Street v Consumer, Trader & Tenancy Tribunal & Anor

Supreme Court of NSW|2003-11-26

CITATION : Street v Consumer, Trader & Tenancy Tribunal & Anor [2003] NSWSC 1109 HEARING DATE(S) : 26 November 2003 JUDGMENT DATE : 28 November 2003

JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.

CATCHWORDS : Jurisdiction of Tribunal - notice of termination - particulars of ground - what is required - alternative accommodation - no power to make such an order - Tribunal is to consider circumstances of the case and decide if it is appropriate to make an order. Consumer, Trader and Tenancy Tribunal Act 2001, s 67. LEGISLATION CITED : Residential Tenancies Act 1987, Part 5, s 57, s 63, s 64, s 64 (2) (b) and (c), s 64 (3), s 66, s 85 (1) (d). CASES CITED : Coulton v Holcombe (1986) 162 CLR 1. Susan Street (Plaintiff) PARTIES : v Consumer, Trader and Tenancy Tribunal (First Defendant) New South Wales Land and Housing Corporation also known as The Department of Housing (Second Defendant) FILE NUMBER(S) : SC 30054 of 2003 Craig Colborne (Plaintiff) COUNSEL : N/A (First Defendant) Mr A Enright (Second Defendant) Legal Aid Commission (Plaintiff) SOLICITORS : I V Knight - Crown Solicitor - Submitting Appearance (First Defendant) Legal Services Branch - NSW Department of Housing (Second Defendant)

LOWER COURT Consumer, Trader and Tenancy Tribunal JURISDICTION : LOWER COURT RT02/62079 FILE NUMBER(S) : LOWER COURT Kerrie Leotta, Member JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30054 of 2003 Susan Street v Consumer, Trader and Tenancy Tribunal & Anor

JUDGMENT 1 MASTER: The plaintiff and the second defendant were parties to a Residential Tenancy Agreement (the agreement). Pursuant to the agreement, the plaintiff had agreed not to use the subject premises or cause or permit them to be used for any illegal purpose (the provisions). 2 On 15 February 2002, the second defendant gave notice of termination of the agreement pursuant to s 57 of the Residential Tenancies Act 1987 (the Act). It was given on the ground of breach (of the provisions). The notice purported to give particulars of the ground (a copy of the notice is Annexure B to an affidavit sworn by Philippa Rosemary Martin). The plaintiff did not deliver up possession of the premises. 3 The second defendant made application to the Consumer, Trader and Tenancy Tribunal (the Tribunal) for termination and order for possession pursuant to s 64 of the Act. The proceedings were defended. The parties had representation (it may be that the plaintiff's representative was not a lawyer). Prior to the hearing, directions were made by the Tribunal. 4 At this stage the Tribunal determined that it was satisfied that notice of termination was given and that it was given in accordance with Part 5 of the Act. It is unclear as to whether or not the performance of this exercise involved consideration of the requirements of s 66 of the Act (which enables the Tribunal to waive any defect in a notice of termination). 5 This determination was made pursuant to s 64 (3). It is in the following terms:- " (3) Except as provided by section 66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part." 6 It seems to be accepted that no question of the adequacy of the particulars set forth in the notice was ever agitated by the plaintiff during proceedings before the Tribunal. 7 During the hearing, the second defendant ran a case that there had been illegal user of the premises in breach of the provisions. The plaintiff resisted the case on the basis that she was unaware of the illegal user. The Tribunal found against her on this question (a finding to the effect that she had permitted the illegal user was made). 8 The Tribunal has produced a document which sets out the orders made and the written reasons for its decision. 9 The orders are as follows:- "1. A judgment for the Applicant. The application for termination and possession of premises at 9 Chatfield Street, Ryde granted. Pursuant to Section 64 (5) & (6) possession to take effect 28 days after the date of this determination. 2. On the application of the Respondent the Applicant to arrange smaller alternative accommodation for the Respondent." 10 The written reasons contain inter alia the following paragraphs under the heading "DETERMINATION":- "37. I accept the submissions set out in paragraphs 32-36 but am of the view that the respondent has knowingly permitted the breach and there is a real chance of possible further breaches of clause 7 of the lease. The Respondent never attempted to exercise any control over her son's and his 'friends (sic) activities. 38. On the evidence I find that the Respondent turned a blind eye to any activities and was aware that such activities were taking place on her premises and deliberately made a choice not to investigate that activity both within the house and outside the house at the premises. I do understand the domestic difficulties which arise for parents of adult children however, I am of the view that as long as adult children reside with parents then the parents ought to control the activities in their abode and such residents are responsible for activities in their homes. i.e. they exercise the control. Further on the evidence I am satisfied that the Respondent's dependents are all independent adults able to make their own way in the world. 39. I determine that the tenancy of the 4 bedroom premises at 9 Chatfield Street Ryde should be terminated. However I am of the view that upon an application being made by the Respondent for relocation such application for tenancy should be provided to the Respondent in much smaller accommodation suitable for her own needs, with an express limitation that Stuart Street is not to live on such premises.. The Respondent is of an age where she could return to work but if not, would be in a situation of requiring accommodation. ……………………………………………………………" 11 The plaintiff now brings an appeal to this Court pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. An appeal lies where the Tribunal decides a question with respect to a matter of law. The plaintiff bears the onus of satisfying the court that there is error in the relevant sense which justifies the disturbing of the decision of the Tribunal. 12 The plaintiff relies on an Amended Summons which was filed on 28 August 2003. It contains the following grounds:- "The Tribunal: (a) erred in finding that the Notice of Termination given under s 57 of the Residential Tenancies Act 1987 was valid. The Tribunal should have found that the Notice was invalid because it did not give particulars of the ground on which the notice was given, as required by s 63(1)(e) of that Act and, as a consequence the Tribunal had no jurisdiction to terminate the tenancy agreement. (b) erred in holding it had jurisdiction to order the Respondent to arrange alternative accommodation and, by so ordering, purported to deal with the 'circumstances of the tenant', rather than by taking those circumstances into account when considering whether to terminate the tenancy agreement, as required by s64(2) of the Residential Tenancies Act 1987."

These were the only two grounds argued. They were said to raise questions of jurisdiction. 13 The appeal is presently incompetent. It was brought just out of time. An extension of time is required. The second defendant takes the stance that an extension should not be granted if the appeal is found to be without merit. 14 I now turn to the first of the two grounds. The form of notice of termination is prescribed by s 63 of the Act. It requires inter alia that the notice shall specify and give particulars of the ground on which the notice is given. The Act provides no guidance as to what may suffice to satisfy this requirement. The court has been told that no assistance can be gleaned from Parliamentary speeches or other sources. 15 In the absence of guidance, it seems to me that the statute requires the notice to give particulars that are sufficient to enable the tenant to be aware of the nature of the ground upon which termination is sought. In this case, it is an alleged breach of provisions of the agreement. Each case will depend on its own particular facts. What is sufficient will have to be determined on a case by case basis. 16 Generally speaking, it is well established that the function of particulars in litigation is to enable the other party to know the nature of the case that is to be met. In the present case, there does not seem to be any suggestion in the material that the plaintiff was unaware of the case that she was required to meet. No clarification of the particulars was ever sought by the plaintiff and there seemed to be no confusion as to the issues. 17 Clearly, the presentation of the particulars in the notice could be the subject of criticism. Be that as it may, it seems to me that it contained material that enabled the plaintiff to identify the nature of the case that she was required to meet (inter alia there had been a user of the premises for the purposes of prohibited drugs and goods in custody) and that it was reasonably open to the Tribunal to satisfy itself that the notice was given in accordance with Part 5. 18 In the circumstances, I do not accept the submission from the plaintiff that the form of the notice of termination gave rise to a jurisdictional question which was not satisfied. 19 Before leaving this ground of appeal, I should briefly refer to certain other matters that were argued. 20 As a matter of general principle, a party is bound by the conduct of his case and, except in the most exceptional circumstances, the party should not be allowed on an appeal to raise a new argument which had not been put during the hearing when he had an opportunity to do so (Coulton v Holcombe (1986) 162 CLR 1 at 8). In this case, it is accepted that the plaintiff did not allege invalidity of the notice of termination during the hearing before the Tribunal. If it is now allowed to run the new argument on appeal, there may be prejudice to the second defendant. If the matter had not been addressed by the Tribunal, the second defendant would be deprived of the opportunity to rely on s 66 of the Act. In the circumstances, I take the view that the plaintiff should not now be allowed to agitate the new argument. 21 I turn to the second ground of appeal. As the orders and reasons have generated debate, it is necessary to closely examine what was said and done by the Tribunal in the context of the relevant provisions. 22 Section 64 (2) is in the following terms:- " (2) The Tribunal shall, on application by a landlord under this section, make an order terminating the agreement if it is satisfied:

(a) in the case of a notice given by the landlord on a ground referred to in section 56, 57 or 61: (i) that the landlord has established the ground, and (ii) if the ground is a breach of the residential tenancy agreement, that the breach, in the circumstances of the case, is such as to justify termination of the agreement, (b) that the tenant has seriously or persistently breached the residential tenancy agreement, or (c) that, having considered the circumstances of the case, it is appropriate to do so." 23 This is a provision that requires the Tribunal to make an order terminating the agreement if it is satisfied of the relevant matters specified therein. A reading of (b) and (c) suggests that they are to be seen as alternatives. For the purposes of this appeal, the parties accepted such an approach. It has not been argued that the Tribunal was satisfied of the matters specified in (b) thereof. 24 The issue between the parties involves whether or not the Tribunal can be said to have satisfied itself of the matters specified in (c). It turns on the treatment to be given of what has been said in inter alia paragraph 39 concerning the provision of smaller accommodation for the plaintiff (smaller accommodation). 25 It is common ground that the Tribunal had no power to make an order in terms of what purports to be order 2. Neither party embraces the view that such an order could be an ancillary order within the meaning of s 85 (1) (d) of the Act. 26 What appears in the form of purported order 2, seems to be the product of mistake or clerical error. A reading of what is said in paragraph 39 concerning smaller accommodation does not seem to me to express an intention to make an order in those terms. It purports to be an expression of a view. The word "order" does not appear in the paragraph. It has the character of a recommendation as to what should be done by the second defendant in the event that an application for relocation was made by the plaintiff. The paragraph contemplates contingencies and lacks the element of certainty to be found in an order. 27 I understand from what has been said from the Bar Table that it remains open to the plaintiff to make such an application to the second defendant. 28 In my view, the reasons should be read as expressing a decision that the agreement be terminated following the Tribunal being satisfied of the relevant matters specified in s 64 (2) (including those specified in (c) ). The observations made concerning smaller accommodation come as an appendage to that decision and comprise part of the material which expresses the Tribunal's consideration of the circumstances of the case which led it to deciding that it was appropriate to terminate the agreement. 29 In the circumstances, I am not satisfied that any order to arrange smaller alternative accommodation was intended. Further, I am not persuaded that the Tribunal failed to satisfy itself that it was appropriate to make an order after having considered the circumstances of the case. 30 Accordingly, I have come to the view that the proposed appeal will not be successful. As it would be futile in these circumstances to grant an extension of time, such application fails. 31 The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.

Last Modified: 12/09/2003 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.

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