Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vorhauer v NSW Land and Housing Corporation [2017] NSWCATAP 159 Hearing dates: 16 June 2017 Date of orders: 26 July 2017 Decision date: 26 July 2017 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member A Bell SC, Senior Member Decision: 1 The appellant has leave to appeal the decision of the Tribunal made 2 February 2017. 2 The appeal is dismissed. 3 Order 11 made 19 May 2017, preventing the respondent from reletting or parting with possession of the residential premises, is discharged. Catchwords: ADJOURNMENT – exercise of discretion – respondent an inpatient in hospital – no medical certificate. APPEAL – termination order previously made – rent arrears – tenant evicted prior to hearing of appeal – just, quick, and cheap resolution of real issues in dispute – error in failing to adjourn – unpaid rent arrears and no evidence of capacity to pay rent or arrears – no utility in setting aside order and remitting for rehearing. Legislation Cited: Civil and Administrative Tribunal Act, 2013 Civil and Administrative Tribunal Regulation, 2013 Civil and Administrative Tribunal Rules, 2014 Residential Tenancies Act, 2010 Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 The University of Wollongong v Metwally and Ors (1984) 158 CLR 447; [1984] HCA 74 Category: Principal judgment Parties: Racheal Vorhauer (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: K Madgwick (Respondent) Appellant and Ms F Vorhauer (by phone) File Number(s): AP 17/20942 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 1) 2 February 2017 2) 3 April 2017 Before: 1) G Sarginson, Senior Member, 2) J Lennard, General Member File Number(s): 1) SH 16/52187 2) SH 17/09402 reasons for decision Introduction 1. The appellant was a tenant in residential premises at Ashmont. 2. The respondent was the landlord who had entered into a residential tenancy agreement with the appellant dated 27 January 2012 (agreement). Because the respondent is a social housing provider within the meaning of s136 of the Residential Tenancies Act, 2010 (RT Act), the agreement is a social housing tenancy agreement within the meaning of the RT Act. 3. On 30 November 2016, the respondent commenced proceedings in the Tribunal to terminate the agreement on the grounds that the appellant had failed to pay rent. 4. The application for termination was listed for hearing on 2 February 2017. On that day, the Tribunal terminated the residential tenancy agreement, made an order for possession and suspended the order for possession until 23 February 2017. The Tribunal also made an order for the appellant to pay the respondent an amount of $855.36 being unpaid rent for the period for November 2016 until 2 February 2017. 5. The appellant did not attend the hearing, having sought an adjournment which was refused. The proceedings were determined in her absence. 6. On 23 February 2017, the appellant filed an application to set aside the orders made on 2 February 2017 being application SH 17/09402. Orders were made to stay the order for possession on 8 March 2017 pending determination of the application to set aside. 7. The application to set aside was dismissed by order of the Tribunal made 3 April 2017. The Tribunal made orders and provided reasons as follows: 1 The application is dismissed because no medical evidence that the tenant was in hospital on the day of the hearing or that she was unable to attend the hearing due to medical reasons or hospitalisation. 2 The application to set aside does not clearly articulate the case that would have been put to NCAT by the tenant. The attached documents are not submissions to NCAT nor do they address the application for termination considered in SH 16/52187. 3 The stay order made in matter SH 16/52187 on 23/2/17 is lifted. 1. On 5 April 2017, following dismissal of the set aside application, the respondent applied to extend the time in which to issue a warrant for possession. On 20 April 2017 the Tribunal extended the time and a warrant for possession was issued under cover of a letter dated 20 April 2017. 2. On 3 May 2017 the appellant filed a Notice of Appeal to commence the present appeal proceedings. Notice of Appeal and history of appeal proceedings 1. The Notice of Appeal challenged the decision of the Tribunal made on 3 April 2017, which dismissed the appellant's application to set aside the orders for termination and possession made on 2 February 2017 (February orders). The Notice of Appeal did not directly appeal the February orders. The orders challenged were those made in dismissing the set-aside application. However, the submissions provided in support of the appeal do challenge the February orders. 2. The grounds of appeal are as follows: 1. The orders were wrong and a lie. The Tribunal failed to have regard to photographs showing the appellant's leg which were taken from a hospital bed and failed to have regard to the evidence of the respondent's representative at the hearing in February that the appellant was in hospital. 2. The Tribunal failed to have regard to the appellant's request that her mother, Florence Vorhauer be her legal representative and failed to have regard to the submissions filed. 3. The appellant was denied the opportunity of having 28 days to appeal the order to lift the stay. 4. No submissions were made by the respondent seeking dismissal of the appellant application to set aside. 5. The Tribunal did not have jurisdiction by reason of s109 of the Constitution based on a decision of the High Court in The University of Wollongong v Metwally and Ors (1984) 158 CLR 447;[1984] HCA 74, a matter to which we will return below 6. The appellant was waiting on a decision regarding an invalid pension and time to appeal should be extended. 1. The appellant also filed an application for stay. That application raised a challenge to the jurisdiction of the Tribunal on the basis of the decision in Metwally. The application for stay did not seek any urgent ex parte orders. 2. Pursuant to directions made on 15 May 2017, the appeal and the application for stay were initially listed for call over and hearing of the stay application on 16 May 2017 at 2:15 pm. These directions required the appellant to file and serve any evidence and submissions by 12 noon on 16 May 2017. 3. By this time, the warrant for possession had already been executed by the sheriff. This occurred on 11 May 2017. 4. On 16 May 2017, the Appeal Panel made further directions for the provision of evidence in support of the stay application and for the parties to file submissions. The application for stay was adjourned for further hearing on 19 May 2017. In doing so, the Appeal Panel made an order in the following terms: The Tribunal orders the respondent is not to take steps to relet or part with possession of the premises. 1. On 19 May 2017, the application for stay was heard by the Appeal Panel. The appellant sought an order that she be let back into possession of the premises pending a determination of the appeal. The Appeal Panel did not make that order. However, the Appeal Panel did extend the order preventing the respondent from taking steps to relet or part with possession of the premises pending determination of the appeal. The Appeal Panel also made directions for the preparation of the hearing of the appeal and to allow the appellant access to the property, if required, for the purpose of collecting any papers and other information relevant to this appeal. 2. The directions in relation to preparation of the appeal included directions that the appellant provide a statutory declaration or statement setting out the amount of rent outstanding (if any) as at 2 February 2017 and as at 3 May 2017 (being the date the Notice of Appeal was filed) and details of her capacity to pay rent. Submissions and hearing of the appeal 1. The parties provided written and oral submissions at the hearing of the appeal on 16 June 2017. 2. The appellant appeared by telephone with her mother, Florence Vorhauer. Both the appellant and her mother made oral submissions as did the appellant's sister Lisa, who also participated in the hearing by telephone. 3. The effect of these submissions can be summarised as follows: 1. The appellant was unable to attend the hearing on 2 February 2017 because she was an inpatient at hospital in Cootamundra. This was a fact known to the respondent and to the Tribunal at that hearing on 2 February 2017. 2. The appellant had been paying rent from her Centrelink payments fortnightly however she had been unable to do so in recent times, the last Centrelink payments having been paid before Christmas. 3. The appellant had been in hospital for some time since before Christmas, first at Wagga Wagga and then at Cootamundra. She did not have any income and had needed to obtain the assistance of her son Mark to make an application to Centrelink for a pension. At the time the application for termination was heard by the Tribunal the appellant had been trying to resolve a dispute with Centrelink concerning her entitlement to a Disability Support Pension. 4. Having regard to the matters set out above, Tribunal had been in error in failing to adjourn the proceedings on 2 February 2017 and the Tribunal was in error in dismissing her application to set aside those orders. 1. Finally, the appellant asserted that the sheriff had improperly failed to take control of her possessions and/or that the respondent might otherwise dispose of her property in a manner which was not authorised. 2. The respondent also filed written submissions and made oral submissions at the hearing of the appeal. 3. The respondent submitted that the Metwally decision had no relevance to the present proceedings and that the Tribunal had jurisdiction to determine whether or not the tenancy should be terminated under the RT Act. The respondent said there was no inconsistency between state and federal legislation to which s109 of the Constitution might apply. The respondent also said there was no basis for the appellant's submission that the sheriff did not have authority to execute the warrant for possession. 4. The written submissions included evidence concerning unpaid rent in respect of the tenancy. This material was provided pursuant to the directions made by the Appeal Panel on 19 May 2017. 5. Included in the respondent bundle was a statement from Ms Hook, an advocate and employee of the Department of Family & Community Services (FACS), whose responsibilities include "leading and supervising a team of staff in the management of public housing tenancies". Ms Hook provided the following evidence: 1. on 2 February 2017 the rent payable under the residential tenancy agreement was $65.90 per week. This rent increased to $66.75 per week on 10 April 2017. 2. Rental arrears have accrued since 12 September 2016. Since that date the only payments received were $131.80 paid on 22 November 2016 and $263.60 paid on 7 December 2016. 3. On 2 February 2017 the amount of unpaid rent was $855.34. 4. On 3 May 2017 the amount of rent owing was $1705.54. 1. Annexed to Ms Hook's statement was a copy of the rent ledger for the premises. 2. The respondent said that the rent had been in arrears for a substantial period of time and that representatives of the respondent had been seeking to resolve with the appellant the question of payments from Centrelink "in the hope that by the time of the hearing on 2 February 2017, a repayment arrangement would be in place". 3. The respondent noted that the appellant had discharged herself from hospital and had made the application to set aside the February orders on 23 February 2017. 4. In respect of the set aside application, the respondent said it "took no part in the set aside application proceedings". However, the respondent noted that the documents submitted by the appellant in support of the set aside application included documents that the appellant's application for a Disability Support Pension (DSP) had been rejected. 5. The respondent said that following the Tribunal dismissing the application to set aside the February orders on 3 April 2017, it applied for an extension of time to apply for a warrant for possession on 5 April 2017. This application was listed on 20 April 2017 for hearing. In relation to this application the respondent says that Mr McKee, another representative of FACS, had attempted to contact the appellant and had sent her messages to confirm the hearing of the application to extend the time to issue the warrant for possession. In his statement provided for the purpose of this appeal dated 18 May 2017 (respondent bundle filed 18 May 2017 page 13 and following) Mr McKee says at paragraph 17 of his statement : On 18 April 2017 at 14:49 I also sent a text message to Ms Vorhauer's phone. Despite my attempts to contact Ms Vorhauer, on 20 April 2017 and prior to the hearing of the application for the warrant, I went to the Premises with my colleague, Judy Nancarrow. I spoke to Ms Vorhauer who confirmed she had received my messages but had not responded. I advised Ms Vorhauer the Corporation was seeking a warrant for possession and if she was aware there was a hearing in NCAT that afternoon. Ms Vorhauer said she was aware of the hearing but would not be attending. She further stated that she did not owe any rent because the Corporation could not charge her rent, so she was not in arrears and the process was not valid. I advised Ms Vorhauer that FACS Rental Charging Policy required her rent to be assessed as if she were receiving a minimum income of Newstart and her ability to pay rent would be assessed on that basis. Ms Vorhauer did not respond. 1. The respondent relied on the above factual material in making the following submissions: 1. The appeal has been brought out of time. In so far as the appellant seeks to challenge the decision made in February, the appeal is more than 2 months out of time. Insofar as the appellant seeks to challenge the refusal of the Tribunal to set aside the February orders, that application is "some 14 days out of time". 2. Any error made in relation to the decision in February was "remedied by the hearing of the set aside application". This was because the determination made on the set aside application "was, for all intents and purposes in these circumstances, a rehearing of the adjournment application". 3. Alternatively, the respondent says that the application originally made for an adjournment of the February hearing was not on the grounds that the appellant could not obtain alternative representation and was in hospital nor that she sought to contest the substance of the respondent's application for termination based on non-payment of rent. Rather, the adjournment was sought "to allow the appellant more time to obtain Social Security benefits to pay the rental arrears". Consequently, the appellant says there was no miscarriage in the exercise of discretion by the Tribunal in refusing the adjournment application of the type referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40. 4. The respondent said in determining the set-aside application that the Tribunal needed to be satisfied under Regulation 9 of the Civil and Administrative Tribunal Regulation, 2013 that the appellant's absence resulted in her case not adequately being put. The complaints concerning any inability of the appellant to obtain a Disability Support Pension did not provide a "meaningful answer" to the original application for termination. 1. Further, and in any event, the respondent submitted that even if the grounds of appeal had been made out, the appellant has "not demonstrated any immediate or imminent ability to pay rent or the rental arrears despite being given an ample opportunity to do so". 2. In these circumstances the respondent submitted the appeal should be dismissed. Consideration 1. The Appeal Panel has been provided with a considerable amount of paperwork from the appellant and her mother in support of this appeal. 2. While the Notice of Appeal seeks to challenge the decision to dismiss the appellant's set aside application, the submissions received in support of the appeal and at the hearing appear to challenge both the February orders and the decision to refuse the appellant's application to set aside the February orders. It also raises the jurisdictional issue by reference to the Metwally decision. 3. It is convenient to deal with the jurisdictional challenge first. 4. The decision of the High Court in Metwally concerned the invalidity of the Anti-Discrimination Act, 1977 (NSW) because it was inconsistent with the Racial Discrimination Act 1975 (Cth). In that case, the High Court concluded that whenever State legislation is inconsistent with the Commonwealth legislation the invalidity is by reason of s109 of the Constitution. 5. In the present case, no relevant State and Commonwealth legislation to which this principle might apply has been identified by the appellant nor has the Appeal Panel been able to identify any such legislation. Accordingly, this ground of appeal fails. 6. In relation to the other matters raised, there are three issues for resolution: 1. Was the Tribunal in error in failing to adjourn the hearing on 2 February 2017 when the termination order was made? 2. Was the Tribunal in error in failing to grant the appellant's application to set aside the February orders? 3. If yes to (1) or (2), should the February order be set aside and the matter remitted for rehearing? Was the Tribunal in error in failing to adjourn the hearing on 2 February 2017 when the termination order was made? 1. The respondent application for termination was filed on 30 November 2016. The application sought a termination order and an order for the payment of rental arrears then totalling $516.45. 2. The application had been previously listed for hearing on 20 December 2016. The matter was adjourned for hearing on a date to be fixed, the parties apparently having settlement discussions. This was recorded by the Tribunal in its directions (respondent's May bundle at page 4). It does not appear any directions were made at this time for the filing and service of evidence by either party. 3. The matter was then listed on 2 February 2017 for hearing. The appellant applied for an adjournment of that hearing, having provided to the Tribunal a copy of a letter dated 1 February 2017 addressed to Mr Daryl Maguire. That document is in the respondent's May bundle at 117. 4. The Tribunal dismissed the adjournment application and gave reasons as follows: 1. The application by the respondent to adjourn is refused because: a) there is no evidence to support the application. Reasons The tenant's mother forwarded a facsimile to the local Member of NSW Parliament dated 1 February 2017 stating that the tenant was in dispute with Centrelink regarding whether or not the tenant should be paid a disability pension, or Newstart allowance. This dispute has been ongoing for a number of months. The tenant's mother lives in Armidale. The landlord opposed the adjournment application on the basis that rent arrears are very significant (currently 91 day's arrears) and the matter had been adjourned previously in the Tribunal. The tenant has not paid rent since 7 December 2016, when a rent payment was made by a charity organisation to assist the tenant. The landlord submitted that the tenant's dispute with Centrelink could take months to resolve, and no payments of rent were being made because the tenant has told the landlord she has no income. The landlord gave evidence that in the period between December 2016 and late January 2017 the tenant told a client service officer that she was hospitalised (first in Wagga Wagga hospital, then in Cootamundra hospital), and in late January 2017 an enquiry was made with Cootamundra hospital in which the hospital stated the tenant was currently a patient. However, no medical evidence has been provided to the landlord, or the Tribunal, that the tenant is unable to attend the Tribunal for the hearing due to medical reasons or hospitalisation. In the absence of such medical evidence, I am not satisfied that the proceedings should be adjourned, and the reason given by the tenant for an adjournment (the ongoing dispute with Centrelink) is not an adequate reason to adjourn the proceedings, considering the guiding principle of the Tribunal under Section 36 of the Civil and Administrative Tribunal Act 2013. I am satisfied the tenant is aware of the hearing and has had a reasonable opportunity to appear and the matter should be dealt with ex parte. 1. The written submissions provided by the respondent indicate that the respondent was aware the appellant had been in hospital as an inpatient since some time in December 2016. Certainly the document entitled "Briefing Note" attached to the statement of Ms S O'Leary, a client service officer working for FACS at Wagga Wagga, dated 17 May 2017, confirms that another representative of the respondent, Ms Taylor, knew the appellant was still in hospital on 27 January 2017: see respondent's bundle filed 13 June 2017 at p47. 2. These submissions and the evidence contained therein corroborate the evidence provided by the respondent at the hearing on 2 February 2017 (to which the Tribunal referred in its reasons rejecting the adjournment application on 2 February 2017) that the appellant was in fact an inpatient at Cootamundra hospital on the date of this hearing. 3. In circumstances where the respondent landlord had itself provided evidence that the appellant was an inpatient at Cootamundra hospital, we do not consider that the absence of a medical certificate in these circumstances would be a sufficient reason to dismiss the adjournment application. 4. The other reason given by the Tribunal in refusing to adjourn the proceedings was that the only evidence provided by the appellant was in a letter which her mother had written to the appellant's local Member of Parliament, Mr McGuire. That letter recorded the appellant had been trying to get a disability support pension approved by Centrelink, that she did not believe she was entitled to apply for a Newstart unemployment benefit and that she was trying to resolve her pension entitlements in order to resolve the rent arrears issue. 5. It is unclear what evidence was provided by the respondent on this aspect of the dispute. Neither party provided a sound recording of the hearing on 2 February 2017. 6. However, it can be inferred from the reasons that the Tribunal concluded this evidence about trying to obtain a pension was either irrelevant to the adjournment request or would not affect the final outcome of the application. 7. For the reasons that follow, in our view the exercise of the discretion to refuse to adjourn the proceedings on 2 February 2017 miscarried. 8. As indicated above, the proceedings had been adjourned for hearing from 20 December 2016 on the basis the parties were having "further settlement discussions". However, when making this adjournment order, no directions were made for the filing and service of evidence by the parties. 9. In this appeal, in addition to the entry on 27 January 2017 concerning the hospitalisation of the appellant (to which we have referred above), the respondent also provided evidence in the Briefing Note of a further entry dated 31/01/17 in the following terms (respondent's June bundle p47): CSO Kylie Taylor spoke to Ms Vorhauer. MS Vorhauer's mother had written to Daryl Maguire regarding Rachel's situation and in discussion with her daughter implied that Housing were working with Centrelink to obtain her the DSP. CSO Taylor clarified that the letter did not specify DSP and that we were working with herself and Centrelink to enable Ms Vorhauer to enter into an agreement once her income had been resolved. Ms Vorhauer advised that no contract had been received from Centrelink. Centrelink emails Team Leader McKee on 25/01/17 to advise that Social Worker Natalie spoke with Rachael and refuse the service offer of NewStart. 1. In the following entry, dated 25/1/17 the Briefing Note records: After discussion with the customer our Social Worker Natalie has informed me that she has refused service offer of Newstart Allowance and not wanting to claim this payment. Unfortunately at this time there is no further action we can take, for a customer to be granted and (sic) Income support payment they must first make a claim for that payment. 1. It is unclear whether this information was before the Tribunal on 2 February 2017. It is also unclear whether the respondent provided evidence to the Tribunal that it had informed the appellant it intended to proceed with its application for termination despite the discussions as recently as 31 January 2017 to the effect that "we were working with herself and Centrelink to enable Ms Vorhauer to enter into an agreement once her income had been resolved." 2. However, in refusing the adjournment application, the Tribunal does not appear to have dealt with the following matters: 1. The proceedings had been previously adjourned to allow further settlement discussions. 2. No directions had been made for the filing of evidence; 3. Because the appellant was in hospital, she was unable to attend and provide oral evidence. 4. There had been ongoing discussions between the parties, apparently as recently as 31 January 2017, about the appellant obtaining Centrelink payments, and the respondent had been "working with" the appellant to resolve these issues. 1. As explained by the High Court in House v The King, for an appeal against the exercise of a discretion to succeed, it must appear that some error has been made in exercising the discretion. A discretion may miscarry where there is a failure to take into account relevant facts. 2. In the present case, the discretion was exercised primarily because there was no medical evidence to support the adjournment application and because the ongoing dispute with Centrelink was not adequate reason to adjourn the proceedings. 3. In our view the discretion miscarried because there was a failure by the Tribunal to take into account relevant facts, namely the history of the proceedings and that no directions had previously been made for the exchange of evidence or to allow the appellant to provide relevant evidence. The appellant was in hospital as an inpatient on the day of the hearing, a matter which the respondent did not dispute. Clearly she was not in a position to respond to any evidence presented at the hearing. 4. In short, the history of the proceedings and the fact the appellant was in hospital meant that in the circumstances of this case an adjournment should have been granted as the appellant was not afforded a reasonable opportunity to be heard or otherwise have her submissions considered in the proceedings: see s38(5) of the NCAT Act. 5. It might be thought that because the rent had not been paid and there was no evidence about this matter that this was an end to the adjournment request. However, it is clear from the evidence provided on appeal that, at least until the end of January 2017, the parties had been working together as the appellant tried to obtain a pension or other social security payments to pay the rent. It also seems clear that if this occurred at that time, the respondent may have allowed the appellant to stay on terms that she pay the rent and enter an instalment arrangement for any arrears. 6. Whether or not the respondent would ultimately have agreed is not necessary to resolve. It is sufficient to record that evidence of these matters and the history of what occurred is material about which the appellant could have made submissions and which the Tribunal would have considered in the exercise of any discretion to terminate the tenancy. 7. It follows that in our view the Tribunal was in error in refusing the adjournment application. Was the Tribunal in error in failing to grant the appellant's application to set aside the February orders? 1. In light of the finding we have made, it is unnecessary to determine whether or the Tribunal was in error in refusing the application to set aside the February orders. 2. However, it is relevant to note the following matters relating to the set aside application and what subsequently occurred: 1. The set aside application was not made until 23 February 2016, more than 7 days after the time for making the application: see Reg 9(3) of the Civil and Administrative Tribunal Regulation, 2013. 2. On 8 March 2017 the Tribunal stayed the termination and possession orders pending determination of the stay application. 3. The set aside application did not address the substantial issues, namely, what case the appellant wished to put to the Tribunal. This required her to address the issue of what were the rent arrears, if any, and whether she had a capacity to pay any rent arrears and if so when. 4. The set aside application was dismissed on 3 April 2017 and the stay was lifted. 5. Although the set aside application had been dismissed, the original termination order made on 2 February 2017 did not include a finding under s89(5) of the RT Act that the appellant had frequently failed to pay rent. Accordingly, as the termination order had been made solely on the ground of non-payment of rent, any warrant for possession subsequently issued and/or any order for termination would have ceased to have effect "if the (appellant) pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord (respondent) and the (appellant) has not vacated the residential premises": see s89(3) of the RT Act. 6. While the respondent did not oppose the set aside application, it is clear that in applying to extend the time for the issue of a warrant for possession following dismissal of the set aside application and in advising the appellant of the hearing of that application, the respondent was wishing to proceed with the termination order and evict the appellant. 7. Prior to eviction, the appellant did not seek to pay the rent or enter into a repayment plan agreed with the respondent. If yes to (1) or (2), should the February order be set aside and the matter remitted for rehearing? 1. Having determined that the Tribunal was in error in failing to adjourn the proceedings, the issue is what orders the Appeal Panel should now make. In considering what orders should be made, the Appeal Panel also needs to have regard to the fact that in order to appeal the decision of 2 February 2017 an extension of time to file the Notice of Appeal is required under s41 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). 2. In this regard the principles set out in Jackson are relevant as is the fact that any appeal from this decision which relates to residential proceedings should have been brought within 14 days from the date of the orders or the date on which the appellant received notice of those orders, whichever is the later: see r25(4)(b) of the Civil and Administrative Tribunal Rules, 2014 (Rules). 3. Also relevant is s81 of the NCAT Act which provides: 81 Determination of internal appeals (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. 1. That is, the Appeal Panel has a discretion and may make such orders as it thinks fit in light of the decision under appeal. In doing so, it may exercise all of the functions conferred or imposed on the Tribunal at first instance when varying or making a decision in substitution for the decision under appeal: see s81(2) of the NCAT Act. 2. In the present case, the exercise of this discretion involves a consideration of the history of the proceedings, the fact that the warrant for possession has already been executed and whether in all the circumstances it is appropriate for the Appeal Panel to set aside the orders and remit the proceedings, or otherwise finally dispose of the proceedings. 3. Relevant to the exercise of this discretion is the directions made by the Appeal Panel on 19 May 2017 in respect to the preparation of this appeal, the evidence the parties were required to provide and the evidence actually provided by each party for the hearing. 4. Orders 8 and 9 of the Appeal Panel's directions were in the following terms: 8. The party's evidence is to include: … b A statutory declaration or statement setting out: The rent payable under the residential tenancy agreement; The amount of rent paid and the date payments were made; the amount of rent outstanding (if any) as at 2 February 2017 and 3 May 2017 (being the date the Notice of Appeal was filed); The financial capacity of the appellant to pay any rent arrears, including a statement of income and expenses; Any evidence relevant to the exercise of any discretion to terminate the residential tenancy agreement including relating to the provisions of s154E of the Residential Tenancies Act, 2010 (if relevant. Evidence explaining why the appeal was lodged out of time or relating to why time should be extended . 9 The Appeal Panel may, if the appeal is allowed, or in exercising any discretion applicable to the determination of the appeal, proceed to rehear or finally determine the application. Accordingly the parties should ensure that any witnesses provide written statements or statutory declarations and are available to attend (in person or by phone) to be cross-examined. 1. The Tribunal also made directions to facilitate access to the premises so that the appellant could collect any papers relevant to the appeal: see Order 12 of the directions made on 19 May 2017. 2. The appellant did not provide any statutory declaration dealing with the matters set out in direction 8. On the other hand, the respondent provided evidence of unpaid rent from Ms Hook as set out above. The only evidence from the appellant was that the issue of her entitlement to a pension or other Social Security payment remained unresolved and that she had lodged an appeal. 3. During the hearing of the appeal the appellant's attention was drawn to paragraphs 6 and 7 of Ms Hook's statement which set out the amount of rent arrears and when payments were last made. The appellant was asked by the Appeal Panel whether she accepted she was in arrears of rent. The appellant agreed that she was in arrears but was unsure of the amount of the arrears. She also agreed that no payments were made other than those identified by Ms Hook. Otherwise, the appellant did not provide any evidence that she had the capacity to pay the rent. Rather, the position remained that she had not taken steps to bring the rent up to date prior to being evicted and that there was an unresolved appeal to the Administrative Appeals Tribunal concerning her application for a pension. 4. While the respondent accepted that an appeal had been lodged, the respondent's position remained that the rent has been outstanding for many months, the appellant's application for a pension had been rejected twice and only recently had she taken steps to lodge an appeal. Otherwise, no steps had been taken to seek other assistance in respect of the payment of rent. 5. In our view, these facts confirm that the appellant was and is significantly in arrears of rent. 6. She had not paid rent for many months up until 11 May 2017 when the warrant for possession was executed by the sheriff. She has not paid any sums since. Further, there is no evidence that the appellant presently has the capacity to pay ongoing rent and/or is able to enter an instalment plan for the payment of rental arrears. 7. These matters establish that before the termination order was made on 2 February 2017 the tenant was in breach of the residential tenancy agreement because she has failed to pay rent. There was no suggestion in this appeal that the requirements for seeking a termination order had not been established. In this regard there was no challenge to the notice of termination nor was there any challenge to the Tribunal's conclusions concerning s153E and the discretion to be exercised thereunder. 8. She has not paid rent since 2 February 2017. She has not availed herself of her right to pay all rent arrears prior to eviction on 11 May 2017 and thereby obtain the benefit of s89(3) of the RT Act. 9. These facts justify the making of an order for termination and count against setting aside the February order and remitting the proceedings for rehearing. 10. The fact the appellant has an unresolved appeal concerning her entitlement to a pension or other Social Security payments is not a sufficient reason to exercise a discretion in favour of the appellant and refuse to terminate the residential tenancy agreement in the present case. This is because: 1. the amount of rent outstanding, 2. the period of time which has passed during which no rent has been paid by the appellant; and 3. the fact that there is no evidence before the Appeal Panel to suggest that the appeal to the AAT is likely to be resolved in the near future in favour of the appellant so as to place her in a position to pay ongoing rent and all rental arrears. 1. The other matter which the appellant said the Appeal Panel should consider on this aspect of the case was that she had now moved to the Illawara region and if the tenancy was reinstated she would be better able to request and obtain a transfer to new premises in the region where she now resides. 2. In our view, this is not a matter which would justify reinstatement of the existing tenancy where rent remains unpaid and where there is no evidence of capacity to pay any ongoing rent, let alone to pay the arrears of rent. 3. It follows that setting aside the orders of the Tribunal made on 2 February 2017 and remitting the matter for further hearing would serve no utility and would be contrary to the just, quick, and cheap resolution of the real issues in dispute. While the error made justifies the grant of leave to appeal out of time, particularly as the appellant in effect first sought to challenge the orders made on 2 February 2017 when she applied to set aside those orders, in our view the appeal should nonetheless be dismissed with the consequence that the termination order remains on foot and effective from 2 February 2017 being the date on which it was made. 4. There is another reason why this is an appropriate course to adopt. That is because if the orders made 2 February 2017 were set aside and an order now made in substitution by the Appeal Panel to terminate the residential tenancy agreement, the appellant would be liable for rent from the date she was evicted on 11 May 2017 until the date of any orders made by the Appeal Panel. This would increase her liability to the respondent in circumstances where she did not have possession of the premises and the benefits of the residential tenancy agreement. Other issues 1. The final matter to which the Appeal Panel should refer is the appellant's submissions concerning the fact the sheriff did not take possession of the appellant's goods which were in the premises at the time of eviction and/or that the respondent might wrongfully dispose of any goods left on the premises. 2. In relation to the first point, a sheriff executing a warrant for possession is doing so for the purpose of returning possession to a landlord. After the warrant is executed, the sheriff does not remain in possession of the property nor any goods left on the property. Consequently, the appellant's submission that the sheriff was obliged to take possession of the goods in the residential premises and keep them in the sheriff's possession is misconceived. 3. In relation to the goods left on the premises, this is dealt with in Part 6 of Division 2- Goods left on residential premises of the RT Act. Section 132 of the RT Act provides: A person who is entitled to possessions of goods may claim the goods at any time before they are disposed of. 1. A landlord is required to give a former tenant notice of any proposal to dispose of goods: see s127 of the RT Act. In this regard 14 days' notice is required for goods other than personal documents. Otherwise 90 days' notice is required for personal documents. 2. The Appeal Panel understands that no notice has been provided by the respondent to the appellant concerning any proposal to dispose of the goods. Further, no order has otherwise been made by the Tribunal under s133 of the RT Act permitting this to occur. 3. In these circumstances, there appears to be nothing preventing the appellant from collecting her goods from the residential premises. Orders 1. The Appeal Panel makes the following orders: 1. The appellant has leave to appeal the decision of the Tribunal made 2 February 2017. 2. The appeal is dismissed. 3. Order 11 made 19 May 2017, preventing the respondent from reletting all parting with possession of the residential premises, is discharged. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 26 July 2017 - Amended Member hearing Decision under appeal SH16/52187 to G Sarginson, Senior Member 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: 26 July 2017