Karmas & Anor v Toothill & Anor [1999] NSWSC 927

New South Wales Supreme Court CITATION : Karmas & Anor v Toothill & Anor [1999] NSWSC 927 CURRENT JURISDICTION : Common Law Administrative Law list FILE NUMBER(S) : 30025/1999; 30030/1999 HEARING DATE(S) : 11 August 1999 JUDGMENT DATE : 14 September 1999

John Karmas (First Plaintiff) Danka Durovic (Second Plaintiff) PARTIES : v William Kirk Toothill (First Defendant) Residential Tenancies Tribunal/Residential Tribunal (Second Defendant) JUDGMENT OF : Master Malpass

N/A (Plaintiff) COUNSEL : Mr G Durie (First Defendant) N/A (Second Defendant)

In Person (First and Second Plaintiffs) Biddulph & Salenger (First Defendant) SOLICITORS : I V Knight - Crown Solicitor - Submitting appearance (Second Defendant)

CATCHWORDS : Appeal from Residential Tenancies Tribunal/Residential Tribunal; restricted relief or remedy available in this Court (decision with respect to a matter of law). ACTS CITED : Residential Tenancies Act 1987, s 107, s 110, s 111. Residential Tribunal Act 1998, s 63. CASES CITED : N/A DECISION : See paragraph 23

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

MASTER MALPASS

TUESDAY 14 SEPTEMBER 1999

30025/1999 JOHN KARMAS & ANOR v WILLIAM KIRK TOOTHILL & ANOR 30030/1999 JOHN KARMAS & ANOR v WILLIAM KIRK TOOTHILL & ANOR JUDGMENT 1 These proceedings were heard together on 11 August 1999. Each proceeding was commenced by Summons. Each of them seeks relief under the Residential Tenancies Act 1987 (the Act). 2 Each Summons is a lengthy document. Each of them contains voluminous claims for relief. 3 The relationship of landlord and tenant exists between the plaintiffs and Mr Toothill (pursuant to a residential tenancy agreement dated 10 August 1998) in respect of the premises 26/39 Francis Street Darlinghurst (the premises). The premises comprise a unit in a block of units under Strata Title. 4 Two applications were brought before the Residential Tenancies Tribunal (the tribunal). In one of the applications, the landlord sought termination of the tenancy on the basis of non-payment of rent. In the other application, the tenants sought inter alia compensation arising out of water damage to the premises (there had been water penetration on 23 November 1998). The applications were dealt with by a member of the tribunal (Ms Gurr). In each application, a decision has been given and detailed reasons have been provided. 5 In the termination application, the real issue was whether or not a valid termination notice had been given. This question was resolved in favour of the landlord. It was common ground that no rental had been paid since 6 December 1998. The member did not make a termination order. Ultimately, she did make an order for payment of arrears. 6 In the compensation application, the tenants sought compensation in the order of about $7,000 in respect of a variety of matters (including for economic loss, for inconvenience and lack of amenities and for non-economic loss for stress and anxiety). The member found a liability in damages in the sum of $942. The sum of $942 was then set-off against the amount owed in respect of arrears of rent ($3,060). A final order was made that the tenants pay the landlord the sum of $2,118 by 31 July 1999. This sum has not been paid. 7 In each of these proceedings, the plaintiffs seek to challenge what was done by the member in the course of the determination of each of the applications. 8 Section 107 of the Act deals with "Appeal against decision of Tribunal with respect to matter of law". It enables only a restricted ambit of challenge to be brought to this Court. An appeal lies only where "the Tribunal decides a question with respect to a matter of law". The reference to "a matter of law" is expressed to include "a matter relating to the Jurisdiction of the Tribunal". 9 Save for the avenue provided by s 107 (and s 110), an order of the tribunal is expressed to be binding on all parties and no appeal lies in respect of that order (s 111). The Act makes it clear that no appeal lies in respect of questions of fact. 10 Section 110 makes provision for the variation or setting aside of orders. This section may provide an avenue for redress, under the Act, where the complaint relates to questions of fact. For completeness, it may be observed that s 63 of the Residential Tribunal Act 1998 enables the making of an application for a re-hearing. 11 Largely, the court has received material which was made available to the member. I should mention at this stage that the plaintiffs unsuccessfully made numerous attempts to show a video (part of which had been shown to the member). It had been taken one day after the leak had occurred and depicted inter alia the effects of the water penetration (including damage to goods of the plaintiffs). I shall return to this matter in due course. 12 The plaintiffs have appeared in person. Largely, the first plaintiff presented the case on behalf of both plaintiffs. The landlord was represented by counsel. A submitting appearance was made on behalf of the tribunal (at least in one of the proceedings). 13 The first plaintiff has addressed the court at great length. There was much repetition and rhetoric. The plaintiffs have been productive of voluminous documentary material. Some of it was handed up during the hearing. Some was provided immediately after the hearing had concluded. The plaintiffs were then informed that further communication should not be made without the consent of the other parties. This information was completely ignored. Shortly thereafter further attempts at communication and the forwarding of documentation to chambers, without the consent of the other parties, followed. In these circumstances, it became necessary for the Principal Registrar to contact the plaintiffs in writing and to again remind them of the information that had been previously given. The documentation sent to chambers was returned to the plaintiffs by the Principal Registrar. 14 Again, this information went unheeded. The Principal Registrar then arranged for a Deputy Registrar to make contact with the plaintiffs for the purpose of advising them in relation to the matter. On 24 August 1999, a Deputy Registrar did telephone and speak with the first plaintiff. Further advice was given to him (inter alia he was reminded that contact should be made with a judicial officer only with the consent of the other parties and he was advised that they should proceed by way of Notice of Motion returnable in open court if the plaintiffs desired to make any further application in the proceedings). I should add that the delivery of judgment has been held back to afford the plaintiffs a more than reasonable opportunity to make in open court any formal application which they considered appropriate. Although they have had the benefit of that opportunity, no such application has been made. 15 The submissions made on behalf of the plaintiffs were many and various. Although the impression was given that there had been some legal assistance, there were submissions which either could not be understood or were lacking in relevance. Generally speaking, the submissions related to questions of fact. It would not be a productive exercise to deal with each of the many complaints individually. 16 There were submissions which were presented as relating to error of jurisdiction. Despite the attempt to categorise questions of fact as errors of jurisdiction, it was clear that there was no basis for relief in respect of a matter relating to jurisdiction. 17 The plaintiffs are extremely unhappy as to various findings of fact made by the member. It has been sought to present these matters as errors of law. I have carefully examined the voluminous material placed before the court. In my view largely, none of these matters related to the deciding of a question with respect to a matter of law and none of them would give rise to an error of law in the sense that this expression is used in the cases. I may add that, in each instance there was relevant evidence before the member and the finding made by her was open on the evidence. No application of wrong principle or misdirection has been demonstrated. The plaintiffs' unhappiness in relation to her findings does not invoke the limited jurisdiction of this Court. 18 I should make it clear that, in respect of the termination application, the plaintiffs do not seek to disturb the decision made by the tribunal in the landlord's application (the member did not make a termination order). As a consequence, that possession was left undisturbed. There were arrears of rent and the quantum was not in issue. The complaints agitated in respect of that application relate to findings made in the course of reaching the decision not to make a termination order. Much time was devoted inter alia to challenging findings made which led to the member forming the view that a valid termination notice had been given. A disturbing of any of these findings would not provide the plaintiffs with any relief or remedy. The submissions made in respect of the application amounted to a pointless exercise. 19 I should also mention that, in respect of the compensation application, the plaintiffs sought a variation of the quantum of the amount awarded for compensation (which was in the sum of $942). Whilst it appeared that the plaintiffs took the view that some larger sum should have been awarded, the attempts made to identify the precise quantum of compensation which they claim should have been awarded proved to be largely unproductive. The first plaintiff appeared to be more concerned with agitating matters relating to various findings of fact with which they were unhappy. For completeness, I should observe that no matter of law was thrown up in the submissions made relating to this application. 20 The arguments put on behalf of the landlord sought to identify two possible areas which appear to be put forward by the plaintiffs as incidents of denial of natural justice. The first related to the matter of an adjournment which followed an amendment of the landlord's application. The second related to the admission into evidence by the member of part only of the video. In my view, to the extent that they may be open to the plaintiffs, there is no substance in either suggestion. Only the matter of the video perhaps needs some further comment. Earlier observations deal with the other matter (which in any event saw them being given a reasonable opportunity to present their case). 21 At the relevant time, the plaintiffs had legal representation. It appears that there was some dispute between the plaintiffs and their legal representative as to whether or not the balance of the video should be tendered in evidence. The transcript records the first plaintiff saying that he was trying to bully his legal representative to tender it. It appears that the legal representative made a tactical decision not to tender the balance of the video. Upon making that decision, he continued with the conduct of the case for the plaintiffs. Any redress available in respect of this matter does not lie in these proceedings. 22 I have mentioned that the plaintiffs repeatedly sought to show the whole of the video in this hearing. There was an unwillingness to accept the clear ruling made in respect of this matter. As a result, it was necessary to remind the plaintiffs of the ruling and repeat it on many occasions. The repeated rulings of the court were simply disregarded. The ruling was made and the attempts to re-agitate the matter were unsuccessful because no basis could be demonstrated for justifying the showing of the video at that time. On the one hand, it had potential to touch upon questions of fact only and could not assist the plaintiffs in the areas in which this Court had its limited jurisdiction. On the other hand, it had the potential to unnecessarily further protract an already lengthy hearing. The plaintiffs seemed to be unwilling to accept that the jurisdiction of this Court was restricted to cases where the tribunal had decided a question with respect to a matter of law. 23 Accordingly, I am not satisfied that any basis for relief has been demonstrated by the plaintiffs. Each Summons is dismissed. The plaintiffs are to pay the costs of both proceedings. **********