New South Wales Supreme Court CITATION : Blackington Pty Limited v Henderson & 4 Ors [2000] NSWSC 590 CURRENT JURISDICTION: Administrative Law FILE NUMBER(S) : SC 30004/2000 HEARING DATE(S) : 21 June 2000 JUDGMENT DATE : 13 July 2000 Blackington Pty Limited (Plaintiff) Lloyd Arthur Henderson (First Defendant) Betty Adele Henderson (Second Defendant) PARTIES : Leonard Hogg (Third Defendant) Maria Hogg (Fourth Defendant) Residential Tenancies Tribunal of NSW (Fifth Defendant) JUDGMENT OF : Master Harrison LOWER COURT Residential Tribunal JURISDICTION : LOWER COURT 99/17045 FILE NUMBER(S) : LOWER COURT Mr R Tickner JUDICIAL OFFICER : Mr B Burke (Plaintiff) COUNSEL : Ms J Needham (First & Second Defendants) Shaw McDonald (Plaintiff) Ms N Haddad Tenants' Union of NSW Co-op Ltd (First & Second Defendants) SOLICITORS : Mr L Hogg (In person) (Third & Fourth Defendants) Mr I V Knight Crown Solicitor (Fifth Defendant) CATCHWORDS : Appeal decision of Residential Tribunal - Dog in caravan park Residential Tribunal Act 1998 - s 62 LEGISLATION CITED : Residential Parks Act 1998 (NSW) - s 41(3); s 43(1) Residential Site Agreement - s 48 CASES CITED : Killick v Second Covent Garden Property Co Ltd [1973] 2 All ER 337 Barina Properties v Bernard Hastie (Aust) [1979] NSWLR 480 DECISION : See para 21 12 THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION MASTER HARRISON THURSDAY, 13 JULY 2000 30004/2000 - BLACKINGTON PTY LIMITED v LLOYD ARTHUR HENDERSON & 4 ORS JUDGMENT (Appeal decision of Residential Tribunal; Dog in a caravan park) 1 MASTER: The plaintiff by summons filed 27 January 200 seeks an order pursuant to s 62 of the Residential Tribunal Act 1998 (the Act) that the first and second defendants' application to the Tribunal in so far as it seeks an order that the plaintiff consent to the assignment of the first and second defendants' site agreement to the third and fourth defendants be dismissed. Lloyd Arthur Henderson is the first defendant and Betty Adele Henderson is the second defendant (the Hendersons). Mr Hogg the third defendant appears for himself and his wife, Maria Hogg the fourth defendant (the Hoggs). The fifth defendant, the Residential Tenancies Tribunal has filed a submitting appearance. 2 Section 62 of the Act allows for an appeal to be made to this court on a question of law. The onus lies on the plaintiff to demonstrate that there has been an error of law. 3 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." 4 At the outset, it is helpful to set out some of the provisions of the Act. The function of the Residential Tribunal is to adjudicate disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the court room. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (s 27(3)). 5 Evidence must be given on oath or statutory declaration (s 36(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 27(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 27(1) and (2)). Its business is conducted in public (s 30). Normally a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 33(1)). The Tribunal has the power to award costs (s 47), but usually each party bears its own costs. Pursuant s 49 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 46) and the registrar can issue a certificate which operates as a judgment (s 47). 6 The grounds of appeal are as follows. (1) The member erred in law in failing to find that the third and fourth defendants would keep a dog on residential site 240 of Banora Point Caravan Park if they were granted an assignment of the rights and obligations under the site agreement applying to that site when there was no evidence to support a contrary conclusion and the proceedings were conducted by all parties and by the member on the basis that the third and fourth defendants will keep a dog on site 240 if granted the proposed assignment. (2) The member erred in law in holding that the third and fourth defendants as proposed assignees of the rights and obligations under the existing residential site agreement would not necessarily be in breach of the terms of the site agreement by keeping a dog on the site contrary to the terms of the site agreement. (3) The member erred in law in holding that the plaintiff had consented on a number of occasions to dogs being allowed to be kept under residential site agreements in and after March 1999 when there was no evidence to support such a finding. (4) The member erred in law in applying the legal principles stated in Killick v Second Covent Garden Property Co Ltd [1973] 2 All ER 337 rather than those stated in Barina Properties v Bernard Hastie (Aust) [1979] NSWLR 480 (CA). 7 The application before the tribunal sought action in performance of the agreement by ordering Blackington Pty Limited to consent to the assignment of the agreement to Mr and Mrs Hogg. Mr and Mrs Hogg were not parties in the tribunal hearing but are defendants in these proceedings because any orders made will affect them. The consent to the assignment was sought for the residential site agreement of site 240 Banora Point Caravan Park. Blackington Pty Limited was the lessor. The Hendersons were the current lessors of the lease for site 240. The Hendersons sought to assign the lease to the Hoggs. The tribunal heard evidence over two days, 15 September 1999 at Murwillumbah and 25 September 1999 at Tweed Heads. The tribunal member, Mr R Tickner delivered his written reasons on 13 December 1999. 8 Section 41(3) of the Residential Parks Act 1998 (NSW) provides that: "(3) It is, however, a term of every residential site agreement that the part owner may not reasonably withhold or refuse to consent to an assignment sub-letting referred to in subsection (1). 9 Section 43(1) provides: "Right to assign rights and obligations or to sub-let (1) It is a term of every residential tenancy agreement that: (a) the resident may, with the prior consent of the park owner, assign the whole or part of the resident's rights and obligations under the agreement or sub-let the residential premises, and (b) the park owner must not make any charge for giving such a consent, other than for the park owner's reasonable expenses in giving consent." 10 On 28 June 1999 there was a meeting between Mr and Mrs Hogg and Mr and Mrs Tschannen concerning the assignment of the lease. On 5 July 1999 by letter the plaintiff wrote to Mr and Mrs Hogg informed them that: "As promised at our meeting on 28 June 1999, I regret that your application to occupy site 240 has not been accepted for the following reasons:- 1. You expressed discontent and dissatisfaction with park management, park security and some of the residents. 2. The lease that Mr. & Mrs. Henderson have requested to be assigned has no provision for a dog and you advised at our meeting that you intended to have a dog occupy the site with yourselves. 3. You had been given a copy of the park rules prior to our meeting and you advised that you had read them. You further advised that you were unwilling to comply with the park rules." 11 The tribunal member considered each of the reasons expressed in the letter in turn. The tribunal member considered: "It was submitted on behalf of the applicants that the reasons given by Mr Tschannen on behalf of the respondent for refusing assignment of the agreement are "contrived" by the landlord to justify his unreasonable refusal. The Tribunal is not prepared to find on the evidence that the reasons were so contrived by the respondent and formed the view, based on the evidence given by Mr Tschannen on behalf of the respondent, that he genuinely and indeed deeply believed that the reasons given in support of the refusal were justified by the conduct of the would be assignee, Mr Hogg. However, as the Tribunal's decision will make clear the Tribunal is of the view that the reasons put forward by Mr Tschannen, both in his formal letter and subsequently, cannot be held to be reasons which would justify a conclusion that consent to the assignment had been reasonably withheld. However, on the evidence I did not find, and believe it is impossible on any reasonable consideration of the evidence to conclude, that Mr Hogg was other than a fairly ordinary person who had taken a moderate and I consider reasonable interest in tenancy issues associated with the caravan park, particularly after his attempt to purchase the caravan had been blocked. This is perhaps not an unreasonable response from an average person, but I do not think he could in any reasonable way be considered as a tenants-rights-advocate. If, however, I am wrong in my consideration of the evidence I do not believe that in the late 1990's the Tribunal could uphold refusal of an assignment based on the fact that a prospective assignee was a person who involved themselves in tenancy issues in relation to a caravan park, or for that matter housing complex." 12 It appears that grounds (1) to (3) of appeal are confined to the right to have the dog, a daschund named Sophie as referred to in paragraph (2) of the letter of 45 July 1999. The defendants submitted that the tribunal member did not make the findings set in grounds (1) to (3) of appeal and even if he did, they were errors of fact, not law. 13 On the issue of the dog, s 48 of the Residential Site Agreement stated: "PETS, POULTRY AND ANIMALS 48. The tenant agrees not to keep or care for any pets, poultry or animals on the premises except as permitted by the Park." 14 and the Banora Point Caravan Park Rules stated: "PETS Sorry, pets are not allowed in this park, unless with the management approval. No further permission will be granted for dogs." 15 The tribunal member made the following findings: "I find on the evidence that the Banora Point Caravan Park was portrayed publicly as "dog friendly place" and despite the provision in the park rules referred to in the submission purporting to prohibit further dogs living in the park there had already been a number of exceptions made to this rule. Mr and Mrs Hogg had a dog called Sophie which lived with them in the park and which they wished to take to the new site currently occupied by the Hendersons. The applicant produced evidence in the form of statutory declarations that there were already numerous dogs in the precinct of this site and that the prospective neighbours had no objection to Mr and Mrs Hogg moving to this site with a dog. Two authorities appears to be particular relevant (sic) to this issue. The first is the case of Killick v Second Covent Garden Property Co Ltd (supra) where it was held that there would not necessarily be a breach of the lease if it were assigned because the change of use may be approved in due course. In this case approval could not be unreasonably withheld. This case was strongly relied on by the applicants, however the respondent referred to the case of Barina Properties v Bernard Hastie (Aust) (supra). In that particular case the court found that in the words of Reynolds JA at page 486 " If the proposed sub-lease were granted in the form submitted it would necessarily involve a consent to a change of use". At page 487 he continued " It is difficult to say that it is unreasonable to withhold consent where the granting of it would preclude the lessor from thereafter insisting on the performance of the covenant as to use, a right which in this case it had unconditionally." Reynolds JA also at page 487 made reference to the Killick case where the assignee " continuing to be bound by the covenant as to use, would not necessarily be in breach; and where, if he were, the lessor's rights would be the same as if there had been no assignment." It appears to the Tribunal that this is precisely the circumstances which the respondent finds themselves in viz a viz Mr Hogg and his dog. Consent to this assignment by the respondent or an order which compelled the respondent to consent to the assignment leaves the respondent in absolutely the same position they would be viz a viz (sic) their rights to insist on no further dogs (however utterly unreasonable this might be), as they would have been had no assignment occurred. The outcome is not an entirely satisfactory one so far as relations between the parties are concerned. It may be that that the inevitable result will be that subsequent to the assignment the Hoggs will seek permission for a dog and the respondent will decline that consent and it appears entitled to do so however unreasonable that refusal might be. The question will then arise as to what remedy the Tribunal will grant should a breach of the agreement be shown to have occurred. It is, however, the Tribunal's view that such an outcome is only one of a number of possible scenarios which might develop and is by no means certain. In any event the bottom line is that the respondent still has its unfettered and unrestricted rights to insist upon no further dogs, however arbitrarily inconsistently and unreasonably such a policy might be applied." 16 The tribunal member considered the other reason in the letter given for the refusal namely that the Hoggs advised that they were unwilling to comply with the park rules. The tribunal member made a finding that Mr Hogg was a strong defender of park rules and the refusal to comply with park rules seemed to be confined to the dog issue. The tribunal member found on each of these issues and on the totality of the evidence, there had been an unreasonable refusal of consent on the part of the plaintiff. In other words, the tribunal member after considering all the facts and circumstances decided that the withholding of consent to the assignment of the agreement was unreasonable. An order was made that the respondent is to consent to the assignment from Mr and Mrs Henderson to Mr and Mrs Hogg the whole of the rights and obligations of Mr and Mrs Henderson contained in the lease dated 21 September 1992 which will continue upon such assignment. 17 In relation to the first ground of appeal, the tribunal member made a finding that keeping a dog on the site may not necessarily be in breach of the term of the site agreement. It was open to the tribunal to make this finding on the evidence. In relation to the second ground of appeal, I have read the member's reasons in full and I cannot locate such a finding. The third ground of appeal is a factual matter. It does not give rise to an error of law. In relation to the fourth ground of appeal, the tribunal member preferred to follow Killick rather than Barina. Both these cases involve an assignment of a commercial lease and relate to a change of use of the commercial premises. Counsel for the defendant sought to distinguish the cases cited on the basis that they were commercial leases, not an agreement to assign a lease on a site in a manufactured or relocated home park. 18 In such a park tenants own the fixtures, namely the relocatable van. The owner of the park leases the site to the tenant. There are 180 such sites in Banora Caravan Park The keeping of a dog is not analogous to a change in the use of the premises from one commercial activity to another. If the Hoggs kept their dog after the assignment of the agreement it does not mean that the tribunal would necessarily terminate the agreement, whereas a change in the use of commercial premises would most likely to a ground for termination of the lease. The application of these cases were not the decisive factor in the tribunal member's reasoning. For the reasons given earlier it is my view that the these cases provide limited assistance in any event. 19 The plaintiff submitted that the tribunal member should only have limited the evidence to the time at which the assignment was refused. The defendants submitted that all the circumstances had to be taken into account when the tribunal considered whether the refusing of consent was unreasonable. It is my view that the tribunal member ought to have considered all the circumstances when considering whether refusal was unreasonable. As previously stated, the tribunal member took into account the landlord's reasons for refusing to consent to the assignment and in all the circumstances found it to be unreasonable. 20 There is no error of law. I affirm the decision of the Residential Tribunal member, Mr R Tickner dated 13 December 1999. I dismiss the appeal. The summons is dismissed. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendants' costs. 21 The orders I make are: (1) The decision of the Residential Tribunal member, Mr R Tickner dated 13 December 1999 is affirmed. (2) The appeal is dismissed. (3) The summons is dismissed. (4) The plaintiff is to pay the defendants' costs as agreed or assessed. ********** Last Modified: 09/26/2000 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.