Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zioukin v Lang [2021] NSWCATAP 162 Hearing dates: 21 April 2021 Date of orders: 02 June 2021 Decision date: 02 June 2021 Jurisdiction: Appeal Panel Before: S Thode, Senior Member J McAteer, Senior Member Decision: (1) The appeal is allowed. (2) The orders made in RT 21/01512 on 1 February 2021 are set aside. (3) The orders made in RT 20/50065 on 6 January 2021 are set aside. (4) The Consumer and Commercial Division is to re-determine the respondent's application for termination and possession in accordance with such further directions as the Division may make. Catchwords: APPEAL – LAND LAW - Residential Tenancy – failure by Tribunal to provide reasons – Set Aside – Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 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: Andre Zioukin (Appellant) Sue Lang (Respondent) Representation: Appellant (Self Represented) A Stratikopoulos (Agent) (Respondent) File Number(s): 2021/00056101 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 5 January 2021 Before: J Bartrop, Senior Member File Number(s): RT 21/01512 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 5 January 2021. 2. The internal appeal was brought by Andre Zioukin, the tenant, against the landlord Sue Lang. The tenant appeals against the decision of the Tribunal to dismiss a set aside application pursuant to clause 9 of the Schedule 4 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). For the reasons set out below we have decided to allow the appeal and to set aside the original decision. 3. For convenience we shall refer to the appellant as the tenant and to the respondent as the landlord. Background 1. The following facts are uncontroversial. The parties entered into a written residential tenancy agreement on 23 November 2015 for a fixed term of twelve months for premises in Oatley, New South Wales. After the expiration of the twelve months term the residential tenancy agreement continued on a periodic basis. On 31 August 2020 the landlord served a "no grounds" notice of termination under section 85 of the Residential Tenancies Act 2010 (the RT Act) seeking possession of the premises on 30 November 2020. The tenant did not vacate the premises on 30 November 2020 and the landlord filed application RT 20/50065 dated 1 December 2020 seeking an order for termination under sections 85 and 87 and an order for possession under section 95 of the RT Act. The Tribunal sent a notice of conciliation and hearing by telephone (with directions) dated 1 December 2020, advising the parties that the application for termination would be heard on 6 January 2021 at 11.45am. 2. The parties were put on notice that the Appeal Panel was provided with the hearing file RT 20/50065. We have had regard to the correspondence exchanged between the parties in determining the appeal. 3. The Tribunal member indicated on the hearing sheet that the tenant was called three times and each time the call was diverted to voicemail. The hearing proceeded on an ex-parte basis and the Tribunal made the following orders: On 6 January 2021 the following orders were made: 1 1. The Residential Tenancy Agreement is terminated in accordance with: section 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 20 January 2021. 4. The tenant shall pay the landlord a daily occupation fee at the rate of $62.14 per day from the day after the date of termination, namely on 7 January 2021 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. At the time of the hearing the Tribunal telephoned the tenant on 3 occasions and left two voicemail messages. 1. On 12 January 2021 the tenant filed an application to set aside or vary the Tribunal's decision pursuant to clause 9 of the Civil and Administrative Tribunal Regulation 2013. The tenant sought to have all orders made on 6 January 2021 in file RT 20/50065 set aside. In the section "if you want to have the decision varied what orders do you want the Tribunal to make?" the tenant wrote: "in the alternative, if application to set aside is decided against me, orders 2 and 3 made on 6 January 2021 in file number RT 20/50065 are to be varied to extend termination date and time for possession, taking into account my present health condition, recent present holiday season and Covid-19 situation, that was not taken into account because I did not attend hearing. 1. In an attachment the applicant wrote that he was contacted not at the appointed time but at 11:41am, 11:43am and 11:44am and that final orders were entered at 11.45am. It was the tenant's submission in support of the set aside application, that it is a denial of procedural fairness if the Tribunal contacted a party earlier than the appointed time as he was denied the opportunity to participate in the hearing. He stated in submissions "as per the notice the conciliation/hearing was supposed to start 11:45 am and run for 15 minutes." 2. In the section "Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent" the tenant states that had he been present at the hearing he would have persuaded the Tribunal that the termination notice was invalid as it was a retaliatory eviction pursuant to section 115(2)(b) of the RT Act because the tenant had taken an action to enforce a right by not letting the landlord and her agent into the premises for a routine inspection. This, the tenant contended, was an enforcement of his right to quiet enjoyment of the premises and therefore a relevant consideration under section 115(2)(b) of the RT Act. 3. Secondly, in his set aside application the tenant submitted that a new tenancy was formed and that the Tribunal ought to consider whether the conduct of the landlord was such that the acceptance of rent after the purported termination should be taken as evidence of the creation of a new tenancy. 4. Lastly, the tenant submits that he was deprived of asking for a significantly longer suspension of possession order and submits that the Tribunal member was likely to have afforded the tenant more time to vacate the premises. 5. The set aside application was considered on the papers on 14 January 2021 and the Tribunal ordered a stay of the orders for termination and possession. The Tribunal directed the landlord to make submissions in reply to the tenant's submission by 20 January 2021. The tenant was directed to make submissions in reply to the landlord's submissions by 27 January 2021. Submissions were filed by the landlord on 28 January 2021, eight days after the time for submissions had expired. The Tribunal considered the set aside application on 29 January 2021 without the benefit of the tenant's further submissions in reply. 6. The Tribunal made the following final orders on the set aside application. 1. The stay order made on 14 January 2021 in RT 20/50065 is lifted. 2. Orders 3 made on 6 January 2021 in RT 20/50065 is varied so that the order for possession is suspended until 12 February 2021. 1. No reasons for the set aside decision were provided. 2. On 5 February 2021 the tenant wrote to the Tribunal seeking a copy of a written statement of reasons for orders and decisions made on Monday, 1 February 2021 pursuant to section 62 of the CAT Act. It is not in dispute that the tenant was not and has never been provided with written reasons for the set aside application. The Appeal 1. The tenant filed an appeal against the set aside decision on 12 February 2021 seeking to have the orders made in RT 20/01512 set aside. The Stay Order 1. The appeal was listed for directions and the order for possession made on 6 January 2021 and RT 20/50065 was stayed until 5 pm on 24 February 2021. On 24 February 2021 the order for possession was again amended and the order for possession was suspended "until further order of the Tribunal". As at the hearing of the appeal, the tenant was still in possession of the premises. Adjournment application 1. On the morning of the hearing of the appeal the tenant applied for an adjournment. The landlord and the Tribunal were given notice of this request approximately 50 minutes prior to the hearing. 2. The Appeal Panel addressed the request for adjournment at the beginning of the hearing. The main reason advanced by the tenant for the request was that as he was not permitted to attend the hearing in person due to Covid -19 provisions relating to the Tribunal, he would be disadvantaged from properly putting forward his appeal to the Appeal Panel. The tenant said that he would be 'unreasonably disadvantaged' if he appeared by telephone. 3. In addition the tenant furnished two medical certificates which he sought to tender in support of his adjournment application. However those certificates referred to back pain and dental issues from some months earlier. A further certificate dated 16 April 2021 from his GP stated that he would be unfit for work form 16 April 2021 to 18 April 2021. 4. In our view the evidence in support of the adjournment does not advance the application or explain why the hearing cannot proceed as listed. In addition, because the tenant's submissions could be put orally, and the landlord was also not attending in person, we determined that there would be no disadvantage to the tenant to hear and determine the appeal, and after a short adjournment the application was refused and the hearing proceeded. 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 12 February 2021 and the appellant's written submissions in support of the stay application filed on 12 February 2021 and a "cover letter for further submissions on the stay application" dated 22 February 2021. * The Reply to Appeal lodged 12 February 2021 attaching respondent's documents tendered in the termination application RT 20/50065. * The Appeal Panel also considered the original file RT 20/50065 and the set aside file, RT 21/01512 and the correspondence contained therein. 1. The tenant provided additional written submissions dated 17 March 2021, these have not been considered as they constitute fresh evidence. For the reasons that follow we have decided to allow the appeal and to consider the set aside application. It was not necessary for the Appeal Panel to consider additional evidence the appellant sought to rely upon. Grounds of Appeal 1. The Notice of Appeal confirmed that the tenant was proceeding on questions of law only and that leave of the Appeal Panel was not required. The tenant stated that he was appealing the set aside decision RT 21/01512 and not the orders made in the termination application RT 20/50065. 2. The grounds of appeal were particularised on page 1 of the attachment. 1. The tenant alleges he was denied procedural fairness in contravention of section 38(5)(c) of the CAT Act because the Tribunal failed to ensure that the tenant had a reasonable opportunity to serve submissions in reply before the set aside application was determined on 1 February 2021. 2. The appellant submits that he was denied procedural fairness because the Tribunal failed to consider whether the notice of termination was retaliatory under section 115 of the RT Act. 3. The tenant submits he was denied procedural fairness because the Tribunal failed to consider the tenant's further evidence and argument to demonstrate that the landlord engaged in misleading conduct because the landlord misled or deceived the tenant into believing that an inspection would take place denying the tenant the opportunity provide further argument and evidence in time for the hearing. 4. The tenant submits he was denied procedural fairness because although he requested written reasons for decision, the Tribunal failed to provide written reasons or any reasons for decision even after an application was lodged in breach of section 62 of the CAT Act. Reply to Appeal 1. The Reply to Appeal identified that the landlord supported the reasons and orders of the Tribunal. A copy of all documents tendered at the Tribunal hearing were provided to the Appeal Panel and the tenant, These consisted of the notice of termination, dated 31 August 2020, a copy of the residential tenancy agreement dated 23 January 2015, a two page letter from the landlord regarding her dealings with the tenant and a copy of the Appeal Panel directions for the exchange of evidence. The appellant's submissions 1. During oral submissions the tenant confirmed that he appealed on questions of law only and that he did not require leave to appeal. The tenant relied on his written submissions in support of the appeal and made the following additional oral submissions: 1. The Tribunal erred when failing to consider that a new periodic residential tenancy had been created as the tenant remained in occupation of the premises and continued to pay rent; 2. The tenant was entitled to refuse a periodic inspection because no reasons had been provided for the periodic inspection and an earlier inspection had been cancelled without notice, greatly inconveniencing the tenant; 3. The appeal should succeed because the Appeal Panel at the appeal call over constituted by Principal Member Suthers stated in written reasons provided for the stay orders that the tenant "had at least an arguable case on the set aside and, in the absence of the reasons which have been requested, it is difficult for me to know whether the Tribunal in fact denied the tenant procedural fairness, as it may appear that it has done, or whether that denial of procedural fairness caused any practical injustice". 4. The Tribunal, in calling the tenant before the appointed time, has failed to afford the tenant an opportunity to participate in the hearing and the further failure to provide reasons for the set aside application amounts to a failure by the Tribunal to exercise its jurisdiction. It is submitted this has caused a practical injustice in that it deprived the tenant to advance his argument that the notice of termination was invalid on retaliatory grounds. The respondent's submissions 1. It is the landlord's submission that the tenant has failed to recognise that he is "required" to give vacant possession of the premises. A letter tendered before the Tribunal at first instance explains that the landlord has suffered a recent bereavement as her partner died, prompting her to serve a 90 day no grounds notice of termination as her circumstances had changed and she was considering selling the property. In a letter tendered to the Member at first instance, the landlord asserts her notice was "not retaliatory". An "original" notice of termination was served based on non-payment of rent, but that notice was not relied upon at the hearing of the matter. 2. It was the landlord's submission, advanced by her agent, that the Tribunal's decision was correct and that the Appeal Panel should dismiss the appeal. Determination 1. The issues for determination for the Appeal Panel are whether the submissions identify any grounds of appeal and if such grounds raise an error of law. For the reasons that follow, as we consider an error of law is established, it is not necessary for the Appeal Panel to consider grounds of appeal that may require leave. Consideration 1. In the determination of this appeal we must distinguish between grounds of appeal raised against the dismissal of the set aside application, and those grounds that may be relevant when considering the merits of the set aside application. 2. The tenant appeals against the Tribunal's decision to dismiss the set aside application on the ground that he was not provided with written reasons although he requested reasons within the 28 day time frame specified s 62(2) of the Civil and Administrative Tribunal Act 2013 (the CAT Act). 3. Section 62 establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2). However, s 62 states that a statement of written reasons must (emphasis added) be provided within 28 days after a request is made. The written statement of reasons must set out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, the Tribunal's understanding of the applicable law and the reasoning processes that lead the Tribunal to the conclusions it made. 4. In this case, reasons for the set aside decision were not provided when the orders were made. A request for written reasons was made within the 28 day time frame specified in s 62(2). Written reasons were not given in accordance with that request. 5. We are satisfied that the failure to provide reasons, in circumstances where there is a duty on the Tribunal to provide reasons upon a s 62 request, is an error of law. The failure by the Tribunal to provide written reasons has led, in our view, to a practical rather than a perceived injustice. The appeal must therefore succeed and the decision to dismiss the tenant's application must be set aside. 6. Having determined that the Tribunal was in error, the question is how to dispose of the appeal. 7. In determining an internal appeal, the Appeal Panel has broad powers under s 81 of the CAT Act and may make such orders as it "considers appropriate in light of its decision" on the appeal. Those orders include, but are not limited to, orders that the appeal be allowed or dismissed, the decision under review be confirmed, affirmed or varied, the decision under appeal be quashed or set aside, the decision under appeal be quashed or set aside for another decision to be substituted or that the whole or part of the case be reconsidered by the Tribunal, either with or without further evidence, according to the directions of the Appeal Panel. 8. We have concluded that the Tribunal erred in the way it dismissed the set aside application and we are satisfied that the error made a difference and caused a practical injustice. In determining the appeal, we are satisfied that the Appeal Panel is in a position to determine the set aside application on the evidence filed by the parties in the appeal. The set aside application 1. Clause 9(1)(b) of the Regulation relevantly provides: (1) … the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. Accordingly, before the Appeal Panel's power to set aside a decision that determines proceedings arises, we must be satisfied that: 1. The decision was made in the absence of a party; and 2. That absence resulted in the party's case not being adequately put to the Tribunal. 1. If those two requirements are satisfied, the Appeal Panel has a discretion to set aside or vary the decision. There can be no question that ground one is established and that the decision was made in the absence of the tenant. As to the second consideration, the tenant provided lengthy submissions supporting the set aside application that required consideration whether his absence resulted in his case not being adequately put to the Tribunal. These included: 1. Whether the failure by the Tribunal to contact the tenant at the appointed time constituted deprived him of the opportunity to be heard; and 2. Whether the notice of termination should be declared void on the grounds of retaliation pursuant to section 115(1)(b) of the RT Act; and 3. The tenant was procedurally disadvantaged because two notices of termination were served, pursuant to ss 85 and 90 respectively and the tenant did not know which case he had to answer; and 4. The parties had entered into a periodic residential tenancy agreement by reason of the fact that although the date for possession had passed, the tenant remained in the premises and continued to pay rent. 1. We are satisfied that each of these submissions required consideration by the Tribunal and the appellant was entitled to reasons that "state generally and briefly the grounds which have led him or her to the conclusions" to dismiss the set aside application. 2. We have found that the decision of the Tribunal was made in the absence of the parties. The tenant has articulated the case that he would have put had he been present at the hearing. We have therefore considered whether we should grant the set aside application. 3. The principles relevant to the exercise of the discretion under cl 9(1) are set out in Hammond v Ozzy's Cheapest Cars Pty Ltd at [74] to 81]. The central question identified by the Appeal Panel at [76] is "whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand". Relevantly, the Appeal Panel also noted at [79] citing Kyriakou v Long [2013] NSWSC 1890 at [33] and [55]: Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. 1. As noted above, one of the tenant's defences to the termination application is that the termination notice is retaliatory. Section 115(1)(b) of the RT Act that when considering an application for termination, the Tribunal may find a notice of termination is retaliatory if the tenant had taken an action to enforce a right of the tenant under the residential tenancy agreement or the RT Act. It is the tenant's submission that he had enforced a right to quiet enjoyment when he refused to give access to the residential premises for the purpose of a scheduled inspection. We have reached no conclusion as to the chances of success of this defence. However, we consider that it is at least arguable. Whether the notice of termination should be declared to be of no effect because it is retaliatory is for the Tribunal to determine when it re-determines the application for termination and possession. 2. As already noted, the critical question relevant to the second limb of cl 9(1)(b), is the exercise of discretion once the threshold matters to enliven jurisdiction are established. It was apparent from the tenant's grounds of appeal and written submissions that he was entitled to have his evidence and submissions considered. As we consider that one of the tenant's defences is at least arguable, we have allowed the set aside application. This means that the landlord's application will need to be re-determined. While we have not specifically considered the tenant's other defences, the Tribunal can consider all of the tenant's defences in re-determining the application for termination and possession. Conclusion 1. In summary, we find an error of law established on the appeal. We have allowed the appeal. We have granted the tenant's set aside application. The order made by the Tribunal on 5 January 2021 dismissing the tenant's set aside application is set aside. 2. The Consumer and Commercial Division of the Tribunal will re-determine the landlord's application for termination and possession. Orders 1. The orders of the Appeal Panel are: 1. The appeal is allowed. 2. The orders made in RT 21/01512 on 1 February 2021 are set aside. 3. The orders made in RT 20/50065 on 6 January 2021 are set aside. 4. The Consumer and Commercial Division is to re-determine the respondent's application for termination and possession in accordance with such further directions as the Division may make. ********** 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: 02 June 2021