Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •   Notable Unreported Decision

Uhlmann v Harris

 

[2017] QSC 309

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Uhlmann & Anor v Harris [2017] QSC 309

PARTIES:

PHILLIP PAUL UHLMANN AND REBECCA SUZANNE UHLMANN

(applicants)

v

ARABELLA KATRINA DOUGLAS HARRIS

(respondent)

FILE NO/S:

BS No 11725 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2017

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. the applicant give notice under s 78B(1) of the Judiciary Act 1903 (Cth) to the Attorneys-General for the Commonwealth and the States.
  2. the further hearing of the application for an order for recovery of possession of the land located at 30A Bambery St Fingal in the State of New South Wales is adjourned to a date to be fixed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where a contract of sale of land and a related residential tenancy agreement existed between the applicants and respondent – where the applicants applied for a declaration that the contract is terminated and for an order that the applicants recover possession of the land from the respondent – where the court declared that the applicants had terminated the contract of sale – where section 119 of the Residential Tenancies Act 2010 (NSW) provided that a landlord or former landlord could not commence an action for recovery of possession of residential property in the Supreme Court of New South Wales, the District Court or the Local Court – where the applicants and respondent are residents of different states – whether a court exercising the diversity jurisdiction of the High Court, invested in the court by section 39(2) of the Judiciary Act 1903 (Cth) is able to make an order for recovery of possession of land in New South Wales comprising residential premises subject to a residential tenancy agreement

Constitution (Cth), s 109, s 118

Judiciary Act 1903 (Cth), s 38, s 39, s 78B, s 79

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4

Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 9

Residential Tenancies Act 2010 (NSW)

Service and Execution of Process Act 1992 (Cth)

British South Africa Co v Companhia de Moçambique [1893] AC 602, discussed

Burns v Corbett (2017) 343 ALR 690, cited

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited Couzens v Negri [1981] VR 824, cited

Elddin v Hamed (No 2) [2015] NSWSC 654, cited

Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, cited

Lawrence v Gunner [2015] NSWSC 944, cited

Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, cited

PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, cited

R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, cited

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, cited

Rizeq v Western Australia (2017) 344 ALR 421, cited

Starr-Diamond v Diamond (No 3) [2013] NSWSC 351, cited

Uren v Commonwealth of Australia [2017] FCA 759, cited

COUNSEL:

A Morris QC for the applicants

No appearance for the respondent

SOLICITORS:

Hickey Lawyers for the applicants

No appearance of the respondent

Jackson J

  1. This proceeding arises out of a contract of sale of land and a related residential tenancy agreement.  The application was for a declaration that the contract is terminated and for an order that the applicants recover possession of the land from the respondent.
  2. On 8 December 2017, the application came on for hearing.  The respondent had been served personally with the originating application and affidavits but did not appear.  She sent an email to the lawyers for the applicants on the morning of the hearing from which it may be inferred that she was aware of the date for hearing. 
  3. On that day, I declared that by notice dated 16 October 2017 the applicants terminated the contract of sale dated 19 September 2017 between the applicants as vendors and the respondent as purchaser in respect of the land located at 30A Bambery Street, Fingal, New South Wales. 
  4. Otherwise, I reserved judgment on the orders sought by the application.  These are the reasons for making further orders on the applicants’ claim for recovery of possession.
  5. On 19 September 2017, the applicants agreed to sell the land to the respondent for $2.15 million by a contract in writing. 
  6. Clause 37 of the contract provided that a deposit of $100,000 was payable by instalments as follows:
  1. on execution - $5,000;
  2. on 29 September 2017 - $45,000; and
  3. on 31 January 2018 - $50,000.
  1. Clause 41 of the contract provided for the parties to enter into a residential tenancy agreement in the form of Annexure 1 to the contract.  Clause 41.2 provided that an un-remedied breach of the contract by the purchaser would amount to an un-remedied breach of the residential tenancy agreement and cl 41.3 provided that a valid termination of the contract would amount to a valid termination of the residential tenancy agreement and vice versa.
  2. Annexure 1 was a draft residential tenancy agreement in the standard form of the Real Estate Institute of New South Wales.  It provided for a term ending on 28 February 2018 at a rent of $800 per week payable in advance but starting on 30 November 2017. 
  3. On 26 September 2017, the parties executed the draft residential tenancy agreement with the term commencing from 26 September 2017.
  4. On 29 September 2017 (and thereafter), the respondent failed to pay the deposit instalment of $45,000. 
  5. On 16 October 2017, the applicants terminated the contract for failure to pay the deposit on time. 
  6. At the same time, by virtue of cl 41.3 of the contract, the termination of the contract terminated the residential tenancy agreement, subject to any other legal requirements.
  7. On 17 October 2017, the applicants gave notice to terminate the residential tenancy agreement under the Residential Tenancies Act 2010 (NSW) (“RTANSW”) by personally putting it in the respondent’s letterbox at the property and by emailing it to the respondent’s specified email address for the service of documents. 
  8. The respondent did not vacate the premises.
  9. On 9 November 2017, the applicants started the current proceeding. 

A case in the diversity jurisdiction

  1. At the time of starting the proceeding, the applicants were residents of Queensland and the respondent resided in the property at Fingal Heads, New South Wales.  They continue to be residents of different States.
  2. Accordingly, this application is a matter between residents of different States within the meaning of s 75(iv) of the Constitution and it is a matter in which the High Court has original jurisdiction, known as the “diversity jurisdiction”.
  3. Because of s 38 and s 39(1) of the Judiciary Act 1903 (Cth), the jurisdiction of the High Court in the matter is exclusive of the jurisdiction of this court, except as provided in s 39(2) of the Judiciary Act 1903 (Cth).[1] 
  4. Section 39(2) provides:

“The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters, in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as …”

  1. The exceptions are irrelevant in the present case.  And there is no limit as to locality or subject matter that is relevant to the jurisdiction of this court in the present case. Because s 15(1) of the Service and Execution of Process Act 1992 (Cth) provides that an initiating process issued in a State may be served in another State, this court has jurisdiction by service of the originating process upon the respondent in New South Wales under that section.[2] As a superior court of general jurisdiction, this court has power to make an order for recovery of possession of land under the common law of Australia.
  2. Two points may be recapped before further analysis.  First, this proceeding is a federal matter.  The exclusive jurisdiction of the High Court under the Constitution and the Judiciary Act in the diversity jurisdiction has been conferred on this court (and other courts) by s 39(2) of the Judiciary Act 1903 (Cth).[3]  Second, the discussion so far deals only with the authority to adjudicate, as that expression is used in the relevant cases.  It says nothing about the law to be applied by this court in the exercise of that jurisdiction.
  3. The law to be applied is provided for by s 79(1) of the Judiciary Act 1903 (Cth), that provides:

“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

  1. It is often said that s 79(1) “picks up” the laws of the State exercising federal jurisdiction.  What is meant is that the text of the statutory law of the relevant State is applied, as federal law, as the law to decide the matter.[4]
  2. In this way, when this court exercises federal jurisdiction, it is required to apply the statutory law of this State and the common law of Australia, including relevant private international law principles, and except as otherwise provided by the Constitution or laws of the Commonwealth. 
  3. A relevant provision of the Constitution is s 118 which requires:

“Full faith and credit shall be given throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”

  1. One of the statutory laws of this State is s 9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld). It provides, in part, that this court may exercise jurisdiction as follows:

“The Supreme Court—

  1. may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of… a law of… a State relating to cross-vesting of jurisdiction; and

…”

  1. Section 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) provides that this court (inter alia) has and may exercise original and appellate jurisdiction as follows:

“(3) The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters.”

  1. The term “State matter” is defined in s 3 of the NSW Cross-Vesting Act to mean a matter in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State. Accordingly, this court is possessed of the jurisdiction of the Supreme Court of New South Wales in relation to a matter involving a claim for an order for recovery of possession of land.
  2. But for the cross-vesting legislation, there may have been a question whether this court would exercise jurisdiction to make an order for recovery of possession of land situated in New South Wales.  Whether or not such an order may or should be made was subject to a principle at common law known as the “Moçambique rule”, after British South Africa Co v Companhia de Moçambique.[5] The rule has been discussed by the High Court as though it applies to the Australian States.[6]  One part of the rule is that a court will not exercise jurisdiction in respect of the possession of land outside the jurisdiction.[7]  The modern status of the rule in the Australian Federation is a matter of some doubt.[8] 
  3. But it is unnecessary to consider its operation at all, because the cross-vesting legislation supersedes any remaining operation of the rule.[9]
  4. If this court were to make an order for the recovery of possession of land in New South Wales, either on the footing that the Moçambique rule does not apply to the exercise of this court’s jurisdiction, or in the exercise of the cross-vested jurisdiction of the Supreme Court of New South Wales, the order would not be enforceable in New South Wales under the rules of this court or the statute law of this State.  Enforcement of the judgment could be effected under s 105 of the Service and Execution of Process Act 1992 (Cth), as follows:

"(1)Upon lodgement of a sealed copy of a judgment, or a fax of such a sealed copy, the prothonotary, registrar or other proper officer of the appropriate court in a State other than the place of rendition must register the judgment in the court.

  1. Subject to subsection (4), a registered judgment:
  1. has the same force and effect; and
  1. subject to sections 106 and 108, may give rise to the same proceedings by way of enforcement;

as if the judgment had been given, entered or made by the court in which it is registered…”

  1. However, whichever pathway of the possible sources of power to make an order for recovery of possession of the land is followed, a difficulty remains.  Section 119 of the Residential Tenancies Act 2010 (NSW) (“RTANSW”) provides that:

“A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement.”

  1. Section 119 could be construed to have the general purpose of vesting exclusive jurisdiction in the New South Wales Civil and Administrative Tribunal (“NCAT”) to make an order for recovery of possession of land in New South Wales that constitutes residential premises subject to a residential tenancy agreement.   An alternative view is that it only operates as a defence in a proceeding started in any of the relevant courts if it is raised.[10]  Some exceptions to its operation have been found to exist,[11] but none that is relevant here.
  2. The scheme of the provisions of the RTANSW about an order for recovery of possession of land appears from a number of provisions.  Section 83(2) provides for a landlord to apply to NCAT for a “termination order” (as defined in s 80)  after the termination date specified in the relevant termination notice if vacant possession of the premises is not given as required by the notice.  Section 83(1) provides that if NCAT makes an order terminating a residential tenancy it must make an order for possession specifying the day on which the order takes or took effect.  Section 121 provides that the principal registrar of NCAT may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if satisfied that the order for possession has not been complied with.  Section 120(1) provides that a person must not enter residential premises for the purposes of taking possession unless the person is acting in accordance with a warrant arising out of an order for possession of NCAT or a writ or warrant arising out of a judgment or order of a court, unless the tenant has abandoned or given vacant possession.
  3. Accordingly, s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) would not authorise this court in making an order to recover possession of the land in the present case in the exercise of the cross-vested jurisdiction of the Supreme Court of New South Wales, because the matter would not be one in which the Supreme Court of New South Wales would exercise power, having regard to s 119 of the RTANSW.  If that were the only consideration, the appropriate order might have been to dismiss the present application on the footing that the applicants are required to bring their claim for an order for possession of the land in NCAT.
  4. However, a proceeding by the applicants in NCAT for an order for recovery of possession of the land would still be a matter subject to the exclusive original jurisdiction of the High Court under the diversity jurisdiction, because ss 38 and 39(1) of the Judiciary Act 1903 (Cth) make it so.
  5. Section 39(2) of the Judiciary Act 1903 (Cth) does not operate to invest federal jurisdiction in the matter of recovery of possession of the land upon NCAT, because NCAT is not a court.[12]  Only a court may exercise the judicial power of the Commonwealth under Ch III of the Constitution.[13]  To the extent that the RTANSW confers jurisdiction on NCAT, as a matter of State law, in a case within the diversity jurisdiction, it would be a law of the State of NSW that is inconsistent with a law of the Commonwealth in ss 38 and 39(1) of the Judiciary Act 1903 (Cth) and would be invalid to the extent of the inconsistency under s 109 of the Constitution.[14]
  6. The anomalous result is that according to the text of s 119 of the RTANSW, a landlord resident in another State cannot bring a proceeding against a tenant to recover possession of land subject to a residential tenancy in New South Wales in any of the Supreme Court, the District Court or the Local Court, yet because of the terms of the Judiciary Act 1903 (Cth), NCAT does not have jurisdiction either.  That is to say, on the face of it, the landlord cannot bring a proceeding in any court or tribunal in New South Wales to recover possession.
  7. In my view, this is an untenable construction of s 119 of the RTANSW.  To avoid a manifest absurdity, that section must be construed so that it does not operate where a landlord cannot bring a proceeding in NCAT to recover possession of land subject to a residential tenancy because the proceeding is a matter of exclusive federal jurisdiction.[15]
  8. Once that conclusion is reached, the possible solution to the present case emerges, as follows.  Under the cross-vesting legislation, this court has the original jurisdiction of the Supreme Court of New South Wales.  Second, the Supreme Court of New South Wales has original jurisdiction and power to make an order for the recovery of possession of land under the common law of Australia.  Third, in a case where the proceeding is between residents of different States that power of the Supreme Court of New South Wales is not cut down by s 119 of the RTANSW.  Fourth, the jurisdiction of this court conferred by the cross-vesting legislation is among the laws of this State picked up by s 79 of the Judiciary Act 1903 (Cth) as a law of the State in a matter in this court exercising the federal diversity jurisdiction.
  9. For those reasons, in my view, the applicants might be entitled to an order for recovery of possession.

Section 78B notices must be given

  1. However, a further difficulty remains.  The reasoning set out above was not advanced in support of the application.  As a necessary step, it requires a finding that the jurisdiction conferred on NCAT by the provisions of the RTANSW to make an order for recovery of possession in a matter between residents of different States is invalid under s 109 of the Constitution.
  2. Accordingly, this proceeding involves a matter arising under the Constitution or involving its interpretation, within the meaning of s 78B(1) of the Judiciary Act 1903 (Qld).  Under that section, this court may not proceed unless and until the court is satisfied that the required notices have been to the Attorneys-General of the Commonwealth and the States, and a reasonable time has elapsed.
  3. No such notices have been given.  In those circumstances, it is not permissible for this court to proceed until they have been given and a reasonable time has elapsed.  The only orders that should be made in these circumstances are orders directing the applicants to give the required notices and otherwise adjourning the proceeding to a date to be fixed.

Footnotes

[1] PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, 21 [53].

[2]  Contrast the position under the Service and Execution of Process Act 1901(Cth) as explained in David Syme & Co Ltd v Grey (1992) 115 ALR 247.

[3] Burns v Corbett (2017) 343 ALR 690, 698 [28].

[4] Rizeq v Western Australia (2017) 344 ALR 421, 440 [81].

[5]   [1893] AC 602.

[6] Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, 497, 501-502 and 510-511.

[7] Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, 42; cf Couzens v Negri [1981] VR 824.

[8] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 520 [76].  As well, the rule has been repealed by statute in NSW, for example: Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), s 3.

[9] Starr-Diamond v Diamond (No 3) [2013] NSWSC 351, [6].

[10] Lawrence v Gunner [2015] NSWSC 944, [517].

[11] Lawrence v Gunner [2015] NSWSC 944; Elddin v Hamed (No 2) [2015] NSWSC 654; cf Uren v               Commonwealth of Australia [2017] FCA 759.

[12] Burns v Corbett (2017) 343 ALR 690.

[13] R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

[14] Burns v Corbett (2017) 343 ALR 690, 709-710 [78]-[79] and 713 [95]-[97].

[15] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304-305, 311, 321 and 338-339.

Close

Editorial Notes

  • Published Case Name:

    Uhlmann & Anor v Harris

  • Shortened Case Name:

    Uhlmann v Harris

  • MNC:

    [2017] QSC 309

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    15 Dec 2017

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 309 15 Dec 2017 Application adjourned pending the applicant giving notice under s 78B(1) of the Judiciary Act 1903 (Cth) to the Attorneys-General for the Commonwealth and the States: Jackson J.
Primary Judgment [2018] QSC 28 [2018] 3 Qd R 392 26 Feb 2018 Application for possession of land situated in New South Wales dismissed: Jackson J.

Appeal Status

No Status