Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McLean v Bridge Housing Limited [2020] NSWCATAP 232 Hearing dates: 21 October 2020 Date of orders: 6 November 2020 Decision date: 06 November 2020 Jurisdiction: Appeal Panel Before: S Thode, Senior Member D Robertson, Senior Member Decision: (1) Leave to appeal refused (2) Appeal dismissed. Catchwords: LEASES AND TENANCIES – residential tenancies – social housing – consent order for termination – whether consent order could be set aside Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69; Collins v Urban [2014] NSWCATAP 17; McDonald v McDonald [2016] NSWCATAP 252 Texts Cited: None cited Category: Principal judgment Parties: Christine Miria McLean (Appellant) Bridge Housing Limited (Respondent) Representation: Solicitors: Appellant (Self Represented) S Hough (Respondent) File Number(s): AP 20/33230 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 April 2020 Before: M Eftimiou, Senior Member File Number(s): RT 19/55275 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 30 July 2020. 2. The application to the Tribunal was brought by Bridge Housing Limited, the landlord, against Ms McLean, the tenant. The tenant appeals against consent orders entered by the Tribunal for termination and possession in respect of social housing premises at Narrabeen. 3. For convenience we shall refer to the appellant as the tenant and to the respondent as the landlord. Background 1. The following facts are not controversial. 2. The parties entered into a social housing tenancy agreement in respect of premises in Narrabeen on or about 16 May 2017 for a fixed term of 14 months. The landlord served a notice of termination for breach by the tenant of the clause of the agreement that requires the tenant not to interfere with the quiet enjoyment of her neighbours. It was alleged that the tenant plays loud music which interferes with her neighbours' quiet enjoyment of the premises and generally disturbs the peace. The tenant denies the allegations. 3. The landlord lodged an application in the Tribunal on 11 December 2019 seeking: orders pursuant to s 187(1)(a), (b) and (h) restraining the tenant from acting in breach of the tenancy agreement, requiring the tenant to comply with the tenancy agreement and directing the tenant to comply with the Residential Tenancies Act 2010 (NSW) (the RT Act); orders pursuant to s 154(a) of the RT Act for termination and possession "as the tenant has failed or refused to enter into an acceptable behaviour agreement"; and orders pursuant to section 154(b) of the RT Act for termination of the tenancy agreement "as the tenant has seriously or persistently breached the terms of an acceptable behaviour agreement". 4. The matter was listed for a Conciliation and Group List hearing on 8 January 2020. The tenant did not appear and the Member entered a specific performance order in the absence of the tenant in the following terms On 08-Jan-2020 the following orders were made: 1. The Tenant must comply with the terms of residential tenancy agreement by not to cause or permit a nuisance, or interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the Tenant. 2. If these orders are not complied with by the tenant then: at any time before 08-Jul-2020 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated. 3. The Tribunal is satisfied that service of notice of the hearing has been duly served on the respondent and the Tribunal considers justice requires the matter be dealt with in the absence of the party. 1. The Tribunal's record of the orders indicates that oral reasons were given for the making of those orders. 2. The landlord requested a re-listing of the application and the application was listed for hearing on 30 July 2020 to determine whether the tenancy agreement should be terminated. 3. On 30 July 2020 both parties appeared by telephone. 4. The Tribunal entered Consent Orders for the termination of the tenancy agreement and possession of the premises in the following terms: On 30-Jul-2020 the following orders were made: 1. By consent, the Residential Tenancy Agreement is terminated on 30-Oct-2020 and possession is to be given to the landlord on the date of termination. The Tribunal notes that the parties have agreed as follows: The tenancy for xx Place Narrabeen with [sic] come to an end. Bridge Housing have undertaken to place the tenant on a Transfer list. The landlord undertakes to provide suitable accommodation to the tenant on or before 30 October 2020, subject to the tenant engaging in support services to assist in the transfer process. The tenant undertakes to engage in support services to assist in the transfer process. 1. Written reasons for decision were not given at the hearing, however the landlord has provided a transcript of the hearing. The landlord was initially represented by its housing manager Ms Henning, but subsequently her manager, Ms Hough, spoke on behalf of the landlord. 2. The relevant parts of the transcript are set out as follows: Member: The landlord sought a relisting of the application. Now I understand from the correspondence, Ms Henning, that what you're seeking is to terminate this tenancy and to transfer Ms MacLean within the next 90 days to a different tenancy where there won't be an issue with the neighbours, is that right, Miss Henning?… Thank you and Ms McLean. Do you agree with that? Christine McLean: Um, partly. Member: Which part you agree with and which part do you not agree with? Christine McLean: As to why Bridge Housing has brought me forth to the Tribunal, of what complaints… Member: … So what they want to do is, they want to move you to another premises and they agree to move you with a 90 days so you can agree to that. If you don't agree to that, then the matter will go to hearing. But if it goes to hearing you always risk that you may lose, and if you lose, your tenancy will be terminated, and they'll have no obligation to re-house you, so you really need to think carefully about what I'm saying to you here. Christine McLean: Okay. As to the [inaudible]… of 90 days, that Housing has provided to you as evidence. I have not received that, but that's not something I would appreciate. Member: … They're offering you to settle this dispute, so they're saying,… let's just agree that this tenancy will end for this property, xx Narrabeen and will move you somewhere else in the next 90 days. Now you don't have to agree to that, but if you don't agree to it, this matter will go to hearing and if the Tribunal finds against you so if you lose and have Bridge Housing win, your tenancy will terminate and they won't be under any obligation to rehouse you. So this way you know you're going to be rehoused. Christine McLean: Okay yes I agree to that…. … Member: Right so what if she undertakes to engage in support services to assist in the transfer process? Christina Hough: Yes, that's what she needs to do. She needs to speak to us, meet with us and engage with the support that we're offering her and recommending to her. Member: Ms McLean did you hear that? Christine McLean: I certainly did. Member: Okay, so can you undertake to engage with support services to assist in the transfer process. Christine McLean: Yes I am. … Member: The only order I've made is by consent, the tenancy agreement is terminated on 30 October and possession is to be given to the landlord on the date of termination. That's the only order I've made. I note that you have agreed that the tenancy will come to an end that you're going to put her on a transfer list, and you're going to provide suitable accommodation for her on or before 30th of October and she's going to engage in support services so clearly if she does not engage in support services to assist in the transfer process, then you don't have to find suitable accommodation…. 1. For the reasons that follow we have concluded that the appeal should be dismissed. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. Submissions and evidence 1. In considering the appeal, we have had regard to the following: * The Notice of Appeal lodged on 3 August 2020, as well as the attachments. * The Reply to Appeal lodged on 3 June 2020 with attachments, and * The evidence relied upon by the respondent filed and served on 22 September 2020. 1. During the hearing the tenant referred to additional material delivered to the Appeal Panel Registry "in the last couple of days". The tenant briefly described the material as medical records from her General Practitioner. The material referred to was not provided to the Appeal Panel and could not be located on the Appeal Panel file. Any such material would be new evidence that was not before the Tribunal below, the tender of which would require the leave of the Appeal Panel. Had such material reached the Registry it would have been filed significantly out of time. Further, the material had not been served on the landlord. The Appeal Panel considered that the hearing should proceed without reference to any further material which the tenant may have filed. Only the material filed and served by the parties in accordance with Directions was considered. Grounds of Appeal 1. Rather than paraphrasing the Notice of Appeal it is appropriate to set out verbatim the grounds of appeal stated by the appellant: 1. Bridge Housing applied for termination of my Residential Property on the fact being neighbour complaints (sic) by all Residents of x Place, Narrabeen. I have only just read these descriptive complaints and note they have been misleading and untrue. 2. I am requesting and asking for a hearing to be able to tell my side of these allegations with support and justification of the Member from the NCAT Tribunal. 3. I believe that Bridge Housing have breached Policy and Procedures and I would like the opportunity through the hearing in confirming my allegation (sic). 4. I am seeking justice to declare that evidence be directed to all Residents of x Place: Resident No 1, through to Resident No 10. In providing sound and acknowledgement to witness whether they gave consent to exchange information to all complaints/allegations/Police (sic). Or was a neighbour to certain neighbours vigilante advocating on behalf of all residents to from all residents unaware this had taken place without their consent (sic). The tenant's submissions 1. In respect of the first appeal ground the appellant submitted at the appeal hearing that she was not provided with all evidence that the landlord sought to rely upon at the initial hearing. The tenant stated that she was provided with the resident's statements after the hearing. The tenant submits she read and became aware of the police event reports provided to her and realised after the hearing that she disagreed with the evidence and wished to challenge the version of events given to the police. 2. The tenant further submitted that the respondent has failed in its duty of care to protect the tenant from unjustified complaints and actions of neighbours. The tenant submitted that police event entries and apprehended violence orders are unreliable and some date back to 2017 and are not relevant to any application currently before the Tribunal. 3. During submissions to the Appeal Panel the tenant further submitted that "this is not an appeal against the Member or the decision of the Tribunal". Determination 1. One issue for determination by the appeal panel is a whether the grounds of appeal as set out raise an error of law, or whether, if the grounds of appeal do not raise errors of law, leave to appeal against the consent orders should be granted. 2. We note that the tenant is seeking leave to appeal. However, as the tenant is self-represented, as the Appeal Panel stated in Prendergast v Western Murray Irrigation at [12], it is incumbent upon us to identify whether or not the appellant has raised an error of law:. 3. In order for the appellant to succeed in her appeal, she must persuade the Appeal Panel there was no true agreement underlying the consent orders. 4. Rule 37 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) requires the Tribunal, in deciding whether to give effect to a settlement, to take into account the interests of a "vulnerable person" as that term is defined, namely a person who is totally or partially incapable of representing themself in proceedings before the Tribunal because of a disability. The appellant does not submit that she is such a person and there is no evidence to suggest that the appellant suffers from a disability. 5. The principles applicable to setting aside a consent order were outlined by an Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252: 59. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities): (1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; (2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like; (3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: (a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; (b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; (ii) a common mistake arises when the mistaken belief is held by both parties; (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. (5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. (6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed. 1. In this case, having regard to all of the evidence, and in particular the oral evidence of the appellant, we are not persuaded that any of the above principles apply so as to warrant the agreement recorded in the consent orders being set aside. 2. The tenant accepted that the transcript set out above accurately reflects the exchange between the Member and the tenant at the hearing. The tenant submits that she does not suffer from a mental illness and stated that this appeal is "not against the Tribunal Member". The tenant alluded to other hearings and other exchanges between herself and Ms Hough, the representative of Bridge Housing, and the tenant submitted that transcripts of previous exchanges detailing the tenant's complaints of her treatment by the landlord have not been provided. We accept the tenant's submission that other exchanges with Ms Hough may have been recorded on different hearing days, but we are not persuaded that transcripts of hearings other than the hearing of the application could be relevant for the purposes of this appeal. 3. There is no evidence of pressure, threats, or influence which led to the tenant's agreement as reflected in the consent orders. The appellant was not at a special disadvantage at the time she entered into the agreement and the terms of the consent orders were explained by the Member. Nor is there any evidence of disability. On the evidence before us, the tenant has not established any circumstance which would warrant the setting aside of the agreement as recorded by the Tribunal, which formed the basis of the consent orders. It follows that there was no error of law in the Tribunal's decision. 4. There is also no basis upon which the tenant might be given leave appeal to seek to set aside the consent orders. It cannot be said that the making of the consent orders was not fair and equitable. The Tribunal was satisfied that the parties had reached an agreement and that the Tribunal had power to make the consent orders. Where those matters are established, as here, it is not unfair or inequitable to make consent orders to reflect the agreement reached. Accordingly leave to appeal must be refused and the appeal must fail. Conclusion 1. The orders we make are: 1. Leave to appeal refused 2. Appeal dismissed. ********** 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: 06 November 2020