Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stewart v Southern Cross Community Housing Ltd [2022] NSWCATAP 267 Hearing dates: 9 August 2022 Date of orders: 12 August 2022 Decision date: 12 August 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Principal Member A Boxall, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: APPEAL – No error of law demonstrated – no basis for leave to appeal established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 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: Kathy May Stewart (Appellant) Southern Cross Community Housing Ltd (Respondent) Representation: Mr M Neal, Mirru Mia Aboriginal Tenants' Service (Appellant) Ms J Hadley (Respondent) File Number(s): 2022/00176548 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Date of Decision: 3 June 2022 Before: D Ash, General Member File Number(s): SH 22/04340 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 3 June 202. 2. The application to the Tribunal was brought by the respondent, against the appellant, seeking the termination of a residential tenancy agreement and an order for the payment of arrears of rent. 3. The issues raised by the Notice of the Appeal are: (1) whether there is an error of law, (2) whether the decision was not fair and equitable, (3) whether the decision was against the weight of the evidence, (4) whether there was significant new evidence now available, being evidence that was not reasonably available at the time of the hearing, and (5) if (2) or (3) or (4) is established, whether to grant leave to appeal. 4. However, at the hearing, only two grounds were pressed: first, an alleged lack of procedural fairness; secondly, that there was new evidence that was relevant. 5. For the reasons set out below, we have decided that neither matters raised in the Notice of Appeal nor at the hearing involve an error or law, and that no basis for a grant of leave has been established, with the result that the appeal should be dismissed. Background 1. The appellant was a tenant, and the landlord was a respondent, in relation to an apartment in Nowra. The application to the Tribunal was lodged on 2 February 2022. The matter was heard on 3 June 2022 and the Tribunal's reasons for decision were given on that day when the orders which are now challenged orders were made. 2. The Tribunal relevantly found that (1) the respondent was entitled to a termination order, (2) the order for possession should be suspended until 1 July 2022, and (3) that arrears of rent were $3,420.92 as at 3 June 2022. 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) 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. 2. 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), 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, 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. 1. Documents considered 2. In deciding the appeal, we have had regard to (1) the Notice of Appeal, dated 16 June 2022, (2) the appellant's submissions, pages 1 to 43, received on 22 July 2022, (3) the letter from Mission Australia dated 8 August 2022, (4) the respondent's submissions, pages 1-55, received on or about 29 June 2022, and (5) a further 5 pages, received on 8 August 2022. Notice of Appeal 1. The Notice of Appeal was lodged on 22 June 2022, which is outside of the 14-day period which applies by reason of cl 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules). As the orders were made on 3 June 2022, that Notice of Appeal should have been lodged on or before 17 June 2022. The fact that the Notice of Appeal is dated 16 June 2022 does not render it within time. However, for the reasons indicated below, it is not necessary to consider that aspect since, even if an extension of time were granted, the outcome of the appeal would be the same. Grounds of Appeal 1. In the Notice of Appeal, the grounds were said to be a failure to grant the appellant an adjournment and denying the appellant an opportunity to make submissions. Secondly, the decision was said to be not fair and equitable by reason of the appellant's health and an alleged failure by the respondent to provide its evidence to the appellant. Thirdly, similar reasons were advanced in support of a claim that the decision was against the weight of the evidence. Fourthly, there was said to be new evidence in that the appellant had become aware after the hearing that Anglicare had paid $900 towards the arrears of rent prior to the hearing. 2. As indicated above, not allowing an adjournment and the failure to consider the $900 payment made to the Respondent by Anglicare in reduction of the arrears of rent owed by the Appellant were the only reasons advanced at the hearing in support of the appeal. 3. History of the appeal 4. After the Notice of Appeal was lodged, on 20 June 2022 directions were made in relation to the application for a stay. On 1 July 2022 a stay order was made, conditional upon the appellant paying $1,000 by 4pm on 11 July 2022 and thereafter paying the occupation fee on a fortnightly basis. On that occasion, directions were also made for the lodgement of any evidence and/or submissions upon which the parties wished to rely at the hearing of the appeal: by 22 July 2022 in the case of the appellant and by 5 August 2022 for the respondent. 5. Submissions for the appellant 6. First, it was submitted that the failure to allow an adjournment of the 3 June 2022 hearing had the result that the Appellant was not able to make submissions material to the decision that was made on that occasion. That was said to have disadvantaged the Appellant by depriving her of a reasonable opportunity to present her case. Reference was made to s 38 of the NCAT in support of the proposition that the Appellant was entitled to a fair and unbiased hearing. It was suggested that, if present, the Appellant could have given evidence of her capacity and her circumstances. On behalf of the Appellant, Mr Neal suggested that, if the appeal was allowed and the order for possession was enforced, the Appellant and her four children would be rendered homeless. 7. Secondly, it was said that the $900 payment by Anglicare was not considered because, although made prior to the 3 June 2022 hearing, it was not allocated or attributed to the Appellant's rent account until after the hearing. The Tribunal was advised that the Appellant had a number of factors which had affected her, including the death of her partner in a house fire, a 19 year-old son with autism, a fear of using phones, and a gambling issue. It was suggested that efforts are being made to put the right support in place for the Appellant, that she was cut off from Centrelink payments for a period and had no rent assistance during that time. 8. The Tribunal was also advised that the appellant had made a payment of $2,078 on 8 July 2022 and that if the Appellant was evicted from social housing it would be hard for her to obtain social housing in future. In response to questions from the Tribunal, Mr Neal indicated that the 3 June 2022 hearing was a conciliation hearing, that the amount paid on 8 July 2022 included one fortnight's occupation fee of $578, and that it was not disputed that the specific performance orders included in the Respondent's documents were made. 9. Submissions for the respondent 10. On behalf of the Respondent, Ms Hadley indicated that the current arrears were $3,771.08 with the result that, despite the payment of $2,378 on 8 July 2022, the rent arears now were greater than they were at the time of the 3 June 2022 hearing. The Tribunal was told that hearing was a relisting arising from a specific performance order (SPO) made on 1 March 2022 and that there had been no payment of any occupation fee since the payment that was made on 8 July 2022. It was noted that, at the 3 June 2022 hearing, the Appellant was represented by a colleague of Mr Neal and that the Tribunal was advised of the Appellant not receiving Centrelink payments. 11. It was indicated that the Respondent had been trying to work with the Appellant, had shown leniency, and had tried to provide her with support. It was suggested that the Appellant had still been receiving Family Tax Benefit payments but there had been no communication to indicate hardship or request for a reduced SPO. Further, the Tribunal was reminded that the Respondent has a duty to other tenants and to other properties and that it is a not-for-profit organisation which has maintenance obligations and a business to run. The demand for social housing in Nowra was said to be such that there is a 5 to 10 year waiting list, with an increased demand for services and that the Respondent is the only social housing provider in Nowra. 12. The Respondent's position was that all the people with whom it dealt had difficulties and that it had exhausted all it options in relation to the Appellant and that Tribunal proceedings and orders should not continue indefinitely. 13. Submissions in reply 14. Mr Neal said that, if evicted, the Appellant will go back on the waiting list, that the Appellant had complex needs, and that she was a vulnerable person who needed secure accommodation. He advised that Ms Newton Shuyt had represented the Appellant at the hearing on 3 June 2022. Consideration 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". 2. Dealing first with the question of procedural fairness. The usual sequence of applications in the Tribunal is that there is an initial hearing, commonly referred to as a conciliation hearing, at which settlement is explored failing which directions are made for the provision of the evidence by both parties, which evidence is considered at the subsequent, final hearing. 3. However, in this instance, there had been an earlier hearing of a termination application on 1 March 2022 when the Appellant had been provided with an opportunity to pay arrears of rent amounting to $2,552.07 by instalments of $36.39 per week and, on that occasion, the Appellant was provided with a warning by an order which read: 4. By consent, if the orders in respect of rent are not complied with then at any time before 01-Sep-2022 the landlord may request the re-listing of the application to determine whether the tenancy agreement should be terminated. 5. Accordingly, the order made on 3 June 2022 was in the context of a concession granted to the Appellant on 1 March 2022 not to make a termination order coupled with a warning that non-compliance with the orders made on that occasion may result in a termination order being made. 6. The difficulty with the suggestion that there was a denial of procedural fairness in that an adjournment was not granted is that no documents, such (1) as an affidavit or statutory declaration, or (2) a recording or transcript of the hearing, have been provided to the Tribunal to indicate either what was said to or by the Tribunal on 3 June 2022 in relation to an adjournment. 7. It is noted that the Appellant was represented at the 3 June 2022 hearing and, given that the context was a re-list, the Appellant and/or her representative should have been ready on that occasion to provide reasons why a termination order should not be made. There can be no doubt that relevant submissions were made on behalf of the Appellant during the 3 June 2022 hearing because of what appears in the reasons given for making a termination order, which are quoted below: 8. The Tribunal has had regard to section 154E of the [Residential Tenancies Act 2010]. The evidence is that there have been three specific performance orders; that the last, now breached, was for less than the sum now found to be in arrears. There is a sustained failure to pay rent in a timely manner. There is a significant waiting list and prospective tenants who are ready willing and able to pay rent are waiting. The tenant's advocate pointed to the medical condition of the tenant. There are children at the premises although two are adults. On the last inspection the premises were found to be wanting but this does not weigh heavily against the tenant in an application for arrears in circumstances where there is no other determination of the Tribunal in place which has been breached. It appears that welfare payments have ceased although there is no explanation for this. On balance the Tribunal is not satisfied that the discretion is to be exercised in favour of saving the tenancy. 9. This ground has not been established for two reasons. First, nothing has been placed before the Tribunal beyond an allegation in the Notice of Appeal that the Appellant did not allow the tenant an adjournment. Secondly, it appears that the Appellant's representative was provided with an opportunity to make submissions on the matters now raised in support of a continuation of the tenancy at a hearing which resulted from a failure to comply with an SPO. 10. Secondly, as to the payment of $900 by Anglicare prior to the 3 June 2022 hearing that was not credited to her rental account until after that hearing. At the time of the 3 June 2022 hearing the arrears of rent were said to be $3,420.92 which means that, if the $900 payment had been taken into consideration, the position would have been (1) the arrears of rent were $2,520.92 as at 3 June 2022, (2) the arrears of rent were determined to be $2,5207 as at 1 March 2022, (3) there was still a failure to comply with three earlier SPOs. 11. Those SPOs may be summarised as (1) 12 March 2019, when the arrears of rent were $3,409.05, (2) 23 April 2019, when arrears of rent were $4,705.56, and (3) 1 March 2022 when arrears of rent were $2,552.07. 12. In those circumstances, it does not appear that if the $900 paid by Anglicare had been credited and taken into consideration the position would have been different to an extent that a termination order would not have been made. 13. Even if the $900 payment by Anglicare is treated as additional evidence which warrants a consideration of whether to grant leave, the Tribunal is not persuaded that leave should be granted when the Appellant has failed to comply with the order made on 1 July 2022 which granted a stay of the operation of the order for possession that was conditional on the Appellant: 14. Paying $1,000 to the respondent on or before 4pm on 11 July 2022 and after that date paying the occupation fee on a fortnightly basis from the date of this order pending determination of the appeal. 15. Thus, the Appellant has failed to comply with orders for payment of rent arrears or the occupation fee made on 12 March 2019, 23 April 2019, 1 March 2022 and 1 July 2022. 16. In reaching that decision not to grant leave, the Tribunal has considered (1) the circumstances of the Appellant, (2) the circumstances of the Respondent, (3) the difficult situation where the demand for social housing far exceeds the supply and (4) general hardship, such as through rising prices for food and other necessities. 17. An instalment order is a "lifeline" which enables a tenant to avoid termination. However, repeated instalment orders only serve to defer termination. There must come a point where deferral of a termination order in favour of an order for the payment of arrears of rent by instalments can no longer be considered reasonable, even when the tenant has difficult personal circumstances. 18. It is noted that social housing is a limited resource which is a privilege that enables tenants to avoid the higher rents of the "open market". Such a privilege comes with responsibilities and the desires of any individual tenant are not the sole consideration since the needs of social housing providers, their other existing tenants, and the tenants on their waiting lists are all relevant matters. 19. Conclusion 20. No error of law has been shown. The appellant has not satisfied the Tribunal that there is a basis that warrants a grant of leave to appeal. Accordingly, the orders that will be made 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 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: 12 August 2022