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. Has a prima facie case been established? 6In evidence were two documents on which Ms Howard relied before the Tribunal, in both of which she referred to the notice of termination which the defendant had given her as being 'retaliatory', but which did not explain why, in the circumstances, s 115 of the Act was available to her to rely on. It was common ground that the section was referred to at the hearing, but what was then submitted by the parties could not be clarified, the transcript of the proceedings not being available. Ms Howard then appeared unrepresented, although she was accompanied by various people, including a disability advocate. 7The Tribunal's decision makes only brief reference to s 115. It was observed: "The respondent argued strongly that this situation is in reality more to do with mental health services or support than just a tenancy matter. She urges this on the basis that she signed additional agreements which should be read as interconnected with the residential tenancy lease. I accept further agreements were signed but I reject the submission that doing so in any way changed the effect of the residential tenancy leases. The terms of section 84 are mandatory and there is no reference to that section being subject to section 115 of the Act. I find that section 115 does not apply to section 84." 8The view otherwise reached by the Tribunal was that the requirements of s 84 were satisfied and so the orders sought by the Foundation were made, with Ms Howard being given until 17 September to vacate the property. 9Now in issue between the parties is the proper construction of s 115 and its interaction with s 84. It appears that this is a question not previously considered. It is not necessary to come to any concluded view about this question. It is settled that in an interlocutory application such as this, the Court should not attempt to resolve difficult questions of law. Nevertheless, an onus falls on Ms Howard to establish that she has a prima facie case, that is, that there is at least a probability that she will succeed in establishing her right to the relief which she seeks in these proceedings, at the final hearing (see ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [11]. 10Section 84, which appears in Division 2, Termination by landlord of Part 5, Termination of residential tenancy agreements, provides: "84 End of residential tenancy agreement at end of fixed term tenancy (1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term. (2) The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended." 11Section 115, retaliatory evictions, which appears in Division 6 Miscellaneous of Part 5, provides: "115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice: (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons: (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant." 12The Tribunal gave only brief reasons for the conclusions reached in relation to the interaction between s 84 and s 115 and made no findings on the question of whether, in the event that the section did apply to Ms Howard, the circumstances were such as to bring the notice of termination given by the Foundation in January 2012, or the application made to the Tribunal, within the provisions of s 115(2). 13If the section applied, Ms Howard was entitled to ask that when the Tribunal considered the Foundation's application under s84, it consider whether the notice of termination which it had given Ms Howard, or the application it had made to the Tribunal, were retaliatory. It was Ms Howard who had to establish that the notice or the application was wholly or partly motivated by one of the matters specified in s 115(2)(a), (b) or (c). 14There was no suggestion that the provisions of s 115(2)(a) or (c) arose to be relied on by Ms Howard. There was, it was explained, some correspondence in December 2011, which it was considered might have provided a basis for a submission by Ms Howard that the notice or application were motivated by the matters specified in s 115(2)(b), because thereby Ms Howard attempted to invoke legal rights which she believed that she had in relation to the property. There was no evidence, however, that such a document was tendered before the Tribunal, or that any submissions were made about this by Ms Howard. Ms Howard did refer at the hearing before the Tribunal to other agreements which she had entered, which she argued were relevant to her application under s 115. What these documents provided and whether they were capable of establishing that Ms Howard 'had taken or proposed to take any other action to enforce a right' which she had under the residential tenancy agreement, the Act or any other law, is not apparent. Given the view which the Tribunal took of the statutory scheme, it made no findings as to whether what was relied on fell within s 115. 15It is obvious that the legislation seeks to achieve a balance between the rights and obligations of landlords and tenants. In the case of fixed term agreements, it is expressly envisaged that a landlord may take steps which will bring such an agreement to an end, without giving any reasons. 16Section 84 applies to an application for a termination order made after a notice of termination has been given by a landlord in relation to a fixed term agreement. In the case of other types of applications for termination orders, for example where an agreement is terminated for breach (s 87) or for non payment of rent (s 88), the Tribunal is given a clear discretion as to whether or not to make such an order. By way of contrast, s 84(3) in the case of fixed term agreements, like s 85(3) in the case of periodic agreements, is expressed in mandatory terms. 17 By s 83, an application by a landlord for a termination order can only be made to the Tribunal after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, if vacant possession of the premises is not given by the tenant, as required by the notice. If the Tribunal is satisfied that a termination notice was given in accordance with s 84 and the tenant has not vacated the premises as required by the notice, s 84(3) specifies that it must make a termination order. 18The question is thus whether, in those circumstances, notwithstanding the mandatory terms of s 84(3), the general discretions given the Tribunal by s 115 to declare that a notice of termination which has been given has no effect, or to refuse to make such a termination order, are available to be exercised by the Tribunal, even though the landlord has established that the requirements of s 84(3) have been met. 19It was explained for Ms Howard that each of the provisions of Division 2 provides for a mechanism for termination of an agreement in differing circumstances and vests powers in the Tribunal to make termination orders. It was submitted that s 115 was an 'overriding provision', but for which the Tribunal was obliged to make a termination order, once the relevant jurisdictional facts were established. That it was such an overriding provision, it was submitted was apparent from its placement in Division 6, the general provisions of which are intended to qualify all those circumstances in which the Tribunal may make a termination order under other provisions of the Act. 20Ordinarily, where there is an apparent conflict in legislation between a specific provision such as s 84, which prescribes the way in which a particular power is to be exercised, with a general provision such as that made in s 115, the conflict has to be resolved in favour of the specific provisions. That is, ordinarily a specific provision made in respect of how a particular matter is to be dealt with, excludes that matter being dealt with in accordance with other procedures elsewhere provided in the legislation to apply generally (see the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths at [4.34] - [4.38]). This is by no means an inflexible rule, but it is the usual one. 21In this legislation, s 115 appears in a part of the Act entitled 'Miscellaneous' where provision is made in respect of matters which could arise to be considered in various applications made under the Act. Some of them are unarguably applicable to a s 84 application. For example, s 113, Defects in termination notices, permits a termination order to be made even if there is a defect in the relevant termination notice or the manner of service of the notice. That would appear to be a discretion available to be exercised in favour of a landlord, who has not established that the requirements of s 84(3) have been met. Section 110 which deals with tenants vacating premises refers expressly to s 84 applications. 22That there could conceivably be circumstances where the s 115 discretion could have work to do, if it was available to be exercised in the case of a fixed term tenancy the subject of a s 84 application, may be accepted. Section 115(2)(b) after all encompasses the notion that a termination notice may be retaliatory, if given because the tenant has taken or proposes to take any action to enforce a right which the tenant has, not only under the residential tenancy agreement or the Residential Tenancies Act, but also under any other law. That, however, is not a determinative consideration in the case of a conflict such as this. The apparent statutory purpose that in the case of a fixed term agreement, subject only to the giving of the statutory notice, a landlord is entitled to recover possession of the property at the end of the agreed term, may not be overlooked. 23The discretion granted by s 115 is expressed in general terms, available be exercised 'on application by a tenant or when considering an application for a termination order or in relation to a termination notice'. It is relevant that apart from s 84, there are various other provisions of the Act, where the Tribunal is given a discretion as to whether or not to make a termination order, where the discretion given by s 115 has obvious work to do. That is a factor which weighs against the construction urged for Ms Howard. 24Also to be considered is that the provisions made in division 6, where s 115 appears, deals with a range of other matters, potentially relevant to a s 84 application. Section 111 deals with disputes about termination; s 112, deals with withdrawal of termination notices; s 114 gives a power to suspend an order for possession in the case of hardship; s 116 deals with accrual of rent on termination; s 117 deals with rent after a termination notice and s 118 with the giving of other notices. Apart from s 115, these provisions have no impact on whether or not a termination order required be made upon proof of the matters specified in s 84(3), may be declined. 25It appears that it is conceivable that there may have been a statutory intention that the mandatory terms of s 84 would be subject to the general discretion given by s 115, given the structure of this legislation. That, however, is not a sufficient basis upon which to make the orders sought. 26An onus falls upon Ms Howard to establish a prima facie case that the Tribunal erred in the conclusion which it reached as to the construction of the Act. On balance I have not been convinced that it has been shown that there is a probability that she will succeed in establishing her right to the relief which she seeks in these proceedings, at the final hearing. 27That conclusion is reinforced when it is considered that on the case advanced by Ms Howard before the Tribunal, it appears that she did not lead evidence or make submissions on which the Tribunal could have reached a conclusion in her favour under s 115, even if properly construed, the Act operated in the way for which it is now contended. It seems that the document on which that argument might have rested, was neither tendered nor referred to. That may well explain the shortly given reasons of the Tribunal for the conclusions reached on the construction point. 28In all of the circumstances, I am unable to conclude that Ms Howard has established this aspect of her case. The balance of convenience 29Here to be considered is the evidence that Ms Howard will not be homeless if the interlocutory relief she seeks is not granted, but she will unquestionably be placed in a difficult position. On her evidence the result will be that she will have to move to a one bedroom unit available to her long-term at Maroubra. This will make it more difficult for her to see her treating professionals, and she will not be able to reside there with her companion animal and will not be able to have a carer reside there with her, if she begins medication which she has been advised she may soon require. 30Also to be considered is that Ms Howard has for some 3 years had access to the limited accommodation which the Foundation, a non-profit community housing provider, has available to offer persons such as her, for medium term accommodation of between 3 and 18 months. Her most recent 12 week fixed term agreement expired in February. She was required to vacate the premises in March, under the notice she was given, but she refused. On the evidence, she has been offered and has refused other long term accommodation from time to time, including a 2 bedroom unit at Randwick, which she was offered in January when notice of termination was given. Ms Howard has resisted vacating the premises at Bondi, which she clearly knows are not available to her on a long term basis. It is apparent that she finds this housing more to her liking than other accommodation which has been offered to her, given its proximity to treating professionals and her family, but it is not in issue that this is simply not a basis upon which she can maintain her residence in the Foundation's premises in the long term. Such a preference could not conceivably provide a foundation for the exercise of any discretion under s 115. 31I have concluded, nevertheless and not without some hesitation, that the balance of convenience slightly favours Ms Howard's difficult circumstances, given the limited evidence as to the other demands currently being made on the Foundation's resources, which it cannot meet because of Ms Howard's refusal to vacate the premises. 32Notwithstanding this, given that I have concluded that a prima facie case on the issue which has arisen to be determined in this case has not been established, the interlocutory relief sought cannot be granted. Orders 33For these reasons, I order that the interlocutory relief sought by Ms Howard be refused. ********** 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. Decision last updated: 28 September 2012