NSW Supreme Court dismisses racial discrimination claim in eviction case

The NSW Supreme Court has dismissed a racial discrimination claim in an eviction dispute because the plaintiff failed to follow the required procedure under the appropriate regulatory scheme.

In Senthilkumaran v Gosan Pty Ltd t/as Century 21 Classic Real Estate (No 2) [2023] NSWSC 442, plaintiff Ragul Senthilkumaran claimed to have been a victim of racial discrimination, which had wrongly resulted in service of an eviction notice requiring him to vacate the property at which he lives. The plaintiff claimed that the property is regulated by the Residential Tenancies Act 2010.

Gosan Pty. Ltd. is the managing agent for the owner of the property. It denied such discrimination or fraud and claimed that the premises are a boarding house regulated by the Boarding Houses Act 2012. Gosan explained that the plaintiff was granted the right to live at the boarding house under a written "occupancy agreement," but he repeatedly breached the agreement and the boarding house rules. Gosan warned the plaintiff that his conduct might result in his eviction, and it eventually issued a termination notice to the plaintiff.

The plaintiff asserted that the Residential Tenancies Act applied and that he had brought a cross-claim before the NSW Civil and Administrative Tribunal (NCAT) to pursue that matter. There is also an issue regarding whether the Boarding Houses Act applies in those proceedings. The plaintiff argued that it does not because no caretaker lived at the premises.

The parties' positions

The plaintiff's claim stemmed from Gosan's alleged failure to investigate the few complaints from others residing at the premises about the plaintiff's conduct. These complaints eventually led to the plaintiff's eviction. The plaintiff commenced an action with the court because he said the NCAT had no judges and limited powers. The plaintiff said his desire was only to ensure that "these kinds of people don't do such things to people like me."

Gosan argued that they did not discriminate against Senthilkumaran and that the case should be dismissed. They claimed that the premises were a registered boarding house and that they properly gave Senthilkumaran an eviction notice in accordance with the occupation agreement. Gosan stated that they had to act due to complaints from other residents about Senthilkumaran and their obligation to ensure safety under the occupancy agreement.

Furthermore, Gosan withdrew their NCAT proceedings as they were advised that a termination order could not be made for a boarding house, and they are defending the proceedings brought by Senthilkumaran. They argued that the plaintiff's claim, in this case, is frivolous and an abuse of process and should not be considered.

Regulatory schemes

The NSW Supreme Court explained that the Anti-Discrimination Act prohibits racial discrimination, including evicting someone based on race. The Anti-Discrimination Board deals with complaints, and complaints about eviction on the grounds of race can be referred to NCAT after investigation and conciliation. NCAT has the power to dismiss a complaint, make interim orders, or make final orders requiring a respondent to perform any reasonable act. Accordingly, if the eviction notice was issued based on racial discrimination, NCAT is empowered to restrain it.

The Boarding Houses Act regulates both "general" boarding houses and certain "assisted" boarding houses. The act regulates occupancy agreements and "occupancy principles" for boarding houses. The court further explained that an occupancy agreement is a written or unwritten agreement between a boarding house proprietor or their representative and a resident or their authorised representative, granting the resident the right to occupy one or more rooms in the boarding house for a fee. However, a "rental agreement" between the proprietor and the resident is not considered an occupancy agreement under this definition.

The court said that the Residential Tenancies Act regulates a tenancy agreement that "grants to another person for value a right of occupation of residential premises for the purpose of use as a residence." Based on the evidence, the court found that it was an occupancy agreement under the Boarding Houses Act, which the plaintiff entered with Gosan.

The court further said that NCAT has the authority to handle cases related to the Boarding Houses Act, which includes disputes between residents and proprietors of a boarding house, such as eviction disputes. The occupancy principles provide that residents can only be evicted with reasonable written notice. When determining what constitutes reasonable notice, the proprietor may consider the safety of other residents, the proprietor, and the boarding house manager.

The court found that the Anti-Discrimination Act states that NCAT should handle disputes related to racial discrimination only after earlier investigation and consultation processes have been attempted. According to the court, these processes involve filing a complaint with the Anti-Discrimination Board, which Senthilkumaran did not do.

The court decided that it could not hear Senthilkumaran's claim of racial discrimination because he did not follow the required processes under the Anti-Discrimination Act. The court further held that it would be inappropriate for the court to bypass these procedures. Additionally, Senthilkumaran did not provide enough evidence to support his claims and did not address any of the statutory schemes. The court said he failed to establish that the Residential Tenancies Act applied to him and that he had been a victim of the alleged racial discrimination. Accordingly, the court dismissed the proceedings.