Senthilkumaran v Gosan Pty Ltd t/as Century 21 Classic Real Estate

Conclusion

1. For reasons which follow I am satisfied that orders dismissing the proceedings must be made.

Evidentiary and other issues

1. Orders were made for the service of affidavit evidence before the hearing, which Mr Senthilkumaran did not comply with. He relied on an affidavit which he had sworn and filed on 2 February 2023. There he deposed to the service of the termination letter which had required him to vacate the property by 7 February. That had led to the commencement of these proceedings and his unsuccessful pursuit of injunctive relief.
2. He later served other documents on which he wished to rely and to which objection was taken, having been served long after the time ordered by the Court. They included unsworn affidavits he had signed on 5 and 6 April, on which other named persons had purportedly written comments about him. Objection to those affidavits was not pressed, but Gosan's objection to the handwritten notes which Mr Senthilkumaran claimed had been made by others who lived at the premises on the affidavits was upheld. He also sought to rely on emails, a voice recording and undated photographs unexplained by affidavit, which depicted things like clothes and a washing machine, although he did not have copies of them to tender.
3. The emails were received but reliance on the other materials was objected to for reasons including that they had not been served in accordance with the Court's orders; they were unexplained by affidavit; and Mr Senthilkumaran not having identified that they were served in these proceedings, rather than in the NCAT proceedings he had also brought. It was also Gosan's case that they could not fairly be served in reply, that depriving it of any opportunity to respond to them by evidence.
4. It was common ground that the voice recording which Mr Senthilkumaran had served was not in English and had not been translated. In the circumstances I concluded that it could not fairly be received.
5. Having seen the photographs, after they were emailed to the Court during the course of the hearing by Mr Senthilkumaran, I was also satisfied that they could not be received, given what they depicted and undated and unexplained as they were by any other evidence. That they were of any relevance to what had to be decided in these proceedings, was simply not apparent.
6. During the course of the hearing Mr Senthilkumaran also sought and was refused both the opportunity to rely on other unidentified documents he claimed he had in his possession and which he had not served and was not in a position to tender, which he proposed to provide after the hearing. He was also refused to have an opportunity to later require Gosan to produce to him other unidentified documents, which he said he still wished to pursue.
7. This was because it was apparent that Mr Senthilkumaran had received a fair opportunity to serve his evidence and advance his case. It was up to him to make use of that opportunity by serving his evidence and having it in court to tender at the hearing. In the circumstances, justice did not require that he be granted the adjournment which would have been necessary, in order to accommodate the course he proposed.
8. Mr Senthilkumaran also had objections to redacted business records documenting complaints Gosan had received from other tenants, as well as other communications from named residents, which were annexed to Mr Pillari's affidavit. The redactions were explained to have been made in order to comply with requirements of the Boarding Houses Act. Copies of the unredacted documents were marked as confidential exhibits and they and the redacted documents were received provisionally, given the issue between the parties about the application of that Act.
9. For reasons which follow I am satisfied that the redacted and other business records received provisionally were relevant and admissible, given Mr Senthilkumaran's cross-examination of Mr Andrew Pillari about the complaints which Gosan had received; how he had responded to them; and why the termination letters had been served upon him, his case being that the course which had been so pursued was unfair and involved racial discrimination.
10. Otherwise in issue was whether the relief Mr Senthilkumaran pursued was available and ought to be granted and whether the orders Gosan sought should be made, given the provisions of the Anti-Discrimination Act, the Boarding Houses Act and the Residential Tenancies Act. Provisions of the Civil and Administrative Tribunal Act 2013 (NSW) are also relevant.

The parties' cases

1. Mr Senthilkumaran's case was that the Residential Tenancies Act applied and that he had brought a cross-claim before NCAT, in order to pursue that matter, which remains on foot. In those proceedings there is also an issue as to whether the Boarding Houses Act applies, he understanding that it does not, because there is no caretaker living at the premises. But seemingly he pursues no complaint about racial discrimination in those proceedings.
2. Mr Senthilkumaran claims that he has been the victim of racial discrimination by Gosan and that accordingly, orders should be made in his favour in these proceedings and the motion dismissed.
3. Mr Senthilkumaran explained his pursuit of his claim before this Court to be the result of his treatment by people like "them", referring to Messrs Jack and Andrew Pillari, which he considered to have been racist. His complaint was that they had not properly investigated the few complaints received from others residing at the premises, on which they had acted, which had the result that the process which led to the termination notice being issued to him was unfair.
4. Mr Senthilkumaran could not point to any power in this Court to deal with those complaints. He said that he understood that NCAT had no judges and limited powers and so he had commenced proceedings in this Court, given its audience. His desire was simple, he explained, to make sure that "these kind [sic] of people don't do such things to people like me".
5. Mr Senthilkumaran identified the evidence crucial to his case to be that tomato sauce had been thrown at his door, which had been drawn to his attention by another resident. In cross-examination he asked Mr Pillari about a cleaner attending to this and whether there had been photographs taken, but he himself gave no evidence about such an incident. Nor about another person pouring water over him, to which he also made reference in his submissions.
6. Gosan's case was that it had not discriminated against Mr Senthilkumaran; that the proceedings were misconceived and ought to be summarily dismissed; the premises were a registered boarding house regulated by the Boarding Houses Act; that it had properly given Mr Senthilkumaran an eviction notice which both it and the occupation agreement permitted, given the circumstances it had to deal with, following the various complaints it had received from other residents about Mr Senthilkumaran; and the obligations to have regard to the safety of occupants, which flowed from the occupancy agreement he had signed.
7. On its case the decision to terminate had not been made lightly or for racist reasons, but as the result of serious, repeated complaints, which had been documented on interview of five other residents, with two others being too scared to put their names to written complaints, given Mr Senthilkumaran's behaviour at this registered boarding house.
8. It was also explained that Gosan's NCAT proceedings had been withdrawn after advice that it could not make a termination order in respect of a boarding house and the proceedings Mr Senthilkumaran had brought there were being defended. In the circumstances, his claim in these proceedings was frivolous and an abuse of process and should not be entertained.

The regulatory schemes

1. The Anti-Discrimination Act deals with racial discrimination in Pt 2, making it unlawful to evict a person on the ground of race: s 20. Race is defined in s 4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin". The Anti-Discrimination Board is given the function of dealing with complaints about breaches of the Act: Pt 9. Such complaints must be lodged with the President: s 89A. After investigation and conciliation, unresolved complaints may in specified circumstances be referred to NCAT: Pt 9 Subdiv 6.
2. NCAT's complaint function in relation to discrimination complaints is regulated by Pt 9 Div 3. It may dismiss a complaint; make interim orders preserving the status quo or the parties' rights; and may make final orders, including orders requiring a respondent to perform any reasonable act: ss 102, 105 and 108.
3. It follows that it is NCAT which is empowered to restrain the pursuit of the eviction notice, which was served on Mr Senthilkumaran, if it was issued as the result of racial discrimination, as Mr Senthilkumaran complains.
4. The Boarding Houses Act regulates both "general" boarding houses and certain "assisted" boarding houses, which are both defined to be a "registerable boarding house": s 5. In s 4 "boarding premises" are defined to mean premises (or a complex of premises) that: (a) are wholly or partly a boarding house, rooming or common lodgings house, hostel or let in lodgings, and (b) provide boarders or lodgers with a principal place of residence, and (c) may have shared facilities (such as a communal living room, bathroom, kitchen or laundry) or services that are provided to boarders or lodgers by or on behalf of the proprietor, or both, and (d) have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers.
5. The Act does not define the words "border" or "lodger," which thus take their normal meaning. Such boarding premises are general boarding houses if they "provide beds, for a fee or reward, for use by five or more residents (not counting any residents who are proprietors or managers of the premises or relatives of the proprietors or managers)": s 5(2).
6. While Mr Senthilkumaran stated in his affidavit that the premises do not have a caretaker, that is not a requirement of these definitions.
7. This Act also provides for the registration of boarding houses: Pt 2. On the evidence the premises are so registered. This Act also regulates occupancy agreements and "occupancy principles" for such boarding houses: Pt 3. Occupancy agreements which are inconsistent with the specified occupancy principles are void: s 31.
8. "Occupancy agreement" is defined in s 27(1) to mean, in relation to a registrable boarding house, a written or unwritten agreement between the proprietor or a person acting on behalf of the proprietor and a resident or a person acting as an authorised representative of the resident, under which the resident is granted the right to occupy, for a fee or reward, one or more rooms in the boarding house as a resident. But a "rental agreement" between a proprietor and resident is excluded from this definition.
9. "Rental agreement" is also defined in the same section to be a residential tenancy agreement within the meaning of the Residential Tenancies Act.
10. The Residential Tenancies Act regulates residential tenancy agreements, defined in s 13(1) to be agreements "under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence". The Act also specifies agreements and premises to which it does not apply: ss 7 and 8. That includes agreements "under which a person boards or lodges with another person": s 8(c).
11. On the evidence it was an occupancy agreement under the Boarding Houses Act which Mr Senthilkumaran entered. At the relevant time 15 people were residing together sharing these premises, apart from 14 separate bedrooms.
12. NCAT is given jurisdiction to deal with matters arising under the Boarding Houses Act, including the occupancy principles and disputes between residents of a registrable boarding house and the proprietor: Pt 3 s 32. That includes disputes about evictions: cl 10 of Sch 1. It specifies the occupancy principles, which include that residents must not be evicted without reasonable written notice. In determining what is reasonable notice, "the proprietor may take into account the safety of other residents, the proprietor and the manager of the registrable boarding house": cl 10 of Sch 1.
13. The orders which NCAT may make about such disputes include orders restraining any action taken in contravention of the occupancy principles and directing a proprietor to comply with a requirement of Pt 3 of the Act: s 32(4)(a) and (h).
14. NCAT is also given power to make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which the Residential Tenancies Act applies, or that specified premises are, or are not, premises to which it applies: s 11 of the Residential Tenancies Act. In the event that a residential tenancy agreement has been breached, NCAT may also make a termination order on application of a landlord: ss 87 and 187. Such orders may also be made in the case of threat, abuse, intimidation or harassment: s 92.
15. Cases which raise questions as to whether a particular arrangement falls under the Boarding Houses Act or the Residential Tenancies Act thus arise from time to time before NCAT: see for example Aquino v SPL Living Pty Ltd [2022] NSWCATCD 120.
16. Proceedings before NCAT are all regulated by the Civil and Administrative Tribunal Act. Appeals from decisions of NCAT are to an internal appeal panel in the case of an internally appealable decision: s 80. And with the Court's leave, to this Court on a question of law: s 83. This Court is also given power to judicially review NCAT decisions under s 69 of the Supreme Court Act 1970 (NSW).
17. This all helps explain Button J's observation that this Court is not the correct forum for Mr Senthilkumaran to pursue his dispute about the racial discrimination which he considers wrongly resulted in the eviction notice he resists. I agree.

Should orders dismissing the proceedings be made?

1. The object of the Boarding Houses Act is specified in s 3 to be to establish an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents, including by providing for a registration system for registrable boarding houses, and providing for occupancy principles to be observed in the provision of accommodation to residents of registrable boarding houses and for mechanisms for the enforcement of those principles.
2. The Residential Tenancies Act does not have specified objects, but given its terms, it is apparent that it also has as one of its objects the establishment of an appropriate regulatory framework for residential tenancies.
3. Both legislative schemes envisage that it will be NCAT which deals with disputes about termination of agreements which they regulate, at first instance.
4. The Anti-Discrimination Act also envisages that it is NCAT which will deal with disputes about racial discrimination and then only after the specified earlier investigation and consultation processes I explained have been unsuccessfully pursued, following a complaint to the Anti-Discrimination Board. But those processes have not been engaged by Mr Senthilkumaran.
5. In the circumstances I am satisfied that his claim of unlawful racial discrimination should not be entertained by this Court, which should not permit the Parliament's arrangements for the pursuit and determination of such complaints to be circumvented.
6. It is also necessary to take into account that the onus fell on Mr Senthilkumaran to establish an evidentiary basis for his claims. His evidence was that he had been a model tenant and he also tendered emails which he had sent Mr Andrew Pillari about complaints which he had about other tenants.
7. But his case did not address any of the statutory schemes. Not only did he not establish that the Residential Tenancies Act applied to him, that being a matter he is now also pursuing before NCAT, neither the evidence he led nor his cross-examination of Mr Andrew Pillari established that he had been the victim of the alleged racial discrimination.
8. Indeed, in his own submissions, Mr Senthilkumaran conceded that one complaint made against him had a foundation. He then explained that he had thrown a bamboo chair with an armrest out of his window at night to the ground below. He claimed that he had done so in order to give it as a "donation" to a friend living across the street, who is mentally challenged, and that the easiest way to do so was to throw the chair into the driveway, at a time when there was no-one else around. He also said that only one person came to see what he had done, because he had not made too much noise.
9. It was not Mr Senthilkumaran's case that a complaint about this and other behaviour about which other residents complained, or such complaints being taken into account in making a decision to terminate his occupancy agreement, involved any unlawful racial discrimination.
10. Mr PiIlari's evidence, by way of contrast, went both to why the claimed racial discrimination was resisted, given the complaints received about Mr Senthilkumaran, which Gosan had to deal with as managing agent; why it understood that the Boarding Houses Act applied to the premises; and how that had led to concerns about the safety of other residents being taken into account in the warnings given to Mr Senthilkumaran; and steps finally taken to issue the disputed termination notice to him.
11. In evidence was the standard occupancy agreement under the Boarding Houses Act which Mr Senthilkumaran had entered, which referred to the applicable statutory occupancy principles, which were attached and which he also signed; the House Rules, which warned of eviction in the event of harassment or fighting; complaints received about and from Mr Senthilkumaran; and the warnings of breach of the agreement given to him, some of which Mr Senthilkumaran advised were bogus, and to other residents, as well as the termination notice.
12. Mr Pillari's evidence included that:

• Gosan had been the managing agent since December 2021;
• Mr Senthilkumaran had made an online application to occupy a room at the boarding house, where residents from around the world live and that he had also disclosed his Indian origin;
• he had been approved and provided with a written six-month occupancy agreement which he entered in August 2022, when he also signed a copy of the occupancy rules, which were also displayed on the community notice boards at the boarding house;
• various goods and services were provided to residents of the boarding house;
• the boarding house had 14 bedrooms and 15 occupants who shared other parts of the premises, which were registered as a general boarding house under the statutory register;
• the complaints which had been received about Mr Senthilkumaran's repeated breach of the rules, which had involved threats of violence, including with a weapon; swearing and inappropriate language; inappropriate use of common laundry and bathroom facilities; loud noises in common hallways at night and in the early morning, disturbing other occupants; attempting to break and enter into another occupant's room; pursuing confrontations with other residents which made them feel uncomfortable, scared and unsafe because of his verbal harassment, erratic behaviour, physical threats and attacks; destruction of property; stealing food; physical assault; and falsely threatening to call police against other tenants;
• the written notices of breach of the agreement and rules served on Mr Senthilkumaran as a result on 13, 19 and 20 January and his verbal discussion with Mr Andrew Pillari on 18 January, by which Mr Pillari sought to conciliate with Mr Senthilkumaran, resolve the breaches and warn him of the result of further breaches; and
• the notice of termination was served by his hand on Mr Senthilkumaran on 23 January, after receipt of further complaints.

1. Mr Andrew Pillari was not cross-examined about his accounts of those discussions. But he denied any prejudice, bias or discrimination against Mr Senthilkumaran, whose occupancy agreement, he said, would not have been terminated, if not for the serious nature of the complaints, disturbances and reported breaches of the agreement which had been received. His evidence was that on multiple occasions he had spoken to Mr Senthilkumaran about racism, abusive language and behaviour not being tolerated and that he had issued written warnings to all residents about such matters.
2. Mr Pillari also denied that the termination notice issued on 23 January 2023 had been the result of a complaint Mr Senthilkumaran had made on 22 January about racist conduct towards him. That had resulted in a handwritten warning given to all tenants about such behaviour not being tolerated. Mr Andrew Pillari had received statements from other tenants about being scared and frightened.
3. Mr Andrew Pillari also explained the varied racial heritage of Gosan's eight employees and rude and aggressive behaviour which Mr Senthilkumaran had pursued towards some of them. His evidence was that he did not consider it feasible for Mr Senthilkumaran to remain a resident, given his behaviour and that the occupancy agreement had now expired.
4. Mr Senthilkumaran's cross-examination of Mr Andrew Pillari went to matters such as:

• when complaints about Mr Senthilkumaran were received, the first having been made to Mr Pillari in person on 12 January 2023;
• interactions between them about a complaint Mr Senthilkumaran had made about the operation of a blind;
• what a cleanliness complaint concerned;
• an occasion when Mr Senthilkumaran said tomato sauce had been found on his door, which cleaners had to clean up and whether that had been photographed by them;
• their discussions about complaints which had been received on an occasion when Mr Pillari was at the premises for an open house inspection;
• whether Mr Pillari had proof of the complaint about the chair thrown out of the window, which Mr Senthilkumaran later admitted in submissions;
• any connection between Mr Senthilkumaran's complaint of 22 January and the termination notice issued to him on 23 January, which Mr Pillari denied;
• what evidence Mr Pillari had that the complaints received had a basis, his evidence being that he had acted on multiple verbal complaints and emails he had received from other residents about Mr Senthilkumaran's behaviour which he had discussed with Mr Senthilkumaran, but which continued after warnings were given about the possibility of termination;
• why Mr Pillari had made enquiries of a former resident in his investigation of the complaints he received;
• why Mr Pillari had made the decision to evict, which he explained had had regard to the occupancy agreement and rules, which required regard to be had to the safety of the proprietor, other residents and the managing agent; the multiple complaints which had been received; and the warnings which had been given;
• that the property had been advertised for rent at $200 per week and the proprietor had accepted Mr Senthilkumaran's offer to rent the premises for $180 for six months;
• whether he had offered to rent the premises for two years, which Mr Pillari denied and was not consistent with Mr Senthilkumaran's written offer;
• how Mr Pillari had dealt with complaints Mr Senthilkumaran had made, by way of a warning letter sent to all residents and conversations with residents when he was at the premises at an open house, when warnings were also given;
• the number of complaints Mr Pillari had received, which he considered to be large and ultimately required the termination notice to be given to Mr Senthilkumaran, because of their seriousness;
• why he had offered to provide Mr Senthilkumaran with information about other accommodation, which he said was because he had no prejudice against him and so he provided him with links to other properties within a price range;
• that he did not remember having received complaints about other occupants, other than from Mr Senthilkumaran; and
• that applications for residence at the boarding house had not been declined on account of race.

1. In re-examination Mr Andrew Pillari also said he would not give a termination notice for trivial matters; with noise complaints and complaints about laundry, he would issue a warning; and that he had issued Mr Senthilkumaran a termination notice because of the serious complaints received, which included threats of violence towards other tenants; and that he came to consider that the health and safety of other residents required the termination notice to be issued.
2. I can see no basis for rejecting any of Mr Pillari's evidence. Still Mr Senthilkumaran insisted that this Court should accept his racial discrimination complaints.
3. I am satisfied that this would not be appropriate, the investigation and conciliation processes which the Parliament has established by enactment of the Anti-Discrimination Act to deal with complaints about alleged racial discrimination, including in the context of evictions, not having been engaged by Mr Senthilkumaran, by the making of an appropriate application to the Anti-Discrimination Board.
4. Those are important processes which help resolve many such disputes, without the necessity for pursuit of any litigation in tribunal or court proceedings. If they cannot be resolved, their pursuit also assists the parties in identifying the real issues lying between them, in the event that the complaint is further pursued. That is important because if such disputes are not resolved, with the result that they come before NCAT and ultimately perhaps this Court on appeal, such proceedings are regulated by the Civil Procedure Act 2005 (NSW).
5. Section 56 of the Civil Procedure Act imposes relevant express obligations on NCAT, the parties and ultimately this Court, to seek to give effect to the overriding purpose there specified, facilitating the just, quick and cheap resolution of the real issues in the proceedings.
6. By the case which Mr Senthilkumaran advanced, he not only complains that he has been the subject of racial discrimination, but that the process which Gosan pursued, which resulted in the disputed eviction notice served upon him, were unfair and inappropriate in all of the circumstances.
7. These may be appropriate matters to be dealt with and sought to be resolved, in the first instance, by the complaint process established by the Anti-Discrimination Act, but that ought not to be circumvented by the commencement of proceedings such as this.
8. In the result I am satisfied that justice requires that these proceedings should be dismissed.

The evidence did not in any event establish the alleged racial discrimination

1. Even if I am wrong in this conclusion, I am satisfied that the evidence I have explained would not permit orders to be made in relation to the claimed racial discrimination.
2. Racial discrimination is undoubtedly serious and so has been regulated by the Anti-Discrimination Act. It is s 7 which specifies what constitutes discrimination on the ground of race. That, however, was not addressed by the case Mr Senthilkumaran advanced.
3. It is also settled that no matter what type of unlawful discrimination is alleged, the question which such a claim raises is "whether the treatment that was in fact afforded to the particular person possessing the particular characteristic (such as race or disability) differed from that which would have been afforded in like circumstances to a person within a relevant comparator group": Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62; discussed in Chi v Technical and Further Education Commission [2012] NSWCA 421 at [31].
4. This was also not addressed by the case Mr Senthilkumaran advanced.
5. Nor did he seek, for example, to establish by evidence that he had been treated less favourably in the circumstances which Gosan had to deal with, having received complaints about his conduct towards other residents living at the premises, than it treated persons of other races who made complaints or about whom complaints were made, which conceivably might have established unlawful discrimination: s 7(1)(a) of the Anti-Discrimination Act.
6. Indeed, despite his complaints and submissions, the evidence which Mr Senthilkumaran led barely touched on his racial discrimination claim. His cross-examination of Mr Andrew Pillari, on whose actions his complaints of racial discrimination must thus rest, was also not directed to the statutory regulation of unlawful racial discrimination.
7. That Mr Senthilkumaran had been less favourably treated on account of his race, for example, was not even put to Mr Pillari in cross-examination. Mr Pillari was asked about how he had dealt with complaints which Mr Senthilkumaran had made about other residents and explained how he had responded, by also giving written warnings to other residents and speaking to them directly, as he did in relation to complaints about Mr Senthilkumaran. That did not establish any unlawful differential treatment. Nor did the issue of the termination notice following serious repeated complaints about Mr Senthilkumaran's behaviour.
8. On Mr Pillari's evidence, Gosan had not received complaints of that kind about other residents. The evidence simply did not establish that the various complaints received were approached differently on account of race.
9. It follows that the conclusion that steps taken to deal with the complaints which Gosan received about Mr Senthilkumaran's behaviour towards other residents, including finally by the issue of the termination notice, were the result of its unlawful discrimination against him on the basis of his race, directly or even indirectly, is simply not available on the evidence.
10. There being no evidence of Gosan's alleged discrimination, no orders could be made in favour of Mr Senthilkumaran, even if I had not concluded that these proceedings cannot justly be entertained.

Costs

1. The usual position under the Uniform Civil Procedure Rules is that costs follow the event: r 42.1. The parties both accepted that such an order would be made.
2. The appropriate order is thus that Mr Senthilkumaran bear Gosan's costs, as agreed or assessed.

Orders

1. For the reasons given I order that: 1. the proceedings be dismissed; and 2. Mr Senthilkumaran bear Gosan's costs of the proceedings, as agreed or assessed.

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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: 10 May 2023