Howard v B. Miles Womens Foundation Inc [2012] NSWSC 1173

Supreme Court New South Wales

Medium Neutral Citation: Howard v B. Miles Womens Foundation Inc [2012] NSWSC 1173 Hearing dates: 25 September 2012 Decision date: 28 September 2012 Jurisdiction: Common Law Before: Schmidt J Decision: Interlocutory relief sought is refused. Catchwords: ADMINISTRATIVE LAW - review of decision - interlocutory orders sought - has a prima facie case been established - balance of convenience considered Legislation Cited: Residential Tenancies Act 2010 Cases Cited: ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths at [4.34]- [4.38] Category: Procedural and other rulings Parties: Kellie Anne Howard (Plaintiff) B. Miles Womens Foundation Inc (First Defendant) Consumer, Trader and Tenancy Tribunal of New South Wales (Second Defendant) Registrar of the Consumer, Trader and Tenancy Tribunal of New South Wales (Third Defendant) Representation: Counsel: Mr A Flecknoe-Brown (Plaintiff) Mr S Chapple (Defendant) Solicitors: Grant Arbuthnot Tenants' Union of NSW Co-op Limited (Plaintiff) File Number(s): 2012/290976 Publication restriction: No

Judgment 1Ms Howard is residing in premises owned by the first defendant, B Miles Womens Foundation Inc, a community-based agency which provides medium term accommodation to women affected by mental illness. She continues to reside there even though her fixed term residential tenancy agreement expired in February 2012 and she was given a notice of termination of the agreement, which required her to vacate the premises by 19 March 2012, having been offered various alternative long term accommodation elsewhere. 2On 3 August 2012 an order was made under s 84 of the Residential Tenancies Act 2010 by the Consumer Traders and Tenancy Tribunal of New South Wales, that Ms Howard give vacant possession of the premises by no later than 17 September 2012. The order has not been complied with. Instead, Ms Howard brought these proceedings on 19 September, in order to challenge the Tribunal's decision on the basis of jurisdictional error. Her case raises the proper construction of s 84 and s 115 of the Residential Tenancies Act, the Tribunal having concluded that s 115 had no application in the circumstances before it. The matter came before the duty judge last week and was adjourned to 25 September, on the basis of an undertaking that the first defendant would not act to enforce the Tribunal's orders before that date. 3On 25 September 2012, an amended summons was filed in Court, but Ms Howard was not ready to proceed. The matter was stood down and on resumption, she pressed interlocutory orders, preventing the first defendant from pursuing possession of the premises, while her summons is heard and determined. 4Ms Howard seeks to establish that the Tribunal wrongly construed the Residential Tenancies Act, with the result that it failed to determine an issue which she had raised and was entitled to have determined on its merits. On her case, in the result the Tribunal fell into jurisdictional error, so that the Foundation must be restrained from pursuing the Tribunal's order for possession of the property and the matter must be returned to the Tribunal, to be decided according to law. 5In issue between the parties was whether Ms Howard had a prima facie case and where the balance of convenience lies in the circumstances revealed on the evidence.