Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pretorius v Cai [2020] NSWCATAP 282 Hearing dates: 2 November 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Appeal Panel Before: S Thode, Principal Member M Gracie, Senior Member Decision: (1) Extend the time for the filing of the appellant's Notice of Appeal to 3 September 2020. (2) The stay of order 2 of the Tribunal's orders made on 10 August 2020 is lifted. (3) Leave to appeal refused. (4) Appeal dismissed. Catchwords: APPEAL - no question of law - leave to appeal from decision of Consumer and Commercial Division of NCAT - leave to appeal refused RESIDENTIAL TENANCY - termination of residential tenancy agreement - loss of employment or income - non-payment of rent - whether a result of the impact of the COVID-19 pandemic - no evidence - s228B Residential Tenancies Act 2010 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Amendment (COVID-19) Regulation 2020 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Serious v Barlow; Barlow v Serious [2020] NSWCATAD 3 Texts Cited: None cited Category: Principal judgment Parties: Vincent Pretorius (Appellant) Ruihua Cai (Respondent) Representation: I Pretorius (Appellant) C Zhu (Agent) (Respondent) File Number(s): AP 20/36992 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 10 August 2020 Before: J Ringrose, Tribunal Member File Number(s): RT 20/19989 . REASONS FOR DECISION Background 1. On 6 May 2020, the respondent's property agent issued the appellant, Mr Vincent Pretorius with a Termination Notice terminating a residential tenancy agreement between Mr Pretorius as tenant and the respondent, Mr Ruihua Cai as landlord, for being in arrears for non-payment of rent for more than 14 days. The rent had only been paid up to 2 January 2020 at the time the Termination Notice was served. 2. The appellant did not vacate the premises and the respondent filed an application in the Tribunal seeking orders under s 87 of the Residential Tenancies Act 2010 (NSW) (RTA) to terminate the residential tenancy agreement for non-payment of rent by the appellant. 3. The hearing of the application was listed for 25 June 2020 and adjourned, according to the timetable and orders made on that date, for the appellant "to obtain advice and to put on all evidence upon which he seeks to rely on [sic] any impact of COVID-19." 4. The application was heard on 10 August 2020. The Tribunal accepted the validity of the Termination Notice and terminated the residential tenancy agreement for non-payment of rent for the period 3 January 2020 to 10 August 2020. The termination was made with immediate effect from 10 August 2020 and the order for possession was suspended until 21 September 2020. 5. The Tribunal determined an amount of unpaid rent totalling $21,152.86, such amount being reduced because of the Tribunal's jurisdictional limit to $17,680. The appellant was ordered to pay the respondent $17,680 (such sum including the bond or $15,000 after deduction of the bond) by 10 November 2020. 6. The Tribunal further ordered the appellant to pay a daily occupation fee of $95.71 per day from 11 August 2020 until vacant possession was given to the respondent. 7. The appellant seeks to appeal from that decision of the Tribunal. A stay of the Tribunal's order terminating the residential tenancy agreement was granted on 18 September 2020, conditional on the appellant's payment of $50 per week to the respondent from 23 September 2020 until further order. 8. By leave granted by the Tribunal on 18 September 2020, both parties were represented on the appeal. Mr Pretorius, was represented by his wife, Ms Ingrid Pretorius. Mr Cai was represented by his real estate agent, Mr Chris Zhu. The Tribunal's Decision 1. The Tribunal did not deliver reasons and the appellant did not request them. Although a copy of the sound recording of the directions on 25 June 2020 and proceedings on 10 August 2020 was requested by the appellant on 18 August 2020 and provided to him by the Registrar on the same date, we were not provided with a transcript of the sound recordings of the proceedings before the Tribunal on either of those dates. 2. We were provided by the appellant as part of a bundle of documents we admitted and marked as "Exhibit B" on the appeal, a document headed "Tribunal Hearing Transcript" ("transcript") prepared by Ms Kyra Jannah Pretorius, whom we understand is the daughter of Mr and Mrs Pretorius. Unfortunately the transcript is not a verbatim or continuous record of the proceedings: rather it is a series of selected extracts both in direct speech and paraphrases referrable to select times (referrable to minutes and seconds) into the sound recording. It also contains commentary and annotations. For example, there is paraphrasing such as "Member suggests" and "Ingrid explains...". Also, there is often commentary following some of the direct speech attributed to the Member, such as "insensitive comment" and "implying that we plan to cheat the system." 3. To deal with this appeal therefore, we must carefully consider the evidence provided by the parties on the appeal including the "transcript" provided by the appellant. Notice of Appeal and Appellant's Evidence 1. The appellant filed a Notice of Appeal and attachment headed "Notice of Appeal - Additional Information" on 3 September 2020. The Notice of Appeal was also accompanied by a bundle of documents. We marked the Notice of Appeal, the attachment and the bundle of documents collectively as Exhibit A on the appeal. 2. The Notice of Appeal acknowledged that leave to appeal was required from the decision of the Tribunal. 3. The Notice of Appeal was filed out of time: Rule 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) provides that in the absence of an extension of time granted by the Tribunal under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), an appeal against a decision made in residential proceedings is to be filed within 14 days from the date on which the appellant was notified of the decision or given reasons for the decision, whichever is the earliest (relevantly in this case within 14 days of 10 August 2020). 4. The Notice of Appeal contended that the decision of the Tribunal was not fair and equitable and raised six separate grounds in support of that contention. We deal with each of these six grounds later in these reasons. 5. Documents were also filed by the appellant on 15 September 2020 and 7 October 2020. The former comprised an email from the appellant to the Tribunal enclosing a letter from Mrs Pretorius' doctor, which was not admitted into evidence as it seemed to be of historical relevance only. We admitted the 7 October 2020 bundle of documents into evidence and marked them as Exhibit B. As stated above, Exhibit B contained the appellant's document described as "Tribunal Hearing Transcript." 6. Further documents were filed by the appellant on 2 November 2020. These were described as "new information relevant to our hearing" and included the same Notice of Appeal filed on 3 September 2020 but with a different attachment headed "Additional Information". We did not allow that additional document to be included as an amendment to the Notice of Appeal. We note however that this document is included in Exhibit B as part of a submission provided to the Tribunal for fee waiver dated 25 August 2020. This was presumably associated with the filing of the application for a stay on 25 August 2020. 7. After the hearing of the appeal and while our decision was reserved, Mrs Pretorius on behalf of the appellant forwarded an email to the Tribunal Registry dated 7 December 2020. In that email Mrs Pretorius said, among other things, that Mr Pretorius is now employed, that he has paid rent for the last week and a small amount for arrears from his first salary and that Mr Zhu has made certain threats to her. 8. We do not propose to have regard to any of the matters raised in that email that post-date the hearing. They do not concern any of the issues raised in this appeal. Those matters are more properly the subject of discussion directly between the parties or their representatives. Reply to Appeal 1. A Reply to Appeal (Reply) was filed by the respondent on 7 September 2020. The Reply included an extract from the tenancy ledger and a letter dated 24 June 2020, which - without objection - we admitted into evidence as Exhibit 1 in the appeal. 2. The respondent did not accept that the appeal was lodged within the time required by the Rules and to which we have referred above. He opposed the granting of an extension of time for the filing of the appeal. 3. The respondent essentially supported the finding and all of the orders made by the Tribunal. Extension of Time to Appeal 1. Various reasons were advanced on behalf of the appellant for the late filing of the Notice of Appeal. These included difficulties caused by no internet at the family home and serious health and other family issues affecting the ability of Mrs Pretorius to attend to the prompt preparation and filing of the appeal. 2. We accept those matters and given the shortness of the delay, we do not see any prejudice arising to the respondent by us granting an extension for the filing of the Notice of Appeal. Accordingly we extend the time for the filing of the appellant's Notice of Appeal to 3 September 2020. Statutory basis of the appeal 1. Internal appeals, such as this appeal, may be made as of right on a question of law, and otherwise with leave (ie the permission) of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). No Question of Law 1. We are of the view that no question of law arises on this appeal. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) 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. None of the matters listed in Prendergast arise for our consideration on this appeal. Leave to Appeal is Required 1. We are therefore of the view that leave to appeal is required, as the appellant accepts in his Notice of Appeal. 2. The principal finding by the Tribunal was that the appellant did not establish that he had lost his employment or income as a result of the impact of the COVID-19 pandemic. That is a determination of an issue of fact and not law. The Tribunal made a finding of fact that the appellant was not a COVID-19 "impacted tenant." 3. Although the "transcript" which we have been provided by the appellant does not record the Tribunal expressly referring to the COVID-19 provisions of the RTA which we discuss later in these reasons, it is clear that the Tribunal was focused on making findings of fact as to whether the appellant was impacted by COVID-19 to entitle him to challenge the respondent's termination of the residential tenancy agreement and obtain the relief provided by those provisions of the RTA. There is no question of law arising on this appeal as to the proper application or construction of the COVID-19 provisions of the RTA on the facts found by the Tribunal. 4. 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 CAT 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. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4 of the CAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. We are not satisfied that the issues in the present appeal raise for our consideration any of the matters listed above from Collins v Urban to warrant us granting leave to appeal. For the reasons we further explain below, we can discern no substantial miscarriage of justice suffered by the appellant arising from the decision of the Tribunal. Consideration COVID-19 pandemic legislative provisions 1. The appellant challenged the termination on the basis that he was COVID-19 pandemic impacted. 2. In response to the COVID-19 pandemic, Part 13 of the RTA was enacted. Part 13 contains ss 228A to 228C. Also, the Residential Tenancies Amendment (COVID-19) Regulation 2020 (NSW) introduced Part 6A into the Residential Tenancies Regulation 2019 (NSW), containing Regulations 41A to 41E. 3. Section 228A of the RTA is a definitional section, defining terms such as "impacted tenant," "household" and "moratorium period" (which is from 15 April 2020 to 15 October 2020). 4. Section 228B defines when a household is impacted by the COVID-19 pandemic. Section 228C deals with termination by tenants. 5. Therefore, relevant to this appeal in the first instance is Section 228B of the RTA: 228B. When a household is impacted by COVID-19 pandemic (1) For the purposes of this Part, a household is impacted by the COVID-19 pandemic if— (a) any 1 or more rent-paying members of the household have— (i) lost employment or income as a result of the impact of the COVID-19 pandemic, or (ii) had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or (iii) had to stop working, or materially reduce the member's work hours, because of— (A) the member's illness with COVID-19, or (B) another member of the household's illness with COVID-19, or (C) the member's carer responsibilities for a family member ill with COVID-19, and (b) as a result of any of the matters stated in paragraph (a), the weekly household income for the household has been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of the matters. (2) In this section— weekly household income means the total of the weekly income, including any government payments, received by each rent-paying member of the household. 1. Section 228B was explained by the Tribunal in Serious v Barlow; Barlow v Serious [2020] NSWCATAD 3 at [33] in the following terms: That section may be summarised by saying there are two tests that both need to be satisfied. The first test, set out in sub-section (1)(a), can be satisfied in any one of three ways. The second test, set out in sub-section (1)(b), requires that one of the three matters in the first test must have reduced the weekly household income "by at least 25% compared to the weekly household income for the household before the occurrence of any of those matters". 1. Regulation 41B of the Regulations is in the same terms as s 228B of the RTA. 2. Regulation 41C imposes certain prohibitions on a landlord during the moratorium period. These include preventing a landlord giving an impacted tenant a notice of termination or applying to the Tribunal for an order for termination of a residential tenancy agreement with an impacted tenant. 3. For the reasons set out below, we are of the view that the appellant is not COVID-19 impacted tenant for the purposes of the RTA and Regulations. Six Grounds of Appeal 1. As stated above, the Notice of Appeal raised six matters as grounds of appeal in support of the appellant's contention that the decision of the Tribunal was not fair and equitable. On this appeal we are principally concerned with the second ground, namely whether the Tribunal did not give appropriate weight to certain evidence before it. We deal with that ground later in these reasons after dealing first with grounds 1 and 3 to 6 of the Notice of Appeal. Ground 1 1. The first ground in the Notice of Appeal is not a proper ground of appeal. The appellant contends that the appellant "had no idea that alI of all [sic] evidence was required to be submitted in writing prior to the hearing..." 2. Having regard to the orders of the Tribunal on 25 June 2020, the reasons for those orders being made and the comments of the Tribunal to which we refer below from the "transcript", we are satisfied that the appellant had sufficient opportunity to advance his case by the filing and service of evidence and that there has been no denial of procedural fairness. 3. Using the appellant's version of the "transcript" (which possibly contains some mistranscriptions), the Member is recorded as saying to Mrs Pretorius at the hearing on 10 August 2020 the following: (10:21) Let me tell you very very clearly, why I adjourned on the last occasion. The principle [sic] reason on why I adjourned on the last occasion was because, you did not have the material in. [the member then read the orders made on 25 June 2020 which we have referred to above]; (17:12) I suggested you get advice about the covid-19 thing. In fact we talked about it on the last occasion. [another reference to the adjournment and the orders of 25 June 2020] Ground 3 1. In the third ground, the appellant contended that "no verbal evidence was accepted and was brushed off". The directions made on 25 June 2020 required the parties to file and exchange all written material to be relied upon prior to the hearing. We were not taken to a particular section of the transcript which demonstrates that oral evidence was disregarded. A party cannot make submissions at a hearing and expect those submissions to be accepted as evidence, particularly where the other party may not be able to properly respond or deal with it. Ground 4 1. The fourth ground refers to a statement from the "transcript" said to have been made by the Tribunal at the hearing. Accepting the accuracy of that statement in the "transcript" for present purposes, the Member is recorded as saying to the respondent's agent words to the effect that he suspected the appellant and his family were COVID - 19 affected. That is not a finding and no such finding was made by the Tribunal. It is plausible too that the Member had not by then conclusively determined the issue and made up his mind at that stage. The timing from the "transcript" records there was another 24.75 minutes of the hearing after that comment and before the Tribunal made its final decision on the matter. 2. The Tribunal may have suspected that the appellant was COVID-19 impacted in some way but not necessarily within the meaning of s228B of the RTA. Further, as we discuss below, the Member was at all times emphasising to the appellant's representative the need for the appellant to establish by evidence that he was COVID-19 impacted. The Tribunal is required as a matter of due process and law to only make findings by reference to evidence established on the balance of probabilities and not mere suspicion. To find otherwise is, as we have set out above, an error of law and makes any such finding made on that basis subject to a right of appeal as being an error of law: per Prendergast. Ground 5 1. The fifth ground concerns some proposal said to have been put by Mrs Pretorius to the respondent's property manager. That is not a ground of appeal from a finding made by the Tribunal or arising from any issue that was before the Tribunal. Ground 6 1. The sixth ground asserts that the appellant and his family do not receive government benefits or assistance as they are not permanent residents or citizens of Australia. Again, this not a ground of appeal from a finding made by the Tribunal or arising from any issue that was before the Tribunal. Evidence not given Appropriate Weight - Ground 2 1. In our view therefore, the real issue for our determination on this appeal is raised by ground 2 which states: (2) The evidence we did provide was not given the appropriate weight: a. [L]etter from employer confirming loss of employment as a direct result of COVID-19. b. Letter from Ingrid's GP outlining the severity of her illness and what causes further deterioration. Homelessness would of course be extremely detrimental. c. Bank statement demonstrating household income prior [to] being affected by COVID-19. This gives an indication of how quickly arrears would have been paid off if not affected by COVID-19. 1. It is convenient to deal first with the matter raised by sub-paragraph (b). Health of Mrs Pretorius 1. Notwithstanding that Mrs Pretorius is in ill health (which we have accepted and recognised in allowing an extension of time to file the Notice of Appeal) and the consequences of "homelessness" would of course be dire, there is no discretion afforded to the Tribunal under the RTA and Regulations if a person is not found to be COVID-19 impact affected. As noted by the Tribunal in Serious at [35]: The difficulty of this case is that the COVID-19 pandemic has created severe difficulties for both the landlords and the tenants and the decision as to whether or not the tenancy should be terminated will cause additional hardship for whichever party is unsuccessful. 1. In an email dated 10 August 2020 from the agent to the appellants after the making of the Tribunal's orders: "You have taken enough advantage of the landlord by living in this house for seven months without paying any rent, so I do hope you have the decency to return the courtesy by leaving the house as soon as possible." 1. The Reply also refers to the "grievous financial stress for the landlord" caused by the non-payment of rent since 2 January 2020. 2. We raise this only to illustrate that the circumstances under consideration here are difficult for both parties. However, the RTA does not permit the Tribunal or the Appeal Panel to exercise any discretion on the basis of hardship unless the appellants are able to establish that the reason for non-payment of rent causing a breach of the residential tenancy agreement was because they were relevantly COVID-19 impacted. 3. By relevant, we mean that there must be a causal connection between the impact of the COVID-19 pandemic and the non-payment of rent causing a breach of the residential tenancy agreement. 4. We now deal with the other two matters raised by ground 2 in sub-paragraphs (a) and (c). Evidence of Loss of Employment 1. The appellant submitted that "if the appropriate weight had been given to our evidence when determining our matter," the Tribunal would not have been satisfied that it is fair and reasonable, in all the circumstances to make a termination order, referring to r 41B of the Regulations (and which as we have discussed above, is relevantly in the same terms as s 228B of the RTA). 2. Doing our best on the material admitted into evidence on the appeal and in the absence of published reasons or an actual transcript of the proceedings on 10 August 2020, we are satisfied that the Tribunal was correct in its finding that the appellant had not lost employment or income as a result of the impact of the COVID-19 pandemic. Accordingly, it was open to the Tribunal to find that that the impact of COVID-19 was not the reason behind the appellant's failure to pay rent in accordance with the residential tenancy agreement. 3. Using the appellant's version of the "transcript," the Member is recorded as having regard to the appellant's evidence and saying at the hearing on 10 August 2020: (14:07) Well it is not sufficient evidence - I'm reading it as I'm talking to you it is not sufficient evidence to prove your [sic] COVID affected. (17:55) ... But excuses do not get you out of being terminated, the evidence may well have done so. But [sic] needed a lot more than what you've provided. (23:35) Member has said that none of the evidence provided was strong enough to support us. That none of it showed that we were COVID affected. (23:50) I have read every one of them - Documents 1. The Tribunal then made the following finding at the end of the hearing: (54:23) I am not satisfied on the evidence the tenant has given been to provide an opportunity to provide [sic]. That the family is Covid effected [sic]. As the material provided is insufficient for me to make that finding. Accordingly the residential tenancy is terminated ..." 1. It is essentially that above finding which was challenged on the appeal and which we find was open for the Tribunal to make. The Tribunal was referring to the same documents and evidence relied upon by the appellant in this appeal. We therefore propose to discuss some of that evidence and consider whether the Tribunal failed to afford appropriate weigh to that evidence as contended by the appellant. 2. The appellant relied upon a series of letters "confirming loss of employment as a direct result of COVID-19". Those letters were contained within Exhibit A and were purportedly signed by a Mr Brian Suttie, Project Manager of the Saade Group (Saade) Mongolian operations. Each of the letters was addressed: "To whom it may concern". The italics in the extracts from the letters to which we now refer are our emphasis. 3. The first letter to which we were taken on behalf of the appellant was a letter dated 9 October 2019 from Mr Suttie, to show that the appellant was expected to commence work with Saade "around the end of November" (ie 2019) as a site-based project manager in Mongolia. 4. In a letter dated 5 February 2020, Mr Suttie said that Mr Pretorius was to be joining Saade on 2 March 2020 as a project manager based in Mongolia but that did not eventuate because of several projects being put on hold. There was no mention of that "hold" being due to COVID-19. 5. The first mention of COVID-19 was in a letter dated 24 June 2020, again from Mr Suttie, who said that Mr Pretorius "would have joined Saade Group around the end of March this year, [but] this did not materialize due to the Covid 19 pandemic." The letter stated that Mr Pretorius "will be joining" Saade "once the Covid 19 border restrictions have been lifted in Mongolia and the international travel ban by Australia is open." 6. In another letter of the same date of 24 June 2020, also purportedly from Mr Suttie, he stated: "This letter is to confirm that I had arranged employment for Vincent Pretorius in Western Australia to commence in the middle of May. Due to the Covid 19 border restrictions within Australia the employment opportunity fell through. I have previously advised that he would have joined the Saade Group around the end of this year being 2019." 1. Curiously, Exhibit 1 tendered by the respondent includes an identical letter of 24 June 2020 but which relevantly said Mr Pretorius "would have joined Saade Group around the end of this year being 2020." The Reply states that this letter was emailed to the respondent "on the same date of the hearing on 10 August in the form of [a] Word document. We highly suspect the legitimacy and authenticity of the document." 2. In a letter dated 23 August 2020, Mr Suttie supported the appellant's application for a visitor's visa to enable Mr Pretorius to attend his daughter (Kaleigh's) wedding in Australia on 13 June 2019. 3. In another letter dated 23 August 2020 from Mr Suttie, he stated that Mr Pretorius is "currently employed" by Monadelphous Mongolia LLC (MMLLC) and had commenced his employment with MMLLC on 6 December 2017. This letter was apparently written in support of a visa application to enable Mr Pretorius to return to Mongolia - presumably after his daughter's wedding on 13 June 2019. That is consistent, at least in the context of the letter, because the completion date of the two work packages awarded to MMLLC is said to be July 2019 and Mr Pretorius' "role in the successful completion of the projects is critical ..." The date of the letter of 23 August 2020 seems to us to be inexplicable. 4. The above raises some matters which cause us concern as to the reliability, probative value and weight to be attributed to that correspondence which is relied upon by the appellant. 5. In any event, accepting the letter at face value for present purposes, the most that these sometimes curiously dated letters can establish is that any loss of employment or salary suffered by Mr Pretorius as the result of the impact of COVID-19 did not arise until March 2020. 6. The letter of 5 February 2020 provided a reason for Mr Pretorius not commencing work on 2 March 2020. That was because the projects were put on hold. As we have said above, there is no mention in that letter of that "hold" being due to COVID-19. Also, the appellant's written submission said that Mr Pretorius did not return to Australia from South Africa until 21 March 2020. 7. The inability to resume work as a purported result of COVID-19 arose at the very earliest at "the end of March this year" (ie 2020). That was according to the first of the three letters each apparently dated 24 June 2020 and referred to above 8. We are not satisfied that the evidence relied upon by the appellant has established any nexus between the non-payment of rent from 3 January 2020, the breach of the residential tenancy agreement and his inability to obtain employment in Mongolia from the end of March 2020. Loss of Income 1. By reference to bank statements in Exhibit A, the appellant submitted that the last income received by the appellant was on 7 August 2019, in the sum of $46,332.43. 2. The appellant's lack of work and income thereafter up to the end of March 2020 has not been attributed to the impact of COVID-19 and nor in our view could it be. 3. It appears to us from the evidence that the appellant's inability to pay rent from 10 January 2020 was most likely caused by the fact that he was unemployed from August 2019, he then travelled to South Africa from 31 December 2019 until 21 March 2020 and irrespective of whether he was unable to obtain employment in Mongolia at the end of March 2020 because of the COVID-19 border closures, he did not lose his employment or income at the material time of 3 January 2020 when he stopped paying rent. 4. This can be seen in part from the pattern of payments of the rent of $670 per week (usually paid monthly in the sum of $2,680) from the date that the appellant said he received his last salary on 7 August 2019, by reference to the rental ledger in Exhibit 1: 1. for the period 2 August to 29 August 2019, Mrs Pretorius paid the monthly rent of $2,680 (and not Mr Pretorius as was invariably the case before that time); 2. for the period 30 August to 19 September 2019, the rent was paid by Mr Pretorius for 3 weeks and not a full month ($2,010); 3. Mr Pretorius paid 10 weeks rent ($6,700) for the period 20 September until 28 November 2019; 4. the monthly rent of $2,680 was paid by Mr Pretorius for the period 29 November to 26 December 2019; 5. Mr Pretorius paid one week's rent of $670 for the period 27 December 2019 to 2 January 2020; and 6. no rent was paid from 3 January 2020. 1. Even accepting for present purposes that the appellant was unable to obtain future employment at the end of March 2020 because of COVID-19, we do not accept that the impact of COVID-19 was the cause of him not paying the rent from that much earlier pre-COVID-19 time, namely from 3 January 2020 and then being in breach of the residential tenancy agreement which remained an ongoing breach over several months. 2. There is no evidence linking the non-payment of rent from that date of 3 January 2020 and when Mr Pretorius was in South Africa, to any COVID-19 related matter. 3. Whether the appellant was not able to secure employment in Mongolia, from the "end of March" 2020 and even if we accept the rather unsatisfactory evidence in the various letters from Mr Suttie, the non-payment from 3 January 2020 had nothing to do with his apparent inability to return to Mongolia because of the subsequent closure of borders due to COVID-19. 4. The appellant's reliance on bank statements to demonstrate that the household income was affected by COVID-19 and "how quickly arrears would have been paid off if not affected by COVID-19" addresses the wrong question. 5. In our opinion, the test required under section 228B is for COVID-19 to impact the tenant's ability to pay rent as and when it is payable and due under the residential tenancy agreement so as to cause the tenant to be in arrears for rent. The test is not whether rental arrears that are not caused by COVID-19 cannot be paid because of the impact of COVID-19. The test in the present circumstances under consideration, is whether at the time the breach first occurred, namely when there were rental arrears of more than 14 days and which remained unrectified at the time the Notice of Termination was issued, that breach was the result of the impact of the COVID-19 pandemic. Clearly, in this case, that breach at the relevant time in January 2020 was not caused by the COVID19 pandemic, even on the appellant's case. 6. We are satisfied that despite the absence of reasons and lack of a proper transcript of the proceedings, the Tribunal afforded the appellant a proper opportunity to present his case and that at the end of the hearing, it was open to the Tribunal for the reasons we have set out above, to find that the appellant was not relevantly COVID-19 impacted and accordingly, the Tribunal did not err in ordering the termination of the residential tenancy agreement. Disposition of the appeal 1. We see no error in the finding made by the Tribunal on the evidence before it. 2. Having reviewed all of the evidence before the Tribunal and admitted in this appeal, as well as considering the detailed oral submissions made on behalf of the appellant at the hearing, we cannot discern any factual basis to establish that the non-payment of rent by the appellant from 3 January 2020 was the result of the impact of the COVID-19 pandemic. 3. We are satisfied that the findings and conclusions reached by the Tribunal were reasonably open for the Tribunal to make and in particular the finding that the appellant's failure to pay rent in accordance with the residential tenancy agreement was not the result of the impact of the COVID-19 pandemic as the appellant is required to establish under s 228B of the RCA. 4. We see no error in the Tribunal ordering the termination of the appellant's residential tenancy agreement for failing to pay rent to the respondent in accordance with that agreement. 5. We refuse leave to appeal and dismiss the appeal. Orders 1. We make the following orders: 1. Extend the time for the filing of the appellant's Notice of Appeal to 3 September 2020. 2. The stay of order 2 of the Tribunal's orders made on 10 August 2020 is lifted. 3. Leave to appeal refused. 4. 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: 22 December 2020