Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mercieca v Fu [2017] NSWCATAP 205 Hearing dates: 31 July 2017 Date of orders: 24 October 2017 Decision date: 24 October 2017 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member A Boxall, Senior Member Decision: (1) The appeal against Order 5 made on 14 June 2017 is upheld. (2) Pursuant to s 81 (1)(b) of the Civil and Administrative Tribunal Act 2013, Order 5 made on 14 June 2017 is varied to be: "5. (i) The rent payable under the residential tenancy agreement shall not exceed the sum of $693.50 per week from 1 February 2017 to 6 June 2017. (ii) Any rent paid by the tenant in excess of that amount is to be refunded through an adjustment to the rent ledger, or by refund by the landlords to the tenant, within 14 days of the date of these orders." (3) Leave to appeal is otherwise refused, and the appeal against Orders 1, 2, 3, 4 and 6 made on 14 June 2017 is dismissed. (4) Pursuant to s 81(1)(b) of the Civil and Administrative Tribunal Act 2013, Order 2 made on 14 June 2017 is varied to be: "2. The order for possession is suspended until 14 days from the date of publication of these orders." Catchwords: APPEAL: Residential tenancies - Whether termination notice retaliatory – Rent reduction Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Cases Cited: Clarke v Tapp [2015] NSWCATAP 81 Collins v Urban [2014] NSWCATAP 17 Howard v B Miles Foundation Inc [2012] NSWSC 1173 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424 O'Keefe v Davies [2016] NSWCATCD 7 Quader v Bell [2017] NSWCATAP 24 Category: Principal judgment Parties: Wayne Mercieca (Appellant) Anita Fu (First Respondent) Saar Yizhaki (Second Respondent) Representation: D Baddeley (Appellant) R Simeon (Respondents) File Number(s): AP 17/27981 Publication restriction: No Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 June 2017 Before: L Wilson, Senior Member File Number(s): RT 17/10573 and RT 17/10808 REASONS FOR DECISION 1. This is an internal appeal against a decision given on 14 June 2017 in proceedings RT 17/10573 and RT 17/10808 in the Consumer and Commercial Division of the Tribunal. 2. RT 17/10573 (the tenant's application) was an application made on 3 March 2017 by Wayne Mercieca (the tenant) for orders under s 44(1)(b) and s115 of the Residential Tenancies Act 2010 (the RT Act) relating to residential premises at Cremorne NSW owned by Anita Fu and Saar Yizhaki (the landlords). 3. RT 17/10808 (the landlords' application) was an application made on 6 March 2017 by the landlords for an order under s 84 of the RT Act to terminate the residential tenancy agreement with the tenant. 4. In the tenant's application the tenant sought an order that the rent payable for the premises was excessive due to the reduction or withdrawal of services or facilities provided with the premises, and an order under s 115 declaring that a termination notice dated 19 January 2017 had no effect because it was a retaliatory notice. The background was that the strata committee of the building had organised work to the balcony balustrades of the building, scheduled to commence on 1 February 2017 and to be completed on 31 May 2017, for removal of existing tiles and metal balustrades and replacement with new tiles and glass balustrades, replacement of balcony fixtures and repainting of exterior painted areas. The tenant stated that he had requested a rent rebate, and that at a meeting on 18 January 2017 when some of the landlords had been present he asked questions about how long the noise would go on for and asked about rental discounts. He requested an extension of time to lodge his application as he did not know that he had the right to contest a retaliatory eviction. 5. In the landlords' application the landlords stated that they had given the tenant 30 days to end the fixed term tenancy on 2 March 2017 by notice dated 19 January 2017, and they sought a termination order and an order for payment of an occupation fee. Decision under Appeal 1. The two matters were heard together on 14 June 2017. 2. The Member made the following orders: 1. The residential tenancy agreement is terminated in accordance with s 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term. 2. The order for possession is suspended until 23 June 2017. 3. The tenant shall pay the landlord a daily occupation fee at the rate of $104.29 per day from the day after the date of termination, namely 14 June 2017 until the date vacant possession is given to the landlord. 4. Within 60 days of the date for possession of the premises specified in these orders the landlord may request relisting of the application to determine the amount of the occupation fee owing. 5. It is ordered that the rent shall not exceed the sum of $693.50 per week as from 1 February 2017 to 2 March 2017. 6. The application is dismissed because: The application for a declaration that the termination notice was retaliatory is dismissed because time is not extended to make it, there is no power to make such a declaration about s 84 notices and in any event the tenant did not satisfy the Tribunal on the facts that the notice was issued wholly or partly based on the reasons in s 115(2). 1. The Member gave written reasons with the orders. 2. The Member found that the parties had entered into a residential tenancy agreement for a term of 12 months from 3 March 2016 to 2 March 2017, with $730 per week rent payable. On 19 January 2017 the landlords issued a termination notice specifying 2 March 2017 as the date on which vacant possession was required. 3. The Member first dealt with the tenant's claim, starting with the issue of the timing of the tenant's application. The Member found that the claim under s 44 was made before the end of the tenancy and so was within time, whereas the s 115 application was made more than the 14 days after service of the termination notice specified in cl 22(4)(b) of the Residential Tenancies Regulation 2010 (the RT Regulation). The Member considered whether the time should be extended pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). She declined to extend the time. 4. The Member then considered the application for a declaration under s 115 that the termination notice was retaliatory, and concluded that even if s 115 applied to a termination notice under s 84 for the end of a fixed period, there was insufficient evidence to establish that the termination notice was sent because the tenant proposed to take action, including lodging an application to the Tribunal, to enforce a right he had under the lease. The Member dismissed the tenant's application under s 115. 5. The Member next considered the claim for rent reduction under s 44 of the RT Act. The Member noted that it was the strata that had approved balcony balustrade works for the building, and granted leave to the tenant to amend his claim to be under s 43 of the RT Act, to be a claim that the premises had become partly uninhabitable otherwise than as a consequence of a breach by the landlords. The Member considered the evidence that the balcony was unusable for the duration of the work, the interruption to views, and claimed interference by noise and with privacy. The Member abated 5% of the rent from 1 February 2017 to 2 March 2017, being the date the tenant should have vacated the premises. 6. The Member then considered the landlords' application. She found that the termination notice met the requirements of s 82 of the RT Act, and had been served by post in accordance with s 223 of the RT Act. The Member terminated the residential tenancy agreement and suspended the order for possession to 23 June 2017, taking into account the tenant's evidence as to his personal circumstances and the landlords' evidence that they wanted possession as soon as possible. Grounds of Appeal 1. The Notice of Appeal lodged by the tenant on 22 June 2017 stated two grounds of appeal: that the Member made errors of law in declaring that s 115 did not apply to termination of a fixed term lease, and in limiting the rental compensation to the original lease dates rather than on dates of occupancy. The tenant sought orders that the compensation be calculated for the full period of the works, from 1 February 2017 to 6 June 2017. The tenant sought leave to appeal on the basis that the decision was not fair and equitable, challenging the Member's finding that the first claim for rent reduction was not made until after 19 January 2017, and that the decision was against the weight of evidence, referring to emails confirming that the first rent reduction claim was before the date of the notice. 2. On 11 July 2017 the tenant, represented by David Baddeley of Northern Sydney Tenants' Service, sought leave to amend the Notice of Appeal, to specify that all the orders made by the Member were challenged. The amended grounds of appeal repeat in substance the grounds identified in the Notice of Appeal lodged on 22 June 2017, with more detailed submissions, and stated that the orders sought were that the decision under appeal be set aside and the matter reconsidered by the Tribunal. 3. At the appeal directions hearing on 29 June 2017 the operation of the order for possession was stayed until 31 July 2017. The stay was extended at the appeal hearing, until further order of the Tribunal. Reply to Appeal 1. In their Reply to Appeal the landlords supported the orders made on 14 June 2017, and sought payment of the Tribunal fees incurred and the agent's time. The landlords want to regain possession of the premises and the tenant has stayed in the property unlawfully since 2 March 2017. Availability of Appeal 1. The appeal against the orders for termination and possession, and for rent reduction, may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds: s 80(2)(b) NCAT Act. The Member's refusal to extend the time for the making of an application under s 115 of the RT Act was an "interlocutory decision" as defined in s 4 of the NCAT Act, and the leave of the Appeal Panel is required: s 80(2)(a) NCAT Act. 2. As the appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). Hearing of the Appeal 1. The tenant was represented by Mr Baddeley and the landlords by their managing agent, Mr Robert Simeon. 2. Both parties provided copies of the documents before the Member at first instance. The tenant provided a part transcript for the hearing below. 3. The tenant submitted that the issues on appeal are: 1. Whether s 115 of the RT Act applies to a termination notice under s 84; 2. Whether an order for rent reduction continues after the date for vacant possession specified in a valid notice of termination and during the period for which an order for possession has been suspended; and 3. Whether the decision was against the weight of evidence so that the tenant suffered a substantial miscarriage of justice. 1. The tenant had initially raised an issue that the termination notice had not been served in accordance with s 223 of the RT Act. That contention was not pressed, the tenant conceding that the termination notice was properly served. The landlords' application for costs being the time taken by the agent was not pressed. Consideration Whether the Member erred in dismissing the retaliatory termination application 1. The Member dismissed the tenant's application for a declaration under s 115 on the grounds that: 1. time was not extended to make it, 2. there was no power to make such a declaration about a s 84 termination notice, and 3. in any event the tenant did not satisfy the Tribunal on the facts that the notice was issued wholly or partly based on the reasons in s 115(2) of the RT Act. 1. Section 115 of the RT Act provides: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice: (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (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. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant. 1. Clause 22(4) of the Regulation provides: 22 Times for making applications to Tribunal: ss 44 (2), 83 (2) (a), 98 (4), 115 (3), 125 (3), 134 (3), 141 (2), 175 (3) and 190 (1) of Act … (4) For the purposes of section 115 (3) of the Act, the prescribed period for the making of an application by a tenant for a declaration that a termination notice has no effect on the ground that it is a retaliatory notice is: (a) within 30 days after being served with the termination notice, if the termination notice was given under section 85 of the Act, or (b) within 14 days in any other case. 1. The termination notice dated 19 January 2017 was given under s 84 of the RT Act, which provides: 84 End of residential tenancy agreement at end of fixed term tenancy (1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term. (2) The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given. (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. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended. 1. Section 85 applies to termination of a periodic agreement: 85 Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. (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. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more. 1. For the reasons which follow, we conclude that (1) leave should not be granted to appeal against the Member's refusal to extend the time for the tenant to make his application under s 115, and (2) even if leave were granted, there would be no purpose served in extending the time, as there was no error in the Member's conclusion that the termination notice was not retaliatory. 1. Refusal to extend time 1. The tenant's grounds of appeal and written submissions did not address the Member's decision not to extend the time for the tenant to make his application under s 115(3) of the RT Act. The Appeal Panel raised this issue with the parties at the hearing. As noted above, the refusal to extend time is an interlocutory decision, and leave to appeal would be required. 2. The considerations relevant in determining whether to grant leave were considered by the Appeal Panel in Clarke v Tapp [2015] NSWCATAP 81, by reference to the principles to be derived from the objects of the Act and the nature of the appeal, and s 36 of the NCAT Act. The Appeal Panel held: 19. While there is no rigid test or criteria for the granting of leave in cases such as this, the Court of Appeal has recently set out the relevant principles applicable to courts in Clarke v New South Wales [2015] NSWCA 27 at [20]: On the present application, Mr Clarke must demonstrate something more than that conclusions the primary judge reached in the exercise of her Honour's discretion pursuant to UCPR 14.28 and 13.4 were arguably wrong: Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. To succeed in challenging the exercise of such a discretion, he must establish an error in the House v R sense (House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 504-5), namely that her Honour made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account, or give sufficient weight to, a relevant consideration or arrived at a result so unreasonable or unjust as to suggest such an error: see also Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. 20. An applicant for leave must demonstrate something more than that the decision maker was "arguably wrong". Ordinarily, what is required is that there is an issue of principle, questions of general public importance or an injustice which is reasonably clear": Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 at [4]. 1. The tenant submitted that no extension of time was needed, as it was open to the Member to consider making an order that a termination notice is retaliatory and there is no need to make an application. If an application is required and the time limit in cl 22 of the Regulation applies, leave to appeal against the Member's refusal of leave should be granted as the Member erred in failing to consider whether a refusal to extend the time would work an injustice, by reference to the matters identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The tenant sought leave to amend the grounds of appeal to include that the Member erred in law in not extending the time for make an application under s 115(3). The tenant accepted that leave to appeal would be required, and submitted that by reference to the principles outlined in Collins v Urban [2014] NSWCATAP 17 at [84], the issue of the interaction between s115 and s 84 raises a question of public importance. 2. We do not accept the submission that no extension of time was required. As the opening words of s 115(1) make clear, the Tribunal's power under s 115 to make a declaration that a termination notice is retaliatory or to refuse to make a termination order on that ground is enlivened in a range of circumstances, one of which is where the tenant applies for an order under the section. Where it is the tenant making an application, rather than resisting the making of a termination order on the application of the landlord, s 115(3) applies. The tenant must make the application before the termination date, and within the period prescribed by the regulations. 3. The time limit specified by cl 22(4)(b) of the Regulation was 14 days after the termination notice was given. The Member's finding that the notice was posted on 19 January 2017 to the address of the residential premises was not challenged on the appeal. The period in which the tenant could make an application was, accordingly, within 14 days from the date the notice was served, namely by 10 February 2017. The tenant's application to the Tribunal was made on 3 March 2017, the day after the termination date specified in the termination notice. 4. Section 41 of the NCAT Act enables the Tribunal to extend the time, even though the relevant period of time has expired. The relevant matters for consideration are, as stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal). 1. The Member's reasons for refusing to extend the time were: 1. While the tenant had stated that he did not know he had the right to contest a retaliatory termination until 3 March 2017, he had informed himself of rights under the RT Act over the years, including in an email on 23 May 2016 when he foreshadowed an application to the Tribunal for repairs or rent reduction under s 44 of the RT Act, and an email on 21 July 2016 stating that "I know I will have a legitimate case at the tribunal"; 2. 3 March 2017 was many weeks after 24 January 2017, the date the application should have been lodged; 3. A s115 declaration could not apply to the end of a fixed term termination notice, and there was nothing to be gained from extending time; and 4. The landlords were within their rights to end the tenancy at the end of the fixed term and the tenant ought to have vacated according to the notice, and the tenant's application was misconceived. 1. While the Member did not refer expressly to Jackson, her reasons indicate that she considered each of the relevant factors. For the reasons below we find that the challenge to the Member's reasoning that the termination notice was not retaliatory has not been made out. The finding that there was nothing to be gained by extending the time was clearly a significant factor in the Member's decision not to extend time. In those circumstances there is no issue of principle or clear injustice that would warrant setting aside the Member's decision such that leave to appeal against the refusal to extend the time to make the application under s 115(3) of the RT Act should be granted. 2. Application of s115 to a s 84 termination notice 1. The tenant contends that the Member's finding that s 115 of the RT Act does not apply to a termination notice under s 84 involved an error of law. Given our conclusion on the application to extend time, and whether the notice was in fact retaliatory, it is not necessary to address in detail the tenant's submissions. However, since the submissions were thorough, and comprehensive, it is helpful to set out the reasoning, as follows: 1. There is a conflict between the mandatory language of s 84(3), which provides that the Tribunal "must" make a termination order for the end of a fixed term tenancy if satisfied that the landlord has served a valid notice of termination and the tenant is still in possession, and s 85 (for termination of a periodic tenancy), and the discretionary terms of s 115; 2. Ordinarily, the conflict between the discretion to refuse to make a termination order conferred by s 115 (a general provision) and the mandatory language used in ss 84 and 85 (specific provisions) is to be resolved in favour of the specific provisions; 3. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 requires that in reconciling conflicting statutory provisions, it is necessary to determine which is the leading provision and which the subordinate provision; 4. assistance in determining the hierarchy of the provisions is found, in relation to s 85 of the RT Act, in reg 22(4), which specifies in paragraph (a) that an application under s 115(3) must be made within 30 days of service of the termination notice; 5. it is unlikely that Parliament intended s 85 to operate independently of s 115 and it would be contrary to the text of the legislative scheme to interpret it in that way; 6. there is no clear reason for treating s 84 any differently from s 85, except as to the time for making a claim under s 115. Section 115(3) is identical for both sections, and the reason for the express treatment of s 85 in cl 22(4) is that the termination notice must give 90 days notice whereas other termination notices have substantially shorter minimum notice periods; 7. s 115 only has work to do in relation to ss 84 and 85, as all other provisions in Div 2 of Part 5 for termination notices are discretionary and there is no need for a separate provision enabling the Tribunal to refuse to make a termination order. The other provisions in ss 87,88, 90,91, 92, 93, 94 and 95 specify the ground that must be satisfied, and if not so satisfied, the Tribunal can refuse to make the order sought; 8. s 115 does not cure the mischief for which Parliament intended, namely to protect against retaliatory evictions, if it does not operate in respect of s 84; 9. cl 22(4)(b) of the Regulation supports the contention that s 115 was not included in the RT Act to operate solely in respect of s 85, and the words "in any other case" encompass s 84; 10. it is a more reasonable result and one achieving the harmonious goals of the legislation to construe s 115 as applying to ss 84 and 85 than it is to construe s 115 as applying only to s 85 and all other provisions in Div 2 of Part 5; 11. relying on the decision in Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424, despite the mandatory language of ss 84 and 85, the Tribunal is "considering whether to make a termination order". Section 115 applies whenever the Tribunal is called upon to make a determination whether or not to make a termination order, including under s 84 of the RT Act. 1. The landlords' submissions were that the termination notice was not retaliatory, and the Member made no error. 2. In her reasons the Member stated that she applied the reasoning in Howard v B Miles Foundation Inc [2012] NSWSC 1173, and distinguished the decision in O'Keefe v Davies [2016] NSWCATCD 7. Howard was an application for an interlocutory injunction to prevent the landlord from enforcing an order for termination under s 84 of the RT Act and possession. Schmidt J noted that in issue between the parties was the proper construction of s 115 and its interaction with s 84. While Schmidt J acknowledged at [22] the "apparent statutory purpose" that a landlord was entitled to recover possession of the property at the end of the agreed term, her Honour had acknowledged earlier in [22] that it could be accepted that there could conceivably be circumstances where the s 115 discretion could have work to do, if it was available to be exercised in the case of a fixed term tenancy the subject of a s 84 application. Her Honour further acknowledged at [25] that given the structure of the legislation there may also be a statutory intention that the mandatory terms of s 84 would be subject to the general discretion in s 115. However, her Honour held that it was not necessary to come to any concluded view about this question, as on the application for interlocutory relief the applicant had not established a prima facie case. 3. We are satisfied that the decision of Schmidt J in Howard does not preclude the application of s 115 to a termination notice under s 84, at the end of a fixed term tenancy. The Appeal Panel in Quader v Bell [2017] NSWCATAP 24 has held that s 115 applies to a notice of termination given under s 85, for termination of a periodic agreement. In Quader, the Appeal Panel held at [51] that it was appropriate in that matter to deal with the tenant's claim that the notice of termination was retaliatory, for the reason that if the notice of termination was retaliatory and declared to be of no effect then the application for termination under s 85 would have failed. Section 115 has also been applied in an application concerning a s 85 termination notice in O'Keefe v Davies [2016] NSWCATCD 7. 4. We agree with the tenant's submission (see [40](6) above) that there is no appreciable difference between s 84 and s 85 termination notices, in terms of the application of s 115, other than the longer time period allowed in the Regulation for a tenant to make an application under s 115(3) in the case of a s85 termination notice. We also agree with the submission (see [40](7) above) that to conclude that s 115 does not apply to a termination notice under ss 84 or 85 would give s 115 very limited work to do. Those observations are consistent with Quader v Bell, so that if the Tribunal declares that a termination notice has no effect because it is satisfied that the landlord was motivated to give the notice for one of the s 115(2) reasons, there would be no valid termination notice to which s 84 could then apply. 3. Whether the termination notice was retaliatory 1. The Member was not satisfied that the termination notice was sent because the tenant proposed to take action to enforce a right he had under the lease. The Member found: 1. The works started after the notice was sent, so the tenant's claim for rent reduction made by email on 20 February 2017 and 2 May 2017 could not have caused the landlords to send the notice on 19 January 2017; 2. The Member did not accept that the notice was issued after the tenant attended a meeting on 18 January 2017 at which he stated he would make a claim for rent reduction; 3. The agent and the landlords had been discussing the extension or termination of the lease for some time before 19 January 2017, and it was decided to issue a termination notice some time before 19 January when the agent made a courtesy call to the tenant to tell him the notice was coming; and 4. The landlords wanted a relative to live in the premises from 3 March 2017. 1. The tenant submits that those findings reflect a factual error that was unreasonably arrived at and clearly mistaken, as there was evidence before the Tribunal showing the tenant had told the landlords' agent about the building works and raised concerns about associated noise, and had requested a rent reduction as early as 13 December 2016. 2. In support of that submission the tenant relies on email correspondence with the agent. The copies of emails provided by the tenant include an email on 13 December 2016 in which he advised the agent of the proposed starting date for the work, noting that it would be "a huge inconvenience" and would affect his enjoyment of the property; he also noted that the lease would be up on 3 March 2017. In response to a query by the agent, on 14 December 2016 the tenant asked "what will the rent be during this period", and what were the landlord's intentions regarding a new lease. In a further email of that date the tenant stated "I think a rent reduction is due". There was further correspondence in which the agent asked what rent reduction the tenant was expecting, and on 22 December 2016 the tenant stated that he thought the rent should be approximately $370 per week while works occur. The tenant's documents next include email correspondence from 24 January 2017, that is, after the notice of termination. 3. The landlord's documents also include email correspondence, after the notice of termination. In an email on 20 February 2017 the tenant states "I officially request a rent discount to the end of the lease period…", for the reasons that the balcony is blocked off from use, and the work noise. The tenant states that he is "legally entitled for such a discount". On 28 February 2017 the tenant asks for news on his request for a rental discount, and states that he is unable to find another unit and would not be able to vacate on 2 March 2017. The agent replied, stating that the landlord had agreed to a $25 per week rebate from 1 February 2017 to 2 March 2017, to cease when the tenancy ended. The tenant then emailed on 2 March 2017 stating that he would still be residing in the property and that the "tenancy will be continuing past March 2nd, until keys are returned". 4. The tenant's challenge to the Member's conclusion that the termination notice was not retaliatory is based on the contention that the decision was against the weight of the evidence, and that leave to appeal should be granted under cl 12(1)(b) of Sch 4. As discussed in Collins v Urban at [77], the authorities establish that for a decision to be "against the weight of evidence" it must be concluded that the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach. In the context of cl 12(1)(b), if that circumstance applies, and if the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice. 5. The issue before the Member was whether the landlords were wholly or partly motivated to give the notice because of either of the reasons in s 115(2)(a) or (b), namely that the tenant was proposing to apply to the Tribunal for an order, or was proposing to take any other action to enforce a right of the tenant. 6. We do not accept that the email of 13 December 2016 was such a reason. The email correspondence in December 2016 included a request for a rent reduction, and there was no reference to any contemplated application to the Tribunal or other enforcement process. It was not until the email of 20 February 2017 that the tenant expressed an awareness that he was "legally entitled" to request a discount. That falls far short of either s 115(2)(a) or (b), especially in circumstances where as found by the Member, the tenant had previously expressed an understanding of his right to apply to the Tribunal in relation to issues of repairs to the premises. 7. The Member gave her reasons for rejecting the tenant's submission that it was his comments at the meeting on 18 January 2017 that had motivated the landlords to serve the termination notice, and her finding that the agent and the landlords had been discussing the extension or termination of the lease some time before 19 January 2017. 8. The finding of the Member that she was not satisfied that the termination notice was motivated by one of the s 115(2) reasons was open to her on the evidence, and it cannot be said that the evidence in its totality preponderated against her conclusion. The Appeal Panel is not persuaded that the tenant has suffered a substantial miscarriage of justice in the circumstances, in the sense that he may have been deprived of a "significant possibility" or a "chance which was fairly open", of achieving a different and more favourable result. Leave to appeal is refused. 9. This conclusion means that the order made by the Member to terminate the tenancy and the consequential orders for possession and payment of an occupation fee stand. The Member suspended the order for possession until 23 June 2017. In dismissing the appeal against the termination order, the Appeal Panel is of the view that it is appropriate to vary order 2 made on 14 June 2017 to require vacant possession 14 days after the date of publication of these reasons. Whether the Member erred in limiting the rent reduction order to 2 March 2017 1. The Member noted that it was not in dispute that the balcony works rendered the balcony unusable for the duration of the work period. The Member concluded that the rent should abate 5% from 1 February 2017 to 2 March 2017, the latter being the date the tenant should have vacated the premises, and the tenant could not insist on remaining in the premises without a legal basis to do so and then get a reduction in rent. 2. The tenant submits that the Member erred in limiting the period of the rent reduction to 2 March 2017. The tenant submits that the Member erred in law in concluding that the tenant was unlawfully in possession after 2 March 2017, and submits that the rent reduction should have continued to 6 June 2017, on the basis that the residential tenancy agreement continued after 2 March 2017 until it was terminated in accordance with the RT Act, relevantly by the giving of a termination notice and the tenant giving vacant possession. Rent is the rent payable under the residential tenancy agreement for the premises. The tenant was not required to comply with the notice of termination and give vacant possession on 2 March 2017. The order that the rent abate by 5% meant that the rent payable for the residential tenancy agreement was $693.50 from 1 February 2017 and subsisted until the reason the premises became wholly or partly uninhabitable was remedied, or the tenant gave vacant possession, whichever happened first. 3. The landlords accepted that the works ended on 6 June 2017, and submitted that the works would not have been continuing on the tenant's balcony for the whole period. 4. Section 43 of the RT Act provides: 43 Rent reductions (1) Reduction in goods, services or facilities The tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement. (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are: (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process. … 1. Section 44 of the RT Act provides: 44 Tenant's remedies for excessive rent (1)Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders: … (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. … (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. 1. The landlords have not appealed the Member's decision that the balcony works rendered the balcony unusable for the duration of the work period, and that the appropriate amount by which the rent should be reduced was 5%, so that the rent payable was $693.50 per week. The issue is whether the Member erred in law in limiting the period of the rent reduction to 2 March 2017. It was common ground that the balcony works ceased on 6 June 2017. 2. We agree with the tenant that there was no basis for limiting the period in which the rent reduction applied to 2 March 2017. While the landlords had served a termination notice, the tenant remained in possession after 2 March 2017. The residential tenancy agreement had not terminated under s 81(2) of the RT Act, as the tenant had not given vacant possession of the premises. The Tribunal did not make an order terminating the agreement for the purposes of s 81(3) until 14 June 2017. None of the other legal reasons specified in s 81(4) for termination of the agreement applied. The residential tenancy agreement continued, on the same terms, until terminated by the Tribunal on 14 June 2017: s 18 RT Act. 3. The tenant remained lawfully in possession of the premises after 2 March 2017, and in the absence of evidence as to when the works on the tenant's balcony, as opposed to the works more generally, ended, there was no basis on which the Member was required to limit the period of the rent reduction to 2 March 2017. The tenant had an obligation to continue to pay rent in accordance with the residential tenancy agreement from that date until the residential tenancy agreement was terminated on 14 June 2017. While it may be arguable that from that date, when the tenant was required to pay an occupation fee rather than rent, ss 43 and 44 would not apply, in the circumstances of this case the relevant date is 6 June 2017, when the balcony works ceased. 4. The tenant has established an error on a question of law. Section 81 of the NCAT Act provides that 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 under s 81(1)(b) to vary the decision under appeal. The Appeal Panel is of the view that Order 5 of the orders made on 14 June 2017 should be varied to specify that the period in which the rent is not to exceed the sum of $693.50 per week is 1 February 2017 to 6 June 2017. On the Member's calculations of $5.21 per day, that is a further 96 days, totalling $500.16. The landlords are to repay that sum to the tenant. At the date of the appeal hearing, the tenant remained in possession. The Appeal Panel has no evidence to establish whether the tenant has been paying the occupation fee in accordance with Order 3 made on 14 June 2017, or is in arrears. If the tenant has now vacated the premises and it is not possible to adjust the rent ledger to reflect that varied order, the landlord is to repay the tenant any amount of rent overpaid. If there is any dispute as to the reconciliation of any amounts owing, the landlords can exercise the right conferred by Order 4 made on 14 June 2017. Orders The orders of the Appeal Panel are: 1. The appeal against Order 5 made on 14 June 2017 is upheld. 2. Pursuant to s 81 (1)(b) of the Civil and Administrative Tribunal Act 2013, Order 5 made on 14 June 2017 is varied to be: "5. (i) The rent payable under the residential tenancy agreement shall not exceed the sum of $693.50 per week from 1 February 2017 to 6 June 2017. (ii) Any rent paid by the tenant in excess of that amount is to be refunded through an adjustment to the rent ledger, or by refund by the landlords to the tenant, within 14 days of the date of these orders." 1. Leave to appeal is otherwise refused, and the appeal against Orders 1, 2, 3, 4 and 6 made on 14 June 2017 is dismissed. 2. Pursuant to s 81(1)(b) of the Civil and Administrative Tribunal Act 2013, Order 2 made on 14 June 2017 is varied to be: "2. The order for possession is suspended until 14 days from the date of publication of these orders." ********** 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: 24 October 2017