Boscolo v Consumer Trader and Tenancy Tribunal & Ors [2011] NSWSC 1402

Supreme Court New South Wales

Medium Neutral Citation: Boscolo v Consumer Trader and Tenancy Tribunal & Ors [2011] NSWSC 1402 Hearing dates: 18 November 2011 Decision date: 21 November 2011 Before: HOEBEN J Decision: Summons dismissed Catchwords: ADMINISTRATIVE LAW - decision of Consumer Trader and Tenancy Tribunal - application pursuant to s69 of the Supreme Court Act 1970 - lessors seeking arrears of rent and order for possession from Tribunal - no denial of procedural fairness - summons dismissed. Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 Supreme Court Act 1970 Category: Principal judgment Parties: Mario Sylvio Boscolo - Plaintiff Representation: Mr Steirn - Plaintiff Submitting Appearance - First Defendant In Person - Second and Third Defendants Plaintiff in person IV Knight, Crown Solicitor - First Defendant In person - Second and Third Defendants File Number(s): 2011/190879

Judgment 1HIS HONOUR: Nature of proceedings The plaintiff is not legally represented. He has not attended the Court at any time while the matter has been before me but has been represented by his mother, Sylvia Boscolo, whom the Court has allowed to appear as a McKenzie friend. 2By an Amended Summons filed 5 August 2011 the plaintiff seeks the following orders: 1. An order in the nature of certiorari quashing the decision of the Consumer Trader and Tenancy Tribunal made at Sydney on 11 January 2011 pursuant to s65 of the Consumer Trader and Tenancy Tribunal Act 2001. 2. The plaintiff seeks an order in the nature of mandamus that the Consumer Trader and Tenancy Tribunal hear and determine the plaintiff's claim on the basis that the plaintiff has been denied procedural fairness. 3The Amended Summons is clearly defective. However, because the plaintiff is not legally represented, the Court has overlooked these deficiencies and has dealt with this matter as if it were a claim under s69 of the Supreme Court Act 1970. Factual background 4The dispute concerns premises at 51 Glenfarne Street Bexley in New South Wales. The second and third defendants are the owners of the property and the plaintiff was a tenant. The plaintiff had been late in making rent payments over a considerable period of time. The residential lease, pursuant to which he occupied the premises, was due to expire on 22 January 2011. Proceedings were brought by the second and third defendants in the Tribunal seeking payment of the arrears of rent and seeking an order for possession. 5The matter came before the Tribunal on 11 January 2011. The plaintiff was unable to attend, apparently due to ill health, but his mother, Sylvia Boscolo, attended on his behalf. The second and third defendants attended on that occasion. Ms Huang from the managing agent also attended. Neither party was legally represented. The Tribunal member who heard the matter was Ms A Borsody. 6The plaintiff's mother gave evidence in those proceedings. She conceded to the Tribunal that there were arrears of rent of approximately $2,320 and that from time to time on earlier occasions the plaintiff had failed to pay rent and that the rent had been significantly in arrears. 7It was common ground that the residential tenancy was due to expire on 22 January 2011 in any event. 8Ms Huang gave evidence on behalf of the defendants. She said that even when the rent was brought up to date, it would rapidly fall into arrears again. She said that the defendants not only wanted the arrears of rent paid, but they wished the lease to be terminated for non-payment of rent. 9The plaintiff's mother advised the Tribunal that she and the plaintiff would suffer extreme hardship if the lease were terminated on that day, since they had no alternative accommodation. She asked for a period of two weeks within which to leave the premises and find alternative accommodation. 10The orders made by the Tribunal were as follows: "1. Order for termination and possession: the tenancy agreement is hereby terminated and possession is to be given to the landlord on 14 January 2011. 2. The tenant shall pay the landlord a daily occupation fee at the rate of $60 per day from 12 January 2011 to the date possession is given. 3. The tenant Mario Sylvio Boscolo 51 Glenfarne Street Bexley NSW 2207 Australia is to pay the landlord, Cheung Sing Lai and Jenny Chow, care of Li and Fung Properties, 180 Florence Road, Hurstville NSW 2220 Australia, the sum of $2,500 immediately." 11The reasons for the Tribunal's decision were as follows: "The Tribunal finds on the evidence before it that: (i) There is no appearance by the tenant. I am satisfied that the tenant has been served with a notice of the hearing and that the justice of the case requires that the hearing proceed today. (ii) There is a residential tenancy agreement between the parties. The Tribunal has jurisdiction to hear and determine the application for a termination of the tenancy agreement and vacant possession of the premises. (iii) The notice of termination complied with the requirements of the Residential Tenancies Act 1987 s63, and provided a sufficient time in accordance with that Act for the tenant to comply. (iv) The notice was served in accordance with the provisions of clause 29 of the Residential Tenancies Regulations 2006. (v) The rent had remained unpaid for not less than 14 days on the day the notice was served or deemed served. (vi) The tenant has persistently breached the terms of the residential tenancy agreement in relation to the payment of rent. (vii) The tenant has failed to remedy the breach. (viii) The application was brought within 30 days of the date of vacant possession specified in the notice of termination. (ix) The Tribunal is satisfied that the breach justifies termination of the tenancy. (x) In all the circumstances of the case it is appropriate to make the orders sought. The circumstances include the fact that the arrears are currently $2,500 and there have been constant arrears." 12The plaintiff then made an application to the Tribunal for a rehearing of the matter. A stay of the Tribunal's orders was given while that application for a rehearing was dealt with. On 31 January 2011 the Tribunal made the following orders: 1. The application for a rehearing of matter RT10/36386 is not granted as a delegate of the Chairperson is not satisfied that the applicant may have suffered a substantial injustice. 2. The stay order made on matter RT10/36386 on 17.1.11 is lifted. 3. The parties are to note that the orders made in matter RT 10/36386 on 11.1.11 remain in full force and effect. 13The reasons given for the orders of 31 January 2011 were as follows: "1. The matter was heard in circumstances where the tenant was represented by his mother and where evidence was before the presiding member who provided written reasons for her decision on the day of the hearing. 2. Following consideration of the applicant's submissions and the published reasons for decision, the Tribunal is satisfied there is no evidence of substantial injustice or indeed any injustice whatsoever. 3. It is apparent from a perusal of the file that the parties were given every opportunity to obtain evidence to support their case. The tenant failed to comply with orders to pay rent arrears and to pay rent on time made by consent on 1.12.2010. 4. If it is alleged that the decision is wrong in law, then such claims are properly dealt with by way of appeal to the District Court pursuant to s67 of the Consumer Traders and Tenancy Tribunal Act 2001 (as amended)." 14Thereafter some application appears to have been made to the District Court. This Court was not provided with any information as to the nature or outcome of those proceedings or that application. 15On 10 June 2011 a Summons was filed in this Court and on 5 August 2011 an Amended Summons was filed. On the basis of the filing of the Summons, the plaintiff obtained a stay of the orders made by the Tribunal. The matter came before the Common Law Registrar on a number of occasions and was referred to me because of a failure on the part of the plaintiff to comply with court orders. The matter first came before me on 16 September 2011. 16At that time the Court was told that the matter had stalled because the Tribunal required $2000 to provide a transcript of what had occurred on 11 January 2011. The Tribunal had provided a CD but its contents had not been transcribed by either party. The Court directed the plaintiff to have the contents of the CD transcribed so that the matter could proceed. For reasons not clear, this did not occur until 3 November 2011 when a copy of the transcript was filed with the Court. When the matter came before the Court on 7 November, it was fixed for hearing on 18 November. 17It should be noted that no rent or occupation fee had been paid by the plaintiff since 7 April 2011 and that the rent and/or occupation fee had been in arrears since 5 February 2011. It should also be noted that as of 18 November 2011 an amount of approximately $17,160 by way of rent or occupation fee was owing to the defendants by the plaintiff. Proceedings 18 November 2011 18When the matter commenced on 18 November 2011, Mr Steirn appeared on behalf of the plaintiff in a limited capacity and the second and third defendants represented themselves. The plaintiff's mother was present in court. Mr Steirn applied for an adjournment on the basis of the ill-health of the plaintiff. He told the Court that having consulted with the plaintiff, he had some doubts as to the plaintiff's legal capacity to give instructions and to conduct the litigation. A medical report by a general practitioner to the effect that the plaintiff was suffering "severe anxiety due to various personal, legal and financial difficulties" and that he was unfit to attend Court was placed before the court. 19The adjournment application was rejected on the basis that the issue before the Court was one which did not require the plaintiff's presence and that the plaintiff's mother was available to give instructions if required. The issue could be decided on the CTTT transcript since it was a comparatively narrow one, i.e. whether the plaintiff had been provided with procedural fairness on 11 January 2011. 20I explained to Mr Steirn and to the plaintiff's mother that on my reading of the transcript of what had occurred on 11 January 2011, there had been no denial of procedural fairness. The rent was clearly in arrears and the defendants were entitled to possession. Insofar as the defendants' position was concerned, it had significantly deteriorated in that the amount of the unpaid rental and/or occupation fee now amounted to a very substantial sum. I indicated my intention to dismiss the summons, but provided the opportunity to either Mr Steirn or Ms Boscolo to make submissions as to why that order should not be made. No submissions were made either by Mr Steirn or by Ms Boscolo on that issue. In particular, no aspect of what had occurred before the Tribunal on 11 January 2011 was identified as involving a denial of procedural fairness. 21The only issue argued was the amount of time which should be allowed to the plaintiff within which to leave the premises. In an exchange with counsel I had suggested seven days but on instructions he requested 14 days. Because of the ill-health of the plaintiff, I acceded to that request. I invited submissions as to why the plaintiff should not pay the costs of these proceedings. 22The orders which I make are as follows: (i) The summons is dismissed. (ii) The plaintiff is to pay the defendants' costs of these proceedings. (iii) I stay the orders of the Tribunal of 11 January 2011 until 4pm on Friday, 2 December 2011. (iv) Any further applications for a stay by the plaintiff are to be made to me.