Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bogoevski v Stricklands [2015] NSWCATAP 133 Hearing dates: 27 April 2015 Date of orders: 06 July 2015 Decision date: 06 July 2015 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member G Walker, Senior Member Decision: See orders set out in paragraph 178 of these reasons Catchwords: Termination of residential tenancy – multiple applications Effect of stay orders on termination Disqualification of presiding member in subsequent hearing. Failure to allow issue of summons Legislation Cited: Civil and Administrative Tribunal Regulations, 2013 Civil and Administrative Tribunal Act, 2013 Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 Urban v Collins [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Applicant: Jim Bogoevski Respondent: Gloridharma Stricklands Representation: Applicant: In person Respondent: In person File Number(s): AP 15/06134 and AP 15/10194 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 23 January 2015 Before: General Member K Holwell File Number(s): RT 15/03180, RT 14/54284, RT 14/57450, RT 15/04667 and RT 15/03537 REASONS FOR DECISION 1. The appellant (Bogoevski) is the tenant of the respondent landlord (Stricklands) in a property to Tomewin in Northern New South Wales. They will be referred to as the tenant and the landlord in these reasons. 2. The tenant occupies the premises pursuant to a residential tenancy agreement which commenced on 7 April 2014 for a fixed term to expire on 23 September 2014. A copy of the residential tenancy agreement (agreement) is found at page 290 of Exhibit A1 which forms part of the evidence in the appeal. 3. The tenant has commenced two appeals concerning five applications which the Tribunal determined on 23 January 2015 and 13 February 2015. The first appeal is proceedings number AP 15/06134. This appeal relates to orders made by the Tribunal on 23 January 2015 in application RT 15/03180. On 23 January 2015 the Tribunal terminated the residential tenancy agreement, did not make a finding under s89(5) of the Residential Tenancies Act, 2010 (RT Act) that the tenant had frequently failed to pay rent and made a money order in respect of rent arrears in a sum of $9,300.00. In the rent proceedings the Tribunal also made an order for possession which was suspended until 6 February 2015 and ordered the tenant to pay an occupation fee of $100.00 per day, the rent otherwise payable under the agreement prior to termination being $700.00 per week. 4. The second appeal, number AP 15/10194, relates to four other applications which were heard and determined by the Tribunal on 13 February 2015. The details of the applications and the orders made by the Tribunal were as follows: 1. Application RT 14/54284 was an application for termination of the agreement made by the landlord under s93 of the RTA Act. The landlord claimed hardship. That application also sought termination under s90 and s92 of the RT Act (being on the grounds that the tenant has caused or committed serious damage to residential premises or injury to the landlord – s90, and on the basis that the tenant or person who occupies the residential premises has seriously or persistently threatened or abused the landlord or has intentionally engaged or intentionally caused or permitted another person to engage in conduct which is reasonably likely to intimidate or harass – s92). In this application the Tribunal made a termination order on the grounds of hardship but otherwise dismissed the applications under s90 and s92 of the RTA Act. In relation to this order, the residential tenancy agreement was terminated immediately however possession was suspended until 27 February 2015. Again a daily occupation fee of $100.00 per day was ordered to be paid. 1. The second application dealt with on 13 February 2015 was proceedings RT 15/04667. In this application the landlord sought and was granted a further order for termination based on the service of a 90 day notice pursuant to s85 of the RT Act to terminate a periodic tenancy, the fixed term of the agreement having expired on 23 September 2014. The notice of termination in respect of the periodic tenancy was dated 20 October 2014. Again, the tenancy was terminated immediately and an order for possession was made, that order for possession being suspended until 27 February 2015. The Tribunal also ordered an occupation fee of $100.00 per day to be payable. 1. The third application in which orders were made by the Tribunal on 13 February 2015 was application RT 15/03537. In this application the tenant sought an order to limit access by the landlord to the residential premises. This application was dismissed. 2. The fourth application dealt with by the Tribunal and the subject of orders made on 13 February 2015 was an application by the tenant seeking an order that the landlord carry out repairs to the residential premises. This was application RT 14/57450. This application was also dismissed. 1. These various orders were the subject of oral reasons provided by the Tribunal at each hearing. 2. It should be noted that on 13 February 2015 the Appeal Panel, constituted by Principal Member Redfern made orders staying the orders of the Tribunal made on 23 January 2015 in application RT 15/03180. In particular, the Appeal Panel stayed the orders for termination and possession and stayed the order for payment of rent of $9,300.00. The stay was granted to the tenant on condition that the tenant pays "the undisputed arrears of rent outstanding of $5,800.00 on or before 25 February 2015." 3. On 26 February 2015 a further stay order was made by the Appeal Panel in respect of applications RT 15/03180 (termination for non-payment of rent) and RT 14/54282 (termination on grounds of hardship). Those stays were conditional upon the tenant paying an amount of $3,400.00 by 27 February 2015 and paying an occupation fee of $100.00 per fortnight in advance. However in relation to the termination order made in application RT 15/04667 (termination of a periodic tenancy under s85 of the RT Act) this order has not been stayed by the Tribunal or Appeal Panel. 4. The stays granted on 26 February 2015 were to continue until further order of the Appeal Panel. 5. The effect of these stays on the original applications and the present appeal are dealt with in these reasons below. Issues raised in first appeal – AP 15/06134 1. The first appeal challenged the termination order made by the Tribunal on 23 January 2015 on the basis the tenant had failed to pay rent. 2. In paragraph 11A of the notice of appeal, the tenant raised two issues: 1. that a valid notice of termination for non-payment of rent had not been served; and 2. the Tribunal's order for the payment of unpaid rent amounting to $9300.00 was incorrect and should have been $5800.00. 1. In paragraph 11B of the notice of appeal, the tenant set out his grounds of appeal as follows: 1. "The member accepted the document served as presented by the landlord, and took his oath that he did, he did not wait for me to show the document that I allege was served on me NOR did he ask for my oath 2. The member accepted that the statement that the landlord made that on his spread sheet where a payment for Option fee of $3,500 on 1st August 2013 that was paid by me, was accidently credited to me as rent because on the reference that I made on the transfer it was shown as "option fee" for this payment. Yet payment that was made by me to the landlord on 23rd July 2013 showed "rent and Bond". On the spread sheet the landlord emailed to me on 20th January 2014, in an attempt to reconcile the rent owed he credited both the: * "option fee" (paid on the 1st August 2013) because he acknowledged that the Option to Purchase was unsigned and therefore was null and void, and rather than refunding the fee, he credited it as rent) and the * The BOND portion in the payment referenced "Rent and Bond" on the 23rd July 2013 because he never passed on the BOND to the bond authority This is consistent with the email he sent to me on 17th February 2014, with a reconciliation of rent due." 1. In addition, the tenant asserted that the decision of the Tribunal was not fair and equitable, was against the weight of evidence and/or the tenant sought to rely on evidence that was not reasonably available at the time of the hearing. 2. The issues raised can be summarised as follows: 1. the member administered an oath for the landlord to give his evidence and accepted documents presented by the landlord but did not administer an oath to the tenant and did not allow the tenant to show documents which the tenant alleged had been served upon him; 2. the tenant was not given enough time to prepare for the hearing, having only received an email notifying him of the hearing on 23 January, despite the fact the email had been received by the tenant on 21 January 2015. The tenant said it was not seen because he did not open the email until 23 January 2015. The tenant asserted that he had "little time to prepare and fumbled through the hearing and did not given promptly the document that (he) claimed was served upon (him)… so the member did not give me the grace to provide same". The tenant also asserted that he "did not get a chance to present two emails that the landlord sent to me that credit to me an amount of $3,500.00." The tenant again asserted that an option fee of $3,500.00 paid on 1 August 2013 "was accidentally credited to (him) as rent" and that the landlord's spread sheet providing a reconciliation of the rent credited this option fee which, instead, should have been refunded to him. 3. The tenant also asserted that the bond portion of the payment was never passed on to the relevant authority for deposit. Issues raised in second appeal – AP 15/10194 1. The second appeal related to two termination applications by the landlord and two applications by the tenant, details of which are set out above. 2. The primary ground of challenge in this appeal is that the Member failed to disqualify himself on the application of the tenant, the application for disqualification based on the Member's conduct of proceedings RT 15/03180 (which is the subject of the first appeal) when it was heard and determined on 23 January 2015. The grounds supporting the appeal on this issue are as follows: 1. the Member issued a money order against Ms Edwina Bogoevski who was not a party to the residential tenancy agreement; 2. because the tenant had appealed proceedings RT 15/03180 the "appellant was worried that the Member may show prejudice in adjudicating other matters to be heard on (13 February 2015)". 3. that the landlord had never got leave to be represented by Shane Stevenson in prior hearings in relation to the claims the subject of the second appeal and other matters; 4. the member took an oath from the landlord and from Mr Stevenson but did not administer an oath to the tenant. 5. that the Member did not look at a document that the tenant had provided at the hearing of application RT 15/03180. 6. that the Member could not verify that service of a notice had been validly affected by reason of his failure to view to tenant's document. 7. that the Member wrongly refused an adjournment in application RT 15/03180, which application was made at the hearing on 23 January 2015, the tenant asserting he was ill prepared and only had just received late notice of the hearing in circumstances set out in these reasons above. 8. that the Member showed inconsistency in his dealing with the various matters on 23 January 2015 and earlier occasions for the reasons set out in paragraph 9(a) – (c) of the grounds of appeal. 9. that the Member was not patient to allow the appellant to present documents to him 10. the Member accepted evidence from the landlord as being true to the effect that the landlord had written an email by mistake without giving the tenant an opportunity to prove otherwise 11. that at various times the rent was up to date and the Member could have made an alternative order rather than an order for termination 12. a summons application for the production of documents had been made and there was insufficient time to pursue that issue, the summons not having been issued by the Tribunal. 1. In seeking leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence, the tenant raised similar grounds to those above, namely that the Member should have disqualified himself. Hearing of the appeal and oral submissions 1. The hearing of the appeals occurred over two days, 7 April 2015 and 27 April 2015. The landlord and the tenant appeared, the landlord assisted by Mr Stevenson at different times. The parties made oral submissions. 2. It was clear at the hearing on 7 April 2015 that the parties had failed to comply with earlier directions that had been made by the Appeal Panel in connection with the preparation of the matter for hearing. In particular, the tenant had provided a large bundle of documents that became Exhibit A1 in the appeal but had not provided written submissions concerning these documents nor had the parties provided the audio recording or a transcript of events at the hearings which occurred on 23 January 2015 and 13 February 2015 which were the subject of the appeals. 3. Accordingly, on 7 April 2015 directions were made for the provision of these documents and the audio recording of the hearings and the appeal was adjourned part heard. 4. On 7 April 2015 the Appeal Panel also made orders by consent to remove Ms Edwina Bogoevski as a party to application RT 15/03180 and to amend the orders made by the Tribunal on 23 January 2015 to delete Ms Bogoevski's name from order 7. This is because the landlord and tenant agreed that Ms Bogoevski was not a party to the residential tenancy agreement and was improperly named in application RT 15/03180. The Tribunal has power to vary the orders by consent under Regulation 9(1)(a) of the Civil and Administrative Tribunal Regulations, 2013. 5. Ms Bogoevski was not a party to the second appeal because she had previously been removed as a party to the proceedings before the Tribunal at first instance pursuant to order 6 made by the Tribunal on 13 February 2015 in each of applications RT 14/54284 and RT 15/04667. 6. Before the proceedings were adjourned on 7 April 2015 the tenant made oral submissions similar to the grounds set out in his notices of appeal including: 1. that no oath was administered to him, unlike the landlord and his witness Mr Stevenson; 2. the tenant was denied an opportunity to procedure documents and give oral evidence; 3. the tenant was denied his application for adjournment in circumstances were he did not read the email advising him of the hearing until shortly before the date fixed; 4. the tenant was not given an opportunity to cross examine or address the claims of the landlord; 5. he had applied for a summons which had not in fact issued, the summons seeking documents in relation to the application by the landlord to terminate the residential tenancy on the grounds of hardship. 1. In reply, the landlord said that the documents sought on the summons were irrelevant, that Mr Bogoevski was given an opportunity to present his case, that the Member did not show any favouritism and that the tenancy had properly been terminated on 23 January 2015 because rent was owing as correctly found by the Tribunal. 2. When the hearing of the appeal resumed on 27 April 2015 the tenant again made submissions similar to those identified in the notices of appeal and as made on 7 April 2015. 3. The tenant also provided a transcript of various parts of the audio recordings of the hearings that took place on 15 December 2014, 23 January 2015 (the hearing of application RT 15/03180 – termination for non-payment of rent) and 13 February 2015 (the hearing of the applications the subject of the second appeal, including the application for termination of a periodic tenancy pursuant to section 85 of the RT Act). These documents included written submissions as well. 4. During the course of these submissions, in respect of the first appeal, the tenant identified the document found at page 18 of Exhibit A1 as the notice of termination which he asserted he was served by the landlord on 15 December 2014. That notice is dated 20 October 2014 and required vacant possession on 23 January 2015. However, that notice does not have a "tick" placed in the appropriate box to the grounds for termination. 5. It should be noted that 15 December 2014 was the day on which application RT 14/54284 (the landlord's application for termination based on hardship section 93 of the RT Act, and on the grounds of section 90 and 92 of the RT Act) was listed for directions. Also listed for directions on this day was the tenants application RT 14/57450 (application for landlord to carry out repairs). 6. During the course of oral submissions the tenant also submitted that the Tribunal did not have jurisdiction to deal with the present dispute under the RT Act. The tenant submitted that the RT Act does not apply to "an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement": see section 8(c)(f) of the RT Act. The tenant identified a memorandum of understanding and agreement for sale found in Exhibit A1 at pages 194-197 and 198-265 respectively. However, the tenant then said that the agreement for sale had never in fact been signed by the parties. 7. Further, the memorandum of understanding found at page 194 that the document is an unsigned draft and was "open to further negotiation and input by the parties until mutually agreed and signed". Consequently the Appeal Panel is satisfied this jurisdictional challenge has no merit as the residential tenancy arose under the written residential tenancy agreement dated 7 April 2014, and was not a right granted under a contract for sale of land that was never signed. 8. The final matter that was raised by the tenant related to the state of repairs of the premises. As indicated above in application RT 14/57450 made on 24 November 2014, the tenant sought orders requiring the landlord to carry out repairs under section 65 of the RT Act. The tenant raised in the appeal that the applications by the landlord for termination of the residential tenancy should have been refused and the notices issued by the landlord declared to be of no effect because they were retaliatory in contravention of section 115 of the RT Act. In this regard the tenant referred to various documents in exhibit A1 recording communications between the parties in connection with repairs. The pages referred to in exhibit A1 included page 64, 69, 171 and 177. 9. In reply, the respondent relied on written and oral submissions. These included submissions contained in a document entitled "affidavit of Gloridharma Stricklands" dated 17 April 2015. It is not necessary to repeat these submissions at this time. However, it is relevant to note that in relation to the claim for repairs and whether or not the 90 day termination notice was retaliatory, in paragraphs [194] – [195] of the landlord's submissions, the landlord sets out a transcript of the findings made by the Member, including the finding of fact that "the claims of repairs were raised after the 90 day termination notice was served late October." 10. In relation to the dispute concerning what document was handed over on 15 December 2014, the landlord submitted that the notice of termination was dated 15 December 2014 which as found by the Tribunal on 23 January 2015, required vacant possession on 30 December 2014. 11. In relation to the unpaid rent, the landlord submitted that, there was no dispute that rent of $5,800.00 was unpaid and that the only dispute was in respect of the so called "option fee" of $3,500.00. 12. In reply, the tenant again referred to Exhibit A1 and various statements which he said were received from the landlord reconciling the rent. The tenant said these documents showed a credit for the option fee to reduce the amount of rent outstanding: see for example page 22 of Exhibit A1. 13. In relation to the landlord's submission that there was no retaliation because the issue of repairs had not been raised until November 2014, the tenant submitted that he had "kept quiet" regarding the repairs but had earlier made payments in advance for rent so as to provide funds to the landlord to carry out repairs. 14. In relation to why the undisputed rent had not been paid, the tenant submitted that he mistakenly thought he did not have to pay the rent as applications had been lodged in the Tribunal which were to be resolved. Decision 1. There are two appeals involving five applications to the Tribunal concerning a residential tenancy agreement between the parties. 2. The parties initially entered into a residential tenancy agreement on 23 July 2013. This agreement was for a fixed term until 21 January 2014. The agreement was signed by the parties and dated 23 July 2013. The rent payable was $600.00 per week. 3. A second residential tenancy agreement was entered into between the parties for a fixed term commencing 7 April 2014 and ending on 23 September 2014. The agreement is dated 7 April 2014 and is signed by the parties. A copy of the agreement is found at page 290-300 of Exhibit A1. The rent was $700.00 per week, payable weekly in advance. After 23 September 2014 this agreement continued as a periodical tenancy 4. It is this residential tenancy agreement that is the subject of the appeal. History of proceedings, orders made and effect of Appeal Panel Stays 1. The first appeal concerns orders made by the Tribunal on 23 January 2015. The second appeal involves orders made by the Tribunal on 13 February 2015 2. Before dealing with the individual grounds of appeal it is necessary to consider the history of the proceedings at first instance and on appeal. This is because there is a question about whether at the time the orders were made on 13 February 2015 the residential tenancy agreement had already been terminated by the Tribunal pursuant to orders made on 23 January 2015. 3. The orders made by the Tribunal on 23 January 2015 in application RT 15/03180 were as follows: "On 23-Jan-2015 the following orders were made: 1. 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. 2. The Tribunal is not satisfied in accordance with s 89(5) that the tenant has frequently failed to pay rent owing for the residential premises. 3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 4. The order for possession is suspended until 06-Feb-2015 5. The tenant shall pay the landlord a daily occupation fee at the rate of $100.00 per day from the day after the date of termination, namely 24-Jan-2015 until the date vacant possession is given to the landlord. 6. 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. 7. The tenant, JIM BOGOEVSKI and EDWINA BOGOEVSKI, ###, is to pay the landlord, GLORIDHARMA STRICKLANDS, ###, the sum of $9,300.00 on or before 06-Feb-2015. •Reasons : Rent arrears $9300.00." 1. The name of Ms Edwina Bogoevski was removed from order 7 by consent of the parties pursuant to an order made by the Appeal Panel on 7 April 2015. 2. In passing, the Appeal Panel notes that the orders made on 23 January 2015 included a finding of the Tribunal that the Tribunal was not satisfied that the tenant had frequently failed to pay rent owing for the residential premises. This meant that any order for termination of the residential tenancy agreement would cease to have effect in the event the tenant paid all rent owing to the landlord, as would any warrant for possession if issued by the Tribunal, provided the tenant did not deliver up vacant possession and the amount of any unpaid rent was paid prior to the date any warrant for possession was executed: see section 89 (3) of the RT Act. 3. On 13 February 2015 the Appeal Panel made the following orders: "1. The operation of orders 3 and 7 made on 24 January 2015 in matter number RT 15/03180 are stayed until 5 PM on 26 February 2015. 2. The stay is conditional upon the appellant: (a) paying the undisputed arrears of rent outstanding of $5800 on or before 25 February 2015. (b) After 25 February 2015, paying rent as it becomes due under the residential tenancy agreement. 3. Appeal listed for Call Over Hearing on 26 Feb 2015." 1. While the Appeal Panel referred to orders made "on 24 January 2015", it is clear that the orders to which the Appeal Panel was referring were the orders made on 23 January 2015, written notice of which is dated 24 January 2015. 2. The consequence of the stay order made by the Appeal Panel on 13 February 2015 was that: 1. order 1, which related to termination of the residential tenancy agreement for non-payment of rent had not been stayed; 2. order 3 which provided for the tenancy agreement to be immediately terminated and for possession to be given on the date of termination was stayed; and 3. order 7 for payment of rent arrears of $9300 by 6 February 2015 was also stayed. 1. While order 1 had not been stayed, it is clear to the Appeal Panel that the effect of the stay granted by the Appeal Panel on 13 February 2015 was to stop the termination order coming into effect and that the residential tenancy agreement was to continue until the stay expired on 26 February 2015. 2. This is because order 2(b) required the tenant to pay "rent as it becomes due under the residential tenancy agreement". This order could only be made if the residential tenancy agreement continued after 23 January 2015, that is the termination order had not come into effect because of the stay granted by order 1. 3. This interpretation is consistent with: 1. the fact that the order for immediate possession (also part of order 3 made 23 January 2015) had also been stayed by order 1 of the Appeal Panel made 13 February 2015; and 2. the fact that an occupation fee, and not rent, would have been payable: 1. if the tenant fails to comply with an order for possession, for the period the tenant remains in possession after the date the tenant is required to vacate: see section 123 of the RT Act; or 2. during the period of any suspension of an order for possession: see section 114 of the RT Act, but not otherwise. 1. Further, a residential tenancy agreement only terminates in the circumstances set out in the RT Act. In the case of termination for non-payment of rent this requires: 1. A valid notice of termination complying with the RT Act to have been served by a landlord; and 2. An order for termination made by the Tribunal (unless vacant possession is delivered up by a tenant):. 1. Consequently, as there was no order for termination in effect on 13 February 2013 (because it had been stayed) and the tenant had not then vacated the premises, the residential tenancy agreement was not terminated at the time the Tribunal heard the applications on 13 February 2015: see sections 81(1), (2) and (3) of the RT Act. 2. Therefore the Tribunal was able to make a termination order on 13 February 2015 when applications RT 14/54284 and RT 15/04667 were determined. 3. The Tribunal in fact made two separate orders for termination on 13 February 2015. The first was in application RT 15/04667. This was an order made under section 85 of the RT Act following the service of a 90 day notice to terminate a periodic tenancy. The second was in application RT 14/54284. This was an order to terminate the residential tenancy agreement under section 93 of the RT Act due to hardship. Other grounds for making a termination order in application RT 14/54284 were dismissed. 4. The orders made 13 February 2015 (which are the subject of the second appeal) as well as the orders made in respect of application RT 15/03180 (the first appeal) were the subject of further stay orders made by the Appeal Panel on 26 February 2015. The terms of the stay orders made on 26 February 2015 were as follows: "6 The operation of the orders made on 23 January 2015 in matter number RT 15/03180 and on 13 February 2015 in matter number RT 14/54282 are stayed until further order of the Tribunal. The preceding stay order is conditional upon the appellant: (a) paying $3400 by 27 February 2015 and: (b) a daily occupation for the of $100.00 payable fortnightly in advance. Note: the respondent is free at any time to make an application for the stay granted by these orders to be lifted, if there are sufficient reasons for doing so." 1. Apparently by this time the amount of $5800 required by the stay orders made by the Appeal Panel on 13 February 2015 had been paid. 2. The consequence of this further stay was that all orders in connection with application RT 15/03180 (termination for non-payment of rent) were stayed as were all orders relating to application RT 14/54282 (termination for hardship). 3. However, the orders made in application RT 15/04667 were not stayed and have not subsequently been stayed by the Appeal Panel. The effect of the orders in application RT 15/04667 was to: 1. terminate the residential tenancy agreement immediately on 13 February 2015 and require immediate possession to be given to the landlord (order 1 and 2); 2. suspend the order for possession until 27 February 2015 (order 3); and 3. require the tenant to pay the landlord a daily occupation fee of $100 per day from 14 February 2015 until the date vacant possession is given. 1. It is common ground that the tenant remains in possession of the premises and has not delivered up possession as required by the orders made 13 February 2015 in application RT 15/04667. 2. Consequently, and subject to any orders made by the Appeal Panel in these appeals: 1. the residential tenancy agreement, was terminated by order of the Tribunal on 13 February 2015 pursuant to section 85 of the RT Act on the basis that a notice to terminate a periodic tenancy had been served by the landlord giving 90 days' notice; and 2. the landlord in now entitled to possession of the premises as the suspension of the order for possession ceased on 27 February 2015. 1. It is in this context that the Appeal Panel will determine the present appeals. 2. Finally, it is common ground that various payments were made by the tenant in consequence of conditions imposed by the Appeal Panel in granting various stays, the terms of which are referred to below. Those payments were as follows: 1. $5800.00 made approximately 24 February 2015; 2. $4800.00 made approximately 27 February 2015; 3. $1400.00 made approximately 10 March 2015; and 4. $1400 made approximately 26 March 2015. These payments are recorded in a document entitled Exhibit 5 (2/2) attached to the submissions dated 17 April 2015. 1. It will also be necessary to consider the effect of these payments in determining what orders should be made in the appeals. First appeal - AP 15/06134 1. It is convenient to deal with each of the appeals separately. 2. Some of the grounds of appeal raise questions of law and some grounds do not. There is a right of appeal on a question of law. Otherwise leave is required: see section 80 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) 3. To the extent leave is required the tenant must demonstrate a substantial miscarriage of justice on the grounds set out in clause 12 of schedule 4 of the NCAT Act. Urban v Collins [2014] NSWCATAP 17 sets out the circumstances in which leave will be granted and what constitutes a substantial miscarriage of justice. 4. In relation to the first appeal there are substantially three matters raised by the tenant in seeking to challenge the order for termination made on 23 January 2015 for non-payment of rent. 5. Firstly, the tenant asserts he was not given enough time to prepare for the hearing of the application and was therefore denied procedural fairness 6. The tenant asserts he did not open an email from the Tribunal notifying of the hearing date until shortly before the hearing. He acknowledges this was his fault. He says that he did not have enough time to prepare his case. Details of what more he needed to do to prepare for the hearing have been provided to the Appeal Panel in his notice of appeal: see eg 12B ii of the Notice of Appeal. 7. A review of the audio recording of the hearing indicates that the respondent did have relevant documents at the hearing and had an opportunity to present his evidence in relation to these matters. The presiding member explained that the matter had been listed urgently due to significant rent arrears. The Tribunal allowed the tenant a chance to identify the evidence on which he wanted to rely and present that to the Tribunal during the hearing. The Tribunal explained to the tenant what the Tribunal considered was relevant evidence and gave the tenant a chance to respond. 8. Having regard to the nature of the claim, the matters in dispute and the conduct of the hearing on 23 January 2015, the Appeal Panel is not satisfied that there was any relevant error of the Tribunal in proceeding to hear application RT 15/03180 on 23 January 2015. 9. Accordingly, this ground of appeal fails. 10. Secondly, the tenant challenges the finding of the Tribunal that he was served with a valid notice of termination for non-payment of rent on 15 December 2014. The landlord contended that at a directions hearing on 15 December 2014 applications (which related to the application that are the subject of the second appeal), the landlord had hand-delivered to the tenant a notice of termination for non-payment of rent dated 15 December 2014. 11. The tenant asserts he was not provided with an opportunity to present his case, in particular to show to the Tribunal a document which he says was the notice of termination which had been served upon him. He also complains the Tribunal failed to administer an oath to him in connection with his evidence concerning the service of the notice of termination. On the other hand the Tribunal did administer an oath to each of the landlord and is witness (Mr Stevenson). The objection is the tenant was denied procedural fairness due to the different procedure. This is a question of law. 12. The tenant relied upon evidence from the hearing which the tenant provided by way of a transcript of the audio recording of the proceedings. 13. The Appeal Panel notes it was not provided with a full transcript of the hearing by either party but that the Appeal Panel was provided with a copy of the audio recording of the hearing which was about 54 minutes in length. 14. Having listened to the audio recording it is clear from reasons provided by the Tribunal at the conclusion of the hearing that the Tribunal found that the landlord had, on 15 December 2014, served on the tenant a notice of termination for non-payment of rent dated 15 December 2014. This occurred when the proceedings were listed before the Tribunal for directions in connection with the 2014 applications. In doing so, the Tribunal accepted the evidence of service provided by the landlord and Mr Stevenson at the hearing on 23 January 2015, including that the notice served was the one tendered by the landlord dated 15 December 2014 which required possession on 30 December 2014. 15. The transcript extracts of the directions hearing on 15 December 2014 provided by the tenant in this appeal corroborates the landlord's evidence that a notice of termination for non-payment of rent was handed over to the tenant at the directions hearing. In this regard the Appeal Panel notes the transcript extracts provided by the tenant: see items: 4:44, 4:49 and 4:51-4:53. 16. The Tribunal rejected the evidence from the tenant. In this regard, it is clear from a review of the audio recording and from the transcribed extracts provided by the tenant that the tenant provided evidence to the Tribunal to the following effect: 1. he had not been served and did not receive any notice of termination for non-payment of rent; 2. he denied the notice of termination dated 15 December 2014 was served on him on that day; 3. he had received earlier in 2014 a notice of termination dated 20 October 2014 relating to a proposed termination on 23 January 2015. 1. It is also clear that at the hearing on 23 January 2014 there was a discussion on 23 January 2014 between the tenant and the Tribunal concerning the relevance of the notice to which the tenant was referring. That notice apparently related to termination of the tenancy under section 85 of the RT Act, an application also made by the landlord in application RT 15/03180. 2. While the application under section 85 of the RT Act made in application RT 15/03180 was rejected by the Tribunal (because the 90 day period of notice required under section 85 of the RT Act had not expired prior to the filing of the application), it is clear the tenant was given an opportunity to and did make submissions about the document he now asserts on appeal was given to him on 15 December 2014. However at the time this document was being considered by the Tribunal (on 23 January 2015) the tenant was then asserting: 1. The notice he was tendering was provided in 2014; and 2. no documents were given to him on 15 December 2014. 1. It was in this context that the Tribunal required an oath from the landlord and Mr Stevenson to prove service and rebut what the tenant had said. 2. Having listened to the audio recordings and the submissions of the parties, in our view this decision of the Tribunal was correct. There was ample evidence to prove the notice the landlord asserted was in fact served on 15 December 2014. 3. Further, in our opinion the failure to administer an oath did not, in the present circumstances, constitute any relevant breach of the rules of natural justice nor the denial of procedural fairness. 4. This is because the tenant gave his evidence which the Tribunal evaluated and the Tribunal made relevant ruling. 5. Further, there is no requirement for evidence to be given on oath. Section 38(2) of the Civil and Administrative Tribunal Act, 2013 provides: "The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. Lastly, while the tenant asserted in his narrative accompanying the transcribed extracts of the audio recording that the member "moved on from this point (referring to the evidence from the landlord and Mr Stevenson) without giving Mr Bogoevski [an opportunity] to give testimony of what he saw on that day under oath", we are satisfied from listening to the audio recording that the tenant had already given evidence in effect denying having been served with any notice on 15 December 2014 and that the only notice he asserted he received was given to him prior to this time. As indicated above, this evidence was evaluated against the landlord's evidence and rejected. 2. Accordingly, this ground of appeal fails. 3. The third challenge relates to a claim by the tenant that the bond he had paid had not been paid to the relevant authority by the landlord. This is a question of fact for which leave to appeal is required. 4. This matter appears to have been dealt with by the Tribunal during the course of the hearing on 23 January 2015. The audio recording indicates that the landlord said the bond had not been paid and when the tenant was asked whether or not the bond had in fact been paid there was no answer. 5. The audio recording confirms that the presiding member discussed with the parties each of the payments they had included in their respective reconciliations. Each party confirmed the payments recorded were for rent (except for one which related to an in option fee – an issue dealt with below) and none of the payments identified by the parties in that exchange appear to the Appeal Panel to be payments in respect of the bond. 6. Therefore, whether or not the bond has in fact been paid by the tenant to the landlord, it is clear that any amount paid in respect of the bond has not been taken into account by the Tribunal in determining the amount of rent which remained unpaid at the time the notice of termination for non-payment of rent was issued or when the Tribunal determined the amount of unpaid rent on 23 January 2015. 7. Accordingly this ground of appeal fails. 8. The fourth challenge relates to the Tribunal's conclusion that the amount unpaid rent was $9300. The challenge is that the tenant asserts that the amount of rent as found did not include a credit for $3500 which the tenant had paid to the landlord. The tenant asserted that he had paid an amount of $3500 pursuant to an option agreement in relation to the proposed purchase the property and that, because the sale did not proceed, he was entitled to be repaid that money. The tenant then said the $3,500.00 should be credited against unpaid rent 9. There was a dispute concerning whether or not the option fee was refundable. The landlord had, apparently, at one time provided a reconciliation to the tenant which included a credit of $3500 for the option fee against unpaid rent. However, this credit was subsequently removed by the landlord who said it had been provided by mistake. 10. The Tribunal determined: 1. that the amount of $3500 was not in fact rent, 2. that its inclusion by the landlord in the reconciliation of rent was a mistake; and 3. that any dispute concerning the tenant's entitlement to a refund of that amount under any option agreement was a matter to be dealt with in a court and that the Tribunal was not determining that issue. 1. The Tribunal otherwise determined that the notice of termination for non-payment of rent was valid and that at the time the notice was given the tenant was more than 14 days in arrears. 2. The Appeal Panel is satisfied from a review of the documents constituting the various reconciliations that as at 15 December 2014 and from what the parties said to the Tribunal at the hearing that the tenant was in arrears of rent by more than 14 days. In this regard the Tribunal found that the tenant had ceased paying rent from October 2014, at which time the tenant was already in arrears. 3. Further, the Appeal Panel is satisfied that when the application for termination was heard on 23 January 2015, the tenant was still in arrears by a significant amount. This is self-evident from the fact that the tenant, in his Notice of Appeal, said "My calculation is that it (referring to the unpaid rent) should have been $5800", not $9300. 4. In relation to the credit for the option fee, neither party submitted the sum of $3500.00 paid in respect of the option fee was in fact a payment of rent. The only issue was whether the amount was a debt due to the tenant because the fee was refundable. As made clear in the reasons of the Tribunal, the issue of whether the tenant was entitled to a refund of the option fee has not been determined. Rather, the Tribunal found that there was a dispute concerning the terms of any option agreement which needed to be resolved in an appropriate court. 5. Accordingly, no error shown in the Tribunal concluding the amount of unpaid rent was in fact $9300.00. 6. In all these circumstances, the decision to terminate the tenancy on the basis the tenant had failed to pay the rent due is not shown to be in error. Consequently, the tenant is unsuccessful in respect of the first appeal which should be dismissed. 7. However in light of the original orders in application RT 15/03180 being stayed and having regard to the decision in the second appeal the orders in in application RT 15/03180 should be varied for the reason set out below. Second appeal – AP 15/10194 1. The issues raised in the second appeal can be distilled to four matters. Some grounds relate to each of the four applications to which are the second appeal relates and some relate to particular applications. 2. The four matters are: 1. The presiding member improperly failed to disqualify himself 2. The determination "on the papers" was inappropriate and denied the tenant procedural fairness 3. Application RT 14/54284 should have been adjourned to allow a summons for production of documents to issue 4. The notice to determine periodic tenancy was retaliatory 1 – Failure of presiding member to disqualify himself 1. Firstly, the tenant says the presiding member who determined the four applications on 13 February 2015 should have disqualified himself. 2. This matter raises the issue of whether the presiding member should have disqualified himself on the grounds of bias and whether the presiding member had denied the appellant procedural fairness. 3. Bias can be actual or apprehended. 4. The relevant principles in determining whether there is apprehended bias and how they are to be applied have been set out by the High Court of Australia in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] the High Court said: "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. The High Court also said (Ebner at [19]): "Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case." 1. In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The High Court said at page 553-554: "(The) requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the Tribunal or in the minds of the public that the Tribunal or a member or members of it may not bring to the resolution of the questions arising before the Tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not form any views or inclination of mind upon or with respect to it." 1. In relation to the requirements for natural justice the High Court, at page 552 set out a passage from the decision of Tucker LJ in Russell v Duke of Norfolk where the Lord Justice said: "The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with, and so forth." 1. The High Court said, at page 553, in approving this statement: "It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the enquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing it exercised are amongst those circumstances." 1. lt is in this context that the matters raised by the appellant as indicating bias or apprehended bias must be considered. 2. The reasons why the tenant says the presiding member should have disqualified himself are as follows: 1. A money order had been incorrectly made in application RT 15/03180 against Edwina Bogoevski who was not a party to the residential tenancy agreement; 2. the presiding member had inappropriately conducted the hearing on 23 January 2015 in various respects identified in the notice of appeal; 1. In relation to the money order made against Ms Bogoevski in application RT 15/03180, consent orders were made by the Appeal Panel on 7 April 2015 to remove her from order 7 made 23 January 2015 (the order for the payment of rent) and from those proceedings. 2. These orders were made in circumstances where Ms Bogoevski had been made a party to the original proceedings by the landlord. Neither the landlord nor the tenant had drawn to the Tribunal's attention the fact that she was not a party to the residential tenancy agreement but was named as a respondent in the proceedings when the matter was heard. 3. Clearly the order made against Ms Bogoevski should not have been made because she was not a tenant under the residential tenancy agreement. Further, it is regrettable that prior to the lodging of the appeal the parties did not seek to vary the orders made in application RT 15/03180 by consent pursuant to Regulation 9 of the Civil and Administrative Tribunal Regulation, 2013. In any event this matter was corrected by the Appeal Panel on 7 April 2015 as indicated above. 4. Notwithstanding our view the original order against Ms Bogoevski should not have been made, in our opinion it was appropriate for the Tribunal having made an earlier ruling to decline to deal with this matter at the hearing on 23 February 2013 because: 1. application RT 15/03180 was not listed before the Tribunal on 13 February 2015: and 2. The parties were not otherwise consenting to the Tribunal varying the other made in application RT 15/03180. 1. Thereafter, to the extent the decision on 23 January 2015 was in error and the parties did not otherwise agree to the Tribunal varying the orders, the appropriate course for the tenant and Ms Bogoevski was to lodge an appeal. 2. Consequently, the conduct of the presiding member in dealing with this issue as he did is not conduct which would have required him to disqualify himself from hearing the applications listed on 13 February 2015. 3. In relation to the tenant's assertion that the presiding member should have disqualified himself on 13 February 2015 because of the manner in which he conducted the hearing of application RT 15/03180 on 23 January 2015, in our view the conduct of the member does not give rise to a reasonable apprehension of bias nor has actual bias been demonstrated. 4. A review of the audio recordings for both hearings indicates that the presiding member was patient and gave to each of the parties an opportunity to present their cases on each occasion. He was faced with multiple proceedings and complicated issues. The mere fact that rulings made were adverse to the tenant on 23 January 2013 is not sufficient to demonstrate relevant bias or that the presiding member should otherwise have disqualified himself from determining the applications on 13 February 2015. 5. In ruling in relation to the application to disqualify himself, the member dealt with each of the issues raised by the tenant, identified the applicable law and provided reasons for rejecting each of the matters identified by the tenant as justifying the member disqualifying himself. The matters considered and rejected as grounds for disqualification included: 1. the fact the tenant read an emailed notice of the 23 January 2015 hearing shortly before the time of the hearing; 2. the tenant had not been given enough time to prepare for the hearing on 23 January 2015; 3. the tenant had not consented to Mr Stevenson representing the landlord at the hearing; 4. the tenant had not been provided with an opportunity to show relevant documents (namely the notice of termination) which he said the landlord had served on him; 5. the presiding member administered on oath to the landlord and Mr Stevenson but not the tenant; 1. His rulings reveal neither actual bias nor does what occurred give rise to a reasonable apprehension of bias. 2. Further, from listening to the audio recording and having considered the appellant's submissions, there is nothing in the conduct of the presiding member at the hearing on 13 February 2015 that would otherwise lead the Appeal Panel to conclude the presiding member should have disqualified himself from hearing those applications. 2 – The determination on the papers was inappropriate and denied the tenant procedural fairness 1. The second ground of appeal relates to the fact that the four applications were determined "on the papers" and that the Tribunal denied the tenant an opportunity to cross-examine on various documents to prove its defence: see paragraph 12 B i of the notice of appeal. 2. A review of the audio recording by the Appeal Panel indicates that the tenant made substantial oral submissions in relation to the question of disqualification of the presiding member. Having made a ruling on that matter, the presiding member enquired of both parties whether they were content for him to adjourn, read the written material provided and make a decision. While the tenant sought to re-agitate matters relating to the application for disqualification and/or matters relating to the proceedings which had been determined on 23 January 2015, the parties, including the tenant, ultimately agreed that the member could determine the remaining issues by adopting the procedure outlined. 3. The exchange between the tenant and the Tribunal on this issue is found at time mark 29:00 of the audio recording and following. The effect of the exchange is that while the tenant still challenged the presiding member's decision not to disqualify himself, the tenant made clear he did not wish to produce any further oral evidence in relation to the applications which the Tribunal was to determine on 13 February 2015 and that the written material upon which he wished to rely had been provided to the Tribunal. As such he did not object to the Tribunal adjourning to read the papers and make a decision. 4. Consequently, the Tribunal adjourned for the purpose of reading the material and thereafter delivered oral reasons for decision. 5. In our opinion, the Tribunal provided to the parties an opportunity to present any further evidence, raise issues and to provide submissions to the Tribunal in relation to the four applications to be heard on the day. The parties were provided with an opportunity to be heard and no error has been identified by the tenant which would lead the Appeal Panel to conclude the tenant had been denied procedural fairness by the manner in which the hearing on 13 February 2015 had been conducted. 3 – Application RT 14/54284 should have been adjourned to allow a summons for production of documents to issue 1. The third ground of appeal relates to application RT 14/54284 and the summons issued by the tenant seeking documents from the landlord in connection with the application to terminate the residential tenancy agreement on the grounds of hardship. 2. It is common ground that a request for summons had been made but the summons had not been issued by the Tribunal. The Tribunal considered the terms of the summons at the hearing on 13 February 2015. 3. The application for summons and the documents which the tenant sought to have produced is found at page 135 – 137 of Exhibit A1. The application for summons was dated 20 January 2015 and it would appear from a receipt for the filing fee found at page 134 of Exhibit A1 that it was filed on 20 January 2015. 4. It seems clear from reviewing the audio recording of the hearing on 13 February 2015 that the Tribunal formed the view that it was too late to be considering the issue of the summons because the matter was listed for final hearing. The Tribunal also considered the terms of the summons and found many of the requested documents to be irrelevant. 5. The Appeal Panel has also reviewed the summons. Many of the paragraphs in the summons do not identify the particular documents to be provided or are in terms so general as to amount to fishing. One paragraph of the summons required the landlord to provide the names and addresses of certain people, a matter which is not a request for the production of documents but rather is in the nature of an interrogatory. In the case of paragraph 6 of the summons the tenant sought an order that the landlord "nominate all real estate agents that he has contracted to list rent and sales advertisements". To this extent the issue of the requested summons in such terms would have been inappropriate. 6. Notwithstanding these views, it seems of the Appeal Panel that: 1. the documents sought to be produced in paragraph 1 would be relevant to the claim of hardship and the matters to be considered by the Tribunal in determining this application 2. the request for summons had been made on 20 January 2015, three weeks before the hearing, and the Tribunal had not: 1. issued the summons; or 2. listed the matter for hearing to consider whether the summons should have been issued 1. In the absence of the Tribunal issuing the summons or having a hearing on the issue of whether the summons should be issued there has been a denial of procedural fairness because some of the documents which were sought to be produced would be relevant to the question of whether or not the Tribunal should make an order in application RT 14/54284 on the grounds of hardship. 2. Because the hearing on the application occurred without the tenant being given an opportunity to access relevant document and test the landlord case the order made on application RT 14/54284 should be set aside. 4 – The notice to determine periodic tenancy was retaliatory 1. The fourth ground of appeal is that the notice of termination issued in October 2014 to terminate the periodic tenancy was retaliatory. This ground relates to application RT 15/04667. 2. At the time the notice was issued the fixed term of the tenancy of the second residential tenancy agreement which commenced on 7 April 2014 had ended on 23 September 2014. Thereafter, the tenancy continued as a periodic tenancy. The notice of termination of the periodic tenancy is dated 20 October 2014 and required vacant possession to be provided by the tenant on 23 January 2015. 3. The tenant claimed that the notice of termination was retaliatory to his application RT 14/57450 seeking an order for the landlord to carry out repairs. The tenant's application was filed on 24 November 2015. 4. Section 115 (2) of the RT Act provides: " (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons: (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant." 1. The Tribunal found that the notice of termination to end the periodic tenancy was issued by the landlord prior to the tenant commencing his application for an order for repairs. The Tribunal also found that the landlord had attempted to carry out various repairs and that, to some degree, the tenant had not allowed the landlord to do so. Consequently, the Tribunal concluded that the notice to terminate the periodic tenancy was not in fact retaliatory in that it was not wholly or partly motivated by the tenant proposing to or in fact applying to the Tribunal for an order in connection with repairs or to any proposed action by the tenant in that regard. 2. When the issue was dealt with in oral submissions before the Appeal Panel, the tenant indicated that he had in fact "kept quiet" about the issue of repairs and had paid rent in advance to enable the landlord to carry out necessary repairs. In effect the tenant conceded the issues of repairs had not previously been raised. 3. The conclusion of the Tribunal was based on facts found by the Tribunal as to the circumstances in which the notice of termination was served. To challenge this conclusion of fact leave would be required. It is a decision that was available to the Tribunal on the facts as found and that decision is not shown to be wrong. 4. Accordingly, leave should be refused and this ground of appeal fails. Orders to be made in appeals 1. The remaining issue to deal with by the Appeal Panel is what orders should be made in light of the above conclusions. 2. This is an unusual case because the landlord has sought termination of the residential tenancy agreement in three applications based on five grounds. In resolving the applications at first instance, the Tribunal made three termination orders in each of the three applications. As indicated above, one was made on 23 January 2015 and two were made on 13 February 2015. 3. While the Tribunal can make a termination order based on multiple grounds, it cannot make separate termination orders in respect of each ground. Once terminated, a subsequent termination order cannot be made. Also, a party can file multiple applications based on separate grounds, but having elected to have one application dealt with urgently and in advance, if termination orders are made in that application the Tribunal is not thereafter able to make a subsequent termination order in respect of the other applications. This is because the tenancy is terminated by the order made earlier in time. 4. Ordinarily, this would have meant that once the Tribunal had made the order terminating the residential tenancy agreement for non-payment of rent on 23 January 2015, it could not make a further order for termination of the residential tenancy agreement on other grounds. However, for the reasons set out above the orders made on 23 January 2015 were not in effect on 13 February 2015. 5. Consequently, on 13 February 2013 the Tribunal at first instance had power to make a termination order based on the grounds, if established, in applications RT 14/54284 (an application based on hardship and two other grounds) and application RT 15/04667 (termination of a periodic tenancy under section 85 of the RT Act) as both those applications were being determined at the same time. That is, while it was not possible to make two termination orders in each of the applications, the Tribunal was able to make a single termination order based on multiple grounds in one or other of the two applications. 6. Consequently, by reason of the stay granted by the Appeal Panel in respect of application RT 15/03180, in our opinion the termination order made in application RT 15/04667 was a valid order to terminate the residential tenancy agreement on 13 February 2015. 7. In light of our findings in relation to the grounds of appeal and our conclusion that, in the peculiar circumstances of this case, the termination order made in application RT 15/04667 was valid, the Appeal Panel must determine what orders should be made to dispose of these appeals. This is because the Appeal Panel has concluded that the landlord has established two grounds for termination of the residential tenancy agreement each of which justify the Tribunal making an order for possession. 8. While it is open to the Appeal Panel to lift all stays and thereby reinstate the orders made terminating the residential tenancy agreement for non-payment of rent on 23 January 2015, such an order would necessitate the setting aside of the orders made on 13 February 2015 in application RT 15/04667 and for that application to be dismissed. This approach is not appropriate for the following reasons. 9. Firstly, if the order made 23 January 2015 remains the sole ground for termination, the finding by the Tribunal on 23 January 2014 that the tenant had not frequently failed to pay rent would mean that the tenant could avoid any requirement to vacate the premises by paying the unpaid rent as found in order 7. Upon payment of the unpaid rent the termination order would cease to have effect: see section 89(3) of the RT Act. 10. In this regard it is apparent that the tenant paid the sum of $5,800.00 pursuant to the terms of the stay granted 13 February 2015. A further $3,400.00 was paid pursuant to the terms of the stay granted 26 February 2015. Therefore the tenant has paid the sum of $9,200.00 in satisfaction of the rent outstanding as at 23 January 2015 of $9,300.00. 11. Secondly it was always open to the tenant to pay all unpaid rent rather than seek a stay while his appeal was determined. This would have meant the order for termination made on 23 January 2013 would, in any event, have ceased to have effect if the tenant had complied with order 7: see section 89(3) of the RT Act. If this had occurred the landlord could have proceeded with application 15/14667 on 13 February and a termination order would still have been made on that day. 12. Thirdly, the Appeal Panel must take account of the fact that, in consequence of the stay being granted in respect of the orders made in application RT 15/03180 that the Tribunal was, in any event, entitled to make an order for termination on 13 February 2015 under section 85 of the RT Act. Section 85(3) provides: "(3) 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." 1. The effect of this section is that it is mandatory for the Tribunal to make a termination order if satisfied a valid notice of termination was given and there is no discretion or power in the Tribunal to allow the residential tenancy agreement to continue even if all rent has been paid. 2. Fourthly, if the 23 January 2013 order is reinstated and application 15/04667 is dismissed, the tenant, having failed to pay rent on time, would effectively thwart the landlord's attempt to terminate the tenancy under section 85 of the RT Act. This is because any new application filed following dismissal of application RT 14/03667 based on the section 85 notice served in 2014 would be out of time as it would be made more than 30 days since possession since the notice was required: see section 83(2)(a) of the RT Act. This would work an injustice to the landlord who would, if the rent had been paid on time, have been entitled to have the tenancy terminated on 13 February 2015 pursuant to section 85. 3. Fifthly, because the residential tenancy agreement did not terminate on 23 January 2013, additional amounts accrued for unpaid rent thereafter until the residential tenancy agreement was terminated on 13 February 2015 4. Section 36 of the Civil and Administrative Tribunal Act, 2013 requires the Tribunal to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". 5. Section 81(1) of the NCAT Act provides as follows: (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. 1. It is clear from the submission made by the landlord that he wishes to terminate the residential tenancy agreement. The Appeal Panel has not, at any stage, stayed the order for termination under section 85 of the RT Act. 2. As at 13 February 2013 the landlord was also entitled to a termination order on the grounds rent had not been paid. 3. In these circumstances the Appeal Panel is satisfied that it should vary the orders earlier made to provide for termination of the residential tenancy agreement on 13 February 2015, the basis for the order being both the non-payment of rent and the termination of the periodic tenancy under section 85 following service of an appropriate notice of termination. 4. That leaves the question of what orders should be made in respect of any unpaid rent as at 13 February 2015. 5. As is evident from the reasons above, between 23 January 2015 and 13 February 2015 the tenant did not pay any rent to the landlord. The amounts of $5,800.00 and $3,400.00 were paid after 13 January 2015 pursuant to the stay orders made by the Appeal Panel. 6. The amount of rent which the tenant was obliged to pay between 23 January 2015 and 13 February 2015 was 21 days rent at a rate of $100.00 per day ($700.00 per week). As no rent was paid in this period, the order for unpaid rent of $9,300.00 as at 23 January 2015 should be varied to an amount of $11,400.00 ($9,300.00 plus $2,100.00) being the outstanding rent at 13 February 2015. 7. Further as the tenancy is to be terminated as at 13 February 2015, the tenant should pay an occupation fee after this date. 8. The tenant has had many months to vacate the premises and has benefitted from the stay of earlier orders. The landlord has been denied possession. On the other hand, the tenant has occupied the residential premises under consecutive residential tenancy agreements for nearly two years. Weighing these factors, the order for possession should be suspended for 2 weeks until the date specified in the orders made below to allow the tenant time to leave. 9. Directions should be made to require the landlord to apply the amounts paid pursuant to the conditions of the stay towards reduction of the unpaid rent. In relation to the other amounts paid by the tenant pursuant to the conditions of stay, these are to be applied firstly to any unpaid rent and thereafter in satisfaction of the occupation fee payable from 14 February 2015 until vacant possession is given. This will mean that the only issue to be resolved in the future will be to make a money order for any unpaid occupation fee if the tenant fails to comply with the orders the Appeal Panel makes. There will be liberty for the landlord to do so. The question of any balance due in respect of the occupation fee is to be dealt with by the Tribunal at first instance in the event the landlord makes an application to fix the occupation fee. 10. While there has been a denial as procedural fairness in application RT 14/54284 as found above, there is no utility in remitting these proceedings for rehearing by the Tribunal as the residential tenancy agreement is otherwise terminated on 13 February 2015. Accordingly, it is appropriate to set aside the orders made in application RT 14/54284 and to dismiss this application. 11. Finally, in respect of the tenant's applications, application RT 15/03537 and RT 14/57450 the tenant has been unsuccessful in his appeal. In relation to application RT 15/0537, the only challenge was based on bias. In relation to application RT 14/57450, where the tenant seeks an order that the landlord effects repairs, the appellant has not shown any relevant error of the Tribunal and as the tenancy is being terminated, such an order should not be made in any event. Therefore, the orders made in those proceedings on 13 February 2015 should remain and the appeal in relation to these applications should be dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Appeal AP 15/06134 in relation to application RT 15/03180 is dismissed. 2. Appeal AP 15/10194 is allowed in part. 3. The orders made in application RT 14/54284 are set aside and the application is dismissed. 4. The orders made in application RT 15/03180 and RT 15/04667 are set aside and in lieu thereof the Appeal Panel makes orders in the form of Annexure A. 5. The stays made in appeals AP 15/06134 and AP 15/10194 are otherwise lifted. 6. The Appeal Panel directs the landlord to apply the following amounts in reduction of the rent payable to order 7 in Annexure A: 1. $5800.00 paid pursuant to the stay order made 13 February 2015 2. $3400.00 (being part of the amount of $4800.00) paid pursuant to the stay order made 26 February 2015 the stay granted; 1. The balance of the amounts paid by the tenant pursuant to the stay orders are to be applied as follows: 1. firstly in reduction of the amount payable pursuant to order 7 in Annexure A; and 2. secondly in reduction of any occupation fee payable pursuant to order 5 in Annexure A. 1. Any application to determine the occupation fee pursuant to order 6 of Annexure A is to be listed before the Tribunal in the Consumer and Commercial Division for hearing; 2. Save as provided above, leave to appeal is refused and the appeals are dismissed. Annexure A- Form of orders In respect of applications RT 15/03180 and RT 15/04667 the Tribunal makes the following orders: 1. The Residential Tenancy Agreement is terminated in accordance with: * s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement for failure to pay rent in accordance with agreement; and * s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement. 2. The Tribunal is not satisfied in accordance with s 89(5) that the tenant has frequently failed to pay rent owing for the residential premises. 3. The Residential Tenancy Agreement is terminated on 13 February 2015 and possession is to be given to the landlord on the date of termination. 4. The order for possession is suspended until 20 July 2015. 5. The tenant shall pay the landlord a daily occupation fee at the rate of $100.00 per day from the day after the date of termination, namely from 14 February 2015 until the date vacant possession is given to the landlord. 6. 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. 7. The tenant, JIM BOGOEVSKI, ###, is to pay the landlord, GLORIDHARMA STRICKLANDS, ###, the sum of $11,400.00 on or before 22 June 2015. 8. These orders take effect on 13 February 2015. 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: 06 July 2015