Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stuck v Hinds [2020] NSWCATAP 259 Hearing dates: 2 December 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Appeal Panel Before: S Thode, Senior Member D Robertson, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. (3) The stay made on 6 October 2020 is lifted. (4) Order 3 of the orders made on 11 September 2020 is varied to read: 3. The order for possession is suspended to 18 December 2020. Catchwords: LAND LAW - Residential Tenancy - findings of fact – no error of law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Italiano v Carbone [2005] NSWCA 177. Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Laksamee Stuck (First Appellant) Sherif Habib (Second Appellant) Debra Hinds (First Respondent) Kathleen Hinds (Second Respondent) Joyce Hinds (Third Respondent) Representation: M Habib (Appellants) P Kennison (Agent) (Respondents) File Number(s): AP 20/40195 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 September 2020 Before: C Marzilli, General Member File Number(s): RT 20/30033 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 11 September 2020. 2. The internal appeal was brought by Sherif Habib and Laksamee Stuck against Debra Hinds, Kathleen Hinds and Joyce Hinds. Mr Habib and Ms Stuck were tenants of the Hinds' pursuant to a residential tenancy agreement. For convenience we shall refer to the appellants as the tenants and the respondents as the landlords. The tenants appeal against the decision of the Tribunal to make orders for termination and possession under section 85 of the Residential Tenancies Act 2010 (NSW) (the RT Act) and for the payment of arrears of rent in the amount of $15,000. Background 1. The following facts are not controversial. The parties entered into a residential tenancy agreement in or about 16 May 2018 for a fixed term of 12 months for premises in Shanes Park. On 23 March 2020 the landlords served a written notice of termination under section 85 of the RT Act on the tenants, being a no grounds notice requiring the tenants to give vacant possession of premises on 22 June 2020 being a date no earlier than 90 days after the date of the termination notice. 2. An application to the Tribunal was filed on 13 July 2020 seeking a termination order pursuant to section 85 of the RT Act as the 90 days had expired and the tenants had not provided vacant possession of the premises. The matter was listed for hearing on 11 September 2020 during a conciliation and group list and the Tribunal made orders for termination, possession and the payment of rent arrears. The Tribunal also made orders for the payment of an occupation fee from the date of termination to the date vacant possession is given to the landlords and granted the landlords leave to request the relisting of the application to determine the amount of the occupation fee. The tenants appeal the Tribunal's decision. 3. For the reasons that follow, we have decided to dismiss the appeal. However, as the tenants remain in the premises, the order for possession made on 11 September 2020 must be varied. Tribunal proceedings and decision 1. The matter was listed for hearing on 11 September 2020. The tenants were represented by Mr Habib's sister, Ms Mary Habib, and the landlords by their managing agent, Ms Pamela Kennison. The Tribunal made orders in accordance with section 85 of the RT Act. 2. The orders for termination, possession and rent arrears were published to the parties on 11 September 2020. Member Marzilli gave oral reasons for decision, the relevant parts of which, as transcribed by the tenants, were as follows: Section 85 of the Residential Tenancies Act does not admit of any possibility that I don't make a termination order. It sets out, that if a notice is given, pursuant to section 85, the Tribunal must make a termination order. It would be unlawful for me to do otherwise. While the Parliament has an active provision for dealing with the Covid pandemic those provisions do not apply in this case because this is a 90 day no ground termination notice and also the notice was given prior to 15 April 2020. So therefore I must make a termination order. Notwithstanding the tenants' position. However, Having regard to the circumstances of the parties and in particular that the premises are occupied by an adult who is ill, having a regard to also the fact that 172 days have passed since the notice was initially given. I find that a period of two weeks to give over possession is appropriate in this case and I also note that the landlord needs possession of the premises because they are without premises themselves. Or one of the landlords. So the order of the Tribunal is that the residential tenancy agreement is terminated in accordance with section 85 of the Act.… The agreement is terminated immediately and possession is to be given to the landlord on the date of termination. The order for possession is suspended until the 25th of September 2020. The tenants shall pay the landlord a daily occupation fee at the rate of $92.86 per day from tomorrow until the date vacant possession is given to the landlord. Because the tenants aren't present at this hearing, I want to ensure that they know that an order is being made. The landlord's agent is to advise the tenant in writing by delivery of a letter to the premises by 7 pm today as the order is made today. And also, I make an order that the tenants pay the landlord $15,000 towards the arrears of rent for the period from 18 May to 11 September. The amount of rent owing is $16,435.71 but I'm limited to the Tribunal's jurisdictional limit to only make an order for $15,000. The payment for rent owed is due immediately and the application for water usage charges is withdrawn. A copy of these orders will be sent to each of the parties. That brings this hearing to an end. Thank you for your attendance. You are free to go. 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 deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 18 September 2020, as well as the appellant's submissions in support of the appeal and written submissions filed on 16 November and spanning 178 pages. The appellant filed a Covid financial statement on 1 October 2020 and evidence of payments made since the date of termination, as well as correspondence between the tenants and the landlord's agent entitled "without prejudice". * The Reply to Appeal lodged 30 September 2020 with attachments and the submissions and attachments filed on 2 December 2020. 1. Both parties were satisfied that the Appeal Panel had received all documents they sought to rely on. Grounds of Appeal 1. The grounds of appeal set out by the landlord in the Notice of Appeal and summarised in submissions dated 16 November 2020 are as follows: 1. The Member erred when he failed to offer an adjournment to enable the tenants to produce financial records prepared by an accountant to demonstrate they are suffering from financial hardship; 2. The Member failed to afford procedural fairness because the tenants were not given an opportunity to negotiate in good faith as is required under the Covid-19 Regulations and the Member erred in making an order for immediate payment of $15,000 rent arrears; 3. The Member failed to afford procedural fairness because the landlord was permitted to tender and rely upon evidence that was served at 4.30pm on the evening before the hearing and contrary to Directions issued by the Tribunal; 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 tenants are seeking that the Appeal Panel grant them leave to appeal. Applying the principles set out in Prendergast, above, it is incumbent upon us to identify whether or not the tenants' grounds of appeal raise an error of law. 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 tenancy was terminated by reason of the landlord serving a 90 day no grounds notice. Sections 84 and 85 of the RT Act impose a duty on the Tribunal to terminate a residential tenancy agreement ("the Tribunal must") if the necessary conditions for termination are met. 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. Having found the notice of termination valid, (see transcript p 44) the Tribunal was required to terminate the residential tenancy agreement. As the Tribunal has no discretion in the making of a termination order, the tenants' financial position is not a relevant consideration. However, their financial position may be taken into account when considering whether and for how long an order for possession of the premises should be suspended. 3. We are satisfied that the tenants were given an opportunity to provide oral evidence (although it was given by Ms Habib on their behalf and it is not apparent that the evidence was given under oath or affirmation) to present their financial position and to address the Member at length. Ms Habib informed the Tribunal that: 1. the tenant Sherif Habib is the owner of a business, being a gym, and the business was shut down by reason of the pandemic; 2. the family had no income for a period of six weeks from March to May 2020; 3. the family received a superannuation early release payment (see transcript page 43). 1. It is apparent that the Member accepted that oral evidence and we are satisfied that he took into account the tenants' financial information when he commented on the "tenants' position" and after considering the tenants' particular circumstances, including the tenants' mother's illness and the fact that 172 days had passed since the notice was initially given, afforded a period of two weeks to give over possession. 2. We are not persuaded that the Member failed to take into account the tenants' financial position. The Member explained that, regardless of the tenants' financial position, the Tribunal was required to order the termination of the residential tenancy agreement following service of a 90 day no grounds notice. The finding of the Tribunal that a valid s 85 notice of termination was issued was open to it based on the evidence. The tenants do not suggest otherwise. On the basis of the transcript tendered by the tenants on the appeal we are of the view that the contention that the Member failed to take into account the financial position of the tenants is not made out. 3. The tenants submit the Member should have offered an adjournment, particularly because Ms Habib was informed by a Registry officer that the Member would consider any adjournment application at the hearing. Providing a party with a reasonable opportunity to present his or her case includes offering a self-represented party an adjournment, where appropriate, even if it is not requested: Italiano v Carbone [2005] NSWCA 177. In the present case the tenants were not taken by surprise in relation to the claim against them and they had a reasonable opportunity to present their case. The tenants did not mention at the hearing that they had further financial evidence available, and accounting evidence would in any event, have been irrelevant to the issues before the Tribunal. In circumstances where an adjournment could have made no conceivable difference to the outcome of the case, and where the tenants did not actually make any application for an adjournment, the Tribunal did not deny the tenants procedural fairness by proceeding with the matter on 11 September 2020. There was no basis on which the Tribunal could, even arguably, have been required to offer an adjournment or invite the tenants to make an application for an adjournment. We dismiss this ground of appeal Ground two 1. The tenants submit that the Member erred when he failed to take into account relevant financial information in respect of the "residential tenancy Covid-19 moratorium". 2. In response to the COVID-19 pandemic, Part 13, containing sections 228A to 228C, was added to the RT Act and Part 6A, containing regulations 41A to 41E, was added to the Residential Tenancies Regulation 2019 (NSW). Regulation 41B prohibits a landlord from giving an "impacted tenant" a termination notice under section 87 of the RT Act by reason of rent arrears unless the landlord has participated in a formal rent negotiation process. The moratorium period, during which that prohibition applies, commenced on 15 April 2020. Section 228B of the RT Act defines when a household is impacted by the COVID-19 pandemic. 3. However, the moratorium is relevant only to notices of termination dated after 15 April 2020 and is irrelevant in respect of a 90 day notice of termination served pursuant to section 85 of the RT Act. Landlords are not prohibited from serving a 90 day no grounds termination notice during the moratorium by Part 6A of the Regulations. 4. The tenants submit that the Member erred when he ordered immediate payment of $15,000 and that an adjournment would have enabled the tenants to provide evidence that they are unable to pay the large amount of rent arrears. The tenants submit that a payment plan should have been considered by the Member. The tenants seek an order that the rent arrears be "adjusted" and that the daily occupation fee of $92.96 per day be substantially reduced because the tenants are impacted by the Covid-19 pandemic within the meaning of section 228B of the RT Act. As we have set out above, Part 13, containing sections 228A to 228C of the RT Act does not apply to the circumstances of this appeal. Nor was it open to the Tribunal Member to "adjust" the rent. In respect of the order for immediate payment, no application was made by the tenant to enter into a payment plan and in the absence of any such application it was not incumbent upon the Member to offer a payment plan to the tenants. 5. In conclusion, the Appeal Panel is not satisfied that the tenants have demonstrated that the Member made an error of law in relation to the application of Part 13 of the RT Act or Part 6A of the Regulations and nor do we consider that the tenants may have suffered a substantial miscarriage of justice in that regard. Accordingly the tenants' second ground of appeal must be rejected and leave to appeal refused. Ground 3 1. The documents tendered by the landlords are identified on page 41 of the transcript of the hearing before the Tribunal Member. They consist of the residential tenancy agreement, the managing agency agreement, the notice of termination and, we assume, a rental ledger as, on page 44 of the transcript, the Member referred to payments made. At line 149 on page 40 of the transcript the Member identified the documents as having been paginated and attached to the application form. Any document attached to the application form is routinely sent by the Tribunal's Registry to the respondents at the time an application is filed. The transcript makes no reference to any complaint by the tenants that the documents were served for the first time at 4.30 pm on the evening before the hearing. We accept the tenants' assertion that an email containing the same documents as were attached to the application form was sent to the tenants on 10 September 2020. Be that as it may, the tenants did not object to the tender of the documents or that they were unable to make meaningful submissions on the key documents being the residential tenancy agreement and the notice of termination. The key documents were in possession of the tenants at all times and are not contested. During oral submissions Ms Habib was unable to point to any particular document that, had it been individually considered, would have persuaded us that the tenants were procedurally disadvantaged by reason of the late service. The tenants seek "transparency and an audit of the rental ledger". We note that any dispute as to the amount of any occupation fee payable, will, if not otherwise resolved, be considered by the Tribunal at a hearing following application by the landlord made pursuant to the leave to request the relisting of the application granted by the Tribunal on 11 September 2020. In conclusion, there is nothing before us to suggest that late service of the documents gave rise to a procedural unfairness, or 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. 2. As we have noted above, although we have dismissed the appeal, the tenants have remained in occupation well beyond the date for possession specified in the orders made on 11 September 2020. It is necessary to vary the orders made on 11 September 2020 to specify a future date for the giving of possession. Orders 1. The orders of the Appeal Panel are: 1. Leave to appeal refused. 2. Appeal dismissed. 3. The stay made on 6 October 2020 is lifted. 4. Order 3 of the orders made on 11 September 2020 is varied to read: 3. The order for possession is suspended to 18 December 2020. **********​​​​​​​ 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: 08 December 2020