Steven Li & Anor v Gregory Cassis & 2 Ors

Steven Li and Lucy Li (Plaintiffs)

PARTIES : Gregory Cassis and Deborah Banwell (First defendants)

Residential Tenancies Tribunal (Second Defendant) JUDGMENT OF : Master Harrison

COUNSEL : Not applicable Mr K J Wolf (By leave of the Plaintiffs) SOLICITORS : Mr N R Banwell of Banwell & Associates, Burwood (Defendants) CATCHWORDS : Appeal against decision of Residential Tenancies Tribunal; Costs order against a non-party Residential Tenancies Act 1987 (NSW) ACTS CITED : Conveyancing Acts 1919-1943 (NSW) Supreme Court Act (NSW) Love v Chryssoulis (1977) 16 ACTR 1 NM Superannuation Pty Limited v Baker (NSWSC< Cohen J unreported, 4 March 1992) CASES CITED : Hircock & Anor v Farrelly High Court of Australia, Queensland Law Reporter, 29 February 1960 Neill & Anor v Hewens & Anor (1953-54) 89 CLR 1 Knight & Anor v F P Special Assets Limited & Ors (1992) 174 CLR 178 DECISION : See para 19

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

30115/98 - STEVEN LI & ANOR v GREGORY CASSIS & 2 ORS

JUDGMENT (Appeal against decision of Residential Tenancies Tribunal - Costs order against a non-party) 1 MASTER: By summons filed 3 December 1998 the plaintiff seeks that the order made by the Residential Tenancies Tribunal on 23 November 1998 be set aside. The plaintiffs relied on an affidavit of Kenneth Jeffrey Wolf sworn 28 November 1998 and each of the first defendants relied on their affidavits sworn 15 December 1998. Mr Wolf and Ms Banwell were cross examined. 2 Mr Wolf is a licensed real estate agent, and agent for Steven and Lucy Li who are the landlords of premises 6 Katoa Place Marsfield (the property). The first named first defendant is Gregory Cassis and the second named first defendant is Deborah Banwell who were the tenants of the property. The second defendant is the Residential Tenancies Tribunal. It has filed a submitting appearance. The plaintiffs reside in Hong Kong. They have filed an affidavit in these proceedings specifically stating that they gave their authority to their managing agent Mr Wolf to attend the Residential Tenancies Tribunal. From the contents of this affidavit they have taken an active role in these proceedings. Mr Wolf appeared for the plaintiffs when the matter was listed for directions before the court on previous occasions. I granted Mr Wolf leave to appear on behalf of the plaintiffs at the hearing of this appeal. 3 The plaintiffs bring this action under s 107 of the Residential Tenancies Act 1987 (NSW) (the Act). This section provides that an appeal under this section shall be made in accordance with the rules of the Supreme Court and subsection (2) provides that in proceedings before it the Tribunal decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with a decision may appeal to the Supreme Court against the decision. 4 I turn to briefly state the facts.

(1) The plaintiffs have engaged real estate agents to manage their property on their behalf for a number of years. The last real estate agent is Kenneth Wolf of Toplot Pty Limited at 776 Pacific Highway Gordon which is styled Ray White, Gordon.

(2) The plaintiffs and the defendants entered into a residential tenancy agreement on 25 September 1996. It is common ground that the lease expired on 4 April 1997 and after that date the defendants remained in occupation of the premises under a continuing lease.

(3) On 9 November 1998 a letter was faxed to the office of Ray White, Gordon office and marked to the attention of Mr Wolf. The names appearing at the top of the letter were Greg Cassis and Deborah Banwell and the address was 6 Katoa Place Marsfield (the property). The letter referred to the tenancy agreement and said: "We hereby give notice of our intention to terminate our Rental Agreement effective from today. According to that agreement we will vacate the premises on Friday 23rd November." The letter also stated that their rent was paid up until 20 November 1998, they would pay one more week on the 20th to bring it fully up to date. The letter foreshadowed that an inspection would be necessary and suggested that the agency call and arrange a suitable time. The letter was signed off "Yours sincerely, Greg & Debbie" which was type written. No handwritten signatures of Greg or Debbie appeared on the fax.

(4) Mr Wolf received this fax and subsequently telephoned Mr Cassis (the first named first defendant) on 9 November 1998. During the telephone conversation Mr Wolf referred to the letter and the date of termination being 23 November 1998. Mr Wolf told Mr Cassis that this was not enough notice as there had to be 21 days notice given so the earliest date they could terminate the lease would be 30 November 1998. That much of the conversation is common ground. According to Mr Cassis Mr Wolf then said that they had to fax him an amended version that afternoon or the termination period would extend by a day. Mr Wolf said that he considered this fax an invalid termination because it was not signed and it was a facsimile copy but he cannot remember if he advised Mr Cassis accordingly. Mr Wolf perceived the difficulty with the unsigned fax was that he could not compare the signatures with those that appeared on the lease with those contained in the letter as a means of establishing the authenticity of the notice of termination.

(5) On 9 November 1998 a further fax was sent by Greg Cassis and Deborah Banwell to Ray White at Gordon. It also was marked to the attention of Mr Wolf and referred to the tenancy agreement. This time it said "We hereby give notice of our intention to terminate our Rental Agreement effective from today. According to that agreement, we will vacate the premises on Monday 30th November [ Please note correction ]." They stipulated in the second paragraph of the letter that they would pay one more week from the 20 November to bring them fully up to date to 30 November and also stated "[ Please note correction ]". A hand written note was placed at the foot of that letter by Mr Wolf which read "Noted as invalid". Mr Wolf cannot specifically remember when he made that notation but thinks that it was a day or two after he received the fax. He denied placing that notation on the fax after he had been to inspect the premises.

(6) On Wednesday 11 November 1998 Mr Wolf telephoned the first named first defendant to elicit their permission to have the house open for inspection on Saturday 14 November 1998. The first named first defendant did not accede to this request as he thought that they had not been given reasonable notice. The parties continued the conversation and became acrimonious towards each other.

(7) On the following day, 12 November 1998 Mr Wolf lodged an application before the Residential Tenancies Tribunal on behalf of the plaintiffs seeking that the termination notice served by the tenants on 9 November 1998 was invalid and seeking that the premises be allowed to be opened for inspection. A copy of this application is not before the court.

(8) On 23 November 1998 the Residential Tenancies Tribunal made the following interim orders: "1. The landlords are to cause their agent to produce at the adjourned hearing an authority to appear in their proceedings signed by them both. 2. The tenants request to be represented by a solicitor is refused but the tenants are hereby granted leave to be represented by a tenants advocate. 3. The Tribunal finds that the termination notice served by the tenants on 9/11/98 by fax advising of their intention to vacate on 30/11/98 is valid. 4. The parties are encouraged to further discuss the issues in dispute in view to reaching settlement and the applicant is to advise the Registry accordingly should the matter be resolved and a further hearing is not required." 5 The hearing was adjourned to a date to fixed by the registrar and a separate notice of the new hearing date was to be sent to the parties in the near future. Although this does not appear in the judgment, if the parties presented their case in the same manner as they did in this court, it would have been evidence to the Tribunal of the acrimony between the parties. Both Ms Banwell and Mr Wolf when cross examined were keen to establish the correctness of the positions they had taken throughout their dispute. It is most likely that the parties would have displayed the same attitude at the Tribunal as they did before me. 6 The plaintiffs submitted that the Tribunal erred in law by declaring the termination notice valid because firstly it was a notice served by facsimile and secondly the notice was not signed by the defendants. 7 Section 63(2) of the Act provides that notice of termination of residential tenancy agreement given to a landlord by a tenant shall be in writing and signed by the tenant or the tenant's agent and specify the day on which vacant possession of the residential premises will be delivered up to the landlord and specify and give particulars of the ground (where applicable) on which the notice is given. It is clear that the defendants had not complied with s 63(6)(b) of the Act in that they did not sign the notice of termination. The first named defendants sought to rely on Love v Chryssoulis (1977) 16 ACTR 1 at p 4. However, s 63(2)(b) of the Act specifically refers to the need for a signature. In relation to service of a notice of termination, the plaintiffs drew my attention to s 130 of the Act which refers to service of documents. 8 Section 130(2) of the Act provides: "A notice or other document (other than a notice of termination) required to be given to landlord under this Act may be given: … (b1) by sending it by facsimile transmission to the landlord's usual place of residence or business or employment; or (c) in such other manner as may be prescribed for the purposes of this section or approved by the Tribunal. 9 The plaintiffs submitted that a notice of termination cannot be served by facsimile transmission. However s 130 (4) states that notice of termination given under this Act may be given in such manner as may be prescribed for the purposes of this section. These sections are to be read with s 66 of the Act which provides: "Tribunal may waive defect in notice of termination 66. The Tribunal may, if it thinks it appropriate to do so in the special circumstances of the case, make an order terminating a residential tenancy agreement and an order for possession of residential premises even though there is a defect in any notice of termination of the agreement." 10 The plaintiffs referred me to a decisions of NM Superannuation Pty Limited v Baker (NSWSC, Cohen J unreported, 4 March 1992), Hircock & Anor v Farrelly High Court of Australia, Queensland Law Reporter 29 February 1960 and Neill & Anor v Hewens & Anor (1953-54) 89 CLR 1. 11 Hircock concerned a case where a party brought an action for specific performance of an oral agreement for the sale of property. At the trial of the action by a judge and jury, the jury found that there was a concluded oral agreement for the sale of the property and awarded a party damages of £1,700. It was held by the High Court that since there was no sufficient note or memorandum to satisfy the Statute of Frauds and Limitations, the action should have been dismissed. I did not find this case useful. 12 In Neill the High Court held that the parties had intended to sign the document before a completed contract was made. In these circumstances the document which had the vendors' names appearing in typewriting was not to be regarded as a signature for the purpose of satisfying s 54A of the Conveyancing Acts 1919-1943 (NSW). I did not find this case helpful. It should be noted that the two cases referred to above were decided well before facsimile transmission became an acceptable method of business communication and the Conveyancing Act 1919-1943 (NSW) required certain documents to be evidenced in writing. 13 In NM Superannuation, a notice under a trust deed was sent by facsimile transmission. The Fund was created on 30 October 1973 by the declaration of trust, the first schedule to which contained the rules governing the Fund. One of the issues Cohen J decided was whether the notice given by the facsimile transmission was adequate notice in writing in accordance with r 42(1). The relevant part of r 42(1) provided: "the Fund or any part thereof may be terminated by the Company by giving the Trustee 30 (thirty) days' notice in writing to that effect." 14 His Honour held: "I see no reason for finding that a notice sent and received by facsimile transmission is any less a notice in writing then one which is sent and received in any other fashion. The piece of paper which results from the transmission is not the original document nor does it contain an original signature. It therefore may not be adequate in cases where a signature is required. I do not need to decide that question however as r42 makes no mention of the notice having to be signed on behalf of the company or having the common seal affixed. It merely requires that the notice be in writing. In my opinion that includes any form of printing or other means of reproducing words in visible form. Furthermore, that would be consistent unto the meaning given to "writing" in Acts and statutory instruments under the definition in s21 of the Interpretation Act 1987. 15 Thus, a notice sent and received by facsimile transmission is acceptable as one which is sent and received in any other fashion but it may not be adequate in cases where a signature is required. His Honour then looked at the relevant rule to ascertain whether a facsimile transmission was acceptable. In the case before me, s 63(2) of the Act requires that the notices from a tenant to a landlord must be signed. Section 130(2) requires notices (other than a notice of termination) from a tenant to a landlord to be forwarded by facsimile. But s 130(4) permits a notice of termination given under this Act to be given in such a manner as may be prescribed for the purposes of this section. It is my view that s 130(4) permits a notice of termination to be given by facsimile transmission. There was evidence of animosity between the parties which regrettably still continues to this day. The Tribunal more likely than not took this into account when it decided to exercise its power under s 66 of the Act to waive the defect in the notice of termination of the agreement. Even if it did not take the conduct of the parties into account s 66 of the Act has discretionary power that the Tribunal is entitled to exercise if it sees fit to do so. It did in this case. No error of law arises from the Tribunal's exercise of power pursuant to s 66. The plaintiffs' representative also complained that when the first named defendants appeared at the Tribunal they sought to be represented by a solicitor. The Tribunal refused their application. This complaint cannot give rise to an error at law. The onus was on the plaintiff to establish that the Tribunal had erred in law and they have not done so. Accordingly I affirm the decision of the Residential Tenancies Tribunal of 23 November 1998. I dismiss the summons. Costs should follow the event. 16 The first defendants have sought an order that both the plaintiffs and Mr Wolf pay their costs. Section 76 of the Supreme Court Act (NSW) provides: "(1) Subject to this Act and the rules and subject to any other Act - (a) costs shall be in the discretion of the Court;

(b) The Court shall have full power to determine by whom and to what extent costs are to be paid; and

(c) The Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis." 17 In Knight & Anor v F P Special Assets Limited & Ors (1992) 174 CLR 178, the High Court considered whether s 58 of the Supreme Court Act 1867 (Queensland) applied to non parties. This section differs from s 76 of the Supreme Court Act (NSW). The majority (Mason CJ, Deane and Gauldron JJ) held that according to their natural and ordinary meaning, the words of O 91 of the Supreme Court Rules (Queensland) are sufficiently expansive to enable the court to make an order for costs against a person, whether that person is formally a party to the proceedings or not. It was stated that obviously the prima facie general principle is that an order for costs is only to be made against a party to litigation. However, there are a variety of circumstances in which considerations of justice may, in accordance with the general principles in relation to awards of costs, support an order for costs against a non-party. This category of case consists of circumstances where the party to litigation is an insolvent person or a man of straw, where the non-party has paid an active part in the conduct of the litigation and where the non-party, or some other person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. If the circumstances of a case fall within that category an order for costs should be made against the non-party if the interests of justice require that it should be made. 18 It is my view that the ordinary meaning of the words in s 76 of the Supreme Court Act (NSW) are sufficiently expansive to enable the court to make an order for costs where the person is not formally a party. Orders for costs can be made both for and against a non-party when it is in the interests of justice to do so. It is my view that Mr Wolf has an interest in this litigation. He asserted that the Residential Tenancies Tribunal should be a "level playing field". However, it appears that he was acting in the landlords', (the plaintiffs) interests in pursuing this appeal. I am not satisfied that it is in the interests of justice to order that both Mr Wolf and the plaintiffs pay the defendants' costs. The order I make is that the plaintiffs should pay the first defendants' costs as agreed or assessed. 19 The orders I make are:

(1) The decision of the Residential Tenancies Tribunal of 23 November 1998 is affirmed.

(3) The plaintiffs are to pay the first defendants' costs as agreed or assessed. **********

Last Modified: 05/26/1999 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.