Chief Executive Officer (Housing) v Young and Another

• Jurisdiction: Northern Territory
• Judge: Grant CJ,Southwood,Barr JJ
• Judgment Date: 04 February 2022
• Court: Court of Appeal
• Docket Number: FILE NO: No. AP 9 of 2020 (22031505)

[2022] NTCA 1

NORTHERN TERRITORY COURT OF APPEAL

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JUDGMENT OF:

Grant CJ, Southwood and Barr JJ

FILE NO: No. AP 9 of 2020 (22031505)

Between:

Chief Executive Officer (Housing)

Appellant

and

Enid Young

First Respondent

and

Petria Cavanagh in Her Capacity as Administrator of the Estate of Robert Conway (Deceased)

Second Respondent

REPRESENTATION:

Counsel:

Appellant: N Christrup SC (Solicitor-General for the Northern Territory) with M Littlejohn

Respondents: M Albert

Amicus curiae: S Mirzabegian

Australian Securities & Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, Cavanagh v Chief Executive Officer (Housing) (2018) 345 FLR 55, Herald & Weekly Times Ltd v Victorian Civil and Administrative Tribunal (2006) 24 VAR 174, Household Financial Services Ltd v Commercial Tribunal of New South Wales (1995) 36 NSWLR 220, Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320, Smith v Baker (1873) 8 CP 350, State of New South Wales v Kable (2013) 252 CLR 118, Thompson v Palmer (1933) 49 CLR 507, Thorne v Kennedy (2017) 263 CLR 85, Walton v McBride (1995) 36 NSWLR 440, referred to.

Belcher v McIntosh (1839) 174 ER 257, Bond v Weeks [1999] 1 Qd R 134, De Soleil v Palhide Pty Ltd [2010] NSWCTTT 464, Fine v Geier (2003] QSC 73, Finn v Finato [2004] NSWCTTT 179, Gray v Queensland Housing Commission [2004] QSC 276, Hall v Manchester Corporation (1915) 84 LJ Ch 732, Hampel & Hampel v South Australian Housing Trust [2007] SADC 64, Lewin v Zhou [2018] NSWCATCD 54, Morgan v Liverpool Corporation [1927] 2 KB 131, Proudfoot v Hart (1890) 25 QBD 42, Summers v Salford Corporation [1943] AC 283, referred to.

Baltic Shipping Co v Dillon (1993) 176 CLR 344, Barton v Lantsbery [2004] VCAT 926, Blackington Pty Ltd & Anor v Holder & Ors [2007] NSWSC 266, Branchett v Beaney [1992] 3 All ER 910, Celemajer Holdings Pty Ltd v Kopas [2011] NSWSC 40, Farley v Skinner [2002] 2 AC 732, Fawzi El-Saiedy v NSW Land and Housing Corporation [2011] NSWSC 820, Free v Thomas [2009] NSWSC 642, Hadley v Baxendale (1854) 156 ER 145, Heywood v Wellers [1976] QB 446, Jackson v Horizon Holidays Ltd [1975] 3 All ER 92, Jarvis v Swan Tours Ltd [1973] QB 233, Kemp v Sober (1851) 61 ER 200, McCall v Abelesz [1976] 1 All ER 727, Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326, Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723, Reiss & Anor v Helson & Ors [2001] NSWSC 486, ( Residential Tenancies Tribunal v Offe unreported, NSWSC, 1 July 1997), Silberman v Silberman (1910) 10 SR(NSW) 554, Spathis v Hanave Investement Co Pty Ltd [2002] NSWSC 304, Stone v Chappel [2017] SASCFC 72, ( Strahan v Residential Tenancies Tribunal unreported, NSWSC, 12 September 1998), Watts v Morrow [1991] 4 All ER 937, referred to.

Residential Tenancies Act 1999 (NT), s 122

Residential Tenancies Act 1999 (NT), s 48

Anforth, Christensen & Taylor, Residential Tenancies Law and Practice New South Wales, 5 ^th ed, The Federation Press 2011, [2.52.2].

Woodfall, Landlord & Tenant, 28th ed, [1–1477].

Residential Tenancies Act 1999 (NT), s 122

LEASES AND TENANCIES — Residential tenancies — Jurisdiction of Northern Territory Civil and Administrative Tribunal

Whether Supreme Court erred in remitting claims for unconscionable dealings and repayment of rent to Tribunal for reconsideration — Tribunal has no jurisdiction or power to make such a determination — Tribunal's jurisdiction to award compensation predicated upon existence of a valid tenancy agreement — Appeal allowed.

LEASES AND TENANCIES — Residential tenancies — Construction

Whether Supreme Court erred in construing the term ‘habitable’ in s 48(1)(a) of the Residential Tenancies Act — Determination of habitability not restricted to matters of health and safety — Reasonable comfort of premises may be a test of habitability — Appeal dismissed.

LEASES AND TENANCIES — Residential tenancies — Power to award damages for distress and disappointment

Whether Supreme Court erred in finding damages for distress and disappointment were recoverable under the second limb of the principle in Baltic Shipping — No finding that damages for distress and disappointment awarded for physical inconvenience — Principal object of tenancy agreement not to provide enjoyment, relaxation or freedom from molestation — Appeal allowed.

REASONS FOR JUDGMENT

(Delivered 4 February 2022)

THE COURT:

1 This is an appeal by the Chief Executive Officer (Housing) ( CEO) from a decision of the Supreme Court delivered on 8 September 2020 1, allowing in part an appeal from a determination by the Northern Territory Civil and Administrative Tribunal ( Tribunal) delivered on

27 February 2019 concerning the entitlement to compensation pursuant to s 122(1) of the Residential Tenancies Act 1999 (NT) for breaches of various obligations alleged to have been committed in the course of two residential tenancies 2

Proceedings before the Tribunal

2 At the material times, Enid Young ( Young) and Robert Conway ( Conway) were the tenants of separate residential premises located in Santa Teresa, an Aboriginal community located 80 kilometres south-east of Alice Springs. The CEO is a corporation sole established by s 6 of the Housing Act 1982 (NT), and was the putative ‘landlord’ within the meaning of the Residential Tenancies Act for both tenancies.

3 On 5 February 2016, Young and Conway filed Initiating Applications in the Tribunal seeking orders under s 63 of the Residential Tenancies Act requiring the CEO to effect emergency repairs to the premises. Subsequently, the relief sought was amended to include a claim for compensation under s 122(1) of the Residential Tenancies Act for a breach of the landlord's obligation to repair the premises under s 57 of the Residential Tenancies Act, or, in the alternative, for a breach of the landlord's obligation to ensure that the premises were ‘habitable’ under s 48 of the Residential Tenancies Act.

4 The CEO counterclaimed against Conway for compensation under s 122(1) of the Residential Tenancies Act for unpaid rent under a written tenancy agreement made on 23 November 2011; and for compensation under that same provision for loss suffered as a result of Conway's failure to properly maintain the premises in breach of the terms of the written tenancy agreement and the term implied by s 51 of the Residential Tenancies Act. The CEO also counterclaimed against Young on the same grounds under a written tenancy agreement made on 14 December 2011, but withdrew the claim against Young for unpaid rent during the course of the hearing of the matter.

5 In response to those Counterclaims, Young and Conway pleaded that: (a) the tenancy agreements made by them were void; (b) the tenancy agreements prescribed by s 19(4) of the Residential Tenancies Act were void for uncertainty as to the amount of rent payable; (c) further, or in the alternative, the CEO was estopped from claiming compensation for unpaid rent; and (d) consequently, the CEO's counterclaim for compensation for unpaid rent and a failure to properly maintain the premises must fail. During the course of the hearing before the Tribunal, Young and Conway ultimately submitted that, in addition to the defence to the Counterclaims, they were entitled to the return of any rent paid under the purported agreements because they were voidable and properly declared void on the basis of what was essentially an assertion of unconscionable conduct on the part of the CEO's agents.

6 So far as is relevant for the purposes of the present appeal, the Tribunal found:

• (a) the tenancy agreement purportedly entered into by the CEO and Conway in 2017 was void because the subsisting periodic tenancy was not lawfully terminated in accordance with the notice provisions of the Residential Tenancies Act; 3

• (b) the tenancy agreement purportedly entered into by the CEO and Conway on 23 January 2011 was void because it was not signed by the CEO; 4

• (c) the tenancy agreement purportedly entered into by the CEO and Young on 14 December 2011 was invalid because it did not contain terms to the same effect as each term specified by the Residential Tenancies Act to be a term of a tenancy agreement, and because it contained terms not designated by the Residential Tenancies Act to be a term of a tenancy agreement; 5

• (d) as a consequence, the operative tenancy agreements between the CEO and Young and Conway were in the terms of the model

  residential tenancy agreement prescribed by reg 10 and Schedule 2 of the Residential Tenancies Regulations 2000 (NT); those agreements were not void for a failure to specify the rent amounts; and the claims made by Young and Conway for compensation for the rent and security deposits paid, which were made on the basis that the prescribed agreements were void, were dismissed; 6

• (e) in order to establish a breach of the CEO's obligation to ensure that the premises were ‘habitable’ under s 48(1) of the Residential Tenancies Act, the state of the premises must have been such that there was ‘a threat to the tenant's safety, going to both structural and health issues’; and the obligation was on the tenants to establish that the state of the premises were such that a threat to the tenant's safety would naturally occur from the ordinary use of the premises; 7

• (f) the CEO's failure to replace a missing backdoor on Young's premises for over six weeks was in breach of the duty to repair under s 57(1) of the Residential Tenancies Act, but the absence of a backdoor did not constitute a breach of the CEO's obligation to ensure that the premises were ‘habitable’ under s 48(1) of the Residential Tenancies Act or to take reasonable steps to ensure the

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