Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tattersall v NSW Land and Housing Corporation [2020] NSWCATAP 220 Hearing dates: 15 October 2020 Date of orders: 23 October 2020 Decision date: 23 October 2020 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President T Simon, Principal Member Decision: (1) The appeal is allowed and the orders made 25 June 2020 are set aside. (2) The proceedings are remitted to the Tribunal for rehearing by a differently constituted Tribunal. (3) The following directions are made in the remitted proceedings: (a) Within 14 days from the date of these orders the applicant (NSW Land and Housing Corporation) is to file and serve any further evidence in support of its application. (b) Within 28 days from the date of these orders the respondent (Tattersall) is to file and serve any evidence in reply. (c) Evidence from witnesses must be in the form of a signed written statement or statutory declaration. (d) All evidence must be provided to the Tribunal in hard copy (paper form) with photographs printed in colour. (e) The parties may not rely on evidence served after the date of these orders without leave of the Tribunal. (f) The proceedings are to be listed for hearing on a date fixed by the Registrar, such date to be not later than 42 days after the date of these orders. Catchwords: LAND LAW – termination of residential tenancy agreement – failure to consider relevant evidence – miscarriage of discretion. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Cases Cited: House v King [1936] HCA 40; (1936) 55 CLR 499 Texts Cited: Nil Category: Principal judgment Parties: Nathan Tattersall (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Solicitors: Appellant (Self Represented) R Fester, Solicitor (Respondent) File Number(s): AP 20/31119 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of NSW Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 June 2020 Before: A Halstead, General Member File Number(s): SH 20/17163 REASONS FOR DECISION 1. On 25 June 2020 the Tribunal made an order terminating a residential tenancy agreement (Agreement), in which Mr Tattersall was the tenant and NSW Land and Housing Corporation was the landlord. These were proceedings SH 20/17163. 2. The proceedings came before the Tribunal in consequence of orders made in earlier proceedings between the parties being application SH 19/44573. In those proceedings, on 24 October 2019, the Tribunal made various orders against the tenant including the following: Order 1. The Tenant must comply with the terms of the Residential Tenancy Agreement by keeping the residential premises in a reasonable state of cleanliness both inside and out by 18 November 2019. Order 1a. The Tenant must remove rubbish and items from the common area by 18 November 2019. … Order 6. Both parties are given leave to have this matter relisted before the Tribunal if there are difficulties in complying with these orders. 1. Application SH 20/17163 was the proceedings number given to the application made by the landlord in consequent of Order 6 made on 24 October 2019. This application was made because the landlord asserted the tenant had failed to comply with the earlier orders. 2. Application SH 20/17163 was heard by the Tribunal on 25 June 2020. Both parties appeared by telephone. 3. The landlord provided a bundle of documents in support of its application for termination. These included photographic evidence of the state of the premises being photographs variously taken on 18 November 2019, 29 January 2020, 19 June 2020 and 24 June 2020. In addition, the landlord's documents included the Agreement and a Notice of Termination dated 12 August 2019 (Notice). 4. The Notice asserted breaches of the following clauses: 1. clause 13.4 of the Agreement which relates to not intentionally or negligently causing or permitting any damage to the residential premises; and 2. clause 14.1 of the Agreement which relates to the tenant being obliged to keep the residential premises reasonably clean). The Notice of Termination included particulars of the breach. 1. Following the conclusion of the hearing on 25 June 2020 the Tribunal made an order terminating the Agreement and requiring the appellant to deliver up possession (decision). The order for possession was suspended until 17 July 2020 and the Tribunal ordered the tenant to pay a daily occupation fee. The Tribunal provided written reasons for the decision (Reasons). 2. The tenant has appealed the decision. Notice of Appeal 1. The tenant filed a Notice of Appeal dated 9 July 2020. The appeal was received by Service NSW on 9 July 2020. Consequently the appeal was filed in time. 2. The grounds of appeal essentially asserted the tenant was not given a fair hearing. He said his house "is always clean" and that the photographs of some of the material said to constitute rubbish in and around the residential premises were not his. 3. The proceedings came before the Appeal Panel for directions and call-over on various occasions, being 22 July 2020 (when the order for possession was suspended) and 28 July 2020 (when directions were made for the parties to file and serve evidence and submissions in respect of the appeal). 4. The appeal was initially listed for hearing on 29 September 2020. The hearing did not proceed on that day because the appellant applied for and was granted an adjournment. In part, this adjournment was granted because the appellant was seeking legal representation through Legal Aid. At this time the appellant had not complied with the directions of the Appeal Panel for the filing and service of any evidence, nor had the respondent filed and served a Reply to Appeal or any evidence and submissions in support of its position. 5. Proceedings were adjourned for hearing on 15 October 2020. Directions were made for each of the parties to file and serve relevant material. Hearing on 15 October 2020 1. On 15 October 2020, the appellant appeared by telephone, the Appeal Panel having been informed he was no longer legally represented. The respondent was represented by Mr Fester, Solicitor, who also appeared by telephone. 2. Since the proceedings were adjourned on 29 September 2020, the respondent had filed a Reply to Appeal together with documents in support of its position, being copies of the evidence provided to the Tribunal at first instance. However, the appellant had not filed any documents in support of his position, nor any evidence from the proceedings at first instance. 3. Neither party filed a transcript of the proceedings at first instance. 4. It became apparent to the Appeal Panel that the appellant did not have access to the documents which had been filed by the respondent, those documents having been emailed on 14 October 2020. Consequently, the proceedings were adjourned for a short time to allow for the appellant to obtain access this email. 5. When the hearing of the appeal resumed, the Appeal Panel confirmed with the appellant and the respondent what documents had been provided to the Tribunal for the purpose of the original hearing on 25 June 2020. In addition, the Appeal Panel discussed with the appellant all the photographic material which had been provided by the respondent to the Tribunal at first instance. This process involved the appellant identifying photographs which depicted his goods which had been left in and around the premises and the goods he asserted belonged to other people. In this regard it is to be noted that the residential premises share common area with other residential premises for which the respondent is responsible. 6. After this process of identification of relevant documents and photographic material was completed, the parties were provided with an opportunity to make submissions. 7. Relevant to a determination of this appeal was the appellant's submission that the photographs in the respondents bundle were not current. In this regards the appellant asserted that the photographs variously dated 19 June 2020 and 24 June 2020 were in fact taken at an earlier time. Secondly, the appellant asserted he had been tidying up, and subsequent to the hearing on 25 June 2020 had photographs showing the area in and around the residential premises was now clean and free of garbage and other items belonging to him. 8. In response, Mr Fester confirmed to the Appeal Panel that the documents provided were those before the Tribunal at first instance and that the photographs were taken on the dates which they bore. The respondent submitted these photographs showed a consistent failure of the appellant to keep the residential premises and its surrounds in a clean and tidy state, that a relevant breach had been established and that the appellant had failed to comply with the Tribunal's orders made 24 October 2019. 9. In the course of the respondent's submission, the Appeal Panel raised with the respondent, that the Reasons appeared to suggest the Tribunal had only considered the photographs in the date range from 2 August 2019 to 19 June 2020. In this regard there was discussion between the Appeal Panel and Mr Fester concerning the matters recorded on page 2 of the Reasons which made no reference to the photographs of 24 June 2020. 10. The significance of this evidence is that the photographs of 24 June 2020 appear to demonstrate that the appellant had removed some of the rubbish and goods which had been located in the common areas. If so, even if a breach was established, this fact was relevant to the exercise of a discretion to terminate the Agreement. The respondent conceded that on the face of the decision, the photographs of 24 June 2020 had not been considered by the Tribunal. However, the respondent said the breach was clearly established and there was nothing in the evidence that would suggest the Tribunal would have reached a different conclusion. In short, the respondent submitted even if an error was established that the appeal should nonetheless be dismissed because a termination order should properly have been made. Consideration 1. There is a right of appeal on a question of law; section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act). 2. The failure to properly exercise a discretion can constitute an error of law; House v The King [1936] HCA 40; (1936) 55 CLR 499.As the High Court said at p 504-5; The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 1. Having regard to the concession made by the respondent, it seems to us that the Tribunal has failed to consider the photographic evidence of 24 June 2020. As raised in oral submissions, this evidence appears to disclose that between 19 June 2020 and 24 June 2020 the tenant had removed some of the goods and rubbish located in various areas in and around the residential premises. Similarly, the evidence taken at earlier times, namely November 2019 and 29 January 2019, suggested that the tenant cleaned up or removed existing goods although other material may have been placed in and around the premises after these clean ups had occurred. The photographic evidence does not otherwise suggest that the goods and rubbish simply accumulated. 2. In our view, a consideration of these matters, including the photographs of 24 June 2020, was relevant to the exercise of any discretion to terminate the Agreement. Even in cases of repeated breach, the nature and extent of the breaches and the actions of a tenant in seeking to rectify the breaches will, ordinarily, need to be considered in deciding whether or not a termination order should be made. The Reasons indicate relevant facts concerning what the tenant had done were not taken into account in the exercise of discretion. In these circumstances we are satisfied that the discretion miscarried. 3. The respondent submitted that even if we reached such a conclusion, the evidence before the Appeal Panel should lead us to conclude the termination order was properly made. Therefore, the appeal should be dismissed. 4. The problem with this submission is that we do not have all of the evidence from the proceedings at first instance. In particular, we do not have a sound recording of any oral evidence provided by the parties. The appellant sought to provide an explanation in the course of his submissions about what he had tried to do both before and after the termination order was made. 5. It was open to both parties to provide a copy of the sound recording for the purpose of the determination of this appeal. Having regard to the issues which have been raised, in the absence of all evidence from the proceedings at first instance we are not in a position to make a ruling as to whether or not the tenancy should have been terminated. 6. In these circumstances, the orders made by the Tribunal should be set aside and the proceedings remitted for rehearing by a differently constituted Tribunal. In reaching this conclusion we will make directions for the filing and service of further evidence by the parties, including Mr Tattersall. 7. As noted above, Mr Tattersall has failed to comply with directions of the Appeal Panel concerning filing and service of his evidence. In addition it does not appear that he filed and served any evidence in respect of the proceedings at first instance. While we have decided to remit the proceedings and allow further evidence, it needs to be made clear that Mr Tattersall must provide any evidence he seeks to rely upon by the date provided in the directions which we will make. If he fails to do so, he may not rely on any evidence provided late without leave of the Tribunal. Orders 1. The Appeal Panel makes the following orders: 1. The appeal is allowed and the orders made 25 June 2020 are set aside. 2. The proceedings are remitted to the Tribunal for rehearing by a differently constituted Tribunal. 3. The following directions are made in the remitted proceedings: 1. Within 14 days from the date of these orders the applicant (NSW Land and Housing Corporation) is to file and serve any further evidence in support of its application. 2. Within 28 days from the date of these orders the respondent (Tattersall) is to file and serve any evidence in reply. 3. Evidence from witnesses must be in the form of a signed written statement or statutory declaration. 4. All evidence must be provided to the Tribunal in hard copy (paper form) with photographs printed in colour. 5. The parties may not rely on evidence served after the date of these orders without leave of the Tribunal. 6. The proceedings are to be listed for hearing on a date fixed by the Registrar, such date to be not later than 42 days after the date of these orders. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2020