Fraser v Argyle Community Housing [2017] NSWCATAP 27

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fraser v Argyle Community Housing [2017] NSWCATAP 27 Hearing dates: 25 January 2017 Date of orders: 09 February 2017 Decision date: 09 February 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President C Fougere, Principal Member Decision: (1) The appeal is dismissed; and (2) The order made on 25 January 2017 staying the operation of the possession order made on 13 October 2016 is lifted Catchwords: Centrelink entitlement Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act, 2010 Cases Cited: Di Salvo v Leung [2014] NSWCATAP 44 Category: Principal judgment Parties: Carole Fraser (Appellant) Argyle Community Housing (Respondent) Representation: Ms M E Tapp (Tenancy Manager) (Respondent) Ms C Hughes (Team Leader) (Respondent) File Number(s): AP 16/48958 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 13 October 2016 Before: J Lennard, General Member File Number(s): SH 16/19819

reasons for decision

Background 1. This appeal arises out of two decisions made in the Consumer and Commercial Division of the Tribunal. The appellant is the tenant under a social housing residential tenancy agreement and the respondent is the landlord and a social housing provider (see Pt 7 of the Residential Tenancies Act, 2010 (RT Act)). The parties had entered into the residential tenancy agreement some years ago. We will refer to the appellant as the tenant and to the respondent as the landlord. 2. A brief explanation gives the background to this appeal: 1. The landlord commenced an application in the Tribunal on 27 April 2016 seeking an order for the payment of an amount of money and a termination order by reason of an alleged breach of the residential tenancy agreement for the non-payment of rent; 2. On 20 May 2016 the application came before the Tribunal at which time consent orders were made. Order 1 stated that by consent the tenant was to pay the landlord the sum of $957.22 for rent owed "under the terms of the residential tenancy agreement for the period from 1 May 2016 to 20 May 2016". The order went on to say that the payment for "rent owed is due by instalments of not less than $40.00 per week, first payment 27 May 2016". Order 2 stated that by consent the tenant was to pay the landlord rent "presently $330.00 per week, next payment due on 27 May 2016 and once the arrears are paid in full to pay rent in accordance with the residential tenancy agreement". Order 3 stated that by consent if the orders in respect of rent are not complied with then at any time before 28 November 2016 the landlord may request the relisting of the application to determine whether the tenancy agreement should be terminated; and 3. The proceedings were relisted and were heard by the Tribunal on 13 October 2016 at which time orders were made terminating the tenancy agreement by reason of the tenant's breach of the agreement by failure to pay rent in accordance with the agreement. An order was made requiring the tenant to give possession and that order was suspended until 27 October 2016. There was an order for the tenant to pay a daily occupation fee from the date of termination (14 October 2016) until the date vacant possession is given. There was a further order that the tenant was to pay to the landlord the sum of $2,139.34 on or before 27 October 2016. That amount was described as "rent arrears". 1. By a Notice of Appeal received by the Tribunal on 8 November 2016, the tenant appealed the decision of 20 May 2016. The form of the Notice of Appeal requires the tenant to indicate what orders the Tribunal should make. One order which was included by the tenant in that part of the form was to "remain in my tenancy". Accordingly, we have taken the Notice of Appeal to be also an appeal from the decision of the Tribunal made on 13 October 2016. 2. If the appeal is from the decision of 20 May 2016 then the appeal is well out of time: see r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) which gives 14 days to appeal and there has been no application to extend the time under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). If the appeal is also an appeal from the decision of 13 October 2016 the appeal is still out of time. The decision was delivered on 13 October 2016 and therefore the appeal should have been lodged on 27 October 2016. Again no application to extend time under s 41 of the NCAT Act has been made by the tenant.