Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Davis v Compass Housing Services Co Ltd [2021] NSWCATAP 178 Hearing dates: 03 June 2021 Date of orders: 24 June 2021 Decision date: 24 June 2021 Jurisdiction: Appeal Panel Before: Cowdroy AO QC ADCJ, Principal Member A Boxall, Senior Member Decision: The Appeal Panel orders that the stay granted on 23 March 2021 be removed. Catchwords: APPEALS — leases and tenancies — Residential Tenancies Act 2010 (NSW) — non-payment of rent — orders terminating tenancy agreement and granting possession — whether denied procedural fairness — appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Robynlee Davis (Appellant) Compass Housing Services Co Ltd (Respondent) Representation: Solicitors: Legal Aid NSW (Appellant) Compass Housing Services Co Ltd (Respondent) File Number(s): 2021/00078402 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not reported Date of Decision: 05 March 2021 Before: M Eftimiou, General Member File Number(s): SH 21/10070 REASONS FOR DECISION Background 1. On 14 January 2021, the Tribunal made orders pursuant to s 87 of the Residential Tenancies Act 2010 (NSW) terminating a residential tenancy held by the appellant in respect of a dwelling at Singleton, New South Wales, having found that the tenant had breached the lease agreement by failing to pay rent in accordance with the agreement. The Tribunal ordered that the Residential Tenancy Agreement made between the appellant and the respondent be terminated immediately and granted possession to the respondent. The order of possession was suspended until 4 February 2021. 2. The Tribunal also ordered that the appellant pay a daily occupation fee at the rate of $21.53 per day from the day after the date of termination, namely 15 January 2021, until the date that vacant possession was given to the landlord. 3. A warrant of possession in respect of the property was duly issued and executed on 26 February 2021. 4. On 4 March 2021, the appellant made an application to the Tribunal for an extension of time to set aside the orders made on 14 January 2021. Such application was heard on 5 March 2021 and was dismissed. 5. By application for stay of original decision pending appeal, filed on 19 March 2021, the appellant sought an interim order restraining the respondent from reletting, or entering into a residential tenancy agreement with a third party with respect to, the subject premises, or entering into any other arrangement conferring a right of possession of that property, or placing a third party in occupation of it, until her appeal had been determined. The appellant also sought an interim order restraining the respondent from removing the appellant's possessions from the property. 6. In support of the stay application, the appellant submitted that she was unaware of the hearing on 14 January 2021 and was unaware of the termination order until 22 February 2021 when the sheriff gave her notice that a warrant was scheduled to be executed on 26 February 2021. 7. On 22 March 2021 the Tribunal made orders, inter alia, restraining the respondent from reletting the subject premises or granting possession to any other party until further order, and restraining the respondent from removing the appellant's possessions from the subject property pending further order. Such orders were conditional upon the appellant paying the respondent $120 per week and paying in full any arrears of rent within 14 days. 8. The appellant's appeal against the orders made granting possession to the respondent is now before the Appeal Panel. Appellant's submissions 1. The critical submission made by the appellant relies upon her claim that she was denied natural justice and procedural fairness because the proceedings held on 14 January 2021 were heard in her absence and without her knowledge that the hearing was to take place. In the circumstances, the appellant relies upon cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW). Clause 9(1) provides that the Tribunal may order that a decision be set aside or varied in circumstances where, as provided by cl 9(1)(b), 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. 2. Although the appellant now concedes that the tenancy has been terminated and possession of the property returned to the landlord, she submits that, pursuant to s 87(4)(b) of the Residential Tenancies Act, the Tribunal has discretion to terminate a tenancy if, amongst other things, it is satisfied that the breach relied upon is sufficient to justify termination. The appellant submits that non-payment of rent was not a sufficient reason to justify the termination of the tenancy. 3. The appellant submits that the Appeal Panel should exercise the power conferred by cl 12(2)(b) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW), which provides: 12 Limitations on internal appeals against Division decisions … (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if— … (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. The appellant submits that the mere fact that the tenancy has been terminated does not render the Tribunal powerless to make any orders, as would be the position as existed under the predecessor legislation, namely the Consumer, Trader and Tenancy Regulation 2009 (NSW) (repealed), cl 25(2). Accordingly, the Tribunal retains the power to make an order to do justice to the appellant. Procedural fairness 1. The evidence provided by the respondent establishes that the respondent endeavoured to contact the appellant on numerous occasions prior to 14 January 2021. The Tribunal is informed that such attempts, both by email and by telephone, were made for the purpose of informing the appellant that the hearing of her matter was to take place on 14 January 2021. There was no response by the appellant to any email or to any phone message left for her. The appellant had been absent from the premises, attending to a family member, but returned on 12 January 2021. No explanation has been provided by the appellant as to why she did not communicate with the respondent. 2. Further, the record of the Tribunal establishes that a letter was mailed to the appellant, addressed to the premises, on 16 November 2020, advising of a date and time for a hearing, namely Thursday, 14 January 2021 at 3:45pm. There is no evidence that the letter sent to the appellant was not received by the appellant. However, the appellant provided, as an explanation for not having received any written notification, the following: "My letterbox has never been in good repair and in November last year it was severely damaged along with several other peoples in my street. Since this time, I have received little mail and when I do receive it [it] is often damaged". 1. The Tribunal's records do not indicate that the notification of hearing date was returned to the Tribunal by Australia Post in the absence of a home letterbox. This is in contrast to what occurred in February 2021 with the warrant for enforcement of the order for possession: see [21] below. It is not inconsistent with the notification having been delivered by Australia Post to the appellant's home letterbox, whatever may have become of the letter thereafter. There is no evidence that the original notice of hearing was not received by the appellant. 2. The Appeal Panel is not satisfied that the appellant did not receive notification of the hearing. In these circumstances, the Appeal Panel draws the inference that the appellant deliberately elected not to attend the hearing on 14 January 2021. The Appeal Panel has noted medical evidence relating to the health of the appellant. However, it does not find that such evidence is sufficient to render the appellant incapable of responding to the invitation to attend the hearing or otherwise communicate with the respondent. Since the opportunity for a hearing was offered to the appellant, the Appeal Panel rejects the contention that there was any procedural unfairness to the appellant. Appellant's stay application 1. The Tribunal was informed by the respondent that immediately following the making of the orders on 14 January 2021 the appellant was advised by the Tribunal and by the respondent of the orders by email. Additionally, a copy of the orders was delivered by the respondent and placed under the front door of the appellant's residence. 2. The appellant denies that she received the copy of the orders made on 14 January 2021 which were placed under her door. She states: "When I returned I didn't see this letter. My dogs were at home and the letter wouldn't have lasted long. They probably would have chewed it up. This kind of thing happens all the time". 1. The appellant offered no explanation as to why she did not respond to the emails which had been sent to her by the respondent, advising her of the making of the orders. 2. The appellant acknowledges that she had a telephone conversation with a representative of the respondent on 22 January 2021 when she was informed of the Tribunal orders and of the arrears then owed. She states that due to issues with her daughter and her health she became stressed. She states that she only became aware of the termination when her daughter was given a letter by the sheriff on 25 February 2021. She states that she telephoned the respondent immediately and was informed that she had to pay the rent at once or she could not stay at the premises. 3. The Tribunal file shows that a warrant for the enforcement of the order of possession was issued on 11 February 2021 and posted and postmarked 15 February 2021. This letter was returned on 23 February 2021 with the endorsement "RTS: no letterbox no delivery". 4. The appellant took no steps to set aside the orders made on 14 January 2021 until 4 March 2021 when she filed her application to set aside or vary the decision and sought an extension of time in which to bring her application. There is no explanation for the delay between 22 January 2021, when she states she became aware of the orders, and the filing of her application on 4 March 2021. 5. Clause 9 of the Civil and Administrative Tribunal Regulation contains a time limit within which an application must be made where, inter alia, a decision was made in the absence of a party resulting in the party's case not being adequately put to the Tribunal. Clause 9(3) provides: 9 Additional power to set aside or vary decision determining proceedings ... (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. … 1. The appellant did not bring the application within the requisite time period and no extension of time under s 41 of the Civil and Administrative Tribunal Act has been granted. When this application came on for hearing, the Tribunal stated that it was not satisfied that an extension of time should be granted and expressly stated its reasons, namely that the tenancy had lawfully come to an end and the warrant had been validly executed, that the delay in filing of the set-aside application was significant, and the tenant had failed to provide a reasonable explanation for the delay. Further, the tenant had provided numerous explanations as to why they had not received correspondence. The Tribunal stated: "Balancing the circumstances where the landlord has taken all reasonable steps to advise the tenant of the rental arrears, the application for termination and possession and the order for termination and possession, the Tribunal is not satisfied that the tenant has provided a reasonable explanation for the delay in bringing this application to the Tribunal." 1. The Tribunal also considered whether it had power to grant a new lease in circumstances where the old lease had been terminated. The Tribunal stated: "I don't see how, under the Residential Tenancies Act, I have the power to order possession or to create a new tenancy, so I see that is the issue that you're going to have to overcome, so even if I am with you in relation to the set-aside, I think it's a futile exercise because even if the termination order is set aside, the landlord now has lawful possession of the property unless you can satisfy me that I have the power to – under the Residential Tenancies Act to grant possession to the tenant or to create a new tenancy, then it seems to me that your application is going to fail." 1. The Tribunal found: "The Tribunal has considered section 187(i), however, in these circumstances the Tribunal is not satisfied that 187(i) would extend to, in effect, the Tribunal creating a new tenancy and allowing possession of the premises if the orders for termination and possession that were made on 11 January are set aside." Finding 1. The Appeal Panel, for the reasons stated above, finds that there has been no procedural unfairness to the appellant by reason of the appellant's failure to attend the hearing on 14 January 2021. There is no error on the part of the Tribunal in proceeding to hear and determine the application before it on that day in the absence of the appellant. 2. The Appeal Panel acknowledges that s 188(b) of the Residential Tenancies Act empowers the Tribunal to, inter alia, make an order that "varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings". Nevertheless such power would not be exercised unless the Tribunal considered that there were sound reasons for doing so. In the present circumstances, the Appeal Panel is not satisfied that there are such reasons. The Appeal Panel is unable to discern any error made by the Tribunal in proceeding to hear and determine the application before it on 14 January 2021. 3. The Appeal Panel also acknowledges that an appeal may be brought against an order of the Tribunal for the termination of a tenancy on a question of law, as provided by cl 12(2)(b) of Sch 4 to the Civil and Administrative Tribunal Act. However, in view of the findings already made, there is no question of law which would warrant the Appeal Panel ordering any relief as claimed. 4. In substance, the appellant is seeking that the Appeal Panel should direct the respondent, as landlord, to create a new tenancy for the appellant. The Appeal Panel considers that such relief would extend beyond the powers of the Tribunal. What the appellant is asking is that the Appeal Panel formulate a new lease, with new conditions and a new term for an unspecified period. The Appeal Panel considers that the powers provided to the Tribunal do not extend to granting such a request. 5. The Appeal Panel notes that whilst the appellant has made an effort to repay the arrears of rental, there is a sum in excess of $1,000 in unpaid rental and storage fees. No offer or proposal has been made to reduce or eliminate such amount. However, in view of the findings above, this is now irrelevant. 6. The Appeal Panel has also noted certain evidence concerning the health of the appellant. It is unnecessary for the Appeal Panel to deal with this issue in so far as it is relied upon to support hardship that would be occasioned to the appellant by reason of the Tribunal orders under review. Orders 1. The Appeal Panel orders that the stay granted on 23 March 2021 be removed. ********** 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. 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