Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peachey v Dubbo Koorie Housing Aboriginal Corporation [2022] NSWCATAP 119 Hearing dates: 13 April 2022 Date of orders: 21 April 2022 Decision date: 21 April 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member S Higgins, Senior Member Decision: 1. Appeal dismissed. 2. Order 4 made by the Tribunal on 21 December 2021 is set aside. 3. In lieu thereof, the order for possession is suspended until the date being 60 clear days from the date of these reasons. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — termination — discretion – no error in the exercise of the discretion – no question of principle Legislation Cited: Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW), ss 89(5), 94(4), Sch 1 cl 3 Residential Tenancies Regulation 2019 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 House v R (1936) 55 CLR 499; [1936] HCA 40 Category: Principal judgment Parties: Irene Dale Peachey (Appellant) Dubbo Koorie Housing Aboriginal Corporation (Respondent) Representation: C Simpson, Tenant Representative (Appellant) L Cusack, Managing Agent (Respondent) File Number(s): 2022/00002666 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 21 December 2021 Before: P Harris, General Member File Number(s): RT 21/48123 REASONS FOR DECISION 1. This is an appeal by a tenant against orders of the Tribunal terminating her residential tenancy. 2. For the reasons that follow the appeal is dismissed. Background 1. The parties entered into a written residential tenancy agreement on 10 December 1994 for a house at Dubbo, NSW. 2. The agreement was for a period of twelve months but said that at the end of that time the appellant could remain in the house under the same terms as the agreement unless or until it was ended in accordance with the Residential Tenancies Act 1987 (NSW) (the "former Act"). 3. The former Act was repealed and replaced by the Residential Tenancies Act 2010 (NSW) (the "RTA"). The RTA (rather than the former Act) applies to the parties' agreement because cl 3 of Sch 1 of the RTA says that the terms to be included in any residential tenancy agreement as required by the RTA are (automatically) included in any existing residential tenancy agreement on the repeal of the former Act (which occurred on 31 January 2011), and that the RTA applies to any such agreement despite the terms of the agreement. In other words, once the former Act was repealed (in 2011) the RTA then applied to the parties' agreement and its termination was governed by the RTA and not the former Act. 4. The appellant resided in the house since the agreement commenced but failed to pay the rent due under the agreement during a number of periods of time in the intervening years. This led to at least five applications being brought in the Tribunal by the respondent against the applicant for payment of arrears of rent and other orders. 5. In any event, the respondent again commenced proceedings in the Tribunal on 24 November 2021 against the appellant. The respondent sought a termination order based upon non-payment of rent and water usage charges, and expressly said in the application (which was served on the appellant) that even if the arrears were paid the respondent would still seek a termination order in reliance upon s 89(5) of the RTA. 6. Section 89(5) of the RTA says that the Tribunal may make a termination order even if the tenant pays all the rent and water usage charges before the Tribunal hearing if the Tribunal is satisfied that the tenant had frequently failed to pay rent on or before the day set out in the agreement or water usage charges in accordance with s 39 of the RTA. 7. When the proceedings were commenced the total of the arrears of rent and water usage charges was in the order of just over $800. 8. By the time of the hearing before the Tribunal those arrears had been paid and the appellant was slightly in credit. Despite that credit the respondent sought, and the Tribunal granted, a termination order because the respondent proved that the appellant had frequently failed to pay rent per s 89(5) of the RTA. This factual finding was not challenged on the appeal and rightly so. 9. The Tribunal made a termination order and the order for possession was suspended until 20 January 2022 (some 32 days after the date the termination order was made). We shall return to the suspension of the order for possession later in these reasons. Principles Applicable to this Appeal 1. The word "may" in s 89(5) of the RTA suggests that the decision to be made is a discretionary one. That is, assuming the Tribunal was satisfied that a tenant had frequently failed to pay rent the Tribunal might, but was not required to, make a termination order. Other factors may be relevant within the exercise of that discretion, but, of course, those factors would have to be relevant in some way to the parties and the tenancy. 2. An appeal is not a second hearing. On an appeal the appellant is, speaking broadly, required to demonstrate some relevant error in the Tribunal's decision or decision-making process and that the commission of that error did or may have affected the result. 3. To establish error in the exercise of a discretionary decision the appellant needed to persuade us that the Tribunal, per House v R (1936) 55 CLR 499; [1936] HCA 40: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant matter; 4. failed to take into account or gave insufficient weight to, some relevant matter; 5. or arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 1. We were not persuaded the Tribunal committed any of those errors. Nor were we persuaded that the appellant may have suffered a substantial miscarriage of justice (the only other possible ground of appeal that we consider might apply in this case) because the decision of the Tribunal was not fair and equitable within the terms of cl 12(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) and according to the principles set out in Collins v Urban [2014] NSWCATAP 17. Accordingly, the appeal must be dismissed. The Appeal 1. In this case the appellant did not attend the hearing before the Tribunal, and thus did not take the opportunity provided to her to inform the Tribunal of any other factors which may have persuaded the Tribunal not to issue the termination order. 2. On the appeal it was said the appellant did not attend because she had been told she didn't need to attend by the respondent (although this was denied). But no evidence was provided to make out this allegation and we do not accept it. 3. The appellant sought to rely on the respondent's internal written policy which was to the effect that in cases where a tenant had a record of persistent lapses in rent payments, the respondent could apply to the Tribunal for a termination of the tenancy but would continue to negotiate with the tenant to try and find a reasonable solution with a view to maintaining the tenancy. 4. However, that policy is not a term of the agreement between the parties, and no legal basis was identified as to how that policy could be used by the tenant to resist termination in this case. No such legal basis is apparent to us. Further, there was no evidence that there was a lack of further negotiations. In any event, the policy does not say that termination could not be obtained, only that negotiations should continue. 5. The appellant also sought to say that some of her arrears of rent were accrued during the moratorium period specified in the RTA relating to the Covid-19 pandemic. The appellant submitted that she was an "impacted tenant" under those provisions and in the circumstances of this case the respondent was not allowed to terminate her tenancy. 6. We do not accept that submission. There was no evidence given to the Tribunal that the appellant was an impacted tenant. The appellant would have had to have supplied the Tribunal with evidence to prove that she was an impacted tenant. That evidence would have had to have proved that any one or more rent-paying members of her household had lost employment or income, had a reduction in work hours or had to stop working, or had to materially reduce the member's work hours as a result of the pandemic or because of the member's illness with Covid-19, another member of the household's illness with Covid-19, or the member's carer responsibilities for a family member ill with Covid-19. 7. The appellant would also have had to have proven that because of any of the matters just stated, the weekly household income for the household had been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of those matters. 8. None of that evidence was provided to the Tribunal. 9. On the appeal the appellant also appealed to factors such as the adverse impact a termination order would have on the appellant, and the desirability of improving the relationship between the appellant and respondent. The Tribunal, we note, did consider the former. However, the latter was not a relevant factor under s 89(5). 10. The appellant has not established any error in the Tribunal's decision despite Mr Simpson's best efforts and he having said everything that could reasonably be said on behalf of the appellant, and the appeal must be dismissed. 11. Before making our orders, we note that the appellant said that the Tribunal erred in failing to apply the provisions of s 94(4) of the RTA. 12. Section 94 says: 94 Termination of long term tenancies (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement— (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. (2) A landlord may make an application under this section without giving the tenant a termination notice. (3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made. 1. The appellant had been a tenant of more than 20 years, and so prima facie the Tribunal should have suspended the order for possession for no less than 90 days as required by s 94(4) of the RTA rather than the 32 days included in its orders. 2. However, 90 days from the date of the Tribunal's orders was 22 March 2022, and this appeal was heard on 13 April 2022. Therefore, there is no practical utility in amending the Tribunal's order because we will need to further suspend the order for possession in any event as she remains in occupation of the house pursuant to a stay granted by the Appeal Panel and we must allow the appellant time to find alternative accommodation and vacate the premises. 3. The appellant sought a further 90 days, and the respondent suggested 30 days. In our opinion it is reasonable to allow the appellant a further 60 days considering the appellant's lengthy tenancy, the smaller tenancy market in Dubbo and the fact the appellant was not in arrears at the time of the Tribunal hearing but balancing that against her poor rent-paying history and the length of these proceedings. 4. We note that Order 6 of the Tribunal (which relates to relisting the matter to determine the occupation fee owing) will then apply to the date for possession specified in our orders. Orders 1. We make the following orders: 1. Appeal dismissed. 2. Order 4 made by the Tribunal on 21 December 2021 is set aside. 3. In lieu thereof, the order for possession is suspended until the date being 60 clear days from the date of these reasons. ********** 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: 21 April 2022