New South Wales Supreme Court CITATION : Farmer v Residential Tenancies Tribunal & 2 Ors [2000] NSWSC 199 CURRENT JURISDICTION: Administrative Law FILE NUMBER(S) : SC 30061/99 HEARING DATE(S) : 17 March 2000 JUDGMENT DATE : 27 March 2000 Sarah Farmer (Plaintiff) Residential Tenancies Tribunal of New South Wales (First Defendant) PARTIES : John Chovanak (Second Defendant) Julia Chovanak (Third Defendant) JUDGMENT OF : Master Harrison LOWER COURT Residential Tenancies Tribunal JURISDICTION : LOWER COURT 99/05841 FILE NUMBER(S) : LOWER COURT Mr A Carpentieri JUDICIAL OFFICER : COUNSEL : N/A Ms Sararh Farmer (Plaintiff in person) SOLICITORS : Ms Z Weremezuk of Makinson & d'Apice LEGISLATION CITED : Residential Tribunal Act 1998 (NSW) Residential Tenancies Act 1987 DECISION : See para 20 10 THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION MASTER HARRISON MONDAY, 27 MARCH 2000 30061/99 - SARAH FARMER v RESIDENTIAL TENANCIES TRIBUNAL OF NEW SOUTH WALES & 2 ORS JUDGMENT (Appeal decision of Residential Tenancies Tribunal) 1 MASTER: By amended summons filed 29 November 1999 the plaintiff seeks to appeal the decision dated 20 August 1999 of the Residential Tenancies Tribunal (RTT) pursuant to s 62 of the Residential Tribunal Act 1998 (NSW). The plaintiff relied on her affidavit sworn 26 August 1999. The first defendant has filed a submitting appearance. The second and third defendant relied on the affidavit of Julia Chovanak sworn 22 February 2000. Ms Farmer represented herself. She was articulate. 2 On 8 February 2000 Dunford J made orders for a stay of execution conditional upon the plaintiff paying an occupation fee. These orders were continued until today. 3 The grounds of appeal are as follows. (1) That the Member erred on 6 April 1999 when during the hearing he twice stated that he was not interested in the plaintiff's common law rights to evict a trespasser. (2) That the eviction of a trespasser with only as much force as is necessary is a lawful act of force and not an act of violence. (3) That the landlord, by entering the premises without the permission and contrary to the Act is in fact a trespasser. (4) That the Member erred in admitting evidence re file No 98/36373 to this judgment even after it was finally admitted that there was no jurisdiction to re hear the file. (5) That the Member erred when he claimed that the plaintiff refused to acknowledge that some of her acts were acts of violence. The Member quoted Ms Farmer's definition of violence as "unsolicited attack on people" but omits the remainder of the statement that quite clearly states that the plaintiff does not regard lawful acts of force as acts of violence ( p 24 judgment t p 35). (6) That the Member erred when he questioned Ms Farmers credibility citing as reasons avoidance of answering questions with regard to violence. (7) That the Member erred in not following the decision of the Residents Tribunal on the 18 December 1998 re file No 98/36373 when it dismissed a claim under s 68 and contrary to his jurisdiction, reversed the finding of that day by referring to the incidents on the 7 November 1998 as an act of violence in order to qualify his judgment, and not a lawful act of force as was previously found by the Tribunal (judgment 17). (8) That the Member erred when, in his judgment he made reference to a remark by a witness that is, in the face of the evidence, an obvious lie and did not state such was the case. (9) That the Member erred in making reference (judgment p 25) to evidence not submitted in the hearing which was closed on 18 April 1999, namely a letter from Dr Janine Stevenson, submitted in evidence on 22 July 1999 (t p 52). (10) That the Member erred in his comments that the plaintiff claimed hormone therapy affected her actions. There is no evidence of this claim in the transcripts. (11) That the Member erred in his comments re the plaintiff's statements that she would kill Mr Chovanak if she found him in the house. These statements were made to the Tribunal in response to questions asked about what she had said on those occasions and were not repeated threats made at the Tribunal as claimed by the Member. (Judgment p 21 t p 28). (12) That the Member erred in his comments that an attack on a persons property is not an attack by proxy on the persons self. (Judgment p 25). 4 Section 62 of the Residential Tribunal Act allows for an appeal to be made to this court on a question of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law. 5 Section 62(3) of the Act provides: "(3) After deciding the question the subject of an appeal by a party under this section, the Supreme Court may, unless it affirms the decision of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal." 6 On 16 November 1999 the Tribunal Member Antony Carpentieri gave written reasons in relation to the landlords, John Chovanak and Julia Chovanak (the defendants in these proceedings) to terminate the tenancy of Ms Farmer (the plaintiff in these proceedings) pursuant to s 68 of the Residential Tenancies Act 1987. These reasons were given to the parties on 20 August 1999 but judgment was not delivered until 16 December 1999. It is this decision that the plaintiff seeks to appeal. 7 Section 68 of Residential Tenancies Act 1987 provides: "Tribunal may terminate residential tenancy agreement where tenant causes serious damage or injury (1) The Tribunal may, on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit: (a) serious damage to the residential premises; or (b) injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises. (2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises taking effect immediately." 8 The Member outlined the history of the previous matters between these parties. Previous proceedings has also involved a tenant Ms Roseaire Nawaz. In this section of the house, there were three bedrooms and a common lounge room, bathroom and kitchen. The defendants rented out each of the three bedrooms and all the tenants had access to the common areas. Ms Nawaz had been allocated bedroom 3 and the plaintiff had been allocated bedroom 2 and bedroom 1 is currently vacant (see Ex C). 9 On 26 November 1998, (about one year prior to the proceedings the subject of this appeal) an application by the landlords pursuant to s 68 of the Residential Tenancies Act 1987 were brought against Ms Farmer. On 18 December 1996, an order was made that the landlords had been able to establish the grounds required under s 68. Accordingly the landlords claim for termination was dismissed. There is no transcript or written reasons from these proceedings. The plaintiff says that in relation to the two prior incidents, namely those of 7 and 12 November 1998, the Tribunal found that the plaintiff was acting within her common rights in relation to the landlord who was a trespasser and the proceedings were dismissed. 10 There were further proceedings which came before the Tribunal on 6 April 1999, 19 April 1999, 18 May 1999, 28 May 1999, 11 June 1999, 30 June 1999, 22 July 1999 and 17 August 1999. 11 The plaintiff submitted that the incidents of 7 and 12 November 1998 should not have been taken into account and these matters had already been determined by another Tribunal Member. The defendants submitted that in order for the Member to determine whether the plaintiff is likely to cause injury. The prior incidents were relevant. 12 The Member stated: "In the intervening period, the landlords had filed a section 63 re-hearing application in respect of some of the orders which had been made. At that time, the Tribunal understood that the re-hearing which had been granted included the orders which had been made in respect of the incidents of 7 and 12 November, 1998. Accordingly, evidence was taken in respect of those incidents by way of the re-hearing during the hearing of the current application in relation to the incident which occurred on 17 January 1999. Ms Farmer raised an objection saying that the incidents of 7 and 12 November, 1998 had been determined and did not form part of the re-hearing. Upon a review of the files, the Tribunal informed the parties on 14 May, 1999 that the two incidents of 7 and 12 November, 1998, did not form part of the re-hearing and that the re-hearing appears to be limited to any orders made by the Tribunal on 8 February, 1999. As such, it was indicated to the parties that the Tribunal would not be "re-hearing and re-determining" the incidents of 7 and 12 November, 1998. However, the Tribunal would have regard to those incidents if it was necessary to do so and only to the extent necessary (if at all) in the course of determining the current Section 28 application which concerned the incident of 17 January , 1999." 13 At page 16 of the Member's reasons, he stated: "Dealing with the important elements out of turn, the most critical part of the second limb of section 58 is the meaning of the word "likely". This word has been the subject of previous consideration and interpretation. In Oshlack v Richmond River Shire Council and Another (1993) LGERA222 AT 233 "likely" was held to mean a "real chance or possibility". In determining the second limb, in my view, the section requires a relevant consideration of the available evidence (even if that evidence has been insufficient to satisfy the first limb of the section) and for an assessment to be made on the balance of probabilities whether there is a "real chance or possibility" that, having regard to what is known, the tenant will cause or permit…..injury to the landlord…..in the future. In this regard the process calls for what appears to be constructive extrapolation. Such a process necessarily calls into consideration all relevant factors. In the normal course, those factors would be derived from the incident itself which gave rise to the section 68 application. In the present case, I am of the view that a proper consideration of the second limb of section 68 would require that I not only take into consideration whether or not any relevant prior history constituted by the events of 7 and 12 November 1998 assist me to evaluate and determine the real chance or possibility of future injury." 14 The Member held that on the later evidence of the incident of 17 January 1999, earlier determination cannot stand and the Tribunal may now find it likely that the tenant will intentionally or recklessly injure the defendants. The relationship between the landlord and tenant commenced in 1997 and was a continuing one. In order to ascertain whether the tenant was likely to injure the landlord, the nature of the relationship over time needs to be examined. The events of 7 and 12 November 1998 were relevant in that they demonstrated that the relationship had become acrimonious and involved threats of violence. The Member was entitled to take these incidents into account. There was no error of law. 15 The Tribunal member made findings that on 17 January 1999, when the second and third defendants and their friend Mr Truchlik arrived at the premises and knocked on the plaintiff's window to attract her attention she opened the window and began screaming and shouting abuse including "you little John bastard" and "John you're a cunt" (referring to Mr John Chovanak). During this exchange, the termination notices were given to Ms Farmer through the open window. Ms Farmer proceeded to tear up Ms Nawaz's termination notice. The landlords and Mr Truchlik then returned to Mr Truchlik's car and had begun to leave. The plaintiff crossed the road and smashed the windscreen of the car with the help of a set of nunchuckas. 16 The plaintiff submitted that the second and third defendants suffered no injury in the incident of 17 January 1999, and the defendants' application should have been dismissed. It is true that the Member found neither of the landlords suffered any physical injury as a result of the incident of 17 January 1999. Even though the Member made a finding that no injury occurred he formed the view that the plaintiff was likely to cause injury to the landlords. He gave four reasons for this, namely the history of escalating animosity and accompanying physical violence; secondly, Ms Farmer's stated intention to deal with any breach of her quiet enjoyment by the landlords by an act of extreme violence; thirdly, the threat and ability to cause injury to the landlords is both real and possible and fourthly, as the landlords conduct the tenancy of their premises by attending to the premises to collect rent from the tenants, carry out repairs, mow lawns and attend to the gardens, it is likely that the landlords will be at the premises for any number of legitimate reasons. 17 From the foregoing the Tribunal Member was entitled to come to the view that the tenant, Sarah Farmer was likely to intentionally and recklessly cause or permit injury to the landlords. The Member terminated the tenancy pursuant to s 68(2) and ordered that immediate possession be given to the landlord by the tenant. From evidence from the bar table, the Tribunal Member indicated that he proposed to make an order under s 68(2) but prior to doing so, he allowed her time to make alternative housing arrangements. He adjourned the matter until 16 November 1999 when he made the orders under s 68(2). Indeed, it is difficult to see how, in the circumstances of the case, he could have come to any other conclusion. There is no error of legal principle. 18 The other grounds related to the Tribunal Member's finding of facts and even if they are errors of fact are not appealable. Grounds (1) and (2) refer to matters which are not relevant considerations under s 68. 19 The decision of the Tribunal member dated 16 November is affirmed. The appeal is dismissed. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendants' costs. 20 The orders I make are: (1) The decision of the Tribunal Member dated 16 November 1999 is affirmed. (2) The appeal is dismissed. (3) The stay of execution on the order for termination of delivery of possession made by the Tribunal on 16 November 1999 is vacated. (4) The plaintiff is to pay the defendants' costs. ********** Last Modified: 09/25/2000 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.