Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Herbert v NSW Land and Housing Corporation [2020] NSWCA 80 Hearing dates: 28 April 2020 Decision date: 30 April 2020 Before: Macfarlan JA; Meagher JA Decision: (1) Dismiss the summons seeking leave to appeal filed 11 December 2019. (2) Order the applicant pay the first respondent's costs of the summons. (3) Dissolve the order staying the execution of the warrant for possession issued on 26 July 2019. Catchwords: APPEAL – application for leave to appeal – proposed appeal from appeal on question of law under Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) – where appeal grounds without merit – where arguable errors by Tribunal not relied on in proposed grounds of appeal – where those errors not raised before Tribunal or likely to have been material to outcome – leave refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83 Housing Act 2001 (NSW), s 56 Residential Tenancies Act 2010 (NSW), ss 41, 87, 88, 113 Cases Cited: Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173 Herbert v NSW Land and Housing Corporation [2019] NSWSC 1703 Navazi v NSW Land and Housing Corporation [2015] NSWCA 308 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Category: Principal judgment Parties: Stephen Noel Herbert (applicant) New South Wales Land and Housing Corporation (first respondent) New South Wales Civil and Administrative Tribunal (second respondent) Representation: Counsel: Applicant self-represented N Simpson (first respondent) Solicitors: Applicant self-represented New South Wales Land and Housing Corporation (first respondent) File Number(s): 2019/390139 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 1703 Date of Decision: 2 December 2019 Before: Adamson J File Number(s): 2019/240755 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant lives with his wife and adult children in social housing in Woolloomooloo. On 19 March 2019, the Civil and Administrative Tribunal (the Tribunal) ordered under Residential Tenancies Act 2010 (NSW) (RT Act), s 87(4) that his residential tenancy agreement with the first respondent was terminated because he had breached that agreement by failing to pay rent. It was common ground that the relevant residential tenancy agreement was made on 2 May 2018 when earlier proceedings before the Tribunal were resolved. Those proceedings concerned a residential tenancy agreement made on 14 December 2016. 2. Mr Herbert's appeal from that order was dismissed by an Appeal Panel on 11 July 2019: Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173. He then appealed to a judge in the Common Law Division of this Court, pursuant to Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), s 83. That appeal required leave and was limited to a question or questions of law. The primary judge (Adamson J) heard that application and appeal on 28 November 2019. Mr Herbert was represented by counsel, providing pro bono assistance. Two grounds of appeal were argued. Leave to appeal was granted in relation to ground 1, but not in relation to ground 2, and the appeal in relation to ground 1 was dismissed: Herbert v NSW Land and Housing Corporation [2019] NSWSC 1703. 3. Mr Herbert now seeks leave to appeal from those orders. The requirement for leave to appeal to this Court is directed to restricting the appeal procedure to cases where there are substantial reasons to allow appellate review. 4. The arguments underlying the grounds of appeal relied on before the primary judge were not put either to the Tribunal or to the Appeal Panel. In his application for leave to appeal to this Court, Mr Herbert relies on the first of those grounds, but not the second. Before addressing that application, it is necessary to summarise briefly the history of the proceedings. 5. On 14 December 2016, Mr Herbert entered into a residential tenancy agreement with the first respondent for a term of 2 years at a weekly rent of $565. The first respondent granted him a rental rebate under the Housing Act 2001 (NSW), s 56 with the result that the rent that he actually paid was much lower. Mr Herbert maintains that this first agreement was varied on 5 December 2017, with the result that the rent payable, net of the amount rebated, was lower still. 6. There followed earlier proceedings before the Tribunal in which the first respondent sought to terminate the first tenancy agreement. On 2 May 2018, those proceedings were resolved. A second residential tenancy agreement was made, having the same weekly rent as the first (by then $645 per week), and Mr Herbert was granted a further rental rebate with the result that the rent actually paid was $200.25 per week. At the same time, Mr Herbert agreed to repay the rent arrears of $4,748.90 under the first agreement by weekly payments of $50. 7. Mr Herbert's rental rebate under the second agreement was cancelled, with effect from 14 May 2018. Accordingly, from that date he was required to pay the full weekly rental of $645. He did not do so, continuing instead to pay amounts of $200.25 and $50 per week. That underpayment of rent resulted in the service of a termination notice dated 1 August 2018, which stated the rent owing as at 28 July 2018 to be $9,434.45. That amount included the amount of $4,748.90 due under the first agreement, and was accordingly not correct. 8. Returning to the arguments made to the primary judge, ground 1 was that the termination notice, and the termination order confirmed by the Appeal Panel, were invalid because the rental rebate was not able to be cancelled, so as to result in a rent increase, unless Mr Herbert was first given at least 60 days written notice under RT Act, s 41. In the absence of that notice, it was submitted that the rent did not increase from $200.25 per week. Mr Herbert continued to pay that amount. Accordingly, he was said not be in breach. The primary judge dealt with and rejected this argument at [53]-[76]. 9. The argument made to the primary judge in support of ground 2 was that the termination notice was defective because it overstated the amount of rent owing under the second agreement and accordingly did not inform Mr Herbert of the correct amount which had to be paid if he was not to be required to vacate the premises (cf. RT Act, s 88(3)). 10. The primary judge concluded that Mr Herbert should not have leave to make this argument in circumstances where it had not been raised before the Tribunal or the Appeal Panel. Her Honour's reasons for doing so were that she was not persuaded there had been any error by the Tribunal in not addressing the consequences of a defect in the termination notice which was not relied on or raised; that there was obvious prejudice to the first respondent, because inevitably it would have cross-examined Mr Herbert on matters relevant to the consideration required by RT Act, s 113; that Mr Herbert was not likely to have been misled by the error in the notice, because he knew how the figure claimed was calculated and that it included the lump sum for arrears from the first agreement; and that the difference in the rent arrears was "not, in that context, material", because Mr Herbert did not propose to pay either the amount of the arrears or the difference between the weekly amount he was paying and $645 per week: at [93]-[95]. 11. In his written argument to this Court, Mr Herbert reduces the 17 paragraphs of narrative under the heading "Appeal Grounds" in his summons seeking leave to appeal to five grounds. Proposed ground 2 maintains the first of the arguments made to the primary judge. We agree with her Honour's reasons for rejecting that argument, which depended on the application of s 41 in the context of the expiry of "rent rebates" under the RT Act and "rental rebates" under the Housing Act 2001 (NSW). The cancellation of Mr Herbert's rent rebate did not, as a matter of law, increase the rent payable. That rent was and remained $645 per week, the rent rebate being an offer to Mr Herbert during the life of the rebate to accept the rebated amount in satisfaction of his continuing obligation to pay that weekly rent. 12. Turning to the remaining grounds four grounds relied on by Mr Herbert, the first ground is directed to the residential tenancy agreement he contends was made on 5 December 2017. He relies on that agreement as reducing the weekly rent which was otherwise liable to be paid in the period to 2 May 2018, with the result that the alleged arrears of $4,748.90 were not owing. That argument is not relevant to the validity of the termination notice and order made with respect to the 2 May 2018 tenancy agreement. Mr Herbert's ground 3 relies on RT Act, s 89(2) as preventing the making of the termination order, the tenant having paid all of the rent owing. Before the Tribunal, Mr Herbert accepted that a new residential tenancy agreement was made on 2 May 2018 and before the primary judge accepted that the cancellation of the existing rental rebate with effect from 14 May 2018 was valid: at [29], [45]. It follows that the prohibition in s 89(2) could only apply if his argument as to the application of s 41 was upheld. 13. Mr Herbert's proposed grounds 4 and 5 are difficult to follow, to say the least. The former refers to and relies on the provisions of the Minors (Property and Contracts) Act 1970, s 19, which binds minors to beneficial civil acts in which they participate; and RT Act, s 154D(3)(b), which describes circumstances in which the Tribunal is not required to make a termination order by s 154D(1) and (2). Those circumstances include where the Tribunal is satisfied that the order "would be likely to result in undue hardship being suffered by a child who is occupying or jointly occupying the relevant social housing premises". No argument relying upon these provisions was made to the primary judge. Finally, proposed ground 5 has no apparent relevance, relying as it does on "protection under s 109 of the Australian Constitution". 14. None of these grounds constitutes an arguable ground in support of the appeal. It remains to consider the second ground relied on before the primary judge, which is not pressed in the application to this Court. It is arguable that the Tribunal's failure to identify that the notice of termination was defective involved an error of law, which led to a further error of law in its taking into account an extraneous or irrelevant consideration when addressing whether Mr Herbert's breach was sufficient to justify termination of the agreement under s 87(4). In doing so, the Tribunal may have committed a jurisdictional error: see the discussion in Navazi v NSW Land and Housing Corporation [2015] NSWCA 308 at [55]-[60]. There is then a further question as to whether the Tribunal's failure to address the matters in s 113, in the face of that defect, also constituted a jurisdictional error. 15. It is not necessary to pursue these matters further, because in our view the primary judge correctly concluded that Mr Herbert should not be permitted to raise them for the first time in his appeal to a single judge of the Supreme Court. The general principle is that parties are bound by the way they conduct proceedings, and consequently disallowed from raising new matters on appeal, especially where they would have affected the course of evidence, were deliberately not raised, or would not have made a difference to the outcome had they been raised. See, for instance, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ). Although her Honour's discussion of the relevant principles in this respect relies upon the Anshun principle (named after Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45), we think the applicable general principle is that to which we have referred. 16. However, her Honour's conclusion addressed the same considerations as the applicable principle required be addressed. In particular, her Honour concluded that this argument could have been the subject of evidence (secured by cross-examination of Mr Herbert), and that the high likelihood was that a termination order would then have been made. Furthermore, looking forward, the result is not likely to be any different if leave were granted, the appeal allowed, and the matter returned to the Tribunal to enable ss 87(4) and 113 to be reconsidered in the light of the correct amount of rental arrears. Finally, in argument before this Court Mr Herbert frankly conceded that he was not misled by the inclusion of the wrong amount in the 1 August 2018 termination notice. He maintained that amount was not owing under the first agreement and accordingly he would not have paid it or the arrears under the second agreement, the latter consisting of the difference between the rebated rate and the weekly rental from 14 May 2018. 17. In the result, leave to appeal should be refused. The only arguable errors are not relied on by Mr Herbert in his proposed appeal to this Court. Furthermore, those errors are in respect of matters which would have been addressed by evidence before the Tribunal, and which in any event were not likely to have been material to its decision. Accordingly, the summons for leave to appeal should be dismissed with costs. 18. There remains the question as to the enforcement of the order for possession confirmed by the Appeal Panel on 11 July 2019. The Court was informed by counsel for the first respondent that on its application, a warrant for possession was issued under RT Act, s 121 on 26 July 2019. On 2 August 2019, Ierace J made an order staying the execution of that warrant. The primary judge dissolved that stay by an order made on 2 December 2019, but with effect on and from 16 December 2019. On that day the Registrar of the Court of Appeal made an order: The warrant for possession issued in respect of premises unit 36, 79 - 85 Brougham Street, Wooloomooloo NSW 2011 be stayed until further orders, on condition that Mr Herbert pay the NSW Land and Housing Corporation $250.00 per week commencing on 18/12/2019. 1. Counsel for the first respondent informed the Court that his client accepts that the warrant issued in July 2019 has expired, and that accordingly it is necessary for it to make a further application for the issue of a warrant for possession under RT Act, s 121. Counsel also indicated that the first respondent would not make such an application without first giving Mr Herbert 28 days' written notice of its intention to do so. In these circumstances, it is not necessary for this Court to make any order suspending the execution of any warrant for possession which may have been issued and still be in force. 2. The Court makes the following orders: 1. Dismiss the summons seeking leave to appeal filed 11 December 2019. 2. Order the applicant pay the first respondent's costs of the summons. 3. Dissolve the order staying the execution of the warrant for possession issued on 26 July 2019. ********** 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: 30 April 2020