Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wolford v. NSW Land and Housing Corporation [2014] NSWCATAP 56 Hearing dates: 10 September 2014 Decision date: 30 September 2014 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy PresidentD Patten, Principal Member Decision: 1.Order 3 made on the 26th February 2014 in proceedings SH 13/63220 is set aside and in its place order 3 now is: The order for possession is suspended until 21st October 2014. 2.Otherwise the decision and orders made on the 26th February 2014 are affirmed. 3.Appeal dismissed. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal - denial of opportunity to be heard. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014]NSWTAP 17 Category: Principal judgment Parties: Loretta Wolford (Appellant) File Number(s): AP 14/46308 (AP 14/0031) Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-02-24 00:00:00 Before: G Meadows, Senior Member File Number(s): SH13/63220 reasons for decision First instance decision 1This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 26 February 2014 as follows: The Residential Tenancy Agreement is terminated in accordance with: ·s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. ·failure to pay rent in accordance with agreement. ·s 92 (a) of the Residential Tenancies Act 2010 as the tenant/occupant has caused or permitted serious or persistent threat or abuse to the landlord/agent/employee/contractor. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 12 March 2014 4. The tenant shall pay the landlord a daily occupation fee at the rate of $33.40 per day from the day after the date of termination, namely 27 February 2014 until the date vacant possession is given to the landlord. 5. 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. 6. The landlord is to advise the tenant in writing by the delivery of a letter to the premises by 6:00pm on 26 February 2014 of the orders made today. REASONS There is no appearance by the respondent today. No correspondence has been received from the respondent to explain her non-appearance or to request an adjournment. The respondent has also failed to comply with previous directions of the Tribunal to serve any evidence to support her defence of this application. Information on the Tribunal file provided by the applicant suggests the tenant has been advised of the hearing, in addition to the Notice of Hearing sent by the Registry to the tenant's address, and that the tenant has also failed to appear in previous matters. The applicant is represented by Mr Fensom today who appears together with two witnesses, employed by the applicant, who provided written statements previously served in relation to the allegation of breach of s92 of the Residential Tenancies Act 2010. In these circumstances I am satisfied the tenant has received the Notice of Hearing (which has not been returned to sender) and in the interests of fairness and justice the hearing should proceed in the absence of the respondent. This tenancy commenced in mid May 2010. In recent times, the tenant has been unable or unwilling to comply with the terms of her residential tenancy agreement, particularly in relation to payment of rent. The evidence provided by the applicant demonstrates several crucial items. First, the tenant is still significantly in arrears of rent, in excess of $2,000.00, bearing in mind the weekly subsidised rent is $233.75. Second, the tenant has not complied with a previous Tribunal Special Performance Order in relation to reducing the rental arrears. Third, on two occasions the tenant has breached s92 of the Act in abusing, intimidating and harassing staff of the respondent. The evidence includes a letter from the tenant suggesting a different version of these events but I am satisfied the applicant has proved their case on the balance of probabilities in that regard. In any event, the tenant has not appeared today to argue her case. I regard these incidents as serious, involving actual threats and aggressive behaviour towards staff. I also find that the applicant landlord has made proper attempts over a lengthy period to work with the tenant in order to "save" her tenancy, but the tenant has failed to take advantage of these attempts, instead tending to regard them as threats. There is also a letter on the Tribunal file from the tenant, received prior to the previous hearing (which the tenant did not attend) requesting the hearing on that occasion be listed between 10:30 and 11:30AM. This hearing was listed between 9:15AM and 12:15PM but the tenant has not advised the Tribunal that she will or will not attend, as noted above. If the tenant could not appear until 10:30AM that could easily have been arranged by request. I also note that this letter demonstrates the tenant was well aware of how she could contact the Tribunal. In these circumstances, I am satisfied it is appropriate that the tenancy be terminated as ordered above. The Notice of Appeal and the appellant's submissions 2A notice of appeal was filed by the appellant on 12 March 2014. The grounds for appeal were stated as follows: The orders were made in the absence of the respondent who was unable to respond to allegations made against her and present her case. The respondent was unable to attend the hearing at 9.15am on 26 February 2014 due to overwhelming family commitments. Ms Wolford is the mother of two young children as well as the sole carer for her husband, Brian Welch, who has been diagnosed with L4/L5 disc prolapse. Mr Welch is substantially incapacitated and is unable to cook, clean, lift or go about his normal day to day chores. Mr Welch also suffers from depression and high blood pressure and requires round the clock care; The respondent would suffer a substantial injustice if a warrant for possession was executed. 3 In addition, the appellant sought leave to appeal upon the following basis as set out in the notice of appeal: Decision not fair and equitable The decision was not fair and equitable because the respondent was not at the hearing and was unable to present her case, not dispute the allegations that have been made against her. Had the respondent been present at the hearing she could also have presented circumstances of the case to show that it would have be inappropriate to terminate the tenancy. The respondent has not had the benefit of law or hearing on merits. Evidence is now available that was not reasonably available at the time of hearing The respondent is able to provide evidence that she did not seriously or persistently threaten or abuse the landlord, the landlord's agent or any employee or contractor of the landlord or the landlord' agent, or cause or permit any such threats, abuse or conduct to warrant termination of her tenancy. The respondent acknowledges that she was upset when she attended the Maroubra Office of Housing NSW after receiving a termination notice but she does not believe that her behaviour could have been construed as intimidating or threatening. Moreover, the respondent states that she was further upset when one of the client service officers advised her that she would be contacting Family Services when the matter next went before the Tribunal, "due to there being two you (sic) children in the property'. This caused the respondent much distress and resulted in reacting in a rude and abrupt manner. If the respondent was in attendance at the hearing she may also have had the opportunity to cross-examine any witness that may have been present. 4The appeal panel has interpreted the ground of appeal to be based both on a question of law which is an appeal as of right: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s80(2)(b) and an appeal on any other grounds for which leave is required: NCAT Act, s80(2)(b). Appeals from the Consumer and Commercial Division on any other grounds can only be granted in the limited circumstances set out in Schedule 4,clause12 in the NCAT Act. Clause 12 provides: 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. 5The appellant filed and served a number of submissions in accordance with the directions of the Tribunal. The final pre hearing submissions were lodged with the Tribunal on 14th August 2014. Those submissions made it clear that the appellant's submissions were concerned with the finding of the Tribunal that the tenancy was terminated in accordance with s92(1) of the RTA. The submissions did not address the Tribunals finding that the tenancy was also terminated in accordance with s87 of the RTA by reason of failure to pay rent. The appellant stated in her submissions that her father has indicated that he will help pay all of the rent owing if this means that the tenancy can be saved and the appellant has indicated that if the appeal is upheld with respect to the termination pursuant to s92(1) the appellant, with her father's support, would seek to avail herself of the provisions of s89(3) of the RTA. That section relevantly provides that a termination of the residential tenancy agreement solely on the ground of non-payment of rent ceases to have effect if the tenant pays all the rent owing and the tenant has not vacated the premises. Accordingly, this appeal is concerned only with the question of whether the tenancy was properly terminated in accordance with s92(1). This was confirmed by the appellant's representative at the appeal hearing. If the appellant is successful in obtaining a decision of the appeal panel that the termination was not properly made in accordance with s92(1) that would leave the tenancy as arguably having been terminated on the ground to which s89(3) applies and in turn give the appellant the possibility of "saving' the tenancy by paying all outstanding rent. The issue of whether s89(3) is properly available to the appellant is contested by the respondent. It is not necessary for the appeal panel to decide that issue. 6 As stated the appellant filed and served a number of submissions in accordance with the directions of the Tribunal. The first set of submissions is dated 31 March 2014. Those submissions state that the decision at first instance was not fair and equitable because the appellant was not at the hearing and was unable to present her case, nor dispute the allegations that were made against her. The submissions further state that had the appellant been present at the hearing she could also have presented circumstances to show that it would have been "inappropriate to terminate the tenancy". The appellant asserted that she had not seriously or persistently threatened or abused the respondent landlord or the respondent's agent or any employee or contractor of the respondent. This submission acknowledges that the respondent reacted to the circumstances faced by her when conversing with officers of the respondent by speaking in a "rude and abrupt manner". The submission went on to say that if the respondent had been in attendance at the hearing she may also have had the opportunity to cross examine any witnesses that may have been present. Finally, the submission states that the appellant's father would agree to pay all of the outstanding arears of rent "if her tenancy were to continue". 7The appellant's submission was accompanied by a Work Cover NSW Medical Certificate in respect to her husband's condition as well as a doctor's report concerning the husband's medical condition. 8Further submissions were filed by the appellant date 2 April 2014. These submissions also state that the appellant was unable to attend the hearing on 26 February 2014 "due to overwhelming family commitments". 9The appellant then filed further documents with the Tribunal on 12 May 2014. These included a statement by the appellant. The statement refers to the two incidents which formed the basis of the decision of the Tribunal at first instance. The first incident occurred on 17 September 2013 and with respect to that occasion the appellant's statement acknowledges that she became very angry. She acknowledges she made a number of statements to an officer of the respondent. With respect to the incident on 2 December 2013 the appellant acknowledged that she "lost control momentarily and made a hand gesture and said that I would come over and rip Mrs Walter's throat out." She acknowledges that she became "somewhat aggressive". 10The appellant lodged her final submission on 14 August 2014. These submissions deal with each of the two incidents and submit that the appellant's conduct was not of a kind attracting s92(1) of the RTA. In particular, the appellant submits that her conduct was not persistent, that she did not intimidate the respondent's officers, nor harass them or threaten them. The appellant pointed out that s92 of the RTA gives the Tribunal a discretion as to whether to terminate. 11The appellant also submitted that the Tribunal at first instance should have had regard to s152 of the RTA. That section states that in determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal: is to have regard to each of the following matters as may be relevant: a)any serious adverse effects the tenancy has had on neighbouring residents or other persons, b)whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, c)the landlord's responsibility to its other tenants, d)whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, e)the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. 12The appellant submitted that there was no evidence that she had caused a nuisance to neighbours (being a matter required to be considered under s152(1)(a)), that the breach was not serious (being a matter required to be considered under s152(1)(b)), or that a failure to terminate the agreement would subject neighbouring residents or any persons or property to unreasonable risk (also a matter under s152 (1)(b). The appellant also stated she had expressed remorse for her actions and had on two occasions attempted to apologise to officers of the respondent. 13The appellant made submissions concerning her and her family's personal circumstances and the difficulties she and her family would face in finding new accommodation in the event the tenancy was terminated. 14As the respondent had filed its written submissions later than the time required by the Tribunal's directions, the appellant was given leave to supplement her oral submissions by filing and serving a further submission on or before 17th September 2014. Those final submissions have been received and considered by the appeal panel. 15The appellant's oral submissions at the appeal hearing essentially repeated the written submissions. The representative of the appellant argued that the appellant's conduct was not serious enough or persistent enough to constitute conduct described in s92 of the RTA. He submitted the decision below was not fair and equitable because had the appellant been able to be present at the hearing she would have been able to respond to the allegations made against her with the likelihood of producing a different decision. 16The appellant's representative argued that the two bases for the decision below (namely rent arrears and the s92 conduct) "fed off each other" producing a harsher result than would have occurred had the two been considered separately. He argued that if the s92 conduct had been considered alone the likely result (other than dismissal) would have been a specific performance order rather than termination. The Reply and the Respondents Submissions 17The respondent submitted that there is no issue that the appellant did not receive the notice of hearing and that her explanation for not attending the hearing (namely overwhelming family commitments) is an insufficient reason to warrant a finding by the appeal panel that it would be in the interests of justice to permit argument on the merits of an otherwise legally correct decision of the Tribunal. 18The respondent submitted that there had been no denial of procedural fairness. The appellant knew of the hearing and chose not to attend. 19The respondent submitted that there was no legal error in the Tribunal's application of s92. In particular the question of whether the incidents were "serious" was a matter for the judgment of the Tribunal Member at first instance. 20The respondent submitted that it is apparent from the decision at first instance that the Tribunal Member did take into account the discretionary factors under s152 of the RTA. The Decision of the Appeal Panel The absence of the appellant 21The Tribunal is bound to accord procedural fairness to the parties, which includes giving each a reasonable opportunity to be heard (see s36 and in particular s36(5)(c) of the NCAT Act). Here the appellant had notice of the hearing and elected not to attend due to family commitments. There was no explanation provided by the appellant as to why she did not comply with the Tribunals directions made on 16th December for the appellant's evidence to be filed and served by 4th January 2014, nor an explanation as to why the appellant did not seek an adjournment of the hearing on 26th February 2014 following receipt of the Tribunal's Notice of Hearing dated 20th December 2013. Nor is there any explanation as to why the appellant could not have made arrangements for others to attend to her family commitments, or alternatively, for someone to seek to represent her at the hearing. 22In the view of the appeal panel the appellant had a reasonable opportunity to be heard and there was no breach of the obligation to accord her procedural fairness. Accordingly this ground of the appeal is dismissed. The other grounds 23The requirements of cl12(1) of schedule 4 of the NCAT Act have been set out earlier in these reasons. These requirements have been the subject of a decision by an appeal panel of the Tribunal in the case of Collins v Urban [2014] NSWATAP17. In paragraph 71 of that decision the appeal panel said that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided, which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. This means in the context of clause 12 that one of the circumstances referred to in cl12(1)(a),(b) or (c) has been established. Not fair and equitable 24Based on the evidence found by the Tribunal at first instance the Tribunal had a proper basis for the findings and orders which were made. It is in the opinion of the appeal panel that the decision at first instance was fair and equitable. 25Whether the Tribunal at first instance was required to have regard to the matters described in s152 of the RTA is not an issue which the appeal panel finds it necessary to decide because in those proceedings it is clear to the appeal panel that the Tribunal at the first instance did in fact consider such matters. The decision refers to the history of the tenancy, prior noncompliance by the appellant of Tribunal orders, and a finding that the incidents relied upon by the respondent were serious. These are matters identified in s152. 26The appellant argues that she was not able provide evidence or dispute the allegations made against her and therefore the decision below was not fair and equitable. This ground is in substance the same ground earlier dealt with concerning denial of an opportunity to be heard. The appeal panel has decided that the appellant was not denied procedural fairness and was given a reasonable opportunity to be heard. Accordingly this ground is dismissed. Evidence now available that was not reasonably available at the time of the hearing 27The appellant also submits that evidence is now available that was not reasonably available at the time of the hearing at first instance. However, the evidence to which the appellant refers is her own evidence concerning her conduct and the only basis upon which that evidence could be categorised as evidence not reasonably available at the first instance hearing is that she was not present at the hearing. It is the opinion of the appeal panel that the appellant's absence at the first instance hearing is not sufficiently explained to enable the appeal panel to conclude that the appellant, and therefore her evidence, was not reasonably available at that hearing. The appeal panel's conclusion, as earlier expressed, is that the appellant was afforded a reasonable opportunity to be heard, which included a reasonable opportunity to provide evidence and to cross examine the witnesses for the applicant below. 28 The appellant submits that the "undertaking by the appellants to pay all outstanding arrears if the tenancy continues" constitutes significant new evidence. It is not explained why this undertaking was not reasonably available at or prior to the first instance hearing. Accordingly this submission is rejected. 29The decision of the appeal panel is that the appeal should be dismissed. It is necessary to vary order 3 made on 26th February. Having regard to the appellant's family circumstances she should be given a reasonable time to provide possession. The appeal panel is of the view that three weeks is reasonable. Orders will be made accordingly. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ******** 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: 30 September 2014