Mirvac Homes (NSW) Pty Limited v Noakes

1. [1]

   JOHNSON J: Referred to me in Chambers, on 9 May 2022, in my capacity as Duty Judge in the Common Law Division, is an application by the Plaintiff, Mirvac Homes (NSW) Pty Limited, with respect to the Defendant, Nicole Noakes, arising out of proceedings before the New South Wales Civil and Administrative Tribunal (“NCAT”) under the Agricultural Tenancies Act 1990 (“AT Act”).

The NCAT Proceedings

1. [2]

   On 3 March 2022, the Plaintiff obtained orders from NCAT under the AT Act for possession of two properties at Ingleside.

2. [3]

   By consent, an order was made under s.21(1)(i) AT Act that the Defendant give the Plaintiff vacant possession of each of the Ingleside properties by 5.00 pm on 14 March 2022. In addition, orders were made, by consent, under s.21(1)(g) AT Act requiring the Defendant to perform certain work and to take steps with respect to the Ingleside properties, and to leave the properties in a neat and tidy state having regard to the condition of each property at the commencement of the Occupation Licence affecting each property.

3. [4]

   Further orders were made on 3 March 2022 with respect to the making of a costs application by the Plaintiff, with a timetable being fixed for submissions.

4. [5]

   The Defendant did not vacate the Ingleside properties by 14 March 2022.

5. [6]

   On 15 March 2022, the solicitors for the Plaintiff made application to NCAT for the issue of a warrant for possession of the Ingleside properties.

6. [7]

   On 21 March 2022, the Deputy Divisional Registrar of NCAT informed the solicitors for the Plaintiff that application should be made to the Supreme Court for enforcement of the NCAT orders of 3 March 2022, by issue of a writ of possession concerning the Ingleside properties. A certified copy of the NCAT orders was furnished for this purpose.

Application to Supreme Court for Writ of Possession

1. [8]

   On 23 March 2022, the solicitors for the Plaintiff filed in the Supreme Court a Registration of Certificate of Order which attached a certified copy of the NCAT orders.

2. [9]

   On 25 March 2022, the Plaintiff filed a Notice of Motion in the Court seeking leave for the issue of a writ of possession for the Ingleside properties.

3. [10]

   In effect, the Plaintiff sought that the Supreme Court issue a writ of possession with respect to the Ingleside properties arising from the NCAT orders of 3 March 2022.

4. [11]

   The solicitors for the Plaintiff have requested that the application be dealt with expeditiously as concern is held about ongoing damage to the Ingleside properties and the welfare of horses located on the property. The Plaintiff wishes to enforce its judgment for possession of land as soon as possible.

5. [12]

   In these circumstances, the solicitors for the Plaintiff seek an indication as to the appropriate way forward, through NCAT or the Supreme Court, to permit enforcement of the orders made by NCAT on 3 March 2022.

6. [13]

   It is this question which has been referred to me for determination as Common Law Duty Judge.

Relevant Provisions in the AT Act

1. [14]

   There is no question that it was open to the Plaintiff to make application to NCAT under the AT Act for orders against the Defendant with respect to the Ingleside properties.

2. [15]

   The objects of the AT Act include the provision of a mechanism for settling disputes between parties to agricultural tenancies through applications to NCAT: s.3(c) AT Act.

3. [16]

   Part 2 of the AT Act (ss.5-14) provides for general rights of tenants and owners, including mechanisms for NCAT to play a part concerning written agreements (s.5), improvements (s.6), compensation for improvements carried out by the tenant or the owner with or without consent (ss.7-9), and a number of other practical provisions relating to agricultural tenancies.

4. [17]

   Part 3 of the AT Act (ss.15-19A) provides for determination of compensation as sought under Part 2 of the AT Act.

5. [18]

   Section 20 AT Act provides for applications to NCAT relating to disputes:

6. [19]

   Section 21 provides for orders that may be made by NCAT under the AT Act:

Some Other Statutory Provisions

1. [20]

   The objects of the Civil and Administrative Tribunal Act 2013 (“CAT Act”) include, in s.3(d) “to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible”. This provision is similar to the overriding purpose contained in s.56(1) Civil Procedure Act 2005.

2. [21]

   Where a writ or warrant for possession issues with respect to land, the Sheriff executes the writ under the Sheriff Act 2005. Section 4 Sheriff Act 2005 provides as follows:

3. [22]

   Section 7A of that Act states:

4. [23]

   The Civil Procedure Act 2005 provides for the Sheriff to exercise functions in connection with writs which might be issued by a Court. Section 104 Civil Procedure Act 2005 provides:

Does NCAT have Power to Issue a Writ or Warrant for Possession of Land Under the AT Act?

1. [24]

   The question which arises is whether NCAT is empowered to issue a writ or warrant for possession of the Ingleside properties, or whether a separate application is required to the Supreme Court to undertake this task, despite the fact that NCAT has dealt with all other aspects of the proceedings, including the making of the order for possession itself.

2. [25]

   It may be seen then that the AT Act provides for a range of powers and functions on the part of NCAT with respect to properties which are the subject matter of the statute.

3. [26]

   Section 3(c) AT Act states that the objects of the statute include the provision of a mechanism for settling disputes between parties to agricultural tenancies through applications to NCAT. Under s.3(d) CAT Act, an object of the statute is to enable NCAT “to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible”. The work which an objects clause performs includes operating as a source for identifying the purpose or object of legislation to assist statutory construction: s.33 Interpretation Act 1987; ID, PF and DV v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158; [2008] NSWSC 966 at [255]-[257].

4. [27]

   Avoiding fragmentation of civil proceedings is a common theme in case law: cf Flore v NSW Department of Education and Training [2006] NSWSC 1227 at [31] (and the cases cited therein). All the more so is the avoidance of fragmentation of proceedings which would require the hearing on the merits and the making of orders in one forum and the enforcement of those orders in a completely different forum.

5. [28]

   In approaching the question of statutory construction in this case, I have kept in mind the statement of Bathurst CJ in Hudson v ARAP 1 (NSW) Pty Ltd (2015) NSWLR 477; [2015] NSWCA 126 at [25]:

6. [29]

   In my view, it would take clear words in the relevant statute or statutes to demand an outcome where NCAT was empowered to hear and determine a claim for relief and make orders, but only the Supreme Court could issue a writ or warrant for possession to give effect to the determination and orders of NCAT.

7. [30]

   There is no express power in the AT Act for NCAT to issue a warrant for possession to enforce an order for possession. However, NCAT is empowered to deal with the merits of an application for possession and to give orders with respect to such an application. Amongst a range of express powers, NCAT is authorised to make an order giving effect to a determination that may be made by NCAT under the AT Act (s.21(1)(a)) and, in any proceedings before it under the AT Act, to make any ancillary order that NCAT thinks appropriate (s.21(4)(b)).

8. [31]

   The power in s.21(4)(b) AT Act to make ancillary orders indicates that there is no legislative intention to confine the scope of orders than can be made under s.21(1)(a) AT Act: Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd (2015) 230 BPR [98731]; [2015] NSWSC 289 (“Steak Plains”) at [82].

9. [32]

   These powers permit NCAT to make a range of orders to give effect to a determination made under the AT Act and orders which are ancillary to orders under the statute. In circumstances where NCAT is, in essence, the trial forum for claims for relief under the AT Act, it is entirely understandable that the statute would allow NCAT to exercise all powers and functions which arise to determine to finality all steps flowing from an application for relief. This construction would give effect to the objects clauses in s.3(c) AT Act and s.3(d) CAT Act.

10. [33]

    An argument against NCAT having power under the AT Act to issue a warrant for possession would involve comparison with other statutes, where express power is given for the issue of a warrant for possession. These statutes are those referred to in s.7A(5)(c)-7A(5)(f) Sheriff Act 2005 (see [22] above).

11. [34]

    An argument against NCAT being empowered to issue a writ or warrant for possession would seek support from the existence of provisions such as this, in other statutes, so as to require a separate process before the Supreme Court for a party to enforce an order for possession granted by NCAT after a hearing (or by consent of the parties) under the AT Act.

12. [35]

    The Court is required to construe the AT Act, bearing in mind the principles of construction and the objects clauses in the AT Act and the CAT Act.

13. [36]

    It would be entirely contrary to modern precepts of statutory interpretation, and the just, quick and cheap resolution of the real issues in dispute in civil proceedings, to have a procedural arrangement where one body (NCAT) considered all aspects of a claim for relief under the AT Act, including the making of an order for possession, but that it was left to a separate body (the Supreme Court) to enforce the order by issue of a writ or warrant for possession and, presumably, with the Court being required to entertain any application for a stay of execution of the writ issued by the Supreme Court. Upon this approach, parties would be required to seek the issue of process in two separate fora with the prospect of additional costs and consequential delay.

14. [37]

    In my view, ss.21(1)(a) and 21(4)(b) AT Act comprise a sufficient head of power for NCAT to issue a writ or warrant for possession of land arising from proceedings before it where all antecedent orders have been made.

15. [38]

    To the extent that the express provisions of the AT Act do not extend that far, there is a proper basis to conclude that power ought be implied as being necessary for the proper exercise of NCAT’s jurisdiction under the AT Act. Such an implied or incidental power is to do all things as are necessary or reasonably incidental to the performance of the specified functions and powers of the body: Morgan v Commissioner of Police [2012] NSWSC 1141 at [152]. As noted earlier, s.21(4)b) AT Act makes provision for the making of ancillary orders and this power is not to be narrowly confined (see Steak Plains at [31] above).

16. [39]

    I am satisfied that s.21 AT Act, and (to the extent it is necessary) a power arising by necessary implication, supports a conclusion that NCAT may issue itself a warrant for possession following proceedings determined under the AT Act.

17. [40]

    To the extent that the presence or absence of particular provisions in different statutes may provide a contrary argument, I am not persuaded that a legislative intention is identified to place the AT Act in a position where one body (NCAT) acts as the trial tribunal, but that another body (the Supreme Court) must issue process to allow enforcement and, presumably, assume as well exclusive power to determine whether a writ of possession issued by the Court should be stayed. This unnecessary duplication of bodies, and the associated duplication of costs, would be contrary to the modern approach to the determination of civil disputes under legislation and contrary to the objects of both the AT Act and the CAT Act.

Conclusion and a Suggestion for Reform

1. [41]

   I am satisfied that NCAT may issue appropriate process to enforce its own orders in this case. However, to the extent that the patchwork legislative scheme under different Acts may give rise to a possible argument to the contrary, it is desirable that legislative amendment be made to ensure that there is express statutory power under the AT Act to issue a warrant for possession under that Act.

2. [42]

   For the reasons contained in this judgment, I am satisfied that: