Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gunner v Lawrence; Lawrence v Gunner [2015] NSWCATCD 127 Hearing dates: 15 October 2015 Decision date: 05 November 2015 Jurisdiction: Consumer and Commercial Division Before: K Rosser, Senior Member Decision: 1 In RT 15/51215 (RT 12/09391): (a) The tenancy agreement is terminated and possession is to be given to the landlord immediately. (b) The order for possession is suspended for four weeks from the date of these orders. 2 In RT 12/15580: (a) The application is dismissed. 3 Any application for costs is to be made within fourteen days of the date of these orders and is to be supported by a written submission not exceeding three pages in length. Any response to the application is to be made within fourteen days thereafter and is also not to exceed three pages in length. Catchwords: Residential tenancy; remittal from Supreme Court; whether Court made finding of residential tenancy agreement; whether Tribunal bound by finding; validity of termination notice; exercise of discretion in relation to date for possession Legislation Cited: Residential Tenancies Act 2010 Consumer Trader and Tenancy Tribunal Act 2001 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Frances Beatrice Gunner (applicant) Wayne James Lawrence and Valerie Lawrence (respondents) Representation: Counsel: Ms Glover for the Applicant Self-represented Respondents Solicitors: Marshall Law (Applicant) File Number(s): RT 15/51215 (formerly RT 12/09391)RT 12/15580 Publication restriction: Nil Reasons for decision Introduction 1. Mrs Gunner originally commenced these proceedings on 21 February 2012 in the former Consumer, Trader and Tenancy Tribunal (CTTT): RT 12/09391. She seeks orders for termination and possession in relation to what Mrs Gunner claims is a residential tenancy agreement between the parties in respect of xxxxxxxxx Balgowlah (the premises). 2. Mr and Mrs Lawrence filed an application in the nature of a cross-claim on 20 March 2012: RT 12/15580. The application referred to a number of sections of the Residential Tenancies Act 2010 (the RT Act). Relevantly, Mr and Mrs Lawrence sought a declaration under s 11 of the RT Act. Pursuant to s 11 the Tribunal may make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which the RT Act applies, or that specified premises are, or are not, premises to which the Act applies. 3. Mr and Mrs Lawrence denied that the agreement between the parties pursuant to which they occupied the premises was one to which the RT Act applied. Their application was therefore a defence to Mrs Gunner's application. They stated, amongst other things, that s 8(1)(f) of the RT Act applied to their agreement with Mrs Gunner. This subsection provides that the RT Act does not apply to "an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement". 4. Both applications first came before the Tribunal on 28 March 2012. The threshold issue of whether there was a residential tenancy agreement in place between the parties in respect of the premises. 5. On 12 September 2012, both applications were transferred to the Supreme Court of New Wales (the Supreme Court) by consent of the parties. The applications were to be heard in conjunction with proceedings Mr and Mrs Lawrence had commenced in that Court. A covering letter dated 11 September 2014 from Mr and Mrs Lawrence's then solicitor, which enclosed the proposed consent orders, stated that the Supreme Court proceedings "inter alia include matters currently before the Tribunal". 6. Mrs Gunner brought a cross-claim in the Supreme Court proceedings seeking, amongst other things, orders for possession of the premises. 7. The Supreme Court proceedings were heard and determined by Stevenson J, whose judgments were published on 16 July 2015 (the principal judgment) and 21 August 2015 (the supplementary judgment). 8. In the principal judgment, Stevenson J relevantly ordered as follows: 4. Order that the proceedings RT 12/5580 and RT 12/09391 transferred to the Court from the Consumer Trader and Tenancy Tribunal ("CTTT") by reason of the order made by the CTTT on 12 September 2012 and remitted to the New South Wales Civil and Administrative Tribunal ("NCAT") to be dealt with by NCAT in light of the reasons given in these proceedings on 16 July 2015 in Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944. 5. Grant liberty to the parties to apply for such other orders as may be required arising out of NCAT's consideration of the matter. 1. On remittal to the Tribunal, Mrs Gunner's application was re-registered as RT 15/52125. Mr and Mrs Lawrence's application remains RT 12/15580. 2. For the reasons set out below, I have found that: 1. In the Supreme Court proceedings, Stevenson J found that Mr and Mrs Lawrence occupy the premises pursuant to a residential tenancy agreement for the purposes of the RT Act. 2. The Tribunal is bound by that finding. 3. A valid notice for termination of a period agreement was given to Mr and Mrs Lawrence on 27 October 2011. 4. The application for termination and possession was filed within time. 5. The Tribunal has no discretion not to terminate the tenancy agreement. 6. A date for possession four weeks from the date of these orders is appropriate in the exercise of my discretion regarding the date on which vacant possession should be given. Background to dispute 1. The background to the dispute between the parties is set out at length in Stevenson J's principal judgment and will not be repeated in these reasons for decision. It is sufficient to note that Mr and Mrs Lawrence are husband and wife and that Mrs Gunner and Mrs Lawrence are twin sisters. Mr and Mrs Lawrence moved into the premises in or about September 2006. They had previously been living in a property owned by Mr Lawrence, together with Mrs Lawrence's daughter and son-in-law (Mr and Mrs Pearson). 2. As at September 2006, the premises were owned by Mr Gunner and were part of his extensive property portfolio. Mr Gunner died in 2009 and Mrs Gunner subsequently became the registered owner of the premises. 3. The Supreme Court proceedings involved a number of issues in dispute between the parties, including the basis of Mr and Mrs Lawrence's occupation of the premises. Mrs Gunner claimed that Mr and Mrs Lawrence occupied the premises under a residential tenancy agreement to which the RT Act applies. Mr and Mrs Lawrence claimed that they occupied the premises as a result of an agreement made with Mr Gunner in or around 2004. They further claimed that they were also entitled to occupy the premises because of later agreements made with Mrs Gunner. They claimed that one of the agreements was made after Mr Gunner's death in 2009 and the other agreement was set out in a letter from Mrs Gunner dated 27 January 2012. Findings in Supreme Court proceedings in relation to Mr and Mrs Lawrence's occupation of the premises 1. Stevenson J's findings in relation to Mr and Mrs Lawrence's occupation of the premises are set out at [498] to [525] of the principal judgment: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 His Honour had earlier in his judgment made extensive and detailed adverse findings in relation to Mr and Mrs Lawrence's credibility [328] to [378]. He had also rejected the evidence of Mrs Lawrence's daughter Mrs Pearson on the basis that it offer[ed] no independent way to the truth": [391] 2. Stevenson J found Mrs Gunner to be a witness of truth: [393] to [398]. He stated, at [393]: … [M]y conclusion is that where there is a conflict between the evidence of Mr or Mrs Lawrence and that of Mrs Gunner, I should accept Mrs Gunner's evidence. 1. He further stated, at [398]: … For the reasons I have set out, I do not accept Mr and Mrs Lawrence's case…. 1. Relevantly to the remitted proceedings, Stevenson J stated, at [498] to [504]: 498. On 21 February 2012, Mrs Gunner commenced proceedings in the CTTT against Mr and Mrs Lawrence seeking possession of 134 Clontarf Street. 499. The basis on which Mr and Mrs Lawrence resisted that claim was their assertion of the existence of the 134 Clontarf Street Agreement. 500. For the reasons I set out above, I am not satisfied that any such agreement was made between Mr and Mrs Lawrence and Mr Gunner, or later Mrs Gunner. 501. Accordingly, I am satisfied that Mr and Mrs Lawrence have no entitlement to continue in occupation of 134 Clontarf Street. 502. By her cross-claim in these proceedings, Mrs Gunner seeks judgment for possession against Mr and Mrs Lawrence. 503. Mr King submitted that Mrs Gunner's claim for possession is "barred" by s 119 of the Residential Tenancies Act 2010 (NSW). Section 119 is in the following terms: "A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement." 504. It is common ground that Mr and Mrs Lawrence occupy 134 Clontarf Street pursuant to a "residential tenancy agreement" for the purpose of s 119 (being "an 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": s 13(1) of the Residential Tenancies Act. The "value" here is Mr and Mrs Lawrence's promise to pay outgoings and to effect repairs: see [113] above). 1. In the supplementary judgment (Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229) Stevenson J stated, at [3] to [5]: 3. For the reasons I gave in my judgment of 16 July 2015, I have concluded that Mr and Mrs Lawrence have no entitlement to remain in possession of 134 Clontarf Street. 4. It follows that Mrs Gunner, as the owner of that property, is now entitled to possession of it. 5. However, Mr and Mrs Lawrence occupy 134 Clontarf Street pursuant to a "residential tenancy agreement" for the purpose of the Residential Tenancies Act 2010 (NSW) ("the Act") .… 1. Stevenson J remitted the proceedings to the Tribunal because only the Tribunal can order the termination of a residential tenancy agreement: s 81 RT Act and [518] to [521] of the principal judgment. Proceedings in the Tribunal subsequent to remittal 1. On 8 September 2015, after remittal of the proceedings from the Supreme Court, Mrs Gunner was directed to file and serve points of claim setting out the legal and factual basis for the claim now brought and the orders sought. The points of claim were to set out all findings made by the Supreme Court that Mrs Gunner claimed to be binding on the parties in the proceedings before the Tribunal and identify the paragraph in the reasons for decision where the relevant finding was made. 2. Mrs Gunner's solicitor filed amended points of claim on 14 September 2015. 3. A directions hearing was listed on 15 September 2015. At that directions hearing the Tribunal, constituted by Principal Member Harrowell, directed Mr and Mrs Lawrence to file and serve points of defence and, to the extent that they deny there is a residential tenancy agreement contrary to the fact recorded in [504] of Stevenson J's principal judgment to set why that is the case in the points of defence. Mr and Mrs Lawrence were also directed to set out in the points of defence the legal basis, if any, upon which they claim to occupy the premises. 4. Mr and Mrs Lawrence filed a reply to the amended points of claim on 18 September 2015. 5. The matter came back before Principal Member Harrowell for further directions on 23 September 2015. Relevantly, the following orders were made: … 2. Leave is granted to both parties to be represented. 3. The Tribunal notes the applicant's contentions and the issues for determination are as follows. The Applicant contends: A. The Supreme Court determined there was a residential tenancy agreement between the applicant and the respondents as found by Stevenson J in his reasons for decision dated 16/7/15 in Lawrence v Gunner [2015] NSWSC 944 (Reasons) and/ or the second decision in Lawrence v Gunner [2015] NSWSC 1229 (Second Decision). B. The Supreme Court Proceedings were remitted to the Tribunal to determine if the residential tenancy agreement should be terminated in consequence of a Notice for Termination dated 27/10/11 (Notice) issued under s85 of the Residential Tenancies Act 2010 (RT Act). Issues for determination by the Tribunal: I. Did the Supreme Court determine there was a residential tenancy agreement within the meaning of the RT Act. II. If no, by reason of the findings of the Supreme Court, particularly at paragraphs [105] to [117] and [494]-[504] should the Tribunal conclude: a. There is a residential tenancy agreement between the parties; or b. That the respondents are estopped from denying there is a residential tenancy agreement by reason of the principle in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1980-81) 147 CLR 589 or by reasons of the concession made in the proceedings before Stevenson J by the respondents, which proceedings were remitted by the Supreme Court and/or the matters identified in paragraphs [503] and [504] of the Reasons and the Second Decision III. If there is a residential tenancy agreement between the parties, should it be terminated by reason of the issue of the Notice. 4. On or before 30/9/15, the applicant is to file and serve a bundle of documents to contains the following: a) the original application for termination; b) the Notice; c) any evidence in relation to service of the Notice; d) the amended points of claim and points of defence to the amended points of claim; The bundle is to be indexed, paginated and placed in a logical order. 6. The parties agree that the transcript is not required for the purpose of the hearing. 7. The parties are to file and exchange written submissions on or before 12/10/15 …. 1. The hearing was subsequently listed on 15 October 2015. 2. In emails dated 29 September, 6 October, 8 October and 9 October 2015, Mr and Mrs Lawrence sought an adjournment of the hearing and a stay of the proceedings. 3. On 9 October 2015 Principal Member Harrowell made the following orders: 1. Application for adjournment or stay is refused. 2. The directions made on 23 September 2015 remain in effect; and 3. The hearing commencing 15 October 2015 is confirmed. 1. Reasons for decision were published in respect of these orders. 2. On 12 October 2015, Mr and Mrs Lawrence emailed to the Tribunal a document headed "Application for Stay of Original Decision Pending Appeal", although no internal appeal in respect of the 9 October 2015 decision was in fact lodged. 3. The document was referred to Principal Member Harrowell. In orders published on 13 October 2015, Principal Member Harrowell noted that Mr and Mrs Lawrence had appealed the orders of Stevenson J to the Court of Appeal of the Supreme Court of New South Wales and that any application to stay those orders could not be made to the Tribunal. Principal Member Harrowell also noted that as there were no proceedings before the Appeal Panel, there was no basis to refer the application for a stay to the Appeal Panel. 4. Principal Member Harrowell further stated: In so far as the application should be treated as an application to the Tribunal to vary orders previously made on 9 October 2015, the application is refused for the following reasons. No new evidence has been provided that would indicate the orders made should be varied. In this regard the Tribunal notes: a) It has not been provided with a complete copy of the notice of appeal; b) No copy of any application to the Court of Appeal said to have been made on 12 October 2015 has been provided to the Tribunal nor has evidence of such an application been provided, other than the assertion in the email sent at 5:12pm on 12 October 2015; c) In so far as the Court of Appeal may make any orders, the respondents indicate "the Court of Appeal will hand their findings down on Wednesday afternoon 14 October 2015 or Thursday morning 15 October 2015"; d) None of those circumstances prevent the respondents from complying with directions previously made by the Tribunal, being the filing of any submissions; e) The issues for determination are limited to those set out in the orders made 23 September 2015 and in so far as the respondents assert any application to the Court of Appeal "has caused a delay to the respondents in filing their defence to the applicant's application" that is an incorrect statement as no defence was required; and f) No evidence has been provided that any steps have been taken to retain a lawyer, Mr King or otherwise. In the event any further applications for stay or adjournment is to be made it should be accompanied by an appropriate statutory declaration verifying any facts and supported by appropriate documentation filed in any other jurisdiction. In so far as this includes an assertion that Mr King or other legal representation has been or is to be retained, a letter must be provided from that legal representative (or in the case of Mr King, him or his clerk) confirming they have been retained and advising: Why they cannot appear on 15 October 2015; b) When they could otherwise appear, so as to facilitate a final hearing not later than 30 October 2015; and c) The date when they were first approached to appear or represent the respondents in the proceedings before the Tribunal. Stay application in the Court of Appeal 1. On 12 October 2015, Mr and Mrs Lawrence filed a notice of motion in the New South Wales Court of Appeal seeking a stay of the judgment and orders of Stevenson J on 16 July 2015 and 21 August 2015 until the determination of their appeal, which had been filed on 8 October 2015. Gleeson JA heard the matter on the same day. 2. On 15 October 2015 Gleeson JA refused to stay the orders of Stevenson J which had remitted the current proceedings to the Tribunal, although he did conditionally stay other orders made in the Supreme Court proceedings: Lawrence v Gunner [2015] NSWCA 322 3. In refusing to stay Stevenson J's order remitting the proceedings to the Tribunal, Gleeson JA stated: 17. The case below with respect to occupation of 134 Clontarf Street involved significant credit issues. The relevant findings of the primary judge that would need to be challenged are all ones that would have been affected by his view concerning the credibility of the witnesses. His Honour rejected the evidence of Mr and Mrs Lawrence on this issue and made adverse credit findings against each of them generally. His Honour gave reasons for his credit findings against Mr and Mrs Lawrence, the inconsistency between their claims and Mr Lawrence's conduct following Mr Gunner's death, and the inherent improbability of their case, relevantly in relation to 134 Clontarf Street. 18. Success in the present appeal requires Mr and Mrs Lawrence to show that the findings of the primary judge are contrary to incontrovertibly established facts or uncontested testimony, or that his Honour has failed to use or palpably misused his advantage, or that the findings are glaringly improbable or contrary to compelling inferences: Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]-[29]; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 (Devries) at 479. Nothing in the material relied upon by Mr and Mrs Lawrence, nor in the oral submissions by Mr Lawrence, attempted to explain how the Fox v Percy and Devries tests would be met in the present case. 19. At its highest, Mr Lawrence submitted that Mrs Lawrence gave affidavit evidence contrary to the evidence of Mrs Gunner and that his Honour erred in accepting Mrs Gunner's evidence in preference to that of Mrs Lawrence. This complaint was not based on either incontrovertibly established facts, or uncontested testimony that was inconsistent with his Honour's findings. 20. It was not suggested that his Honour had failed to use or had palpably misused his advantage in assessing the witness' evidence. Nor did Mr Lawrence point to any way in which it might be argued that his Honour's findings were glaringly improbable or contrary to compelling inferences. 21. The notice of appeal contends, simply, that the trial judge reached the wrong conclusion in rejecting Mr and Mrs Lawrence's claim to be entitled to occupy 134 Clontarf Street rent free during their lifetime, or until the subdivision development was completed. Having regard to what needs to be established for an appeal against credit-based factual findings to succeed, I am not persuaded that Mr and Mrs Lawrence have shown that there are arguable grounds of appeal in relation to 134 Clontarf Street. That is a sufficient basis for rejecting the application for a stay in relation to orders 4 and 5 made by his Honour on 21 August 2015. Hearing on 15 October 2015 1. The hearing proceeded on 15 October 2015. Ms Glover of Counsel appeared for Mrs Gunner. Mr and Mrs Lawrence were self-represented. Mr Lawrence made submissions on behalf of himself and his wife. 2. The bundles of documents filed by Mrs Gunner and Mr and Mrs Lawrence in compliance with directions previously made by the Tribunal were tendered and marked as Exhibit A and Exhibit 1 respectively. Exhibit A included Stevenson J's principal and supplementary judgments. 3. The Tribunal heard the parties' oral submissions concerning: * Whether in the Supreme Court proceedings Stevenson J had found that the agreement between the parties was a residential tenancy agreement; * If so, whether the Tribunal bound by that finding; * If Stevenson J had not found that there was a residential tenancy agreement between the parties, whether Mr and Mrs Lawrence were estopped from denying the existence of a residential tenancy agreement on the basis of an Anshun estoppel because of the manner in which the Supreme Court proceedings had been conducted; * If Stevenson J had not found that there was a residential tenancy agreement and/or if the Tribunal was not bound by such a finding and if no Anshun estoppel was in operation, whether other findings of fact made by Stevenson J led to the conclusion that a residential tenancy agreement was established. * Whether Mrs Gunner had given Mr and Mrs Lawrence a valid termination notice under s 85 of the RT Act; * If so, whether Mrs Gunner's application for termination and possession was filed within the relevant time limit and otherwise in accordance with s 83(2) of the RT Act and * If so, what is an appropriate date on which to order Mr and Mrs Lawrence to give vacant possession of the premises to Mrs Gunner. Evidence and submissions 1. In making a decision, I have taken into account the material filed by Mrs Gunner (Exhibit A) and the material filed by Mr and Mrs Lawrence (Exhibit 1). I have also considered the submissions made at the hearing by Ms Glover on behalf of Mrs Gunner and the submissions made by Mr Lawrence on behalf of himself and his wife. Post hearing submission 1. On 20 October 2015 the Tribunal received unsolicited email correspondence from Mr Lawrence. The wording of the email is somewhat confused, but in essence it constitutes a submission in which he sought the listing of the proceedings for directions and an opportunity to make further submissions. 2. As best I can discern from the submission, Mr Lawrence states that: * Interlocutory orders made by Stevenson J on 3 April 2014 are important to the proceedings; * Mrs Gunner's cross-claim in relation to the premises was not argued in full in the Supreme Court proceedings; * The Anshun principle does not apply in this matter; * The interlocutory orders in the Supreme Court proceedings and the transcript would play an important part should the Tribunal take the view that the Anshun principle does apply; * On 23 September 2015 (that is, at the directions hearing before Principal Member Harrowell) Mrs Gunner's legal team did not accept his argument that the transcript of the Supreme Court proceedings should be provided to the Tribunal. He agreed that the transcript would not be provided because he was under pressure when he was told that he would be responsible for the costs of obtaining the transcript. 1. I am not satisfied that there is any basis to allow further submissions, either orally or in writing. The parties had a full opportunity to make submissions at the hearing. 2. To the extent that Mr Lawrence's submission is an application to re-open the evidence, I refuse that application. In relation to this, the parties agreed that the transcript of the Supreme Court proceedings would not be provided. It was open to Mr and Mrs Lawrence to obtain the transcript and file it had they wished to rely on it. They also had an opportunity to file any orders made in the Supreme Court proceedings on which they wished to rely. 3. In any event, for the reasons set out below, I have found that Stevenson J found that Mr and Mrs Lawrence occupy the premises pursuant to a residential tenancy agreement. I have therefore not found it necessary to deal with the Anshun estoppel issue. Jurisdiction 1. As noted above, the proceedings currently before the Tribunal were originally filed in the CTTT, which made the order transferring the proceedings to the Supreme Court in Supreme Court. The CTTT was abolished as of 1 January 2014 and the CTTT Act was repealed. The proceedings were unheard proceedings at the time they were transferred. 2. Transitional provisions in relation to unheard proceedings are set out in Clause 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 [NCAT Act]. On remittal from the Supreme Court, the proceedings have been heard determined in accordance with these transitional provisions. 3. As I have found that Stevenson J found that the agreement pursuant to which Mr and Mrs Lawrence occupy the premises is a residential tenancy agreement, I find that the Tribunal has jurisdiction to deal with the application for termination and possession under s 85 of the RT Act. 4. Although Mrs Gunner's application has been allocated a new file number, it remains the proceedings commenced on 21 February 2012. It is not a new application. While a new file number was not allocated to Mr and Mrs Lawrence's application upon remittal, as noted above, Mrs and Mrs Lawrence's application was always a defence to Mrs Gunner's application for termination and possession. Determination of Mrs Gunner's application necessarily determines Mr and Mrs Lawrence's application. Issues 1. The issues for determination in the proceedings are those in relation to which the parties made submissions and which are set out at [37] above. Consideration Did Stevenson J find that the agreement between the parties is a residential tenancy agreement? 1. As noted above, at [504] of the 16 July 2015 judgment, Stevenson J stated: 503. Mr King submitted that Mrs Gunner's claim for possession is "barred" by s 119 of the Residential Tenancies Act 2010 (NSW). Section 119 is in the following terms: "A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement." 504. It is common ground that Mr and Mrs Lawrence occupy 134 Clontarf Street pursuant to a "residential tenancy agreement" for the purpose of s 119 (being "an 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": s 13(1) of the Residential Tenancies Act. The "value" here is Mr and Mrs Lawrence's promise to pay outgoings and to effect repairs … 1. Given the contents of these two paragraphs, it is clear that in the Supreme Court proceedings Mr and Mrs Lawrence's Counsel did not dispute that there was a residential tenancy agreement between the parties. 2. At [5] of the 21 August 2015 judgment, Stevenson J states: 5. However, Mr and Mrs Lawrence occupy 134 Clontarf Street pursuant to a "residential tenancy agreement" for the purpose of the Residential Tenancies Act 2010 (NSW) ("the Act") .… 1. I am satisfied that [504] of the principal judgment and [5] of the supplementary judgment constitute findings that the agreement between the parties was a residential tenancy agreement within the meaning of the RT Act. 2. My conclusion in this regard is reinforced by the fact that His Honour, having concluded that Mrs Gunner was entitled to possession of the premises, had been inclined to make a declaration "as to Mrs Gunner's entitlement to have the residential tenancy agreement between her and Mr and Mrs Lawrence terminated and to have an order for possession", and to remit the matter to the Tribunal for the making of such orders under the RT Act: 16 July 2015 judgment at [524]. 3. In the supplementary judgment, Stevenson J concluded that he had the power to make such a declaration, but stated at [9]: However, on reflection, I have concluded that it is neither necessary nor appropriate that I do so, as my conclusions as to the merits of Mr and Mrs Lawrence's position, and that of Mrs Gunner, are clear enough from my reasons. 1. My conclusion that Stevenson J found that the agreement between the parties is a residential tenancy agreement is further reinforced by the fact that the proceedings were remitted to the Tribunal for the reasons specified. Had His Honour not found that there was a residential tenancy agreement, it would not have been necessary for the proceedings to be remitted, as an order for possession could otherwise have been made in Mrs Gunner's Supreme Court cross-claim. 2. Given my conclusion that Stevenson J found that Mr and Mrs Lawrence occupy the premises pursuant to a residential tenancy agreement, it is not necessary for me to determine whether an Anshun estoppel operates or whether Stevenson J's other findings lead to the conclusion that there is a residential tenancy agreement between the parties. Is Stevenson J's finding binding on the Tribunal? 1. During the hearing Mr Lawrence submitted that the Tribunal was not bound by Stevenson J's finding of a residential tenancy agreement for three reasons: 1. It is a finding and not an order; 2. Stevenson J was not asked to make the finding and 3. The evidence before the Supreme Court did not justify such a finding. 1. I do not accept the arguments put forward by Mr Lawrence in this regard. I am satisfied that the principle of res judicata applies to make Stevenson J's finding that Mr and Mrs Lawrence occupy the premises pursuant to a residential tenancy binding on the Tribunal. In this regard, the concept of issue estoppel is relevant. This refers to the concept that when issues are finally determined in legal proceedings, those issues will be treated as having been already decided if they are brought up in other legal proceedings. 2. In relation to the arguments put forward by Mr Lawrence, there is no basis for his argument that only an order and not a finding is affected by res judicata. In Blair v Curran [1939] HCA 23; 62 CLR 464, at 531-532, Dixon J stated that: A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. 1. In relation to the argument that Stevenson J was not asked to make a finding that there was a residential tenancy agreement, the basis on which Mr and Mrs Lawrence occupy the premises was clearly at issue in the Supreme Court proceedings. Stevenson J's finding in relation to the existence of a residential tenancy agreement was the result of His Honour accepting Mrs Gunner's case in respect of this issue and rejecting Mr and Mrs Lawrence's case. 2. In relation to the argument that the evidence did not justify Stevenson J's finding in relation to the existence of a residential tenancy agreement, it is clear from the principal judgment that His Honour made that finding as a result of the conclusions he reached concerning the credibility of the evidence given by the parties and in particular his rejection of Mr and Mrs Lawrence's case on that basis. That this is so is confirmed by Gleeson JA's decision refusal to stay the orders remitting the proceedings to the Tribunal. 3. In any event, whether Stevenson J erred in concluding that Mr and Mrs Lawrence occupy the premises pursuant to a residential tenancy agreement is a matter for determination in Mr and Mrs Lawrence's appeal and not an issue in this application. The existence of a right of appeal from a decision does not impinge upon the operation of the principle of issue estoppel. A decision is final unless and until disturbed on appeal: Kuligowski at [25]; Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935. 4. It follows that I am satisfied that Stevenson J's finding that Mr and Mrs Lawrence occupy the premises pursuant to a residential tenancy agreement for the purposes of the RT Act is binding upon the Tribunal. Did Mrs Gunner give Mr and Mrs Lawrence a valid termination notice under s 85 of the RT Act? 1. Mrs Gunner claims to have given Mr and Mrs Lawrence a valid notice for termination of a periodic tenancy agreement under s 85 of the RT Act. 2. There is no evidence before me which leads me to conclude that the residential tenancy agreement between the parties is subject to a fixed term. I am accordingly satisfied that it is a periodic agreement. 3. The formal requirements for a termination notice are set out in s 82 of the RT Act, which relevantly provides: 82 Termination notices (1) A termination notice must set out the following matters: (a) the residential premises concerned, (b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given, (c) if the notice is not given under section 84, 85, 96 or 97, the ground for the notice, (d) any other matters prescribed by the regulations. (2) A termination notice must be in writing and be signed by the party giving the notice or the party's agent. (3) A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date. 1. Section 85 of the RT Act sets out the requirements for a notice for termination of a periodic tenancy agreement. This section relevantly provides: 85 Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 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. …. 1. Section 223(1) of the RT Act sets out how notices or other documents authorised or required by the Act, the regulations or a residential tenancy agreement may be given. Relevantly: * Section 223(1)(a)(iv) provides that a notice may be given by "sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document". * Section 223(1)(a)(v) provides that a notice may be given to a natural person "by sending it by facsimile transmission to the facsimile number of the person". 1. Mrs Gunner relies on a letter dated 27 October 2015. This letter was sent by facsimile to Mr and Mrs Lawrence's then solicitor, Access Law Group. The letter addresses issues raised in correspondence received from Access Law Group in respect of an earlier letter purporting to require Mr and Mrs Lawrence to vacate the premises (that is, a letter dated 19 October 2011), which provided less than 90 days notice and is not relied on as a valid termination notice for the purpose of these proceedings). 2. In relation to this letter, I find that: * It is in writing; * It is signed by Mrs Gunner's solicitor; * It identifies the premises concerned; * It states that the date of compliance with the notice is 27 January 2012 (an extension from the date of 16 January, which had been provided in the earlier correspondence); * It was given by facsimile to Mr and Mrs Lawrence's solicitor on 27 October 2011 * The date for compliance is not less than 90 days after the date on which it was given. 1. As noted above, the letter of 27 October 2015 responds to a letter received from Mr and Mrs Lawrence's solicitor, which in turn was in response to Mrs Gunner's solicitor's letter of 19 October 2015. It does not purport to be solely a termination notice. However, the RT Act does not require that a termination notice only contain the material it must contain in order to comply with the formal requirements of a termination notice issued under the relevant section of the Act. Nor does the RT Act require that a termination be given in a particular format. A termination notice may be imbedded in another document, such as a letter, as long as it satisfies the formal requirements of a notice given under the RT Act. 2. I find that Mrs Gunner's solicitor 27 October 2011 letter complies with the formal requirements of ss 82 and 85 of the RT Act and that it was given in accordance with s 223(1) of that Act. It is therefore a valid termination notice for end of a periodic tenancy. 3. Mr Lawrence argued that the termination notice had been "voided" by a document Mrs Gunner signed on 27 January 2012. In that document, Mrs Gunner stated: I Frances Beatrice Gunner hereby confirm and agree that Wayne and Valerie Lawrence can remain living as originally agreed at 134 Clontarf Street, North Balgowlah until such time as a subdivision is approved and a dwelling is erected. It is agreed between Frances Beatrice Gunner and Valerie Lawrence that a subdivision will be obtained in the swimming pool area for a house to be erected. I also give permission for Valerie Lawrence to design and lodge plans with Warringah Shire Council for the erection of a new home in the swimming pool area and will sign all documents to allow the subdivision to proceed. Valerie Lawrence is to pay all costs associated with the subdivision and building of the house. On completion of the subdivision Frances Gunner will sign all documents possible to ensure that the land is subdivided into 2 Lots and the said Lot transferred into the name of Valerie Lawrence. It is agreed that on the approval of the subdivision/house to be built Frances Gunner will sign all documents to enable Valerie Lawrence to pay the Stamp Duty prior to construction of the house. Valerie Lawrence will have a valuation carried out on the existing property. On that valuation Valerie Lawrence will pay the stamp duty required as per the Lot in the plan of subdivision and prior to the subdivision being registered Frances Gunner will sign all documents necessary 1. In the Supreme Court proceedings, Mr and Mrs Lawrence's counsel Mr King submitted that this document "should be enforced according to its terms". 2. In the principal judgment Stevenson J stated that Mrs Lawrence sent the 27 January 2012 document to Mrs Gunner to sign. At [265] to [269] he made the following findings concerning the document and Mr King's submission that an order should be made for specific performance: 265. I do not accept [Mr King's] submission. The document records an informal, and, as it turns out, short-lived, arrangement between family members rather than a legally binding contract that was capable of specific performance. 266. The document must be seen in the context of Mrs Lawrence's earlier attempt to persuade Mrs Gunner to sign a handwritten document stating that Mr and Mrs Lawrence were to have a "life tenancy" at 134 Clontarf Street. 267. The effect of the 27 January 2012 document is to record Mrs Gunner's then confirmation and agreement that Mr and Mrs Lawrence could remain living at 134 Clontarf Street "until such time as a subdivision is approved and a dwelling is erected". 268. No consideration was given by Mr and Mrs Lawrence for that agreement. In any event, it is inconsistent with the 134 Clontarf Street Agreement which Mr Lawrence claims he reached with Mr Gunner in 2004 (which allegedly gave Mr and Mrs Lawrence occupation for life). 269. Shortly after Mrs Gunner signed the document, Mr and Mrs Lawrence submitted to her the "Declaration of Trust" document to which I refer below. As I discuss, such promise as Mrs Gunner made in the 27 January 2012 document was withdrawn by Mrs Gunner's solicitor's letter of 6 February 2012. 1. Stevenson J reproduces Mrs Gunner's solicitor's letter of 6 February 2012 at [278] of the judgment. Relevantly, Mrs Gunner's solicitor wrote: We have become aware of a document dated 27 January 2012 signed by our client that purports to grant Mr & Mrs Lawrence a right to continue occupying 134 Clontarf Street until such time as the property can be subdivided and that our client will grant Mrs Lawrence a right to erect a house on the subdivided land and for the said land to be transferred to Mrs Lawrence. We are instructed that the offer set out in the said document is withdrawn and in any event it is not enforceable as it lacks any form of consideration. Our client has requested that any future documentation or requests by your client be forwarded through our office and that your client have no further contact with our client directly in relation to commercial or legal matters. 1. In view of Stevenson J's finding that the 27 January 2015 document was an "informal" and "short-lived" family arrangement rather than "a legally binding contract that was capable of specific performance" I do not accept that the document rendered void the 27 October 2011 termination notice, as argued by Mr Lawrence at the hearing, or that it revoked the notice. 2. In this regard, it is not uncommon for parties to a residential tenancy agreement to attempt to settle their differences, even though a termination notice has been given. Such negotiations do not of themselves revoke an otherwise properly given termination notice. 3. I note [263] of Stevenson J's principal judgment, in which he set out Mrs Gunner's evidence concerning the circumstances under which she signed the 27 January 2012 document: As I was under a lot of stress at that time both with the breakdown of the relationship with my twin sister, the Guardianship hearing and my impending operation, and my concern regarding who would look after my dog and cat when I was in hospital, without seeking advice from my solicitor I agreed with Valerie to sign a document reflecting what we discussed. 1. The "Guardianship hearing" referred to in the above extract is a hearing relating to an application Mrs Lawrence made on 26 October 2011 to the then Guardianship Tribunal to have Mrs Lawrence appointed as Mrs Gunner's guardian and financial manager. The Guardianship Tribunal consented to the withdrawal of the application at a hearing on 10 January 2012. The history of the application and the genesis of the 27 January 2012 document is set out at [230] to [258] of the principal judgment and are consistent with a finding that the 27 January 2012 document was an attempt to resolve a conflict rather than a revocation of the termination notice. 2. At the hearing Mr Lawrence also submitted that the termination notice was not valid because Mrs Gunner did not give it. At the relevant time, a Mr Rob Chapman was Mrs Gunner's enduring guardian, pursuant to an instrument she had executed. The appointment was revoked prior to the commencement of the hearing before the Guardianship Tribunal: [253] of the principal judgment. 3. I do not accept Mr Lawrence's submission in this regard. The issue of who gave instructions to Mrs Gunner's solicitor to issue the termination notice was raised by Mr and Mrs Lawrence's then solicitor in his letter of 26 October 2011. In his 27 October 2011 letter (that is, the termination notice), Mrs Gunner's solicitor stated: We confirm that we are receiving all instructions directly from our client. 1. I am not satisfied that there is any basis in the material before me to conclude that Mrs Gunner did not instruct her solicitor to give a termination notice. I accordingly find that Mrs Gunner gave the termination notice. Was Mrs Gunner's application for termination and possession filed within the relevant time limit and otherwise in accordance with the RT Act? 1. Section 83(2) of the RT Act provides: (2) An application to the Tribunal by a landlord for a termination order: (a) must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, and (b) must be made only if vacant possession of the premises is not given as required by the notice. 1. The period prescribed by the regulations for the purposes of s 83(2)(a) is 30 days after the termination date specified in the relevant termination notice: cl 22(2) of the Residential Tenancies Regulation 2010. 2. Mr and Mrs Lawrence have not given vacant possession of the premises by 27 January 2012 in accordance with the notice of termination dated 27 October 2011. The application for termination was filed on 21 February 2012. This was within 30 days after the date specified in the notice. 3. The requirements of s 83(2) of the RT Act have accordingly been met. What is an appropriate date on which to order Mr and Mrs Lawrence to give vacant possession of the premises to Mrs Gunner? 1. As noted above, s 85(3) of the RT Act provides: (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. (Emphasis added). 1. The Tribunal therefore has no discretion to refuse to terminate the residential tenancy agreement, having found that: 1. the termination notice dated 27 October 2011 is a valid termination notice properly given by Mrs Gunner to Mr and Mrs Lawrence and 2. that the application for termination has been made within the prescribed time and otherwise in accordance with the RT Act 1. When making an order for termination of a residential tenancy agreement, the Tribunal must make an order for possession: s 83(1) of the RT Act. Any discretion the Tribunal has in terminating a periodic agreement is limited to determining the date on which possession is to be given. 2. Ms Glover submitted that Mr and Mrs Lawrence should be ordered to give possession in four weeks' time. In relation to this, she argued that the dispute between the parties has been protracted, having gone on for almost four years. Ms Glover further submitted that Mrs Gunner needs to sell the premises, as she has significant land tax debts. Ms Glover also submitted that Stevenson J had stated in the supplementary judgment that Mrs Gunner was entitled to possession of the premises: [3]-[4] of the supplementary judgment. 3. Mr Lawrence submitted that any order for possession should not take effect for eight weeks. He submitted that he and his wife have lived in the premises for a long time and it would take eight weeks to move out. 4. Mr Lawrence stated that his wife is not employed and that he is self-employed. He stated that he has no health problems that would impede moving out of the premises. He also stated that he and his wife have no dependents. Mr Lawrence indicated that he is a builder and that he has a lot of work equipment at the premises which could not be put into a storage unit. He stated that he and his wife have started packing their belongings. Mr Lawrence stated that while he and his wife own a house, his wife's daughter and son-in-law live there, so they have to move out before he and his wife can move in. 5. I have decided that the order for possession should take effect four weeks from the date of these orders. In making this decision, I have considered the submissions made by and on behalf of both parties. I have taken into account the fact that Mr and Mrs Lawrence own a property in which they lived with Mrs Lawrence's daughter (that is, Mrs Pearson) prior to moving into the premises: [108] of the principal judgment. In my view, if they were living in that property prior to moving into the premises, it is open to them to live their again, even if on a temporary basis while they arrange other accommodation. 6. I have also taken into account the protracted nature of the proceedings, which has meant that Mrs Gunner has been waiting to obtain possession of her property for almost four years. Given the period that has elapsed since Mr and Mrs Lawrence became aware that Mrs Gunner wanted possession of the premises, they have had ample time to make appropriate arrangements on a contingency basis. 7. In addition, I have taken into account Mr Lawrence's evidence that there are no medical issues that would delay him and his wife moving, as well as his evidence that they have no dependents to provide for. 8. While I accept that Mr and Mrs Lawrence have been living in the premises for a number of years, I am of the view that four weeks is a sufficient time for them to pack the remainder of their belongings, vacate the premises and either move into their own property or find alternative accommodation. Four weeks also gives Mr Lawrence sufficient time to relocate his building equipment. Given that Mr and Mrs Lawrence have had possession of the premises for almost four years beyond the original 90 days notice given to them, it is not unreasonable for them to vacate the premises within a period of four weeks. 9. I have therefore suspended the date for possession for four weeks. Conclusion 1. I have found that Stevenson J found that Mr and Mrs Lawrence occupy the premises pursuant to a residential tenancy agreement. I have further found that I am bound by that finding because of the principle of res judicata. 2. I am satisfied that Mrs Gunner gave Mr and Mrs Lawrence a valid notice for termination of a periodic tenancy under s 85 of the RT Act. I am further satisfied that the application for termination and possession was made in accordance with that Act. 3. I have no discretion but to terminate the tenancy agreement. In relation to a date for possession, I have exercised my discretion and allowed four weeks from the date of these orders. 4. I have dismissed Mr and Mrs Lawrence's application because, as noted above, it is a defence to Mrs Gunner's application. Having found in favour of Mrs Gunner on her application, there are no orders that can be made in favour of Mr and Mrs Lawrence on their application. Costs 1. The issue of costs was not directly addressed in oral submissions at the hearing. Any application for costs and the response to such an application are to be made in accordance with the orders set out below. 2. The parties are on notice that an order for costs can only be made if special circumstances warrant the making of such an order: s 60(2) of the NCAT Act. 3. The parties are further on notice that the Tribunal proposes to determine costs on the basis of the written submissions, without conducting a hearing. This is subject to any submissions made by the parties in respect of that issue. Orders 1. In RT 15/51215 (RT 12/09391): 1. The tenancy agreement is terminated and possession is to be given to the landlord immediately. 2. The order for possession is suspended for four weeks from the date of these orders. 1. In RT 12/ 15580: 1. The application is dismissed. 1. Any application for costs is to be made within fourteen days of the date of these orders and is to be supported by a written submission not exceeding three pages in length. Any response to the application is to be made within fourteen days thereafter and is also not to exceed three pages in length. K Rosser Senior Member Civil and Administrative Tribunal of New South Wales 5 November 2015 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 16 December 2015