Supreme Court New South Wales Medium Neutral Citation: Mirvac Homes (NSW) Pty Limited v Noakes [2022] NSWSC 596 Hearing dates: On the papers Date of orders: 17 May 2022 Decision date: 17 May 2022 Jurisdiction: Common Law Before: Johnson J Decision: 1. NCAT has power to issue a warrant for possession to enforce the orders made by NCAT in favour of the Plaintiff on 3 March 2022. 2. It is unnecessary for the Plaintiff to make application to the Supreme Court for the issue of a writ of possession in this case. Catchwords: PRACTICE AND PROCEDURE – order for possession of land granted by NCAT under Agricultural Tenancies Act 1990 – whether NCAT has power to issue warrant for possession to enforce NCAT order – whether application for writ of possession ought be made to Supreme Court – held NCAT has power to issue warrant for possession of land to enforce order for possession under the Agricultural Tenancies Act 1990 Legislation Cited: Agricultural Tenancies Act 1990 Civil and Administrative Tribunal Act 2013 Civil Procedure Act 2005 Interpretation Act 1987 Sheriff Act 2005 Cases Cited: Flore v NSW Department of Education and Training [2006] NSWSC 1227 Hudson v ARAP 1 (NSW) Pty Ltd (2015) NSWLR 477; [2015] NSWCA 126 ID, PF and DV v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158; [2008] NSWSC 966 Morgan v Commissioner of Police [2012] NSWSC 1141 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd (2015) 230 BPR [98731]; [2015] NSWSC 289 Texts Cited: --- Category: Principal judgment Parties: Mirvac Homes (NSW) Pty Limited (Plaintiff) Nicole Noakes (Defendant) Representation: Solicitors: Dentons Australia Limited (Plaintiff) Nicole Noakes (Defendant) File Number(s): 2022/83200 Publication restriction: --- Judgment 1. JOHNSON J: Referred to me in Chambers, on 9 May 2022, in my capacity as Duty Judge in the Common Law Division, is an application by the Plaintiff, Mirvac Homes (NSW) Pty Limited, with respect to the Defendant, Nicole Noakes, arising out of proceedings before the New South Wales Civil and Administrative Tribunal ("NCAT") under the Agricultural Tenancies Act 1990 ("AT Act"). The NCAT Proceedings 1. On 3 March 2022, the Plaintiff obtained orders from NCAT under the AT Act for possession of two properties at Ingleside. 2. By consent, an order was made under s.21(1)(i) AT Act that the Defendant give the Plaintiff vacant possession of each of the Ingleside properties by 5.00 pm on 14 March 2022. In addition, orders were made, by consent, under s.21(1)(g) AT Act requiring the Defendant to perform certain work and to take steps with respect to the Ingleside properties, and to leave the properties in a neat and tidy state having regard to the condition of each property at the commencement of the Occupation Licence affecting each property. 3. Further orders were made on 3 March 2022 with respect to the making of a costs application by the Plaintiff, with a timetable being fixed for submissions. 4. The Defendant did not vacate the Ingleside properties by 14 March 2022. 5. On 15 March 2022, the solicitors for the Plaintiff made application to NCAT for the issue of a warrant for possession of the Ingleside properties. 6. On 21 March 2022, the Deputy Divisional Registrar of NCAT informed the solicitors for the Plaintiff that application should be made to the Supreme Court for enforcement of the NCAT orders of 3 March 2022, by issue of a writ of possession concerning the Ingleside properties. A certified copy of the NCAT orders was furnished for this purpose. Application to Supreme Court for Writ of Possession 1. On 23 March 2022, the solicitors for the Plaintiff filed in the Supreme Court a Registration of Certificate of Order which attached a certified copy of the NCAT orders. 2. On 25 March 2022, the Plaintiff filed a Notice of Motion in the Court seeking leave for the issue of a writ of possession for the Ingleside properties. 3. In effect, the Plaintiff sought that the Supreme Court issue a writ of possession with respect to the Ingleside properties arising from the NCAT orders of 3 March 2022. 4. The solicitors for the Plaintiff have requested that the application be dealt with expeditiously as concern is held about ongoing damage to the Ingleside properties and the welfare of horses located on the property. The Plaintiff wishes to enforce its judgment for possession of land as soon as possible. 5. In these circumstances, the solicitors for the Plaintiff seek an indication as to the appropriate way forward, through NCAT or the Supreme Court, to permit enforcement of the orders made by NCAT on 3 March 2022. 6. It is this question which has been referred to me for determination as Common Law Duty Judge. Relevant Provisions in the AT Act 1. There is no question that it was open to the Plaintiff to make application to NCAT under the AT Act for orders against the Defendant with respect to the Ingleside properties. 2. The objects of the AT Act include the provision of a mechanism for settling disputes between parties to agricultural tenancies through applications to NCAT: s.3(c) AT Act. 3. Part 2 of the AT Act (ss.5-14) provides for general rights of tenants and owners, including mechanisms for NCAT to play a part concerning written agreements (s.5), improvements (s.6), compensation for improvements carried out by the tenant or the owner with or without consent (ss.7-9), and a number of other practical provisions relating to agricultural tenancies. 4. Part 3 of the AT Act (ss.15-19A) provides for determination of compensation as sought under Part 2 of the AT Act. 5. Section 20 AT Act provides for applications to NCAT relating to disputes: "20 Applications to Tribunal relating to disputes (1) An owner or tenant may apply to the Tribunal for determination of any of the following: (a) a dispute relating to a right or obligation conferred by this Act, (b) a dispute arising from, or relating to, an agreement creating a tenancy or any other dispute (not being a dispute referred to in paragraph (a)) arising from, or relating to, a tenancy, (c) any other matter that may be determined by the Tribunal under this Act. (2) An application to the Tribunal must be made not later than 3 months after the relevant dispute or other matter arises or the end of the tenancy, whichever is the later." 1. Section 21 provides for orders that may be made by NCAT under the AT Act: "21 Orders that may be made by Tribunal (1) The Tribunal may, on application by an owner or tenant under this Act, or in any proceedings under this Act, make one or more of the following orders: (a) an order giving effect to a determination that may be made by the Tribunal under this Act, (b) an order that a record of the condition of a matter under section 12 must be amended or is not required to be amended, (c) an order that restrains any action in breach of a term of a tenancy, (d) an order that requires an action in performance of a tenancy, (e) an order for the payment of an amount of money, (f) an order as to compensation, (g) an order that an owner or tenant perform such work or take such other steps as the order specifies to remedy a breach of a term of the tenancy, (h) an order directing an owner, an owner's agent or a tenant to comply with a requirement of this Act or the regulations, (i) an order terminating a tenancy or an order for the possession of a farm, (j) an order directing an owner or owner's agent to give a former tenant or a person authorised by the former tenant access to a farm for the purposes of recovering goods or fixtures that the former tenant is entitled to remove. (2) An order under subsection (1) (c) or (d) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available. (3) The Tribunal must not make an order for: (a) the payment of an amount that exceeds $500,000 or such other amount as may be prescribed by the regulations for the purposes of this section, or (b) the performance of work or the taking of steps the cost of which is likely to or will exceed $500,000 or such other amount as may be prescribed by the regulations for the purposes of this section. (4) The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders: (a) an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings, (b) any ancillary order the Tribunal thinks appropriate, (c) an interim order. (5) A provision of this Act that enables an owner or tenant to apply for a determination by the Tribunal and the Tribunal to determine a matter or make an order also applies, where appropriate, to a former owner or former tenant. (6) This section does not limit the Tribunal's powers under the Civil and Administrative Tribunal Act 2013." Some Other Statutory Provisions 1. The objects of the Civil and Administrative Tribunal Act 2013 ("CAT Act") include, in s.3(d) "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". This provision is similar to the overriding purpose contained in s.56(1) Civil Procedure Act 2005. 2. Where a writ or warrant for possession issues with respect to land, the Sheriff executes the writ under the Sheriff Act 2005. Section 4 Sheriff Act 2005 provides as follows: "4 Sheriff's functions (1) The Sheriff has and may exercise such functions as are conferred or imposed on the Sheriff by or under this or any other Act or law. (2) The Sheriff also has and may exercise functions conferred or imposed on the Sheriff by or under an Act or law of the Commonwealth, another State or a Territory (including functions conferred by way of delegation)." 1. Section 7A of that Act states: "7A Powers of Sheriff when executing writs and warrants for possession of land (1) A sheriff's officer executing a writ or warrant for possession of land may do any of the following— (a) enter the premises and take all reasonably necessary steps to enforce the writ or warrant, (b) use such force as is reasonably necessary to enforce the writ or warrant, (c) obtain the assistance of a police officer. (2) A police officer may, at the request of a sheriff's officer, assist the sheriff's officer to enforce the writ or warrant. (3) The Sheriff must give the occupier of land subject to a writ of possession of land or a writ for the levy of property that relates to land not less than 30 days notice to deliver up possession of the land. (4) Subsection (3) does not apply if the execution of the writ has been previously stayed by a court or if a warrant for possession is issued under the Residential Tenancies Act 2010, the Residential (Land Lease) Communities Act 2013, the Retirement Villages Act 1999 or the Holiday Parks (Long-term Casual Occupation) Act 2002. (5) In this section— writ or warrant for possession of land means— (a) a writ of possession of land, or (b) a writ for the levy of property that relates to land, or (c) a warrant for possession of residential premises under the Residential Tenancies Act 2010, or (d) a warrant for possession of residential premises under the Residential (Land Lease) Communities Act 2013, or (e) a warrant for possession of residential premises under the Retirement Villages Act 1999, or (f) a warrant for possession of a site under the Holiday Parks (Long-term Casual Occupation) Act 2002." 1. The Civil Procedure Act 2005 provides for the Sheriff to exercise functions in connection with writs which might be issued by a Court. Section 104 Civil Procedure Act 2005 provides: "104 Judgments for possession of land (1) A judgment for the possession of land may be enforced by a writ of possession. (2) Execution of a writ of possession does not require any goods to be removed from the land." Does NCAT have Power to Issue a Writ or Warrant for Possession of Land Under the AT Act? 1. The question which arises is whether NCAT is empowered to issue a writ or warrant for possession of the Ingleside properties, or whether a separate application is required to the Supreme Court to undertake this task, despite the fact that NCAT has dealt with all other aspects of the proceedings, including the making of the order for possession itself. 2. It may be seen then that the AT Act provides for a range of powers and functions on the part of NCAT with respect to properties which are the subject matter of the statute. 3. Section 3(c) AT Act states that the objects of the statute include the provision of a mechanism for settling disputes between parties to agricultural tenancies through applications to NCAT. Under s.3(d) CAT Act, an object of the statute is to enable NCAT "to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". The work which an objects clause performs includes operating as a source for identifying the purpose or object of legislation to assist statutory construction: s.33 Interpretation Act 1987; ID, PF and DV v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158; [2008] NSWSC 966 at [255]-[257]. 4. Avoiding fragmentation of civil proceedings is a common theme in case law: cf Flore v NSW Department of Education and Training [2006] NSWSC 1227 at [31] (and the cases cited therein). All the more so is the avoidance of fragmentation of proceedings which would require the hearing on the merits and the making of orders in one forum and the enforcement of those orders in a completely different forum. 5. In approaching the question of statutory construction in this case, I have kept in mind the statement of Bathurst CJ in Hudson v ARAP 1 (NSW) Pty Ltd (2015) NSWLR 477; [2015] NSWCA 126 at [25]: "The principles concerning construction of statutory provisions are well established. As was stated by the plurality of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47], 'the task of statutory construction must begin with a consideration of the text itself. … The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.' See also Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]." 1. In my view, it would take clear words in the relevant statute or statutes to demand an outcome where NCAT was empowered to hear and determine a claim for relief and make orders, but only the Supreme Court could issue a writ or warrant for possession to give effect to the determination and orders of NCAT. 2. There is no express power in the AT Act for NCAT to issue a warrant for possession to enforce an order for possession. However, NCAT is empowered to deal with the merits of an application for possession and to give orders with respect to such an application. Amongst a range of express powers, NCAT is authorised to make an order giving effect to a determination that may be made by NCAT under the AT Act (s.21(1)(a)) and, in any proceedings before it under the AT Act, to make any ancillary order that NCAT thinks appropriate (s.21(4)(b)). 3. The power in s.21(4)(b) AT Act to make ancillary orders indicates that there is no legislative intention to confine the scope of orders than can be made under s.21(1)(a) AT Act: Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd (2015) 230 BPR [98731]; [2015] NSWSC 289 ("Steak Plains") at [82]. 4. These powers permit NCAT to make a range of orders to give effect to a determination made under the AT Act and orders which are ancillary to orders under the statute. In circumstances where NCAT is, in essence, the trial forum for claims for relief under the AT Act, it is entirely understandable that the statute would allow NCAT to exercise all powers and functions which arise to determine to finality all steps flowing from an application for relief. This construction would give effect to the objects clauses in s.3(c) AT Act and s.3(d) CAT Act. 5. An argument against NCAT having power under the AT Act to issue a warrant for possession would involve comparison with other statutes, where express power is given for the issue of a warrant for possession. These statutes are those referred to in s.7A(5)(c)-7A(5)(f) Sheriff Act 2005 (see [22] above). 6. An argument against NCAT being empowered to issue a writ or warrant for possession would seek support from the existence of provisions such as this, in other statutes, so as to require a separate process before the Supreme Court for a party to enforce an order for possession granted by NCAT after a hearing (or by consent of the parties) under the AT Act. 7. The Court is required to construe the AT Act, bearing in mind the principles of construction and the objects clauses in the AT Act and the CAT Act. 8. It would be entirely contrary to modern precepts of statutory interpretation, and the just, quick and cheap resolution of the real issues in dispute in civil proceedings, to have a procedural arrangement where one body (NCAT) considered all aspects of a claim for relief under the AT Act, including the making of an order for possession, but that it was left to a separate body (the Supreme Court) to enforce the order by issue of a writ or warrant for possession and, presumably, with the Court being required to entertain any application for a stay of execution of the writ issued by the Supreme Court. Upon this approach, parties would be required to seek the issue of process in two separate fora with the prospect of additional costs and consequential delay. 9. In my view, ss.21(1)(a) and 21(4)(b) AT Act comprise a sufficient head of power for NCAT to issue a writ or warrant for possession of land arising from proceedings before it where all antecedent orders have been made. 10. To the extent that the express provisions of the AT Act do not extend that far, there is a proper basis to conclude that power ought be implied as being necessary for the proper exercise of NCAT's jurisdiction under the AT Act. Such an implied or incidental power is to do all things as are necessary or reasonably incidental to the performance of the specified functions and powers of the body: Morgan v Commissioner of Police [2012] NSWSC 1141 at [152]. As noted earlier, s.21(4)b) AT Act makes provision for the making of ancillary orders and this power is not to be narrowly confined (see Steak Plains at [31] above). 11. I am satisfied that s.21 AT Act, and (to the extent it is necessary) a power arising by necessary implication, supports a conclusion that NCAT may issue itself a warrant for possession following proceedings determined under the AT Act. 12. To the extent that the presence or absence of particular provisions in different statutes may provide a contrary argument, I am not persuaded that a legislative intention is identified to place the AT Act in a position where one body (NCAT) acts as the trial tribunal, but that another body (the Supreme Court) must issue process to allow enforcement and, presumably, assume as well exclusive power to determine whether a writ of possession issued by the Court should be stayed. This unnecessary duplication of bodies, and the associated duplication of costs, would be contrary to the modern approach to the determination of civil disputes under legislation and contrary to the objects of both the AT Act and the CAT Act. Conclusion and a Suggestion for Reform 1. I am satisfied that NCAT may issue appropriate process to enforce its own orders in this case. However, to the extent that the patchwork legislative scheme under different Acts may give rise to a possible argument to the contrary, it is desirable that legislative amendment be made to ensure that there is express statutory power under the AT Act to issue a warrant for possession under that Act. 2. For the reasons contained in this judgment, I am satisfied that: 1. NCAT has power to issue a warrant for possession to enforce the orders made by NCAT in favour of the Plaintiff on 3 March 2022. 2. It is unnecessary for the Plaintiff to make application to the Supreme Court for the issue of a writ of possession to enforce the orders made by NCAT under the AT Act. ********** 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. Decision last updated: 17 May 2022