New South Wales Supreme Court CITATION : Rouvinetis v CTTT and Anor [2007] NSWSC 391 HEARING DATE(S) : 23/04/2007 JUDGMENT DATE : 24 April 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The appeal fails. The summons is dismissed. The plaintiff is to pay the costs of the Summons. CATCHWORDS : Residential tenancy agreement - application by tenant to have rebate of rent provision struck out - power to modify - applicable only to continuation of fixed term agreements Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) LEGISLATION CITED : Housing Act 2001 (NSW) Housing Assistance Act 1996 (Cth) Residential Tenancies Act 1987 (NSW) Evangelos Rouvinetis PARTIES : Consumer, Trader and Tenancy Tribunal New South Wales Land and Housing Corporation FILE NUMBER(S) : SC 30175/06 COUNSEL : In Person (Pl) Mr A. Jungwirth (2nd Def) SOLICITORS : New South Wales Land and Housing Corporation, Solicitors (2nd Def) LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S) : RT 06/58430 LOWER COURT JUDICIAL OFFICER : R Rodriguez LOWER COURT DATE OF DECISION : 18/12/2006 LOWER COURT MEDIUM NEUTRAL CITATION : Evangelos Rouvinetis v Corporation of Land and Housing - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 24 APRIL 2007 30175/06 Evangelos Rouvinetis v Consumer, Trader and Tenancy Tribunal and Anor JUDGMENT 1 HIS HONOUR: The plaintiff and the second defendant are parties to a residential tenancy agreement (the agreement). The agreement contains the following term (the term) :- "The tenant agrees that the landlord may formulate a policy for the granting of rebates or waiver of rents. The parties agree that in accordance with such policy the Department as landlord may grant a rebate or waive rent in its absolute discretion." The plaintiff has become aware of it in more recent times. 2 The second defendant is a statutory corporation created by the Housing Act 2001 (NSW). It is charged with certain objects under that Act (including the provision of social housing to persons with demonstrable need for assistance in New South Wales). Financial assistance is provided by the Commonwealth via the Housing Assistance Act 1996 (Cth). The grant of rental rebates (to the plaintiff or any other social housing tenant) is a function of the obligations of the second defendant pursuant to both the Housing Act 2001 and the "2003 Commonwealth State Housing Agreement." 3 The plaintiff is a long-standing subsidised tenant. The agreement is in standard form (prescribed by regulation). The term is a standard term in the agreement. It is contained in numerous agreements made by the second defendant with social housing tenants. The clause enables the second defendant to grant rebates and/or waive rent and provides a benefit to the plaintiff. It enables the second defendant to implement its policies and provide him with a subsidised level of rent. 4 The plaintiff made application to the Consumer, Trader and Tenancy Tribunal (the Tribunal) to have the term struck out of the agreement. 5 The application was dealt with by the Tribunal on 14 December 2006. A Notice of Order issued by the Tribunal contained, inter alia, the following:- "1. The application to have clause 30 struck out of the residential agreement between the applicant and the respondent is dismissed. The Tribunal has no authority to remove such clause from the agreement but even if there was such authority the applicant has not satisfied the Tribunal that such action was appropriate or justified." 6 The plaintiff has filed a Summons in this Court. The purport of the Summons appears to be to bring an appeal pursuant to s67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). This section provides a narrow ambit of challenge. 7 The appeal was heard on 23 April 2007. The plaintiff appeared in person. The second defendant was represented by Counsel. Both the plaintiff and the second defendant provided written submissions and have orally addressed the Court. After hearing argument, the Court adjourned until 10.00am on 24 April 2007 for the delivery of judgment. This enabled the Court to have a close look at all the documentation and consider any relevant authorities. 8 The plaintiff looks to s14(2) of the Residential Tenancies Act 1987 (NSW) (the Act) for relief. This provision is as follows:- " 14 Continuation of fixed term agreements (1) … (2) The Tribunal may, on application by a landlord or a tenant, modify the terms (including terms contained in any standard form but not any terms set out in Part 3) of a residential tenancy agreement included in the agreement by this section as it considers appropriate for the continuation of the agreement." 9 Clearly, the plaintiff feels very strongly about the matter. He addressed the Court with considerable emotion. He seems to be particularly concerned that the term contains the words "absolute discretion". 10 Despite having been in operation for many years, there appears to be no decided case that deals with the modification that can take place pursuant to the provision. This lack of authority is not of importance in the present case. 11 The second defendant contends that the term is one that falls within the category of being set out in Part 3 of the Act and is therefore expressly excluded from the power to modify. 12 Part 2 of the Act contains s8 (which deals with "standard form of residential tenancy agreement"). Subss 3 and 5 thereof are as follows:- " 8 Standard form of residential tenancy agreement … (3) A prescribed standard form of residential tenancy agreement: (a) shall be deemed to contain all terms included in the agreement by Part 3, (b) may set out those terms or provisions to the same effect, and (c) may contain other terms not inconsistent with this Act. … (5) A prescribed standard form of residential tenancy agreement may not exclude the operation or vary the effect of any of the terms referred to in subsection (3) (a)." 13 Part 3 of the Act is headed "Landlords and tenants". Division 1 thereof is headed "Right and obligations" and contains s18. Section 18 is as follows:- " 18 Payment of rent It is a term of every residential tenancy agreement that the tenant shall pay the rent on or before the day set out in the agreement." 14 The term may be seen as falling within the category of "other terms not inconsistent with this Act". 15 Whether or not the contention of the second defendant be correct, I do not consider that s14(2) offers any assistance to the plaintiff. It confers a discretionary power to modify terms of a Residential Tenancy Agreement which are not set out in Part 3. In the exercise of the power the Court will have regard to the particular circumstances of the case before it and the dictates of justice. 16 The provision has limited application. The power is only available for exercise where a Residential Tenancy Agreement that creates a tenancy for a fixed term continues after the day on which the term ends. It is intended that it be a power to enable the making of appropriate modification for the continuation of the agreement. 17 I assume that it has no application for this reason alone, in the present case. Presumably, the agreement remains on foot. 18 If there was power to do so, this is not a case in which it would be exercised. The term is for the benefit of persons such as the plaintiff. There is no utility to him in modifying the agreement by striking the term out of it. The plaintiff must be labouring under misconception as to its function, otherwise he would not be moving to have it excised from the Agreement. 19 The Tribunal did not err in dealing with his application. Neither the agreement nor the term are void or ultra vires (as described by the plaintiff in his application). 20 The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the Summons. ********** 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.