Naumovski v Mission Australia Housing [2016] NSWCATAP 71

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Naumovski v Mission Australia Housing [2016] NSWCATAP 71 Hearing dates: 17 December 2015 Date of orders: 31 March 2016 Decision date: 31 March 2016 Jurisdiction: Appeal Panel Before: D Patten, Principal Member R Titterton, Senior Member Decision: (1) Leave granted to appeal out of time. (2) Appeal dismissed. (3) Orders 1 and 2 made by the Tribunal below confirmed to take effect immediately. Legislation Cited: Civil and Administrative Tribunal Act Category: Principal judgment Parties: Anita Naumovski (applicant/appellant)

Mission Australia Housing (respondent) Representation: Counsel: Ms M Kennedy (appellant) Ms J Thomas (respondent) File Number(s): AP 15/59951 Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer and Commercial Division Date of Decision: 24 September 2015 Before: P French, General Member File Number(s): SH /44080

REASONS FOR DECISION 1. This is an appeal from an order made by consent by the Tribunal on 24 September 2015 in the following terms: 'On 24-Sep-2015 the following orders were made: 1. By consent, the Residential Tenancy Agreement is terminated in accordance with: •s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. •keeping animals on the premises without the landlords consent; by failing to keep the premises reasonably clean; and by being responsible for the presence of an infestation of pests. 2. By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. By consent, the order for possession is suspended until 01-Oct-2015 4. By consent, if the tenant removes all pets, except the permitted two cats, removes and disposes of all rubbish and clutter, and eliminates all pests and odours within seven days, the landlord will reinstate the tenancy. 5. By consent, the tenant will allow the landlord access to the premises on 2 October 2015 at 11:00am to confirm that Order 4 has been carried out. 6. By consent, if Order 4 has not been carried out to the reasonable satisfaction of the landlord by 1 October 2015 the landlord will not reinstate the tenancy, and it will seek a warrant for possession of the premises.' 1. The notice of appeal sought to challenge order 6 on the grounds: "The order is procedurally unfair as the termination is at the landlord's one of the party's (sic) to the proceedings discretion. The tenant did not understand the consequences of consenting to this order and felt pressured to agree as her tenancy was being threatened." 1. Subsequently, the grounds of appeal were expanded in effect to challenge the orders made on 24 September 2015 in their entirety on the basis that the appellant who was unrepresented at the hearing was not capable of understanding their effect. It was also contended that orders 4 and 6 were beyond the jurisdiction of the Tribunal. 2. At the hearing of the appeal both parties were represented, the appellant by Ms M Kennedy, Tenants Advocate and the respondent by Ms J Thomas senior legal counsel for the Mission Australia Group. 3. An express power for the Tribunal to make orders by consent is contained in s59 of the Civil and Administrative Tribunal Act. In this case the orders made by the Tribunal purportedly reflected the terms of an agreed settlement in writing. That agreement was in these terms: 'Parties agree to terminate the tenancy on the 1 October 2015 Parties agree that tenant will allow access to the premises on 2 October at 11:00am to confirm that the orders have been complied with. Tenant is to remove all pets except 2 cats. Tenant is to remove all rubbish / clutter and dispose of it accordingly. Tenant is to eliminate all smell / bad odour. Failure to follow through on any of the above will result in the eviction procedure in accordance to the orders.' 1. The terms of the agreement create some confusion as to what the parties intended between consenting to orders on the one hand and agreeing between themselves as to obligations to be performed on the other hand. The Tribunal saw fit to translate into orders all the terms of the agreement but in truth what purports to be order 4 as Ms Kennedy submitted may well have been beyond the jurisdiction of the Tribunal. However the Terms of order 4 are reasonably clear and even if it is struck down as an order, it reflects the agreement of the parties as to their future conduct ie: the tenant was to carry out the obligations within 7 days and if she did so the landlord would grant her a new tenancy. It is not difficult to imply an element of reasonability into the obligations of the tenant. As Ms Kennedy submitted in absolute terms, order 4 imposed an impossible obligation upon her client. 2. Purported order 6 we think should be regarded simply as evidencing an agreement between the parties. It expressly introduces the concept of reasonability on the part of the landlord and on the face of it imposes no onerous or unreasonable burden on the tenant. 3. Although the making of consent orders beyond jurisdiction constitutes error of law by the Tribunal below, nothing in our view turns upon this error in the circumstances of this case. The orders challenged can be read as reflecting contractual obligations entered into between the parties. 4. Documents before us indicate a long history of conflict between the appellant and the respondent in respect of the appellant's tenancy of the premises. The conflict has concerned arrears of rent, loud music, excessive noise including late at night accumulations of garbage, the keeping of cats and offensive odours. On several previous occasions there have been proceedings in the Tribunal against the tenant some of which resulted in terminating orders. 5. The tenant was well experienced in the procedures of the Tribunal and there is no reason to suppose that she did not understand the terms of the agreement she signed on 24 September 2015. Incidentally, it appears that the agreement was produced with the assistance of a conciliator albeit unnamed. 6. We do not think that anything inequitable occurred on 24 September 2015 calling for our intervention. That being said, and in light of our conclusion that any error of law was of no consequence, we are of the opinion that the appeal should be dismissed. 7. It should be added that at the hearing of the Appeal and subsequently the respondent sought to put before us evidence of conduct of the appellant subsequent to 24 September 2015. In our opinion all this evidence should be rejected. However, there is no evidence that the respondent acted unreasonably in concluding, as apparently it did, that the appellant failed to comply with the obligations reflected in order 4 and thus exposed herself to the issue of a warrant for possession. 8. The notice of appeal was lodged well out of time. In the circumstances, including the exposure of a possible error of law however, we will extend the time appropriately.