The Tribunal Member satisfied himself as to jurisdiction. He then proceeded to consider the evidence and made certain other findings on other issues.
12 In the latter part of the Reasons for Decision, the Tribunal member made the following observations:-
" The tenant is 62 years of age, operating her own business (which is not thriving) in the area. The tenant has been in continuous occupation of the premises for some nine years and her adult son lives in close proximity. The tenant has expended funds on improvements to the premises (in 1999) in the expectation of residing there for some considerable period.
The landlord on the other hand has some financial difficulties and intends to sell the property to resolve those difficulties. It is not clear from the evidence how urgent such a sale is, as the landlord has resolved, at least for the time being, any difficulties with the mortgagee.
A residential tenancy agreement, whether oral or in writing, does not entitle a tenant to occupy the residential premises indefinitely. Prima facie the landlord is entitled to re-take possession of the premises after the end of any fixed term without necessarily giving any reason to the tenant, provided of course that he meets any statutory obligations in respect of notice. The Tribunal is, pursuant to Swain's case, obliged to take into account all of the circumstances of the case and can refuse to make an order for possession.
In the circumstances of this case I am not persuaded that the tenant is entitled to resist the landlord's application for termination of the residential tenancy agreement. The residential tenancy agreement I am considering of course is the fortnightly one as evidenced by the tenant's regular fortnightly payments of rent. There is no evidence before the Tribunal of any incapacity of the tenant to pay market rent for similar premises in the area. Nor for that matter is there any evidence that the tenant needs to live in that particular area indefinitely. I am satisfied the landlord has met all statutory requirements and is entitled to the order sought.
13 The Tribunal Member came to make an order that the Residential Tenancy Agreement had been terminated and that possession was to be given to the first defendant.
14 The plaintiff has brought proceedings in this court. She proceeds on an amended Summons filed on 23 May 2006 (inter alia, it seeks the setting aside of the relief granted by the Tribunal Member).
15 Section 65 & 67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the CTTT Act) provide the areas of challenge to what was done by the tribunal member. For present purposes, the court is concerned with questions of lack of jurisdiction and the deciding of a question with respect to a matter of law.
16 It suffices to express briefly and in general terms the nature of the case presented by both parties.
17 The plaintiff contends that she has an equitable interest in the property (see, inter alia, Plimmer v. Mayor of Wellington (1884) 9 App Cas 699; Vinden v. Vinden [1982] 1 NSWLR 618; Olgilvie v. Ryan [1976] 2 NSWLR 504. It is said that the Tribunal did not have jurisdiction to entertain that matter. It is further said tha, to the extent that it did purport to deal with the matter, it did so erroneously.
18 The first defendant resists these contentions. Generally speaking, he takes the view that the question of the life estate was dealt with by Tribunal Member Mr Turley and that the plaintiff is now out of time to appeal against what was found by him.
19 The merits of the plaintiff's claim to an equitable interest in the property was not a question that was fully argued before me. On the material before the Tribunal, it would seem that the plaintiff may have an arguable case. That this is so may not be in serious issue.
20 A determination of that issue is one that could be expected to involve questions of both law and fact. It is an issue that is the subject of competing evidence and it would seem that credibility findings would be required to resolve it.
21 The Tribunal lacks jurisdiction to entertain and determine such an issue. An appropriate forum is the Equity Division of this court. Moving on from the jurisdictional problem, other observations may be made concerning what the Tribunal did with what was before it.
22 To the extent that the issue was addressed in the Tribunal, it may be said that it was dealt with on a superficial basis. There were relevant questions of fact and law that were not addressed. It may have been determined on a point that was not argued by the parties.
23 The plaintiff contends that what was done by Tribunal Member Turley concerning it was also erroneous. In addition, there may be room for debate as to whether what was in issue before him was identical to what is now propounded by the plaintiff as her equitable claim.
24 In any event, It was an issue that did not have to be decided by him. He could have disposed of the application by finding that the first defendant had failed to prove its case of non-payment of rent.
25 Like Tribunal Member Turley, Tribunal Member Smith had no jurisdiction to entertain and determine such an equitable claim. Be that as it may, it seems to me that his decision on the issue of estoppel was otherwise erroneous. For completeness, I should add that it was not argued that such a question fell outside the scope of a question with respect to a matter of law.
26 Before concluding this judgment, it is convenient to briefly refer to two other matters raised by the plaintiff. One of the matters concerns the provisions of s.59 (3) of the RTA Act. This is not a matter that has been fully argued and may not have been ventilated before the tribunal. In any event, the application of the provisions depends on the plaintiff establishing an entitlement to "a fixed term".
27 The other matter concerns the provisions of s.64 of the RTA Act. Subsection 2 thereof requires the Tribunal to make an order terminating the agreement if it is satisfied of the matters enumerated therein. The plaintiff contends that Tribunal Member Smith failed to address (c) thereof (that, having considered the circumstances of the case, it is appropriate to do so).
28 The importance of addressing the matters has been the subject of consideration in a number of cases (see, inter alia, Shoena Middlebrook v NSW Land & Housing Corporation & Anor [2005] NSWSC 673. A reading of the reasons of Tribunal Member Smith does not demonstrate express compliance with the requirements of the section. Indeed, a reading of the reasons might also suggest a misapplication of the onus. These questions could be the subject of considerable debate. However, the view may be ultimately formed that by implication, the requirements of the section have been met and that there was no misapplication of the onus. By reason of what has been said earlier, these questions need not be further explored.
29 It is unfortunate that the parties may now be facing yet further litigation. The costs to date are no doubt substantial. It may be that proceedings in this court are necessary to resolve the matter. If that be the case, the parties may be well advised to further pursue compromise.
30 Leaving that matter aside, I am satisfied that the plaintiff has discharged the onus of satisfying the court that the orders made by Tribunal Member Smith should be set aside. I reserve the question of costs. The plaintiff is to bring in short minutes of order.
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