Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mae v STM123 No.11 Pty Ltd [2022] NSWCATAP 61 Hearing dates: 24 February 2022 Date of orders: 8 March 2022 Decision date: 08 March 2022 Jurisdiction: Appeal Panel Before: S Thode, Senior Member A Boxall, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: RESIDENTIAL TENANCY – appeal against order for termination and possession of premises - warrant executed – utility of hearing the appeal – notice of termination retaliatory - decision not fair and equitable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW), Cases Cited: Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Garnet Mae (Appellant) STM123 No.11 Pty Ltd (Respondent) Representation: Appellant (Self-represented) V Blank (Respondent) File Number(s): 2021/00314312 Publication restriction: Nil Decision under appeal Court or tribunal: Consumer and Commercial Division Jurisdiction: NSW Civil and Administrative Tribunal Citation: [2020] NSWCATCD Date of Decision: 6 October 2021 Before: P Smith, General Member File Number(s): RT 21/39146 Reasons for decision Background to appeal 1. The appellant was the tenant and the respondent was the landlord of residential premises in Notts Avenue, Bondi, New South Wales. 2. The parties entered into a written residential tenancy agreement in or about August 2020 for a fixed term of twelve months at a rent of $950pw and with lodgement of a bond. Prior to the residential tenancy agreement subject of the appeal the tenant resided at the premises for about eight years and sublet and subdivided the premises. 3. The landlord served a notice of termination under section 84 of the Residential Tenancies Act 2010 (NSW) (the RTA) dated 15 August 2021 for the end of the residential tenancy agreement at the end of the fixed term. 4. The tenant did not vacate on 14 September 2021 as stipulated in the notice of termination and the landlord filed application RT 21/39146 seeking an order for possession of the premises and an order for rent outstanding (the landlord's application). 5. The landlord's application was listed for hearing on 6 October 2021 for a group list and conciliation hearing. The tenant indicated at the hearing of the application that he considered the notice of termination to be retaliatory. 6. On 6 October 2021 the Tribunal ordered as follows: 1. The hearing is adjourned to determine the issue of rent arrears only. 2. The residential tenancy agreement is terminated in accordance with section 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice at the end of the fixed term. 3. The Residential Tenancy Agreement is terminated immediately, and possession is to be given to the landlord on the date of termination. 4. The order for possession is suspended until 3 November 2021. 5. The tenant shall pay the landlord a daily occupation fee at the rate of $128.57 per day from the day after the date of termination, namely 7 October 2021 until the date vacant possession is given to the landlord. 6. The applicant and respondent to provide the documents on submissions in respect of rent arrears as follows. 7. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents on which the applicant intends to rely at the hearing by 13 October 2021. 8. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents, on which the respondent intends to rely at the hearing by 20 October 2021. 9. A separate written notice of the new hearing date is to be sent to the parties. 1. The tenant filed a separate application RT 21/41666 on 6 October 2021 seeking orders for compensation in the amount of $10,000 pursuant to section 187(1)(c) of the RTA and an order under section 44 (1) (a) of the RTA that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises (the tenant's application). The tenant also sought orders regarding the payment of a rental bond and that the landlord carry out repairs. 2. The tenant's application for damages and the landlord's adjourned application for rent were listed for hearing before the Tribunal on Monday, 28 February 2021. The issues of compensation and rent arrears will thus be determined separately and are not relevant to the determination of this appeal. The stay application 1. The tenant filed a notice of appeal within 14 days as set out in Regulation 24(4)(b) on 2 September 2021. 2. At the same time the tenant filed an application for a stay of the orders for termination and possession. 3. The tenant's application for a stay of possession was granted by the Appeal Panel, differently constituted, on 5 November 2021. The Appeal Panel ordered that in respect of the decision made on 6 October 2021 the operation of the order for possession be suspended until 5pm on 24 November 2021 or finalisation of the appeal whichever would be the earlier in time. 4. The operation of the stay was conditional upon the appellant: 1. Making application for written reasons for the decision of 6 October 2021 by 10 November 2021; and 2. paying any arrears of rent as and when it would have fallen due under the residential tenancy agreement, by way of occupation fee, pending determination of the appeal. 1. It was noted that the landlord was free at any time to make an application for the stay granted to be lifted if a condition was not complied with or if there were any other sufficient grounds for doing so. 2. On 24 November 2021 the matter was listed before the Appeal Panel, differently constituted, for determination of the stay application and the application by the landlord for summary dismissal of the appeal. By the time the appeal was listed for call over a warrant for possession had been executed by the NSW Sheriff on 22 November 2021 and possession had been given to the landlord. The tenant sought an order that he be given possession of the premises on the basis that the order for possession had been extended until 24 November 2021 and that the execution of the warrant was invalid. 3. The Appeal Panel made an order lifting the stay on the basis that the tenant had not complied with the conditions imposed on him in relation to the extension of time for the suspension of the possession order and determined that the execution of the warrant by the sheriff was valid. 4. The Appeal Panel declined to make an order granting possession to the tenant or for a further stay on the order for termination. Written reasons for the decision were published to the parties. 5. We consider that the issue whether the warrant was validly executed was determined by the Appeal Panel on 14 December 2021 and that final orders in respect of the stay were made on that day. The issue of the stay is not relevant to the tenant's ground of appeal that the notice of termination was invalid as it was retaliatory. 6. As the warrant was executed and the landlord is now in possession of the premises, the utility of the appeal is limited. The tenant submitted that he seeks a determination of the appeal on the basis that the Tribunal had no power to make the termination order and, consequently, he should be entitled to continue with his appeal. The grounds of appeal 1. The tenant's ground of appeal is set out at page 3 of the Notice of Appeal and in written submissions. 2. It is convenient to set out the appellant's ground of appeal in full: "The member suggested that I did not have grounds to remain in the building as I did not have sufficient evidence to suggest that the termination notice was retaliatory. I disagree with this. This termination was given exactly 12 months after we had signed a new lease at an increased amount of $150 per week in order to repay a debt that we had accrued after the first lockdown. It was also given after we requested a rent reduction due to income loss incurred from the second Covid lockdown. It is clear to us that the owner looking to profit from the repayment of this debt and evict us at the first possible opportunity. The member also suggested that we hadn't lodged any claims against the owners previously, but we had lodged a series of very serious claims since being evicted. No consideration was given to this fact. We had not dared to lodge a claim against the agent for the very real fear of a retaliatory eviction." Reply to Appeal 1. In their Reply to Appeal the landlord supported the orders made on 6 October 2021 and sought payment of the rent outstanding. The landlord confirmed possession of the premises was regained on 22 November 2022 when the warrant was executed. Applicable legal principles governing appeals 1. CATA s 80 provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made — (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may — (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances." 1. Clause 12 of Schedule 4 to CATA states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)." 1. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]–[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (2) 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. Even if the appellant establishes that he may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CATA, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether or not to exercise that discretion. 2. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal." Consideration 1. The tenant submits that the notice of termination was retaliatory, and that the Tribunal erred in terminating the tenancy. 2. For convenience we have set out s115 of the RTA: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice— (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons— (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant. 1. The issue of retaliation was determined by the Member on 6 October 2021. Both parties confirmed that the tenant raised the defence of retaliation and that the Member considered "lengthy argument". Both parties agree that the Member determined the issue. The tenant states in his notice of appeal that the Member determined "that the tenant did not have grounds to remain in the building as I did not have sufficient evidence to suggest that the termination notice was retaliatory." 2. The tenant does not allege that that the issue was not considered, he submits that the Tribunal erred when it refused to make a finding that the notice of termination was retaliatory. 3. We have not been provided with a transcript of proceedings and nor did the tenant request written reasons for decision. We are therefore not informed of the reasons for decision given by the Member. The tenant was directed by the Appeal Panel to provide evidence in support of his appeal: The Appellant is to lodge with the Tribunal and give to the Respondent by 7 January 2022: (a) All the evidence given to the Tribunal below on which it is intended to rely; (b) any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts. 1. The appellant failed to comply with the directions of the Appeal Panel. 2. On this ground alone the appeal must fail. The appellant did not, as he was directed, supply us with the evidence given to the Tribunal, nor a transcript or sound recording of what occurred before the Tribunal. We do not know what evidence was tendered before the Tribunal nor are we informed what reasons the Tribunal gave for the dismissal of the tenant's defence. 3. We proceeded to hear the appellant's oral submissions to understand his position and to determine the appeal. We heard all of the submissions the tenant wished to make on his appeal and for the reasons that follow, we find there are no errors of law that justify upholding the appeal nor should leave to appeal be granted. 4. The tenant's challenge to the Member's conclusion that the termination notice was not retaliatory is based on the tenant's contention that the decision was against the weight of the evidence, and that leave to appeal should be granted under cl 12(1)(b) of Sch 4. As discussed in Collins v Urban at [77], the authorities establish that for a decision to be "against the weight of evidence" it must be concluded that the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach. In the context of cl 12(1)(b), if that circumstance applies, and if the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice. 5. The issue before the Member was whether the landlord was wholly or partly motivated to give the notice because of either of the reasons in s 115(2)(a) or (b), namely that the tenant was proposing to apply to the Tribunal for an order or was proposing to take any other action to enforce a right of the tenant. 6. We do not accept that the tenant has provided any evidence in support of his contention that the Member erred. The tenant provided an email dated 11 August 2021 addressed to the landlord's agent seeking a rent reduction to $750 in return for rectifying the unit to its original 2-bedroom configuration by removing unauthorised partitions. That falls short of either s 115(2)(a) or (b) of the RT Act. It was confirmed by the tenant that he did not commence proceedings until 6 October 2021, three months after the notice of termination was served, when he applied to the Tribunal for an order for compensation. No other application was brought or prosecuted or brought to the landlord's attention. 7. The finding of the Member that he was not satisfied that the tenant had sufficient evidence to suggest that the termination notice was retaliatory was open to him on the evidence, and it cannot be said that the evidence in its totality preponderated against that finding. The Appeal Panel is not persuaded that the tenant has suffered a substantial miscarriage of justice in the circumstances, in the sense that he may have been deprived of a "significant possibility" or a "chance which was fairly open", of achieving a different and more favourable result. Leave to appeal is refused. 8. In the absence of any other ground of appeal, there is no necessity to make any other order other than to dismiss the Appeal. Orders 1. The orders that we accordingly make are as follows: 1. Leave to appeal is refused. 2. 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 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: 08 March 2022