O’Keefe v Integral Corporate Property Pty Ltd [2020] NSWSC 737

Supreme Court New South Wales

Medium Neutral Citation: O'Keefe v Integral Corporate Property Pty Ltd [2020] NSWSC 737 Hearing dates: 5 June 2020 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Common Law Before: Fagan J Decision: Application for stay of and order for possession made in the Civil and Administrative Tribunal dismissed Catchwords: APPEALS – the question of law alone – application of statute to facts fully found – no reasonable prospect of leave to appeal being granted

LANDLORD AND TENANT – whether facts found constituted a residential tenancy agreement – whether tenancy terminated – whether tenant in occupation for 20 years for purposes of s 85(4) of the Residential Tenancies Act 2010 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Graham O'Keefe v Integral Corporate Property Pty Ltd [2020] NSW CATAP 76 Category: Procedural and other rulings Parties: Graham O'Keefe (plaintiff) Integral Corporate Property Pty Ltd (defendant) Representation: Counsel: E Cohen (plaintiff) D Allen (defendant)

Solicitors: Litigation Specialists (plaintiff) N/A File Number(s): 2020/163173 Publication restriction: No

Judgment [EX Tempore – revised] 1. The plaintiff applies for a stay of an order for possession of unit 36 at 2 Forsyth Street, Glebe. The order was made in favour of the first defendant in the Civil and Administrative Tribunal, ("NCAT" or "the Tribunal") on 28 January 2020. It was the subject of an internal appeal to the Appeal Panel of the Tribunal heard on 15 April 2020 and determined on 5 May 2020. The Panel dismissed the appeal but stayed the operation of the order for possession up to 5 June 2020, provided the plaintiff should continue to pay to the first defendant $3,100 per month while in occupation of the subject property. The Panel's decision is Graham O'Keefe v Integral Corporate Property Pty Ltd [2020] NSW CATAP 76. 2. The substantive proceeding in this Court is an application by summons for leave under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal the Panel's decision. Leave can only be granted for an appeal on a question of law. 3. The first defendant is the registered proprietor of the subject property. It claimed possession in the Tribunal on the basis that the plaintiff was its tenant under a periodic residential tenancy agreement and that 90 days' notice of termination had been given, thus bringing the plaintiff's right of occupancy to an end. The plaintiff disputed that the relationship was one of landlord and tenant. He contended that he had a right of occupancy for life under the terms of an arrangement made in May 2012. [Throughout these reasons I will refer to the parties by their designation in this Court to avoid confusion]. 4. The Senior Member at first instance, Ms Thode, held that the plaintiff occupied the property under a residential tenancy agreement within the meaning of s13 of the Residential Tenancies Act 2010 (NSW). The relevant sub sections of that section are as follows: 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement 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. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. 1. The Senior Members' conclusion that there was a residential tenancy agreement within the meaning of this section was based upon her factual findings, as follows: 1. The first defendant is the registered proprietor of the property. That was not in dispute. 2. "The premises were used as a residence". 3. The Senior Member accepted "the parties' evidence that the [plaintiff] had exclusive use of the premises during the term of the tenancy." 4. The first defendant "provided exclusive possession of the premises to the [plaintiff] in return for payment of rent, by way of regular quarterly strata levies and rent equivalent to the value of a mortgage payment, the last being $3,180 paid to the [first defendant] on 30 December 2019". 5. "The parties agree that regular payments were made although neither party refers to the payment of rent in any written document, and both parties agree that the [plaintiff] paid a sum equivalent or approximate to a mortgage payment to a company nominated by the [first defendant], as well strata levies. There is an agreement that payments of levies are made quarterly, to the strata company including special levies which are payable from time to time. I am satisfied that these payments constitute periodic payments made for value within the meaning of s13 of the Act." 6. "The [first defendant] did not enter the premises without prior notice or in the absence of the tenant." 7. "[T]here was an intention to create a tenancy agreement." 1. To these findings of fact the Senior Member applied the legal test in s13 and held that the arrangement was a residential tenancy agreement. The Member said: The Tribunal must be satisfied that the essential terms of a residential tenancy exist with sufficient certainty. Such essential terms are: (i) the parties to the agreement; (ii) the premises in question; (iii) the duration of the tenancy; (iv) the rent or mechanism for determining rent; and (v) the date of formation and commencement of the agreement. 1. The Senior Member further stated: I am satisfied the [first defendant] has established, when assessed objectively and taking into account the conduct of both parties, the essential terms of a residential tenancy agreement exist [...]. 1. Section 3 of the Residential Tenancies Act defines a "periodic agreement" as one that is not for a fixed term. The Senior Member found that no fixed term was agreed. Section 85 was thereby engaged. It permitted the first defendant to give at any time notice of no less than 90 days of termination of the tenancy. There was no dispute that such a notice had been served on 28 April 2019 and that it required vacant possession by 9 August 2019. The plaintiff did not vacate the premises in accordance with that notice. Although the first defendant's proceedings in the Tribunal for possession were commenced outside a 30 daytime limit specified by reg 22, the Senior Member saw fit to extend time as necessary. There was no issue before the Appeal Panel about that aspect of the decision at first instance. 2. The plaintiff's avenue of appeal to the Panel was as of right with respect to any question of law and by leave on any other ground. In the notice of appeal to the Panel the plaintiff only stated a ground upon which he sought a stay of the Senior Member's order for possession, namely, that he had commenced proceedings against the first defendant in the Equity Division of this Court "arising out of the same facts". The plaintiff did not state in his notice any ground for his substantive appeal to the Panel. In the Panel's reasons at [23] and [47] they recorded the grounds that had been argued. Those grounds appear to have been to the following effect: 1. That on the facts found by the Senior Member, she erred in law in concluding that there was a residential tenancy agreement within the meaning of s 13(1) of the Act. 2. That the plaintiff had been in continual possession of the property for over 20 years and s 85(4) therefore applied, having the effect that the first defendant had no statutory entitlement to give 90 days' notice of termination under s 85(1). 1. With respect to the first ground, it is unclear from the Appeal Panel's reasons whether the plaintiff sought leave to appeal on questions of fact such as whether the Senior Member had erred in her findings as to the terms of the plaintiff's occupancy of the unit (see [5] above). 2. The Panel considered whether as a matter of law it could be said that there was no evidence to sustain those findings. At [44] they found that there was at least some evidence. In the same paragraph the Panel found no error of law in the Senior Member's ultimate legal conclusion that, given the terms of occupancy that she had found, a residential tenancy existed. 3. The parts of s 85 of the Residential Tenancies Act that are relevant to the second ground argued before the panel are in the following terms: 85 Termination of periodic agreement—no grounds required to be given (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. (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. 1. The Panel refused to consider the second ground, concerning the plaintiff's occupancy for over 20 years, because that issue had not been raised before the Senior Member and, if it had been raised, it could have been dealt with by evidence in a way that may have prevented the point from succeeding. At [56]-[57] of their reasons, the Panel cited and applied Suttor and Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 as authority for the proposition that such an issue, not raised at first instance, could not be agitated on appeal. 2. The question whether this Court should grant a stay of the order for possession pending disposition of the plaintiff's application for leave to appeal from the Panel's decision is a matter of discretion in which the prospects of success of the application for leave constitute a significant factor.