Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Asuzu v Su [2021] NSWCATAP 103 Hearing dates: 13 April 2021 Date of orders: 13 April 2021 Decision date: 22 April 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member C Mulvey, Senior Member Decision: 1. The appeal is dismissed. 2. The stay order made on 12 January and continued on 2 February 2021 is discharged. Catchwords: LEASES AND TENANCIES – legislation protecting tenants – covid-19 pandemic provisions of the Residential Tenancies Act 2010 (NSW) – impacted tenant – whether household impacted by the COVID-19 pandemic – proof of reduction in household income by reason of pandemic Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cl 4 Residential Tenancies Act 2010 (NSW), ss 228A, 228B, 228D Residential Tenancies Regulation 2019 (NSW), rr 41A, 41B, 41C, 41D Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Texts Cited: Nil Category: Principal judgment Parties: Ignatius Asuzu (Appellant) Quiyan Su (Respondent) Representation: Appellant (Self-Represented) S Casado (Agent) (Respondent) File Number(s): 2021/00056027 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 18 December 2020 Before: S Hennings, General Member File Number(s): RT 20/46668 REASONS FOR DECISION 1. This is an appeal by a tenant from orders of the Tribunal terminating his tenancy and ordering him to pay arrears of rent in the sum of $8,060. 2. At the conclusion of the hearing of the appeal we announced and made orders that the appeal be dismissed, and that the stay order made on 12 January 2021 and continued (with a slight variation) on 2 February 2021 be discharged. We said we would provide reasons for those orders at a future time. These are those reasons. 3. The basis of the appeal was the tenant's contention that the Tribunal erred in failing to find that the tenant was an impacted tenant as defined in the now repealed COVID-19 pandemic provisions of the Residential Tenancies Act 2010 (NSW) (the "RTA"), and thus erred in making the termination order. 4. As explained below the Tribunal did not err. It correctly recognised that for the COVID-19 pandemic provisions to apply the appellant was required to prove that the income of the household of which he was part (which in this case consisted of the appellant and his wife) had been reduced by at least 25% as a result of COVID-19. The appellant failed to lead any evidence as to his wife's income and so failed to prove a reduction in the weekly household income as required by s 228B of the RTA. He therefore failed to prove a necessary fact for the COVID-19 pandemic provisions to apply. The COVID-19 Pandemic Provisions 1. The relevant provisions of the RTA concerning the impact of the COVID-19 pandemic on residential tenancies were contained in Part 13 of the RTA. Part 13 was repealed on 26 March 2021 [Clause 41E of the Residential Tenancies Regulation 2019 (629)] but continues to apply to the appellant's case on appeal [cl 58 of the Residential Tenancies Regulation 2019 (NSW) (the "RT Regs")]. 2. For the benefit of the appellant, we set out the relevant provisions in full below. However, the critical provisions which determine the outcome of this appeal are the definitions of "impacted tenant" and "rent-paying member of a household", and s 228B(1)(b). 3. The relevant parts of Part 13 were as follows: 228A Definitions In this Part— formal rent negotiation process means a dispute resolution process between a landlord and an impacted tenant, facilitated by NSW Fair Trading, to negotiate the rent payable under a residential tenancy agreement having regard to the specific circumstances of the landlord and the impacted tenant. household means any tenants or other persons living together in the same residential premises. impacted tenant means a tenant who is a member of a household impacted by the COVID-19 pandemic. moratorium period means the period ending at the end of 26 March 2021. rent-paying member of a household means any member of the household who regularly contributes towards the rent payable under a residential tenancy agreement for the residential premises in which the household resides. termination notice has the same meaning as in section 80. termination order has the same meaning as in section 80. 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. 228C … 229 Regulation-making power (1) The regulations under any relevant Act may provide for the following matters for the purposes of responding to the public health emergency caused by the COVID-19 pandemic— (a) prohibiting the recovery of possession of premises by a landlord, owner or proprietor of premises from a tenant or resident of the premises under the relevant Act in particular circumstances, (b) prohibiting the termination of a residential tenancy agreement, occupancy agreement or site agreement by a landlord, proprietor of premises or operator of a community under the relevant Act in particular circumstances, (c) regulating or preventing the exercise or enforcement of another right of a landlord, proprietor of premises or operator of a community by the landlord, proprietor or operator under the relevant Act or an agreement relating to the premises, (d) exempting a tenant, resident or home owner, or a class of tenants, residents or home owners, from the operation of a provision of the relevant Act or any agreement relating to premises. 1. The relevant regulation referred to in s 229 was the Residential Tenancies Regulation 2019 (NSW). Part 6A of that Regulation, headed "Response to COVID-19 Pandemic", contained the following provisions: 41A Definitions In this Part— formal rent negotiation process has the same meaning as in section 228A of the Act. impacted tenant has the same meaning as in section 228A of the Act. landlord does not include a landlord who is a social housing provider. relevant period means the period ending on 26 March 2021. residential tenancy agreement does not include a social housing tenancy agreement. tenant does not include a tenant under a social housing tenancy agreement. termination notice has the same meaning as in section 80 of the Act. termination order has the same meaning as in section 80 of the Act. 41B Prohibition on landlords terminating agreements or recovering possession during relevant period (1) For the purposes of section 229(1) of the Act, a landlord is prohibited from doing any of the following during the relevant period— (a) giving an impacted tenant a termination notice under section 87 of the Act on the ground specified in section 88 of the Act, (b) applying to the Tribunal for a termination order under section 83(2) of the Act relating to a termination notice given under section 87 of the Act, on the ground specified in section 88 of the Act, to an impacted tenant, (c) otherwise applying to the Tribunal for a termination order in relation to a residential tenancy agreement on the ground specified in section 88 of the Act if the tenant under the agreement is an impacted tenant. Note— Section 88 of the Act relates to a termination notice given by a landlord on the ground of a breach of the residential tenancy agreement arising solely from a failure to pay rent, water usage charges or utility charges payable by the tenant. (2) However, a landlord may give a termination notice or apply for a termination order that the landlord is otherwise prohibited from giving or applying for under subclause (1) if— (a) the landlord has participated, in good faith, in a formal rent negotiation process with the impacted tenant, and (b) it is fair and reasonable in the circumstances for the landlord to give the termination notice or apply for the order. (3) For the purposes of section 111(2) of the Act, a termination notice that is not given in accordance with this clause is taken not to have been given in accordance with Part 5 of the Act. (4) In dealing with an application by a landlord or an impacted tenant relating to a termination notice or a termination order, the Tribunal may, for the purposes of satisfying itself of the matters specified in subclause (2), have regard to the following— (a) any advice provided by NSW Fair Trading relating to the participation of the landlord or impacted tenant in the formal rent negotiation process, including whether the landlord or impacted tenant refused, or refused to make, a reasonable offer about rent, (b) whether the impacted tenant has continued to make any payments towards the rent, (c) the nature of any financial hardship experienced by the landlord or impacted tenant, including the general financial position of each party, (d) the availability and affordability of reasonable alternative accommodation for the impacted tenant, (e) any special vulnerability of the impacted tenant, (f) the public health objectives of— (i) ensuring citizens remain in their homes, and (ii) preventing all avoidable movement of persons. (5) Subclause (4) does not limit the matters the Tribunal may have regard to. 41C Termination dates for particular termination notices given during relevant period (1) This clause provides, for the purposes of section 229(1)(c) of the Act, for the regulation of a landlord's right to specify a termination date in a termination notice given under particular provisions of the Act during the relevant period. (2) Despite any other provision of the Act or this Regulation, a landlord must not, in a termination notice given for the purposes of the following provisions during the relevant period, specify a termination date that is earlier than 90 days after the day on which the notice is given— (a) section 84, (b) section 85, (c) section 87, other than a termination notice on the ground specified in section 88, Note— Section 88 of the Act relates to a termination notice given by a landlord on the ground of a breach of the residential tenancy agreement arising solely from a failure to pay rent, water usage charges or utility charges payable by the tenant. (d) section 94. 41D Restriction on listing impacted tenants in residential tenancy databases (1) This clause provides, for the purposes of section 229(1)(c) of the Act, for the regulation of a landlord's right to list personal information about a person in a residential tenancy database. (2) Despite section 212 of the Act, a landlord or agent of a landlord must not list personal information about a person in a residential tenancy database if— (a) the breach of the residential tenancy agreement arose solely from a failure to pay rent or charges specified in section 88(1) of the Act, and (b) at the time of the breach, the person was an impacted tenant. 1. The result of those provisions is that for the appellant to gain the protection of the COVID-19 pandemic provisions (namely regs 41B, 41C and 41D) he was required to prove that the weekly income of the household of which he was part (in this case being the appellant and his wife) had been reduced by at least 25% because of the pandemic. Background 1. The appellant had entered into a residential tenancy agreement with the respondent. 2. The Tribunal found 1. The tenant had been breaching the tenancy agreement by failing to pay rent. 2. The tenant was more than 14 days behind in rent on the date that the termination notice was served by the landlord. 3. The tenant was given 14 days or more to vacate the premises in accordance with the termination notice. 4. The tenant had failed to vacate the premises as required. 5. The tenant had frequently failed to pay the rent, on or before the day set out in the residential tenancy agreement. 6. Sections 82, 87, 88 and 89(5) of the RTA were all satisfied and applied. 7. The landlord's application had been properly lodged, within time and could proceed. 1. None of those findings were challenged on appeal, with the possible exception of the last finding insofar as the respondent's application could not have proceeded if the appellant was found to be an impacted tenant. 2. In relation to the appellant's claim to have the protections offered by the RTA's pandemic provisions the Tribunal said: "5. The tenant claimed that he is protected by the COVID-19 pandemic legislation. As stated above the tenant did not submit any documents in the matter. The only relevant documents regarding the tenant's situation were submitted by landlord. These were a financial hardship application submitted by the tenant to the landlord dated 28 April 2020 and ANZ bank statements in the joint names of Asuzu Ignatius and lgwiro Chidinma Pamela from January to March 2020. There was (sic) also unnamed Westpac Bank statements from May to August 2020. There was a copy of an application to Family & Community Services for rental assistance identifying that the rental assistance was being sought in relation to an illness/medical condition. 6. The tenant stated that he occupied the premises with his wife. The tenant stated that he was an uber driver and there was no work. The tenant did not submit any business records. The tenant stated that he could no longer drive his motor vehicle because the engine has failed. The tenant stated that his wife works but he did not know what money she earns. 7. Section 228A states an impacted tenant means a tenant who is a member of a household impacted by the COVI D-19 pandemic. Section 2288 sets out when a household is impacted by COVID-19 pandemic. Firstly, any issue must be as a result of the COVID-19 pandemic. Then, only applies where 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. The ANZ joint bank account statements of Asuzu Ignatius and lgwiro Chidinma Pamela show that the tenant and his wife were both jointly paying the rent for the property to the landlord. 8. Based on the evidence submitted, the Tribunal was not satisfied that the tenant or the landlord's document's established that the household is impacted by COVID-19 pandemic per Section 2288 of the Residential Tenancies Act 2010. The Tribunal was not satisfied that the tenant's inability to work as an uber driver is because of the COVI D-19 pandemic. The tenant stated himself that he could no longer drive his motor vehicle because the engine has failed. Additionally, both the tenant and his wife are rent-paying members of the household. The tenant has failed and refused to disclose any of his wife's income details. As such, no proper assessment of the weekly household income or any reduction is possible." The Appeal 1. In that passage we have just quoted the Tribunal, in our opinion, correctly identified the relevant provisions of the RTA and correctly applied them. 2. On the appeal, the appellant repeatedly made submissions to the effect that his income had been reduced to near zero by the pandemic, and thus the Tribunal erred in failing to find he was an impacted tenant. 3. He submitted that it was an obvious fact that people (in general), and himself in particular, would not have earned any money as a result of the lockdown, that we should take "judicial notice" of that fact and that if we did not then we would not be giving him a "fair go" and we would be a "kangaroo court". 4. We do not agree. 5. Although, as a general proposition, it is notorious that many citizen's incomes were adversely affected by the pandemic, and many severely so, it was not notorious that the appellant's own weekly income was adversely affected by the pandemic (or, more accurately, his household's weekly income). 6. He was required to prove that this was so but the Tribunal (which heard his oral evidence, an advantage denied us) found that he did not do so. The Tribunal might rightly be regarded as a kangaroo court if it acted on the appellant's assertions rather than evidence and proof. That evidence and proof was within the appellant's power to provide but he declined to produce it. The Tribunal did not err in insisting on it being produced if it was to find in his favour. 7. In his submissions to us the appellant repeatedly made reference to his oral evidence before the Tribunal (to the effect that his income had been adversely affected by the pandemic), but he had not provided us with a copy of the sound recording or transcript of that oral evidence as he had been directed to do on 17 February 2021. 8. Therefore, we were unable to determine whether the Tribunal had erred in its findings in relation to the appellant's income and erred in its findings as to whether and to what extent the appellant's income had been affected by the pandemic. 9. The appellant said that he could not afford to obtain a copy of the sound recording or transcript. We accept that transcripts are expensive, but not so sound recordings. 10. The fee for a sound recording in the Tribunal is $45 for each hearing event and that fee may be waived in full or in part by the Tribunal's Principal Registrar upon application by a person if that person demonstrates that paying the fee would cause him or her serious hardship or if there is some other special reason. 11. The appellant did not satisfy us that he was unable to afford that $45 fee, and he made no application to the Principal Registrar to have that fee waived prior to the hearing of the appeal. 12. In those circumstances it would not be procedurally fair to the respondent for us to act on what the appellant said (in his oral submissions to us) was his evidence to the Tribunal. We note that the person who represented the respondent on this appeal was not the person who represented the respondent before the Tribunal. 13. Perhaps the more fundamental problem for the appellant on this appeal was the fact that he gave no evidence to the Tribunal to the effect that his wife's weekly income had been adversely affected by the pandemic, and thus there was no evidence upon which the Tribunal could have found that the appellant's weekly household income (being the combined income of the appellant and his wife) had been adversely affected by the pandemic by at least 25%. Without evidence that the appellant's weekly household income (as distinct from the appellant's weekly income) had declined by at least 25% as a result of the pandemic, the Tribunal was unable to apply the pandemic protections to the appellant. 14. Therefore, we can see no error in the Tribunal's decision and the appeal must be dismissed. Adjournment Application 1. During the hearing of the appeal, when the twin problems of a lack of a sound recording and lack of evidence of a decline in his wife's weekly income were brought to the appellant's attention, he sought an adjournment to obtain those materials. 2. The respondent opposed the application. 3. We refused the application and said we would include reasons for that refusal in this decision. 4. We declined the application because we were not satisfied that the appellant, who said he could now obtain evidence as to the decline in his wife's weekly income, was not able to do so when the matter was heard by the Tribunal. 5. If the appellant did now obtain that evidence, he would need to establish on this appeal that that evidence was not reasonably available to him at the time of the Tribunal proceedings – see Sch 4, cl 12, of the Civil and Administrative Tribunal Act 2013 (NSW). What "not reasonably available" means was explained in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 6. We were not satisfied that that evidence was not reasonably available to him at the time of the Tribunal proceedings and therefore to allow an adjournment would serve no purpose as the evidence would not be admitted on appeal. 7. We also note that the appellant had been provided a reasonable opportunity to provide that evidence in the lead up to the Tribunal hearing with the Tribunal making the usual direction for the parties to lodge their evidence with the Tribunal and to serve that evidence on the other party. 8. The appellant had also been granted another opportunity to lodge and serve that evidence. On 17 February 2021 the Appeal Panel directed him to lodge and serve any evidence he had not provided to the Tribunal and on which he intended to seek permission to rely upon on the appeal. 9. Even though the Tribunal said what it did in the passage we have quoted at [13] above, a passage which made clear that the absence of evidence of a relevant decline in his wife's income was fatal to the appellant's case, he did not lodge and serve that evidence before the hearing of the appeal. 10. Further, although cognisant that a $45 fee for a sound recording may be difficult for some parties to afford, the appellant had not applied for a waiver of that fee from the Principal Registrar. Therefore, we were not satisfied that there was a reasonable excuse for not obtain the sound recording before the hearing of this appeal. 11. Further, there was no explanation from the appellant why, if he could obtain that sound recording now, he could not have obtained it before the hearing of his appeal and in accordance with the Appeal Panel's directions made on 17 February 2021. 12. The arrears are substantial for a residential tenancy case, and there is prejudice to the respondent in further delaying the finalisation of the proceedings. 13. Therefore, in all of those circumstances, we refused the application for adjournment. Orders 1. The orders are: 1. The appeal is dismissed. 2. The stay order made on 12 January and continued on 2 February 2021 is discharged. ********** 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: 23 April 2021