Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liu v Van Rhoon [2020] NSWCATAP 287 Hearing dates: 2 November 2020 Date of orders: 24 December 2020 Decision date: 24 December 2020 Jurisdiction: Appeal Panel Before: S Thode, Senior Member M Gracie, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL – LAND LAW - Residential Tenancy -– termination of residential tenancy agreement - notice of termination invalid - error of law - premises subsequently vacated Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Residential Tenancies Regulations 2019 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: William Liu (Appellant) Kerry van Rhoon (Respondent) Representation: Solicitors: X Sun Solicitor Aushine Lawyers (Appellant) Respondent (Self Represented) File Number(s): AP 20/37686 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 24 August 2020 Before: P Moran, Senior Member File Number(s): RT 20/202292 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 24 August 2020. 2. The internal appeal was brought by William Liu, the landlord, against the tenant Kerry van Rhoon. The landlord appeals against the decision of the Tribunal to dismiss the application for termination under section 84 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 landlord and to the respondent as the tenant. Background 1. The following facts are uncontroversial. The parties entered into a residential tenancy agreement on or about 1 September 2019 for a fixed term of 9 months for premises in Turramurra. On 30 January 2020 the landlord served a written notice of termination under section 84 of the RT Act on the tenant for a termination of a fixed term agreement. The landlord required the tenant to give vacant possession of the premises on 30 April 2020. On or about 15 April 2020 the managing agent acting on behalf of the landlord sent an email to the tenant in the following terms: Lease expiry: The lease expiry is 30 April 2020, but the landlord will allow you to overstay for 21 days to 21 May 2020. 1. In the same email the agent states: Rental Payments: What is the best amount you can pay (after allowing basic living expenses). They will allow you to pay a reduced rental and make up the difference later on subject to any reduction to be passed on from the government. The current rent is $650 per week (this is already a reduced rental as it was agreed this is a short-term lease). 1. An application to the Tribunal was lodged on 8 May 2020 seeking orders pursuant to section 84 of the RT Act seeking a termination order at the end of a fixed term. The original application also sought orders pursuant to section 187(1)(b) of the RT Act for a termination order or an order for the possession of the premises. The matter was listed for a conciliation and group list hearing on 25 June 2020. The parties were unable to settle the matter and a final hearing was listed for 24 August 2020. 2. For the reasons that follow, although an error law is established we have decided to dismiss the appeal. As the tenant vacated the premises on 8 October 2020, thereby terminating the tenancy in accordance with the RT Act, an order for termination is no longer necessary or possible and for that reason we have decided that the original orders dismissing the landlord's application must be affirmed. Tribunal proceedings and decision 1. The matter was listed for hearing on 24 August 2020 and the Tribunal dismissed the landlords' application for termination under s 84 of the RT Act. 2. The decision was reserved and written reasons for decision were published to the parties on 24 August 2020. 3. The relevant reasons for decision are set out as follows at [16] to [17], [21] and [24]: 16. I further find that the applicant provided to the respondent a Notice of Termination dated 30 January 2020; further, that the notice relied solely on section 84 [sic] the RTA namely termination of a fixed term agreement; the landlord requiring by that notice the respondent to give vacant possession of the premises on 30 April 2020 being the end of the RT lease period. 17. I further find that the applicant permitted the respondent to remain in occupation pursuant to the RTA after 30 April 2020 such that, beyond that date, the respondent's occupation of the Premises was by way of periodic tenancy. I base this finding on the email of the applicant's solicitor to the respondent (copy to the managing agent) of 15 April 2020 were by specific reference was made to the lease expiry date being 30 April 2020 but the applicant landlord permitting the respondent to remain an occupation beyond that date. By permitting the respondent to remain an occupation beyond 30 April 2020 the respondent could not, beyond that date, seek to rely upon the 30 January 2020 notice of termination which, by its terms, was specifically reference to the termination of a fixed term agreement and which required vacant possession on 30 April 2020. … 21. The termination notice relied upon in the application, is, as I have found, a notice that the applicant is not able to enforce. There is no evidence before the Tribunal of the giving of a termination notice to the respondent under s85 of the Act namely a notice referable to a periodic agreement. The notice based on breach (failure to pay rent) is not relied on. … 24. The applicant did not neither (sic) lead evidence or make submissions concerning Regulation 41C of the Residential Tenancies Regulations 2019 (NSW) (RT Regulations). That subsection provides that in dealing with an application by a landlord relating to, inter-alia, a termination order the Tribunal may have regard to the matters listed in (a) to (f) of that subsection.… In the absence of any such evidence or submission and having regard to the evidence that was presented to the Tribunal but which did not include any witness statement of the applicant a termination order under s187(1) is declined. 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, with the "leave") of the Appeal Panel: s 80(2) of the 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 3 September 2020, as well as the appellant's written submissions in support of the appeal and written submissions filed on 28 October 2020. * The Reply to Appeal lodged 10 September 2020 with attachments and the respondent's written submissions filed on 30 October 2020. 1. Both parties were satisfied that the Appeal Panel had received all documents they sought to rely on. Grounds of Appeal 1. There were four grounds of appeal set out by the landlord in the Notice of Appeal are as follows: 1. the Tribunal erred in finding that the email dated 15 April 2020 from the applicant's solicitor converted the fixed term agreement into a periodic agreement; 2. the Tribunal erred in applying regulation 41C of the Residential Tenancies Regulations 2019 (NSW) (the Regulations) to the section 84 termination notice which was issued on 30 January 2020 and to which regulation 41C has no application; 3. further to ground 2, the Tribunal failed to consider the applicant's submission dated 15 May 2020 provided to the Tribunal on 15 May 2020; 4. the Tribunal failed to consider relevant evidence. Reply to Appeal 1. The Reply to Appeal identified several matters not pursued at the hearing, no doubt in part because the respondent had by then vacated the premises. The respondent supported the reasons and orders of the Tribunal. The appellant's submissions 1. In respect of the first ground of appeal, the landlord submitted that the issue under appeal is a question of law in that the Senior Member erred when he considered that by reason of the agreement between the landlord and tenant to the effect that the tenant may remain in the premises after the end of the fixed term, the parties had intended to create a periodic tenancy thereby rendering the notice of termination void and of no effect. 2. It was submitted that the permission to overstay was a voluntary gesture of goodwill by the landlord with no intention from either party to create a binding periodic residential tenancy agreement. 3. The landlord also submitted that the Senior Member erred at law in finding at [17] of the reasons for decision that by permitting the respondent to remain in occupation beyond 30 April 2020 the respondent could not, beyond that date, seek to rely upon the 30 January 2020 notice of termination which, by its terms specifically referenced the termination of the fixed term agreement and which required vacant possession on 30 April 2020. The respondent's submissions 1. It is the tenant's position that the Senior Member provided sufficient reasons why the section 84 notice became unenforceable and that the Tribunal was correct in dismissing the landlord's application. It was further submitted that as the landlord's application was dismissed, there was no valid order of termination made by the Tribunal and the tenant was not obliged to provide vacant possession of the premises. 2. Instead, the tenant was illegally forced from the premises because the landlord, a developer, continued to destroy the premises using heavy machinery whilst the tenant was in occupation of the premises until the premises were rendered uninhabitable and became dangerous for the tenant to occupy. The tenant eventually vacated the premises in or about 8 October 2020, thereby terminating the tenancy. 3. It was the tenant's submission, advanced by her solicitor, that the Appeal Panel should dismiss the appeal and award damages including exemplary damages in the sum of $15,000 being the jurisdictional limit of 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. As we have set out above, the appellant contended that the Tribunal made an error of law so that the leave of the Appeal Panel is not necessary. Applying the principles set out in Prendergast, above, it is incumbent upon us to identify whether or not the appellant has raised an error of law. Consideration Ground One 1. In respect of ground one of the appeal, we find an error of law established. However, for the reasons we set out later, we are not of the view that the original order, dismissing the application, should be varied or set aside. As the orders will not be varied or set aside, we have decided that it is appropriate to dismiss the appeal. 2. The Tribunal erred when finding that the notice of termination under section 84 was of no effect because the parties, by agreeing to extend the vacate date, had entered into a periodic tenancy. 3. We set out section 84 of the RT Act in full: 84 END OF RESIDENTIAL TENANCY AGREEMENT AT END OF FIXED TERM TENANCY (1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term. (2) The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended. 1. The notice of termination served pursuant to section 84 of the RT Act was valid. The landlord had served the notice at a time before the end of the fixed term; the notice specified a termination date on or after the fixed term, being 30 April 2020 and this being a date not earlier than 30 days after the date on which the notice was given, on 30 January 2020. 2. Upon being satisfied that section(s) 84(1) and (2) of the RT Act have been complied with, it was a mandatory requirement of the Tribunal to make a termination order. 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. 3. As the Tribunal has no discretion to refuse the making of a termination order, it was not open to the Tribunal, on the facts as presented by the parties, to find that a new residential tenancy agreement had been created. The Senior Member misdirected himself when he considered that the parties by agreement had entered into a new tenancy solely on the grounds that an agreement had been reached to extend the date for possession of the premises beyond the end of the fixed term to 21 May 2020. It was erroneously considered by the Senior Member that it was not possible to extend the date for possession beyond 30 April 2020, in circumstances where section 84 specifically permits a termination notice to specify a date "on or after the end of the fixed term" (emphasis added). 4. The fact that the parties, by agreement, extended the end of the fixed term, does not if itself render the section 84 notice of termination invalid and the parties may extend any date for termination for up to 30 days after the end of the fixed term. 5. In addition, we observe that neither party on the appeal advanced an argument that the parties had entered into a new periodic agreement or that the notice of termination was invalid. The Tribunal appears to have considered this of its own accord. There is in our view no evidence to support a finding that a periodic agreement had been created and an error of law is established. 6. As we have referred above, the tenancy was terminated by reason of the tenant vacating the residential premises on or about 8 October 2020. As the tenancy agreement has been terminated, the Appeal Panel can no longer make orders for termination of the tenancy. The issue of termination is now an irrelevant consideration. For there to be a continuing controversy in relation to the issue of termination, there needs to be a primary application for a termination order that remains on foot at the time of the hearing of the appeal and which would necessitate the Appeal Panel making an order for termination of the residential tenancy agreement. 7. That circumstance no longer exists as a result of the tenant vacating the premises. Ground 2 1. As we have set out above, the landlord submitted that the Senior Member erred when he applied regulation 41 of the Regulations. 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 Regulations. 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. 2. However, the moratorium is relevant only to notices of termination dated after 15 April 2020 and is irrelevant in respect of a notice of termination served pursuant to section 84 of the RT Act. Landlords are not prohibited from serving a section 84 notice terminating a tenancy at the end of a fixed term during the moratorium by Part 6A of the Regulations. 3. We are therefore of the view that the Senior Member misdirected himself and that the consideration of the Regulations in the context of this appeal constitutes an error of law also. However in light of the fact that the tenant has vacated the premises thereby terminating the tenancy, this ground of appeal has also become irrelevant and the appeal is dismissed, and the orders made by the Tribunal are not varied or set aside. Conclusion 1. Accordingly we find an error of law established but decline to vary or set aside the orders of the Tribunal. The tenant has left the premises thereby terminating the tenancy from 8 October 2020 it is unnecessary to now vary or set aside the Tribunal's orders. Orders 1. The orders of the Appeal Panel are: 1. The appeal is 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 Amendments 11 January 2021 - [2] Typographical Error. "allow" replaced with "dismiss". 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: 11 January 2021