Sydney Harbour Federation Trust v McCluskey [2012] NSWSC 253

Supreme Court New South Wales

Medium Neutral Citation: Sydney Harbour Federation Trust v McCluskey [2012] NSWSC 253 Hearing dates: 12 December 2011 Decision date: 23 March 2012 Jurisdiction: Common Law Before: Harrison J Decision: 1. DECLARE that by notice of termination dated 24 June 2010 Sydney Harbour Federation Trust validly terminated the Residential Tenancy Agreement made between it and the second defendant in respect of the premises known as Townhouse 2, Macquarie Lightstation, Old South Head Road, Vaucluse. 2. ORDER that the second defendant give vacant possession of the premises to Sydney Harbour Federation Trust. 3. GRANT leave to Sydney Harbour Federation Trust forthwith to apply for a writ of possession in respect of the premises. 4. ORDER that execution upon any writ of possession issued to Sydney Harbour Federation Trust be stayed up to and including midnight on 30 April 2012 upon condition that the second defendant continues to pay rent to Sydney Harbour Federation Trust in accordance with the Residential Tenancy Agreement and otherwise continues to observe and to comply with its terms. 5. GRANT liberty to apply in respect of the meaning or enforcement of these orders on two days' notice. Catchwords: LANDLORD AND TENANT - termination of tenancy - whether plaintiff validly terminated a Residential Tenancy Agreement made between it and the second defendant - where the lease incorporated by reference the provisions of the Residential Tenancies Act 1987 - where s 71 Sydney Harbour Federation Trust Act 2001 (Cth) excluded the application of the Residential Tenancies Act 1987 -- whether s 71 resulted in the acquisition of property for the purposes of s 51 (xxxi) of the Constitution - no acquisition of property - whether lease otherwise validly terminated -lease validly terminated in accordance with the general law Legislation Cited: Commonwealth of Australia Constitution Act 1900 Commonwealth Places (Application of Laws) Act 1970 Lands Acquisition Act 1989 Residential Tenancies Act 1987 Residential Tenancies Act 2010 Sydney Harbour Federation Trust Act 2001 Cases Cited: Attorney-General for the Northern Territory v Chaffey; Santos Ltd v Chaffey [2007] HCA 34; (2007) 231 CLR 651 Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1 Dockrill v Cavanagh (1944) 45 SR (NSW) 78 Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 Minister for State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 Mutual Pools & Staff Pty Ltd v The Commonwealth of Australia [1994] HCA 9; (1994) 179 CLR 155 Queens Club Garden Estates Ltd v Bignell [1924] 1 KB 117 Quest Rose Hill Pty Ltd v White [2010] NSWSC 939 Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 Category: Principal judgment Parties: Sydney Harbour Federation Trust (Plaintiff) Lena Lahood-Seghabi (Second Defendant) Representation: B Walker SC with M W Sneddon (Plaintiff) D P Robinson SC with P M Lane (Second Defendant) Robinson Legal (Plaintiff) Cunningham Legal (Second Defendant) File Number(s): 2010/308790