Karmas v NSW Land and Housing Corp [1999] NSWSC 1311 (7 December 1999)

Last Updated: 19 April 2001

NEW SOUTH WALES SUPREME COURT

CITATION: Karmas v NSW Land & Housing Corp [1999] NSWSC 1311

CURRENT JURISDICTION: Administrative Law Division

FILE NUMBER(S): 030081/98

HEARING DATE{S): 03/12/99-07/12/99

JUDGMENT DATE: 07/12/1999

PARTIES:

Timothy Karmas in person and as Representative of the Estates Eleni Karmas & Anors

New South Wales Land and Housing Corporation & Anor

JUDGMENT OF: Dowd J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr J.M. Atkin for the Defendant

SOLICITORS:

CATCHWORDS:

Appeal from Residential Tenancies Tribunal

No tenancy created by payment of rent

Valid termination

No damage

ACTS CITED:

Residential Tenancies Tribunal Act 1987

Wills Probate and Administrative Act 1898

DECISION:

Affirm decision of the Tribunal in relation to the order terminating the tenancy.

Dismiss the amended summons filed on behalf of the plaintiffs

Plaintiff to pay costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

(COMMON LAW DIVISION)

DOWD J

7 DECEMBER 1999

No. 030081/98 - TIMOTHY KARMAS -v- NSW LAND & HOUSING CORPORATION

1 This is an appeal under s.107 of the Residential Tenancies Act 1987 ("the Act") from a decision of the Residential Tenancies Tribunal ("the Tribunal") in respect of the tenancy from the New South Wales Land & Housing Corporation ("the Corporation") to the late Eleni Karmas in respect of premises at 10 Anthony Street, Padstow.

2 Section 107 of the Act provides that any person, a party to the proceedings who is dissatisfied with the decision on a matter of law may appeal to this Court against that decision. The powers of the Court are to affirm decisions or to make such order as in its opinion should have been made by the Tribunal, or to remit its decision to the Tribunal to order a re-hearing of the proceedings.

3 This application has been adjourned on several occasions, and was adjourned to Friday 3 December 1999 on the order of Studdert J. He being unable to hear the matter it commenced before me and continued yesterday, with some interruption, and concluded this morning, the adjournment to this morning being for the purpose of allowing the attendance of a witness who had sworn an affidavit.

4 The original five plaintiffs include Mr Timothy Karmas, who appears in his own personal capacity, and as administrator of the estate of the late Eleni Karmas who passed away on 19 July 1997 and also as administrator of the estate of the late Nicholas Karmas, one of the five plaintiffs who passed away on 17 December 1998. Administration was granted in respect of both estates on 12 April 1998.

5 On 10 December 1997 notice to quit was served on the occupants of the premises at 10 Anthony Street, Padstow, they being the four remaining plaintiffs and on the late Nicholas Karmas.

6 Application was made to the Tribunal on 13 February 1998, and at a hearing on 25 February 1998 an order was made directing that each of the parties be advised of the need to notify the Department of Housing ("the Department") of the succession of the late Eleni Karmas. On 26 February 1998, a letter was posted addressed to the late Mr Nicholas Karmas and to the occupants of the premises. That postage has been proved by the affidavit of Mrs Yvonne Powell, on behalf of the Tribunal and her oral evidence today, which evidence I accept. Although the question of service on Mr Nicholas Karmas was not raised as an issue in these proceedings, I consider since Mr Karmas appears on behalf of his brother George Karmas, who is present in Court, he also appears on behalf of the other plaintiffs.

7 On 1 May 1998 there was an application on behalf of the plaintiffs to vacate the hearing for at least two weeks to obtain legal advice. That legal advice was eventually obtained although there was obviously an inadequate period for briefing. Nevertheless the hearing took place before the Tribunal after a further application for adjournment was refused.

8 At the hearing an order for possession was made by the Member. The plaintiffs then appealed to this Court in August of 1998. Expedition was ordered on 3 November 1998 and there were then various callovers and the adjournments to which I have already referred

9 There have been exhibited before me a considerable number of exhibits, and written and oral submissions have been made during the course of this hearing. I have allowed a degree of latitude in the admission of documents, as indeed has Mr Atken on behalf of the Department, because of the lack of representation at this hearing on the part of the remaining Karmas family.

10 The plaintiffs originally proceeded against the Residential Tenancies Tribunal by way of summons and subsequently, at a period when they were represented by solicitors, an amended summons was filed on 9 September 1998 seeking a number of orders against the first and second defendants. The second defendant has filed a submitting appearance.

11 The orders sought were that the decision of the Tribunal be set aside, and a declaration that all five plaintiffs were tenants at the premises on 7 July 1998 or in the alternative at 1 May 1997, or in the further alternative at 4 December 1997. Further it sought a declaration that on those dates a residential tenancy agreement between the plaintiffs and the corporation pursuant to 3 of the Act was in existence, and further that the notice of termination dated 4 December 1997 was invalid. A number of further declarations were sought which I will deal with in due course.

12 As at the date of death of the late Mrs Karmas rent was paid to the corporation on a rebated basis, whereby some considerable reduction of rent was allowed on the basis that Mrs Eleni Karmas and Mr Timothy Karmas were the sole occupants. Rent is calculated on the basis of the assessable income or the actual income of the persons who then resided at the premises. The late Mr Nicholas Karmas had been the tenant but the tenancy had been transferred to Mrs Karmas on their separation.

13 Evidence was given before the Tribunal at the hearing of 7 July that it was the policy of the Corporation to allow a widow or an elderly person remaining to occupy a house notwithstanding that the house was greater than the requirements of that person. That policy does not subsist for people who may apply to succeed to the entitlement of the deceased or survivor of them. The four remaining plaintiffs are four of the children of the late Eleni Karmas and the late Nicholas Karmas.

14 Section 35 of the Act provides that a person occupying residential premises may on the death of the tenant under a residential tenancy agreement to which the premises are subject, or if the tenant no longer occupies the premises, may apply to the Tribunal to be recognised as a tenant under the agreement or be joined as a party to any proceedings before the Tribunal relating to the premises, or both. An application by a person to be recognised as a tenant may be made at the same time as any other application or during proceedings before the Tribunal, or independently of any such other application in that proceedings.

15 The Tribunal is empowered to order that a person be recognised as a tenant and the person is deemed to be a tenant under the agreement. The Tribunal has other powers in relation to such an application. Section 132(2) of the Act however does not apply to premises of which the corporation is the landlord.

16 The corporation however has a policy which it implements having the force of a departmental policy in relation to the succession of persons entitled to make application to be recognised as a tenant.

17 In the reasons for decision, the Member Mr Moore, found that as the late Mrs Eleni Karmas was deceased and no longer able to occupy the premises, the occupant of the premises namely Mr Timothy Karmas, was declined succession to the premises at 10 Anthony Street, Padstow, as he does not qualify for succession of tenancy under the landlord's policy.

18 During the course of the hearing it is not clearly indicated, as it appeared the member did not appreciate at the beginning of the hearing, that Mr Nicholas Karmas was the widower of the deceased. However, in the course of the hearing it was clear that the solicitor who appeared in the proceedings was representing the interests of all parties, and there are various references to Mr Nicholas Karmas during the course of the hearing, in particular that he was unwell and unable to appear.

19 I am satisfied that no question of lack of jurisdiction arises since the finding of fact made by the Tribunal is that notice was brought to the attention of all of the parties, and even though service was effected on the Public Trustee it was nevertheless also brought to the attention of the occupants of premises 10 Anthony Street, Padstow and the evidence is that Mr Nicholas Karmas at that time was in fact a resident of those premises and a letter was also directed to him.

20 I am satisfied that notice to terminate the tenancy was properly served, and I can see no error of law on the part of the Tribunal. I can also see that notice of the hearing was brought to the attention of the late Mr Nicholas Karmas and all of the other members of the family, and although Mr Nicholas Karmas was not formally joined, in substance he was treated as being represented by Mr Arnold who appeared in the hearing on behalf of the persons claiming to be entitled to succession of the tenancy.

21 Under the Act, and as a matter of law, even though it may be a tenancy from week to week or for other period a tenancy is not terminated by the death of a tenant, but survives for the estate of the tenant and in this case on an intestacy, there being no other assets in the estate, the survivor of the late Mrs Karmas was her then widower, Mr Nicholas Karmas, who was entitled at the time of her death but who has subsequently passed away.

22 The Act by s.93 refers to proceedings before the Tribunal and provides that they are to be held in open Court, and that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, and shall act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms.

23 I am satisfied that no issue arises as to the jurisdiction of the Tribunal and that the hearing before the Tribunal took into account the rights of the interests of the parties that were asserted, and that those appearing on behalf of the late Nicholas Karmas did not assert any right on his behalf at the hearing, as indeed it was clear from the records that he was not treated by either party as a resident of the premises at the time of Mrs Eleni Karmas's death.

24 In any event the Tribunal is not bound by the policy of the corporation which refers to a person resident and although there has been some evidence before me to suggest that he was resident on a van which sometimes parked in the premises he does not appear to me to come within the corporation's policy. In any event the Act does not apply to him in terms of an entitlement to assert any right as survivor under the intestate estate of the late Mrs Eleni Karmas and that even if he was so entitled, that proper notice was effected on him and on the other parties and that the tenancy was properly terminated.

25 In relation to the orders sought by the plaintiffs I reject the oral submission made by Mr Timothy Karmas that the application was invalid as it was addressed to the late Eleni Karmas in person rather than the estate. The form refers to the nature of the tenancy itself and who was the tenant and it is a matter that in substance was treated in the hearing as the though estate of the late Eleni Karmas was party to the proceedings as well as the other plaintiffs in their own right.

26 I reject the contention, as being irrelevant, that if the late Mrs Eleni Karmas had known what the documents had meant she would have made other arrangements to include the children. Clearly there was an arrangement made to obtain a rebate of the rent on the basis of who was occupying the premises and there is no duty on the corporation to advise the late Mrs Karmas of any arrangements that she might make.

27 There is no evidence before the Court nor was there before the Tribunal, to say that any new lease came into effect by the acceptance of rent, and there is no basis for the contention made before me that the Tribunal should have suspended its hearing whilst the corporation was reviewing the various applications made to it.

28 In relation to the written submissions lodged by Mr Frank Donohue, counsel for the plaintiffs, lodged on 1 April 1999, upon which Mr Timothy Karmas relied, I reject the submission that the estate was not properly served with notice of the proceedings as I have already found that service was properly effected and brought substantive notice of the matter to the parties, both the notice of termination and of the notice of the hearing.

29 There is no evidence before the tribunal that Mr Nicholas Karmas was in occupation of the premises and therefore entitled to succession of tenancy, even if the landlord's policy had been the law.

30 I am satisfied in any event that service of notice of the proceedings on the Public Trustee did not prevent the parties having a proper opportunity to present a case on behalf of the estate of the late Mrs Karmas. Mr Nolan, who was the delegate of the Tribunal on 1 May 1998, had asked those presently in occupation if they were representing the estate. That evidence was relied upon by the Member in the decision of 7 July 1997. I do not find any basis of denial of natural justice as contended, or any breach of the obligations under the Act.

31 In relation to the submissions in relation to qualification for succession I find no error of law on the part of the Tribunal on the evidence before it, or in any event which would have shown an entitlement on the part of the late Mr Nicholas Karmas to succeed to the tenancy. He was not a tenant, he was the successor in law under the Wills Probate and Administration Act of the premises as a matter of general law, but not after the operation of s.35 of the Act. He was not entitled in any event under the Department's policy, that is, he did not have any rights to the tenancy as being in occupation.

32 I find that the written residential tenancy agreement dated 17 August 1989 with the late Mrs Karmas made her the sole tenant in relation to premises 10 Anthony Street, Padstow and that on her death on 19 July 1997, intestate, that Mr Timothy Karmas was the only other occupant of the premises.

33 I find that a new lease did not come into existence after the death of Mrs Karmas and I can see no error on the part of the Tribunal in similarly making that finding. I consider that the tenancy was properly brought to an end, and there does not appear to be any error on the face of the transcript or the reasons for judgment on the part of the Member.

34 Therefore I, in terms of the amended summons, decline to make an order that the decision of the Residential Tenancy Tribunal be set aside. There is no evidence that the plaintiffs were tenants of the premises at the dates specified. I find no basis for any declaration that a residential tenancy agreement came into existence between the plaintiffs and the first defendant.

35 I find no basis for a declaration that the notice of termination was invalid, in particular because service was effected not only on the Public Trustee but on any person having any claim under the late Eleni Karmas's estate, or any person entitled. No basis has been shown that the order made on 25 February 1998 for the parties to be legally represented was invalid, and no basis has been shown for a declaration that the order relating on that date to the identification of the heirs, executors, administrators, or assigns was invalid.

36 I find no basis for a declaration that the discharge of that order made on 19 March 1998 was invalid. I find no evidence or basis in law for a declaration that leave for both parties to be represented was invalid.

37 In relation to the order for the Tribunal to provide written reasons, that matter has been the subject of a judgment of Dunford J on 12 February 1999. Similarly with the other orders against the second defendant in relation to the provision of reasons no basis has been shown for a declaration that the refusal of the second defendant to grant the adjournment application on 7 July 1998 was invalid.

38 I can see no basis for an order that the matter be remitted to the Tribunal for further consideration, and no basis has been shown for a declaration on the part of the plaintiffs for an entitlement to damages.

39 In terms of the powers of this Court under the Act I affirm the decision of the Tribunal in relation to the order terminating the premises. I therefore dismiss the amended summons filed 9 September 1998 on behalf of the plaintiffs.

40 ATKEN: I seek an order for costs.

41 PLAINTIFF: I put notice to the Court that I am going to appeal this.

42 HIS HONOUR: That's a matter for you.

43 PLAINTIFF: With regards to the costs, we are not in any position to meet them, which would actually just cause a lot more further health problems. We have no alternative accommodation.

44 HIS HONOUR: How many people are now residing in the premises?

45 PLAINTIFF: Three.

46 HIS HONOUR: Who are they?

47 PLAINTIFF: Myself, George my brother and David.

48 HIS HONOUR: Are they in employment?

49 PLAINTIFF: No.

50 HIS HONOUR: Are they in receipt of any other income?

51 PLAINTIFF: Yes, government allowances.

52 HIS HONOUR: What sort of allowances?

53 PLAINTIFF: Newstart and some incapacity allowance.

54 HIS HONOUR: Newstart is unemployment?

55 PLAINTIFF: That's correct.

56 HIS HONOUR: Who is that?

57 PLAINTIFF: Myself, I am on Newstart myself. George is on Newstart - David is on a minimal work cover which is no more than $200 a week or less.

58 HIS HONOUR: He is on compensation for a work injury?

59 PLAINTIFF: Yes but there is it's been cut off at times and it's about to lapse anyway.

60 HIS HONOUR: What's the situation concerning rent?

61 PLAINTIFF: We are not in a position to find alternative accommodation.

62 HIS HONOUR: I think you have told the Court there is rent outstanding in respect of the existing premises?

63 PLAINTIFF: Just in the recent month or so due to extensive medications and traumas, makes it difficult to do anything.

64 HIS HONOUR: What have you to say about whether a costs order should be made?

65 PLAINTIFF: Well, I have had no control over my lawyers in the past I have had, and the way they submitted things and the rest of them, they were found wanting in many areas of the procedures and directions that were taken.

66 They were the ones that motivated to me to believe the case has merit I believe it does have merit and unfortunately because of my medical conditions and legal expertise I was not able to raise adequately. That's my apology, but what was the question?

67 HIS HONOUR: Anything further to say as to why you should not pay the costs of the first defendant?

68 PLAINTIFF: Yes, to pay costs to the defendant, we already started to pay costs to the defendant, it's only going to put us in --

69 HIS HONOUR: They are seeking an order for costs?

70 PLAINTIFF: It will cause great hardship and depravity(sic) and physically and mentally and it will render us unable to get out of the ditch that we are in at the moment. We have problems enough as it is. We are just not able meet them.

71 HIS HONOUR: Anything further?

72 PLAINTIFF: Yes, I have heard your judgment, I'm not saying I am happy with it, I am actually disappointed, it's your discretion. There is a warrant that would be due to be executed on us possibly tomorrow. The house is, the house is furnished and everything and we haven't got another place to go to.

73 HIS HONOUR: I don't think the department will oppose an application for a stay of 21 days.

74 ATKEN: I don't have instructions. I don't want to be heard.

75 HIS HONOUR: I would propose if you are going to appeal that any warrant issued be stayed for a further 21 days to allow - we have a Christmas problem.

76 ATKEN: Yes. The order would be suspended during the period of break normally up to about the second or third week in January under the rules. I really don't, I don't want to be heard on that.

77 HIS HONOUR: I order for a period of 21 days to enable the lodgement of any appeal against the decision

78 I further order that any warrant for possession be stayed for that period. That period is to exclude the normal Court holidays. That is to say the period for which time does not run over Christmas is in effect added on to the 21 days, so you have 21 days plus that period of suspension of some two weeks when time doesn't run, so it gives you effectively about five weeks. You will have to see the Registry for that period. Do you understand that you get 21 days, but the 21 days isn't counted during that holiday period, so it stops and starts again after the period of the Court holiday?

79 PLAINTIFF: Yes, I understand that.

80 HIS HONOUR: Mr Atken will tell you that date. Is there anything further to say in the matter of costs?

81 PLAINTIFF: Yes, we can't meet them.

82 HIS HONOUR: I understand that.

83 PLAINTIFF: With regards to costs can't meet them and if I have a lawyer representing me the decision might be, would have been reversed, but these people were forced a mental case to run an important complex case. We can't meet the costs. We were thrown out on a deep end by our solicitors in the past and if costs were to be awarded to pay costs we can't meet them. We are already in financial hardship.

84 Already each one of us have medical expenses, where are we going to get it from, and the worst matters of concern that were legitimately raised regardless of your findings we were compelled and actually pushed into it by the defendants.

85 HIS HONOUR: I think you, the applicant - sorry, perhaps the date?

86 ATKEN: Part 2 rule 5 provides that the period is suspended from the beginning of 25 December until the end of 9 January. 9 January falls on a Sunday. Can I suggest that perhaps it go to 14 January which is the following Friday.

87 What I have in mind is a couple of things. Firstly realistically a lot of things close down over Christmas. The fact it ends on a Sunday realistically means not much will happen at least until the commencement of that following week.

88 If your Honour is minded to take cognisance of that rule it might be appropriate to give the plaintiffs until the end of that week, that's 14 January which is a Friday.

89 HIS HONOUR: I will vary the earlier order I made to take into account the Court holiday, the period for which time does not run under the Court rules being from 25 December until 9 January 2000. The warrant is not to issue until after the Sunday, which is 16 January, to entitle the plaintiffs to lodge any appeal.

90 Notwithstanding the very clear hardship of the plaintiffs, the plaintiffs have been wholly unsuccessful in their application. Whether the first defendant endeavours to enforce the order for costs is a matter for the corporation, and application may be then made by the plaintiffs in respect of that order. However, it seems to me proper that an order be made that the plaintiffs pay the corporations costs of and incidental to these proceedings. There is no order made in respect of the Tribunal.

LAST UPDATED: 11/04/2001