Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173 Hearing dates: 3 June 2019 Date of orders: 11 July 2019 Decision date: 11 July 2019 Jurisdiction: Appeal Panel Before: D Charles, Senior Member A Boxall, Senior member Decision: 1. The appeal is dismissed; 2. Subject to the orders below, the Tribunal makes no orders as to costs with the intent being that each party is to bear their own costs of the proceedings; 3. The Tribunal directs that if a party contends for any different costs order, such application (including submissions of no more than 5 A4 size pages) and evidence (if not already filed) must be filed within 14 days of the date of these orders; 4. The Tribunal directs that the respondent to any costs application is to file and serve submissions of no more than 5 A4 size pages and evidence (if not already filed) within 14 days thereafter; 5. The Tribunal directs that the applicant for costs may file and serve submissions in reply of no more than 2 A4 size pages within 7 days thereafter; 6. The Tribunal directs that any submission as to costs must include submissions addressing whether or not there are "special circumstances" warranting a costs order pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 NSW and also whether or not an order should be made dispensing with a hearing pursuant to section 50(2) of that Act; 7. If an application for a different costs order is made, the order for costs above shall cease to have effect. Catchwords: APPEAL - Residential Tenancy – termination – whether any error of law – leave to appeal refused – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Stephen Noel Herbert (Appellant) NSW Land & Housing Corporation (Respondent) Representation: Counsel: S Herbert (Appellant self-represented) N Simpson (Respondent) File Number(s): AP19/15274 Publication restriction: Nil 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: 19 March 2019 Before: G Kinsey, General Member File Number(s): SH 18/37731 REASONS FOR DECISION Introduction 1. This is an appeal by the Appellant, Mr Herbert, against a decision of the Tribunal in its Consumer and Commercial Division (the Decision). The Decision was made on 19 March 2019 following hearings on 20 November 2018 and 22 February 2019. The Tribunal issued written reasons for its Decision (Reasons). 2. The Tribunal's Orders were that: 1. a residential tenancy agreement between the Respondent, as landlord, and the Appellant, as tenant, in relation to certain residential premises in Woolloomooloo (the Premises) be terminated immediately in accordance with section 87 of the Residential Tenancies Act 2010 NSW (the RT Act): ".. as the tenant has breached the agreement being a failure to pay rent in accordance with the agreement"; 2. the Applicant (tenant) give possession of the Premises to the Respondent (landlord); 3. the order for possession is suspended until 16 April 2019; 4. the tenant pay the landlord an occupation fee of $92.14 per day from 20 March 2018 until the date on which vacant possession is given to the landlord; and 5. the landlord may within 60 days after the date for possession of the Premises request the relisting of the application to determine the occupation fee owing. 1. A copy of the Orders and Reasons were dispatched to the tenant (Appellant) on or shortly after 19 March 2019. 2. The Appellant filed a Notice of Appeal on 29 March 2019 in which he: 1. Appealed against the Decision on the basis that the Tribunal at first instance erred in law; 2. Sought leave to appeal against the Decision on the bases that it was not fair and equitable, it was against the weight of evidence and there is significant new evidence available; and 3. Did not seek an extension of time for the appeal. 1. On that same date, the Appellant applied for a stay of the Decision pending the determination of the appeal. 2. On 4 April 2019, the Appeal Panel made certain interlocutory orders, in which it: 1. Dismissed the Appellant's application for a stay; 2. Gave leave to both parties to be legally represented; 3. Ordered the Respondent to file its reply to the appeal by 11 April 2019; 4. Made certain orders as to the filing and exchange of written submissions and other material; and 5. Listed the appeal for hearing on 3 June 2019. 1. The Respondent replied on 11 April 2019. In its reply it: 1. Supported the Decision; 2. Opposed the application for leave to appeal; and 3. Stated that while it did not accept that the appeal was lodged within time, it did not object to the Appeal Panel extending the time for lodging the appeal. 1. On 15 April 2019 the Tribunal made a further order, refusing the Appellant's request for an adjournment of the appeal. The Decision under appeal 1. In its Reasons the Tribunal set out its findings concerning the history of the Appellant's tenancy relationship with the Respondent, as follows: 1. On 14 December 2016, the Appellant and the Respondent entered into a residential tenancy agreement for the Premises, with a term of 2 years and a weekly rent of $565.00 (Agreement 1). 2. In its clause 41, Agreement 1: 1. acknowledged the possibility of the Respondent in its absolute discretion allowing a rental rebate in accordance with its policies for granting such rebates, 2. in connection with any such rebate, imposed on the Appellant certain obligations to provide the Respondent with information from time to time as to the income and assets of the Appellant and of any other residents in the Premises, including notification within 28 days of any changes in his or their respective incomes and/or assets, and 3. authorised the Respondent to reduce or cancel any such rental rebate should the Appellant fail to comply with those obligations. 1. On 22 March 2018, the Tribunal at the request of the Respondent made orders: 1. Terminating Agreement 1, on the basis of the Appellant's breach of Agreement 1 by his failure to pay rent in accordance with its terms; and 2. Requiring that the Appellant give vacant possession of the Premises to the Respondent, such order to be suspended until 19 April 2018. 1. The Appellant appealed against that decision to the Appeal Panel of the Tribunal. On 2 May 2018, the Appeal Panel: 1. Dismissed that appeal by consent; and 2. Noted the agreement of the parties as to: 1. The amount of arrears, being $4,748.90; 2. The agreement of the parties that the Appellant would pay $50.00 per week towards discharging the rent arrears; and 3. Certain arrangements under which the Appellant would stay in occupation of the Premises and would pay rent pursuant to Agreement 1 ".. currently rebated to $200.25 per week (and subject to future change in accordance with the law and policy of the Respondent)". 1. The effect of this arrangement was as follows: 1. To create a new rental tenancy between the parties (Agreement 2) on and from 2 May 2018; 2. Agreement 2 was on terms and conditions similar to those in Agreement 1, other than as to rent, term, and start and end dates; 3. The rebated rent payable under Agreement 2 was $200.25 per week, although the relevant subsidy arrangement was due to expire on 13 May 2018; and 4. The rent was subject to review and adjustment in accordance with law and the Respondent's policy. 1. Despite several written requests and reminders, the Appellant neglected or refused to provide the information which he was required to provide under clause 41 of both Agreement 1 and Agreement 2 in order to seek the continuation of the rent subsidy. In consequence, the rent payable increased to $645.00 per week, from 14 May 2018. Two of these reminders or requests predated the making of Agreement 2 on 2 May 2018; the third of them, on 11 May 2018, was issued after Agreement 2 was made. 2. The Appellant, however, continued to pay rent at the subsidised rate of $200.25 per week. This resulted in a weekly rent shortfall of $444.75, and a significant (and growing) deficiency in the Appellant's rent account with the Respondent. 3. The Respondent was in consequence in breach of Agreement 2, and the rent had been unpaid for not less than 14 days, when the Respondent issued its termination notice to the Appellant on 1 August 2018. The termination notice was properly given. 4. The Appellant failed to comply with the termination notice. The Appellant's Case on Appeal 1. The Appellant's arguments on this appeal are set out in his written submissions dated 3 May 2019 and appear, in summary, to be as follows: 1. The Tribunal had erred by not giving proper weight to section 89(2) and (3) of the RT Act, which provide: 89 Repayment of rent owing following issue of non-payment termination notice (1) This section applies if a landlord gives a tenant a non-payment termination notice. (2) The Tribunal must not make a termination order on the ground set out in the notice if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord. (3) A termination of the residential tenancy agreement solely on the ground of non-payment of rent, and any warrant for possession issued as a result of any order for possession, cease to have effect if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord and the tenant has not vacated the residential premises. 1. The relevance of this was, the Appellant said, as follows: 1. There was an arrangement between the Appellant and the Respondent, reached in December 2017, that he pay to the Respondent $115.00 per week comprising rent of $80.00 per week, rent arrears of $20.00 per week, water charges of $10.00 per week, and water arrears of $5.00 per week. 2. This was a payment plan for purposes of section 89 of the RT Act. 3. The Appellant was compliant with this plan, since he had paid the sum of $200.25 per week, which was more than sufficient to meet his rental obligations. 4. The Tribunal's orders failed to take this circumstance into account as required by section 89(2) and (3) of the RT Act. 1. Moreover, since the Appellant had been so complying he could not have been in breach of his obligation to pay rent for the period of 14 days provided for in section 88(1) of the RT Act. 2. The Tribunal had denied him procedural fairness by not allowing him to tender certain receipts which demonstrated his payment record. 3. Agreement 2 was entered into as the result of duress and coercion on the part of the Respondent and its employees. 4. The evidence provided to the Tribunal by the Respondent and its employees was incorrect and misleading in material respects. 1. In its reasons, the Tribunal: 1. Referred specifically to sections 87(5), 88, 89, 154B and 154E of the RT Act; 2. Stated that it had taken account of the matters relevantly required under those sections to be considered by it in the context of the Respondent's application to terminate the residential tenancy with the Appellant; and 3. Set out in several paragraphs of the Reasons, from [64] to [79] (inclusive), the conclusions which it drew from that consideration, which were relevantly that: "The history of the tenancy shows that (Mr) Herbert has frequently been in arrears with his rent after the cancellation of the rent subsidy. He was also in arrears under the first agreement which culminated in the Tribunal orders on 22 March 2018. These are relevant considerations in deciding whether to make a termination order". 1. Finally, in its Reasons the Tribunal: 1. concluded that there were breaches by the Appellant which were sufficient to justify the termination of Agreement 2, 2. ordered that Agreement 2 be so terminated immediately, and 3. having regard to the circumstances of the Appellant and his family, suspended until 16 April 2019 the order for possession against the Appellant. Was there an error of law in the Tribunal's decision? 1. For the Tribunal to have erred in law by not applying subsections 89(2) and (3) of the RT Act to the Appellant's circumstances, it must first be the case that the Appellant's rental obligation was to pay $115.00 per week only. 2. The Tribunal, however, in its reasons found that: 1. Whatever the status may have been of the arrangements of December 2017 prior to 22 March 2018, the combined effect of: 1. The termination of Agreement 1 by the Tribunal's orders of 22 March 2018, and 2. The dismissal by consent of the Appellant's appeal against those orders on 2 May 2018, was that Agreement 1, whether the tenancy provided for under it or any modification or supplement to it made by the December 2017 arrangements, did not determine the Appellant's obligations to the Respondent in respect of the Premises at the time of the Decision under appeal. 1. Rather, the Appellant's obligations on and from 2 May 2018 were as set out in Agreement 2, a residential tenancy agreement entered into by the Appellant and Respondent on that date, on terms and conditions which incorporated those in Agreement 1, other than as to rent, term, and start and end dates. 2. Under Agreement 2 the rent payable on a rebated basis was $200.25 per week: "subject to future change in accordance with the law and policy of the Respondent ". 3. Because of the Appellant's failure to provide (in accordance with clause 41 of Agreement 2) the information necessary to allow the Respondent to consider whether or not to extend the rental rebate after 14 May 2018, the Appellant's rent for the Premises was thereafter $645.00 per week. 4. The Appellant, however, ".. continued to make payments of $250.25 per week on a regular basis. His evidence is that the payment was apportioned as $200.25 for rent and $50.00 towards arrears as per the agreement made on 2 May 2018": Reasons [47]. 5. Moreover, the Tribunal found: "At the date of service of the notice of termination the (Appellant) was more than 14 days in arrears with rent. The ledger shows that as at the date of service of the notice of termination the (Appellant) owed approximately $10,474.20 for rent and was about 113 days in arrears": Reasons [63(4)]. 1. The Tribunal clearly stated in its Reasons at [72] that it had regard to sections 88 and 89 of the RT Act in reaching its Decision. 2. In the light of the Tribunal's findings set out above as to: 1. the terms of the Appellant's agreement with the Respondent, and 2. the Appellant's history of failure to comply with that agreement, we are satisfied that the Tribunal did not err in law in its application of the RT Act. It took into account sections 88 and 89 of RT Act and it was entitled to conclude in the circumstances that those sections did not assist the Appellant's case. 1. We turn now to the Appellant's claim that the Tribunal erred in law by denying him procedural fairness through its refusal to accept in evidence certain receipts issued to him by Australia Post in relation to payments by him on account of rent and other amounts referrable to the Premises. We observe that: 1. All except two of the payments identified in those receipts, copies of which were attached to the Appellant's submissions, are recorded in the Respondent's ledger accounts dated 21 February 2019 for the Appellant; 2. The two payments which are not so recorded were made on 9 March 2019, more than two weeks after the date up to which those ledger accounts were prepared and, significantly, the date of the hearing on 22 February 2019; and 3. The conclusion we draw is that if the Tribunal did in fact refuse to allow the Appellant to tender the receipts in evidence it did not thereby deny him procedural fairness, since the Respondent's ledger account for the Appellant disclosed all relevant information which could have been derived from the receipts. Application for leave to appeal 1. Clause 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 NSW (the NCAT Act) allows the Appeal Panel to give leave to appeal from a decision of the Tribunal in its Consumer and Commercial Division: only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) 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, at [71] and [79], the Appeal Panel summarised what is meant by a 'substantial miscarriage of justice': '[71] …………… 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 [sic] 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. Nothing in the Appellant's submissions or the additional evidence to which he referred satisfies us that the Appellant was deprived of such a chance, because: 1. The Tribunal's findings concerning the relevant contractual history as between the Appellant and the Respondent are both consistent with the evidence and legally reasonable in nature, having regard to that evidence. 2. So too are the conclusions which the Tribunal drew concerning both: 1. the amounts payable and actually paid by the Appellant as rent, and 2. the Appellant's responsibilities under (initially) Agreement 1, and (subsequently) Agreement 2, to provide information to the Respondent concerning the income and assets of residents of the Premises. 1. In particular, the shortfall between: 1. the Appellant's weekly rent since 14 May 2018, and 2. the amounts he has actually paid since that date, whether determined by reference only to his ledger account with the Respondent (copies of which both he and the Respondent submitted to the Appeal Panel), or alternatively, to that ledger account, but supplemented by the copy payment receipts which he submitted to the Appeal Panel, is both large and self-evident. 1. Against that weight of evidence, there is in our view no basis to suggest that the Appellant, as stated in Collins v Urban, "has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result". 2. Turning now to the particular circumstances set out in clause 12(1) of Schedule 4 of the NCAT Act, we not consider that any of them arise in this appeal. Whether the decision of the Tribunal was not fair and equitable 1. While the termination of the Appellant's tenancy agreement and the order that he vacate the Premises was undoubtedly a major personal blow to him and his family, it is clear from the evidence (as the Tribunal found) that he is the author of his own misadventure. We see no reason to disagree with the Tribunal's finding (Reasons [68] - [70]), that: "[68] (Mr) Herbert has been given many opportunities to provide information to enable an assessment of his eligibility for the rent subsidy. For whatever reason he has refused and must now suffer the consequences of that decision. [69] Housing has written several letters requesting information and attempted to engage with (Mr) Herbert. It has put him on notice that his rent subsidy would be cancelled if the information was not forthcoming. It was incumbent upon (Mr) Herbert to make the application for the rent subsidy and provide the necessary information for Housing to assess the application. [70] The previous history of the tenancy shows that (Mr) Herbert has frequently been in arrears with his rent after the cancellation of the rent subsidy. The rent ledger reveals that since (Mr) Herbert became a tenant in December 2016 he was constantly behind with the rent. There is a history of non-compliance with the terms of the residential tenancy agreements". 1. Moreover, in reaching its Decision the Tribunal: 1. expressly had regard to sections 87(5), 88, 154B and 154E of the RT Act, all of which directed it to look to specific considerations in its deliberations; and 2. allowed the Appellant a period of one month in which to find alternative accommodation, taking into account, the Appellant's personal and family circumstances in doing so: Reasons [81]. 1. We do not, having regard to these matters, consider that there is anything to suggest that the Tribunal's Decision was not fair and equitable. Whether the decision of the Tribunal was against the weight of the evidence 1. We cannot discern anywhere in the Tribunal's Reasons any basis for concluding that the Decision under review was against the weight of evidence. 2. In particular the Tribunal's findings as to: 1. The history of dealings between the Appellant and the Respondent; 2. The Appellant's persistent failure to make payment in full of rent payable under Agreement 2, and 3. The Appellant's persistent failure to take steps to secure the rental subsidy, are in our view consistent with the evidence which was clear and compelling. 1. At this point we observe that the Appellant has provided nothing to support his assertion that the evidence provided to the Tribunal was materially incorrect or misleading. In the absence of corroboration for his assertion, we reject it. Whether significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) 1. The receipts which the Appellant relied upon, and which were appended to his written submissions (other than the receipts dated 9 March 2019), were not new evidence. Their dates are such that they must have been available at the hearing on 22 February 2019, the latest of them being dated 20 February 2019. 2. The receipts for the two payments made on 9 March 2019 are clearly new evidence, since the payments had not been made (and the receipts did not exist) at the time of the hearing on 22 February 2019. 3. These receipts are for a total of $620.50, which was clearly insufficient to have made any significant reduction in the Appellant's unpaid rent balance, which as at 20 February 2019 stood at $21,046.20 and was increasing by gross weekly increments of $645.00. 4. The information disclosed in these two receipts would have made no substantive difference to either the Appellant's position or the Tribunal's Decision and so, while they may be new evidence, they are not significant new evidence which, had it been taken into account, could have led to a different and more favourable result for the Appellant. 5. The Appellant has also made in his submissions certain allegations concerning the conduct of the Respondent and its officers in relation to the settlement of his appeal in May 2018 and the negotiation of Agreement 2. The only evidence for this claim is the Appellant's uncorroborated assertions. Such assertions, in our view, are not significant new evidence of the relevant kind, for two reasons: 1. Because they are the Appellant's own assertions as to events which took place in May 2018, they were self-evidently available at the time of the Tribunal's hearing in February 2019; there is nothing in the Reasons to suggest that the Appellant made these assertions (and thus introduced his evidence of relevant events), and accordingly the assertions cannot be new evidence which satisfy the test in paragraph (c) of clause 12(1) of Schedule 4 of the NCAT Act; and 2. As uncorroborated assertions by the Appellant, the evidentiary value of the claims is slight; in our view, even if they were accepted as new evidence, they could not be characterised as significant new evidence in the absence of some corroboration; to do so would strip paragraph (c) of clause 12(1) of Schedule 4 of any real effect. Orders 1. For the foregoing reasons, the appeal must be dismissed. 2. We did not hear from the parties on costs; but our preliminary view is that there are no special circumstances warranting a costs order (NCAT Act, s 60(2)) and that each party should bear their own costs. If the parties contend for a different costs outcome, then provision is made in the orders for further submissions on costs. 3. We make the following orders: 1. The appeal is dismissed. 2. Subject to the orders below, the Tribunal makes no orders as to costs with the intent being that each party is to bear their own costs of the proceedings. 3. The Tribunal directs that if a party contends for any different costs order, such application (including submissions of no more than 5 A4 size pages) and evidence (if not already filed) must be filed within 14 days of the date of these orders. 4. The Tribunal directs that the respondent to any costs application is to file and serve submissions of no more than 5 A4 size pages and evidence (if not already filed) within 14 days thereafter. 5. The Tribunal directs that the applicant for costs may file and serve submissions in reply of no more than 2 A4 size pages within 7 days thereafter. 6. The Tribunal directs that any submission as to costs must include submissions addressing whether or not there are "special circumstances" warranting a costs order pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 NSW and also whether or not an order should be made dispensing with a hearing pursuant to section 50(2) of that Act. 7. If an application for a different costs order is made, the order for costs above shall cease to have effect. ********** 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. 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 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: 11 July 2019