NSW Land and Housing Corp v Thurlow

BASTEN JA YOUNG JA HANDLEY AJA

10 February 2010 NEW SOUTH WALES LAND AND HOUSING CORPORATION v Suzanne Kay THURLOW Judgment 1 BASTEN JA: I will invite Handley AJA to deliver the first judgment. 2 HANDLEY AJA: In July 2008 Ms Thurlow, the respondent, was a tenant in accommodation provided by the applicant at Macquarie Fields in south-western Sydney. She shared the premises with her adult daughter and adult son. 3 Following a police search of the premises on 29 June 2008, her daughter was charged with offences under the Drug Misuse and Trafficking Act 1985 (NSW) in relation to the possession and supply of cannabis. Under the residential tenancy agreement, the respondent, as tenant agreed not to use the premises "or cause or permit the premises to be used for any illegal purpose": cl 7.1. Relying on a breach of this term the applicant, on 27 July 2008, served a notice of termination. 4 The respondent did not vacate the premises and proceedings for the recovery of possession came before the Consumer, Trader and Tenancy Tribunal on 11 September 2008, which made an order for possession. The order was made by consent but, shortly thereafter, the respondent sought a rehearing. That application was refused and, on 9 January 2009, a warrant for possession was issued 5 The respondent obtained a stay of execution in proceedings commenced in the Common Law Division for orders pursuant to s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). This was strictly not correct because s 65 is a privative clause, which precludes relief except on specific grounds. The power to grant relief must be found in s 69 of the Supreme Court Act 1970 (NSW) and the supervisory jurisdiction of the Court. 6 On 8 April 2009 the applicant consented to the orders of the Tribunal being set aside. 7 The question which fell for consideration by Hall J in the Common Law Division was whether consequential relief should be granted. In her summons the respondent had sought an order that the residential tenancy agreement be "reinstated". His Honour properly declined to make an order in those terms but declared that the orders made by the Tribunal on 11 September were void and of no effect and that the agreement "has remained… operative". No issue arises in relation to the propriety of the declaration. 8 The issue raised by the application for leave to appeal concerns his Honours refusal to remit the matter to the Tribunal to be dealt with according to law. His Honour considered that step unnecessary where the reason for the order being set aside (namely a denial of procedural fairness) did not arise "by reason of any determination made by" the Tribunal. 9 The consent order made by the Tribunal, once set aside by the Supreme Court, became void ab initio; (see Commissioner for Railways v Cavanough [1935] HCA 45; 53 CLR 220. The effect of the retrospective avoidance of the order was to automatically reinstate the tenancy agreement which had been terminated by that order and leave the unresolved application of the Corporation pending before the Tribunal. The application, based upon the notice of termination, although now some 18 months old, has not been determined, and the Corporation is entitled to have it determined. 10 There remains a question as to whether an order for remittal is necessary. Once the proceedings in this Court have been disposed of, there is nothing to prevent the Tribunal determining the application which, following the setting aside of the consent orders, remains outstanding. It seems unfortunate that the applicant considered it necessary to come to this Court rather than seek to have its application re-listed before the Tribunal to be determined on its merits. 11 An order for remittal, following a successful judicial review application, harks back to the days when an order for certiorari involved the removal of a proceeding from one Court to another. Although such orders of removal are occasionally made, they are unnecessary and have no practical consequence. Since an order for removal was not made in this case an order of remittal is unnecessary and is simply a direction to the lower Court to determine the proceedings "according to law". Such an order is otiose because the Tribunal has an outstanding application before it which, assuming the matter is pursued, it is obliged to determine according to law. 12 The applicant has not been prejudiced by the refusal of the primary judge to make an order of remittal and the application for leave to appeal should be refused. 13 BASTEN JA: I agree with the reasons and the order proposed by Handley AJA. 14 YOUNG JA: I also agree with Handley AJA but I would like to add a few comments and I hope that the basic problems which the present case has revealed are not repeated. 15 It is a very serious matter for a person to be threatened with the loss of his or her home. The legislation, the Residential Tenancies Act 1987, treats it as a serious matter. 16 Section 64(2) of that Act requires the Tribunal to be "satisfied" that the tenancy should be terminated. It would be rare for a Tribunal to be satisfied by the mere production of an order consented to by an unrepresented person with no familiarity with legal matters, unless the Tribunal could see that that person had had independent legal advice, or the Tribunal itself considered the case and determined that it was proper to make an order terminating the tenancy. 17 That did not happen in the instant case. Indeed, looking at the facts as presented to us, which may or may not be established in due course, any tenancy lawyer who was properly acquainted with those facts would see that the applicant had problems in establishing a breach of the lease. 18 In the circumstances it is rather surprising that some delegate of the Chairman of the Tribunal denied an applicant a rehearing where the indicia of injustice were so very strong. It is a great credit to the independent bar that one of the members stepped in to help this lady. This fortunately has prevented an injustice occurring in this case. 19 I agree with the orders proposed by Handley AJA. 20 BASTEN JA: The remaining question for determination is what orders should be made in relation to the costs of the proceedings in this Court. The concern raised by the applicant related primarily to the final paragraphs of the judgment of Hall J in the Common Law Division. It is There may have been some degree of doubt arising from his Honour's final remarks as to whether he intended to comment on the desirability or appropriateness of proceedings in the Tribunal now being completed. 21 No attempt was made to have those remarks clarified by his Honour. That might have been procedurally awkward. However, an undertaking had been given by counsel for the respondent suggesting there would be no opposition if the Corporation sought to have the application which remained outstanding in the Tribunal determined. 22 There may again have been a degree of ambivalence in respect of the wording of the undertaking; there may also have been a degree of ambivalence in the submissions made in the summary of argument for the respondent. However, none of these matters were sought to be clarified by the applicant either before the matter was commenced in this Court or after summaries of argument had been exchanged. 23 In the circumstances in my view the costs should follow the event and the applicant should pay the respondent's costs of the application for leave to appeal. 24 YOUNG JA: I agree. 25 HANDLEY AJA: I agree. 26 BASTEN JA: The orders of the court are accordingly:

2. Applicant to pay the respondent's costs of the proceedings in this Court. **********

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