Rayner v Rayner

1. [1]

   HIS HONOUR: By a summons filed on 7 June 2019, the plaintiff, Gary Rayner, sought leave pursuant to ss 82 and 83 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal part of a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (“the Appeal Panel”). The Appeal Panel had heard an appeal from part of a determination that had been made by the New South Wales Civil and Administrative Tribunal (“the Tribunal”) pursuant to the Residential Tenancies Act 2010 (NSW) (“RT Act”), concerning a residential tenancy agreement (“the tenancy agreement”), in which the plaintiff was the tenant and the defendant, who is the daughter of the plaintiff and his former wife, was the landlord. The Tribunal determined that the tenancy agreement was terminated and made an order for possession in favour of the defendant. The appeal to the Appeal Panel was only in respect of the order granting possession, not the termination of the tenancy agreement (“the Appeal Panel decision”).

Background

1. [2]

   The background to the dispute was summarised in the Appeal Panel decision, as follows:

2. [3]

   The sections of the RT Act, as they were at the time of the Tribunal’s hearing, that are necessary to understand the Appeal Panel decision, or have been raised by the plaintiff for the purposes of this application, are relevantly as follows:

3. [4]

   The orders made on 30 July 2018 by the Tribunal, which was in the Consumer and Commercial Division, were as follows:

4. [5]

   The defendant’s tenancy application that was lodged on 27 July 2018 was heard by the Tribunal, differently constituted, on 14 August 2018. It determined that as the tenancy had already been terminated, it had no jurisdiction and dismissed the application.

5. [6]

   On 20 August 2018, the plaintiff filed an application in the Federal Circuit Court, seeking to set aside the orders that had been made by that court by consent on 16 July 2012, in respect of the matrimonial property of the plaintiff and his former wife (“the 2012 consent orders”). In those proceedings, the plaintiff contended that he had been misled into transferring his 50 per cent interest in the jointly-owned property and assets and that he had understood that the defendant purchased the property that was the subject of the tenancy agreement in his name, for him to reside in upon his release from prison. He only learned the property was registered in the defendant’s name after he received the notice of termination.

6. [7]

   On 13 August 2018, that is, the day before the hearing date for the defendant’s application to the Tribunal, the plaintiff lodged his appeal to the Appeal Panel, but only against the Tribunal’s order for possession against him, seeking that it be “discharged”, and an order for costs.

7. [8]

   The plaintiff’s solicitor filed two sets of written submissions with the Appeal Panel. In the first, which was filed on the same date as the application to the Federal Circuit Court, he contended that the plaintiff had an equitable interest in the property which was the subject of the rental agreement, and that although the Tribunal terminated the tenancy agreement, it did not have jurisdiction to determine his claim in equity to a right of possession independently from the tenancy agreement. The Appeal Panel recounted these submissions, stating, at [32]:

8. [9]

   Those written submissions formed part of the court book which was tendered in the hearing before me. On my reading, with respect, the plaintiff’s solicitor had not made such a submission, but rather, had made the submission that the order for possession should be stayed pending the Appeal Panel hearing (presumably, he meant the Appeal Panel decision) or the final orders of the Federal Circuit Court. The written submissions relevantly stated:

9. [10]

   The Appeal Panel noted, at [34], that in his second set of written submissions, the plaintiff’s solicitor argued that his claim could be regarded as “an equitable defence of ‘unclean hands’ or an estoppel against [the defendant’s] claim for an order for possession”, and that, if so categorised, ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW) applied, so as to have empowered the Tribunal to postpone the grant of relief under the RT Act, including an order for possession, or to making an order granting relief subject to terms and conditions.

10. [11]

    Sections 6 and 7 of the Law Reform (Law and Equity) Act are as follows:

11. [12]

    The Appeal Panel’s decision was handed down on 9 May 2019. It noted the manner in which the plaintiff had raised this issue before the Tribunal. The plaintiff had put on no supporting evidence and had relied exclusively on his oral submissions on the day of the Tribunal hearing, which had not been transcribed, thus leaving the Appeal Panel with only the Tribunal’s reasons. In its decision, the Appeal Panel, at [30], quoted the following passage from the Tribunal’s reasons:

12. [13]

    In the hearing in this Court, the solicitor for the plaintiff conceded that the Tribunal had correctly summarised his client’s submissions to the Tribunal. The reference to a “‘no grounds’ termination order” is to an order made following a termination notice given by a landlord to a tenant that does not allege a breach by the tenant of the tenancy agreement, but rather, that the period of the tenancy has expired and the landlord wishes to take possession: see s 82(1)(c) of the RT Act.

13. [14]

    The Appeal Panel concluded that it was not satisfied that the plaintiff had articulated a claim in equity at the hearing before the Tribunal, or that he had sought a stay of the order for possession. Accordingly, it found no error in the Tribunal’s decision or reasons for its decision. The Appeal Panel stated:

14. [15]

    The Appeal Panel also determined that, if it was wrong and the plaintiff had articulated a claim in equity, his submission as to the application of ss 6 and 7 of the Law Reform (Law and Equity) Act was misconceived.

15. [16]

    The Appeal Panel accepted that the Tribunal is an “inferior court” for the purposes of s 6: Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [67] and [74]. However, referring to the judgment of White J (as his Honour then was) in that case, the Appeal Panel noted:

16. [17]

    The Appeal Panel concluded that the plaintiff’s grounds of appeal did not raise a question of law, and thus the appropriate order was to dismiss that aspect of the appeal.

17. [18]

    In its decision, the Appeal Panel noted that in written submissions, the plaintiff had also alleged a procedural irregularity in the proceedings before the Tribunal, although neither party had raised that matter as a ground of appeal. The essence of this complaint was that the Tribunal had effectively dealt with the defendant’s application on the same date as the plaintiff’s application, because orders for possession could only have been made in response to the defendant’s application. The Appeal Panel dismissed this complaint, noting that neither party had complained at the time of the first hearing and that it was inappropriate for both proceedings to be dealt with together.

18. [19]

    The orders made by the Appeal Panel were as follows:

19. [20]

    On 30 April 2019, the Federal Circuit Court acceded to an application by the respondents in that action, being the plaintiff’s former wife and the defendant to this action, to summarily dismiss the plaintiff’s application.

The appeal to this Court

1. [21]

   Sections 82 and 83 of the Civil and Administrative Tribunal Act relevantly provide as follows:

2. [22]

   Pursuant to s 82(1)(a), the Appeal Panel’s decision was an internal appeal decision. An appeal to this Court requires leave and is confined to questions of law: s 83(1).

3. [23]

   The plaintiff’s summons seeks the following orders:

4. [24]

   The plaintiff relies on an affidavit sworn by him on 23 October 2019 and read in the proceedings, and the court book, which comprised: copies of the tenancy agreement; the “no grounds” termination order; the plaintiff’s tenancy application; the Tribunal’s orders and reasons; the plaintiff’s notice of appeal and written submissions; the defendant’s written submissions; and the transcript of the Appeal Panel hearing and its decision. In addition, the plaintiff handed up a brief chronology. The court file included further affidavits by the plaintiff, sworn on 12 June 2019 and 20 June 2019, which had been prepared for an earlier hearing in this matter. The plaintiff did not seek that those affidavits be read.

5. [25]

   The plaintiff advanced six grounds of appeal, which are now considered.

Ground 1

1. [26]

   Ground 1 is as follows:

2. [27]

   In my view, this ground, which challenges the Appeal Panel’s interpretation of the Tribunal’s reasons, raises a question of law, and I would grant leave to appeal.

3. [28]

   The plaintiff submitted that it was not reasonably open to the Appeal Panel to find, at [51], that the Tribunal’s statement, “The tribunal explained the limitations of its jurisdiction, and the ‘no grounds’ termination order” referred only to the plaintiff’s application made pursuant to s 115 of the RT Act. Rather, the plaintiff submitted, the Tribunal was implying that its jurisdiction in relation to an application for a “no grounds” termination order was limited, so that an equitable defence was precluded from consideration. The plaintiff further submitted that the final sentence of the quote of the Tribunal’s reasons, being “This does not prevent the applicant from pursuing other issues through legal channels”, was to be understood as an acknowledgement by the Tribunal that the plaintiff could pursue his equitable claim in another court.

4. [29]

   In response, the defendant submitted that the Tribunal at first instance properly exercised its jurisdiction pursuant to s 83(1) of the RT Act and that the plaintiff had failed to provide evidence of his claim of an equitable interest and to seek declaratory or other relief from any court in relation to it.

5. [30]

   The underlying proposition in this ground is that the Tribunal’s reasons are to be interpreted to mean that it concluded that it did not have jurisdiction to consider a claim in equity in defence to a claim for possession against the plaintiff. The Tribunal’s reasons are to be understood in the context of the plaintiff’s tenancy application. The plaintiff had only sought an order pursuant to s 115 of the RT Act, identifying two alleged breaches by the landlord of the tenancy agreement, being “noise complaints” and that the period of the tenancy was expressed in the tenancy agreement to be “indefinite”.

6. [31]

   It is unclear from the Tribunal’s reasons whether it had understood the plaintiff’s oral claim, that the property had been purchased with his assets and without his knowledge, to be a claim in equity; the plaintiff did not characterise it as such and he had given no notice of it in his tenancy application or provided evidence to support it. The Tribunal was, in effect, noting that, whatever the nature of the plaintiff’s claim, it was not the place for him to pursue it, given the limited range of orders that it had power to make, pursuant to the RT Act, in response to a “no grounds” termination order. This view accords with the Appeal Panel’s interpretation of what the Tribunal intended by its remarks at [51].

7. [32]

   The next proposition is whether, if the Tribunal’s reasons were to the effect that it did not have the jurisdiction to consider an equitable claim as a defence to an order for possession, that view was erroneous.

8. [33]

   As noted above, the issue of the application of ss 6 and 7 of the Law Reform (Law and Equity) Act by NCAT, was considered by White J in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited. That case involved an agricultural tenancy pursuant to the Agricultural Tenancies Act 1990 (NSW), in which an equitable claim as a defence was raised to a notice of termination of a lease. White J concluded, at [78]:

9. [34]

   White J found that the Tribunal could only apply ss 6 and 7 of the Law Reform (Law and Equity) Act if the claim was established. The plaintiff’s oral claim to the Tribunal, made without any notice or supporting evidence, could not constitute a proper evidentiary basis for a finding by it that the plaintiff had ‘established’ an equitable claim, and therefore the ultimate issue did not arise.

10. [35]

    I would dismiss ground 1.

Ground 2

1. [36]

   Ground 2 is as follows:

2. [37]

   I would grant leave to appeal on this ground, which concerns an issue of Tribunal procedure and procedural fairness, and therefore raises questions of law.

3. [38]

   The plaintiff’s written submissions referred to the summary of the plaintiff’s submission in the Tribunal’s reasons quoted at [12] above and continued:

4. [39]

   The defendant’s “no grounds” termination order bears a “service endorsement” to the effect that it had been left in the plaintiff’s letter box on 12 April 2018. The plaintiff filed his tenancy application in May 2018. In response to the question: “Reasons for asking for orders?”, the plaintiff hand-wrote (as conceded by his solicitor):

5. [40]

   The plaintiff also wrote, but crossed out, the words: “Separate agreement that tenant pays off mortgage p”, which is evidence that he had turned his mind at that stage to alleging an equitable or other interest before the Tribunal but decided against it.

6. [41]

   In response, the defendant submitted that the Appeal Panel was correct to find that the plaintiff did not articulate a claim in equity until the hearing before the Appeal Panel. The consequence of what the plaintiff now seeks would be that the defendant would not be granted possession until the plaintiff decides to prosecute his equitable claim by way of relief in a court, at some indefinite and indeterminable time.

7. [42]

   Essentially the plaintiff’s submission in support of this ground is that he was not afforded an opportunity, or a sufficient opportunity, to submit evidence of his equitable claim to the Tribunal, but in any event, having regard to the Tribunal’s informal procedure, he had sufficiently articulated his equitable claim, so that he had established an “equitable defence” before the Tribunal.

8. [43]

   In the passage from the plaintiff’s written submissions quoted above, the plaintiff does not dispute that he did not oppose the Tribunal proceeding to hear his application pursuant to s 115 of the RT Act and his claim for possession at the same time.

9. [44]

   The plaintiff’s written submissions do not explain why he did not identify to the Tribunal the issue of his equitable claim in advance of the Tribunal’s hearing. The plaintiff had over three months after service upon him of the defendant’s “no grounds” termination order to marshal evidence of his claim, if he required it, to put his case to the Tribunal seeking equitable relief, if indeed he considered that it was an appropriate forum for such relief, or elsewhere, if he did not.

10. [45]

    In relation to the plaintiff’s submission that his “assertion of a beneficial entitlement to property, which may prima facie found a right to be in possession against the defendant”, I note my earlier observations to the effect that the claim must be ‘established’ in order for the broader jurisdiction pursuant to ss 6 and 7 of the Law Reform (Law and Equity) Act to be activated.

11. [46]

    I would dismiss ground 2.

Ground 3

1. [47]

   Ground 3 is as follows:

2. [48]

   I would grant leave to appeal on this ground, since it raises a question of law.

3. [49]

   To the extent that this ground repeats one of the issues indirectly raised in ground 1, namely, whether the plaintiff’s articulation of his claim was sufficient to activate the Tribunal’s claimed jurisdiction pursuant to ss 6 and 7 of the Law Reform (Law and Equity) Act, I note my finding that the plaintiff’s assertion was an insufficient basis by itself to ‘establish’ the equitable interest. Ground 3 expands this submission to the Appeal Panel hearing; that is, as I understand that part of this ground, that there was sufficient material before the Appeal Panel to require it to entertain the equitable claim.

4. [50]

   At [61], the Appeal Panel acknowledged that the plaintiff had placed “additional material” before it which also failed to establish the entitlement sought by the plaintiff. It did not identify that material. At the hearing before me, I raised with the plaintiff’s solicitor, who also appeared for the plaintiff before the Appeal Panel, where I might find that additional material, as follows:

5. [51]

   It appears from the transcript of the Appeal Panel hearing that the plaintiff had handed up two affidavits by the plaintiff that were filed in the Federal Circuit Court proceedings, but ultimately were not read in the Appeal Panel hearing. I note that they were also not read in the hearing before me. In those circumstances, the second part of ground 3 is not made out.

6. [52]

   Accordingly, I would dismiss ground 3.

Ground 4

1. [53]

   Ground 4 is as follows:

2. [54]

   Ground 4 raises an issue of statutory interpretation, which is a question of law, and I would grant leave to appeal.

3. [55]

   In written submissions, the plaintiff disputed that the Tribunal was bound by s 83 of the RT Act to make an order for possession once it had terminated the tenancy agreement, arguing that a proper application of ss 6 and 7 the Law Reform (Law and Equity) Act would have obliged the Tribunal to consider and determine his equitable claim as a defence to a possession order and “if so, stayed the defendant’s application pending determination of the equity in a court of competent jurisdiction”.

4. [56]

   In oral submissions, counsel for the plaintiff acknowledged that s 83(1) of the RT Act obliged the Tribunal to make an order for possession once it had made an order terminating the tenancy, but submitted that the terms of s 83(1) did not prevent it from delaying the making of the order, so that after the Tribunal made the order terminating the tenancy, it should have then adjourned the matter, permitting the plaintiff to resolve the equitable claim in a court of competent jurisdiction for that purpose.

5. [57]

   Since the plaintiff did not ‘establish’ an equitable claim before the Tribunal, it is unnecessary to determine whether the RT Act permits a Tribunal to delay making an order for possession in such circumstances; that is, having regard to ss 6 and 7 the Law Reform (Law and Equity) Act.

6. [58]

   Accordingly, I would dismiss ground 4.

Ground 5

1. [59]

   Ground 5 is as follows:

2. [60]

   The single-paragraph written submission by the plaintiff in support of this ground is as follows:

3. [61]

   Having regard to the terms of this ground and the manner in which the plaintiff has developed it in the single paragraph, it is repetitive of the earlier grounds.

4. [62]

   Accordingly, although it raises a question of law, I decline leave to the plaintiff to argue this ground.

Ground 6

1. [63]

   Ground 6 is as follows:

2. [64]

   Ground 6 involves a question of law. I would grant leave to appeal.

3. [65]

   The plaintiff submitted that the Federal Circuit Court proceedings were essential to the determination of the claim in equity, since it may be that no equity could subsist after the determination of his claim. Further, he submitted that the Federal Circuit Court is a court of competent jurisdiction to determine the plaintiff’s equitable claim due to s 18 of the Federal Circuit Court of Australia Act 1999 (Cth). He relied upon Fencott v Muller [1983] 152 CLR 570; [1983] HCA 12 at 591 where Gibbs CJ stated, at 591:

4. [66]

   The defendant responded that no error had been identified in this ground by the plaintiff, noting that he had failed to seek equitable relief in this Court and that on 30 April 2019, the Federal Circuit Court summarily dismissed his application. At the time of the hearing, the plaintiff was awaiting a hearing date for an appeal to the Full Court of the Family Court of the summary dismissal.

5. [67]

   For reasons that I have already explained, the plaintiff failed to establish an equitable claim before the Tribunal. It was appropriate, in those circumstances, for the Tribunal to make an order for possession of the property consequent to its termination of the lease. The plaintiff also failed to establish an equitable interest before the Appeal Panel. The plaintiff has not established that the Appeal Panel erred in upholding the Tribunal’s order for possession. There was no basis for the Tribunal or the Appeal Panel to delay the order for possession pending the plaintiff’s Federal Circuit Court action, if it had not established an equitable claim justifying that delay.

6. [68]

   Accordingly, I would also dismiss this ground.

Order for possession

1. [69]

   At the hearing of this matter, I stayed the order for possession, conditional upon the plaintiff paying an occupation fee of $28.57 per day, until this judgment is handed down. The effect of the judgment is that the order for possession in favour of the landlord now operates.

2. [70]

   The Tribunal suspended the order for possession, pursuant to s 114(1) of the RT Act, for a period of four weeks from the date of its decision. The Appeal Panel also suspended the order, for a period of three weeks. I consider it appropriate to allow the plaintiff three weeks from the date of this judgment before the order for possession takes effect.

Orders

1. [71]

   I make the following orders:

   1. (1)

      Leave to appeal is granted to the plaintiff in respect of grounds 1, 2, 3, 4 and 6.

   2. (2)

      Leave to appeal is refused in respect of ground 5.

   3. (3)

      The summons filed on 7 June 2019 is dismissed.

   4. (4)

      The plaintiff to pay the costs of the defendant on this application.

   5. (5)

      The order for possession made by the New South Wales Civil and Administrative Tribunal on 30 July 2018 is suspended until 23 November 2020.