Cavanagh v Chief Executive Officer (Housing) [2018] NTSC 52

Between: Jasmine Cavanagh (Applicant) and Chief Executive Officer (Housing) (Respondent)

Judge: Southwood J

Judgment:

The main question in this case was whether prior to 21 September 2015 there was a tenant/landlord relationship between the applicant and any person, and if so, who was the person and what was the basis for this relationship.  

Justice Southwood found that although there has been a substitution in landlords from time to time, at all material times, the 2010 tenancy agreement persisted by operation of the Residential Tenancies Act 1999 (NT) (RTA) [7]. 

Justice Southwood found that there was no conflict between the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA) and the operation of the RTA in the managing of tenancy arrangements in the community [56]. If the Santa Teresa Land Trust had wanted to evict a person from the houses run by the community, this would occur through provisions of the RTA, with the Santa Teresa Land Trust as landlord and the person living in the house as tenant.

In 2007, when the Northern Territory National Emergency Response Act 2007 (Cth) (NTERA) was implemented, overriding the ALRA, there remained a similar arrangement, with the Commonwealth Government becoming landlord, and appointing the respondent as its agent and the landlord, the RTA operating to manage the tenancy arrangements [58]. 

Justice Southwood also found that the Northern Territory Civil and Administrative Tribunal (the Tribunal) had implied jurisdiction under s122 of the RTA to hear an estoppel defence [69]. Although, Justice Southwood pointed out this claim needed refinement as it was not clear what was the the previous statement which the respondant was 'estopped'/prevented from going back on [5]. 

Subsequent Developments:

The applicant's disputed factual and legal issues were decided by the Tribunal in Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7. 

Two applicants from this case then appealed the Tribunal's decision to the Supreme Court of the Northern Territory (the Supreme Court), in Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59. This case established a precedent for the meaning of 'habitable' housing under the RTA. The Supreme Court also found that the Tribunal had failed to consider whether the 2010 tenancy agreement was void for unconscionable conduct. This decision was then appealed the to the Full Court of Supreme Court, which was heard on 24 February 2021 but the decision is yet to be published.

The outcomes from this case empowered other communities, such as Laramba, to also bring actions about their housing conditions, which added the issue of unsafe water (Grata Fund, 2019).

Detailed Information

Background:

In 1977, control of Santa Teresa (Ltyentye Apurte) moved from a mission, run by the Catholic Church, into the hands of the Aboriginal community under the Aboriginal Land Rights (Northern Territory) Act 1976 (The ALRA) and the community was renamed Ltyentye Apurte (Find&Connect).

The implementation of the ALRA resulted in the Santa Teresa Land Trust being granted title to the land on behalf of the community. As the community now held the title to the land, they had the responsibility of managing their houses and using the land as it pleased. However, on 18 August 2007, the Northern Territory National Emergency Response Act 2007 (Cth) commenced which allowed the Commonwealth Government to be compulsorily granted five year leases over 64 Northern Territory Aboriginal communities including the houses in Santa Teresa. The community continued to own the land but were no longer in charge of managing their own housing [10] -[16].

Legislative History: 

In February 2015, 70 public housing tenants from Santa Teresa, including
the applicant, filed proceedings against the respondent in the Tribunal. In each
proceeding, the respective applicant seeks emergency repair costs under s 63
of the RTA as well as compensation under s 122 of the Act for alleged delays in
undertaking both emergency and non-emergency repairs [2]. Before deciding the legal and factual matters of this application, the President of the Tribunal referred the matter to the Supreme Court of the Northern Territory (the Supreme Court), and requested the Supreme Court hear the case due to the complexity and novelty of the case [4].

Judgment:

The Supreme Court decided that as this was a residential tenancy matter it should be decided by the Tribunal rather than the Supreme Court [5]. However, Justice Southwood did answer five preliminary questions. 

1. Whether, immediately prior to 21 September 2015, there subsisted
between the applicant as tenant and any other person, as landlord, a tenancy within the meaning of the Residential
Tenancies Act, and if so:
a. with whom; and
b. on what basis did it arise?

Justice Southwood answered that there was a tenancy arrangement. He found that although there has been a substitution in landlords from time
to time, at all material times, the 2010 tenancy agreement
persisted by operation of the RTA [7]. 

Justice Southwood approached this question by explaining that prior to 2007, the community, who were given the title of land and the rights to manage the land under the ALRA, would still have controlled the management of housing through the provisions of the RTA [56]. If the Santa Teresa Land Trust, who was the title holder of the land, wished to evict someone from a house in the community, the Trust being the landlord would evict the tenant through complying with provisions in the RTA. 

Justice Southwood reasoned that when the NTNERA was implemented, overriding the ALRA, the Commonwealth government became responsible for managing these tenancies, again which would be through complying with the provisions of RTA.

When the Commonwealth government then appointed the respondent, the Chief Executive Officer (Housing) as its agent to manage these leases under the National Partnership on Remote Indigenous Housing, the respondent became the landlord of the 2010 tenancy agreement, which would need to comply with the RTA [58].  

2. Whether (and, if so, how) any tenancy subsisting immediately
prior to 21 September 2015 continued after 21 September 2015 as
a tenancy between the applicant as tenant and the respondent as
landlord within the meaning of the Residential Tenancies Act?

Same as answer to question 1 [7].

3. Whether an implied tenancy arises?

This was unnecessary to answer due the answers in question 1 and 2.

4. Whether the Tribunal has equitable jurisdiction?

The Tribunal has jurisdiction to hear the estoppel pleaded by the
applicant in the defence to a counterclaim requesting the applicant pay unpaid rent. The jurisdiction is implied in the grant of power to the
Tribunal under s 122 of the RTA [4].

5. Whether the legislation precludes the equitable estoppel raised by
the applicant as a defence to the respondent's counter-claim?

 This was unnecessary to decide due to the answer to question 4.

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References