Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nikiforova-Grigorieva v Li [2022] NSWCATAP 191 Hearing dates: 25 May 2022 Date of orders: 9 June 2022 Decision date: 09 June 2022 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member D Ziegler, Senior Member Decision: 1. Time for filing the appeal is extended to 29 March 2022. 2. The appeal is allowed. 3. The orders of the Tribunal in RT22/06845 made on 10 March 2022 are set aside. 4. The respondent's application for termination of the residential tenancy agreement and vacant possession of the premises is dismissed. 5. The matter is remitted to the Tribunal, differently constituted, for determination only of the respondent's claim for rental arrears, with leave for the parties to adduce such further evidence as the Tribunal thinks fit. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — termination — non-payment termination notice — where no notice at date of application to Tribunal – where date for termination in the future. APPEALS — denial of procedural fairness — use of interpreter. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Allen and Ors v Tricare (Hastings) Pty Ltd and Anor [2015] NSWSC 416 Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8 at [89] – [90] Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 Texts Cited: None cited Category: Principal judgment Parties: Natalia Nikiforova-Grigorieva (Appellant 1) Yuri Grigoriev (Appellant 2) Li Li (Respondent) Representation: P Van Dyke, Eastern Area Tenants Service (Appellant) Y Ye (Agent) (Respondent) File Number(s): 2022/00089922 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 10 March 2022 Before: J Alder, General Member File Number(s): RT22/06845 REASONS FOR DECISION Introduction 1. This is an appeal from a decision of the Tribunal in which the Tribunal made orders under the Residential Tenancies Act 2010 (NSW) (RT Act) for termination of a residential tenancy agreement and vacant possession of the premises, and for the payment of rental arrears. 2. The appellants are the tenants and the respondent is the landlord. 3. This matter illustrates the difficulties which can arise when the Tribunal deals with a contested termination application in circumstances where there is limited hearing time, one or both parties require an interpreter, and the hearing is conducted remotely via telephone or audio visual link. 4. We have decided to allow the appeal for the reasons elaborated on below. These can be summarised as follows: 1. The Tribunal fell into jurisdictional error by terminating the tenancy in circumstances where the notice of termination had not yet come into existence at the time the application was lodged in the Tribunal, and also because the date for termination specified in the notice of termination had not yet passed at the date of the hearing. 2. The tenants were denied procedural fairness because: 1. The interpreter was not given an opportunity to interpret, or elicit responses from the tenant in relation to, important parts of the hearing; and 2. The tenants were not given an opportunity to present submissions and evidence on matters material to the Tribunal's decision. Background 1. The background to the appeal, which is based on information contained in documents filed in the appeal proceedings and told to us during oral submissions, is as follows. We note that neither party has provided to us all of the documents which were before the Tribunal at first instance. 2. The parties entered into a written residential tenancy agreement in respect of residential premises in Bondi, New South Wales, on 4 October 2018. The agreement was for a fixed term ending on 4 October 2019 and the rent payable was $820 per week. After the expiry of the fixed term the tenancy continued as a periodic tenancy. 3. At the time the agreement was entered into, the landlord's managing agent for the premises was NG Farah Pty Ltd (NG Farah). 4. On 17 August 2020 the tenants received an email from another managing agent, Au Pac International Pty Ltd (Au Pac), informing the tenants that Au Pac had been appointed the new managing agent. 5. Following the appointment of Au Pac, the tenants inadvertently transferred several rental payments into NG Farah's account instead of Au Pac's account. 6. NG Farah transferred one of those payments to Au Pac and the rest were paid directly to the landlord. 7. The tenants say that Au Pac's ledger does not accurately reflect all of the payments inadvertently made to the former agent. There is an ongoing dispute as to whether the tenants are in arrears, and if so as to the amount of the arrears. 8. On 16 February 2022 the managing agent lodged an application in the Tribunal seeking orders for, among other things, termination of the tenancy and vacant possession of the premises on the ground that the tenant had breached the agreement (the Tribunal Application). The Tribunal Application relevantly stated, "Tenant always in arrears even before covid19 and also the tenant fails to pay her repayment plan". 9. The only termination notice which is before the Appeal Panel is a termination notice issued by the managing agent dated 6 March 2022 (the Termination Notice). The Termination Notice: 1. is addressed to the two tenants; 2. under the heading "Reason for termination of tenancy agreement" states "Non-payment of rent and/or charges"; and 3. states "Tenant will deliver up vacant possession of the premises on 28/03/2022." 1. During the hearing of the appeal the agent for the respondent confirmed that this was the notice of termination on which the landlord relied at the Tribunal hearing on 10 March 2022. 2. The Tribunal made the following orders on the day of the hearing: 1. The Residential Tenancy Agreement is terminated in accordance with: • s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. • failure to pay rent in accordance with agreement. 2. The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises. 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 31-Mar-2022 5. The tenant shall pay the landlord a daily occupation fee at the rate of $117.14 per day from the day after the date of termination, namely 11-Mar-2022 until the date vacant possession is given to the landlord. 6. 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. 7. The tenant, NATALIA NIKIFOROVA-GRIGORIEVA and YURI GRIGORIEV … is to pay the landlord, LI LI … the sum of $3,631.86 on or before 24-Mar-2022. Reasons: • rent arrears from 5 feb to 10 march $3,631.86 1. The tenants challenge all of the orders made by the Tribunal. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. Internal appeals involve consideration of whether there has been any error of law; or any error other than an error of law sufficient to grant leave to appeal under Sch. 4 Cl. 12 of the NCAT Act. 3. 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. Timing 1. The tenants filed the appeal with the Appeal Panel on 29 March 2022. Under Reg. 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014, the time to appeal a residential tenancy decision is 14 days from the date on which the appealing party was given or notified of the decision. 2. The appeal in this matter was filed 19 days after the date of the decision which is five days out of time. 3. The appellants have sought an extension of time under section 41 of the NCAT Act. 4. The principles relevant to an application for an extension of time were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]: "Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice." 1. The criteria for assessing an extension of time application can be summarised from Jackson as follows: 1. The appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant; 2. The respondent, having obtained a favourable primary decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired; 3. Consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success ("that is usually where the applicant has a fairly arguable case"), and the extent of any prejudice suffered by the respondent to the appeal; 4. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable. 1. In this case, applying the factors identified in Jackson, we are satisfied that it is appropriate to grant an extension of time for the reasons which follow. 2. Firstly, the explanation provided by the tenants for the delay is persuasive. We are satisfied that the tenancy advocacy service representing the tenants had some challenges obtaining timely instructions from the tenants due to their language difficulties and their personal circumstances. The tenants' first language is Russian and require assistance from a Russian language interpreter. In addition, one of the co-tenants, Ms Nikiforova-Grigorieva, is the sole carer for her mother who recently suffered a stroke and is also the carer for her co-tenant Mr Grigoriev, who suffers significant mental health issues. 3. Another explanation given for the delay is that the tenants' representative sought to obtain from the Tribunal's registry a copy of the documents which had been before the Tribunal when the first instance decision was made. This was a prudent step given that one of the grounds of appeal relates to the date of the notice of termination which was before the Tribunal, and this information is not disclosed in either the Tribunal's Notice of Orders or the transcript of the hearing. 4. A request for documents was made to the Tribunal registry on 22 March 2022 and the documents were received on 25 March 2022, which was the day after the 14 day time limit had expired. The notice of appeal was lodged promptly thereafter on 29 March 2022, which was two business days after receipt of the documents. 5. Secondly, the landlord has provided no submissions in response to the application for an extension of time and there is no suggestion that the landlord would suffer any significant disadvantage or prejudice as a result of the relatively short delay of five days (or three business days). We understand that although there remains a dispute as to whether the tenants are in arrears, the rental ledger lodged by the landlord with the Appeal Panel reflects that the tenants have been making regular rental payments since the Tribunal hearing. 6. By contrast, if an extension of time is not granted the termination orders will stand and the most likely outcome is that the tenants will be evicted from their home, which would have significant consequences for the tenants. 7. Finally, for the reasons set out below we are satisfied that the appeal has strong prospects of success. 8. In all the circumstances we are therefore satisfied that strict enforcement of the time limit would work an injustice against the tenants and that an extension of time is appropriate. Grounds of Appeal 1. The grounds of appeal are as follows: 1. The Tribunal fell into jurisdictional error when it made the orders for vacant possession and termination of the tenancy. 2. The appellants were denied procedural fairness. 1. Both of these grounds involve questions of law and therefore leave to appeal is not required. Ground 1 – Jurisdictional error Submissions 1. The tenants' arguments in relation to this ground are threefold. Firstly, they say the Tribunal's jurisdiction to hear the application for termination was not enlivened because no notice of termination had been served at the time the Tribunal Application was lodged, and this was a jurisdictional fact upon which the making of the Tribunal's orders depended. 2. In addition, they say that the Tribunal made an error because it could not have been satisfied, as required under s 87(4)(c), that the tenant had not vacated the premises as required by the notice, because the date for vacant possession had not yet passed on the day of the hearing. 3. The tenants also say that pursuant to s 88(4) of the RT Act the Tribunal was precluded from hearing the application for termination on the day of the hearing because on that day the date for vacant possession specified in the Termination Notice had not yet expired and was in fact 18 days in the future. 4. The landlord maintained that the notice of termination was legal and valid but otherwise did not make detailed submissions in relation to this ground. Statutory framework 1. The Termination Notice and Tribunal Application, and the orders made by the Tribunal, were based on s 87 of the RT Act, which provides: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note. Section 154E sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement. 1. "Termination notice" is defined in s 80 as "a notice terminating a residential tenancy agreement". 2. "Termination date" is defined in s 80 as "the day specified in a termination notice as the day on which the residential tenancy agreement is terminated and by which vacant possession of the residential premises is to be provided." 3. Section 83 provides relevantly provides: 83 Termination orders … (2) An application to the Tribunal by a landlord for a termination order— (a) must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, and (b) must be made only if vacant possession of the premises is not given as required by the notice. 1. Under Regulation 39(2) of the Residential Tenancies Regulation 2019, the prescribed period for the purposes of s 83(2)(a) is "within 30 days after the termination date specified in the relevant termination notice". 2. Section 88 is also relevant. It deals with termination notices given solely on the ground of non-payment of rent, water or utilities ("non-payment termination notices") and provides: 88 Termination notices for non-payment of rent or charges (1) 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— (a) rent, or (b) water usage charges, or (c) charges for the supply of electricity, gas or oil (utility charges), payable by the tenant (a non-payment termination notice) has no effect unless the rent has, or the water usage charges or utility charges have, remained unpaid in breach of the agreement for not less than 14 days before the non-payment termination notice is given. (2) A non-payment termination notice is not ineffective merely because of any failure of the landlord or the landlord's agent to make a prior formal demand for payment of the rent, water usage charges or utility charges. (3) A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent, water usage charges or utility charges owing or enters into, and fully complies with, a repayment plan agreed with the landlord, unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent, water usage charges or utility charges on time. (4) Despite any other provision of this Part, a landlord may apply to the Tribunal for a termination order before the termination date specified in a non-payment termination notice. The Tribunal must not consider any such application until after the termination date. Consideration - Ground 1 1. The first question to consider is whether the Tribunal may consider a claim for termination of a tenancy under s 87 of the RT Act if, at the time the application was lodged with the Tribunal, the landlord had not yet issued a no-grounds termination order. 2. Usually, a landlord will not be permitted to apply to the Tribunal for a termination order under s 87 of the RT Act until after the termination date specified in the relevant termination notice (s 83(2)(a)) and therefore, by definition, the notice must have been issued by the landlord prior to the application being made to the Tribunal. However, this requirement is displaced by section 88(4) in relation to termination notices given solely on the ground of non-payment of rent or utilities (non-payment termination notices). The Termination Notice in this matter was such a notice. In these cases a landlord may apply to the Tribunal for a termination order before the termination date specified in the notice. 3. Reading ss 80, 83, 87 and 88 together, it is plain that while a landlord may apply to the Tribunal before the termination date specified in a no-grounds termination notice, the termination notice relied on by the landlord must nonetheless be in existence at the time the Tribunal application is lodged. 4. The provisions only make sense if read in this way. In particular: 1. The chapeau of s 87(4) makes clear that the Tribunal may make a termination order under s 87(4) only on application by a landlord. 2. Section 87(4) sets out a number of matters of which the Tribunal must be satisfied in order to make a termination order. One of those matters is that "The termination notice was given" in accordance with s 87. In other words, a termination order cannot be made if a compliant termination notice has not been given to the tenant in accordance with the section. 3. Where the landlord relies on a non-payment termination notice, s 88(4) permits the landlord to apply to the Tribunal before the termination date specified in the notice. The words "before the termination date specified in a non-payment termination notice" in s 88(4) mean that the relevant termination notice must have already been brought into existence at the time the application to the Tribunal is made, even if the termination date specified in the notice has not yet passed. This is reinforced by the definition of "termination date" in s 80 which is defined by reference to the relevant termination notice. 1. As an order under s 87 can only be made on application of a landlord, and such application cannot be lodged in the absence of a termination notice, it follows that the Tribunal cannot make an order for termination on the basis of a no-grounds termination notice, if the notice did not yet exist at the time the application was made to the Tribunal. 2. In addition, s 87(4) permits the Tribunal to make an order for termination under s 87 only if it is satisfied of the matters set out in sub-clauses (a)-(c) of s 87(4). These relevantly include, in s 87(4)(c), that "the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice". 3. The existence of the no-grounds termination notice at the time of the application, and the Tribunal's satisfaction of the matters set out in s 87(4), are therefore jurisdictional facts upon which the making of a termination order under s 87 depends (see Allen and Ors v Tricare (Hastings) Pty Ltd and Anor [2015] NSWSC 416 at [49]). 4. Here it was common ground that the Termination Notice had not been prepared or given to the tenant at the date of the Tribunal Application. The Termination Notice only came into existence on 6 March 2022, which was some 19 days after the Tribunal Application had been lodged. As the notice of termination did not yet exist at the time the Termination Application was lodged, the landlord was not entitled to apply to the Tribunal for a termination order and the Tribunal's powers under s 87 were not enlivened. 5. In addition, the notice required the tenant to vacate the premises on 28 March 2022, which was 19 days after the hearing. The Tribunal cannot have been satisfied for the purpose of s 87(4)(c) that the tenant had not vacated the premises as required by the notice in circumstances where the date for vacant possession specified in the notice had not yet passed. 6. Accordingly, the Tribunal erred, either by making a termination order without being satisfied as to these jurisdictional facts, or because its satisfaction was arrived at mistakenly. 7. For these reasons the Tribunal has fallen into jurisdictional error. 8. Finally, s 88(4) specifically prohibits the Tribunal from considering an application for termination before the termination date specified in the notice. In this case the date for termination specified in the Termination Notice was 28 March 2022. The hearing of the termination application occurred on 10 March 2022, which was 18 days before the termination date specified in the notice. Accordingly, the Tribunal was precluded by s 88(4) from considering the termination application on the date of the hearing. 9. We are therefore satisfied that an error of law has been established in respect of ground one of the appeal. Ground 2 – denial of procedural fairness Submissions 1. The denial of procedural fairness asserted by the tenants falls into the following three categories: 1. The landlord's documents were received late – only at 11 pm the night before the hearing – and therefore the tenants did not have an adequate opportunity to review and consider them; 2. The tenants were not given an opportunity to provide any documents to the Tribunal in defence of the landlord's claim; and 3. The interpreter did not interpret everything that was said at the hearing and as a result the tenants did not have an opportunity to fully participate in the hearing and present their defence. 1. The tenants also say they were denied procedural fairness because they were not given an opportunity to present submissions or evidence as to why the order for vacant possession should be suspended until later than 31 March 2022. However, as we have decided to uphold the appeal in relation to the orders for termination and possession, it is not necessary to consider this part of the tenants' submissions. 2. The tenants say that had they been afforded procedural fairness, they would have presented evidence and arguments showing that the landlord's tenancy ledger was incorrect and that they did not owe $3631.86 in arrears. The documents the tenants say they would rely on in this regard include a copy of the rental ledger of the former managing agent and a copy of an email from the former agent regarding the payments inadvertently made to them. 3. The landlord says the tenants were granted procedural fairness but otherwise has not made detailed submissions regarding this ground. Consideration – Ground 2 1. It is well established that the Tribunal has a duty to conduct its hearings in a procedurally fair manner and to take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s38(2) and (5)(c) of the NCAT Act). 2. It is uncontroversial that procedural fairness requires that both parties have a reasonable opportunity to present their case (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343). 3. However, what must be shown is that the tenants have suffered a practical injustice as a result of the breach. That is, that as a result of any failure to provide procedural fairness, the tenants were denied an opportunity to make submissions material to the Tribunal's decision (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]; Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at 14 [37]). 4. The relevant facts are as follows: 1. On the date the Tribunal Application was lodged, the Tribunal registry issued a "Notice of Conciliation and Hearing in a Virtual Hearing Room" to both parties (the Hearing Notice). The Hearing Notice included various procedural directions. Direction 1 required the applicant (ie the landlord) to file and serve any documents on which the applicant intended to rely at the hearing by 4 March 2022. 2. Direction 2 required the respondents (ie the tenants) to file and serve certain documents only if the respondents were COVID-19 impacted and unable to pay the rent. 3. Other than direction 2 (which did not apply to the tenants as they did not say they were COVID-19 impacted), there was no direction requiring the tenants to file and serve documents on which they intended to rely at the hearing. 4. The landlord's documents were received by the tenant by email at 11 pm on 9 March 2022, which was five days after the due date specified in the Tribunal's directions, and the night before the hearing (which took place by audio visual link at 9.15 am the following morning). 5. A Russian language interpreter attended the hearing to interpret the proceedings for the tenants. 1. The following exchange took place shortly after the hearing had commenced, once the agent, who was appearing for the landlord, had confirmed to the Tribunal that the landlord was seeking termination of the tenancy and payment of rental arrears: Member: The arrears owing are $3,631.86? Agent: Yes Member: Alright, what does the tenant say? Interpreter: [Speaks foreign language] Tenant: [Speaks foreign language] Interpreter: We have been making double payments for the last couple of – ah few weeks, and I thought we already had paid that off. Member: No, There is 3000, more than 3000 owing. Interpreter: We have been taking advice from [unintelligible]. We only got those documents at 11 pm yesterday, so my request would be to postpone this matter for two weeks to let us make more payments. Member: What does the agent say? Agent: We posted it and just in case we emailed it yesterday … [unintelligible] … the owner lost patience … [unintelligible]. Member: Okay. So, there is no point in making an adjournment, just so you can make more payments. There's rent owing. It's quite a lot of money. So, the landlord wants to press for termination. I am satisfied that that rent is owing and that the termination notice is valid. So I am going to make the termination order. How much time would you like to give the tenant to move out, please? Agent: 24th of March. Member: Thank you. Now that rent is owing from 5 February, is it? 1. There immediately followed a discussion regarding the time for the tenants to vacate the premises after which the following exchange occurred: Member: So the order I am making is that the lease is terminated, the rent arrears are $3,631.86. Vacant possession must be given in three weeks by 31 March and the money is due then, too alright. Thank you very much. Interpreter: [Speaks foreign language] Tenant: [Speaks foreign language] Interpreter: I was going to ask the Tribunal … Member: Sorry, I made my orders and I am moving on to the next matter now. Thank you 1. It is clear from the transcript that the interpreter was not given any opportunity or instruction to interpret, or to elicit a response from the tenant in relation to, several key matters discussed at the hearing including: 1. The agent's response to the tenant's assertion that the documents had only arrived the night before the hearing; 2. The agent's response to the request for a two week adjournment; 3. The member's statement that there was "no point" in granting an adjournment; 4. The member's statements regarding the rent owing and the validity of the termination notice; and 5. The member's statement that she was going to terminate the tenancy agreement. 1. The role of an interpreter is to bridge the communication gap where a party does not speak or understand English at the level required to understand and engage in the Tribunal proceedings. In such circumstances the absence of an interpreter, or the failure to use an interpreter's services appropriately, is likely to lead to a denial of procedural fairness if the absence or failure results in the party not having a reasonable opportunity to put forward his or her case. 2. In this instance the fact that the interpreter's services were not used for important parts of the hearing, meant that the tenants were not given a chance to participate fully in the hearing and present submissions in relation to key matters including the accuracy of the rental ledger and the validity of the termination notice. The problems with the use of the interpreter were exacerbated by the following: 1. there had been no direction requiring the tenants to file and serve their own documents prior to the hearing; 2. at the hearing the tenants were not asked whether they would be relying on any oral or documentary evidence, particularly in relation to the assertion made at the hearing that they were up to date with their rental payments; and 3. the tenants had only received the landlord's documents, including the landlord's allegedly incorrect ledger, at 11 pm the night before the hearing, which meant that they had limited opportunity to consider, take advice on, and respond, to the landlord's evidence. 1. This combination of factors resulted in the tenant not having the opportunity to put their case in relation to the landlord's claim, including in relation to the level of arrears alleged by the landlord. 2. Had the tenants been given such an opportunity, they could have made submissions and presented materials to support their argument that the landlord's ledger was incorrect, including evidence regarding the payments inadvertently made to the former landlord which the tenants say were not accurately reflected in the agent's ledger. 3. In this regard the landlord's agent acknowledges that an error was made in Au Pac's ledger at the time the management of the tenancy was transferred to it and payments made to the former agent were not accurately recorded. The agent says that this error was corrected when it was identified in late September 2020 and that the ledger was updated accordingly on 2 October 2020. The ledger filed by the landlord in these proceedings shows that a payment of $1640 was indeed recorded on 2 October 2020, bringing the tenant's account up to 28 August 2020. However, the ledger merely characterises that payment as a "deposit" and under the heading "Received from" it refers to the tenants by name. It is not apparent from the ledger that the 2 October entry reflects payments made to the former agent rather than a normal rent payment made by the tenants. The tenants could have made submissions in relation to this anomaly had they been given the opportunity to do so. 4. Accordingly, we are satisfied that the tenants have suffered a practical injustice as a result of the denial of procedural fairness because the tenants were denied an opportunity to make submissions regarding the rental ledger which would have been material to the Tribunal's decision regarding rental arrears. Additional comments - Hearing notes 1. Whilst not mandated by the RT Act or the NCAT Act, it is the practice of the Tribunal that landlords and their agents are expected to complete a "Hearing notes form" and submit it to the Tribunal before the hearing. We refer to the Tribunal website which, in the section entitled "Tenancy" contains a hyperlink to a pro-forma hearing notes form and says: "Landlords and property managers should complete the Hearing notes form … before arriving at the NCAT hearing". The form prompts the landlord to provide important details regarding the tenancy, including, where a termination notice is relied on, the date of the notice, the date the notice was sent, how it was sent, the date it was received, the termination date on the notice and the number of days the tenant was in arrears on receipt of the notice. On the back of the form are spaces for the Tribunal to record various findings in relation to the application including whether the application was received in time and whether the notice of termination was valid. The form is a useful aide memoir for landlords and for the Tribunal in termination proceedings. 2. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel, noting the high volume of applications lodged in the Tribunal and the limitations on resources to deal with those matters in a timely manner, highlighted the importance of forms such as hearing notes. It said "in uncontested residential tenancy matters involving relatively small amounts of unpaid rent or other similarly small claims, while Members are required to prepare or record reasons for their decision that duty may be discharged by utilising a suitably drafted form". 3. We do not have before us a copy of any hearing notes form completed by the landlord in preparation for the hearing and do not know whether such a form was used at the hearing. This matter was not an uncontested matter and the grounds of appeal raised by the tenant did not include adequacy of reasons. Nonetheless we would observe that had such a form been prepared and utilised in this instance, it is likely that the problems with the termination notice which we have discussed above would have been more readily identified and the Tribunal would not have fallen into jurisdictional error. Conclusion and next steps 1. For these reasons we are upholding the appeal in relation to all of the orders made by the Tribunal. 2. As no valid notice of termination had been prepared at the time the proceedings were commenced, the only course of action available to us in relation to the orders for termination of the tenancy agreement, vacant possession of the premises and related orders, is to set them aside and to replace them with an order dismissing the application for termination of the tenancy and vacant possession of the premises. 3. With regard to the order for rental arrears, in light of the fact that we do not have before us all of the materials which were before the Tribunal at first instance, we consider that justice is best served by setting aside that order and remitting the application for rental arrears to the Tribunal for reconsideration. Orders 1. We make the following orders: 1. Time for filing the appeal is extended to 29 March 2022. 2. The appeal is allowed. 3. The orders of the Tribunal in RT22/06845 made on 10 March 2022 are set aside. 4. The respondent's application for termination of the residential tenancy agreement and vacant possession of the premises is dismissed. 5. The matter is remitted to the Tribunal, differently constituted, for determination only of the respondent's claim for rental arrears, with leave for the parties to adduce such further evidence as the Tribunal thinks fit. 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: 09 June 2022