Williams v CEO Housing

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Hiley J
• Judgment Date: 06 June 2013
• Neutral Citation: [2013] NTSC 28
• Docket Number: FILE NO: No. LA4 of 2013 (21236346)
• Date: 06 June 2013

[2013] NTSC 28

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Hiley J

FILE NO: No. LA4 of 2013 (21236346)

Between:

Williams, Vanessa

Appellant

and

CEO — Housing

Respondent

REPRESENTATION:

Counsel:

Appellant: N Aughterson

Respondent: C Smyth

Commissioner for Social Housing in the ACT v Canham (Residential Tenancies) [2012] ACAT 41 ; Crook v Consumer, Trader and Tenancy Tribunal NSW (2003) 59 NSWLR 300; Eastman v Commissioner for Housing in the ACT [2006] 200 FLR 272; NSW Land and Housing Corporation v Bullman [2006] NSWSC 733, applied.

CEO Housing v Coonan [2010] NTMC 30 ; CEO Housing v Steiner [2008] NTMC 9, approved.

Lugg v Wright [1941] SASR 106 ; Mason and Anor v NT Housing (1996) 6 NTLR 152; Owens v Australian Building Construction Employees' and Builders Labourers' Federation (1991) 46 FLR 16, distinguished.

Local Court Act (NT) s 19

Residential Tenancies Act (NT) s 3, s 82, s 96A, s 96B, s 97, s 99A, s 100, s 100A, s 101, s 103, s 104, s 105, s 122, s 150(7)

LANDLORD AND TENANT — application under s 100(1) Residential Tenancies Act (NT) for orders terminating a tenancy and for possession — whether court has discretion once satisfied of threshold requirements — remedies available to landlords

COURTS — Local Court — jurisdiction under s 100(1) Residential Tenancies Act (NT) — discretion to terminate a tenancy and make order for possession

STATUTORY INTERPRETATION — words and phrases — ‘may’ — whether power conferred is discretionary — whether mandatory

REASONS FOR JUDGMENT

(Delivered 6 June 2013)

Introduction

1 This is an appeal against a decision by the Local Court on 6 March 2013 to terminate the appellant's tenancy at unit 14/10 Parap Road, Parap (the ‘premises’) and to order possession of the premises.

2 On 28 September 2012 the respondent sought orders for the termination of the tenancy and possession of the premises, under s 100(1) of the Residential Tenancies Act. The premises have been leased by the appellant since 8 July 2002. The tenancy agreement is currently fixed to expire on 1 September 2013. The respondent relied upon the grounds set out in s 100(1)(b) and (c) of the Residential Tenancies Act.

3 Section 100(1) of the Residential Tenancies Act provides as follows:

• (1) A court may, on the application of the landlord or an interested person, terminate a tenancy and make an order for possession of the premises if satisfied the tenant has:

  • (a) used the premises, or caused or permitted the premises to be used, for an illegal purpose; or

  • (b) repeatedly caused a nuisance on or from the premises or repeatedly permitted a nuisance to be caused on or from the premises; or

  • (c) repeatedly caused or repeatedly permitted an interference with the reasonable peace or privacy of a person residing in the immediate vicinity of the premises.

4 Incidents of noise, nuisance and anti-social behaviour had been alleged against the appellant. Warning notices were issued by Territory Housing on 11 July, 10 August and 14 September 2012. Underlying the application was Territory Housing's ‘Three Strikes Policy’ (Territory Housing Operational Policy).

5 On 6 March 2013, His Honour Dr Lowndes SM held that he was satisfied that one or more of the grounds set out in s 100(1)(b) and (c) of the Residential Tenancies Act had been made out. His Honour also held that the word ‘may’ in the first line of s 100(1) of the Residential Tenancies Act did not allow the court a discretion. His Honour stated: ‘the court has no discretion under [s] 100 — once it is satisfied about a relevant ground, then it must then proceed to terminate a tenancy or make an order for possession’. On that basis, his Honour ordered termination and possession of the property. He then suspended the order for 2 months pursuant to s 105 of the Residential Tenancies Act. The parties agreed to a further stay of the court's orders pending the outcome of this appeal.

6 Section 19(1) of the Local Court Act permits a party to a proceeding to appeal to the Supreme Court on a question of law from a final order of the Local Court. In the present context, the right of appeal is preserved by s 150(7) of the Residential Tenancies Act.

7 The question of law in the present case is whether under section 100(1) of the Residential Tenancies Act the court has a discretion as to whether or not the tenancy should be terminated once it is satisfied that the matters in clauses 100(1)(b) or (c) of the Act have been established.

Consideration

8 In short the issue is whether the word ‘may’ confers a discretion upon the court, or whether it really means ‘shall’, as a result of which the court was bound to terminate the tenancy and order possession once satisfied of one or more of the elements in clauses 100(1)(a), (b) or (c).

9 The starting point is the well established presumption that permissive or facultative expressions operate according to their ordinary natural meaning and confer a discretion. 1

10 This is particularly so in relation to provisions which empower courts to grant relief of a specified kind. In both Newmarch v Atkinson2 and Lamb v Moss3, it was held that, while the courts in question had to exercise jurisdiction and to consider the applications before them, they had a discretion to decline to grant the remedies that the legislation empowered them to issue. In Re Sarina4 the court said that the power was facultative even though the number of occasions on which it would not be exercised would be rare. 5

11 However such a presumption may be displaced if the real intention of the legislation is otherwise. 6 This requires the relevant provision to be construed according to its context. 7

The Residential Tenancies Act

12 Part 11 of the Residential Tenancies Act (ss 82 to 109) deals with termination of tenancy agreements. The term ‘may’ is used in each of the

sections (ss 97–100A) in Division 4 of Part 11, which Division deals with termination by the court or Commissioner. It is reasonable to assume that the term is used consistently within that Division.

13 Each of those provisions use the word ‘may’ to confer jurisdiction on the court to terminate a tenancy and order possession of premises ‘if satisfied that’ particular circumstances exist or have existed.

14 One can readily imagine particular circumstances of the kind identified, for example in s 100(1)(a), (b) or (c), that might be so trivial or historic, that would not justify the drastic step of terminating the tenancy, particularly one as lengthy as the appellant's. Unless the court has a discretion to decline to terminate a tenancy, a tenant would always be at risk of having his or her tenancy terminated at the whim of the landlord or ‘an interested person’ (ie a third party) for minor transgressions, notwithstanding that they were trivial, may have occurred many years ago, and even where the tenant has taken steps to ensure that there will be no repetition of the conduct complained of. For example, the purpose for which the premises are used might no longer be illegal, or the source of a nuisance (e.g. a noisy visitor) may have been removed.

15 The broad scope of the potential grounds for termination suggests that the term ‘may’, consistent with its ordinary meaning, is intended to be permissive.

16 Allowing no discretion could lead to draconian results. As noted in Crook v Consumer, Trader and Tenancy Tribunal NSW8, depriving a tenant of their home is a ‘serious and important matter’. The terms ‘repeatedly’, ‘nuisance’, ‘peace’ and ‘privacy’ are not defined in the Residential Tenancies Act. Accordingly, once it is established that a tenant has caused, or permitted, a relatively minor nuisance or disturbance of the peace on three or more occasions the court would have no option other than to terminate the tenancy. And that would be regardless of any positive history of the tenant over a number of years.

17 Such a result would also conflict with the objectives set out in s 3(a) and (d) of the Residential Tenancies Act. Section 3(a) provides that one objective of the Act is ‘to fairly balance the rights and duties of tenants and landlords’, and s 3(d) provides that another objective is to ensure that tenants ‘enjoy appropriate security of tenure’.

18 The absence of any discretion would also remove any ability for a court to consider the psychological, social and legal consequences arising from a tenant's eviction. In relation to analogous ACT legislation, in Commissioner for Social Housing in the ACT & Canham (Residential Tenancies)9, the ACT Civil and Administrative Tribunal said, at [70]:

If section 51 does not involve a discretion, then there is no scope for consideration of the psychological, social and legal consequences arising from evictions from social housing. If there is no discretion, then a family in social

housing may be evicted based on a single incident that involved a serious interference with the quiet enjoyment of a neighbour. That inference would not necessarily involve violence and may involve a one off

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