Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Docherty & Anor v Ballouk [2016] NSWCATAP 126 Hearing dates: 6 June 2016 Date of orders: 16 June 2016 Decision date: 16 June 2016 Jurisdiction: Appeal Panel Before: A Coleman SC , Senior Member R Perrignon, Senior Member Decision: 1. Leave to appeal refused 2. Appeal dismissed 3. Stay granted on 5 April 2016 and extended on 12 April 2016 is discharged. Catchwords: APPEAL: application to set aside consent orders; no evidence or basis to do so; LEAVE TO APPEAL: no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Cases Cited: Collins v Urban [2015] NWSCATAP 17 Harvey v Phillips (1956) 95 CLR 235 Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269 Category: Principal judgment Parties: Alanna Docherty, Sharon Docherty & Tyrone Dabbousi – Appellants Mohamed Ballouk - Respondent Representation: Counsel: N/A Appellants appeared by Ms A Docherty Solicitors: Mr Essey - Respondent File Number(s): AP 16/15998 Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer and Commercial Division Date of Decision: 26 February 2016 Before: G Sarginson, General Member File Number(s): RT 16/05391 REASONS FOR DECISION Background 1. This is an internal appeal from a decision of the Consumer Commercial Division of the Tribunal made on 26 February 2016. 2. The order the subject of appeal is a consent order which terminated a residential tenancy agreement between the appellant tenants and the respondent landlord and gave possession of the premises to the landlord. 3. The appellant tenants now seek leave to appeal to set aside the consent order. They submit that the order was made when they were under stress and did not understand its effect. 4. For the reasons which follow, we refuse leave to appeal and dismiss the appeal. The Proceedings Below 1. What we say about the proceedings below is what we are able to glean from the notice of appeal, the reply to the appeal and the oral submissions made to the Appeal Panel. There is no other material before us despite directions made by the Appeal Panel for the filing and service of any material which the parties wish to rely on and submissions. 2. The proceedings below were commenced by the tenants against the landlord seeking various orders under the Residential Tenancies Act, 2010. Those orders included orders for compensation, orders with respect to rent reduction, orders for repairs and orders that the termination notice issued by the landlord was of no effect as it was retaliatory. 3. On 26 February 2016 the parties attended the Tribunal at Liverpool. As is usual in these types of matters the parties attended a conciliation. Mr McManus was the conciliator. At that time it was apparently agreed that, by consent, the tenancy agreement would be terminated on 2 April 2016 and possession given to the landlord on that date. We have been told that the conciliation agreement was signed by the parties and the conciliator. That agreement is not before us. 4. Other orders were made on that day, including a consent order for the landlord to repair the sewage system at the premises on or before 2 March 2016. There were also directions made to ready the matter for hearing. The tenants' claim pursuant to section 115 of the Residential Tenancies Act 2010 (that is, the application for an order declaring the termination notice as being of no effect) was withdrawn. The Notice of Appeal 1. By their Notice of Appeal the appellant tenants seek to challenge the order made by consent that vacant possession by given on 2 April 2016. The appellants now seek a stay until another property is found for them to live in. The orders made on 26 February were stayed on 5 April 2016 and on 12 April 2016 that stay was extended pending further order. 2. The grounds of appeal are that: Tenants agreed to move on 2/4/16 while under duress and stress due to not only to the situation they were living in and having the sheriff attend the property every day one week prior to the NCAT hearing. Tenants did not receive any advice as Metro Assist consultant could not attend hearing although she had booked to attend, tenants believed they could extend the vacate date if required. Two tenants living on premises suffering from depression (existing condition) and both receiving counselling. 1. The orders that the appellants seek are that : We would request leave to stay until another property is found. Tenants are currently waiting for advice from agents re success of recent applications 1. The appellant tenants accept that they require leave to appeal and state that they should be granted such leave because of the alleged stress of living conditions, having a sheriff at the property every day, dealing with depression, and not being correctly aware or informed about the decision they made when they consented to the orders without being aware of all facts and/or ramifications. 2. As observed, directions were made on 12 April 2016 for the lodging and service by the appellants of any evidence provided to the Tribunal below which they intended to rely on, any additional evidence they wanted to rely on and submissions by 10 May 2016. This was not done. 3. Those directions also provided for the respondent to reply to that material by 24 May 2016. That was not done because, so it was said, there was nothing to reply to. Relevant Principles 1. The Appeal Panel has recently considered the applicable principles on an application to set aside consent orders which terminated a residential tenancy on the basis that they were agreed to by the tenant in circumstances where he was acting under pressure or duress: Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269, see particularly at [33]-[49]. In summary, and without citing all of the authorities referred to, the following principles may be extracted: 1. Section 59 of the Civil and Administrative Tribunal Act gives the Tribunal power to make consent orders, including dismissing the proceedings, where the consent orders give effect to any agreed settlement reached by the parties which are signed by the parties. 2. Grounds alleging that consent orders were entered into under pressure where the party ought to have been given an opportunity to be heard may raise questions of law, including: 1. whether the party was denied procedural fairness or; 2. whether there was some procedural defect relating to the making of the consent orders in the circumstance of the case; or 3. whether the Tribunal miscarried in the exercise of its discretion because it failed to consider a mandatory consideration; or 4. whether the Tribunal exceeded authority in making consent orders in the absence of a jurisdictional fact. 1. In exercising any discretion under s 59, the Tribunal must take into account the interests of any "vulnerable person" which includes a person who is "totally or partially representing himself or herself in proceedings because he or she is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled": Rule 37 Civil and Administrative Tribunal Rules 2014, and a failure to do so would be an error of law; 2. The Tribunal may err in law by making consent orders in the mistaken belief that the settlement agreement was untainted by undue influence or other conduct or circumstances that may vitiate the consent. Arguably, the issue of whether there was an "agreed settlement" is a jurisdictional fact on which the discretion under s 59 (1) is necessarily based, and in making the orders, the Tribunal was by implication, making a finding which may have been erroneous or mistaken, depending on whether the underlying agreement can properly be challenged. 3. A party who seeks to set aside an agreement (or consent orders) must provide evidence of the facts which support that ground. 4. The grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based, for example, illegality, misrepresentation, nondisclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like: Harvey v Phillips (1956) 95 CLR 235 at 243-4. Such grounds can also include unconscionable conduct by the party which stands to receive the benefit of the agreement: Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 at [11]-[14]. Consideration and disposition of the Appeal 1. Subject to a consideration of the application of the abovementioned principles to assess whether a question of law is raised, prima facie, the Notice of Appeal does not raise any questions of law. For that reason, leave is required: cl 12 Sch 4 CAT Act. The principles on which leave to appeal is granted are set out in Collins v Urban [2015] NWSCATAP 17 at [66]-[84]. 2. It is important to note that the Notice of Appeal does not expressly seek to set aside the Consent Order in so far as it terminates the residential tenancy agreement. Rather, it seeks to challenge that part of the order that the tenants vacate the property and give possession to the landlord. The matters said to support an extension of the suspension of the possession order are that the tenants were stressed at the time the consent orders were made, did not have advice and did not understand the effect of what they were agreeing to. 3. It should be observed that at the hearing before the Appeal Panel, the tenants did seek to suggest that they thought they had agreed to something different to what is recorded in the Consent Orders, namely, that provided the rent was up to date, or paid two weeks in advance, they could remain in the premises until they found a new property. The landlord objected to this new ground of appeal, noting that it had never been raised prior to the hearing. We are not satisfied that leave should be given to the tenant appellants to rely on that new ground, which is not in the Notice of Appeal. It would cause prejudice to the respondent, in that it would otherwise have had an opportunity to put evidence of the actual agreement before the Appeal Panel, but in the absence of such a ground did not do so. In any event, the appellants could not refer to any material that was before the Tribunal below, nor did they seek to put any evidence before the Appeal Panel, which would support such a ground. Even if we were minded to grant leave for them to rely on this ground, there was no evidence to support it and it was bound to fail. 4. It is also important to note that, as we have commented, there was no material before the Appeal Panel save for the Notice of Appeal, the Reply to Appeal and an Application for a Stay lodged by the appellants. We did not even have the benefit of seeing the signed conciliation document which we were informed contained the agreement the subject of the consent orders. In the absence of evidence to the contrary we assume, based on what we were told, that such a document was signed and it did reflect an agreement as set out in the consent orders. In the circumstances, there is no issue that the Tribunal had jurisdiction pursuant to s 59 of the CAT Act to make those orders. 5. With respect to the grounds of appeal as set out in the Notice of Appeal, there is no evidence to support any conclusion that the tenants were "vulnerable persons" so as to warrant consideration of their interests by the Tribunal in accordance with r 37 of the CAT Rules. Whilst the tenants alleged they were stressed and depressed by the sheriff having regularly attended their premises and they not having anywhere else to live, there is no medical evidence to support such allegations (even if there was evidence to support the factual matters asserted). It can readily be accepted that the tenants might have been distressed by being in dispute with their landlord and by the visits of the sheriff, but being distressed or subject to "stress" without more does not prove that the appellants were vulnerable persons as defined, or otherwise acting under a disability. 6. In any event, it was accepted that before entering into the consent orders there had been a conciliation with Mr McManus and there is no suggestion that he, or the landlord, had placed any pressure or exerted any influence, let alone undue influence, on the tenants to reach the agreement. There is no evidence on which we could conclude that there is any basis to set aside the agreement giving rise to the consent orders. 7. Accordingly, no question of law arises on the appeal. There is no basis for granting the appellants leave to appeal, in order either that they might seek to set aside the consent orders (so that there is no termination) or vary them (so that they can remain in possession until they find alternative accommodation). There is no evidence that they may have suffered a significant miscarriage of justice in the Tribunal below. We would refuse leave and dismiss the appeal. 8. It is appropriate to make some further observations. Firstly, during the oral submissions made by the appellants, it was continually said that they wished to leave the subject premises. They said alleged sewerage problems at the home were effecting their health. The problem is that they have nowhere else to go. They submitted that they could not find another place to rent because the rental ledger relied upon by the landlord for supporting termination of the tenancy was inaccurate and showed the rent in default rather than the rent being in credit. We make no findings upon these matters as there was insufficient material before us to do so even if it was necessary. Even if the ledger was inaccurate, as the tenants submitted, this would make no difference to our conclusions. Such an inaccuracy cannot of itself effect the validity of the settlement agreement reached as embodied in the consent orders. 9. Secondly, each of the tenants and the landlord expressly said that they want the arrangement whereby the tenants are living at the property to end. In such circumstances, the Appeal Panel attempted to see if a solution to the problem could be reached. The matter (being the balance of the tenants' application in the Tribunal below) was due to be heard by the Tribunal on 9 June. The Appeal Panel urged the parties to use the services of the mediator at the Tribunal to resolve their disputes so that their mutual aim of the tenants vacating the property could be achieved. Orders 1. For the reasons above the orders we make are: 1. Leave to appeal is refused. 2. The appeal is dismissed 3. The stay ordered on 5 April 2016 and continued on 12 April is discharged. ********** 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: 16 June 2016