (3), so as to enliven a common law action to recover rebates, at least because the statutory words make no unambiguous provision to that effect. Rather, the section provides for a statutory right of recovery, not from a retrospective cancellation alone, but from a retrospective cancellation together with a notice to pay under s 57(4) (and non-payment under s 57(5)).
It follows that the effective date of a Cancellation Decision is not the date from which all rebates are repayable, nor even the date from which all Pt 7 rebates are repayable. Rather, the repayment of rebates is governed by a date nominated under s 57(4). The date governing recovery under s 57(4) cannot extend beyond the date nominated under s 57(2) because under s 57(4) recovery extends only to cancelled rebates received by the tenant "on or after" the Cancellation Decision "took effect". Recovery under s 57(4) can only extend to rebates to which the tenant, because of the cancellation, was not entitled, namely cancelled Pt 7 rebates. What "part" of those past, cancelled, Pt 7 rebates is recoverable depends on the terms of the notice under s 57(4).

[10]

(b) The Tribunal determination

On 15 May 2014 the Tribunal Member G Meadows heard an application in respect of the residential tenancy agreement between Mr Quinn and the Corporation. There was no appearance for Mr Quinn. The reasons of Tribunal Member Meadows included the following: "The respondent tenant has received a rental rebate from about 1998 or possibly 2000. In about 2012 the applicant investigated the tenant's circumstances and concluded that he was not entitled to a rental rebate. The rebate was cancelled in November 2012. Since that date the tenant has been required to pay market rent for the premises but has continued to pay on the rebated rent, as it was at the date of cancellation. This Tribunal has no power to look behind the rebate cancellation but accepts it as a matter of fact… By letter dated 22 November 2012, the applicant gave notice to the tenant that his rebate was cancelled… A notice of termination was issued to the tenant on 19 June 2013… … I find the notice of termination does comply in its exact meaning and is a valid notice. The evidence provided by the applicant amply demonstrates the tenant has failed to pay his rent on time since the date of cancellation of the rental rebate… … I am satisfied that I should terminate this tenancy, in which post-cancellation arrears have already reached in excess of $30,000.00 and continue to rise… … I am aware that a recent decision of the Tribunal to the effect that such a debt is not to be characterised as rental arrears, and that that decision has been appealed to the Tribunal's Appeal Panel. The decision is imminent. In those circumstances it is not appropriate to consider that aspect of the application which should be adjourned until the appeal decision is known at which time the applicant may consider its position."
The Tribunal made orders, including: "The Residential Tenancy Agreement is terminated in accordance with: • s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. • failure to pay rent in accordance with agreement."

[11]

The orders of the Tribunal indicate that the "right established" [12] is the right to have the residential tenancy agreement terminated. One essential fact, an ingredient of that right specified in the orders, is that rent was not paid in accordance with the agreement.
The Corporation submits that there are other "necessary and fundamental finding[s] of fact": the termination "[n]otice was valid", the rebate "had been cancelled" and the post-cancellation arrears of rent exceeded $30,000. [13]
Each of these matters was decided. The Tribunal expressly determined that "the notice of termination…is a valid notice", that the arrears exceeded $30,000, and the Tribunal accepted the rebate cancellation "as a matter of fact". The Tribunal's decision that it had "no power to look behind the rebate cancellation" may raise a question about the extent of the Tribunal's jurisdiction and its consideration of the validity of the purported Cancellation Decision.
Mr Quinn submitted that as there was no inquiry by the Tribunal into the validity of the November 2012 decisions, there was no decision of the Tribunal creating an estoppel. However, that reasoning seems to illustrate why the decision of the Tribunal may be wrong, rather than that no decision was made. Once the Tribunal accepted the correctness of the November 2012 decisions cancelling the rebate, a matter essential to the Tribunal's decision to find unpaid rent and terminate the tenancy, the Tribunal has, in my view, made a decision.
The other requirement is that each of these matters was "necessary to decide". [14] It was not a requirement, an essential "ingredient", [15] that the rental arrears be in excess of $30,000 in order for the Tribunal to determine the tenancy. The Tribunal had no jurisdiction to make an order for payment of unpaid rent for a sum in excess of $15,000 and the Corporation withdrew any claim for unpaid rent. A determination of the extent of the arrears was thus "subsidiary or collateral" [16] even if a breach of the rental obligation was a necessary finding.
A valid termination notice is necessary in order for the Tribunal to issue a termination order. [17] Accordingly, the validity of the termination notice was an ultimate fact cardinal to the Tribunal's decision. But the validity of this notice is not part of the Corporation's claim in these proceedings: the Corporation has regained possession of the rental premises, a matter not challenged, so the validity of the termination notice is of no present significance.
The validity of the November 2012 decisions was "necessary to decide…as part of the groundwork" of the Tribunal's decision that there was unpaid rent. [18] The November 2012 decisions were the source of the obligation to pay rent at a higher level than Mr Quinn paid. To assert that the November 2012 decisions were invalid is to assert that the Tribunal's decision was wrong. Mr Quinn submitted that the rebated rent was not always paid in a timely manner. And, as found later in this judgment, there was a period where, on any view, Mr Quinn underpaid the rent. [19] Nevertheless, it is clear that the Tribunal determined that there was a breach of the obligation to pay rent because the rental obligation had increased once the rebate was cancelled in November 2012, and not because of any dilatory payment or other rental increase. Had the rebate not been cancelled, there was no breach by the tenant of the obligation to pay rent, at least so far as appears from the decision of the Tribunal.

[12]

(d) Exceptions to issue estoppel

Two possible exceptions arise in relation to the issue estoppel. First, whether it is necessary that the Tribunal have jurisdiction to determine the validity of the November 2012 decisions in order for such an issue estoppel to arise, and secondly, whether "special circumstances" preclude an issue estoppel.
As to the first matter, where a subordinate tribunal must necessarily decide matters solely in order to exercise its jurisdiction, its decision does not conclusively determine those matters between the parties and no issue estoppel arises. This is because the tribunal has no general jurisdiction to determine those appendant incidental matters, but can only determine them in connection with the particular invested jurisdiction. [20] Unless the tribunal has jurisdiction to "decide the matter conclusively and for all purposes between the parties", no issue estoppel arises. [21]
Thus, a magistrate's decision about the existence of a criminal offence of digging on Crown land does not determine between the parties for all purposes whether the land was, or was not, Crown land, because that was beyond the magistrate general's jurisdiction. [22] "[N]o greater ambit of finality should be attributed to" decisions of subordinate bodies than the legislation provides. [23]
The Corporation accepted that the Tribunal had no power either to engage in a judicial review of the November 2012 decisions or to undertake a "collateral review" of their validity. The decision in Director of Housing v Sudi, [24] confirms this limitation. Having no jurisdiction to undertake a collateral review of the November 2012 decisions precludes the Tribunal's decision giving rise to an issue estoppel as to their validity. Such a decision in the special jurisdiction of the Tribunal "creates no estoppel". [25]
Faced with this, the Corporation submitted that the issue estoppel was to the effect that the November 2012 decisions were decisions, if not necessarily valid. The circumstance that someone decided to cancel the rebates is not in dispute. But that gives rise to no relevant issue estoppel to preclude an agitation of the validity of the November 2012 decisions.
The second exception concerns "special circumstances". The House of Lords in Arnold v National Westminster Bank plc [26] determined that where a subsequent decision of a higher court found an earlier decision (not the subject of an appeal) to have been incorrectly decided, the earlier decision should not create an issue estoppel. Arnold referred to the "special circumstances" [27] in Henderson v Henderson, [28] and indicated that there may be special circumstances "where estoppel does not operate". The Arnold decision was referred to in Pollnow v Armstrong [29] and in Mulgrave Central Mill Co Ltd v Hagglunds Drives Pty Ltd [30] without criticism. In Commonwealth of Australia v Cockatoo Dockyard Pty Limited, [31] the High Court, in a special leave application, expressly refrained from expressing a view on the correctness of the "special circumstances" exception.
The Tribunal's decision to accept the validity of the November 2012 decisions has not been found to be incorrect. But there are circumstances in this case which may be regarded as special: the Tribunal simply accepted the November 2012 decisions as a matter of fact without determining validity and thus expressly eschewed any enquiry; the Tribunal was concerned about the termination of a tenancy, not the existence of a significant debt; the Tribunal refrained from making any decision about the backdated component of the November 2012 decisions; the Tribunal's decision was made ex parte; the Tribunal's decision could be supported on another basis including the matter at [250] hereafter; and the recovery of the cancelled rebates was not available in the Tribunal but only in a court under s 57(5) of the 2001 Act. [32] While these circumstances appear to me to enliven the special circumstances exception in Arnold, it is not necessary to give a final conclusion on that matter because of my finding in relation to the effect of the Tribunal's limited jurisdiction.
I find that no issue estoppel arose from the Tribunal's decision in respect of the validity of the November 2012 decisions because the Tribunal had no jurisdiction to determine that matter conclusively and for all purposes.

[13]

G. The collateral attack

Mr Quinn has not applied for judicial review of the November 2012 decisions. Such an application is beyond the jurisdiction of this Court. [33] Rather, the validity of the November 2012 decisions arises in the proceedings from the denial by Mr Quinn of the prerequisites in s 57 for recovery of the debt claimed by the Corporation. The Corporation seeks to prove the statutory elements for the debt in s 57, and a valid Cancellation Decision is said to be one of those elements. Thus, the challenge to the November 2012 decisions is collateral to the primary claim. The use of the term "collateral" in this context is not altogether the same as the use of that term in respect of decisions that give rise to no issue estoppel.
The Corporation submitted that Mr Quinn was unable to challenge the validity of the Cancellation Decision in these proceedings because a "collateral attack on the validity of administrative decisions is confined to a consideration of the validity of the decision on its face, that is, patent jurisdictional errors only". [34] Patent jurisdictional errors were submitted not to be present.
The Court of Appeal in Quinn CA at [73] refrained, it seems, from considering whether a collateral review of the Cancellation Decision was available as any lack of that jurisdiction would not preclude the Corporation from debt recovery proceedings. [35] Yet the Court recognised that Mr Quinn could raise "defences that can be raised in the Supreme Court" because of s 6 of the Law Reform (Law and Equity) Act 1972. [36] Thus, a defence challenging the validity of the Corporation's decisions by way of collateral attack was permitted if it was available in the Supreme Court.
So if a defensive, collateral challenge to the November 2012 decisions is available in the Supreme Court (without an application for judicial review), it must also be available in this Court. As the Supreme Court's jurisdiction is unlimited, the relevant question becomes whether a collateral challenge of this nature, where prerogative relief is not sought, is available in any court.
The ambit of a so-called "collateral attack" on validity, [37] although limited, [38] is not altogether clear. It has been described as embracing "validity of the decision on its face", [39] "'obvious' defects", [40] "facial invalidity", [41] "patent invalidity", [42] "ultra vires", [43] "jurisdictional error" [44] and "lack of power". [45] Collateral challenge is limited to where the validity of the decision is "merely an incident in determining other issues". [46] The "relevant distinction" between collateral review and conventional judicial review is "between the 'validity' of the order…and the legal propriety of the making of it". [47]
In Sudi, [48] Weinberg JA adopted, with apparent approval, the statement of Wells J in Hinton Demolitions Pty Ltd v Lower (No 2) [49] that a permissible collateral challenge extends to those cases without "even the colour of lawful authority" and "where an authority or public official, who is a party to a civil action, pleads, and relies on his own administrative act". This second example has application to these proceedings, where the Corporation has pleaded and relies on what it alleges to be its own act of the November 2012 decisions in order to establish the statutory debt.
The interference with private law rights is another example where collateral review has been found to be available. Executive and administrative acts can adversely affect private rights and interests, and prerogative writs are "inadequate" and "not wholly effective" as general public law remedies. [50] The plurality in the High Court decision of Corporation of the City of Enfield v Development Assessment Commission [51] stated: "Significant questions of public law, including those respecting ultra vires activities of public officers and authorities, are determined in litigation which does not answer the description of judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth). Examples of other vehicles are the actions for recovery of moneys exacted colore officii or paid by mistake, and those for trespass, detinue and conversion where the plaintiff challenges the validity of the authority relied upon by the defendant" (underlining added). [52]
The Corporation is as much subject to the law as those such as Mr Quinn who may be affected by the exercise of its powers and: "within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise." [53]
In the present case, the ambit of collateral review depends upon the proper construction of the statute that supports the Corporation's claim. [54] As identified earlier, s 57 of the 2001 Act requires the satisfaction of a number of items as preconditions to recovery by the Corporation. The satisfaction of those preconditions is within the ambit of a valid collateral attack.
If the 2001 Act specifies matters essential to establishing the statutory cause of action, it is unquestionable that Mr Quinn is entitled to challenge the existence of those matters. Where those matters include a decision of the Corporation, that must mean a valid decision of the Corporation. The decision need not be one which would survive judicial review proceedings but it must be one which is shown to have the qualities that are demanded by the statutory provision for recovery of the rebates. This is an application of the "relevant distinction" referred to in Ousley v the Queen [55] between the validity of the order and the legal propriety of the making of it. Those qualities or preconditions specified by s 57 include that it is a decision of the Corporation, that it came after a s 58 investigation, and that it determined its date of effect under s 57(2). The decision of the Corporation must be made by the Corporation acting within its powers. Enquiry into these matters does not involve going behind the decision to consider its merits or the matters relied upon to reach the decision (so long as they are not elements in the statutory cause of action), nor does it involve questions about whether prerogative relief should be granted.
The Corporation submitted that the Act was analogous to the Building and Construction Industry Security of Payment Act 1999, which required a "pay now, argue later" regime. It was submitted that the "later" argument was confined to judicial review proceedings for prerogative relief. I do not accept the analogy. The Building and Construction Industry Security of Payment Act involves temporary determination of liability, whereas the s 57(5) debt is recoverable as a final conclusive judgment. This Court is not equivalent to an adjudicator under the Building and Construction Industry Security of Payment Act. The only proper application of the "pay now, argue later" aphorism seems to be that the Corporation (rather than the tenant) pays the rebate at one time, but may later set it aside and argue about recovery.
The Corporation in these proceedings seeks to rely upon its own act. It interferes with the private rights of Mr Quinn. These matters support the availability of a collateral challenge. Section 57 of the 2001 Act specifies certain facts that must be established to create the Corporation's cause of action, and these facts are amenable to challenge.
The decision of Wandsworth London Borough Council v Winder, [56] referred to in Federal Airports Corporation v Aerolineas Argentinas, [57] is analogous to the present. There the tenant was sued for a rent increase resulting from a council resolution, a resolution alleged by the tenant to be beyond power. The House of Lords determined that the decision could be impugned because it deprived the tenant of existing private law rights and depended on an invalid resolution of council.
For these reasons, I find that Mr Quinn is entitled to challenge the validity of the November 2012 decisions and whether they constitute a valid Cancellation Decision. However, the nature of any particular challenge must be considered to determine whether it is within the ambit of a permissible collateral attack.

[15]

(a) The extent of the backdating power and rebates "granted under this Part"

Section 57(2) provides that, as part of the Cancellation Decision, the Corporation "is to determine the date (being…before, on or after…the determination) on which the…cancellation has effect or is taken to have effect".
Section 57 was enacted as part of the 2001 Act, with effect from 1 July 2001. Mr Quinn relied on the presumption against retrospectivity to submit that, as a result, 1 July 2001 is the earliest date the cancellation can be "taken to have effect".
The presumption against retrospectivity has two components. The first is in respect of a provision that might have legal operation from a past date. [58] "[I]t is a settled rule of construction of Statutes that a law is not to be construed as retrospective in its operation unless the Legislature has clearly expressed that intention". [59]
The provisions of Pt 7 of the 2001 Act, including s 57, do not purport to come into operation any earlier than the commencement of the Act on 1 July 2001.
However, s 57(2), by the use of the word "before", plainly grants to the Corporation the power to make a retrospective decision, operating from a date prior to the decision. That does not of itself make the subsection retrospective, so long as the date selected by the Corporation is not prior to 1 July 2001. The law prior to the enactment has not been affected by the 2001 Act, and so there is no retrospectivity in the Act itself. This may be one application of the "further rule" stated in RS Howard & Sons Ltd v Brunton that an Act "is not to be construed as retrospective to any greater extent than the clearly expressed intention of the Legislature indicates". [60]
A second operation of the presumption arises where an enactment might alter rights and liabilities which have already come into existence. As stated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267: "a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events".
On the other hand, "Interference with existing rights does not make a statute retrospective. Many if not most statutes affect existing rights". [61]
A contrary intention to the presumption against retrospectivity is not limited to those "extreme circumstances" where "alteration of an existing right or liability 'cannot be avoided without doing violence to the language of the enactment'" but rather includes those circumstances where the intention appears clearly or plainly from the text and context. [62]
The words in s 57(2) of the 2001 Act empower the Corporation in clear terms to backdate the effect of a decision to cancel rebates. Whilst no limitation on the extent of that backdating is expressed, neither is there a plain expression that the backdating can extend prior to the enactment of the Act. As the cancellation of rebates can only extend to rebates "granted under this Part" under s 57(1), there is no apparent utility in backdating the cancellation under s 57(2) to a date prior to the enactment, in the absence of some other provisions.
In Diab, Macfarlan JA (apparently agreed to by Beazley P at [12], Leeming JA at [50]) stated at [30] that the Corporation: "may recover amounts relating to the period after the date which the Corporation decides under s 57 that its rebate withdrawal should be taken to have had effect. The Corporation accepted at the hearing in this Court that that could not be a date prior to the Housing Act 2001's commencement date (1 July 2001)".
The Corporation expressly refrained from making the same concession in these proceedings.
On first reading, the passage quoted indicates that the Corporation conceded that a rebate cancellation could not be backdated to a date earlier than 1 July 2001, a concession which I might infer from the quoted passage was regarded as correct by the Court of Appeal. But the quoted passage has a possible alternative meaning. Rather, the word "that", second occurring, in the second sentence of the quoted passage might equally be a reference to that date up to which the Corporation may "recover amounts" (rental rebates) as it may be to the date "its rebate withdrawal should be taken to have effect". They are not necessarily the same date since, as indicated earlier in this judgment, the former is specified under s 57(4), the latter under s 57(2). The recovery decision under s 57(4) may extend to the whole "or part" of the rental rebate "on or after" the date the cancellation "took effect", even though by the Cancellation Decision under s 57(1) and (2), all the rebates thereafter were rebates to which "the tenant was not entitled" according to s 57(4)(a). Rebates referred to in s 57(4)(a) and elsewhere must be a reference to a rental rebate granted under Pt 7 and cancelled under s 57(1), both because of the terms of s 57(1), and because s 57(4) only extends to rebates "to which…the tenant was not entitled" because of the Cancellation Decision including its date of effect.
Accordingly, or in any event, because of the concession made by the Corporation in Diab about the limited backdating power (so that the matter was not truly in issue in Diab) or because of the possible alternative meaning of the Court of Appeal passage quoted or because Diab was decided on other grounds, it is doubtful that Diab is binding authority precluding a date prior to 1 July 2001 being determined under s 57(2).
In Amalgamated Engineering Union (Aust Section), Ex parte; Re Jackson, [63] the plurality also adopted the words of Secretary of State for Social Services v Tunnicliffe, that "the greater the unfairness, the more it is to be expected that Parliament will make [the existence and extent of retrospectivity] clear if that is intended". [64] In the present case, rebates granted in the years shortly prior to 2001 are not subject to a statutory power governing cancellation and recovery because, subject to the consideration of the transitional provisions below, they were not granted under Pt 7. Thus, while there may be no utility in backdating cancellation prior to 1 July 2001, nor is there any particular unfairness: the rebates from an earlier time are not Pt 7 rebates, and are not able to be cancelled or recovered no matter what date is chosen.
For this reason, subject to what appears below in respect of the transitional provisions, there is no reason why the wide words of s 57(2) should be read down. The backdating could extend to any past date without rendering the decision invalid, including a date prior to 1 July 2001, although, as indicated, the utility of specifying a date earlier than enactment is absent.

[16]

(b) What rebates are "granted under this Part"?

Although the Corporation relied upon the terms of s 57(2) to justify recovery of pre-2001 rebates, its principal argument was founded on the transitional provisions in the Act.
It might be thought unlikely that s 57(2) was given retrospective operation in the transitional provisions. Transitional provisions may be principally enacted to ease the transition from the law as it was to the law as it becomes, rather than enact a substantive change to the earlier law. This policy is reflected in the provisions governing transitional regulations. Clause (1) of Part 1 of Schedule 3 of the 2001 Act indicates that regulations "may contain provisions of a savings or transitional nature". Clause 1(3) provides: "1 Regulations … (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication." Thus regulations are to be construed as not retrospective.
Nevertheless, the proper meaning of the specific transitional provision in context is paramount.
The principal provisions relied upon by the Corporation are cl 5(1) and (2) of Pt 2 of Sch 3 of 2001 Act. Clause 5 relevantly provides: "5 Contracts, documents and agreements under former Housing Acts (1) Any contract executed under any provision of a former Housing Act is taken to have been executed under the corresponding provision of this Act. (2) Any approval, warrant or delegation executed under any provision of a former Housing Act and in force immediately before the commencement of this clause is taken to have been given or made under the corresponding provision of this Act."
Some historical matters need to be specified to explain the context in which these provisions operate.
Mr Quinn entered a residential tenancy agreement with the Corporation dated 6 March 1998, commencing 9 March 1998. That agreement continued in operation until the end of the lease on 15 May 2014, when the Tribunal terminated the lease. Clause 31 of the residential tenancy agreement provided: "31. RENTAL REBATE The tenant acknowledges that the landlord may formulate a policy for the granting of rebates or waiver of rents. The parties agree that in accordance with such policy the Corporation/Department as landlord may grant a rebate or waive rent in its absolute discretion."
Although there were specific provisions dealing with rental rebates in regulations made under the Housing Act 1912 ("the 1912 Act"), those regulations were repealed during the early 1990's. Thereafter, until 2001, the Corporation submits rental subsidies were granted under the more general powers of the Corporation contained in former Housing Acts. Sections 9 and 10 of the 1912 Act gave the Corporation powers in respect of land, including to "lease" and "deal with land" as it thought fit. Sections 10 and 14 of the Housing Act 1976 ("the 1976 Act") are similar.
It was not in contest that Mr Quinn was granted rental subsidies from 1998, and that the grant of the subsidies was lawful, although the manner in which those subsidies were lawful is not obvious, and is a matter considered below.
Nor was it in contest that the residential tenancy agreement was a contract falling within cl 5(1) of Sch 3. Thus, it must be "taken to have been executed under the corresponding provision of [the 2001 Act]". It was not suggested that the "corresponding provision" was found in Pt 7 of the 2001 Act (which is concerned with rental rebates and not powers to enter leases), but rather in the general powers in ss 7 and 8 of the Act, corresponding to some degree with ss 9 and 10 of the earlier Act.
Although the residential tenancy agreement included cl 31 in respect of rental rebates, the circumstance that the contract "is taken to have been executed" under the 2001 Act by cl 5, Pt 2 of Sch 3 of the 2001 Act does not determine whether the rebates granted (in respect of obligations in that agreement) were rebates granted under Pt 7. That question must depend upon the action in granting the rebates, rather than the action in entering the contract. At the time in 1998, rebates, subsidies or a waiver of rent could of course not be granted under Pt 7 since it did not exist.
The Corporation submitted that cl 5(2) of Pt 2 of Sch 3 had the effect that prior subsidies were "taken to have been given" under Pt 7 of the 2001 Act. The application of cl 5(2) to subsidies granted to Mr Quinn prior to July 2001 requires that: 1. a former Housing Act provision provided the statutory basis for the grant of the subsidy; 2. the grant of the subsidy or rebate involved an "approval [that was] executed" under that former provision; 3. the "approval" was "in force immediately before" the 2001 Act commenced; and 4. Part 7 of the 2001 Act contains the "corresponding provision" to the provision under which the subsidies were granted prior to 1 July 2001. None of those matters are obvious.

[17]

(i) Is there a statutory basis in a former Housing Act for the grants of subsidy to Mr Quinn?

The statutory basis for the subsidies granted to Mr Quinn is not apparent. The evidence of the initial subsidy is a computer printout making no reference to any statutory provision. It gives "subsidy details" indicating Mr Quinn's income, percentage rate of income payable as rent, and the subsidised rent, and makes reference to codes which are were explained.
The Corporation made two alternative submissions as to the basis of the subsidy. First, that the subsidy was granted under the contract. Reference was made to cl 31. But cl 31 merely foreshadows a possible subsidy, it does not empower the Corporation to give it. [65] In any event, cl 5(2), by its terms, can only operate in respect of the subsidy if it is granted under a former Housing Act provision, not under a contractual provision. A finding that the subsidy was granted under cl 31 of the residential tenancy agreement would thus not assist the Corporation.
The alternative submission is that the subsidy was granted under the general powers of the Corporation dealing with land in ss 9, 10 and 14 of the 1976 Act.
The provisions of the 1912 Act and the 1976 Act, as noted above, allowed the Corporation to lease land vested in the Corporation "on such terms or conditions as it thinks fit". [66] Although these provisions are not specific to rental rebates, there is no reason to read down their width. The conduct of the Corporation, including the grant of subsidies, would be expected ultimately to be rooted in some statutory power. The provisions allowed the lease to Mr Quinn to be granted on terms, including rebated rent or rental subsidies, as the Corporation thought fit. Clause 31 of the residential tenancy agreement imports this power into the contract.
Accordingly, I accept that the subsidies formerly granted to Mr Quinn prior to 1 July 2001 pursuant to cl 31 of the residential tenancy agreement were granted, at least indirectly, under the provisions of a former Housing Act, namely s 14 of the 1976 Act.

[18]

(ii) Is a grant of a rebate or subsidy the "execution" of an "approval"?

The Corporation submitted that the term "execution" in cl 5(2) also applied to "warrants", and that as the execution of, say, a warrant for possession would involve the carrying out of the warrant, I should read "execution" as at least including "carrying out". How such a construction would assist the Corporation was not apparent. Nor do I find the analogy especially persuasive, and would incline to view that the "execution" of a warrant (and an "approval" and "delegation") may refer to its formal creation.
However, it might be supposed that a subsidy granted under a former Housing Act, and current immediately prior to the enactment of the 2001 Act, was intended to continue under the new statutory regime, as in fact occurred. If the subsidy was not continued by cl 5(2), then its legal status would be uncertain. If there was no statutory foundation for Mr Quinn's pre-existing subsidy when the 2001 Act was enacted, it may be that recovery of it by the Corporation as money had and received, or money paid under a mistake, might potentially have been available, although such an action might long ago have become statute-barred. No such cause of action is part of the current claim of the Corporation.
Because of the likely need after the enactment of the 2001 Act for there to be a legislative foundation for the subsidies or rebates already existing in July 2001, I am inclined to the view that a grant of subsidy would be within the terms of an "approval…executed" under a former Housing Act, with the result that Mr Quinn's entitlement to a subsidy did not evaporate with the passage of the 2001 Act. It cannot be supposed that the intention of the 2001 Act was to end the legal basis for then existing subsidies, and to do so sub silentio, with no express reference. Consideration of fairness and consistency referred to in Project Blue Sky Inc v Australian Broadcasting Authority [67] and other cases [68] support that construction.

[20]

(iv) "The corresponding provision"

Identifying the "corresponding provision" to ss 9, 10 or 14 of the 1976 Act is also not apparent. The 1976 provisions are in Pt 3, headed "Functions of the Corporation", and concern functions or powers of the Corporation with respect to and including dealing with land. The most closely equivalent provisions in the 2001 Act are ss 7 and 8 in Pt 3 and s 18 in Pt 4, although other provisions in Pts 3 and 4 have some similarity. It is evident that if a rebate or subsidy could be granted under Pt 3 of the 1976 Act, then it could also be granted under s 18 in Pt 4 of the 2001 Act which empowers the Corporation "subject to such terms and conditions as it thinks fit [to]…lease…the land or any part". However, after 1 July 2001, when there are express provisions for the granting of rebates in Pt 7 headed "Rental Rebates", I would infer that rebates were in fact granted under Pt 7.
The Corporation submitted that Pt 7 was the "corresponding provision" because it would be the provision under which rental rebates are granted. Pt 7 need not be the "corresponding provision" in order for the rebate or subsidy to continue under the 2001 Act; that is also achieved if Pts 3 or 4 of the 2001 Act are the "corresponding provision[s]". The significance of Pt 7 being the corresponding provision is that it might allow the backdated cancellation and subsequent recovery of pre-2001 rebates.
In referring to "corresponding provision", cl 5(2) focuses on the content or nature of the former and present provisions, rather than upon the actions done under those provisions. Clause 5(2) does not refer to the provision in the earlier Act corresponding to Pt 7. These matters, along with the similarity between s 18(b) of the 2001 Act and s 14 of the 1976 Act, persuade me that s 18(b) of the 2001 Act is the "corresponding provision" to s 14 of the 1976 Act, under which rebates were formerly granted.
To hold otherwise would be to create retrospectivity where none is demanded by the terms of cl 5(2).
The Second Reading Speech for Housing Bill 2001 stated: "The current legislation does not provide sufficient power for the Land and Housing Corporation to fully investigate and deal with rental rebate fraud, despite the substantial increase in the proportion of tenants who receive a rental rebate. In the early 1990s the regulations under the Housing Act 1912 were allowed to lapse under the Subordinate Legislation Act 1989. Those regulations gave extensive powers to the Land and Housing Corporation in relation to granting and revoking rental rebates and in relation to investigation. The Land and Housing Corporation currently relies on sections 48 and 49 of the Housing Act 1912, and on existing contractual and administrative principles of law. This bill will provide the necessary powers to deal with rental rebate fraud. The powers will include the capacity to investigate suspected rebate fraud, cancel or vary a rebate, and require repayment of arrears where a rebate has been fraudulently claimed. The bill will not establish a harsh or punitive system. The Land and Housing Corporation will continue to be governed by privacy principles and legislation. Tenants' rights will not be changed at all, including the right to appeal decisions to an independent appeals committee. However, taxpayers and the vast majority of tenants who do the right thing deserve to be certain that everyone is paying their fair share."
This speech indicates that the mischief to be remedied by the 2001 Act included the lack of a solid statutory foundation for the recovery of wrongly claimed rebates. This mischief does not require and the speech does not indicate a change in the law applicable to past subsidies or rebates, granted and spent.
There may be a point in favour of Pt 7 as the "corresponding provision" if that were the only Part under which a subsidy could be granted. However, I do not read Pt 7 as narrowing the scope of the power in s 18(b). Had the Legislature intended for the new regime to apply to subsidies under the old Act, it could easily have been plainly stated. Whatever cl 5(2) applies to, it is not sufficiently clear [69] that it was intended to treat subsidies under the prior Act as rebates under Pt 7 of the 2001 Act so as to make those subsidies retrospectively become amenable to the retrospective cancellation and recovery procedure under that Part.
Another reason in favour of this construction is that the contrary would mean that the transitional provisions extend to the rebate "in force immediately before the commencement", that is, to the 7 May 2001 rebate. The transitional provisions could not extend the recovery provisions to all pre-2001 Act subsidies for this specific quoted limitation precludes that construction. What mischief would be cured by catching only the most recent subsidy, which may be a short period, like seven weeks in Mr Quinn's case, or perhaps a long period in other cases? Consistency, an important feature in statutory construction, [70] works against a construction that allows the recovery of rebates for a trivial retrospective period in respect of one tenant but for a lengthy period for another tenant, on a criterion only of the date of the most recent rebate review prior to 1 July 2001. The better, fairer and more consistent construction is that the transitional provisions were not intended to have any retrospective effect in respect of cancellation and recovery of rebates.
If I am wrong, and the 7 May 2001 rebate is by cl 5(2) taken to be a rebate granted under Pt 7, that raises questions about the presumption against retrospectivity that I have found to be inapplicable. In this event, the full force of the presumption would apply because there is a potential injustice and a real retrospective operation in the backdating power extending to a date prior to the enactment of the 2001 Act. Whilst that would cause me to revisit the view expressed above that allows an earlier (pre-July 2001) cancellation date to be determined by the Corporation, in view of the findings I make about the meaning of "corresponding provision" it is unnecessary that I do so.
How then is the Corporation to cancel the 7 May 2001 rebate, which is taken to be given under the 2001 Act but not under Pt 7? Section 57 supplies no power to cancel that rebate, but nor does it preclude its cancellation. Clause 31 of the contract gives the Corporation power "to grant a rebate or waive rent in its absolute discretion". This embraces the power to end (although not retrospectively) a rebate not subject to the terms of Pt 7. At any time during its operation, a pre-1 July 2001 rebate could thus be cancelled.
For these reasons, rebates granted to Mr Quinn prior to 1 July 2001 are not rebates granted under or taken to be granted under Pt 7 of the 2001 Act and are therefore not amenable to cancellation under s 57(1) and (2), and recovery under s 57(4).

[22]

We will continue to charge the market rent until you provide full details of the people, income and assets for your household. Due to your subsidy being cancelled, a total debt of $221,062.10 has been placed on your rental account. As at 19 November 2012, your current balance is now $221,414.60 in debit." [72]

The notifications given by the Corporation to Mr Quinn specified an amount of $221,062.10 as the debt on Mr Quinn's rental account as a consequence of the November 2012 decisions. The evidence indicates that Mr Quinn's account was $140.80 in credit prior to the debiting of the purported cancelled rebates. Thus, in the submission of the Corporation, the total amount of the rebates cancelled was $221,202.90 which, after a credit of $140.80, meant that Mr Quinn was required to pay $221,062.10.
The contents of the letters, Mr Quinn's rental account, and the amount claimed, demonstrate that Mr Quinn was not merely being required to repay cancelled Pt 7 rental rebates, but also rental subsidies granted prior to July 2001. As the Corporation was not entitled to cancel pre-July 2001 rebates, not being Pt 7 rebates, it was therefore not entitled to require the tenant to repay an amount in respect of those prior rebates.
Under s 57(5) of the 2001 Act, the Corporation is entitled to recover any amount referred to in s 57(4) that is unpaid. The amount nominated for repayment in the letter of 22 November 2012 has not been repaid. But as it contains some rebates that are not repayable, a question arises as to whether any amount is repayable under s 57(5) if there has been a defective s 57(4) notice.
The entitlement of the Corporation to recover arises once it has "by notice in writing" required the tenant to pay an amount in accordance with the terms of s 57(4)(a). The s 57(4)(a) amount can be less than the cancelled Pt 7 rebates, but it cannot be more than those rebates: it can only extend to an amount equal to the whole "or part" of the cancelled rebates. In this case, the notice in writing has purported to require Mr Quinn to pay an amount more than the cancelled Pt 7 rebates.
Does s 57(4) require "an amount" to be specified? Other than the reference to "an amount", there is no express requirement in the s 57(4) notice requiring a figure to be specified. However, it is difficult to see how a tenant can be required to pay an amount that is not specified, even less that an unpaid portion of an unspecified amount may be recovered under s 57(5). Both because of the reference to "an amount", and because of the fairness of enabling the tenant to avoid liability by paying the specified amount, the preferable construction is that the amount must be specified.
In any event, the notice did not refrain from specifying an amount, but specified an incorrect and higher amount than that to which the Corporation was entitled.
Further, the substance of the letter indicates that a significant part of the amount specified was due to purportedly cancelled pre-July 2001 subsidies. The error is thus not merely in specifying the wrong amount, but claiming an amount derived from subsidies when neither the amount specified nor the subsidies from which the specified amount was derived were recoverable by the Corporation.
For these reasons, the letter of 22 November 2012 purporting to require Mr Quinn to repay $221,062.10 in cancelled subsidies (plus other rent) was defective. It did not answer the requirements of s 57(4)(a) because it claimed an amount (both because of the sum and because of its basis) that was not able to be recovered by the Corporation under s 57(4)(a).
As the letter did not satisfy the requirements of s 57(4), there has been no s 57(4) notice and there is no "amount…referred to in subsection (4) that is unpaid" and recoverable under s 57(5).
The Corporation was repeatedly asked whether it maintained any argument that defective components of the s 57(4) notice could be severed and it repeatedly disavowed any such argument. No severance was pleaded. The only argument raised was that the error was not amenable to collateral attack. Because the defect in the 22 November 2012 letter involves a failure to comply with the statutory prerequisites for the s 57(5) debt, and for the reasons previously given in relation to a collateral challenge, this argument must fail.
Finally, late in the afternoon on the final day of oral submissions the Corporation sought to raise an argument regarding severance, but only in relation to the application of the decision to future rent. That matter is dealt with later in this judgment.
Accordingly, the decisions to cancel pre-1 July 2001 rebates (not being Pt 7 rebates), and to recover those rebates renders the decisions invalid on their face. They do not comply with s 57(1) because they purport to cancel and recover under s 57 every rebate since the backdated date of effect, including subsidies that are not Pt 7 rebates.
To the extent that Diab establishes that the decision is invalid because of the pre-2001 backdating date (contrary to my earlier reasons), that would be another reason for invalidity. In Diab, the Court of Appeal did not consider whether the excessive claim for recovery in respect of cancelled rebates [73] invalidated the Corporation's entitlement to recovery of Pt 7 rebates, principally because the proceedings in Diab did not concern that entitlement, [74] but rather whether, to the extent that any amounts of rebates were recoverable, those amounts constituted arrears of rent.
The lack of a valid s 57(4) notice means that there is no statutory basis for recovery of any cancelled rebates dated prior to 15 November 2012.

[23]

(d) Decisions made by the Corporation

Section 57(1) and (2) contemplates a discretion being exercised by the Corporation as to whether to cancel Pt 7 rebates and as to the date the cancellation is to be effective. Section 57(4) contemplates a discretion being exercised by the Corporation as to whether to recover all or what part of the cancelled rebates. Thus, there are two decisions to be made by the Corporation, and two discretions to be exercised, in order for the Corporation to be entitled to recover an amount in respect of cancelled rebates. [75] These two decisions comprise the Cancellation Decision and the Recovery Decision. Mr Quinn submits that neither of the November 2012 decisions made in this case was properly a Cancellation Decision or a Recovery Decision made by the Corporation in accordance with s 57. The force of that submission depends upon the identity, position and authority of the decision maker.
Brennan J, as President of the Administrative Appeals Tribunal, said in Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Services: [76] "An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes power…Validity is thus dependent upon the identity of the authority and the doer of the act".
The evidence concerning the decisions is thin, and the identity of the decision maker non-existent. The Corporation submitted that the decision was in writing and disavowed any suggestion of an oral, unrecorded decision. The only contemporaneous primary documents in evidence comprise two letters to Mr Quinn: the first dated 15 November 2012, giving him notice of a purported Cancellation Decision, and the second dated 22 November 2012, giving notice of the purported Cancellation and Recovery decisions; and three emails. No actual decision is in evidence. Nor is there a briefing note containing recommendations. Nor is there any relevant report of an investigation under ss 57(1) and 58 concerning Mr Quinn's weekly income. The actual decision maker is not identified in any document, and even on the Corporation's case, the position occupied by the unidentified decision maker is uncertain.
Nevertheless, the Corporation submits that there was a briefing note recommending cancellation of the rebates and recovery of the amount, which was approved by a General Manager ("GM") or alternatively, the Area Director in October or early November 2012.

[24]

(i) Documentary evidence

On 6 September 2012 Mr Quinn forwarded a signed Rent Subsidy Application to the Department of Family and Community Services ("FACS"). It was accompanied by a completed "Employment Income Details" form declaring a current gross weekly wage of $385. The form is signed by the "Employer's representative".
On 18 September 2012 FACS sent to Mr Quinn an unsigned letter stating: "Dear Mr R. Quinn RENT SUBSIDY REVIEW - YOUR NEW RENT AND WATER CHARGE This letter is to advise you of your new rent and water charge. Housing NSW has assessed your eligibility for a rent subsidy. Our assessment has determined that you are eligible for a rent subsidy. Your new rent Your new rent will be $96.25 per week, which you must pay from 10 September 2012. Your new rent is based on your household income details shown in the Rent Assessment Details table at the end of this letter. Your new water charge Your new water charge will be $4.50 per week, which you must pay from 10 September 2012. This charge is based on whichever is lower: 4.7% of your rent, of $7.00 (the amount at which water charges have been capped). Adjustments due to you rent Due to the change in your household income, we have adjusted your rent account by $24.80DR. We have also adjusted your water account by $1.10 DR over the same period. … Housing NSW".
On Friday, 9 November 2012 at 11.12am Michael Lindfield, a person whose then position in FACS is not identified, sent an email to Angela Walsh and Lynda Duncan on the subject of "Quinn, Robert - Cancellation of Subsidy Advice.doc" in the following terms: "Lynda/Angela Would you please arrange for this to be sent out asap? Please commence cancelling subsidies as approved by GM - once you have done so, advise client in writing of amount. Cheers Michael".
The email did not otherwise indicate the presence of an attachment. Quite what is described by the phrase "as approved by GM" is unclear. Mr Lindfield did not give evidence.
The following Monday morning, 12 November 2012, at 9.43am Lynda Duncan, the Acting Team Leader in FACS at Surry Hills, forwarded Mr Lindfield's email to Shannon Pickering, cc'd to Angela Walsh. The same subject was repeated. The email said: "HI Shannon Rent subsidies to be cancelled - please discuss when Ange returns this PM Cheers Lynda Duncan".
Again the email did not indicate any attachments. Ms Duncan did not give evidence.
The following Thursday, 15 November 2012, at 11.15am Ms Pickering from FACS Surry Hills responded to the email with an email to Angela Walsh, cc'd to Lynda Duncan, on the same subject. She wrote: "Hi Angela Please see tenant file T0537891. There is no investigation folder from TFU in relation to cancelling subsidies or any details of an investigation. There is also no approval from GM to cancel all subsidies from 1998 on the file. I'm hesitant in cancelling as requested without seeing the GM's approval. If I can cancel the subsidies on HOMES, we have to manually reinstate every subsidy from 1998 if approval has not been given by the GM, this is a huge job to redo. Also, just FYI this debt will equate to $220,570.00. Should it be listed as fraud or non disclosure??? No report and no details provided? Please advise Shannon Pickering │ Senior Client Service Officer".
Again the email contained no attachments. Ms Pickering gave evidence.
That same day, Ms Walsh sent notification of a rebate cancellation in a letter to Mr Quinn. It stated: [77] "Dear Mr Quinn, I am writing to advise you that, pursuant to Section 58 of the Housing Act, 2001 (NSW) Housing NSW has conducted an investigation into allegations that you failed to declare your full household income when claiming a rental rebate from the Corporation. I note that you have previously been advised that this investigation was taking place. Section 58 states: 58. Investigation of application (1) The Corporation may make an investigation to determine the weekly income of: (a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, During the course of this investigation, you were requested on a number of occasions to provide information to either refute the allegations, or to substantiate your continuing eligibility for a rental subsidy. Housing NSW specifically requested that you provide information on your bank accounts, tax returns and tax assessments. You have not provided the information requested. Pursuant to Section 57 (1) of the Housing Act, 2001 (NSW), Housing NSW has decided to cancel your rent subsidies for the property you occupy, effective from 01 July 1998 to date and continuing. Section 57 (1) states: 57. Cancellation or variation of rental rebate (1) The Corporation may, after conducting an investigation under section 58, vary or cancel any rental rebate granted under this Part. Cancellation of your rental subsidies will now take place. You will be advised in writing of the amount that the Corporation will require you to pay. 57. Cancellation or variation of rental rebate (4) If the Corporation reduces or cancels a tenant's rental rebate under this Part with effect from a preceding date, the Corporation may, by notice in writing to the tenant, require the tenant to pay to the Corporation: (a) an amount equal to any rental rebate or part of a rental rebate received by the tenant on or after the date that the variation or cancellation took effect to which, because of the variation or cancellation, the tenant was not entitled, and (b) interest (at the rate prescribed under section 101 of the Civil Procedure Act 2005 in respect of unpaid judgments) on any outstanding amount under paragraph (a) from a date specified in the notice, being a date not earlier than the date on which the notice is issued to the tenant. It will be the intention of the Corporation to seek to recover from you the rental rebates that you received during the period of cancellation. You are hereby advised that you have the right to appeal any decision taken by Housing NSW in relation to the granting or withholding of a rental subsidy… Yours faithfully, Angela Walsh". Ms Walsh was the Team Leader for the team managing Mr Quinn's tenancy. She did not give evidence.
Also on 15 November 2012, Ms Pickering activated a computer adjustment to Mr Quinn's rental account which operated to insert weekly charges from 3 April 2000 to 12 November 2012 totalling $221,202.90. Thereafter, the account records a "standard debit" of $545.00 (and from 25 November 2013, $565.00) which was the asserted rent, and a fortnightly payment of $192.50 from Mr Quinn which equals the fortnightly rent under the "Rent Subsidy Review" dated 18 September 2012, quoted above.
One week later, on Thursday, 22 November 2012 Ms Pickering forwarded a letter to Mr Quinn specifying the amount owed by him as a result of the cancelled rebates, and requiring repayment. It was in these terms: [78] "Dear Mr Quinn, YOUR RENT SUBSIDY Section 57 of the Housing Act 2001 This letter is about your rent subsidy assessment. As you are aware, Housing NSW has received information that: • That you have failed to declare business interests and income to Housing NSW, for the purpose of retaining a rental subsidy that you knew you were not entitled to, • That you have been the owner and a company director of Pyrmont Car Store, • That you have been a Company Directory of Dealbang Pty Ltd, • That you have been a Company Directory of Cunding Futs Pty Ltd, • That you owned and operated commercial MV Martin Cash. Under section 58 of the Housing Act 2001, Housing NSW may conduct an investigation to determine weekly income of: • any person who is an applicant for, or who receives, a rent subsidy, and • any other person in the household. After considering all of the circumstances, we have decided that you have failed to disclose the following information: • That you are the owner of, and a past Company Director of, Pyrmont Car Store. You failed to declare this to Housing NSW or to provide any information relating to income that you received from this enterprise, when required to. You have been operating this business since prior to the commencement of your current tenancy. • The investigation into the other allegations outlined above is still in progress. … As you have not provided enough details to complete a full assessment of your rent subsidy, we have cancelled it. The cancellation takes effect from 05 July 1998. Housing NSW has the right to cancel you subsidy under Section 57(1) of the Housing Act 2001, which states: The Corporation may, after conducting an investigation under Section 58, vary or cancel any rental rebate granted under this Part. You will now be charged the market rent of $545.00 per week from 08 October 2012. The following subsidies have now been cancelled from 05 July 1998 and you have been charged market rent for the below periods: 05 Jul 1998 - 03 Jun 2001 $230.00 04 Jun 2001 - 17 Jul 2005 $330.00 18 Jul 2005 - 01 Oct 2006 $375.00 02 Oct 2006 - 30 Sep 2007 $435.00 01 Oct 2007 - 12 Oct 2008 $460.00 13 Oct 2008 - 02 Aug 2009 $515.00 03 Aug 2009 - 09 Oct 2011 $465.00 10 Oct 2011 - 07 Oct 2012 $510.00 08 Oct 2012 - current $545.00

[26]

(ii) Ms Pickering

Ms Pickering gave evidence that her usual practice was to review any decision cancelling a rebate and then prepare and send the letter advising the tenant. She could not "recall the exact circumstances at the time" [79] but affirmed that because a lot of work was involved to reinstate the subsidy, she "would not go through the process of cancelling a tenant's subsidy unless I had seen the decision cancelling the subsidy". [80]
Ms Pickering also affirmed that there was no decision cancelling Mr Quinn's rebates kept on the electronic file. She said that hardcopy files were also maintained but that she had not been able to locate a copy of any such decision.
In oral evidence, Ms Pickering was adamant that she would not have proceeded with the cancellation without seeing the General Manager's approval, even if her boss had told her that the General Manager had approved it, had notified Mr Quinn of the cancellation and had told Ms Pickering to act on that.
I was not entirely comfortable with Ms Pickering's evidence. The reason Ms Pickering offered as to why she would always see the approval of the cancellation was because once she had cancelled the rebate it would involve a lot of work to reinstate it. That reason is supported by the email where she said she was "hesitant in cancelling…without seeing the GM's approval" because it is "a huge job to redo" once she cancels the subsidies. But there is no suggestion that she was responsible for ensuring that an approval by the General Manager had occurred. A reason based on the work involved to manually reinstate the subsidy may be a reason to question a decision, but is less convincing as a reason to disregard or disobey her supervisor's instruction had her supervisor assured her of the General Manager's approval, acted on it by sending the notice to Mr Quinn and instructed her to proceed with the cancellation. Ms Pickering's contemporaneous written record of hesitancy to cancel "as requested" is not so adamant as her more recent oral evidence.
Also, cancellation of rebates, including some backdated cancellation of rebates, did not all require the approval of the General Manager. The relevant instrument of delegation gave Ms Pickering, as well as Ms Walsh and Ms Duncan, power to cancel rebates and backdate that cancellation up to six months. This matter is dealt with later in this judgment.
Ms Pickering, in her oral evidence, regarded her letter of 22 November 2012 as a "cancellation letter", the sort she had sent numerous times and she had "a regular manner in which [she] came to write those letters". She said: "Once I receive an instruction to proceed I then update the system to cancel subsidies and then issue a letter advising the client of what's transpired for their record and natural justice." [81] She said the instruction to proceed would come "[f]rom my line manager, team leader". [82]
This evidence from Ms Pickering makes no reference to the need for her to see any written approval by the General Manager. The 12 November email was an "instruction to proceed" from her "line manager, team leader".
Nor does Ms Pickering's evidence of preparing those letters regularly from a standard template sit comfortably with the Corporation's assertion that Mr Lindfield provided a draft of such a letter in connection with his email dated 9 November 2012.
Ms Pickering's affidavit evidence that her practice was to "prepare and send the relevant letter to the tenant advising of the decision to cancel the subsidy" did not occur in this case. The records do not reflect a request for her to prepare that letter, the 15 November letter, which was prepared by her line manager, Angela Walsh. Rather, it appeared Ms Pickering's practice was to prepare the letter notifying the amount, in the form of the 22 November letter.
I would infer that a draft of the letter notifying Mr Quinn of the cancellation of his rebates was the item referred to as "this" by Mr Lindfield in his email of 9 November 2012. Ms Pickering, to the contrary, asserted that it would have been her later letter sent some 13 days after Mr Lindfield had requested it be sent "asap", a letter which advised Mr Quinn "of [the] amount". In my view, this later letter was the other matter referred to by Mr Lindfield in the final phrase of his email.
Ms Pickering's lack of recollection of the circumstances of the matter notwithstanding the somewhat striking elements in her 15 November 2012 email, the circumstance that Ms Pickering did not send the 15 November 2012 letter, and the other matters identified above, left me unsatisfied about the invariability of her practice of always personally viewing the written General Manager approval.
Ms Pickering also gave evidence that the Corporation's approval of the cancellation would be on the file or the electronic file, although it is not on either in this case. There was no evidence that Mr Quinn's file was lost.

[27]

(iii) Mr Cureton

Some months later, in May 2013, Nathan Cureton, a solicitor in FACS, gave advice to FACS regarding a "first tier appeal" by Mr Quinn against the decision to cancel his rebate. Mr Cureton's advice indicated that there was no Navazi [83] error as "there is an attempt to determine household weekly income", but nevertheless advised "Please go through the exercise of deciding whether household weekly income can be determined or not. If it can, please make this determination". Mr Cureton also advised that a letter be sent to Mr Quinn informing him of the allegations "for comment" and that thereafter Mr Quinn be interviewed.
Mr Cureton's advice also stated that "There is no actual determination of household weekly income" and "the decision-maker does not ask the question as to whether household weekly income can be determined". He wrote "it is clear from the documentation including letters and enquiries to various bodies that there was a genuine attempt to investigate Mr Quinn's income". There was one other reference to "the original decision-maker" in the advice.
Mr Cureton affirmed that his usual practice in reviewing the decision is to have a copy of the decision in front of him, and that he would not regard the letters of 15 and 22 November 2012 as constituting the written decision. He said the written decision would be in the form of a briefing note.
In oral evidence, Mr Cureton said he saw the briefing note, a matter not recorded in his affidavit. He denied that the original decision maker could have been Mr Lindfield, who was no more senior at the time than a Team Leader (such as Ms Walsh or Ms Duncan). Mr Cureton could not recall who was the original decision maker but nominated one John Waite as the "first tier decision-maker". Mr Waite did not give evidence. Mr Cureton said that the primary decision maker could have been an Area Director, a General Manager, or "one between that, I can't recall". Mr Cureton denied it could have been a Senior Client Services Officer, and thought the decision was in November 2012.

[29]

(v) Analysis

In evidence there is no decision or related documents and no explanation for their absence. Mr Lindfield, who claimed in a contemporaneous email that a cancellation had been "approved by GM", gave no evidence and his absence was not explained. Nor was Mr Lindfield's position identified. His email does not bear the formal indicia of the other FACS email.
Ms Duncan, the acting Team Leader, who forwarded the instruction to Ms Pickering to cancel the subsidies, and who apparently received the unidentified item from Mr Lindfield that was to be "sent out asap", gave no evidence and her absence was not explained.
Ms Walsh, the relevant Team Leader, who also received the same email as Ms Duncan, who was copied into Ms Duncan's request to Ms Pickering to cancel the subsidies, and who, like Ms Duncan, received Ms Pickering's pointed response of hesitancy because of an absence of an investigation folder, an approval and other details, a response that was apparently never answered, and who then, in her own name on the same day, sent out the letter notifying Mr Quinn of the cancellation, also gave no evidence and her absence was not explained.
Mr Vevers was identified as the relevant General Manager but he gave no evidence and his absence was not explained.
There was no evidence of who was or were the Area Director or Directors and no evidence from anyone in that position, and that absence was not explained.
Ms Pickering checked the file on 15 November 2012 and there was no approval from the General Manager on the file. Nor does the electronic file contain any approval. Mr Fester asserts a decision was made but he never saw it and could not say who made it.
I accept that Ms Pickering and Mr Cureton now believe they saw a decision. But they are recalling a document several years ago of no particular significance and not created by them. They cannot identify the decision maker or the contents of the decision, apart perhaps from the suggestion that some of its content might be reflected in the letters of 15 or 22 November 2012. There were two internal appeals against the decision but neither appeared to result in the creation or at least the safekeeping of a copy of the decision by the General Manager or some other senior officer. Mr Cureton's memorandum referring to the "decision maker" and not containing details of the decision leaves these questions unanswered.
The lack of explanation for the absence of crucial witnesses may permit a Jones v Dunkel inference in respect of each of them. It is an inference I would draw, that those witnesses could not have assisted the Corporation, and their absence allows inferences more readily to be drawn in favour of Mr Quinn. The drawing of adverse inferences in this case is supported by the comments in the Court of Appeal in Abernethy v Deitz. [84] While that decision concerns a judicial review case, the circumstances found to justify adverse inferences are similar.
In all the circumstances, I am not satisfied that a General Manager or an Area Director made a decision. Mr Lindfield's requests, apparently for a letter to be sent to Mr Quinn informing him of cancelled subsidies, and an advice to Mr Quinn of the amount, appear to have been implemented by the letter from Ms Walsh on 15 November 2012, the computer cancellation by Ms Pickering on the same day, and Ms Pickering's letter on 22 November 2012. But Mr Lindfield does not claim to have made the decision, and to what he was referring when he stated "as approved by GM" is known only by him. In the circumstances, I am not prepared to infer that there was a written decision by Mr Vevers to which Mr Lindfield was referring on 9 November, as the Corporation submitted.
The possibility of no such decision was acknowledged by Mr Fester: "Q. It's possible that it might not exist? A. Yes, it's possible. … A. Based on what I've - based on my knowledge of the way the organisation operates, no. I, I don't believe the decision would not have been made."
The Corporation has not established that, by a General Manager or an Area Director, it made a Cancellation Decision or a Recovery Decision pursuant to s 57. It follows that the action for recovery of past rebates must fail. However, I propose to deal with the other issues on the basis that the General Manager or Area Director did make the Cancellation Decision and Recovery Decision, in case the other issues become important.

[30]

(vi) The delegated authority of the General Manager or other officers to cancel rebates

The Corporation submitted that the General Manager had delegated authority to retrospectively cancel rebates under s 57(1) and (2) of the 2001 Act and to decide to recover retrospectively cancelled rebates under s 57(4).
Section 15(1) of the 2001 Act provided: "15 Delegations (1) The Corporation may delegate to a person the exercise of any of its functions, other than this power of delegation."
Section 6 of the 2001 Act provided that "The affairs of the Corporation are to be managed by the Director-General" and that: "Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation."
The Corporation relied on an instrument of sub delegation executed by Mike Allen, "Chief Executive, Housing NSW, Department of Human Services" ("DHS"), on 8 March 2011. DHS was, in general terms, the predecessor of FACS.
That instrument provided: "By instrument of delegation dated 24 March, 2010 Jennifer Mason, Director-General, Department of Human Services delegated to the Chief Executive, Housing NSW, Department of Human Services all powers and functions of the New South Wales Land and Housing Corporation under the Public Finance and Audit Act 1983 with power to sub delegate. To the extent that I am able, I Mike Allen, Chief Executive, Housing NSW, Department of Human Services revoke all former Financial Delegations to officers of Housing NSW previously given by me on 23 March, 2009 and I sub delegate the exercise and performance of those functions, authorities, duties and powers in column 3 of the Schedule hereto, to the person occupying the position specifically identified or within the category specified in column 4 and to the extent specified in column 5."
The Corporation tendered a later document, a signed instrument of delegation dated 30 May 2012, whereby the Director-General of FACS, Jim Moore, delegated all of his functions to Mike Allen, Chief Executive of Housing NSW, with authority to sub delegate. No issue was taken about the different primary instruments of delegation and the argument proceeded on the basis that the instruments of delegation and instrument of sub delegation were operative at the time of the November 2012 decisions subject to the issue about the correct Director-General, considered below.
The instrument of sub delegation defined an officer as: "'Officer' means the holder of a specified office and includes: (i) a person acting in that office or exercising the functions of the office and any supervising officer senior to that person; and (ii) an officer who, as a next senior officer present responsible for the holder of the office, is allocated by the holder of the office responsibility for the duties of the office during a temporary absence from duty of the holder of the office. This instrument takes effect from 8.3.11".
The instrument of sub delegation defined the delegate level of officers of DHS: Director-General at Level 1, Chief Executive at 2, General Manager at 5, Area Director at 6, Team Leader at 11, Senior Client Service Officer at 12, Client Services Officer at 13, among others.
The relevant delegations were contained at p 26 and were delegation number 38 and following in the instrument of sub delegation. This section of the Instrument is headed "GRANTS AND SUBSIDIES" and contained five columns (as did other parts of the instrument of sub delegation) as follows: "Column 1 Column 2 Column 3 Column 4 Column 5 Delegation Number Legislative Provision Power/Function Delegated Officer Category Extent GRANTS AND SUBSIDIES

                                       S 12 of the PF & A Act 1983  Approve grants under programs approved by the Chief Executive                                                          Executive Director, CH                     $6M
                                       (TD 405.01-04)

Executive Director, P & S $4M Executive Director, HS $1.5M 3, 4, 5 Director Project Development, AD Director Community and Place Strategy, P& S $1M Director Program & Asset Delivery, CH Director Sector Contracting & Performance, CH Director $ 500,000 Manager Centre for Affordable Housing, P & S 9, 11 $ 5,000 … … … … … 4, 5, 1 Executive Director, HS 41. As above Approve payment of rental and other subsidies including rent abatement under programs approved by the Chief Executive Executive Director, CH N/A Area Director Director, CH 12, 13 Where income verification has been supplied for rental subsidy purposes Housing Manager 42. As above Approve payment of special rental subsidy (SRS) and disability rental subsidy (DRS) 12 N/A Housing Manager 12, 13 43. As above Approve Rentstart Senior Client Service Officer (Technical) N/A Housing Manager 11, 12 44. As above Approve cancellation of rebate subsidy Housing Manager Up to 6 months". Manager Asset Management, CH

[31]

It was accepted that "Up to 6 months" in delegation number 44 was a restriction on the extent that Categories 11 and 12 officers could "[a]pprove cancellation of rebate subsidy". Thus, it would appear that categories 11 and 12 officers, which include Team Leaders such as Ms Walsh, and Senior Client Service Officers such as Ms Pickering, respectively, had power to cancel a rebate subsidy but could only backdate for six months the date the cancellation took effect.
The reference in the definition of officer quoted above to include "any supervising officer senior to that person" implies that, in this case, an officer senior to a Level 11 in the "reporting line" [85] above Ms Walsh would have her same authority, subject to any additional delegation in the instrument.
Although both Mr Quinn and the Corporation conceded this to be the proper construction of the document, it does not appear to be the way the document was interpreted by some in FACS. Mr Cureton gave the following evidence: "Q. The delegations for the area director or general manager don't enable them to cancel beyond six months do they? A. No, they do. Q. Why do you say that? A. What you're referring to in the delegation is the - in that instrument of delegation the six months refers to the limit of those three people that are mentioned in that particular table, so those three people-- Q. You're referring to exhibit D? A. Housing manager - sorry, I'm trying to picture it." [86] "Q. So you've got the delegated officer category 11, 12, housing manager, we're looking at item 44. A. Yes, but the limitation of up to six months refers to those positions, but anything above them is, is unlimited. Q. It doesn't say that in this document does it? A. Well, that's, that's how the power is exercised. Q. That's how it was assumed to be? A. Yeah. If you look at - I mean, this isn't explicit, but if you look at page 1 of that instrument where it says: 'Officer means the holder of a specified office and includes a person acting in that office or exercising the functions of the office or any supervising officer senior to that person.' And the way we read it is - the way that it operates is that anyone above that position that's in the box can also exercise the power but the limitation - on an unlimited basis than that six month is - only applies to those people in the actual box. Q. Sorry, where were you reading? I just can't see it. A. Sorry, if you look at the, the first page of the instrument of sub-delegation which is--". [87] "Q. I'm sorry, Mr Cureton, you just continue with your answer please. A. I, I'm just pointing out the first page of the instrument of sub-delegation where it's got that underlined, "In this instrument" and at (i): 'Officer means the holder of a specified office and includes a person acting in that office or exercising the functions of the office and any supervising officer senior to that person.' So the way that the delegation works in this context is that all of the people in the - in that box in paragraph 44 on the table also includes anyone above them, but the six months reference there only refers to those people, the 11, 12, the housing manager. So anyone above that, the way it operates is that they can make a, a cancellation decision above six months. Q. That's your interpretation of the document and that's how Housing NSW operates? A. That's right. Q. They operate on the basis that anybody above that level, they assume, is authorised, is that right? A. Yes, they take it as they're authorised for more than six months. Q. Who's the housing manager referred to in item 44? A. It's a, it's a level between, it's a level between - it's, it's an odd one to describe because they don't really supervise anyone but it's, it's a level at about team leader, maybe a little bit higher. Q. Is it a general manager? A. No." [88]
Accordingly, Mr Cureton's evidence is that "anyone above that position that's in the box can also exercise the power…on an unlimited basis". Even though the document "doesn't say that…that's, that's how the power is exercised". On that construction, every person in authority above Ms Walsh as Team Leader, a Level 11, had authority to backdate the cancellation of rebates unconstrained by the six-month limit
Exhibit 3 indicated that Mr Cureton was not alone in that view. Therein Marisa Pacchiarotta, a "Practice Manager, Legal Services Branch of FACS" (a position of uncertain delegation level), in answer to a query about delegation to cancel a rebate to the value of $83,664, asserted to a Chris Valacos, Director Legal Services Housing NSW (which appeared to be a Level 6 according to the instrument of sub delegation) in email correspondence that "Yes and we do have a delegation to cancel a rental subsidy - see print screen below delegation 44" and "there is no monetary limit". Ms Pacchiarotta did not identify any restriction. A copy of the print screen to which she referred on both occasions omitted column 5, the column containing the six-month restriction. Her copy of that part of the instrument thereby wrongly indicated that there was no restriction applicable to limit the backdating of a rebate cancellation. The exhibit also referred to "gaps in the financial delegations".
The evidence of Mr Cureton and the email evidence involving Ms Pacchiarotta indicated that Housing NSW did not appreciate or may not properly have appreciated the limits in the delegation in respect of rebate cancellations, and may have adopted an incorrect view of the delegation. Neither Mr Cureton's nor Ms Pacchiarotta's construction was adopted by the Corporation in submissions. Nor is it a construction that I favour.
The Corporation submitted that Delegation Number 44 was a subset of Delegation Number 41, so that although the officers named, such as Levels 11 and 12, and their supervisors under the definition of "officer", had a limited delegation under Delegation 44 to backdate rebate cancellations to a maximum of six months, the officers such as "Level 5" (General Manager) and "Area Director", who were specifically named in respect of Delegation 41, had an unlimited power. This construction of the delegation is no less defective than those of Mr Cureton and Ms Pacchiarotta. Delegation 41 refers only to rebate approvals. It says nothing about cancellation of rebates, and could not reasonably be so construed. Further, the restriction on a Level 12 officer under Delegation 41 is quite different from the restriction on the same level officer in Delegation 44. So to read Delegations 41 and 44 in the way submitted by the Corporation would render the restriction in Delegation 44 entirely ineffective for a Level 12 officer. That officer could simply rely on the Delegation 41 power if the Corporation's construction was correct.
Accordingly, although Delegation 41 refers to a delegation to General Managers and Area Directors, it concerns approvals rather than cancellations of rebates. It gives no delegated authority in respect of the latter. The only reasonable construction is that Delegation 44 is the relevant delegation for the cancellation of subsidies (as Ms Pacchiarotta said, although she overlooked the restriction) and that it applies to Team Leaders, Senior Client Service Officers and their superiors, in the absence of another delegation. Apart from the delegation to the Chief Executive Housing NSW, no other officer was delegated powers to backdate the cancellation of rebates beyond six months. The Corporation relied on no other delegations.
The same or a similar delegation was considered in New South Wales Land and Housing Corporation v Navazi. [89] The Court appeared to accept the submission that "on the ordinary reading of the delegation…every officer excluding the Director-General…lacked delegated authority under s 57(2) to backdate a cancellation by more than six months". [90] I accept this construction. Because of the close connection between the Cancellation Decision and the Recovery Decision and the absence of evidence of any other relevant delegation, I would infer that the power to make a Cancellation Decision in Delegation 44 applied equally to the power to make a Recovery Decision.
It follows that the instrument of delegation did not empower General Managers or Area Directors to cancel rebates retrospective beyond six months and thus had no delegated authority to make the November 2012 decisions.

[32]

(vii) Agency, the Carltona Principle and the authority of the General Manager and other officers to cancel rebates

A delegation is not the only means by which the Corporation's power may be exercised. Agency is another. The Court of Appeal in Navazi at [68] stated: "Nevertheless, taking Mr Navazi's argument at its highest, the absence of a delegation says nothing as to whether Ms Roil was acting on behalf of the Corporation with the authority of the Director-General, which is sufficient to engage s 6(3). In O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 20 and 30, Mason J referred to "administrative necessity" and Wilson J referred to "the necessity in modern government for the shared performance of duties short of delegation". There is no sound reason to find that the Act required all cancellation decisions involving a backdating for a period in excess of six months to be undertaken by the Director-General; the material referred to above suggests that such decisions may be very numerous. The process by which Ms Morgan's report was reviewed and approved by two officers within the department before being presented to Ms Roil supports the inference that the exercise of power was reserved for the more senior officers and that Ms Roil, the General Manager for the Central Sydney Division, was authorised by the Director-General to exercise the power."
However, the evidence of Ms Pickering suggested that the exercise of the power of cancellation was done pursuant to a delegation, and not by means of agency. As Mr Cureton said, "that's how the power is exercised". [91] Mr Fester gave evidence as follows: "Q. Do you have any delegations for the general manager or the area director? A. Sorry? Q. Do you have any delegations-- A. I don't have anything-- Q. --for the general manager or the area director? A. When you say delegations, are you saying was there delegated authority to the general manager? Normally there would be some form of delegation to the general manager. Q. But there's no delegation under section 57? A. Not that I'm aware of. Q. That applies to the area director as well? A. I'm not sure if it covers the area director. If, if I - well, I do my searches mainly for general manager based on certain things that I had seen. But normally speaking, an area director would have delegation but I haven't seen anything relating to section 57 specifically for an area director." [92]
In Navazi at [6], Basten JA stated: "Where a statute confers power on a corporation or officer, without a power of delegation, the seniority of the officer, the nature of the power and the potential frequency for its application, may lead to the conclusion that Parliament did not intend that the power could only be exercised by the repository personally, but could act through agents, usually being other officers in the public service. This principle of statutory interpretation is known as the Carltona principle, by reference to Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 in which its operation was explained: see generally Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013) at [6.130]-[6.150]. Even where a specific power of delegation is contained within the relevant statute, the other considerations may nevertheless give rise to the inference that designated decision-makers could act through agents. The terms of s 6(3), providing that, quite apart from the power of delegation, the acts of the Director-General or a person acting with the authority of the Director-General are taken to have been done by the Corporation, constitute a statutory recognition and application of the Carltona principle."
Section 6(3) of the 2001 Act provided: "6 Establishment of New South Wales Land and Housing Corporation … (3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation."
This provision expressly invokes agency and thus removes the need for a Carltona implication. [93] Thus, if the decision maker was acting "on behalf of, the Corporation…with the authority of the Director-General, [then the action] is taken to have been done by the Corporation". [94]
The Court in Navazi at [58] inferred that the General Manager for the Central Sydney Division was a "more senior officer" and was "authorised by the Director-General to exercise the power".
In reaching that decision, Leeming JA referred to "administrative necessity", the absence of a sound reason requiring "all cancellation decisions involving a backdating for a period in excess of six months to be undertaken by the Director-General", the numerous decisions of that type, and the process of review of an investigation report involving approval by two officers before the General Manager's approval. [95]
Although that inference of authority was fundamental to the decision in Navazi, it is not automatically binding upon me. Obviously the parties are different so no res judicata arises. But more importantly, the decision in Navazi is not merely a decision of law but of mixed fact and law and involved several matters of fact and evidence different from the case before me.
First, the cancellation decision in Navazi was some 20 months prior to the decision in Quinn CA, indicating that aside from evidence, procedures and delegations may have changed. One difference is that here backdating for a period in excess of six months was not required under delegation to be undertaken by the Director-General, as was the case in Navazi. The Chief Executive of Housing NSW also held that power, under the primary delegation noted above.
Secondly, the evidence did not enable a plain inference that cancellations backdated for a period in excess of six months "may be very numerous", although neither was that possibility excluded. The only evidence on that matter was from Ms Pickering, who said that prior to November 2012 there were "30 odd, if not more" cancellation letters that she had sent out. There was no evidence of what was the period of her employment to that date, or to what other period she was referring. The extent to which others sent out cancellation letters was not the subject of evidence, although it might be inferred that others did so, given that Ms Walsh did on this occasion. Although Ms Pickering referred to her letter as a cancellation letter (which I take to mean a letter pursuant to s 57(3)), it was rather a letter notifying the amount to be recovered under s 57(4). She gave no evidence of how many of those letters involved rebates in excess of six months.
Thirdly, another significant difference in the present case, in addition to the delegation to the Chief Executive, was that the process by which the November 2012 decisions were made (assuming they were made) was not apparent. Unlike in Navazi, there was no evidence of the investigation report being reviewed or of approval by two officers in the Department before the letter came to the General Manager. To the extent that this conduct of other officers subordinate to the General Manager can be evidence probative of whether the General Manager had the authority of the Director-General (as is indicated by Navazi at [68]), there was no evidence of that conduct here.
Fourthly, the Court in Navazi indicated that "the exercise of power was reserved for the more senior officers", which apparently did not include "the two officers" who "reviewed and approved the investigation report". [96] At least one of those officers in Navazi was an acting Area Director. [97] In this case, Mr Fester and Mr Cureton both asserted that the decision could have been made by an Area Director.
The remaining matter referred to by the Court of Appeal was "administrative necessity" and the decision in O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 20, 30. Mason J, in the passage identified by the Court of Appeal, regarded "the notion of administrative necessity" a "hardly relevant factor" when there is a "comprehensive power of delegation". Here there is a comprehensive power of delegation, and it has been utilised. Of course that does not deny the power under s 6(3) of the 2001 Act, and Navazi shows that the use of the power may be inferred. [98] But the principle governing when an officer, even a senior officer, may be inferred to act "with the authority of the Director General" is somewhat elusive. In O'Reilly there was a written authorisation. [99]
In the present case, the position of the General Manager, one possible, asserted decision maker, was in the same senior position as the decision maker in Navazi. Yet the other factors that allowed an inference of authority in Navazi were absent here. Whilst it must be that under s 6(3) a General Manager could be given the power to make a cancellation decision on behalf of the Director-General, the evidence did not establish, in this case, that the General Manager was given that authority. Less still, that an unidentified General Manager not necessarily having any supervisory responsibility for Central Sydney tenancies had authority. The position in respect of the Area Director could be no better, and, in view of the matters referred to above in Navazi, probably worse.
For these reasons, I was not persuaded that a General Manager or an Area Director had the authority of the Corporation or the Director-General under s 57 to cancel rebates backdated beyond six months (or 14 years in this case) and to decide to recover those rebates.

[33]

(viii) Which Director-General?

There is another material factual difference between this case and Navazi.
Section 6(2) of the 2001 Act provided that the Director-General manages the affairs of the Corporation. Section 3 provided that the Director-General meant the "Director-General of the Department". At the time of enactment of the 2001 Act, the Department was the Department of Human Services. On about 4 April 2011 the name of the Department was changed to the Department of Family and Community Services by the Public Sector Employment and Management (Departments) Order 2011 (dated 3 April 2012) cl 34. The relevant Director-General was the Director-General of FACS.
On 5 October 2011 the Public Sector Employment and Management (General) Order 2011, was made under the Public Sector Employment and Management Act 2002. Clause 4 of the Order provided: "A reference in section 6 of the Housing Act 2001 to the Director-General (within the meaning of that Act) is to be construed as a reference to the Director-General of the Department of Finance and Services."
In the result, the Director-General of the Department of Finance and Services ("DFS"), not the Director-General of FACS, became the relevant Director-General under s 6(3) of the 2001 Act. Although not altogether clear, the better view may be that even though the Director-General is defined as the Director-General of the Department, the absence of any reference to the Department in the Order means that references to the Department remain as references to FACS although the Director-General of the Department, in relation to s 6 of the 2001 Act, is a reference to the Director-General of DFS. The power of delegation under s 15 of the 2001 Act would thus remain with FACS and the Director-General of FACS. Quite what powers or functions were delegated by the Director-General of FACS under s 15, when the affairs of the Corporation are managed by the Director-General of DFS, under s 6(2) of the 2001 Act and the 5 October Order, was not explained.
In any event, it follows from s 6 of the 2001 Act and the 5 October Order that at the relevant time, November 2012, the Corporation was managed by the Director-General of DFS.
Clause 32 of the 3 April Order also provided for the transfer of certain Housing NSW staff from the Department of Human Services to DFS, namely those which "in the opinion of the Director-General of the Department of Premier and Cabinet are principally involved in asset management". There was no evidence of that opinion, or which employees were principally involved in asset management. The employees referred to in the proceedings, Mr Fester, Mr Cureton, Ms Pickering, Ms Walsh, Ms Duncan, and Mr Vevers, either by oral evidence or by the correspondence, appeared to remain with Housing NSW and FACS. Neither Mr Quinn nor the Corporation submitted to the contrary.
In consequence, the public servants involved in the correspondence with Mr Quinn, and the General Manager or Area Director, one of whom, the Corporation submitted, was the primary decision maker, remained in FACS, but the agency power conferred by s 6(3) involved acts done with the authority of the Director-General of DFS. It was the "authority of the Director-General of DFS" that was needed for a person to act as agent of the Corporation. This is an additional reason against inferring that the Cancellation Decision was exercised with the authority of the Director-General, because the Housing NSW staff were not responsible to the Director-General of DFS, at least so far as the evidence disclosed. In these circumstances, the Court would be reluctant to infer authority as agent of the Director-General of one Department in a public servant of a different department without written authority, or at least something more substantial than what appeared in the evidence here. The circumstance that the Housing NSW officers dealing with the cancellation of Mr Quinn's rebate were not under the departmental control of the relevant s 6(3) Director-General (here the Director-General of DFS) was not the case in Navazi and another reason why that decision should be distinguished.
This bifurcation of the persons responsible for the Corporation may also explain why the evidence of Mr Cureton and Mr Fester and the emails of Ms Pacchiarotta focus on delegated powers. They were within FACS and had delegated powers under the instrument of sub delegation. Hence, Mr Cureton, misconstruing the effect of the delegation, or Ms Pacchiarotta, relying on a misleading partial copy of the delegation, thought that the officers had delegated authority. If that were so, the ambit of agency under s 6(3) and the complications of the Corporation's managing Director-General being from another department would have been immaterial.
For all these reasons, I am not satisfied that the decisions to cancel and recover Mr Quinn's rebates effective from 1 or 5 July 1998 were done by someone with delegated authority or by an authorised agent. It follows that there was no decision of the Corporation, and none of the provisions of s 57 of the 2001 Act were enlivened.
The Corporation belatedly in oral submissions relied upon the presumption of regularity. That presumption may be sufficient to allow the inference that a properly authorised person made the Cancellation Decision if there was no other evidence sufficient to raise a doubt. [100] However, the evidence of Mr Cureton's and Ms Pacchiarotta's emails and the absence of the decision, the identity of the decision maker, and the witnesses, such as Mr Lindfield, Mr Vevers, Ms Duncan and Ms Walsh, who might assist, and also the circumstances that the Corporation was managed by the Director-General of DFS, whose authority was needed for there to be a decision by an agent of the Corporation, all raise a substantial doubt as to the regularity of the decision and the authority of the decision maker. I do not think the presumption has any residual value in these circumstances, and even if it did, it would be much outweighed by these other matters.

[35]

I. The prior investigation into weekly income

Section 57 provides that an investigation to determine the weekly income of Mr Quinn, under s 58 of the 2001 Act, is a precondition to cancellation of a rebate. [104] Navazi confirmed that the required content of an investigation into weekly income is limited. The Court held "[a]n 'investigation' is merely a series of inquiries and analysis directed to a particular topic" [105] and it may be "short and informal." [106] It need not "determine weekly income" [107] and there is no requirement as to its "exhaustiveness and duration". [108] Its manner and form is a matter for the Corporation. That an investigation is continuing is no bar to a finding that it has, or a relevant part has, been conducted, so that the element in s 57(1) is satisfied.
In Navazi there was clear evidence of an investigation. In the present case, there is evidence of a prior investigation in 2010, although it did not then lead to any decision under s 57. Is this investigation sufficient to satisfy s 57(1)?
As was noted in Navazi at [39], a s 58 investigation into weekly income is not only required for a cancellation of a rebate under s 57, but the grant of a rebate under s 56. In other words, whenever a rebate is cancelled, there must necessarily be presumed to have been a prior s 58 investigation into weekly income, because the tenant has a rebate that can be cancelled, and the existence of a rebate implies a prior s 58 investigation. Is that sufficient to satisfy s 57(1)?
The Corporation submitted that it was; that the s 58 investigation that permits the grant of a rebate under s 56 was sufficient to satisfy s 57, since the literal requirement of a prior s 58 investigation was fulfilled. The same prior investigation, it was submitted, is sufficient to justify both the grant of a rebate and its subsequent cancellation. That construction would remove any utility in the requirement in s 57 that the decision occur "after conducting an investigation under section 58" since that must have already occurred for a rebate to be granted.
Further, it cannot be supposed that the mere formal requirement of having first conducted an investigation is sufficient so that the Corporation is entitled to disregard, without consideration, the results of the investigation. Navazi at [51] confirms as much: "It may readily be implied from the language of the subsection that the decision maker is required to consider what has emerged from that investigation before exercising the power". Navazi involved judicial review proceedings but the quoted finding leaves open the question whether a failure to take into account the result of a prior investigation into weekly income is a basis for prerogative relief only, or is a statutory requirement imposed by s 57 that must be satisfied in order for a valid Cancellation Decision to result.
This raises again the width of a permissible collateral challenge.
It seems artificial to regard only those elements expressly stated by the terms of the statute as the elements of the statutory cause of action. If the 2001 Act necessarily implies an element - that the results of the investigation must be taken into account - should not that also be required in order to exercise the power under s 57(1)? Navazi appears to conclude that this was a statutory requirement. Is there a facial invalidity if the implied requirement is not satisfied? I incline to the view that an element arising as a necessary implication arising from the terms of the enactment must be established by the Corporation to prove the statutory cause of action. But this does not mean that other implied requirements that pertain generally to administrative decisions become matters requiring proof by the Corporation to establish the statutory cause of action. The distinction between the validity of the decision and the legal propriety of making it remains. [109]
If the results of the investigation into weekly income must be taken into account, then questions about how distant in the past the investigation may be conducted evaporate. An investigation that is taken into account to grant a rebate under s 56 might be thought, without more, to not be an investigation that permits the cancellation of a rebate under s 57. Some additional investigation is needed.
The evidence of the prior investigation is again weak.
The Corporation relies upon the letters of 15 November and 22 November 2012. The first asserts that: "Housing NSW has conducted an investigation into allegations that you failed to declare your full household income when claiming a rental rebate from the Corporation. I note that you have previously been advised that this investigation was taking place".
The letter of 22 November 2012 provides greater detail of the allegations and asserts that "Housing NSW may conduct an investigation to determine weekly income". Whilst this passage might indicate the investigation has not yet been conducted, the better view is that, because of the allegations preceding it and the findings after it, the passage is seeking to justify the investigation undertaken.
The 22 November letter asserts that Housing NSW has found a non-disclosure of Mr Quinn's ownership, past directorship and income from the Pyrmont Car Store. Documents in evidence indicated that Mr Quinn informed the Department in 2003 of his part directorship [110] and that on 6 September 2012 he reported that his claimed modest weekly earnings came from casual wages in that business. [111] There is no evidence about or disclosure by Mr Quinn of his ownership of the business.
No evidence of the investigation was otherwise provided. Ms Pickering's email of 15 November 2012 stated, "There is no investigation folder from TFU in relation to cancelling subsidies or any details of an investigation".
Section 6(7) of the 2001 Act empowered the Corporation to act in the name of the Department. The name of the Department was FACS, although I would infer that FACS carried out some of its functions in the name of Housing NSW, and the carrying out of an investigation by Housing NSW may mean that the Corporation has carried out an investigation.
I would accept that an investigation into "allegations of a false declaration of income" could be regarded as an investigation to determine weekly income under s 58. But whether the assertion by Housing NSW in the November notices to Mr Quinn that it conducted an investigation is evidence that it did so might be doubted. Although the 15 and 22 November 2012 letters are business records, [112] Ms Pickering (and Ms Walsh) did not claim [113] to satisfy the "personal knowledge" requirement in s 69(2) of the Evidence Act 1995 and it might be inferred that the document was prepared in contemplation of an Australian proceeding under s 69(3), so that the hearsay rule would still apply. These matters raise a real doubt as to whether a relevant investigation has occurred. But as a finding on this issue is not required to determine the matter, I prefer to express no concluded view.

[41]

(ii) Severance

At the conclusion of submissions, the Corporation sought to argue that the Corporation had cancelled the rebate for the past and for the future and that the latter can be severed from the former. The argument was not developed. It would require, it seems, two determinations by the Corporation, but this is not supported by the evidence.
The administrative law doctrine of severance has been described by the High Court as "notoriously difficult", [115] particularly where, as here, it was not "developed in the submissions". Severance cannot be used "to achieve substantial alteration" or "rectification" [116] and it is difficult on the findings I have made to identify a valid, discrete part of the decision dealing with a prospective cancellation. A Cancellation Decision requires a date of effect to be identified, and it is not for this Court to determine a new date if the date chosen is invalid. Section 57 does not provide in terms that the Corporation may provide an earlier or later date of effect but in mandatory language requires that "the Corporation is to determine the date". A valid date has not been determined.
There is a more fundamental problem. The remedy of severance, to the extent that it may have some application to the November 2012 decisions, is an administrative law remedy. [117] It has not been pleaded. Had it been raised earlier, it may have impacted on the decision of the Court of Appeal in Quinn CA finding that this Court has jurisdiction because the Corporation's proceedings would then not have been simply a claim for a monetary sum, [118] but for administrative law relief. That may have persuaded the Court of Appeal that the matter, if it had commenced in 1998 in the Supreme Court, would have been assigned to the Administrative Law Division rather than the Common Law Division, and thus the proceedings would not be within the jurisdiction of this Court. [119] The lateness of the issue being raised, after repeated assurances that there was no severance argument, its potential to adversely impact on the jurisdiction of this Court if allowed, its potential impact on the Court of Appeal's decision in Quinn CA, and the absence of any application to amend the claim to include a claim for severance, all persuade me that it is too late to raise the point, and I do not propose to allow it.

[43]

(b) Residential Tenancies Act 2010

The alternative argument relied upon by Mr Quinn is that s 41 of the RTA was not satisfied by the November 2012 notices. Section 41 provides: "41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if: (a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and (b) the notice is given at least 60 days before the increased rent is payable. (2) This section extends to an increase in the rent payable under a residential tenancy agreement on renewal of the agreement as if the increase were an increase during the term of the agreement. Note. Notice of a rent increase on renewal is required under subsection (1) before the lease is renewed. (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. (4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section. (5) Notice of a rent increase must be given by a landlord or landlord's agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement. (6) Notice of a rent increase may be cancelled or varied (so as to reduce the increase) by a subsequent written notice given to the tenant by or on behalf of the landlord. Any such later notice takes effect from the date on which the earlier notice was to take effect. (7) Notice of a rent increase is not required to be given by a landlord or landlord's agent if the increase arises because of the end of, or a reduction in, a rent reduction. (8) Subsections (1)-(7) are terms of every residential tenancy agreement. (9) A landlord or landlord's agent must not contravene this section. Maximum penalty: 20 penalty units. (10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section."
The November 2012 notices did not provide 60 days' notice of any rent increase as required by s 41(1)(b), so Mr Quinn argued that by s 41(3), the rental increase is not payable.
Mr Quinn's argument raises the manner in which the two provisions, s 41 of the RTA and s 57 of the 2001 Act, operate together. In Diab, a plurality [120] held that the granting of a rebate by the Corporation was an offer to vary the rental payment under the residential tenancy agreement, which was accepted by the tenant by paying the rebated rent. The Court held that the cancellation of the rebate with effect from an earlier date did result in the tenant having rental arrears. The plurality in Diab was not required to consider the obligations under s 41 of the RTA.
The agreement between Mr Quinn and the Corporation is a residential tenancy agreement [121] and the RTA applies to existing residential tenancy agreements. [122] If Mr Quinn's argument were correct, it would result in an inability of the Corporation to cancel the rebate and thereby increase the rent to the market rent without giving 60 days' notice. This restriction is contrary to the wide discretion granted to the Corporation in s 57(2) to determine the date of effect of a rebate cancellation. Even though the RTA is a later Act, it seems unlikely that the specific powers of the Corporation to cancel rebates under s 57 would be repealed by a side-wind. [123]
The better view may be that any rental rebate does not reduce the "rent" as defined in the RTA, but rather operates as a means of meeting the rent obligation. "Rent" is defined in s 3 of the RTA as "an amount payable by a tenant under a residential tenancy agreement for the right to occupy premises for a period of the agreement". The rent actually specified in the residential tenancy agreement is the market rent, a figure which was notified to Mr Quinn on each occasion when it was changed. Thus, as the residential tenancy agreement specifies the market rent, this is the rent within the meaning of s 41 of the RTA. On such a construction, there is no inconsistency between s 41 of the RTA and s 57 of the 2001 Act. The powers of the Corporation to effect a cancellation of rebates, recover retrospectively cancelled rebates and (by ending a rebate) charge the market rent would thus be unaffected by s 41. This is the approach which accords with that adopted by the Corporation when increasing the market rent, as those increases appear always to conform with the s 41 RTA requirements. Although this approach does not appear to sit comfortably with the reasoning of the plurality in Diab, that reasoning was not directed to s 41 of the RTA.
Because I have found the rebate cancellation to be invalid, it is unnecessary that I reach a final view on the interaction between s 57 of the 2001 Act and s 41 of the RTA.
The continuation of the rebate granted in September 2012 did not prevent increases in the market rent. Increases in market rent affected the net rent payable (after rebates). As the last rebate determined was the difference between the market rent of $545 [124] and the net rent payable of $96.25, [125] there was then a rebate amount of $448.75 per week. That rebate was not validly cancelled or varied. The account of Mr Quinn maintained by the Corporation, and other evidence of notices indicated that the market rent was validly increased to $565 on about 23 November 2013. Mr Quinn's payments did not increase and the rebate was not increased. Thus, Mr Quinn has underpaid the rent by $20 per week from 23 November 2013 until 15 May 2014 (about 25 weeks), when the Tribunal terminated the lease. As Mr Quinn has underpaid the rent by an amount of $500, he must be liable for that sum, plus interest.

[44]

N. Date of vacant possession

On 15 May 2014 the Tribunal ordered that Mr Quinn pay $80.71 per day from the day after the date of termination of the lease, namely from 16 May 2014, until "vacant possession is given to the landlord". The Tribunal also ordered "the order for possession is suspended until 15 July 2014".
Mr Quinn accepts that he must pay $80.71 per day from 16 May 2014 to 15 July 2014 inclusive, which is 61 days, totalling $4,923.31. The Corporation says that a further 21 days, or $1,694.91, is payable because the Corporation did not execute the warrant of possession until 6 August 2014.
There is no evidence as to when Mr Quinn ceased occupying the premises or returned the key. Thus, this issue turns on whether "vacant possession [was] given to the landlord" [126] on 6 August 2014, when the Corporation executed the warrant of possession and entered the premises, or 15 July 2014, the date until which the order for possession was suspended.
Mr Quinn argues that vacant possession cannot be determined merely by the date that the Corporation chooses to execute the warrant. On the other hand, the Corporation submits that the date until which "the order of possession is suspended" [127] is not the same as the "date vacant possession is given to the landlord".
In Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210, the English Court of Appeal (Slesser LJ, Scott LJ and Eve J) unanimously found that where a tenant left premises empty and locked up, the provision of the keys to the premises by the tenant to the landlord's agent constituted the returning of actual possession to the landlord and the time actual possession was returned to the landlord was when the key was delivered to the landlord's agent. At 216 Scott LJ observed: "… Actual possession of empty premises, or of chattels which are locked up within a building or in a package of some sort, is retained by retaining the key. Possession of the key gives actual possession. The reason why there is so little law on the point is, I think, that it is difficult to imagine that anything to the contrary could ever have been contended."
Slesser LJ observed at 214: "There are many cases, of which I will mention only one, to the effect that the giving of a key giving access to the premises may amount to actual possession; and, when this is done with the intention to give possession, that possession will be an actual possession. … "
Mr Quinn gave no evidence to establish the date of the return of the key and the provision of vacant possession. Mr Fester gave evidence about vacant possession as follows: "By late July 2014, the Defendant had not returned the keys to the Plaintiff for flat 44 of the Property being the front door keys and the letter box keys. Also, there was no record on TRIM of the Defendant having vacated the flat. Accordingly, I caused the Plaintiff to apply for a warrant to take back possession of flat 44 at the property under the Eviction Orders. The warrant was granted before 6 August 2014. On 6 August 2014, I attended at flat 44 at the Property with Acting Senior Client Service Officer of the Plaintiff, Jacqui O'Brien, and members of the NSW Sherriff's Office to enforce the warrant obtained under the Eviction Orders. As part of this process the lock to the flat was broken and replaced by a locksmith." [128]
Although Mr Quinn may have vacated the premises earlier, there is no evidence that he returned the key, and, at least until late July 2014, the evidence is to the contrary. Having retained the key, he retained actual possession. Any presumption that he acted in accordance with the order of the Tribunal cannot displace the evidence that he had not returned the key by late July 2014, the presumption of continuity and an available Jones v Dunkel inference arising from his unexplained failure to give evidence on the subject.
As there is no evidence that vacant possession was earlier "given to the landlord", Mr Quinn is liable for the occupation fee until possession was proved to be taken by the Corporation. I will allow the additional $1,694.91, producing a total occupation fee of $6,616.22. Together with the $500 unpaid rent, there should be judgment in favour of the Corporation for $7,118.22 plus interest.
I have allowed interest on this sum from 1 July 2014. This amounts to $1,649.60.
The parties requested that costs be reserved pending further argument.

[46]

Endnotes

New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338 ("Quinn CA") at [1], [74] and [96].
[2015] NSWCA 133.
At [12].
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [90].
Cachia v Isaacs (1985) 3 NSWLR 366, 368F (per Kirby P), 382F (per Hope JA), (contra McHugh JA at 388A).
Jackson v Goldsmith (1950) 81 CLR 446, 467.
Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23.
Blair at 532.
Blair at 532.
Blair at 532.
Cachia at 382 (per Hope JA), 368B, 369D (per Kirby P).
Blair at 532.
Plaintiff's outline of closing submissions ("POCS"), 14/7/17, at [10].
Blair at 532.
Blair at 532.
Blair at 532.
Ss 87(4) and 88(4) of the RTA.
Blair at 532.
See [250].
Cachia per McHugh JA at 387.
Amalgamated Engineering Union (Aust Section), Ex parte; Re Jackson (1937) 38 SR (NSW) 13; (1937) 55 WN (NSW) 7.
Attorney General For Trinidad and Tobago v Eriché [1893] AC 518, 523.
Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647, 662 [40]; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [24]-[38].
(2011) 33 VR 559; [2011] VSCA 266 at [20], [43], [62]-[63], [153]-[155], [284].
Amalgamated Engineering Union at 20.
[1991] 2 AC 93.
Arnold at 107C.
(1843) 3 Hare 100.
[2000] NSWCA 245.
[2001] QSC 040.
[2007] HCATrans 150.
See generally Zistis v Zistis [2018] NSWSC 722 at [68]-[73].
Quinn CA at [72].
POCS, 14/7/17, at [17].
Quinn CA at [72]-[73].
Quinn CA at [73].
Quinn CA at [73].
Ousley v The Queen (1997) 192 CLR 69 at 87.
Ousley at 80.
Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at [231].
Sudi at [241].
Sudi at [261].
Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582, 593-596.
Aerolineas Argentinas at 599.
Aerolineas Argentinas at 599.
Ousley at 99.
Ousley at 127.
Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at [232].
(1971) 1 SASR 512.
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 156 [54], [56] (per Gaudron J).
(2000) 199 CLR 135.
At 143 [17].
Enfield at 157 [56].
See Sudi per Maxwell P at [66].
(1997) 192 CLR 69 at 127.
[1985] AC 461.
(1997) 76 FCR 582.
ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [45] (per Gageler J).
RS Howard & Sons Ltd v Brunton (1916) 21 CLR 366 at 371 (per Griffith CJ), see 373, 375. Adopted in Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, 135 at [31] ("the AEU decision").
(1916) 21 CLR 366 at 371.
The AEU decision at 133 [26], ADCO at [26].
ADCO at [52], referring to Mathieson v Burton (1971) 124 CLR 1 at 22 and In re Athlumney; Ex parte Wilson [1898] 2 QB 547 at 551-552.
(1937) 38 SR (NSW) 13; (1937) 55 WN (NSW) 7 at [31].
[1991] 2 All ER 712, 724.
See generally Australian Broadcasting Corporation v Redmore Proprietary Limited (1989) 166 CLR 454; [1989] HCA 15.
See e.g. s 14 of the 1976 Act.
(1998) 194 CLR 355 at 381 [69].
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [23]‑[25]; [2012] HCA 56, and Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67].
See ADCO at 52.
See Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, 381 [69], Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56, 248; (2012) 248 CLR 378 at [24], Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67]-[68].
Exhibit A, p 42.
Exhibit A, p 44.
See Diab at [29].
See Diab at [32].
Twaddell v New South Wales Land and Housing Corporation [2014] NSWSC 7 at [35], [42], [48], [51], [56], [59].
(1979) 2 ALD 86 at 93.
Exhibit A, pp 41-42.
Exhibit A, pp 43-45.
Affidavit of Shannon Pickering, 24/7/15, [6].
Affidavit of Shannon Pickering, 24/7/15, [7].
Black Appeal Book, 159U. The Black Appeal Book used by the parties in Quinn (CA) (hereafter "Black") was used by the parties to refer to the transcript in these proceedings.
Black, 159X.
New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431.
(1996) 39 NSWLR 701, 706G, 707B-E, 709D.
Navazi at [67].
Black, 3/8/15, p 246/30-40.
Black, 3/8/15, pp 246/48-247/21.
Black, 3/8/15, pp 247/34-248/15.
[2013] NSWCA 431.
Navazi at [67]. See also [5]-[7].
Black, p 247/4.
Black, 30/7/15, pp 132X-133I.
Navazi at [59].
S 6(3) of the 2001 Act and Navazi at [68].
See Navazi at [68].
At [68].
Navazi at [23].
See also Judicial Review of Administrative Action and Government Liability, Mark Aronson, Matthew Groves, Greg Weeks, 6th edition (2016) at 347 [6.170].
See at [13].
See Minister for Natural Resources v Aboriginal Land Council (1987) 9 NSWLR 154 at 164.
Cf Diab at [50] per Macfarlane J.
See Twadell v NSW Land and Housing Corporation [2014] NSWSC 7 at [35], [42], [48], [51], [56] and [59].
Black, 30/7/15, p 162/35, p 173/26.
Navazi at [51].
Navazi at [38].
Navazi at [39].
Navazi at [45].
Navazi at [46].
Ousley at 127.
Exhibit 1, p 9.
Exhibit 1, p 19.
See ss 48(1)(e) and 69 of the Evidence Act 1995.
Ms Pickering's email indicated the contrary; neither gave oral evidence about the investigation, although Ms Pickering gave evidence of the practice.
Affidavit of Natalie Thomson, 31/3/15, p 19.
Harrington v Lowe (1996) 190 CLR 311 at 329.
Aronson et al at [10.470].
See generally Aronson et al at [10.8].
See Quinn CA at [67], [71].
District Court Act 1973, s 44(1)(a).
Per Beazley P at [3], [5]; McFarlane JA at [18], [26].
Exhibit A, p 1.
See s 6 RTA.
See e.g. Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at [8]; [1990] HCA 17.
Exhibit A, p 40.
Exhibit 1, p 21.
Exhibit A, p 91.
Exhibit A, p 91.
Affidavit of Robin Fester, 5/12/14, [38]-[39]. 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: 21 June 2018

New South Wales Land and Housing Corporation v Quinn

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (46 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (41)

Cited By (8)