Bassett v NSW Land & Housing Corporation & Anor [2000] NSWSC 1078

New South Wales Supreme Court

CITATION : Bassett v NSW Land & Housing Corporation & Anor [2000] NSWSC 1078 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30055 of 2000 HEARING DATE(S) : 22 November 2000 JUDGMENT DATE : 22 November 2000

John Bassett (Plaintiff) v PARTIES : NSW Land & Housing Corporation (First Defendant) Residential Tribunal (Second Defendant)

JUDGMENT OF : Master Malpass

LOWER COURT Residential Tribunal JURISDICTION : LOWER COURT 00/13217 FILE NUMBER(S) : 00/15128 LOWER COURT John Cipolla JUDICIAL OFFICER :

Mr G Sirtes (Plaintiff) COUNSEL : Mr A Enright/Mr T Hudson (First Defendant) N/A (Second Defendant) North & Badgery (Plaintiff) SOLICITORS : Chris Valacos (First Defendant) I V Knight - Crown Solicitor (Second Defendant) Submitting Appearance CATCHWORDS : Exemption of residential tenancy agreements from the operation of the Act - jurisdiction of the Tribunal - Regulation is not retrospective. LEGISLATION CITED : Residential Tenancies Act 1987, s 46. Residential Tenancies (Residential Premises) Regulation 1995, cl 21. CASES CITED : N/A. DECISION : See paragraph 20.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADMINISTRATIVE LAW LIST MASTER MALPASS

WEDNESDAY 22 NOVEMBER 2000

30055 of 2000 JOHN BASSETT v NSW LAND & HOUSING CORPORATION & ANOR JUDGMENT 1 The plaintiff was a lessee under a lease which came into existence in 1989. The lease contained certain options of renewal. On 5 October 1999, he exercised one of the options for renewal. It is common ground that the exercise of the option gave rise to a Residential Tenancy Agreement. 2 Earlier this year he brought certain applications (for an order declaring that a rent increase was excessive) before the Residential Tribunal. The Tribunal determined that it had no jurisdiction. 3 The determination was founded upon the provisions of Clause 21 of the Residential Tenancies (Residential Premises) Regulation 1995 (the Regulation). It is in the following terms:- " Exemption: premises used for non-residential purposes A residential tenancy agreement is exempted from the operation of the Act if it relates to premises that are let to the tenant by the landlord for residential purposes but where the predominant use of the premises let is for the purposes of a trade, profession, business or agriculture." 4 The Tribunal determined that it had no jurisdiction because the Residential Tenancy Agreement was exempted from the operation of the Residential Tenancies Act 1987 (the Act) under Clause 21 of the Regulations. 5 The plaintiff now brings an appeal against that determination. The hearing of the appeal commenced on 22 November 2000. 6 During the hearing of the appeal, I made certain observations from the Bench. At that stage, I had not heard full argument. Following the making of those observations, the parties had a short adjournment to give further consideration to the matter and to obtain instructions. 7 Following the short adjournment, the court was advised that the parties had reached a consensus and that Short Minutes of Order had been prepared. 8 The Short Minutes of Order were as follows:- "1. The Further Amended Summons filed 22 November 2000 be dismissed. 2. No order as to costs. 3. The Appellant undertakes to the court not to appeal from these orders." 9 By consent, orders were made in terms of paragraphs 1 and 2 of the Short Minutes of Order. The court noted the undertaking set forth in paragraph 3 thereof. 10 For the assistance of the parties, I was asked to provide short reasons for the observations that been earlier made in court. The parties were advised that it would be more convenient generally if this was provided in written form and then forwarded to the parties. The parties were advised that there would be no need for further attendance at court. 11 The appeal had challenged the determination as to no jurisdiction. Initially, this determination had been attacked on two bases. The first of the two bases I shall come to in due course. The second challenged a finding that the predominant use of the premises was for the purposes of a business. The second of the bases was abandoned at the commencement of the hearing. 12 It was common ground that prior to the commencement of the Regulation (31 August 1995), the Tribunal had the jurisdiction under s 46 of the Act to entertain such application inter alia in respect of a Residential Tenancy Agreement which related to premises that had been let for residential purposes but where the predominant use of premises let was for the purposes of a trade, profession, business or agriculture. A purpose of the Regulation was to effect certain exemptions (including an exemption of such Residential Tenancy Agreements from the operation of the Act). 13 The lease which had come into existence in 1989 had contained provisions (clause 17.4) which entitled the plaintiff to bring the applications in the predecessor of the Tribunal (The Residential Tenancies Tribunal). 14 It was the contention of the plaintiff that the present Residential Tenancy Agreement had come into existence prior to 1995 (in 1989). Further, it was said that by reason of s 46 of the Act and clause 17.4, the plaintiff had an accrued right to approach the Tribunal. It was also said that the Regulation did not have retrospective operation and that the Tribunal erred in so finding. 15 Ultimately, it was not disputed by the plaintiff that the Tribunal lacked jurisdiction to entertain his present applications. In the light of the argument that had been put to me, this coincided with the view that I had expressed in observations made to counsel. 16 I now turn to the submission that there was a finding by the Tribunal to the effect that the Regulation had retrospective operation. Minds may differ as to the intended meaning of certain of the material to be found in the relevant portion of the written reasons and may not agree with certain of the reasoning process expressed therein. Be that as it may, it seems to have been intended to reject the plaintiff's assertion that the existing Residential Tenancy Agreement had been entered into prior to the commencement of the Regulation. 17 In any event, I take the view that these considerations are not determinative of the jurisdiction question in the present case. In my opinion, the present Residential Tenancy Agreement came into existence after the commencement of the Regulation (following the exercise of the option). Accordingly, the question of retrospective operation does not arise. 18 For completeness, I should add that during this appeal it has not been suggested by the parties that the Regulation has retrospective operation. In the light of what has been put to me, that seems to be the correct approach on this question. 19 What has been said also disposes of the argument that the plaintiff had an accrued right as alleged. It may be added that any agreement between parties could not confer jurisdiction which the Tribunal did not in fact have. 20 In the circumstances, it seemed to me that the determination as to jurisdiction was not open to be disturbed (whether or not the reasoning process of the Tribunal was erroneous) and that accordingly the appeal was doomed to failure. **********