Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Barkat v Sun [2022] NSWCATAP 200 Hearing dates: 31 May 2022 Date of orders: 16 June 2022 Decision date: 16 June 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: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — oral tenancy agreement — NSW Civil And Administrative Tribunal — no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Barkat v Sun [2021] NSWCATAP 327 Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Mark Barkat (First Appellant) Rubina Barkat (Second Appellant) Zechaou Sun (First Respondent) Aiquing Xu (Second Respondent) Representation: Solicitors: Appellants (self-represented) Cathay Lawyers (Respondents) File Number(s): 2022/00082266 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 10 March 2022 Before: P French, Senior Member File Number(s): RT 21/44010 reasons for decision Background 1. This is an appeal against a decision of the Consumer and Commercial Division made on 10 March 2022. The Appellants are the tenants of a property located at Castle Hill NSW (the Property). The Respondents are their landlord, the owners of the Property. 2. The Appellants rented the Property from the Respondents under a succession of written fixed term residential tenancy agreements, the most recent of which had a 12-month term commencing on 1 August 2019 and ending on 31 July 2020. On 13 July 2020, the Respondents served an end-of-fixed term termination notice under section 84 of the Residential Tenancies Act 2010 (the RT Act), specifying that the date for vacant possession was 21 October 2020. 3. On 17 September 2020, the Appellants made an application to the Tribunal seeking, amongst other orders: 1. a declaration pursuant to the RT Act that the notice of termination was retaliatory under section 115 of the RT Act, and 2. an order under ss 11 and 16 of the RT Act respectively declaring that there was a residential tenancy agreement between the Appellants and the Respondents. 1. On 19 February 2021, the Tribunal dismissed the Appellants' application. 2. On 2 March 2021, the Appellants lodged an appeal with the Tribunal against that decision, and on 24 March 2021 the Appeal Panel made an order suspending the order for possession, subject to certain conditions including as to the payment of rent. 3. On 10 May 2021, the Appeal Panel heard the appeal, and on 25 October 2021 it issued its decision, which is reported as Barkat v Sun [2021] NSWCATAP327. This was to allow the appeal, to set aside the orders made by the Tribunal, and to remit the matter to the Tribunal's Consumer and Commercial Division for a rehearing. The Appeal Panel's reason for doing so was that the Appellants had not been afforded procedural fairness at first instance, since they had not been given the opportunity of cross-examining the Respondents' daughter on certain evidence which she had provided in the form of a statutory declaration. 4. The matter was reheard by the Consumer and Commercial Division on 7 March 2022, and on 10 March 2022 the Senior Member who reheard it made an order dismissing the application and issued his reasons (the Reasons) for doing so. 5. On 21 March 2022, the Appellants lodged an appeal against this decision, and the purpose of today's hearing is to decide that appeal. 6. Some 22 months after the end-of-fixed term termination notice was given to the Appellants in 2020, they continue to occupy the Property. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that 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. The Decision below 1. For convenience we have set out the relevant part of the decision: 8. By the application under section 11 of the RT Act the tenants asked the tribunal to make an order declaring that there is a residential tenancy agreement subsisting between themselves and the landlord to which the RT Act applies. This application is misconceived. There is no issue that there is a residential tenancy agreement subsisting between the parties to which the RT Act applies. … 11. By their application under section 16 (1) of the RT Act the tenants asked the tribunal to order the landlords to prepare and enter into a written residential tenancy agreement to give effect to an oral agreement they can tend was made for a further 12 months fixed term commencing on 1 August 2020 and ending on 31 July 2021. This was the grant of an of the dispute between the parties in the original proceedings. The landlords originally disputed that such an oral agreement was made. However, Mr Wang informed the Tribunal that this is no longer contested. That is, the landlord is now concede that such an agreement was made orally. In the absence of any dispute, the Tribunal therefore makes that finding. An oral agreement was made on 26 July 2020 for a further fixed term of 12 months duration commencing on 1 August 2020 and ending on 31 July 2021. It follows from this that the tenancy has continued on a periodic basis after the end of that fixed term, being from 1 August 2021. Neither party contends that there was any form of agreement (that is oral or in writing) for any further fixed term beyond that date. 12. Having reached that conclusion, the issue is whether it is an appropriate use of the discretion conferred by section 16 to require the landlord to prepare and enter into a written fixed term agreement with the tenants in respect of the period 1 August 2020 to 31 July 2021. I am not satisfied that it is. There is no longer any dispute as to such an agreement having been made or as to its terms. A residential tenancy agreement may be oral without its oral form affecting any tenant or landlord right or obligation. The period of the fixed term ended more than 7 months ago. There is therefore no utility in such an order being made. While such an order may vindicate the tenants, Mr Wang's concession is a sufficient vindication of their position in my view. The S 16 discretion is to be exercised judicially where there is proper cause. There is no proper cause for the exercise of the discretion remaining now. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 21 March 2022 and attachments constituting some of the evidence filed before the Member below; 2. The appellant's written submissions filed and served on 28 April 2022; 3. The respondent's reply to appeal lodged on 2 April 2022 4. The respondent's written submissions lodged on 9 May 2022; and 5. The oral submissions made by and on behalf of the parties at the appeal hearing. Notice of Appeal - 1. The Notice of Appeal was lodged on 21 March 2022, which is within the time prescribed by cl 25(3) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The Appellants appeal on the following questions of law, namely that in reaching its decision: 1. The Tribunal did not properly apply section 11 of the RT Act, by failing to make a declaration that the oral agreement between the Appellants and the Respondents constituted a fixed term tenancy agreement; 2. The Tribunal did not properly exercise its discretion under section 16 of the RT Act; 3. The Tribunal failed to take into account relevant legislation, namely s 188(c) of the RT Act and s 58 of the NCAT Act; and 4. The Tribunal failed to uphold proper procedural standards, by failing to consider properly issues arising from allegations made by the Appellants, that one of the Respondents' witnesses had made a false statutory declaration. 1. The Appellants also seek leave to appeal on the following grounds: 1. The decision was not fair and equitable because the Tribunal failed to take relevant factors properly into account; 2. The decision was not fair and equitable because the Tribunal did not exercise its power to substitute a later commencement date for the tenancy agreement; 3. The decision was not fair and equitable because the Tribunal failed to order a 12-month tenancy commencing on the date of its decision; 4. The decision was not fair and equitable because the Tribunal failed to have regard to the Respondents' unconscionable behaviour; 5. The Tribunal's decision was against the weight of evidence, since it did not take full account of the Appellants' evidence as to the formation of the residential tenancy agreement, negotiations preliminary to that time, their financial position and the falsity of evidence provided by the Respondents' witness. Reply to Appeal 1. The Respondents replied as follows: 1. As for Ground (1), section 11 goes to jurisdictional issues. There was no disagreement that the tenancy was a residential tenancy agreement over which the Tribunal had jurisdiction, and accordingly there was no relevant error of law. 2. As for Ground (2), there was no debate at the hearing that the arrangement was a residential tenancy agreement that, by the date of the hearing, had run its full term of 12 months. There was thus no utility in the proposed order, and it was an entirely proper exercise by the Tribunal of its discretion not to make the order. In any event, the Tribunal has no jurisdiction under section 16 to rewrite residential tenancy agreements. 3. As for Grounds (3) and (4), the Tribunal did not depart from principles of procedural fairness in reaching its decision. 4. As for the application of leave to appeal, the Appellants and the Respondents each received what they had agreed: respectively, occupancy of the Property for 12 months in exchange for the payment of rent and arrears. There was nothing unfair or inequitable in the decision under appeal, which gave effect to that bargain. Consideration 1. At the hearing of the appeal the parties supplemented their written submissions with oral submissions. 2. The Appeal Panel was not convinced by the Appellants' arguments. 3. As to the first ground of appeal: 1. Section 11 of the RT Act provides as follows: The Tribunal may, on application by the Secretary or another person, make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies or that specified premises are, or are not, premises to which this Act applies. 1. The Reasons at paragraph [8] make contain a finding that there was no controversy, that a residential tenancy agreement to which the RT Act applied subsisted between the parties. 2. There was thus no need for a declaration under section 11, and the Tribunal declined to exercise its discretion to make such an unnecessary declaration. In the Appeal panel's view, this was an entirely reasonable and appropriate decision. 1. As to the second ground of appeal: 1. Section 16 of the RT Act provides as follows: (1) The Tribunal may, on application by a tenant, order the landlord to prepare and enter into a written residential tenancy agreement. (2) The order may— (a) specify the terms of the agreement, and (b) specify a commencement date for the agreement that occurred before the order was made. (3) The Tribunal may make an order under this section only if it is satisfied that the landlord and tenant are subject to an existing residential tenancy agreement that is not in writing or is only partly in writing and that the tenant is not holding over under a previous written fixed term agreement. 1. There had been controversy between the parties at the initial hearing as to whether there was an oral fixed term tenancy agreement of 12 months, commencing on 1 August 2020, between the parties. However, as the Reasons record at paragraph [11], at the hearing on 7 March 2022 the point was conceded by the Respondents and the Tribunal found as follows: In the absence of any dispute, the Tribunal therefore makes that finding. An oral agreement was made on 26 July 2020 for a further fixed term of 12 months duration commencing on 1 August 2020 and ending on 31 July 2021. 1. The Tribunal then proceeded to consider whether, in the light of that finding, it was an appropriate exercise of the discretion conferred by section 16 of the RT Act to require the Respondents to prepare and enter into a written fixed term residential tenancy agreement in respect to the period 1 August 2020 to 31 July 2021. 2. It decided that there was no proper cause to exercise that discretion since: 1. There was no dispute that there was an oral residential tenancy agreement in place between the parties in respect of that period; 2. The period of the fixed term had ended some 7 months before the hearing; and 3. There was thus no utility in the Tribunal requiring the reduction of that oral residential tenancy agreement to written form. 1. The Appeal Panel agrees with the Tribunal's decision that there is no utility in making a declaration in circumstances where the residential tenancy agreement and the oral variation are admitted and the agreement has been performed. The appellants have failed to establish an error of law or an error for which the leave of the Tribunal Appeal Panel is required. This ground of appeal must be dismissed 1. Turning now to the third ground of appeal, the Appellants say that: 1. Under: 1. section 188(c) of the RT Act the Tribunal has power to make in relation to proceedings under that Act any ancillary order that it considers appropriate; and 2. section 58 of the NCAT Act, the Tribunal when making an order has power ".. to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies," so that in making an order under section 16 of the RT Act the Tribunal has authority to impose variations of the provisions of the oral residential tenancy agreement on the parties in the process of reducing the oral agreement to writing. Mr Barkat submitted that the Appeal Panel may make a variation of the residential tenancy agreement, declaring a further fixed term of 12 months commencing from the date of the Appeal hearing. 1. The Respondents' continuing refusal, at least until the admissions made by them at the hearing on 7 March 2022, left the Appellants in a state of uncertainty concerning their tenancy, thus effectively depriving them of the benefit of unencumbered quiet possession of the Property from 1 August 2020. 2. By not making an order under section 16 of the RTA Act in conjunction with its powers under section 188(c) and 58, to impose a residential tenancy agreement having a term of 12 months from the hearing date (so as to give the Appellants the security of tenure which they deserved), the Tribunal was in error. 3. The Appeal Panel does not accept this argument. Section 16 predicates the existence of an oral residential tenancy agreement; in paragraph [11] of the Reasons the Tribunal found that such an agreement existed. Its discretion under that section is to require the reduction into written form of that oral residential tenancy agreement, not to rewrite the terms of such an oral agreement, and general ancillary powers such as those contained in sections 188(c) and 58 cannot transform the Tribunal's power under section 16 into something which it is not. 4. The Appeal Panel agrees with and adopts the Tribunal's comments in paragraph [13] of the Reasons, that: The discretion conferred by s16 does not provide the Tribunal with licence to impose upon the parties any idiosyncratic notion of justice whether to penalise a landlord in relation to conduct of which it disapproves or to salve a tenant who has suffered an ordeal. For this reason, the discretion cannot be exercised to impose a term of the agreement on the parties which has no foundation in anything they have negotiated or have sought to negotiate in the past. 1. For these reasons the third ground of appeal must fail also. 2. In respect of the fourth ground of appeal: 1. It appears from the Appeal Panel's decision in Barkat v Sun [2021] NSWCATAP327, at paragraph [24], that there was ".. a contested factual issue concerning the content of the conversation between the tenants and Ms Sun [the respondents' daughter] which it might be thought warranted testing by cross-examination". 2. The relevant evidence, it appears from that decision, was contained in the statutory declaration dated 7 September 2020 concerning conversations between herself and the second Appellant as to the term of any renewal of the tenancy. This is the statutory declaration referred to by the Appellants in their Grounds of Appeal. 3. Since: 1. the Appeal Panel remitted the matter back to the Consumer and Commercial Division specifically in order to allow Ms Sun's evidence to be tested; and 2. the admissions made by the Respondents at the hearing in 7 March 2022, that there was an oral residential tenancy agreement in place between the parties for the period 1 August 2020 to 31 July 2022, resolved as between the parties the contested factual issue to which the earlier Appeal Panel referred to in paragraph [24] of its reasons in in Barkat v Sun [2021] NSWCATAP 327 the present Appeal Panel discerns no question of law in respect of which the Tribunal can be considered to have erred in the decision under appeal or its Reasons. 1. We consider that the fourth ground of appeal must be dismissed also. 2. The Appeal Panel refuses leave to the Appellants to appeal on those matters in respect of which they have sought leave: 1. The original notice issued by the Respondents under section 84 of the RT Act was issued on 13 July 2020, and required vacant possession of the Property by 21 October 2020, as is summarised in paragraph [4] of the earlier Appeal Panel's reasons in Barkat v Sun [2021] NSWCATAP 327. As at the hearing date of this appeal, 31 May 2022, the Appellants remain in occupation of the Property. They have therefore enjoyed a further 19 months of occupancy of the Property after the date on which the Respondents originally sought vacant possession following the expiry of the last written residential tenancy agreement. This simple fact alone makes it difficult indeed for the Appeal Panel to conclude that the Tribunal's decision has occasioned any unfairness or inequity to the Appellants, or that leave to appeal should be granted on those grounds. 2. Moreover, the Reasons considered and addressed all evidence relevant to the questions before the Tribunal, namely whether to make orders under section 11 or section 16 of the RT Act. As the Tribunal clearly explained at paragraph [17] of its Reasons, the function of those sections is not to authorise the Tribunal "… to impose a term on the agreement of the parties which has no foundation on anything they have negotiated or have sought to negotiate in the past". Any evidence directed at justifying the imposition of such a term was necessarily irrelevant to the Tribunal's deliberations, and if the Tribunal did not consider that evidence (or give it the prominence in its deliberations which the Appellants might like) that did not support the application for leave. 3. Finally, that the Tribunal's decision addressed and resolved all practical issues between the parties in connection with the residential tenancy which commenced on 1 August 2020 strongly suggests that there was no unfairness or inequity which might support leave to appeal. 1. For the above reasons, the appeal is dismissed. Orders 1. The Appeal Panel orders that: 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 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: 16 June 2022