Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Coomber v Butler [2018] NSWCATAP 153 Hearing dates: 15 May 2018 Date of orders: 20 June 2018 Decision date: 20 June 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J McAteer, Senior Member Decision: 1. The appeal is allowed in part and order 1 made 29 January is set aside. 2. The respondent, Julie Anne Butler, is permanently restrained from taking any steps to forfeit the tenancy with Ronald George Coomber and Wendy Gai Coomber or retake possession of the land, identified in the document entitled Working Farm Lease Agreement dated 11 September 2015, in consequence of the purported Notice of Termination dated 14 November 2016. 3. Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: AGRICULTURAL TENANCY – Fixed term agreement – Right to renew – Failure to sign renewed lease – Tenant remaining on possession after expiry of fixed term – Holding over where no express agreement – Inferred agreement – Termination of periodic tenancy COLLATERAL AGREEMENT – Oral agreement – witness preferred – contemporaneous document corroborating oral evidence Legislation Cited: Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Conveyancing Act, 1919 (NSW) Cases Cited: BP Refineries (Westernport) Pty Ltd v Shire of Hastings (1937) 180 CLR 266 Burnham v Carroll Musgrove Theatres Limited and Another (1928) 41 CLR 540 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Cole v Kelly [1920] 2 KB 106 Collins v Urban [2014] NSWCATAP 17 Dockrill v Cavanagh (1944) 45 SR (NSW) 78 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [1988] 14 NSWLR 523 Gill v Wright [1964-5] NSWR 1500 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd [1988] 5 BPR 11,110 Landale v Menzies (1909) 9 CLR 89 Steak Plains Olive Farm is Pty Ltd v Australian Executor or Trustees Limited [2015] NSWSC 289 Category: Principal judgment Parties: Ronald George Coomber (First Appellant) Wendy Gai Coomber (Second Appellant) Julie Anne Butler (Respondent) Representation: R Coomber in person for both Appellants T Fishburn, Counsel (Respondent) Solicitors: Stacks Law Firm (Respondent) File Number(s): AP 18/09144 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 29 January 2018 Before: R Harris, General Member File Number(s): COM 17/03827 and COM 17/06919 reasons for decision Introduction 1. The respondent (landlord) owns a property known as "####" (property) located near Bingara in northern New South Wales. 2. Since about October 2015 the appellants (tenants) have used part of that property, approximately 3000 acres, for carrying on a cattle grazing enterprise. The right to use the property was originally granted pursuant to a document entitled "Working Farm Lease Agreement" (Lease) dated 11 September 2015. That document provided for a "lease for 6 months" at an annual rental of $35,000 per 6 months, payable quarterly in advance. 3. The present appeal concerns two applications lodged in the Consumer and Commercial Division of the Tribunal. The first was application COM 17/03827 (tenants' application). In that application the tenants were the applicants and the landlord was the respondent. The substance of the application was that the tenants sought an order that the lease remains in full force and effect and had not been validly terminated. The tenants sought orders that the landlord be restrained from interfering with the tenants' access to the property and/or their livestock. 4. The second application was lodged by the landlord. That was application COM 17/06919 (landlord's application). In that application the landlord sought an order that the tenancy had been terminated on 14 December 2016. The landlord also sought an order that the tenants pay compensation at a rate of $210.96 per day until the tenants remove their cattle from the property. 5. Both proceedings were heard by the Tribunal on 15 and 16 November 2017. The Tribunal made its decision on 29 January 2018 and provided written reasons. 6. The Tribunal decided that the arrangement between the parties was a tenancy determinable at the will of either party on 3 months' notice, the term of the original Lease having expired and that lease having come to an end. The Tribunal also determined that there was a collateral agreement between the parties to the effect that if a cattle crush (crush) was installed by the tenants on that part of the landlord's land which was not part of the agreement, the tenants could use the crush and cattle yards where the crush was located on condition that at the end of the tenancy the crush became the landlord's property. The Tribunal also made an order that the landlord permit access by the tenants to the crush and cattle yards during the currency of the tenancy. 7. The tenants appealed this decision. Notice of Appeal and history of appeal proceedings 1. The Notice of Appeal was filed on 22 February 2018. The appeal was lodged in time. 2. The grounds of appeal can be summarised as follows: 1. In relation to the tenancy: 1. the tenancy was for a period of 6 months and any notice of termination was required to be 6 months having regard to s 14(2) of the Agricultural Tenancies Act 1990 (NSW) (the Act); 2. the Lease had been renewed, a matter acknowledged by the landlord in its response to the tenants' application; 3. in the absence of an express agreement to renew, and in the absence of a provision in the original Lease for holding over, there is an implied agreement on the same terms as the original Lease, namely for a 6 month period: see Gill v Wright [1964-5] NSWR 1500. 1. In relation to the ownership of the crush: 1. the Lease stated that the tenants were to "provide portable yards and yard components for their own use. These supplied by Tenant remains the property of the Tenant." 2. The subsequent agreement permitting use of the landlord's cattle yards was a variation to the Lease but on terms that the crush and 3 cattle yard panels remain the property of the landlords; 3. otherwise, there was no agreement that the crush or the panels would remain the property of the landlord when the Lease was terminated. 1. To the extent necessary, the tenants also sought leave to appeal because the decision was not fair and equitable or was against the weight of evidence. No specific error is identified and, in any event, details of any oral evidence provided at the hearing and/or the sound recording was not provided. 2. In relation to the Lease, the tenants relied upon the admission said to have been made in the reply material filed in respect of the original application. At para 6 of Annexure A to the Notice of Appeal the tenants said the landlord " acknowledged and admitted …that on 10 April 2016 the lease was renewed for a further six months and was thereafter renewed at six monthly intervals and will so continue until for so long as '####' remains unsold". In relation to the crush, the tenants relied on a letter from the landlord's lawyers, Stacks, dated 7 April 2017 being an admission that the crush remained the property of the tenants. Otherwise, the tenants challenge the acceptance by the Tribunal of evidence provided by the landlord and her witness, Mr Jurd. 3. Oral submissions were provided by the first appellant, Mr Coomber who represented himself and his wife at the hearing. 4. The tenants described the arrangement after the initial 6 month period as a "rolling lease" and reiterated that it was for a period of 6 months. The tenants said that if the Lease was not renewed then it was a three-month tenancy. Having regard to the tenants' Notice of Appeal, we do not take this submission by a self-represented party to be an abandonment of the grounds put forward in the Notice of Appeal. Rather, we take this submission to mean that, on the proper construction of the Lease and in the circumstances that occurred, the arrangement between the parties gave rise to an agreement that any continued occupation would be on the same terms, namely for a further period of 6 months. Further, despite an apparent concession by Mr Coomber during oral submissions that the period of the tenancy was only three months if not renewed, having regard to the written submissions (which were not expressly abandoned) and the fact the tenants were unrepresented in the appeal, we will proceed on the basis that the tenants' position as being that the Lease was renewed, if not renewed there was a holding over for a six month period and if not a holding over for on the basis of a six month period there was otherwise a tenancy at will for 3 months which had not been terminated by appropriate notice. 5. In relation to the crush, the tenants relied on a letter from Stacks, the solicitors for the landlord, dated 7 April 2017 as an admission by the landlord that the tenants retained ownership of the crush. In that letter, the lawyers for the landlord said: The only "plant or equipment" belonging to your clients still on the property, is the cattle crush. We are instructed that it will require a truck with a crane and the dismantling of a portion of our client's cattle yards, to remove the cattle crush. Our client will not agree to the removal of the cattle crush unless your client pays into our trust account security for any damages occasioned to our client's cattle yards as a result of the removal of the crush. 1. Otherwise, the tenants said that the decision of the Tribunal was against the weight of the evidence. In this regard the tenants relied upon the statements they had made in proceedings at first instance. 2. The landlord filed a reply to appeal on 2 May 2018. That reply had attached to it the landlord's submissions. 3. In so far as the tenants sought leave to appeal, the landlord said the tenants had not established they may have suffered a substantial miscarriage of justice. Further, there was no issue of principle or public importance which otherwise justifies the grant of leave. 4. In relation to the interpretation of the tenancy arrangement between the parties and the period of notice required, the landlord said that the Tribunal was correct to conclude the relevant period was 3 months, not six-month as contended by the tenants. The landlord submitted that the decision of the Tribunal was a factual finding and not a legal finding. The landlord said the Tribunal was entitled to make that finding on the evidence before it "including that the original lease had expired, the option to renew was not exercised as the renewal was not returned … and the parties continued their relationship on the basis of quarterly payments". Otherwise, the landlord said "(t)here was evidence upon which the three-month period was inferred", the landlord referring to [7] of the decision. 5. The landlord said that the Tribunal was correct to conclude that the six-month renewal provision was not a holding over provision. In this regard, the Tribunal was correct to determine the objective meaning of the Lease. Finally, the landlord said at par 30 of her submissions: In circumstances where the renewal was not exercised, it is not unreasonable to conclude that the term of the new arrangement was for a shorter period than what would have been the period of the renewal if it had been taken up. 1. In respect of the crush, the landlord said the Tribunal was entitled to prefer one party's evidence to another. In addition, the Tribunal's decision was supported by the contemporaneous diary note of the second appellant, Mrs Coomber. 2. Consequently, the landlord said the decision of the Tribunal was not in error. 3. Ms Fishburn of Counsel appeared at the hearing of the appeal on behalf of the landlord and made oral submissions. 4. The oral submissions were similar to the written submissions previously filed. 5. In relation to the term of the tenancy, the landlord said the Tribunal found there was no renewal of the original Lease and that the landlord had done her part in offering renewal. Consequently, any subsequent arrangement was less than 6 months. The Tribunal was faced with the fact that the right to renew had not been exercised and that the Tribunal was to determine what was the agreement after this time. 6. Having discussed implied terms and the principles set out in BP Refineries (Westernport) Pty Ltd v Shire of Hastings (1937) 180 CLR 266 and Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, the landlord submitted that a term should be implied to the effect that the period of any tenancy after the end of the first 6 month period was 3 months for each period, that period representing the frequency at which rent was to be paid. 7. In relation to the crush, the landlord relied on the evidence provided by her witnesses, together with the diary note to which we have referred above. The landlord submitted that the subsequent letter from her lawyers did not alter the fact an agreement had been reached to permit access to her land on which the cattle yards were located by the tenants (which land was not part of the leased property) in return for the tenants agreeing to install the crush and leave it there when the Lease came to an end. Consideration 1. This is an appeal pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). There is a right of appeal on a question of law. Otherwise leave is required and the provisions of Sch 4 cl 12 of the NCAT Act apply. That is, leave may only be granted if the tenants can demonstrate they may have suffered a substantial miscarriage of justice. In this regard, the principles set out in Collins v Urban [2014] NSWCATAP 17 are relevant to the grant of leave. 2. There are two issues to be determined in this appeal. They are: 1. Was the Tribunal correct to conclude that the agricultural tenancy between the parties was a tenancy determinable at the will of either party on 3 months' notice in writing? 2. Was the Tribunal correct to conclude that there was a collateral agreement between the parties by which the tenants were to supply and install a cattle crush for the use while they remain tenants, which was to become the landlord's property and left on the land at the conclusion of the tenancy? 1. Prior to dealing with these issues, we should record some preliminary matters. 2. At the commencement of the hearing the Appeal Panel identified the documents upon which the parties wish to rely. Two folders were provided to the Appeal Panel by the tenants which contained the documents from the original hearing upon which the parties relied in the appeal. 3. In connection with the folder provided by the tenants on 26 April 2018, this folder contains an affidavit of Mr Coomber sworn 17 April 2018. Attached to this affidavit Annexures G, RGC1, RGC 3 and RGC 4. 4. In relation to the affidavit, this was new evidence and was not admitted for the purpose of the appeal. However, it has been treated as a written submission on behalf of the tenants. 5. In relation to the Annexures referred to in para 31 above, it was agreed these were not relevant to the appeal and have not been admitted. 6. In relation to Annexures RGC 5 and RGC 6, the parties were unsure whether this material was before the Tribunal in the proceedings at first instance. Consequently, the material was admitted conditionally to allow the parties to make relevant submissions. Was the Tribunal correct to conclude that the agricultural tenancy between the parties was a tenancy determinable at the will of either party on 3 months' notice in writing? 1. The answer to this question involves an examination of the terms of the Lease. 2. In relation to the proper construction of the Lease, this is a question of law. 3. Whether the tenants in fact renewed the Lease is a question of fact. However in this appeal, we note neither party contends a further written agreement was signed following the expiry of the six-month initial period of the Lease. In this regard, the only findings of fact were that: 1. The landlord submitted a new lease before the end of the fixed term but the tenants did not take that up: decision at [7]; 2. The tenants "were given the option to enter into a new lease but chose not to". They did not sign and return the lease offered to them: decision at [7]. 3. After the term of the six-month term of the Lease had expired, the tenants paid and the landlord accepted rent on a quarterly basis from time to time: decision at [7]. 1. Having considered the terms of the Lease, at [7] of the decision the Tribunal reached the following conclusions: 1. The provision in the Lease for "six-month renewals is not a holding over provision"; 2. "There was no new lease agreement entered into"; 3. "Holding over refers to a provision that provides that at the end of the fixed term the existing lease continues on some basis not a renewal which creates a new lease"; 4. Because the "landlord continued to accept rent on a quarterly basis thereafter … the law will therefore imply a tenancy"; 5. "(A) new lease was created by the payment and acceptance of rent on a quarterly basis from time to time after the end of the fixed term but there was no agreement as to its duration". There was a "periodic tenancy from 3 months to 3 months within the meaning of Section 14 of the Agricultural Tenancies Act which therefore requires three months' notice of termination". 1. The tenants said that the Tribunal was in error in concluding that the tenancy arrangement after the initial 6 month period of the Lease was for a period of 3 months only. Rather, the tenants said the period was a 6 month period, the same as that of the Lease. Consequently, the tenants submit, what occurred should be treated as a renewal of the original Lease or, alternatively, there was a holding over. In making the alternative submission the tenants relied on the decision of Brereton J in Gill. There, his Honour said at 1503: It should be pointed out first that there are two situations: currently described as "holding over" one occurs under a lease for a term which itself contains the contract for a possible holding over on expiry of the term. In this case the "holding over" is a holding over under and by virtue of the original lease and is a part of the original grant which becomes effective upon a contingency occurring. The other situation occurs where a tenant remains in occupation after the expiry of his term under a lease which contained no such contract. In the absence of any express contract, a new agreement is implied into which are imported so far as applicable the terms and conditions of the original lease, but it is a new lease under a new contract. 1. In relation to the term of the Lease, and its renewal, the Lease provided as follows: Whereby the TENANT has agreed to lease approximately 3000 acres more or less being the land East of ### Road in the property "####," Bingara. NSW 2404 for a term of Six Months commencing on the 10th day of October, 2015, with the following exclusions: 1. The paddocks known as the housepaddocks (being the 2 paddocks where all the buildings are located and the laneway in front of these paddocks). 2. The triangle shaped block East of ### Road containing a dam which is the watering dam for livestock running in the paddock West of ### Road. (This area has been clearly pointed out to the TENANTS by the LANDOWNER). This Six Month lease is subject to such terms and conditions as detailed herein. Lease The tenant has been told that the property "####", is on the market to be sold. (Hence six month lease period). (Lease is subject to six monthly renewals while the property remains unsold. The lease for six-month shall be $35,000 per six-month plus GST payable in advance quarterly equal instalments commencing on the … 10th … Day of October, 2015. ($19,250.00 per quarter inclusive of GST). 1. Save as provided above, there was no clause specifying what would happen if there was no renewal but the landlord permitted the tenants to remain in possession. Having regard to s 14(1) of the Act, the original Lease terminated on expiry of its term. Absent an express agreement (the tenants not contending for such an agreement) for the reasons that appear below there is no basis to conclude the original Lease was renewed. 2. However, it is clear the tenants remained in possession and paid rent with the consent of the landlord. In this regard, both parties made submissions concerning them being a holding over, albeit on different terms. 3. In Dockrill v Cavanagh (1944) 45 SR (NSW) 78, Jordan CJ considered the difference between leases for fixed terms, leases at will and leases creating periodic tenancies. At [82] his Honour said: Leases are thus of three types, leases for fixed terms, leases at will, and leases creating periodic tenancies. A lease at will is terminable by either party at any time, and no period of notice is necessary unless the conditions of the lease require it: Landale v Menzies (1909) 9 CLR 89 at 101-2: … A lease for a periodic tenancy, such as a lease from year to year, quarter to quarter, month-to-month, or week to week, continues indefinitely until either party terminates it by giving notice equal to the length of the period and terminating at the end of the complete period: Queen's Club Gardens Estates Limited v Bignell [1924] 1 KB117; unless some special provision is made as to notice: Land Settlement Association Ltd v Carr (1944) 171 LT 121: it should perhaps be regarded as creating a special form of tenancy at will: Landale v Menzies (1909) 9 CLR 89 at 101-2; …" 1. In Landale v Menzies (1909) 9 CLR 89, Griffith CJ said at 101-2: A contract for the exclusive occupation of land for a determinate period, however short, constitutes a lease. … A period determinable at the will of either party is such a period. In such a case the lease is called a lease at will. And, in one sense, and perhaps in strictness, every lease which is not for a term certain is a lease at will, … 1. In Burnham v Carroll Musgrove Theatres Limited and Another (1928) 41 CLR 540, Isaacs J said at 551 (citations omitted): Where, after termination of any tenancy, the tenant holds over, and as Atkin LJ said in Cole v Kelly … "the facts do not exclude an implied agreement to hold upon the terms of the old lease," then impliedly the old terms remain. 1. As the headnote in Burnham records, the High Court in that case was considering: A weekly tenant who, after the termination of his tenancy, holds over, and with the consent of the landlord, without any agreement other than that implied by law for the continuance in possession and acceptance of a weekly rent. 1. It follows from the above that a tenant holding over under an existing lease, is properly to be considered to do so under a "lease", whether or not there is an express holding over provision. This is because, even in the case where there is no express holding over provision in the original Lease, the right to exclusive occupation of land arises under an inferred contract, determinable according to its terms. 2. The next question is what are the terms of that inferred contract. As said by Lush J, at first instance, in Cole v Kelly [1920] 2 KB 106 at [122]: In every case it is a question of fact and not of law whether or not a tenant holding over has agreed to do so on the terms of the expired lease. 1. In Cole, on appeal, Bankes LJ explained the nature of an inferred contract where there are no new agreed terms. At [125], the Lord Justice said (citations omitted): The distinction between a continuance in occupation on new terms agreed upon and a holding over where no new terms are agreed upon and the tenant remains in occupation with the consent of the landlord is pointed out by Lopes LJ in Dougal v McCarthy where he says "I think this case is governed by what Lord Mansfield seemed in Right v Derby – viz., 'If there be a lease for a year, and, by consent of both parties, the tenant continues in possession afterwards, the law implies a tacit renovation of the contract.' I will first deal with the case where there is merely a holding over by the tenant after the expiration of a tenancy for a year by consent of both parties, and nothing is said in reference to any terms of tenancy either by the landlord or the tenant. I think the proper direction to a jury in such a case would be that, there being such holding over, and nothing being said by either party as to terms, it follows from such holding over by implication of law that there is to be a tenancy from year to year on the same terms as those of the lease which has expired, so far as they are not inconsistent with such a tenancy; that they are bound, to use Lord Mansfield words, to imply a renovation of the old agreement." 1. Similarly, Atkin LJ, said at 132: … one has to approach the question recognising that the law is that, "when tenants hold over after the expiration of a term, and the facts do not exclude an implied agreement to hold upon the terms of the old lease, then the law determines that they impliedly hold subject to all the covenants in the lease which are applicable to the new situation:" per Swinfen Eady LJ in Wedd v Porter. I think that that rule applies wherever there has been a holding over, the law being, as I understand it, at the holding over with the consent of the landlord prima facie gives rise to a tenancy at will, which by subsequent payment of rent may be converted into a tenancy from year to year; or the parties made by the acts or by agreement convert the tenancy at will into a tenancy of a more fixed duration, as a weekly, or a monthly, or a yearly tenancy. But in all those cases, unless there is something to contradict the view that the tenant will continue to hold upon the terms of the old tenancy, then those terms, so far as they are applicable, as Swinfen Eady LJ said, to the new situation, will apply. 1. These statements are consistent with what Brereton J said in Gill above, and what has been generally said by the Court of Appeal of the Supreme Court of New South Wales in relation to inferred contracts: see eg Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [1988] 14 NSWLR 523 at 528E, 530A, 531F and 534D-535; Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd [1988] 5 BPR 11,110 per McHugh JA at [16] and [18]. In the case of Empirnall, this case involved a situation where there had been a failure or refusal of a party to execute a written contract. 2. It is in the context of the above decisions that this appeal is to be resolved. 3. Firstly, it seems clear to us that the original Lease is properly to be regarded as a lease for a fixed term and is not a periodic tenancy. It is expressed to be for a "term" commencing on 10 October 2015. The fixed period is 6 months from the date of commencement, at a rental of $35,000.00 per 6 months (plus GST) payable quarterly in advance. It is not expressed to be an agreement for consecutive 6 month periods. To the contrary, the Lease expressly provides it could be renewed, such a provision being inconsistent with a periodic tenancy which continues until an appropriate notice of termination is given. 4. Consequently, unless there is a holding over provision in the Lease, the tenancy terminated at the end of the fixed term "without the necessity for any notice": s14(1) of the Act. 5. The tenants' primary proposition is that the Lease has been renewed. 6. In our view, this submission should not be accepted. 7. Having regard to the context in which the words "subject to six monthly renewals" is used, in our view renewal should be seen as an option available to the parties. The language does not suggest the renewal is automatic. The provision is not expressed in terms that the tenants have a unilateral right to renew even if the property remains unsold. Rather, the provision contemplates renewal if the property is unsold and the parties agree to a renewal. Accordingly, renewal requires some positive act by the tenants and the landlord to renew the Lease. 8. Neither party suggested in the appeal there was in fact a written or oral agreement to renew. In our view, there is no reason to infer such an agreement to renew. 9. This is not a case like Empirnall. In Empirnall, a contract was inferred because the party who failed to sign the written contract and kept silent, took the benefits thereunder while attempting to avoid the corresponding burdens. 10. Here, the original Lease is a tenancy within the meaning of the Act. Similarly, any new lease entered into by way of renewal is a tenancy within the meaning of the Act. Pursuant to s 5(1), "each of the tenants and the landlord have a right to have the provisions of any agreement creating a tenancy reduced to writing and signed by the other party". However, in this case the Tribunal found the option to sign a new lease by way of renewal was offered by the landlord and not taken up by the tenants. There was no challenge to the finding that a new written agreement had not been signed, despite being offered for signature. 11. In these circumstances, it would be inconsistent with the facts as found to infer there was agreement to renew where the tenants have failed to enter into a written agreement on request of the landlord, a matter the landlord was entitled to insist upon. Rather, the proper conclusion is that the tenants did not seek to renew the Lease and did not exercise their rights under this term. 12. What then was the terms of occupation after the initial six month fixed term of the Lease had expired? 13. There is no express provision for holding over at the end of the initial term of 6 months. However, the fact remains that the tenants remained in possession. 14. There is no suggestion in the submissions made to the Appeal Panel, or the evidence to which we have been referred, that there was any agreement or discussion about the terms of the holding over. There is also no suggestion that the landlord did not consent to the tenants remaining in occupation, the landlord excepting further payments of rent. Rather, all that has occurred is that the tenants have remained in possession, having chosen not to sign the renewed lease. 15. The Tribunal rejected the contention that the holding over was for a period of 6 months. The Tribunal concluded the holding over was for 3 months only, being the interval at which rent was paid. In doing so, the Tribunal said at [7]: The provision relied upon by the [tenants] that it was a six-month rolling lease certainly has some difficulties of interpretation. It refers to a 6 month lease and then talks of it being subject to 6 month renewals whilst the property remains unsold. The meaning of words used by the parties have to be interpreted objectively and the words given their ordinary and natural meaning. The Tribunal finds that the original tenancy agreement between the parties was an agreement for a fixed term without any provision for holding over within the meaning of section 14. An agreement for 6 month renewals is not a holding over provisions. … The term relied on by the [tenants] refers to a 6 month term. Holding over refers to a provision that provides that at the end of the fixed term the existing lease continues on some basis not a renewal which creates a new lease. The original lease therefore ended at the end of the fixed term. … The Tribunal finds that a new lease was created by the payment and acceptance of rent on a quarterly basis from time to time after the end of the fixed term but there was no agreement as to its duration. The Tribunal finds that this is a periodic tenancy from 3 months to 3 months within the meaning of Section 14 of the Agricultural Tenancies Act which therefore requires 3 months' notice of termination. 1. We agree that the renewal provision was not a holding over clause. By its terms, the Lease contemplated there would be a renewed lease, not a holding over under the existing Lease. That is, as stated above, the right granted was in the nature of an option. Consequently, the Tribunal was correct to find that the exercise of the renewal right would have given rise to a further lease of a fixed term of 6 months. 2. However, having regard to the decisions of Gill and Cole to which we have referred above, we do not accept that the Tribunal was correct to conclude that the continuing occupation by the tenants was on the basis of a periodic tenancy of 3 months to 3 months. Rather, in our view there was an inferred agreement on the same terms as the original Lease save that there was no renewal provision, such a renewal provision being inconsistent with the fact that the tenants failed to sign the renewed lease when offered. 3. Our reasons are as follows. 4. As observed by Bankes LJ in Cole at 127 (the Lord Justice there taking account of relevant correspondence relating to the inferred lease regulating the continuing right of occupancy) and by McHugh JA in Integrated Computer Services at [18] (where his Honour said "in a dynamic commercial relationship new terms will be added or will supersede older terms" and that it is "necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed"), any inferred contract must not be inconsistent with the objective facts. That is, there is a need to take account of the conduct of the parties in determining the terms of any inferred contract and the extent to which the terms of any pre-existing agreement form part of the inferred agreement. 5. In the present case, and despite a request to sign a new lease, the tenants failed to do so or chose not to do so and simply remained in possession. Such action is inconsistent with there being a continuing agreement permitting "six monthly renewals while the property remains unsold". 6. On the other hand, there is no reason to conclude the inferred agreement was for a period of 3 months only. Rather, in our view, an agreement should be inferred on the same terms as the original Lease, namely a six-month period. The fact that rent was paid on a quarterly basis is not a counter indicator. This is because this payment regime remained the same to that of the Lease and there is no evidence to suggest that this was to alter. Otherwise, there is no evidence to suggest the parties had agreed that the holding over was to be on terms different to that contained in the Lease. 7. In this regard, we should note in passing that neither party suggested in submissions that the interim arrangements reached during the course of various litigation, regarding the payment of rent and/or occupation fees, should be taken account of in determining the terms of the agreement between the parties following the end of the fixed term period. 8. Further, there is nothing in the Act that is inconsistent with there being a holding over on the terms we have set out above. 9. Section 14(1) provides that a fixed term tenancy with no provision for holding over terminates the end of a fixed period without the necessity for any notice. However, by its terms, it does not preclude a holding over when no steps are taken by a landlord to retake possession and the tenant is allowed to remain in possession. 10. The Act speaks of a "periodic tenancy" and draws no distinction between such a tenancy and a tenancy at will. No mention is made of a tenancy at will, and it might be thought that such arrangements are unregulated. In this regard it was observed by Jordan CJ in Dockrill (set out above) that at common law a periodic tenancy "should perhaps be regarded as a special form of tenancy at will". However, despite the observations of the Chief Justice in Dockrill, in the case of any lease by which a tenant is given a right to occupy or use property for agricultural purposes, it is properly to be seen as a tenancy to which the Act applies: see definition of "tenancy", whether for a fixed term or not. Further, having regard to the objects in s 3(b) of the Act "to set out terms that are taken to apply to all agricultural tenancies, including in terms of setting out rights of the parties", it seems to us that all tenancies are to be regulated by s 14 of the Act in respect to termination. 11. Nothing in s 14 of the Act is inconsistent with an inferred lease by way of periodic tenancy arising on holding over following the expiry of the fixed term lease. To the contrary, the Act contemplates that a periodic tenancy may exist and provides for such a tenancy to be determined by giving notice of at least the length of the tenancy period (s14(2)), subject to: 1. at least 1 month notice after the end of a current cropping program (s 14(3)(a)); or 2. at least 1month's notice in any other case (s 14(3)(b), 1. This suggests that the Legislature in the case of agricultural tenancies is imposing minimum periods of notice in respect of a tenancy that would otherwise be determinable at the will of the landlord, not preventing parties from entering into such an agreement or from such agreements being inferred at law. 2. To like effect is the provision in s 127(1) of the Conveyancing Act, 1919 (NSW). While s 127(1) removes the implication of tenancies from year to year by the payment of rent, such tenancies are otherwise determinable on one month's notice expiring at any time. However, in respect of agricultural tenancies, the Act provides the period of notice is to be at least equivalent to the period of the tenancy. 3. Lastly, we do not accept the landlord's submission based on the decisions of BP Refinery and Codelfa that there was an implied term in the Lease, or in respect of the inferred Lease to the effect the term was 3 months only. Such a term is not "so obvious it goes without saying" nor is it "necessary to give business efficacy" having regard to the other authorities to which we have referred: cf Codelfa per Mason J (as he then was) at 347. 4. For these reasons, the Tribunal was wrong to conclude there was a periodic tenancy for a period of 3 months to 3 months. Was the Tribunal correct to conclude that there was a collateral agreement between the parties by which the tenants were to supply and install a cattle crush for the use while they remain tenants, which was to become the landlord's property and left on the land at the conclusion of the tenancy? 1. The issue arising in respect of this aspect of the appeal is whether the Tribunal was correct to accept the evidence of the landlord's witnesses as to the terms of the conversation concerning the crush. 2. There is no dispute the Lease was varied from the provision in the Lease found under the heading "Yards" (which stated the tenants would provide portable yards) so as to allow the tenants access to the landlords yards on part of the property that was not the subject of the Lease. The question is the terms on which access was given and whether the crush bought by the tenants would become the property of the landlord. 3. The Tribunal recorded the evidence that had been provided by the tenants at [3], in which they denied any conversation that an agreement was made for them to purchase the crush and leave it on the property or for ownership to transfer to the landlord. In doing so, the Tribunal noted the diary note of Mrs Coomber dated 8 September 2015, made at or shortly after the conversation about the crush is said to have taken place. At [4] the Tribunal identified the evidence provided by the landlord to the effect that the crush was to be left on the property for the landlord. The Tribunal also referred to the landlord's subsequent dealing with the tenants in which she claimed a possessory lien over the crush and conceded she had not responded to the tenants' email saying they were going to take the crush. 4. At [8] of the reasons, the Tribunal preferred the evidence given on behalf of the landlord as to the agreement in September 2015. It did so by reference to the diary note of Mrs Coomber dated 8 September 2015 which the Tribunal found was "contemporaneous" and "tends to support the landlord's version of the conversation on 8 September". Further, the Tribunal found the evidence of the tenants "unconvincing", having had the benefit of seeing those witnesses in cross-examination. Consequently, the Tribunal reached the following conclusion: The Tribunal finds that a collateral agreement was reached between the parties on 8th September 2015 that if the tenants installed a cattle crush on the landlords adjacent land then the tenant could use those yards and that crush for the duration of the tenancy on the basis that the crush would be left there at the end of the tenancy so that it became the landlord's property". 1. As stated above, central to this conclusion was the Tribunal's reliance on the diary note of Mrs Coomber dated 8 September 2015. That diary note became MFI 1 in the appeal. It recorded: Discussed cattle yards, could be that we will buy crush and then leave it there. Just wait and see how Craig leaves things-we will buy panels. 1. It would appear that "Craig" is a reference to Craig Houlden, who was at that time a current tenant on the property: see para 11 of affidavit of Ronald Coomber sworn 29 June 2017 (AB Tab F p 5). 2. Be that as it may, as stated above, the Tribunal preferred the evidence of the landlord and her witnesses, having found this evidence was corroborated by the diary note of Mrs Coomber. 3. We have not been provided with all evidence in relation to the proceedings at first instance. In particular, we have not been provided with a sound recording or transcript of the evidence of the various witnesses. On this aspect of the appeal the tenants indicated they did not propose to provide the sound recording. 4. The tenants relied on the fact that, in 2017, the lawyers for the landlord had written concerning the crush in terms that suggested the tenant work to retain ownership of the crush. The tenant said this was an admission which the Tribunal should have accepted to support their position. In addition, they relied on the evidence which they had provided at first instance and said the decision made was against the weight of evidence. 5. In our view, no relevant error has been established in relation to this aspect of the Tribunal's decision. The Tribunal had the benefit of seeing the witnesses in the witness box and hearing their oral evidence. Credit findings were made. The Appeal Panel was not provided with a transcript of the oral evidence or the sound recording and we are therefore unable to review the oral evidence. The Tribunal ultimately reached its conclusion based on a contemporaneous note which stated that the crush may be bought by the tenants and left on the property, the need to buy the crush depending on how "Craig leaves things". 6. It seems to us that the conclusion reached by the Tribunal was available to it on the evidence provided by the parties. The Tribunal was entitled to rely on documents prepared at the time of the alleged conversation and to reject as erroneous any admissions subsequently made. The Tribunal was also entitled to observe the witnesses being cross-examined, listen to their evidence and make appropriate credit findings. As such, no error of law has been demonstrated nor could it be said that "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins at [72(2)]. Otherwise, we are not satisfied that the tenants may have suffered a substantial miscarriage of justice. 7. It follows that this aspect of the appeal should be dismissed and, to the extent necessary, leave refused. Orders 1. The orders made by the Tribunal on 29 January 2018 included the following order 2: The landlord Julie Anne Butler is to permit the tenants Ronald George Bloomer and Wendy Gai Bloomer and/or the servants and agents access to the cattle yards and crush installed by the tenants for the duration of the agricultural tenancy between the parties. 1. The effect of this order was that the landlord's application for an order that the tenancy had been terminated was dismissed. 2. The landlord did not challenge this order nor did the tenants. While the reasons do not explain why the Tribunal made this order, we would infer that the Tribunal concluded the lease had not been abandoned and/or that the tenancy had not been validly terminated in accordance with the notice dated 14 November 2016 (AB tab I p 59). While there was mention in the present appeal that a subsequent three-month notice of termination had been issued by the landlord, no application had been made to the Tribunal by the landlord in respect of this notice. 3. It follows that it is unnecessary to make any orders in respect of the landlord's application in order to dispose of this appeal, nor to set aside order 2. 4. In the tenants' application, the tenants sought orders restraining the landlord from terminating the tenancy. However, on appeal, the order sought concerning the tenancy and use of the property (Notice of Appeal Part C) was in the following terms: 1. The Tribunal determines that the agricultural tenancy between the parties is a tenancy determinable at the will of either party on 6 months' notice in writing or at the end of the current lease period if the property is sold. 1. In essence, the form of orders sought on appeal is in the nature of a declaration. Such an order proposed by the tenant is similar in terms to that made by the Tribunal at first instance, albeit recognising a tenancy of a different duration. While unnecessary to decide, in our opinion there is power to make "an order giving effect to a determination that may be made by the Tribunal" under the Act: see s 21(1) of the Act, and there is no reason to confine the scope of that power so as to exclude an order in the nature of the declaration from being made: see Steak Plains Olive Farm is Pty Ltd v Australian Executor or Trustees Limited [2015] NSWSC 289 at [80]-[83]. 2. However, the form of the order sought lacks a degree of precision having regard to the matters in dispute and the fact that the terms of any order in the nature of a declaration might otherwise be interpreted in a manner which could constrain the landlord from terminating the tenancy for just cause. 3. The issues finally dealt with by the Tribunal included the landlord's purported termination of the tenancy pursuant to the notice of termination dated 14 November 2016. While other notices have been issued, it is inappropriate for the Appeal Panel to make orders that might affect any rights which have accrued in consequence of the issue of such notices or to offer views about their validity where there has been no hearing at first instance about such matters. In these circumstances, it is sufficient to make an order to restrain the landlord from taking possession of the property, the subject of the Lease, in consequence of the purported termination notice dated 14 November 2016. 4. In relation to costs, the appellants were self-represented in the appeal. They did not, in this appeal, seek costs of the proceedings at first instance. As such, our preliminary view is that no orders for costs should be made. If a party contends for a different position, they have liberty to apply within 7 days from the date of our decision. 5. Accordingly, the Appeal Panel makes the following order: 1. The appeal is allowed in part and order 1 made 29 January is set aside. 2. The respondent, Julie Anne Butler, is permanently restrained from taking any steps to forfeit the tenancy with Ronald George Coomber and Wendy Gai Coomber or retake possession of the land, identified in the document entitled Working Farm Lease Agreement dated 11 September 2015, in consequence of the purported Notice of Termination dated 14 November 2016. 3. Leave to appeal is refused and the appeal is otherwise dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 20 June 2018