Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 Hearing dates: 13 March 2023 Date of orders: 05 April 2023 Decision date: 05 April 2023 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member D Goldstein, Senior Member Decision: (1) In so far as the appeal raises questions of law, the appeal is dismissed. (2) In so far as the appeal raises other errors, leave to appeal is refused, and the appeal is otherwise dismissed. (3) If the respondent seeks an order as to costs, it should file and serve any submissions within 14 days of the date of publication of these reasons. (4) The appellant may respond within a further 14 days. Catchwords: APPEALS - appeal from consent orders made by the Consumer and Commercial Division - whether there are any other grounds on which consent orders should be set aside – whether consent orders vitiated by duress, mistake or undue influence Legislation Cited: Anti-Discrimination Act 2013 (NSW) – s 47 Civil and Administrative Tribunal Act 2013 (NSW) – ss 63, 72, 80; cl 12 of Sch 4 Civil and Administrative Tribunal Rules 2014 (NSW) – r 37 Housing Act 2011 (NSW) – ss 55, 56, 57, 58, 59 Residential Tenancies Act 2010 (NSW) – ss 87(4)(b), 154E Cases Cited: Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 Australia & New Zealand Banking Group v Karam [2005] NSWCA 344 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bogoevski v Stricklands [2015] NSWCATAP 133 Collins v Urban [2014] NSWCATAP 17 Commercial Bank of Australia Lid v Amadio (1983) 151 CLR 447 Coulton v Holcombe (1986) 162 CLR 1 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Gaynor v Burns [2015] NSWCATAP 184 Harvey v Philips [1956] HCA 27 Liang v University of Technology, Sydney [2018] NSWCATAP 285, Pholi v Wearne [2014] NSWCATAP 78 Prenc v Stojcevski [2016] NSWCATAP 244 Roney v Housing and Land Corporation (NSW) [2015] NSWCATAP 269 Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP Turk v NSW Land and Housing Corporation [2019] NSWCATAP 207 Yuen v Thom [2016] NSWCATAP Zonnevylle v Department of Education [2020] NSWCATAP 162 Texts Cited: None cited Category: Principal judgment Parties: Shirley Naish aka Khosroabadi (Appellant) NSW Land and Housing Corporation (Respondent) Representation: J P Capsanis & Co (Appellant) NSW Crown Solicitor (Respondent) File Number(s): 2022/00017997 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 January 2023 Before: P Zammit, General Member File Number(s): SH 22/54587 REASONS FOR DECISION Introduction 1. The appellant (to whom we will refer as the tenant) appeals from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 10 January 2023 in proceedings SH 22/54587 (Decision). On that day, the Tribunal made the following orders: 1. By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 2. By consent, the order for possession is suspended until 24-Jan-2023 3. By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $11.86 per day from the day after the date of termination, namely 11-Jan-2023 until the date vacant possession is given to the landlord. This fee will be paid on a weekly basis ie $83.05 per week with the first payment on 16-Jan-2023. 4. 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. 5. By consent, the tenant, SHIRLEY KHOSROABADI, [XXX] Street VILLAWOOD SW 2163 Australia, is to pay the landlord, NSW LAND AND HOUSING CORPORATION - T501, C/- T501 2 Meredith Street BANKSTOWN SW 2200 Australia, the sum of $1,705.04 on or before 24-Jan-2023. Reasons: • Rent arrears for the period 23-Aug-2022 to 10-Jan-2022 $1,661.70 • Water usage from 4-Dec-2022 to 10-Jan-2023 $43.34 1. The tenant has appealed the Decision, and the orders of the Tribunal have been stayed pending the outcome of this appeal. 2. For the following reasons: 1. in so far as the appeal raises a question of law, the appeal is dismissed; 2. in so far as the appeal raises other errors, leave to appeal is refused, and the appeal is otherwise dismissed. The Tribunal proceedings 1. To understand the grounds of appeal, it is necessary to describe what took place at the hearing on 10 January 2023. 2. Application SH 22/54587 was listed for conciliation and hearing on 10 January 2023 in a "Group List". 3. While we have been provided with a transcript of the hearing, it is incomplete. What is clear, at the commencement of the hearing, the tenant sought an adjournment, in her words "to get some 'fair and natural justice'", and so that she could "respond appropriately". Having ascertained that the basis of the termination application was rental arrears, the Tribunal then directed the parties to conciliation, noting that there was a tenancy advocate available to assist the tenant. 4. After a period of attempted conciliation, the hearing commenced. The tenant and the landlord's representatives were sworn or affirmed. The Member read the evidence relied on by the landlord. The tenant indicated that she disagreed with the rental arrears as calculated by the landlord stating: Member, its not the case that I've wilfully failed to pay rent in your faith, in all good faith, maintain that the landlord has not accurately and correctly assessed my income in accordance to the Housing Act and made an investigation to Section 58 of the Housing Act. To see whether I am actually going to be placed in financial hardship and they actually came to the property on the 26th of July 2022, and the client service visit and at that time, were aware that there was financial hardship issues and the assessment actually stated that they could have been offered some financial assistance, which I had a look at the questionnaire that they provided, and they didn't offer that to me. Now I'm on a AUSTUDY payment, which is a Centrelink payment benefit. And that is not considered as income and taking 25% off that is actually putting me in financial hardship. 1. The Member responded as follows: Okay, so the one thing is the jurisdiction of the Tribunal today isn't to look behind the rent that has been calculated. That's not my jurisdiction. My jurisdiction is the Residential Tenancies Act, and whether there has been a breach of the agreement by failing to pay rent. There were an, from what I understand, there are avenues available to you. If you wish to dispute the amount of rent that you've been charged, there's appeal processes and, social housing steps that you can take in relation to any of that, but you need, you haven't paid any rent since the 30th of August. 1. A little later the transcript records the following exchange: Tenant: Well, I haven't had the opportunity to turn around and submit any documents. Member: Ma'am I just bear with me, so please. Member: I can't look behind social housing policy of the calculation of the rent. What I can see is that there's been no rent paid since the 30th of August. Tenant: I would like to also submit documents. I would like the opportunity Member: What documents you seeking to submit? Tenant: Well, I'd like to submit a document to clearly state that the calculation of the payment of Austudy and for the measures of the market value of the rent, and the household income of the rent of the rent payable. I'd like to submit those documents 1. The incomplete transcript concludes with the following exchange: Member: Do you need more time? Is that what you are asking? Tenant: That's what Member: But it today day its we're already overrun. 1. However, sometime after that, the parties handed the Member a conciliation agreement signed we understand by both which relevantly provided that the residential tenancy agreement was to end and possession of the premises to be given to the landlord on 10 January 2023, the order for possession being suspended to 24 January 2023, with rental arrears of $1,661.70 and water arrears of $43.34 to be paid on or before 24 January 2023. Internal appeals 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which internal appeals from decisions of the Tribunal may be brought. 2. 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). 3. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: * the decision of the Tribunal under appeal was not fair and equitable; or * the decision of the Tribunal under appeal was against the weight of evidence; or * significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) 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. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. The Notice of Appeal 1. The Notice of Appeal was filed was prepared by the tenant. The "Grounds of Appeal" are divided into two categories titled "The Tenants Case is Merited" and "The Consent Orders Were Affected By Mistake, Duress and Undue Influence". 2. The first category of grounds raises some six matters. The second category raises a further seven. Some of the "grounds" overlap. And the language is confused. These matters were clarified, somewhat, by the written submissions of the tenant's legal representative, and were amplified in oral submissions. That said, we were surprised that the legal representative did not take the opportunity to bring some order and coherence to the grounds of appeal. 3. We shall consider each ground in turn, but we note three matters. 4. The first is that it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Liang v University of Technology, Sydney [2018] NSWCATAP 285, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. 5. The second is that it is important to recognise that the orders made by the Tribunal were made by consent following the tendering of the signed conciliation agreement. Therefore, very few of the issues identified by the tenant in her grounds of appeal were considered by Tribunal. Therefore, they cannot be raised on appeal. As the plurality of the High Court of Australia noted in Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33: . . . in a recent decision of six Justices of this Court (University of Wollongong v. Metwally [No. 2]) the Court said: it is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (citations omitted) 1. The third matter is a corollary of the second. There are various grounds articulated in the Notice of Appeal. But most cannot arise properly on an appeal as there was no hearing on the merits of the application. To take but one example, the tenant now claims that the water arrears were incorrectly calculated, but as the Tribunal was handed a signed conciliation agreement stating that water arrears were agreed at "$43.34 from 4/12/22", the issue was not raised with the Tribunal. 2. As the Appeal Panel stated in Prenc v Stojcevski [2016] NSWCATAP 244 at [91]: Further, the issues raised … are not relevant or applicable in circumstances where the parties entered into a settlement agreement and the proceedings were determined by consent and not after a full hearing and determination of the matters in issue by the Tribunal. The settlement and the subsequent consent orders obviated the need for the Tribunal to hear and weigh all of the evidence, consider all of the orders sought and receive and consider the submissions of the parties. If the consent orders are not liable to be set aside because the settlement agreement was void or voidable, then it could not be found that the decision in this case was not fair and equitable on the bases relied upon by Mrs Prenc. For similar reasons, the decision was also not against the weight of the evidence. (Emphasis added). 1. We know from the transcript that the hearing actually commenced, proceeded for a few minutes, and then stopped after the tenant mentioned that she did not get an opportunity to agree or disagree to a settlement proposal and the Tribunal then asked her if she needed more time. We do not know what happened afterwards save that at some point the tenant returned to the hearing room and a conciliation agreement signed by her was handed to the Member, which contained an agreement which the Tribunal then reduced to consent orders. 2. In our view, there are only a few grounds other than the "duress ground" that need to be considered in the circumstances of this appeal. These are grounds that arise independently of the consent orders being based on the signed conciliation agreement (such as the failure of the Member to adjourn the proceedings, or that that there was a denial of procedural fairness). 3. We shall indicate which grounds fall into this category during the course of these reasons. The Tenant's case is merited 1. The first category of grounds raise, in summary, the following matters: 1. the Notice of Termination of 3 November 2022 was unlawful or otherwise invalid, because the notice was signed by a delegate of the landlord and there was no evidence that the person was properly appointed as a delegate; 2. water arrears were wrongly calculated; 3. the Tribunal failed to address the requirements of s 87(4)(b) of the Residential Tenancies Act 2010 (NSW) (RT Act); 4. the Tribunal failed to address the mandatory requirements of s 154E of the RT Act; 5. there were breaches of the Housing Act 2011 (NSW) (Housing Act) by the landlord; 6. there were breaches of s 71 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) by the landlord. 1. We shall deal with each in turn. But we emphasise that any ground of appeal needs to be considered from the perspective of what actually happened at the hearing; that is, the Member was handed a signed conciliation agreement, and apparently checked with the tenant that she understood and agreed with the orders. The Notice of Termination of 3 November 2022 1. The tenant submits that the notice of termination relied on by the landlord was unlawful or otherwise invalid, as the notice was signed by a delegate of the landlord and there was no evidence that the person was properly appointed as a delegate. 2. We accept that this matter was raised before the Member, in fact it was raised by the Member herself. The transcript records the Member saying: I saw in your journal [sic – adjournment] application, you're saying that there is [sic – are] issues with the validity of the termination notice … 1. This appears to have been a reference to the Adjournment Request sent by the tenant to the Tribunal Registry on or about 4 January 2023. The grounds for the request relevantly included: To date I have not been legally represented. However, I have received certain advice which indicates that this is a complex matter … The complexity of the matter includes issues such as the validity of the Notice of Termination. 1. That said, no further reference was made to this issue by the tenant during the hearing, at least not in the partial transcript with which we have been provided. 2. But in any event, we think that this matters not, as any issue as to the validity of the notice of termination was superceded by subsequent events. Those subsequent events were the tenant signing the conciliation agreement and returning to the Tribunal room, the agreement being handed to the Member and then Member then making the consent orders. 3. We see no substance in this ground of appeal. The water arrears were wrongly calculated 1. This matter was not raised before the Member. We see no substance in this ground of appeal. The Tribunal failed to address the requirements of s 87(4)(b) of the Residential Tenancies Act 2010 (NSW) The Tribunal failed to address the mandatory requirements of s 154E of the Residential Tenancies Act 2010 (NSW) 1. These two grounds can be considered together. 2. Section 87 relevantly provides: 87 Breach of 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. … 1. Section 154E provides: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following— (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act. 1. The landlord submits, and we agree, that it is it is problematic to claim a failure to take into account relevant considerations in the context of consent orders made pursuant to s 59 of the NCAT Act. The landlord notes that the tenant has not provided a transcript of any comments made at the time the consent agreement was approved, and submits that she does not take issue with them. 2. We referred above to the Appeal Panel decision in Prenc. Its observations at [91] set out above at [23] are sufficient to dispose of these grounds of appeal. 3. There is no substance in this ground of appeal. Breaches of the Housing Act 1. We accept that the tenant did raise this issue during the course of the hearing, as the tenant told the Member that the landlord had failed to calculate her rent in accordance with s 58 of the Housing Act. 2. Section 58 provides: 58 Investigation of application (1) The Corporation may make an investigation to determine the weekly income of-- (a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, and (b) any other resident of the house in which that person resides. (2) The Corporation may require a person who is an applicant for, or a recipient of, a rental rebate under this Part to produce such evidence as the Corporation thinks fit of the person's weekly income and of the weekly income of any other resident of the house in which that person resides. 1. Also relevant to the tenant's argument are ss 55, 56 and 57 of the Housing Act. These sections provide: 55 Application for rental rebate A tenant to whom this Part applies may make an application to the Corporation in a form approved by the Corporation for a weekly rebate of rental. 56 Grant of rental rebate (1) The Corporation may, after making an investigation under section 58, grant to an applicant a weekly rebate of rental. (2) The amount of rebate is to be determined by the Corporation in accordance with guidelines approved by the Minister. 57 Cancellation or variation of rental rebate (1) The Corporation may, after conducting an investigation under section 58, vary or cancel any rental rebate granted under this Part. (2) The Corporation is to determine the date (being a date occurring before, on or after the making of the determination) on which the variation or cancellation has effect or is taken to have effect. (3) The Corporation is to give notice in writing to a tenant of any decision to vary or cancel any rental rebate being received by the tenant and is to include in the notice the date on which the variation or cancellation takes effect or is taken to have effect. (4) If the Corporation reduces or cancels a tenant's rental rebate under this Part with effect from a preceding date, the Corporation may, by notice in writing to the tenant, require the tenant to pay to the Corporation-- (a) an amount equal to any rental rebate or part of a rental rebate received by the tenant on or after the date that the variation or cancellation took effect to which, because of the variation or cancellation, the tenant was not entitled, and (b) interest (at the rate prescribed under section 101 of the Civil Procedure Act 2005 in respect of unpaid judgments) on any outstanding amount under paragraph (a) from a date specified in the notice, being a date not earlier than the date on which the notice is issued to the tenant. (5) Any amount (together with interest) referred to in subsection (4) that is unpaid may be recovered by the Corporation as a debt in any court of competent jurisdiction. 1. The Member told the tenant that she did not have jurisdiction to "look behind the rent that has been calculated". A lengthy exchange followed between Member and tenant. When the whole of the passage is read, the Member is clearly stating that the Tribunal has no power to review the rent calculated by the landlord after the determination of the applicable rebate. As the Member correctly stated, "I can't look behind the social housing policy of the calculation of the rent". 2. We see no substance in this ground of appeal. Breach of s 71 of the NCAT Act 1. We accept that the tenant did raise this issue during the course of the hearing. It related, so far as we understand, to the misstatement of the landlord's Australian Company Number (ACN) on the initiating application. 2. We would not characterise that mistake a false or misleading statement, as the tenant submitted so forcefully and repeatedly. 3. Again, we see no substance in this ground of appeal. The second category of grounds raise the following matters: The conciliation agreement being affected by mistake, duress and undue influence 1. We see this as the tenant's principal ground of appeal, that being she signed the conciliation agreement by reason mistake, duress and undue influence, as a result of which the consent orders were vitiated by a lack of informed consent and ought to be set aside. 2. The evidence relied on by the tenant to support this ground of appeal is: 1. the (incomplete) transcript of the hearing where the tenant is recorded (in particular) as answering the Tribunal's question stated below as follows: Member … Is there anything else you wish to say about this matter? Tenant: Well, I you know, you know, in light of the short conciliation and the offer that was made, I'm under duress to try and see I, you know, the settlement. 1. the claim that, shortly after this exchange, the tenant can be heard crying, or sounding upset on the sound recording. We note that the sound recording was not before us, not having been filed by either party in accordance with directions, but that the landlord conceded that, at least at this point, the tenant can be heard crying, or sounding upset, on the sound recording. We note at this point that a sound recording was sent to us after the hearing. No leave was granted to the tenant to do so, but given the concession of the respondent we thought it not inappropriate to listen to it on this point. We accept that there is a brief moment where the tenant sounds upset, but the sound recording continues for at least another 10 minutes where the tenant does not sound upset but on the contrary engages with the Tribunal Member in a constructive and lucid way. We further note that at the conclusion of the sound recording the Member stands the matter down to her next list so as to allow the tenant an offer from the landlord; 2. the inferences that tenant's legal representative says can be drawn from a "fair reading" of the transcript. 1. The landlord submits that the following principles, which we accept, should guide us. 2. First, the grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based: Roney v Housing and Land Corporation (NSW) [2015] NSWCATAP 269 at [44]. 3. Secondly, in relation to consent orders, the question is whether the compromise is to be set aside depends on the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like: Harvey v Philips [1956] HCA 27. 4. Thirdly, duress in this sense should be treated as being limited to threatened or actual unlawful conduct: Turk v NSW Land and Housing Corporation [2019] NSWCATAP 207 at [57]. That threat or conduct can be directed to the person or their legitimate commercial or financial interests: Australia & New Zealand Banking Group v Karam [2005] NSWCA 344 at [66]. 5. Fourthly, in relation to duress, the cases show that there is a high threshold to be met with respect to the conduct of the party alleged to be exerting pressure: A v N [2012] NSWSC 354 at [509]. 6. Fifthly, undue influence or unconscionable conduct requires an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Commercial Bank of Australia Lid v Amadio (1983) 151 CLR 447. 7. We note the observations of the Appeal Panel in Aboriginal Housing Office v Harrison [2021] NSWCATAP 97: 33. What constitutes mistake, duress or undue influence has been considered by the Appeal Panel in a number of cases including Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. 34. In relation to mistake, the Appeal Panel in Yuen said at [39]: In relation to mistake, the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [39], [42]-[43]. Assuming for the purposes of argument, that the appellant was mistaken as to whether or not she could refuse the respondent's offer, the question is whether that mistake was of a type that vitiates her consent. … 35. When considering an appeal seeking the set aside of consent orders on the grounds of undue influence and duress, the Appeal Panel said in Sylvaney v Carolan [2016] NSWCATAP 36 (Sylvaney) at [38]-[40]: 38 Undue influence is where there is ascendancy by a stronger party over a weaker party such that the relevant transaction is not a free, voluntary, and independent act of the weaker party (A v N [2012] NSWSC 534 at [475] (Ward J), citing Sir Anthony Mason in the Anglo-American Law Review 1998). This is in contrast to unconscionable dealing, as noted by Deane J in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at [13] as follows: The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party. Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogues. [Case citations omitted] … 40 In summary, the threshold to establish duress is high and the doctrines of undue influence and unconscionable conduct require evidence that the party complaining about the agreement is either weaker or has a special disability (for instance, was vulnerable within the meaning of r 37) or was unduly pressured by a stronger party into an agreement where there was, for instance, little or no benefit to be gained by the weaker party. 1. In Harrison the Appeal Panel also stated: 45. Where alternative dispute resolution processes are adopted and consent orders are consequentially made or the Tribunal proceeds to determine a dispute at a contested hearing where alternative dispute resolution processes have been engaged, the Tribunal is nonetheless required to comply with its statutory and other obligations imposed at law. … 47. Failure to comply with these obligations is to be treated as an irregularity, the Tribunal being permitted to wholly or partly set aside a decision in proceedings when dealing with such irregularity: see s 53(3) and (4) of the NCAT Act and Atkinson v Crowley [2011] NSWCA 194 per Basten JA at [12]-[13]. Such failures may also constitute an error of law: see eg Italiano v Carbone & Ors [2005] NSWCA 177. … 49. Such injustice might arise by the Tribunal imposing undue pressure on the parties to reach a settlement. At an extreme position, bullying or intentionally preventing a party from presenting its case would also give rise to circumstances justifying the setting aside of any consent order made. 50. Relevant considerations would also include whether the party affected is a vulnerable person within the meaning of r 37 of the Rules. 1. We pause here to note that at no stage was any submission put to us that the tenant was a vulnerable person within the meaning of r 37 of the Civil and Administrative Tribunal Rules 2014 (NSW). 2. The landlord submits similar issues to those raised here by the tenant were considered by the Appeal Panel in Roney. As with this appeal, the appellant tenant in Roney sought to set aside consent orders for termination and possession. The orders were made after a conciliation and reducing the terms of an agreement to writing and providing this to the Tribunal. 3. The Appeal Panel in Roney found that there was no error in law in the had been of the consent orders and dismissed the appeal. The Appeal Panel considered that there was no denial of procedural fairness or other procedural defect by the Tribunal in making the impugned consent orders. Nor was the Appeal Panel satisfied that the impugned consent orders were vitiated by undue influence or unconscionable conduct. 4. We see real difficulties with this ground of appeal. The first difficulty is that duress, undue influence and mistake are three distinct legal concepts, and different evidence is required to prove each. The position was not helped by the tenant's legal representative agreeing that the tenant was rolling all these separate concepts into one broad category. 5. But the second and primary difficulty is that there is no evidence from the tenant about what occurred, how she was under duress (over and above being under the usual pressure that most litigants feel, especially those that face losing their tenancy), who placed her under that duress, who unduly influenced her, and what the mistake was that she made. Apart from the inferences we were asked to draw from the transcript, there was no evidence at all from the tenant, in the form of a statutory declaration, affidavit or statement. As with Mr Roney, the applicant "did not file or serve any statement setting out the facts on which [s]he relied to support [her] allegations of unfair pressure": Roney at [50]. 6. What is before us was a copy of the signed conciliation agreement providing for termination of the tenancy and possession of the premises to be given to the landlord. We were also told from the bar table by the landlord's representative that a later part of the sound recording records the Member as asking the tenant whether she agreed to her making orders in terms of the consent agreement. The tenant did not argue to the contrary. 7. In the circumstances, where there is no persuasive evidence filed of what occurred, the tenant had some support from a tenancy advocate, the evidence suggests that she phoned her lawyer during the conciliation, given the lack of direct evidence from the tenant on this issue we are not persuaded that any error by the Tribunal has been identified. 8. We see nothing in the materials before us, in particular the transcript, to suggest that the Tribunal failed to comply with its statutory and other obligations imposed at law. 9. In relation to this ground the appeal is dismissed. Section s 47 of the Anti-Discrimination Act 2013 (NSW) 1. Section 47 provides: 47 Provision of goods and services It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of marital or domestic status— (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. 1. This ground is misconceived, as the tenant brought no application of her own alleging that she had been discriminated against. Bias 1. Bias can be actual or apprehended: Bogoevski v Stricklands [2015] NSWCATAP 133 at [110]; cited in Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147 at [18]. 2. The tenant submitted that a fair reading of the transcript showed that the Member displayed apprehended bias. 3. The relevant principles in determining whether there is apprehended bias and how they are to be applied were explained by the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6], where the High Court stated: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial. 1. We see nothing in the transcript to possibly establish that a fair-minded lay observer might reasonably apprehend that the Member might not have brought an impartial mind to the resolution of the question she was required to decide, bearing in mind, once again, that she was invited to make orders by consent. Failure to adjourn the proceedings 1. We accept that at the commencement of the hearing the tenant sought an adjournment, "to get some 'fair and natural justice'". Having ascertained the termination was based on rental arears, the Member says: Rental Arrears, So, what I'm going to ask you to do is I'm going to ask you shortly to leave the hearing room. Rental arrears are very unlikely to be adjourned. So, but what I want to do before that I consider whether it should be adjourned or not, because I either going to if it's contested, if I can deal with it today, I'm going to deal with it today. If it is contested, because I saw in your journal [adjournment] application, you're saying that there is issues with the validity of the termination notice if there are those kinds of issues that evidence needs to be filed in relation to it's going to go to a hearing. But before I even consider whether we are adjourning hearing, I want you to have an opportunity to speak with the tenants advocate and then have a chat with Miss Ford to see if you can come to some form of resolution. 1. The Member then asks the tenant to "step outside [to] have a chat with the Tenancy Advocate". So, at this point of the hearing the Tribunal has not rejected the application for an adjournment. Conciliation, or attempted conciliation at least, then follows. 2. Sometime later, apparently when the tenant is still outside the hearing room, the following exchange occurs between the Tribunal and the Tenancy Advocate: Member: How are we going with the tenant in this matter? Tenancy Advocate: Member the tenant is seeking legal advice by mobile phone, so we have previously assisted her as she, the tenancy is in our service but we have given many advices to the tenant previously and there is legal representative that, there is a lawyer that she is consulting. So, we are not anyway involved in this tenancy. Member: Okay, thank you. Land and Housing representative: … Member there was an offer made before the tenant's advocate part of the conciliation. Member: Thank you, I will give her a little bit longer. I'm just going to pre warn, pre, give you a bit, if the tenant is going to, if this is a contested termination, there is be, based upon any, there may be have to be adjourned for a formal hearing but, I'm just hoping that's not, that we either have a settlement or that I can proceed today but just if it's contested because there is legal arguments that the tenant wishes to run about the definitions of income and a like that that may be more than we have time to deal with today. 1. A few minutes later the tenant returns to the hearing room. She indicates that the landlord has made an offer, at which point the Member interrupts her and says that she would look at the documents. We understand that at this point the only documents before the Member were the landlord's documents, a copy of which had been provided to the tenant the previous week. 2. The Member then administers an affirmation to the two representatives of the landlord, and an oath to the tenant. The Member then says to the landlord's representatives "I've had a look through your documents, is there anything further that you wish to say to me in relation to this matter?". 3. We pause at this stage to observe that the documents before the Member included "Hearing Notes". This is a summary document which summarises the basic features of the application, such as the basic terms of the residential tenancy agreement, particulars of the notice of termination and the rental and water arrears claimed. In this case the rental arrears were stated as being $1,661.70, and that the tenant was 140 days in arrears in her rent. Accompanying the Hearing Notes are the underlying documents on which the Notes are based, for instance the residential tenancy agreement, the notice of termination and the rental ledger. 4. In response to the question above, the tenant responds, in summary that this was not a case of her wilfully failing to pay the rent, and refers to s 58 of the Housing Act. 5. The tenant then states that she had not had "the opportunity to turn around and submit any documents". The following discussion ensues: Member: what documents you seeking to submit? Tenant: Well, I'd like to submit a document to clearly state that the calculation of the payment of Austudy and for the measures of the market value of the rent, and the household income of the rent of the rent payable. I'd like to submit those documents Member: that's not a tribunal decision. That's what you have you if you want to appeal the amount of rent that you're being charged. You have to go through the appeal process of New South Wales Land and Housing. It's not the tribunal cannot make a decision to say that the social housing, whether ab, I'm sorry, Austudy and all of that when that affects your rent, that is a social housing policy. And your appeal process was through them, not through the tribunal. Tenant: but they're trying to terminate me because of an arrears and I'm saying that there is there is no arrears and I want to try and put that, Member: so you submitting that me doing that from August that you weren't required to pay no rent. Tenant: I'm suggesting that the calculation of that payable rent is a real issue. Member: I don't have the jurisdiction to go behind it. Is there anything further you wish to say about this matter? 1. It is clear that the tenant is here referring to documents that needed to be lodged with the landlord in relation to its calculation of any rental rebate and hence the tenant's rent. What is not so clear is whether the tenant is reagitating her application for an adjournment because she wants to file documents with the Tribunal. 2. It is at this point the tenant makes the comment referred to above that she was "under duress". 3. We are prepared to give the tenant the benefit of the doubt and find that she was in fact continuing to press for an adjournment of the Tribunal hearing which was refused. 4. However, we think that this matters not, as any application, if made, was superseded by subsequent events. Those subsequent events were her signing the conciliation agreement and returning to the Tribunal room, handing the agreement to the Member and then Member then making the consent orders. 5. A decision refusing to grant an adjournment is an interlocutory decision (NCAT Act, s 4(1)) and therefore a grant of leave is required (NCAT Act, s 80(2)). For the above reasons, we would not grant leave to appeal. The Member's approach to the calculation of rent, including stating that "I've got no jurisdiction" to calculate rent 1. We have dealt with this ground earlier in these reasons and repeat [45] to [46] above. There was a false statement in the landlord's application 1. We have dealt with this ground earlier in these reasons and repeat [47] to [49] above. A failure to provide adequate reasons for the Decision 1. The tenant states in her Notice of Appeal that the Member's "reasonings are unclear" and that: the Notice of Order was cursory as to reasons. It failed to provide or make reference to the claim of non-jurisdiction. Being the reason the member refused to consider the appropriate my adjournment application and the opportunity for me to respond to the documents of the corporation Circumstances both positive and negative for both parties need to be taken into account: Lagingha v Williams (1998). 1. The landlord submits that, to its knowledge, there has been no effort by the tenant or her legal representatives to seek written reasons pursuant to s 63 of the NCAT Act for the Tribunal's decision to make the consent orders. 2. The landlord's assumption that the tenant had taken no steps to request written reasons is not correct. Such a request was made on 3 February 2023. The Registry responded to her on 6 February 2023 stating: The order was made by consent. Therefore, no reasons are given by the Tribunal Member. I advised you, you may apply for a transcript of proceedings, which you stated you already had. 1. During the course of the hearing, we raised this with the tenant's legal representative, doubting the correctness of the statement "[t]herefore no reasons are given by the Tribunal Member". As the Appeal Panel has noted in Gaynor v Burns [2015] NSWCATAP 184 at [14] and Zonnevylle v Department of Education [2020] NSWCATAP 162 at [28]: in some limited circumstances a Tribunal may wish to give reasons why it is prepared to make, or to decline to make, orders by consent. But those matters are the exception to the general practice in respect of consent orders. 1. It was no fault of the tenant, given the response of the Registry, that she did not press for a statement of reasons pursuant to s 63 of the NCAT Act. 2. However, the tenant's legal representative did not wish to take this issue any further. 3. Therefore, the Tribunal was left in the position that the tenant did not provide any reasons for the Decision to the Appeal Panel, and if there were oral reasons these were not produced to the Appeal Panel either by way of sound recording or transcript. 4. In circumstances where consent orders were sought by the parties, and no transcript of any reasons was provided, we see no substance in the submission that the reasons for decision were inadequate. Conclusion 1. To paraphrase Prenc at [95], the consent orders made by the Tribunal were within its power and based upon a written and signed settlement agreement. The tenant has not established any ground upon which the Appeal Panel should allow the appeal and set aside the orders of the Tribunal. No basis for granting leave to appeal has been made out. Orders 1. The Appeal Panel orders: 1. In so far as the appeal raises questions of law, the appeal is dismissed; 2. In so far as the appeal raises other errors, leave to appeal is refused, and the appeal is otherwise dismissed. 3. If the respondent seeks an order as to costs, it should file and serve any submissions within 14 days of the date of publication of these reasons. 4. The appellant may respond within a further 14 days. ********** 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: 05 April 2023