Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burn v St George Community Housing Ltd [2022] NSWCATAP 293 Hearing dates: 29 August 2022 Date of orders: 8 September 2022 Decision date: 08 September 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R C Titterton OAM, Senior Member Decision: (1) Appeal dismissed Catchwords: APPEAL- residential tenancy - landlord a social housing provider-termination under s 84 of Residential Tenancies Act 2010 (NSW) - application to succeed to the tenancy of the departing tenant- application of s 77 - whether notice of termination was retaliatory - execution of warrant where warrant not shown to the tenant Legislation Cited: Residential Tenancies Act 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Tania Ann Burn (Appellant) St George Community Housing Ltd (Respondent) Representation: Appellant (Self-represented) (with Mr Phillip Zenos) S Saward (Respondent) File Number(s): 2022/00197163 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 12 June 2022 Before: G Kinsey, General Member File Number(s): SH 22/00242 SH 21/49194 REASONS FOR DECISION Introduction 1. The Appellant was a tenant of residential premises and the Respondent the landlord. The relationship between the parties is regulated by the Residential Tenancies Act 2010 (NSW) (the RT Act), including the provisions concerning social housing tenancy agreements in that Act. 2. On 23 June 2022, the Tribunal heard two applications. One application had been brought by the Respondent against the Appellant seeking termination of the tenancy. The other application had been bought by the Appellant seeking an order under s 77 of the RT Act that the Appellant be recognised as a tenant under a residential tenancy agreement. Section 77(5) provides that s 77 does not apply if the landlord is a social housing provider. That application was dismissed having regard to s 77(5). The other aspect of the Appellant's application at first instance was for an order under s 115 of the RT Act upon the basis that the Respondent had issued a Notice of Termination and that that notice was retaliatory. That application was also dismissed. 3. The Tribunal granted the Respondent's application and made orders for termination of the tenancy. 4. We will refer to the decision under appeal as the Decision. The Decision records the relevant background facts. They are that the Respondent had entered into a residential tenancy agreement with Mr Zenos in 2019. In 2021, he was offered accommodation elsewhere and the Appellant lodged an application to succeed him as the tenant in the premises leased by the Respondent to Mr Zenos. The Respondent and the Appellant entered into a fixed term tenancy agreement on 15 November 2021 for a period of 30 days (ending 15 December 2021). On the same day (15 November 2021) the Respondent served on the Appellant a Notice of Termination under s 84 of the RT Act requiring vacant possession on 15 December 2021. 5. On or about 10 December 2021, the Appellant's application to succeed Mr Zenos was refused. On 5 January 2022, the Respondent lodged its application in the Tribunal for orders for termination. The Appellant appealed the unsuccessful succession application pursuant to processes maintained by the Respondent (ie. a process not involving the Tribunal) and that appeal was determined in late January. 2022. The appeal was dismissed. Notice of Appeal and Reply 1. On 6 July 2022, the Appellant lodged a Notice of Appeal. The grounds of appeal may be summarised as follows: 1. the Tribunal "did not take into account their own appeal process – constituting procedural unfairness"; 2. the member did not take into account that termination of the tenancy is unfair because it placed the Appellant into homelessness and possible sickness; 3. taking possession of the premises is malicious; 4. taking possession is unnecessary as the Appellant is up to date with the rent; 5. the Respondent should not have the right to relist the application; 6. "The Decision was given quite summarily on the same day" and there was no consideration of the hardship put upon the Appellant. 1. With respect to ground 1 above, we interpret the reference to appeal processes to be a process maintained by the Respondent concerning applications by occupants of the Respondent's premises to "succeed" to the tenancy of the vacating tenant and to the appeal process available to unsuccessful applicants also maintained by the Respondent. The Tribunal has no jurisdiction with respect to those processes and there is no jurisdiction given to the Tribunal including this Appeal Panel authorising consideration of this ground. 2. With respect to ground 5 this appears to be a reference to order 5 contained in the Decision, by which the Respondent is given leave to relist to determine the amount of any occupation fee. 3. The Respondent lodged a Reply to Appeal, contending that the Appellant has no grounds of appeal and implicitly contending that the appeal should be dismissed. The Reply to Appeal contains information concerning the Appellant's application for succession to the tenancy and to the role played by the Housing Appeals Committee. The Appeal Hearing 1. At the appeal hearing the Appellant was assisted by the advocacy of Mr Zenos. He and the Appellant both contended that the Appellant had been removed from the tenanted premises on 18 August 2022 by Sheriff's officers who claimed to be executing a warrant for possession but did not have a warrant. We took the sworn evidence of both Mr Zenos and the Appellant and also the sworn evidence of the Ms Saward (the Respondent's representative). The essence of the evidence of the Appellant and Mr Zenos was that they asked the Sheriff's officer whether he had a warrant and the officer said that he did not need one. Both said a warrant was not produced or served upon the Appellant. The essence of Mr Saward's evidence was that she was present when the sheriff's officer purported to execute the warrant and she saw the officer with a piece of paper. She could not say whether it was a warrant. 2. We note from the Tribunal's file records that a warrant for possession was issued on 2 August 2022 and that, on the same day, the Tribunal sent a letter to the Appellant advising that a warrant for possession has been sent to the Office of the Sheriff. 3. It is our view that the Sheriff clearly had authority by virtue of the warrant issued on 2 August to enter the tenanted premises and take all steps reasonably necessary to give possession to the Respondent. The fact that the Sheriff's officer may not have disclosed to the Appellant or Mr Zenos that he had a warrant does not mean that the authority given to the sheriff by the warrant ceased to exist. In our view, there is no merit in the argument that possession was obtained unlawfully. 4. At the hearing, Mr Zenos made submissions asserting that the reason that the Appellant had her tenancy terminated was so that the Respondent could "cover‑up" lack of maintenance to the tenanted premises. He did not draw to our attention any evidence establishing that motive. In response to a statement made by Ms Saward to the effect that the Respondent thought that the Appellant was moving to the same premises that Mr Zenos was moving, Mr Zenos made extensive submissions intended to demonstrate that he was moving to fresh premises for reasons associated with his own health and that the Appellant was never moving with him. This issue between the parties as to what was intended to happen when Mr Zenos left the tenanted premises is a matter that is not relevant to our decision concerning the issues that arise in the appeal. Consideration 1. Appeals from decisions made in the Consumer and Commercial Division of the Tribunal are regulated both by s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and by cl 12 of Sch 4 of that Act. Clause 12 provides that is in the following terms: 12. Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because-- (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. It can be seen that cl 12 limits the scope of the Tribunal's power to grant leave in circumstances where there is no question of law arising. In the circumstances of this case, cl 12(2) is engaged because a warrant of possession has been executed in relation to the order made on 23 June 2022. This means that the Appellant's appeal is limited to grounds giving rise to any question of law insofar as the appeal is concerned with the order for termination. 2. Ground 1 concerns the appeal process before the Housing Appeals Committee. As stated before, the Appeal Panel has no jurisdiction with respect to that process and therefore this ground is rejected. 3. Ground 2 concerns the contention that the effect of the termination was to render the Appellant homeless. This ground does not raise a question of law. In addition, it is relevant that the order for termination was made under s 84 of the RT Act. That section provides that a landlord may at any time before the end of the fixed term agreement give a Termination Notice to take effect on or after the fixed term. The section provides for a Termination Notice to specify a date not earlier than 30 days after the day on which the notice is given. Relevantly, s 84(3) states that the Tribunal must, on application by a landlord, make a termination order if it is satisfied that a Termination Notice was given in accordance with this section. There is nothing to suggest that the notice was not given in accordance with the section. Indeed, the Tribunal recorded in the Decision that it was satisfied that the notice was given in accordance with the requirements of s 84. In these circumstances, this ground is rejected. 4. Ground 3 contends that the order for possession is malicious. The Appellant contended that the Respondent did not take into account her Covid susceptibilities. There is no evidence of malice. The Respondent's explanation was that the Respondent was willing to give to the Appellant a short-term tenancy to cover the period during which the Appellant's application to succeed to the tenancy of Mr Zenos would be considered. This ground is rejected. 5. Ground 4 asserts that the possession order is unnecessary because the Appellant has paid rent and is not in arrears. The fact that the Appellant is, or has been, up-to-date with payment of rent does not preclude the Respondent from terminating the tenancy under s 84. This ground is rejected. 6. Ground 5 concerns the Appellant's opposition to the order permitting the Respondent to relist the application. The purpose of this order was to enable the Tribunal to calculate the amount of any occupation fee and to thereby give to the Respondent an opportunity to have a certified money order enforceable against the Appellant. The order was appropriate in the circumstances and therefore the ground is rejected. 7. Ground 6 concerns the contention that the decision was given "summarily on the same day" and that therefore no consideration was given by the Tribunal to the hardship being experienced by the Appellant. Decisions of the Tribunal in residential tenancy matters are very commonly given on the day of the hearing. There is nothing unusual with that process. The question is whether, having regard to the Decision and the contentions of the parties, the Decision reveals lack of consideration of the relevant issues. In our view that is not the case and accordingly, this ground is dismissed. 8. In light of the conclusions we have reached with respect to the grounds of appeal, the appeal must be dismissed. 9. The Appellant's Notice of Appeal also contends that the Tribunal erred in dismissing the Appellant's application for an order under s 77 of the RT Act. Section 77(5) states that s 77 does not apply where the landlord is a social housing provider. The Respondent is a social housing provider and the Appellant did not contend otherwise. This ground is therefore rejected. The second part of the application at first instance concerned the Appellant's contention that the Notice of Termination was retaliatory. The Tribunal dismissed that application upon the basis that there was no evidence that the Respondent was wholly or partly motivated to give the notice of termination or make the application for termination for one of the reasons set out in s 115(2). Although the dismissal of this application does not appear to be the subject of the appeal, we, nevertheless, say that there is no basis, in our view, for the view that the Decision reveals error in considering and dismissing that application. 10. In the circumstances, the order we make is as follows: 1. Appeal 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. 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