Supreme Court New South Wales

• Medium Neutral Citation: Aboriginal Housing Company Ltd v Kaye-Engel (No. 3) [2014] NSWSC 718
• Hearing dates: 30 May 2014
• Decision date: 06 June 2014
• Jurisdiction: Common Law
• Before: Davies J

Decision

See para [30]

• Catchwords: LANDLORD AND TENANT - residential tenancy - proceedings commenced in Consumer Trader and Tenancy Tribunal - proceedings transferred to Supreme Court by Tribunal member - whether Supreme Court has jurisdiction - claim by tenant for unconscionable conduct contrary to Australian Consumer Law - whether Tribunal has jurisdiction for claim for unconscionable conduct
• Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW); Competition and Consumer Act 2010 (Cth) Schedule 2 - The Australian Consumer Law; Consumer Trader and Tenancy Tribunal Act 2001 (NSW); Fair Trading Act 1987 (NSW); Racial Discrimination Act 1975 (Cth); Residential Tenancy Act 1987 (NSW); Residential Tenancy Act 2010 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Category: Interlocutory applications
• Parties: Aboriginal Housing Company Ltd (Plaintiff); Natalie Kaye-Engel (Defendant)
• Representation: Counsel: A Scotting & L Edwards (Plaintiff); P Lane (Defendant) (Direct access); Solicitors: Ashurst Australia (Plaintiff); No solicitor (Defendant)
• File Number(s): 2011/90824

Judgment

1 These proceedings involve a claim by the Plaintiff for possession of a property known as 16 Pearl Street, Newtown, and a cross-claim by the Defendant that she is entitled to remain in possession and for further orders in relation to rent and repair of the premises.

2 A brief history of the proceedings is set out in the judgment of Kunc J in Natalie Kaye-Engel v Aboriginal Housing Company Ltd of 14 May 2013. However, as that judgment has not been published it may be convenient if I set out that brief history in this judgment.

3 The Plaintiff owns the property at 16 Pearl Street, Newton. The original tenant of the property was the Defendant's late husband. The tenancy apparently commenced in 1987. When the Defendant's husband died their children were minors. It seems by reason of that fact and their Aboriginal heritage that the Plaintiff allowed the tenancy to continue with the Defendant being the tenant.

4 The Defendant generally paid the rent in a regular fashion up to and including April 2010. She thereafter ceased paying rent.

5 On 7 December 2010 the Defendant commenced proceedings in the Consumer Trader and Tenancy Tribunal. It is difficult to understand quite what the Defendant was seeking in those proceedings but it may have been some order that she and her children be allowed to remain in the premises. On 14 March 2011 the Plaintiff commenced proceedings in the CTTT seeking possession of the premises, having served a Notice Of Termination in February 2011. Thereafter, for what Kunc J thought were essentially defensive reasons, the Defendant commenced proceedings in this Court.

6 On 30 June 2011 in the CTTT proceedings brought by the Plaintiff seeking possession of the property, a Tribunal member made an order in the following terms:

This application is transferred to the Supreme Court pursuant to the Consumer Trader and Tenancy Tribunal Act 2001 (NSW), s 23, to be heard with SH/1116092 [the Defendant's application in the CTTT] and SC 2011/90824 [the present Supreme Court proceedings].

7 The proceedings came before Hallen J on 28 March 2013 who, amongst other orders, directed that the Defendant was to pay an occupation fee of $260 per fortnight pending the determination of the proceedings.

8 When the proceedings came before Kunc J on 14 June 2013 he made various orders reconstituting the proceedings. The orders, in substance, appeared to consolidate the three sets of proceedings within the meaning or r 28.5 UCPR. The practical effect was that the present Plaintiff was to be the Plaintiff in the consolidated proceedings and the present Defendant was to be the Defendant. The proceedings were then transferred to the Possession List of the Common Law Division of the Court.

9 The proceedings came before me as Duty Judge on 13 December 2013 when the Defendant applied for pro bono assistance. Since that time I have continued to case-manage the proceedings.

10 In the course of so doing I raised with the Plaintiff's counsel and thereafter with Ms Patricia Lane of counsel, who commenced to appear pro bono for the Defendant, the question of whether this Court had jurisdiction to entertain the proceedings in the light of ss 53 and 71 of the Residential Tenancy Act 1987 (NSW) ("the 1987 Act"), now ss 81 and 119 of the Residential Tenancy Act 2010 (NSW) ("the 2010 Act") respectively. Nor was the problem overcome by the fact that the Tribunal had transferred the proceedings pursuant to s 23 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) because that section enabled the transfer by the Tribunal:

to a court ... that has jurisdiction in the matter.

11 Section 53 of the 1987 Act provides:

53 Termination of residential tenancy agreements

A residential tenancy agreement terminates only in one or more of the following circumstances:

(a) if the landlord or the tenant gives notice of termination under this Part and:

(i) the tenant delivers up vacant possession of the residential premises on or after the day specified in the notice, or

(ii) the Tribunal makes an order under section 64 (which relates to applications to the Tribunal by the landlord for termination) terminating the agreement,

(b) if the Tribunal makes an order terminating the agreement,

(c) if a person having superior title (for example, a head landlord) to that of the landlord becomes entitled to possession of the residential premises,

(d) if a person succeeding to the title of the landlord (for example, a purchaser) becomes entitled to possession of the residential premises to the exclusion of the tenant,

(e) if a mortgagee in respect of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant,

(f) if the tenant abandons the residential premises,

(g) if the tenant delivers up vacant possession of the residential premises with the prior consent of the landlord, whether or not that consent is subsequently withdrawn,

(h) by merger (that is, where the interests of the landlord and the tenant become vested in the one person),

(i) by disclaimer (for example, on repudiation by the tenant accepted by the landlord).

12 Section 71 of the 1987 Act provides:

71 Prohibition on certain recovery proceedings in courts

No proceedings in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement shall be commenced by a landlord against a tenant or former tenant of the landlord.

13 In the Statement of Claim filed pursuant to the orders of Kunc J the Plaintiff seeks a declaration that the lease between the Plaintiff and the Defendant was terminated and seeks judgment for possession. In her Defence the Defendant denies that any Notice to Quit served on her was effective and says that she is entitled to remain in the premises. In her Cross-Claim she seeks a declaration to that effect.

14 The other principal contention between the parties is apparent from the other declaration and orders sought by the Defendant in the Cross-Caim. She asserts that the Plaintiff was not entitled to increase the rent beyond the sum of $120 per week which was the rent being paid from August/ September 2004 until April 2008. The principal reason for that assertion is the complaints that the Defendant makes about the condition of the premises and the failure of the Plaintiff to rectify the problems with the premises.

15 In paragraphs 69 to 73 of the Cross-Claim the Defendant pleads that the Plaintiff is not entitled to an order from this Court precisely because of the statutory provisions that I have identified, which suggest jurisdiction remains with what is now known as the NSW Civil and Administrative Tribunal, formerly the CTTT. That pleading should more properly have been included in the Defence but it identifies a clear issue between the parties.

16 In addition, from paragraph 74 onwards in the Cross-Claim the Defendant pleads that the Plaintiff is engaged in trade and commerce within the meaning of the Australian Consumer Law and that the Plaintiff has acted unconscionably in relation to the premises in which the Defendant resides. It asserts that unfair tactics have been employed by the Plaintiff. It is fair to say that the pleading in parts of this section of the Cross-Claim contains some problematic matters. The impression I had from raising that with Ms Lane was that the Defendant was insistent on these matters being included in the Cross-Claim. In any event, putting those matters aside, the Defendant properly raises some issues relating to unconscionability on the part of the Plaintiff.

17 The Defendant claims damages for these alleged breaches. However, there is no particularisation or quantification of the loss.

18 In general terms this is a classic dispute between landlord and tenant. The landlord says that the tenant has not paid rent over long periods of time and for that reason, apart from any others, the landlord is entitled to possession. The tenant says that the landlord has not maintained the premises properly and that is why she has not paid the rent.

19 I have been provided with considerable assistance from counsel for both parties on the question of the jurisdiction of this Court. It is apparent that the restrictive terms of the 1987 Act and the 2010 Act (which commenced on 31 January 2011) result, or may result, in the need for two separate proceedings to be brought to determine matters that are common to both. Section 81 of the 2010 Act (s 53 of the 1987 Act) sets out the only circumstances in which a residential tenancy agreement terminates. None of those circumstances allow for order of any court but only an order by the Tribunal.

20 In that way it is not even necessary to consider s 119 of the 2010 Act (s 71 of the 1987 Act). In the present case it could be argued that the present Plaintiff has not breached s 119 because it commenced its proceedings in the CTTT.

21 It is not clear to me, however, that the order made by the Tribunal member was an order made within the jurisdiction of the Tribunal because a transfer could only be made to a court having jurisdiction. Since the Supreme Court would not appear to have jurisdiction to terminate a residential tenancy by virtue of s 81 the precondition of a transfer under s 23 of the CTTT Act was not satisfied.

22 As far as the Cross-Claim by the Defendant is concerned, a number of the matters raised by her are capable of being dealt with in the Tribunal under the 2010 Act. These include the Defendant's remedies in relation to excessive rent and repayment of rent (ss 44 and 47), and the landlord's general obligations in relation to residential premises and repair of them under ss 52 and 63. In addition, the tenant has a clear right under s 111 to apply to the Tribunal if there is a dispute about a termination notice.

23 The CTTT has now been replaced by the Civil and Administrative Tribunal Act 2013 (NSW). Section 16 gives jurisdiction to the new tribunal (NCAT) under the Australian Consumer Law (NSW) (Schedule 4 Part 3 of the CAT Act). The reference to the Australian Consumer Law (NSW) derives from s 28 Fair Trading Act 1987 (NSW). Section 21 of the ACL proscribes unconscionable conduct in the supply of goods and services.

24 The Plaintiff submitted that NCAT has no jurisdiction to deal with the unconscionability claim. Hence, it was submitted, two proceedings are necessary. The proceeding that deals with the termination of the tenancy must be dealt with by NCAT. The proceeding dealing with unconscionability must be dealt with in this Court.

25 Section 28 of the Fair Trading Act 1987 (NSW) provides:

Application of Australian Consumer Law

(1) The Australian Consumer Law text, as in force from time to time:

(a) applies as a law of this jurisdiction, and

(b) as so applying may be referred to as the Australian

Consumer Law (NSW), and

(c) as so applying is a part of this Act.

(2) This section has effect subject to sections 29, 30 and 31.

26 Section 30 relevantly provides:

Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction

(1) ...

(2) For the purposes of the application of the Australian Consumer Law (NSW), court means, unless otherwise expressly provided by this Act:

(a) the Local Court, or

(b) the District Court, or

(c) the Supreme Court.

(3) In the following provisions of the Australian Consumer Law (NSW), court means the Supreme Court:

(a) section 218,

(b) Division 2 of Part 5-2,

(c) Division 4 of Part 5-2,

(d) sections 246, 247, 248 and 250.

(4) In Part 2-3 of the Australian Consumer Law (NSW), court includes the Tribunal.

(5) Subsections (2)-(4) are subject to any jurisdictional limits on the court concerned or the Tribunal imposed by any other Act.

27 Section 21 of the Australian Consumer Law, dealing with unconscionable conduct, is found in Part 2-2.

28 Remedies for breach of the Australian Consumer Law are found in Part 5-2. Section 232 (which falls within Division 2 of Part 5-2) deals with injunctions and s 236 (which falls within Division 3 of Part 5-2) deals with damages. Section 232 refers to a court. Under subsections 30(2) and (3)(b) the reference to court is a reference to the Supreme Court. Section 236 does not refer to a court but the clear intention of s 30 is that the Tribunal does not have jurisdiction in respect of a claim for breach of s 21 whether the claim is for an injunction or for damages.

29 It is difficult to separate some aspects of the Plaintiff's complaints about the way the Defendant has maintained the premises from the claim of unconscionable conduct. It would be in neither party's interest for there to be two separate hearings, one in this Court and one in the Tribunal.

30 The Defendant submitted that the appropriate course was for this Court to deal with all of the issues between the parties. This Court is not precluded from doing so. It simply does not have jurisdiction to terminate the residential tenancy. The Defendant submits without opposition from the Plaintiff that this Court should determine all of the issues between the parties. In relation to the tenancy this Court should make declarations either as to its continuance or as to its termination. The parties will then enter orders by consent in the Tribunal if necessary. I agree that this is the most sensible course to take with a view to minimising costs.

31 The Defendant also pleads that her human rights have been breached as a result of the unconscionable conduct, and she refers particularly to the Racial Discrimination Act 1975 (Cth). She does not specifically claim damages for breach of that Act. The parties have not addressed me in relation to this issue. That Act does not expressly provide a right to seek damage for a breach of the Act. To the extent that such an action is available it would need to be brought in a court including a court of the state: section 44. The Tribunal does not have jurisdiction: S 16 CAT Act and Schedule 3.

32 In these circumstances, the proceedings will remain in this Court to be dealt with as set out in [30] above.

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Decision last updated: 10 June 2014