Jali Local Aboriginal Land Council v Lynette Simpson [2007] NSWSC 947

New South Wales Supreme Court

CITATION : Jali Local Aboriginal Land Council v Lynette Simpson [2007] NSWSC 947

HEARING DATE(S) : 27/8/07

JUDGMENT DATE : 27 August 2007

JUDGMENT OF : Bell J at 1

EX TEMPORE JUDGMENT DATE : 27 August 2007

DECISION : 1. Judgment for possession of the land known as 235 Back Channel Road, Wardell in the State of New South Wales being part of lot 13 in Plan annexed to Transfer C342491 being the whole of the land in certificate of title volume 4695 folio 35; 2. Leave to the plaintiff to issue a writ of possession on and from 3 September 2007; 3. The defendant is to pay the plaintiff's cost of the proceedings

Aboriginal Land Rights Act 1983 LEGISLATION CITED : Civil Procedure Act 2005 Consumer, Trader and Tenancy Tribunal Act 2001 Residential Tenancies Act 1987

PARTIES : Jali Local Aboriginal Land Council (Plaintiff) Lynette Simpson (Defendant)

FILE NUMBER(S) : SC 2006/14861

COUNSEL : Mr McCall (Plaintiff) No Appearance (Defendant)

SOLICITORS : S&P Lawyers (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Monday 27 August 2007

2006/14861 Jali Local Aboriginal Land Council v Lynette Simpson

JUDGMENT 1 BELL J: By statement of claim filed on 4 October 2006 the plaintiff, the Jali Local Aboriginal Land Council, an entity incorporated under the Aboriginal Land Rights Act 1983 claims judgment for possession of the land known as 235 Back Channel Road, Wardell being part of lot 13 in Plan annexed to Transfer C 342491, being the whole of the land in Certificate of Title volume 4695 folio 35, which I will refer to as "the property". 2 The plaintiff pleads that in about September 2006, the defendant wrongfully took possession of the property and continues in possession of it. The particulars given are that the plaintiff and the defendant entered into a residential tenancy agreement which was terminated by order of the Consumer Trader and Tenancy Tribunal. After a warrant for possession was executed the defendant returned to the property and continued to occupy it without the consent of the plaintiff. 3 The defendant appeared and in due course an amended defence was filed on her behalf by the Legal Aid Commission of New South Wales. 4 By that defence, the defendant admitted certain of the allegations in the statement of claim including that at all material times the plaintiff was the registered proprietor of the property. 5 In answer to the whole of the statement of claim the defendant asserted that the property is the subject of a "residential tenancy agreement" and, accordingly, that the proceedings are barred pursuant to the provisions of s 71 of the Residential Tenancies Act 1987. 6 Section 71 provides that: No proceedings in the Supreme Court, the District Court or a Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement shall be commenced by a landlord against a tenant or former tenant of the landlord. 7 The defendant pleaded that she was in possession of the property pursuant to a residential tenancy agreement, which was implied by the conduct of the parties. Certain particulars of that defence are set out in the amended defence. 8 "Residential tenancy agreement" is broadly defined for the purposes of the Act and means: Any agreement under which a person grants to another person for value, a right of occupation of residential premises for the purpose of use as a residence Colin in debt (a) whether or not the right is a right of the exclusive occupation (b) whether the agreement is expressed or implied and (c) whether the agreement is oral or in writing, or partly oral and partly in writing, and includes such an agreement granting the right to occupy residential premises together with the letting of goods. 9 On 24 May 2007, the proceedings were fixed for hearing today. The Associate's record of proceedings records appearances on behalf of both the plaintiff and the defendant on that occasion. 10 By letter dated 16 August 2007, Miss Dillon-Smith, a solicitor attached to the Lismore legal aid office, wrote to the registry enclosing a Notice of Intention to Cease Acting dated 16 August 2007. 11 The defendant did not appear when the matter was called on at 10am this morning. The Court officer was directed to call the defendant again at around 10.25am. Again, there was no appearance by the defendant. 12 Mr McCall, who appears on behalf of the plaintiff, informed the Court that his instructing solicitor had spoken with the defendant by telephone last week and that on that occasion, the defendant was equivocal about whether she would attend the hearing. 13 I was satisfied that the defendant was aware that the proceedings had been fixed for hearing today and, on Mr McCall's application, the hearing proceeded. 14 In support of the relief claimed Mr McCall read the affidavit of Barry Charles Jameson, which was sworn on 19 September 2006, the affidavit of Gavin Thomas Brown which was also sworn on 19 September 2006, and the affidavit of Kylie Coldwell was sworn on 23 August 2007. 15 In addition, Mr McCall read the affidavit of Stephen Colman, a licensed commercial agent, attesting to the service on the occupiers of the property of a Notice to Occupier, a copy of the latter together with a copy of the statement of claim is annexed to his affidavit, which was sworn on 20 October 2006. 16 Barry Charles Jameson, a partner in a firm of chartered accountants in Lismore, deposes to his appointment as Administrator of the plaintiff by the Minister for Aboriginal Affairs from 24 November 2004. His term of office was thereafter extended at six monthly intervals pursuant to provisions of section 231 (2) of the Aboriginal Land Rights Act. At the date of the material events, Mr Jameson was the plaintiff's Administrator. 17 The property forms part of an area known as Cabbage Tree Island, Wardell which was a recognised Aboriginal Reserve. On the incorporation of the plaintiff in 1984 under the Aboriginal Land Rights Act this land, together with other lands proclaimed reserved for indigenous use, was transferred to the plaintiff as vested by ministerial order. 18 The objects of the plaintiff include the operation of a social housing programme for disadvantaged persons in remote areas. Mr Jameson provides details of the determination of housing eligibility by the plaintiff's Housing Committee. 19 At the time of Mr Jameson's appointment a number of the properties owned by the plaintiff were occupied subject to lease agreements that were dated 1999 or 2000. Mr Jameson set about negotiating new lease agreements. He negotiated a residential tenancy agreement with the defendant dated 6 September 2005, a copy of which is annexed to his affidavit. The defendant fell into arrears immediately following the execution of the agreement. 20 On 10 January 2006, proceedings were commenced by the plaintiff in the Tribunal seeking termination of the residential tenancy agreement and possession of the property. 21 The proceedings came on for hearing on 14 June 2006 at Lismore when orders were made terminating the tenancy and granting possession to the plaintiff on 21 June 2006. A copy of the order made by the Tribunal forms part of annexure "F" to Mr Jameson's affidavit. A copy of the order was served on the defendant on 15 June 2006. 22 The defendant applied to the Tribunal for a re-hearing pursuant to section 68 of the Consumer, Trader and Tenancy Tribunal Act 2001. 23 By notice dated 19 July 2006, the Tribunal refused the application for a re-hearing. The stay of the Tribunal's earlier order was lifted on that date. Thereafter, the plaintiff applied to the Registrar of the Tribunal for the issue of a warrant for possession of the property. A warrant was issued on 3 August 2006 and arrangements were made by the solicitors acting for the plaintiff with the Office of the Sheriff at Lismore to execute it. 24 Mr Jameson appointed the Co-ordinator of Jali, Mr Gavin Brown, to attend to arrangements on the plaintiff's behalf with respect to the execution of the warrant. 25 Mr Brown states that on the morning of 22 August 2006, he received a telephone call from a person who introduced himself as a Sheriff's officer and who informed him that he was at the property. 26 In consequence of the telephone conversation, Mr Brown attended at the property. He observed two Sheriff's officers were present together with the defendant, her brother and her daughter. While Mr Brown was present at the premises in the presence of the Sheriff's officers, a locksmith changed the locks on the front and back doors. 27 The defendant, Mr Brown and the other persons left the premises and went out on the road. Mr Brown signed a document (annexure "A" to his affidavit) acknowledging receipt from the Sheriff of possession of the land described in the warrant. The keys to the premises were handed to Mr Brown. 28 After the Sheriff's officers left, the defendant asked Mr Brown "Can we go back inside?" It was raining and Mr Brown states that "emotions were running high". He said to the defendant, "I will not give you the keys. Go back inside and I will come and see you this afternoon and see how you are doing. Get your clothes and other essentials together and be organised to leave. I have to go to Lismore and I hope to be back at 1pm". 29 Mr Brown travelled to Lismore and later that day received a telephone call from the defendant. In the course of the call, the defendant said that she needed seven days to get herself organised and to get out of the property. She asked Mr Brown if he could talk to Mr Jameson to see whether Mr Jameson would let her in remain on the property. Mr Brown agreed to allow the defendant to stay on the property in order to organise her belongings over the next few days and to see if Mr Jameson was prepared to "sort something out with Lynette in terms of her rental arrears" (paragraph 10). 30 A prominent member of the local Aboriginal community died at the time of these events and this person's funeral was to be held on Friday, 25 August 2006. Mr Brown was aware of the grief among members of the community and did not wish to aggravate the position further. 31 On the morning of 25 August, Mr Brown attended at the Ballina police station in connection with attempts made by the plaintiff to secure the removal of the defendant from the premises. Subsequently, Mr Brown spoke with Mr Jameson and conveyed the defendant's request - that if she paid her arrears of rent she might be permitted to remain on the property. In consequence of this discussion, a letter was prepared by Mr Jameson with a view to it being handed to the defendant by Mr Brown. Mr Brown declined to do this. Mr Jameson prepared another letter (annexure "K" to his affidavit). 32 The second letter is dated 5 September 2006 and relevantly contains the following representations: "Dear Lynette I refer to the eviction orders placed on you by the Sheriff at the premises of 235 Back Channel Road, Wardell on 22 August 2006. I have discussed the proposal that you have put to me via the Jali LALC co-ordinator, Mr Gavin Brown. I advise you that I intend to pursue the eviction process ordered by the CTTT. I require that you, your family and all your belongings must be removed by Thursday, 7 September 2006 otherwise I have no option but to take legal steps to remove your belongings and auction them off to part pay rental arrears...please make the necessary arrangements to vacate the premises by 7 September 2006. … Failure to do so will cause me to have you arrested and charged with trespass. 33 The second letter was handed by Mr Brown to the defendant on 5 September 2006. 34 The defendant did not vacate the premises following receipt of Mr Jameson's letter. Thereafter, Mr Jameson sought the assistance of the police but was informed that the matter was a civil one and that only the Sheriff could assist in removing the defendant from the property. 35 Mr Jameson then sought the Sheriff's assistance but was advised that since the warrant for possession had been executed, there was no further role for the Sheriff to play. 36 It is against this background that the present proceedings claiming judgment for possession of land pursuant to s 20 of the Civil Procedure Act 2005 were commenced. 37 Kylie Coldwell is a member of the Executive of the plaintiff. Mr Jameson's Administration finished on 22 May 2007 and from that date the Executive resumed control of the affairs of the plaintiff. 38 Ms Coldwell deposes to discussions between solicitors retained on the plaintiff's behalf and Legal Aid NSW with a view to resolving the matter. These discussions have broken down. Following the conclusion of Mr Jameson's term as Administrator, the plaintiff had instructed its solicitors not to actively prosecute the present proceedings in the belief that the Executive would be a better position to resolve the matter by a process of conciliation than Mr Jameson might have done. Endeavours in this respect have failed. 39 There is no evidence in support of the allegations pleaded in the amended defence. 40 I have given consideration, taking into account the breadth of definition of "residential tenancy agreement", to whether the proceedings are precluded by operation of s 71 of the Residential Tenancies Act. Mr McCall submitted, and I accept, that the provision is not of application. The evidence is that the residential tenancy agreement entered into on 6 September 2005 has been terminated by order of the Tribunal. The plaintiff entered into possession following execution of the warrant on 22 August 2006. The defendant was permitted to return to the property for the purpose of getting her clothes and other essentials and making arrangements to leave the property. 41 The terms of the letter of 5 September 2006 are unambiguous. Following the defendant's refusal to leave the property as instructed by Mr Jameson in the letter of 5 September, these proceedings were commenced. In the circumstances I accept that there is no basis for finding that the property is subject to an implied "residential tenancy agreement" within the meaning of the Residential Tenancies Act. 42 The plaintiff has established its right to possession of the property. The requirements of Rule 6.8 of the Uniform Civil Procedure Rules 2005 have been complied with. 43 In the circumstances, I am satisfied that the plaintiff has made out its entitlement to the relief that it claims. 44 For these reasons, I make the following orders: 1. Judgment for possession of the land known as 235 Back Channel Road, Wardell in the State of New South Wales being part of lot 13 in Plan annexed to Transfer C342491 being the whole of the land in certificate of title volume 4695 folio 35.