Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Quader v Ngo [2020] NSWCATAP 248 Hearing dates: 18 November 2020 Date of orders: 26 November 2020 Decision date: 26 November 2020 Jurisdiction: Appeal Panel Before: S Thode, Senior Member S Goodman SC , Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. (3) The stay made on 23 September 2020 is lifted. (4) The orders made on 1 September 2020 are varied as follows: The order for possession is suspended to 04 December 2020. Catchwords: APPEAL – LAND LAW - Residential Tenancy - findings of fact – no error of law Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: Bartlett v Hewitt [2016] NSWCATAP 40 Collins v Urban [2014] NSWCATAP 17 House v King (1936) 55 CLR 499 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rathchime Pty Ltd v Willat [2017] NSWCATAP 87 Texts Cited: Nil Category: Principal judgment Parties: Wael Quader (Appellant) Van Son Ngo (First Respondent) Thi Hien Nguyen (Second Respondent) Representation: Appellant (Self Represented) D Avni (Respondents) File Number(s): AP 20/38332 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 1 September 2020 Before: S Hennings, General Member File Number(s): RT 20/31029 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 1 September 2020. 2. The internal appeal was brought by Wael Quader, the tenant, against the landlords Van Son Ngo and Thi Hien Nguyen. The tenant appeals against the decision of the Tribunal to make an order for termination and possession under s 86 of the Residential Tenancies Act 2010 (the RT Act). For the reasons set out below we have decided to dismiss the appeal. 3. For convenience we shall refer to the appellant as the tenant and to the respondents as the landlord. Background 1. The following facts are uncontroversial. The parties entered into a residential tenancy agreement on or about 2 September 2016 for a fixed term of 6 months for premises in Bankstown. On 17 June 2020 the landlord served a written notice of termination under s 86 of the RT Act on the tenant on the ground that the landlord has entered into a contract for the sale of the residential premises under which the landlord is required to give vacant possession of the premises. The termination notice specified a termination date that is not earlier than 30 days after the day on which the notice was given. The notice of termination required the tenant to give vacant possession of the premises on 18 July 2020. 2. An application to the Tribunal was lodged on 20 July 2020 seeking orders pursuant to (1) s 86 of the RT Act, being a termination order as the property is being sold; (2) s 187(1)(c) of the RT Act, being an order for the payment of an amount of money in the sum of $8750 for rent outstanding ; and (3) s 123 of the RT Act, being an order for the payment of a daily occupation fee. The matter was listed for hearing on 1 September 2020 in a conciliation and group list hearing and the Tribunal made orders for termination, possession and rent arrears. The tenant appealed the Tribunal's decision. 3. For the reasons that follow, we have decided to dismiss the appeal. As the tenant remains in the premises we have decided that the order for possession made on 1 September 2020 should be varied. Tribunal proceedings and decision 1. The matter was listed for hearing on 1 September 2020 and the Tribunal made orders in accordance with s 86 of the RT Act. 2. Written reasons for decision were published to the parties on 1 September 2020. 3. The relevant reasons for decision are set out as follows: 2. The landlord sought an order for termination and possession of the premises based upon sale of the property. The landlord also sought an order for the payment of the outstanding rent. The Tribunal checked all the landlord's documents and found that they were all in order giving the Tribunal jurisdiction to determine the matter. 3. They were: a). The recent written managing agency agreement giving the real estate agent authority to represent the landlord including the issuing of notices of termination and commencing and conducting NCAT proceedings. b). The written residential tenancy agreement requiring the tenant to pay rent. The fixed term had well expired. c). The landlord's signed contract of sale of the premises dated 16 June 2020. The landlord's real estate agent stated that he recently spoke to the solicitor and it is all correct and genuine. d). The written notice of termination based upon the sale of the property prepared and identifying service in accordance with the legislative requirements. e). The tenant's rental ledger and respect of the payments that had been made. f). The application as lodged. 4). Based upon the evidence given at the hearing the Tribunal found: a). The landlord has entered into a signed written contract for the sale of the premises under which the landlord is required to give vacant possession of the premises. The contract signed by both the vendor and purchaser is dated 16 June 2020 and is proceeding. b). Subsequently a notice of termination based on sale of the premises was served on the tenant dated 17 June 2020 requiring the tenant to return vacant possession to the landlord on 18 July 2020 being not earlier than 30 days after the date of service of the notice. The notice was served by delivering it and leaving it in the mailbox at the premises on 17 June 2020. c). The tenant was given 30 days or more to vacate the premises in accordance with the termination notice. d). The tenant has failed to vacate the premises as required. e). Sections 82 & 86 of the Residential Tenancies Act 2010 were all satisfied and applied. f). The tenant is breaching the tenancy agreement by failing to pay rent. g). The tenant owes the sum of $12,650 for rental arrears. The tenant last paid rent on 11 June 2020. h). The application has been properly lodged, within time and could proceed. 5). The issue for the Tribunal to then consider was making an order in accordance with section 86(4). The Tribunal was satisfied that the landlord has entered into a signed written contract for the sale of the premises which is proceeding and under which the landlord is required to give vacant possession of the premises. And the Tribunal was satisfied that a termination notice was given in accordance with the section and the tenant has not vacated the premises as required by the notice. The Tribunal was satisfied that section 86(4) was enlivened. 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-exhaustive 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 (here, the tenant) 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. 1. We are also mindful that the parties are self-represented and of the considerations described by an Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: 'It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.' Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 8 September 2020, as well as the tenant's ant's written submissions in support of the appeal and their numerous annexures. This includes the tenant's summary of submission entitled "Final Submission of Arguments, mitigation, evidence and statement for the hearing of today 18 November 2020" received on the day of the hearing of this appeal; * The Reply to Appeal lodged 21 September 2020 with attachments and the written submissions filed on 12 November 2020; and * The oral submissions made by and on behalf of the parties during the hearing. 1. Both parties were satisfied that the Appeal Panel had received all documents they sought to rely on. The Appeal Panel has considered all submissions. Grounds of Appeal 1. The grounds of appeal set out by the tenant in the Notice of Appeal and summarised in the final submissions dated 18 November 2020 appear to be as follows: 1. The Tribunal erred when he made a finding that the landlord had entered into a contract for the sale of land because the contract was not genuine; 2. the landlord's agent lacked authority to serve a notice of termination because the managing agency agreement was not genuine or was defective; 3. the Tribunal's discretion miscarried because it failed to consider the tenant's financial circumstances and the impact of the termination of the tenancy on the tenant's health; 4. the Tribunal failed to consider all material tendered before it or failed to consider relevant evidence; 5. the Tribunal engaged in the fact finding process in such an unorthodox manner that it was likely to produce an unfair result so that it would be in the interests of justice for the decision to be reviewed; 6. the Tribunal miscalculated the rent outstanding. 1. We refer below to these grounds as grounds one to six. Determination 1. One issue for determination for the Appeal Panel is whether the grounds of appeal as set out raise an error of law, or if the grounds of appeal do not raise errors of law, whether leave to appeal should be granted. 2. We note that the tenant is seeking the leave of the Appeal Panel to allow the appeal. Applying the principles set out in Prendergast and Cominos v Di Rico above, it is incumbent upon us to identify whether or not the appellant has raised an error of law, and to the extent he has not, whether leave to appeal should be granted. Consideration Ground 1 1. In respect of ground one of the appeal, we find no error of law established and for the reasons that follow, we are not of the view that leave to appeal should granted. 2. The termination notice was given by reason of the landlord entering into a contract for the sale of land. The tenant has asserted that the contract for the sale of land dated 16 June 2020 is a fraudulent document prepared by vendor and purchaser to create the impression of a sale in circumstances where no such contract exists. The tenant makes a number of unsubstantiated allegations that the date of the contract for the sale of land was inserted after the fact and that a fraud was perpetrated after a previous application by the landlord seeking termination of the tenancy following a 90 day notice had been dismissed. 3. A finding of fraudulent conduct is not lightly to be made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449 at [2]. Nor is such a finding supported by the evidence. The documents tendered before the Tribunal below were tendered on appeal. They include the contract for the sale of land bearing the signatures of the parties to the sale, communication from the solicitor acting on behalf of the vendor, and a purchaser transferee declaration accompanied by a statutory declaration signed by an authorised witness. The tenant has provided no evidence that the contract for the sale of land is fraudulent, apart from his own assertion. The Member found, on evidence tendered before him that the landlord has entered into a signed written contract for the sale of the premises under which the landlord is required to give vacant possession of the premises. The contract was signed by both vendor and purchaser and is dated 16 June 2020 and, as was submitted by the agent for the vendor, is proceeding. The finding that there is a contract for the sale of land to satisfy the requirements of s 86 of the RT Act was clearly open to the Member on the evidence before him. This ground of appeal is entirely baseless and must fail. Ground 2 1. The tenant has submitted that the notice of termination is invalid as the real estate agent was not authorised to issue the notice because of a defect in the managing agency agreement. The relevant finding is contained at paragraph 3a of the written reasons for decision. The Member found "a recent written managing agency agreement giving the real estate agent authority to represent the landlord including the issues of notices of termination and commencing and conducting NCAT proceedings". The tenant submits that in previous hearing of a separate application heard by a Tribunal differently constituted an application for termination of the tenancy was dismissed because the box that permitted the agent to issue notices had not been checked and the application was dismissed. The tenant submits that the agent still "may" not be authorised because the current managing agency agreement was signed on 11 June 2020 by the agent and 13 June 2020 by the tenant, i.e. within 6 days before the notice of termination was issued. The tenant also submits that the managing agency agreement is not effective because the landlords' names have not been printed or written below their signatures. We have had regard to the managing agency agreement and are satisfied that the allegations that the managing agency agreement is defective or incomplete are unsubstantiated. The findings of the Tribunal that a valid notice of termination was issued by an agent duly authorised were open to it based on the evidence. We are of the view that the tenant's contention that the managing agency agreement is defective is entirely baseless and this ground of appeal is dismissed. Ground 3 1. Whilst the first two grounds of appeal were directed at the existence or otherwise of the jurisdictional facts giving rise to the discretion in s 86(4) of the RT Act [1] , this ground is directed at the exercise of that discretion. Any attack on a discretionary decision must fail unless it can be demonstrated the decision-maker made an error of legal principle or material error of fact, took into account an irrelevant matter, failed to take into account, or gave insufficient weight to some relevant matter or arrived at a result so unreasonable or unjust as to suggest on of the other errors occurred: House v King (1936) 55 CLR 499. 2. The tenant submits that the Tribunal, in terminating the tenancy, failed to take into account the effect of the tenant's ill health, his financial hardship and the fact that the tenant and his family are likely to become homeless as the Department of Housing is yet to confirm alternative accommodation. 3. The relevant facts are summarised in the tenant's final submissions dated 18 November 2020. We understand the tenant to submit that the exercise of the Tribunal's discretion miscarried. The tenant submits that he and his family are under considerable financial stress, suffer from a plethora of health issues and the evidence, when considered properly, should have persuaded the Member to dismiss the application. 4. In the exercise of its discretion whether to terminate the residential tenancy agreement, the Tribunal weighed the competing rights of the parties. The Tribunal considered the landlord's circumstances, and in particular the large amount of rent arrears in the sum of $12,650 and reached the conclusion that unless vacant possession could be given, the purported purchaser may likely not complete the transaction, leaving the landlord in significant financial distress. 5. The Member considered the tenant's special circumstances and considered that due to the family's debts and ill health it was likely that the family would find it difficult to find alternative housing. The tenant's evidence as to financial hardship and ill health was accepted by the Tribunal and, taking into account all of the tenant's difficulties the Tribunal considered "that another 4 weeks was a reasonable and sufficient time for the tenant now [to] vacate the premises in order that the landlord will then be able to complete the sale of the property with vacant possession as required under the contract for sale." 6. The Tribunal had evidence as to the tenant's health in the form of medical certificates and health summaries and other evidence dating from March 2020 (see tenant's submissions at page 5). The Tribunal heard oral evidence from the appellant as to his health and financial issues and that evidence was addressed by the Tribunal at [6], [7] and [9], including the observation that the tenant had not paid rent since March 2020. 7. We have considered the Member's careful reasoning of the competing interests of the parties and are of the view that there is no basis to the contention that the Tribunal failed to have regard to relevant evidence or that the exercise of the discretion otherwise miscarried. We have decided to dismiss this ground of appeal also. Ground 4 1. The tenant submits that the Tribunal failed to consider the evidence before it and that the Tribunal Member acknowledged he had no time to read the expansive email evidence filed before the hearing. 2. The Tribunal stated at [7]: 'The Tribunal informed the tenant that due to the large amount of material submitted by him, the Tribunal had not had the time to open and read and consider it all and could not do so in such a short hearing time. The Tribunal invited the tenant to take the Tribunal to any particular document that he thought was relevant and specifically wanted the Tribunal to consider. The tenant did not avail himself of that opportunity with any detail' 1. To the extent that the tenant's submission is that he was not afforded procedural fairness, we reject that submission. He was given the opportunity to present his case and was invited by the Tribunal to draw its attention to any particular documents he specifically wanted the Tribunal to consider. 2. To the extent that the tenant's submission is that the Tribunal failed to consider the evidence before it, we are not satisfied that the Tribunal failed to have regard to relevant evidence in view of (1) the Tribunal's Reasons at [7] (2) the failure of the tenant to identify any particular relevant evidence; and (3) the findings made by the Tribunal referred to above with respect to the third ground which show that the Tribunal took into account the tenant's health and financial issues. 3. It may also be that this ground refers to the Tribunal providing inadequate reasons. Inadequate reasons can take a number of different forms.. How the overlooking of or failing to consider critical evidence is inadequate reasoning and an error of law was explained by McColl JA, with whom Macfarlan JA agreed, in Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260. 4. The nature and extent of the obligation in giving reasons has been explained in a number of cases in the courts and by the Appeal Panel. As was said by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [55]-[56]: 55. … there is generally on a duty on Members sitting in the Consumer and Commercial Division to give oral or written reasons for their decisions or, at least in uncontested proceedings, "to make... a note of everything necessary to enable the case to be laid properly and sufficiently before the [Appeal Panel] if there should be an appeal", to quote the words of Sir Frederick Jordan in Carlson v King (1947) 64 WN (NSW) 6. 56. A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: 1. notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; 2. the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; 3. the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; 4. not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA. 1. Further, the reasons are "not to be construed minutely and finely with an eye keenly attuned to the perception of error". see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, approved by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. 2. We have had regard to the Tribunal's reasons and the material tendered by the tenant on appeal. The tenant during oral submissions was unable to point to any particular document that, had it been individually considered, would have persuaded us that the Member misdirected himself or that he ignored significant evidence. Nor are we persuaded that much of the evidence filed was relevant to the issues in dispute or assists in the disposal of this appeal. There is nothing before us to suggest that the decision was not fair and equitable or that a significant injustice has occurred that would permit us to grant leave to appeal. We dismiss this ground of appeal. Ground 5 1. The tenant submits the Tribunal engaged in the fact finding process in such an unorthodox manner that it was likely to produce an unfair result so that it would be in the interests of justice for the decision to be reviewed (see notice of appeal page 5). For us to find that the Tribunal Member's decision was so unreasonable that no reasonable decision maker would make it would require, as Lord Greene MR stated in Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230, 'something overwhelming'. 2. In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145, Tobias JA referred to the Wednesbury formulation in the following terms at [104] – [106]: Finally, as her Honour noted at [115], in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 Spigelman CJ, with whom Beazley JA and myself agreed, stated at [129]: "Perhaps the most appropriate formulation [of Wednesbury unreasonableness] is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds". This formulation was adopted by myself in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71]. It was also adopted and applied by myself, with the agreement of Mason P and Hodgson JA, in Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [122]. In Notaras I cited (at [124]) [31] of the judgment of Biscoe J in Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 where His Honour drew a distinction between a decision which the court considers is unreasonable and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter required "something overwhelming": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44]. 1. The grounds upon which the Member found that the residential tenancy agreement ought to be terminated, after considering the relevant evidence, was clearly set out in a logical and concise manner, supported by the necessary findings of fact. We are unable to agree with the tenant's submissions that the decision of the Tribunal was so unreasonable that no reasonable decision maker would make it. Nor would we agree that the decision was illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds: rather, it was evident from the face of the reasons that the decision was carefully reasoned. We dismiss this ground of appeal. Ground 6 1. The tenant makes cursory reference to an alleged miscalculation of the rent arrears. The tenant contends that the real estate agent failed to consider that the rent had been reduced from $650 to $500 per week and that the amount of $12,650 rent outstanding should be reduced. This contention is demonstrably incorrect. Further, no alternative calculation is submitted. The rental ledger tendered before the Member and again before the Appeal Panel clearly shows that the rent was reduced for a period of 14 weeks from 13 March to 17 June 2020 and this agreed reduction was duly accounted for. We do not find that the tenant has established that the rent arrears were miscalculated and in the absence of any further submission or evidence to support this ground of appeal we dismiss it also. Orders 1. The orders of the Appeal Panel are: 1. Leave to appeal refused. 2. Appeal dismissed. 3. The stay made on 23 September 2020 is lifted. 4. The orders made on 1 September 2020 are varied as follows: The order for possession is suspended to 04 December 2020. ********** Endnote 1. Sections 84 and 85 of the RT Act impose a duty on the Tribunal to terminate a residential tenancy agreement ("the Tribunal must"). This is to be contrasted with several other provisions in Part 5 of the RT Act, which confer a discretion on the Tribunal ("the Tribunal may") to terminate a residential tenancy agreement on particular grounds. The latter category includes s 86 (sale of premises); s 87 (breach of agreement); s 90 (serious damage or injury by tenant or other occupant); s 91 (use of premises for illegal purposes); s 92 (threat, abuse, intimidation or harassment); s 93 (hardship to landlord); s 94 (termination of long term tenancies); and s 95 (occupants remaining in residential premises). 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: 26 November 2020