Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bungree Aboriginal Association Ltd v Cosgrove [2023] NSWCATAP 68 Hearing dates: On the papers Date of orders: 08 March 2023 Decision date: 08 March 2023 Jurisdiction: Appeal Panel Before: A. Suthers, Principal Member D. Ziegler, Senior Member Decision: 1. The appeal is allowed. 2. The order of the Tribunal made on 9 January 2023 in SH 22/55433 is set aside. 3. The proceedings are remitted to the Tribunal for reconsideration in accordance with these reasons and otherwise according to law. Catchwords: APPEALS – no evidence to support a finding of fact – decision against the weight of evidence – exercise of discretion. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62 Texts Cited: Nil Category: Principal judgment Parties: Bungree Aboriginal Association Ltd (Appellant) Aaron Cosgrove (Respondent) Representation: B. McNally (Appellant) Greater Sydney Aboriginal Tenants' Service (Respondent) File Number(s): 2023/00020771 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 09 January 2023 Before: D. Moss, Tribunal Member File Number(s): SH22/55433 REASONS FOR DECISION 1. This dispute relates to a social housing tenancy agreement between the appellant, who is the landlord and the respondent, who is the tenant. 2. On 15 December 2023 the landlord lodged an application form with the Consumer and Commercial Division of the Tribunal, seeking termination of the residential tenancy agreement under s 85 of the Residential Tenancies Act 2010 (NSW) (the RT Act) (the Application Form). 3. On 9 January 2023 the Tribunal dismissed the landlord's application. The landlord now appeals that decision. 4. On 8 February 2023 the Appeal Panel made an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) dispensing with a hearing and directing that the appeal be decided on the papers. 5. For the reasons set out below, we have decided to allow the appeal and to remit the proceedings to the Tribunal for reconsideration. Submissions and evidence 1. In deciding the appeal on the papers, we have had regard to the following: 1. The Notice of Appeal lodged on 19 January 2023, which attaches copies of the Tribunal's Notice of Order, a letter dated 23 August 2022 from the landlord to the tenant in relation to various arrangements between the parties, a letter dated 5 September 2022 from the landlord to the tenant attaching a notice of termination, and the Application Form. 2. The Reply to Appeal lodged on 23 February 2023. 3. The directions made by the Appeal Panel at a callover hearing on 8 February 2023. 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: NCAT Act s 80(2). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by cl 12(1) of Sch 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: (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). 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 Sch 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 said 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. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos v Di Rico), the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Grounds of Appeal 1. The landlord is not legally represented and the grounds of appeal are not entirely clear from the Notice of Appeal. However, consistent with the principles in Cominos v Di Rico, we have considered the material as a whole with a view to identifying the grounds of appeal. We understand the grounds of appeal to be as follows: 1. There was no evidence to support a finding of fact. 2. The landlord may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence. 1. The first ground involves a question of law for which leave to appeal is not required. The second ground requires leave to appeal. Background and relevant provisions 1. A landlord may give a "90 day termination notice", without being required to demonstrate a reason for doing so, if the tenancy agreement is a periodic agreement: RT Act s 85(1) and (2). 85 Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. 1. Section 85(3) provides: "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 and the tenant has not vacated the premises as required by the notice". 2. On or about 5 September 2022, the landlord issued to the tenant a 90 day termination notice specifying a termination date of 14 December 2022 (the Notice). 3. On 15 December 2022 the landlord lodged the Application Form online. It is apparent that the form was lodged on that date because the electronically generated copy of the form states "15/12/2022" next to the column headed "Date Lodged". 4. The matter came before the Tribunal for a conciliation and group list hearing on 9 January 2023. At the hearing the Tribunal decided the matter and dismissed the application. The Notice of Order issued by the Tribunal stated: The Tribunal has no jurisdiction to determine the application for termination and possession because the application was made prior to the date specified in the notice. Consideration 1. The only reason given by the Tribunal for dismissing the application was that the application was made prior to the date specified in the Notice. 2. Although not explicitly stated, we understand the Tribunal to have been referencing s 83(2)(a) of the RT Act which states: (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 1. Clause 39(2) of the Residential Tenancies Regulation 2019 (NSW) relevantly provides that for the purposes of s 83(2)(a) of the RT Act, the prescribed period is within 30 days after the termination date specified in the relevant termination notice. 2. Accordingly, a landlord may not apply to the Tribunal for a termination order until after the termination date specified in the relevant termination notice. We note there is an exception to this requirement for termination notices given on the ground of non-payment of rent or utilities: s 88(4). However, that exception was not relevant here. An application for termination must also be made within the 30-day period prescribed for the purpose of s 83(2)(a). 3. In this case the termination date specified in the Notice was 14 December 2022. The application to the Tribunal was made on 15 December 2022, which was the day after the date specified in the Notice, and was also within the prescribed 30-day period. There was nothing in the materials which were before the Tribunal which might have suggested that the application was made on or before the date specified in the Notice. 4. Accordingly, there was no evidence to support the Tribunal's finding that the application was made prior to the date specified in the Notice. This is an error on a question of law. 5. On that basis, we have decided to uphold the appeal and it is therefore not necessary to decide whether to grant leave to appeal. 6. However, for the sake of completeness, we would add that we would have granted leave to appeal in any event. Our reasons for this include the following. 7. Firstly, for the reasons already expressed, the decision was clearly against the weight of evidence. The only reason given for dismissing the application was that the application was made before the termination date specified in the Notice. There was no evidence to support this finding of fact. 8. Secondly, there was a significant possibility or a chance that was fairly open that a different and more favourable result would have been achieved for the landlord had the decision not been against the weight of evidence. 9. In this regard, when considering whether to make an order under s 85(3) the Tribunal is not exercising a discretionary power or engaging in any evaluative process: Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62 at [31]. Section 85(3) requires the Tribunal to terminate a periodic tenancy agreement if it is satisfied of the matters in that provision (i.e. that the notice of termination was given in accordance with s 85 and that the tenant has not vacated the premises). This applies to all periodic tenancy agreements including social housing tenancy agreements. 10. There is nothing before us to suggest that the agreement was not a periodic agreement, that the Notice was not given in accordance with s 85 or that at the time of the first instance hearing the tenant had not vacated the premises as required by the Notice. Therefore, had the Tribunal not fallen into error, there was a significant possibility or chance that was fairly open that the Tribunal would have made an order terminating the tenancy. 11. Thirdly, the circumstances warrant us exercising our discretion to grant leave to appeal. Although we agree with the respondent's submission that the appeal does not raise issues of principle or public importance, these are not the only factors relevant to the exercise of the Appeal Panel's discretion. Other relevant considerations include (per Collins v Urban) whether, as is the case here, there has been 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, or a factual error that was unreasonably arrived at and clearly mistaken. Conclusion and orders 1. For the reasons given, we have decided to uphold the appeal and to set aside the order by the Tribunal on 9 January 2023. 2. We are not satisfied that in accordance with s 81(1)(d) of the NCAT Act, we can fairly determine the dispute on the basis of the limited materials before the Appeal Panel. For example, we have not been provided with a copy of the residential tenancy agreement and therefore cannot determine whether the agreement was in fact a periodic agreement at the time the Notice was issued. Nor do we have sufficient evidence to properly exercise the available discretion to suspend the order for possession for a period, if that is warranted. 3. Accordingly, in accordance with s 81(1)(e) of the NCAT Act, we will remit the matter back to the Consumer and Commercial Division to reconsider the landlord's application for termination. 4. For these reasons, we make the following orders: 1. The appeal is allowed. 2. The order of the Tribunal made on 9 January 2023 in SH 22/55433 is set aside. 3. The proceedings are remitted to the Tribunal for reconsideration in accordance with these reasons and otherwise according to law. ********** 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: 08 March 2023