Whitehead v Anglicare Community Services

The Appeal to this Court

On 3 March 2023 following a hearing before Beech-Jones CJ at CL of the defendant's motion, for either particulars of the grounds of appeal or, in the alternative, an order striking out the summons, the plaintiff was able to formulate the following grounds of appeal: 1. Whether the plaintiff was denied procedural fairness in the determination of the application in favour of the defendant before General Member De Jersey; 2. Whether the legal effect of the residential tenancy agreement incorporating the additional terms of 15 November 2018 prevented the defendant from terminating the residential tenancy agreement; 3. Whether General Member De Jersey erred in failing to find that the giving of Notice under s 85 RTA amounted to a retaliatory notice or retaliatory application for the purpose of s 115 RTA.
I should say that when the matter was called on for hearing before me, the plaintiff tendered two medical certificates each dated 30 March 2023, which I admitted together as Exhibit A, certifying that he suffered from stress and anxiety (6.50T). However, when I asked the plaintiff whether he was applying for an adjournment, he said, "No" (3.45T). He explained that he considered the prospect of an adjournment after a discussion with the defendant's solicitor, Mr Shohmelian, on 30 March 2023 in the context of a possible resolution of the proceedings, but he had decided that the terms on offer were not acceptable to him (4.5 - .18T). I inferred he would rather proceed with the hearing of the appeal.
While it might be logical to commence with the question of whether leave should be granted. In that regard the circumstances that the warrant for possession was executed in May 2022 and the plaintiff surrendered vacant possession by removing his belongings from the premises in January 2023, would favour a denial of leave because even a successful outcome for the plaintiff would be devoid of practical effect. On the other hand, the matter has been listed for hearing and fully argued by both parties. Usually, the question of whether to grant leave is informed by the substantive merits of the case. For this reason, I will consider the merits of the appeal and defer consideration of leave.
I should also say that although the plaintiff has focused upon what he regards as errors of law in the first instance decision, in substance General Member De Jersey's decision has been superseded by the Appeal Panel decision: Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 at 482. And this is so, even though the appeal from General Member De Jersey's decision was dismissed (PCB p 129). While the grounds focus on what happened at first instance, I will treat them as grounds arising from the Appeal Panel's decision.
It is also apparent to me from the course of the oral argument that Grounds 1 and 2 are related because the plaintiff's real complaint before the Appeal Panel, while perhaps not articulated with clarity, was that General Member De Jersey failed to deal with his argument that the legal effect of the orders made in NCAT in earlier proceedings on 13 November 2018 precluded the defendant from terminating his lease because he was entitled to reside at the premises under the lease "indefinitely". In my judgment, this ground was dealt with by General Member De Jersey even if only as an aspect of retaliatory conduct under s 115 RTA. It was also dealt with by the Appeal Panel on a contingent basis anyway because the Appeal Panel, in the absence of a transcript, doubted the point had in fact been taken before General Member De Jersey.
Before me, the plaintiff argued that General Member De Jersey failed to deal with the whole of the earlier proceedings before General Member Ringrose, the transcript of which he had placed before her. This however, with respect is incorrect. General Member De Jersey focused upon the comments made by General Member Ringrose when he entered the orders giving effect to the settlement arrived at by the parties. Given that the gravamen of the plaintiff's argument was that the terms of his residential tenancy agreement precluded a no grounds termination, it was appropriate for General Member De Jersey to focus upon General Member Ringrose's comment at pp 15-16 of the transcript (PCB pp 18-19). She set out the relevant observations made by General Member Ringrose in full at [16] of her reasons (PCB p 31). The Appeal Panel referred to the same passage (at PCB pp 91-92). Even if one were to accept that General Member De Jersey mistook the argument being advanced by the plaintiff because she understood it only to be referrable to his argument under s 115 RTA, the substance of his argument was considered by her, as it was by the Appeal Panel. As I have already pointed out, the Appeal Panel, at least on a contingent basis, also approached the question as one of legal construction. Even were one to form the view that General Member De Jersey in her careful, comprehensive, but succinct reasons mistook the point of the plaintiff's argument, the Appeal Panel, from whom the appeal to this Court lies, dealt with the merits albeit, as I have said more than once, contingently. Ground 1 concerned with the denial of natural justice is not made out.
I turn then to Ground 2. The real question to be determined by NCAT according to the plaintiff's argument, was what is the legal meaning of the additional terms of the residential tenancy agreement that I have set out at [5] above. In particular, what did the portion I have emphasised in the fourth bullet point mean? It goes without saying, that was to be determined by an ordinary process of legal construction, as the Appeal Panel said, rather than by reference to the comments made by General Member Ringrose in relation to it. Even so, it is necessary to set out the passage from the transcript which the plaintiff seems to rely on. It commenced with the plaintiff asking a question which the Member sought to answer (PCB pp 18-19): "[Plaintiff]: If I was able to pay all the outstanding arrears, I take it that the residential tenancy agreement would still be week to week. Is that it? Member: Yes. The agreement you've got now - the agreement you've got now providing you pay your rent and don't upset other residents or whatever - they're the sort of things that can happen - or start selling drugs there or smoking marijuana or doing something illegal or insulting or bashing up people, providing you just quietly reside there and pay your rent, then you should find that that will go on forever … [Plaintiff]: Yes. Member: Because that's the way - there's only a certain number of ways you can put somebody out of a residential tenancy agreement too and it has got to be one of those before they terminate you. If you continue to pay your rent it makes it very hard to terminate you. If they gave you a 90-day notice and came up to the Tribunal and said, we want 90 days you'd wonder why. Anyway. Alright? [Plaintiff]: Thank you." (My emphasis.)
The actual orders pronounced by General Member Ringrose were in the following terms (PCB p 23): "1. [The plaintiff] is to sign a residential tenancy agreement in accordance with the Residential Tenancies Act 2010 in respect of the premises known as XXXXX David Road, Castle Hill by 30 November 2018. 2. The agreement will be for a period of two months from the date it is signed holding over as a fortnightly tenancy at a present rent of $YYY per fortnight. It will include the attachments and additional conditions set out in a letter to the [plaintiff] from the [defendant] dated 25 September 2018, a copy of which has been initialled and attached to the file. 3. On the basis of the agreement reached between the parties and set out in orders 1 and 2, the present application is withdrawn and dismissed. The letter of 25 September 2018 (PCB 103) is in the same terms as the letter of 15 November 2018 (PCB 102).
In my opinion the Appeal Panel were correct to decide the question of whether the agreement actually entered into on 15 November 2018, ousted the provisions of s 85 RTA by use of the words "[the plaintiff] will be allowed to remain in [the] premises indefinitely provided [he complies with] the terms of this agreement" as a matter of legal construction of the agreement, rather than by reference to anything said by General Member Ringrose or indeed of the formal orders pronounced. As will appear, orders made in NCAT may be relevant to the application of s 115 RTA.
The plaintiff's subjective understanding of the arrangement is based upon the use of the phrase "will go on forever" when General Member Ringrose explained, in lay terms, that the plaintiff would be able to continue to reside at the premises under the residential tenancy agreement provided he complied with its terms and did not breach it. General Member Ringrose did not purport to express the opinion that a no grounds notice under s 85 RTA was somehow precluded. He merely questioned why the defendant would take that step if the plaintiff was up to date with his rent and otherwise compliant with the terms of the lease. In any event, those comments do not affect the legal meaning of the residential tenancy agreement actually entered into.
The starting point is the relevant provisions of the RTA. Section 15 provides for a prescribed form of residential tenancy agreement which must be consistent with the RTA. Additional terms may be added provided that they do not contravene the RTA or regulations made under it and are not inconsistent with the terms set out in the prescribed standard form. The standard form of residential tenancy agreement between the defendant and the plaintiff is reproduced (at PCB p 104ff). The notes to the agreement (PCB p 113) by necessary implication refer to s 85 by stating that in the case of a periodic agreement, which the residential tenancy agreement was at the time notice was given, the landlord must give at least 90 days' notice. Reference is also made in the notes to the agreement to the RTA authorising the parties to the agreement bringing it to an end on other grounds.
Section 81 RTA provides that a residential tenancy agreement terminates only in the circumstances set out in the RTA. Grounds of termination are set out in s 81, including s 81(2) which provides: "A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises."
Section 85 is in the following terms: "(1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. (2A) Despite subsection (2), in the case of an employee or caretaker residential tenancy agreement, the termination notice must specify a termination date that is - (a) on or after the end of the period of notice for termination agreed to by the landlord and the employee or caretaker in that agreement or arrangement, or (b) not earlier than 28 days after the day on which the notice is given, whichever is the later date. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more."
In the circumstances of the present case, s 115 is also relevant and may be conveniently set out here: (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice - (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons - (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
One may pause for the moment to consider the statutory context to the residential tenancy agreement. First, the standard form of tenancy agreement may be and is in fact prescribed, currently by clause 4 and Schedule 1 Residential Tenancies Regulation 2019 (NSW) (see clause 4 and Schedule 1 Residential Tenancies Regulation 2010 (NSW) (Repealed) in force as at 13 November 2018). Additional terms may be added provided they do not contravene RTA and are not inconsistent with the standard form. The standard form in force as at 13 November 2018 did not make express provision for termination, rather notes to the standard form referred to the operative provisions of RTA. The current standard form is the same in this respect. As s 81 RTA makes clear, it is the RTA itself which makes provision governing the termination of the residential tenancy agreement. Section 85 provides for the "no grounds" termination by 90 days' notice, given by the defendant to the plaintiff on 7 October 2021. Importantly, s 85(3) is expressed in mandatory terms requiring NCAT, if satisfied that notice was given in accordance with s 85, to make a termination order on the application of the landlord.
Section 115 provides a "defence" to a termination application. The "Defence" empowers NCAT to declare that the termination notice is of no effect or to refuse to make the order if satisfied that the termination notice was a retaliatory notice or retaliatory application. The grounds for such a finding are set out in s 115(2) RTA. Under clause 39 of the Residential Tenancy Regulation for the purpose of s 115(3), the period within which the defence may be raised in respect of an application for a termination order is "within 30 days after the termination notice was given". The past perfect tense of paragraphs (a) and (b) of subsection 2 is important. The application to NCAT or the taking of other action has to precede the giving of the s 85 Notice. Otherwise, there must be an existing order of NCAT in force when the notice is given.
Considered in this full statutory context, it is quite clear that the words I emphasised at the fourth bullet point of the letter of 15 November 2018 agreed to form part of the residential tenancy agreement by way of additional conditions (PCB p 112) which, I accept, are neither in contravention of RTA nor inconsistent with the standard form, say nothing about termination under RTA.
Given the shortness of the fixed term of two months, viewed objectively it may be that the emphasised words contain an implied promise not to move precipitously to terminate the residential tenancy agreement after the expiration of the fixed term. But they say nothing, as I have said, about when otherwise the right to terminate given by RTA and not the residential tenancy agreement may be exercised by the defendant. It would seem to me that the expression "indefinitely", in context means for an indeterminant reasonable period, subject to the proviso that the plaintiff is compliant with his obligations under the residential tenancy agreement.
I appreciate that subjectively the plaintiff had latched to the use of "forever" by General Member Ringrose in his comments. However, the plaintiff's subjective intention is, of course, neither relevant nor determinative. Rather, the objective theory of contract applies and the meaning to be ascribed to the language actually used by the parties is the meaning as understood by a reasonable person reading the agreement with knowledge of the circumstances known to both parties. In this regard, the principle expressed by Barwick CJ in Australian Broadcasting Commission v Australian Performing Right Association at p 105 is apposite. His Honour said that the rights of the parties under a contract are to be determined by the meaning of the words "in which the parties have expressed themselves". His Honour continued: "… it is no part of the function of a court by some process of divination as distinct from construction of the language employed to attribute to the parties an intention to do something for which their express words do not provide" (Citations omitted).
As Gibbs J (as the Chief Justice then was) expressed himself (at p 109): "The Court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate'". (Citation omitted.)
In my judgment the express words of the letter of 13 November 2018 do not (and cannot) oust the operation of s 85 RTA or preclude the giving of a "no grounds" notice of termination.
Turning then to Ground 3. It is quite clear that the Appeal Panel dealt with this matter briefly by reference to General Member De Jersey's decision. It is also quite clear from her decision (PCB 31 [15]-[19]) that the learned General Member directed herself by reference to the terms of s 115 RTA and took into account the matters relied upon by the plaintiff including the passage from the transcript of the proceedings before General Member Ringrose, of which I have already made mention (see [18] above). It is quite clear from General Member De Jersey's reasons that nothing put before her by the plaintiff engaged paragraphs (a) and (b) of subsection (2) of s 115 RTA. She held that the matters raised by the plaintiff did not establish that the s 85 Notice of Termination "was issued because [the plaintiff] sought to enforce a right under the tenancy agreement or to bring a claim to [NCAT]" (PCB p 32 [18]). This was a conclusion of fact, not law, which disposed of the possible operation of s 115(2) (a) and (b).
The General Member went on to say that General Member Ringrose's "comments" were not relevant, nor was she satisfied "that such comments would constitute evidence to support a submission that the s 85 Notice was retaliatory". This was a decision of fact, not involving any error of law. Nor was it an error of law for the Appeal Panel to uphold General Member De Jersey's decision in this regard. Section 115(2)(c) had the effect that a Termination Notice may be retaliatory if NCAT is satisfied that the landlord was wholly or partly motivated in giving the notice because "an order of [NCAT] was in force in relation to the landlord and tenant". The evidence did not establish that any such order was in force. Clearly General Member Ringrose's "comment" that "[the plaintiff] should find that [the residential tenancy agreement] will go on forever" was not an order of NCAT in relation to the plaintiff and defendant as the Appeal Panel correctly held (Appeal Panel Decision per Principal Member Suthers p 9, PCB p 93): "what the Member said should not be interpreted in any event as his orders". Moreover, as the Appeal Panel pointed out, General Member Ringrose went on to "specifically refer to the fact that there can be a 90 day notice of termination given" (Appeal Panel Decision p 10, PCB p 94). These conclusions involve no error of law.
I also add that the only order which General Member Ringrose pronounced on 13 November 2018 which had legal effect was Order 3: "the present application is withdrawn and dismissed". As the opening words of Order 3 set out above (at [20]) make clear, "orders" 1 and 2 did no more than record the substantial effect of the parties agreement by which their dispute at that time was resolved. Their ongoing relationship was governed by the residential tenancy agreement they entered into to give effect to the settlement, not by any order pronounced by NCAT.
For the reasons I have given, the plaintiff has not established any error of law materially affecting the decision under appeal. Given that I have dealt with the matter fully I would grant leave to appeal but dismiss the appeal.
My orders are: 1. Grant leave to appeal from the decision of the Appeal Panel of the Civil and Administrative Tribunal of 5 July 2022; 2. Appeal dismissed; 3. The plaintiff to pay the defendant's costs of the proceedings in this Court.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (8)

Cited By (2)