HEEREN v RESIDENTIAL TENANCY TRIBUNAL & ANOR [1999] NSWSC 870

New South Wales Supreme Court CITATION : HEEREN v RESIDENTIAL TENANCY TRIBUNAL & ANOR [1999] NSWSC 870 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 12178/1998 HEARING DATE(S) : 16 August 1999 JUDGMENT DATE : 30 August 1999

Martha Ann Heeren (Plaintiff) v PARTIES : Residential Tenancy Tribunal (First Defendant) Tarik Abdulhak (Second Defendant)

JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Residential Tenancies Tribunal LOWER COURT FILE NUMBER(S) : 98/04137 LOWER COURT JUDICIAL OFFICER : H Edward Moore

Mr P Gwozdecky (Plaintiff) COUNSEL : Submitting appearance (First Defendant) Miss J Needham (Second Defendant) Tim Young & Associates (Plaintiff) SOLICITORS : Submitting appearance (First Defendant) Legal Aid Commission of NSW (Second Defendant) CATCHWORDS : Appeal where a question is decided as to a matter of law; jurisdiction; expiry of limitation period; point not taken before the tribunal. ACTS CITED : Residential Tenancies Act 1987, s 16, s 29, s 99, s 107. Motor Accidents Act 1988, s 52 (4). Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors (1999) NSWCA 11. CASES CITED : Dandashli v Dandashli (Court of Appeal, unreported, 16 December 1996). McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1. DECISION : See paragraph 18.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

MONDAY 30 AUGUST 1999

12178/1998 MARTHA ANN HEEREN v RESIDENTIAL TENANCY TRIBUNAL & ANOR JUDGMENT 1 The plaintiff seeks relief pursuant to s 107 of the Residential Tenancies Act 1987 (the Act). The section is headed "Appeal against decision of Tribunal with respect to matter of law". An appeal under this provision lies only where "the Tribunal decides a question with respect to a matter of law'". The hearing took place on 16 August 1999. 2 The plaintiff and the second defendant are parties to a Residential Tenancy Agreement. The plaintiff is the landlord. The second defendant is the tenant. The premises were located in a three storey block of units. 3 A burglary took place on 3 December 1997. Certain goods (including a diamond ring) were stolen from the premises. 4 On 12 February 1998, the second defendant filed an application in the Residential Tenancies Tribunal (the tribunal). He sought compensation for the loss of goods. He claimed the sum of $3,280. 5 By consent, the application was dealt with by way of informal hearing before a member of the tribunal (Mr Moore). The landlord was represented by his agent. The applicant was represented by Southern Tenancy Services. 6 On 16 March 1998, a decision was made. The landlord was ordered to pay the sum of $2,645 to the tenant. There was a request for written reasons. The reasons were provided on 2 October 1998. 7 The tribunal has filed a submitting appearance. Both the plaintiff and the second defendant have been represented by counsel in these proceedings. 8 The plaintiff seeks to have the order of the tribunal set aside. The order is challenged on two bases. The first basis has been described as a matter of jurisdiction. The second basis has been described as a matter of causation. 9 I shall first turn to the matter which has been described as going to jurisdiction. The argument is founded on the provisions of sections 16 and 99 of the Act. Section 16 (1) enables the bringing of an application, where there is a claim that a breach of a term of the agreement has occurred, for an order in respect of the breach. The provision requires that the application be made not later than 30 days after becoming aware of the breach. Section 99 is a provision that enables the tribunal (inter alia on its own motion) to grant an extension of time (even though the relevant period of time has expired). 10 In this case, the application was not made within the prescribed time. There was no application for an extension of time. The fact that the application had been brought out of time was not raised by the landlord during the hearing before the tribunal. Accordingly, the hearing before it was conducted on the basis that the application had been brought within time. No question of lack of jurisdiction was raised. 11 It has been said that this is a case where there was no jurisdiction to entertain the application and that jurisdiction cannot be conferred by consent. Although the full implications of such a submission were not pursued in argument, it seems to me that the submission has no application in the circumstances of this case. 12 Section 16 is an enabling provision which also imposes a limitation as to time. The Act enables the extending of the time limitation (even though the application for extension is made outside the relevant limitation period). The Act does not impose any condition precedent which must be satisfied before the bringing of the application in respect of the claim. The plaintiff looks to Dandashli v Dandashli (Court of Appeal, unreported, 16 December 1996), which it is said related to an analogous provision (s 52 (4) of the Motor Accidents Act 1988), as support for the submission. Not only do I not regard s 52 (4) as an analogous provision, I consider that Dandashli merely confronts the submission with further difficulty. In my view, the tribunal did not lack jurisdiction. 13 Limitation provisions take various forms. The authorities suggest that a true statute of limitation (being one which does no more than cut off resort to the courts for enforcement of a claim) is procedural in nature ( McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 41). A party may or may not choose to rely on the expiry of a limitation period as a Defence to a claim. If the party chooses to rely on it as a Defence it must be raised as an issue between the parties. In a court of pleading it must be specially pleaded. The matter of the expiry of the limitation period was not raised during the hearing before the tribunal. Generally speaking, parties are bound by the course they have adopted at the hearing in the lower court or tribunal. If the point had been taken during the hearing the defendant would have had the opportunity to both make and lead evidence in support of an application for extension of time. I do not consider that the plaintiff should now be allowed to raise it in these proceedings (see Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors (1999) NSWCA 11). 14 I now turn to the matter of causation. Section 29 of the Act imports a term into every Residential Tenancy Agreement. The term is to the effect that the landlord shall provide and maintain such locks or other security devices as are necessary to ensure that the residential premises are reasonably secure. I should now mention the substance of certain of the relevant findings made by the member. The member found that there had been a breach of that term. The breach was in substance a failure to fit a deadlock to the front door to the premises (as opposed to the front door to the block of units). It was also found that as a consequence of this breach a thief was able to gain entry. The plaintiff says that there was no evidence of causation between that breach and the loss of property. 15 The member had a body of evidence before him. I shall mention some of it. There was evidence that the main entry or front door to the block of units had been manipulated. He had evidence that the tongue of the tumbler lock on the front door to the premises had been twisted by a force being applied by a crowbar or similar object. This evidence was provided by a builder. There were photographs. There was a statement from the landlord and two reports regarding the door-locks at the premises. There was a police report. Also, oral evidence was given on behalf of each party. The landlord did not seek to adduce evidence that a device such as a dead-lock would not have prevented such a forceful entry. There were deadlocks fitted to the front doors of other units. Following the burglary, a deadlock was fitted to the front door of the premises. 16 It must also be borne in mind that the tribunal is required to hear and determine matters without regard to technicalities or legal forms. It is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit. 17 Whether or not the question of causation can be characterised as giving rise to a decision as to a matter of law in the sense required by the Statute (a question which was not fully argued), I am not satisfied that any error of law (or other basis) has been demonstrated by the plaintiff for the disturbing of the decision made in respect of that question. In my view, it was open to the tribunal to make the finding that the loss of the ring flowed from the breach of the implied statutory term. 18 I affirm the decision of the tribunal. The Summons is dismissed. The plaintiff is to pay the costs of the Summons. **********