Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wilson v NSW Land and Housing Corporation [2020] NSWCATAP 82 Hearing dates: 26 March 2020 Date of orders: 12 May 2020 Decision date: 12 May 2020 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member Dr J Lucy, Senior Member Decision: (1) Leave to appeal is refused. (2) Appeal dismissed. Catchwords: APPEALS – Residential tenancies – Whether Tribunal erred in removing occupant of premises as a party – Whether Tribunal erred in failing to award tenant any compensation where lease terminated by operation of law – Whether Tribunal erred in failing to award additional compensation to that awarded in earlier proceedings – Whether leave should be granted to appeal on grounds which do not raise questions of law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Texts Cited: None cited Category: Principal judgment Parties: Ferlin Wilson (First Appellant) Nathan Emanuel (Second Appellant) NSW Land and Housing Corporation (Respondent) Representation: Solicitors: Secon Appellant (Self Resented & Agent for First Appellant) Department of Communities and Justice Legal (Respondent) File Number(s): AP 19/56895 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 5 December 2019 Before: S Hanstein, General Member File Number(s): SH 19/42824 REASONS FOR DECISION 1. The appellants appeal from a decision of the Tribunal in residential tenancy proceedings SH19/42824, rejecting their claim for compensation flowing from the termination of the first appellant's fixed term lease and the landlord's failure to carry out repairs. They also appeal from the Tribunal's decision to remove the second appellant as a party, claiming that he was a tenant and a proper party. 2. The appellants have not identified any error of law in the Tribunal's decision or any basis for the grant of leave to appeal. For the reasons which follow, we have dismissed the appeal. Background 1. Mr Wilson was a tenant under a social housing agreement with NSW Land and Housing Corporation ("the landlord"). On 10 April 2013, the tenancy agreement between the parties was extended until 12 March 2023. 2. The premises were subject to a head lease. The head lease had a three year fixed term from 10 June 2017, with an option to renew for a further three years. 3. On 12 November 2018, Mr Wilson brought an application in the Tribunal seeking repairs to the premises (the "proceedings for repairs") (SH18/48281). On 13 February 2019, the Tribunal ordered the landlord to undertake those repairs by 30 April 2019. 4. The head landlord brought proceedings seeking termination of the tenancy agreement under which the landlord (that is, the respondent) was the tenant (RT19/17912). That head tenancy agreement was terminated by consent of the parties on 2 July 2019. The head landlord became entitled to possession of the premises on 9 August 2019. 5. The effect of the termination of the head lease was that Mr Wilson's tenancy was terminated, by operation of law, from the date the head landlord became entitled to possession of the premises (Residential Tenancies Act 2010 (NSW), s 81(4)(a)). 6. Meanwhile, Mr Wilson brought renewal proceedings in respect of the proceedings for repairs, on the basis that the landlord had not completed the repairs it had been ordered to complete ("the renewal proceedings") (SH19/19521). 7. Mr Wilson brought further proceedings seeking a rent reduction for inability to use two bedrooms due to issues arising from water damage, an order that the fixed term tenancy be reinstated and compensation for storing building materials ("the rent reduction proceedings") (SH19/19268). 8. The renewal proceedings and the rent reduction proceedings were heard together. On 2 July 2019, the Tribunal declined to make a further work order in the renewal proceedings, due to the termination of Mr Wilson's tenancy, and instead ordered the landlord to pay Mr Wilson $2,500 in compensation for failure to undertake repairs. This amount represented $100 per week compensation for 25 weeks from 19 February 2019. On the same day, the Tribunal ordered the landlord to carry out certain urgent repairs in the rent reduction proceedings by 9 July 2019, but declined to make any further orders. 9. On 4 July 2019, the landlord wrote to Mr Wilson in a letter headed "Relocation Statement." This stated that Mr Wilson would be given two offers of alternative housing. It also stated: "We will assist you with the following to help you move: • Removalist expenses • 2 weeks rent abatement." 1. On 26 July 2019, Mr Wilson's application for a private rental subsidy was approved. Mr Wilson rejected the offers of alternative social housing. 2. Mr Wilson appealed to the Appeal Panel from the decision in the rent reduction proceedings. The appeal was dismissed, by consent, on the condition that the appellants could commence new proceedings claiming, amongst other things, compensation for damage to furniture arising from failure to carry out repairs. 3. On 15 August 2019, the Minister for Families and Communities wrote to Mr Wilson and Mr Emanuel stating that the Department of Communities and Justice would provide assistance with their relocation, including removalist expenses. 4. On 23 September 2019, Mr Wilson and Mr Emanuel commenced the proceedings from which they now appeal. 5. In those proceedings, Mr Wilson and Mr Emanuel sought, relevantly: 1. $2,000 in moving costs incurred due to relocating to a new property following the termination of the tenancy; 2. $5,152 in damaged possessions due to the landlord breaching s 52(1) of the Residential Tenancies Act (the obligation to provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant) and for failure to do repairs; 3. $449 for the cost of an independent building report to prove that the landlord's breach caused damages to the possessions; 4. $7,403 in compensation for the landlord breaking the fixed term tenancy agreement, which "disrupted the peace of living at the property." 1. The Tribunal dismissed the applicants' application. It also made an order removing Mr Emanuel as a party, describing him as an "authorised occupant" of the premises. Nature of appeal 1. A party may appeal as of right on any question of law or with the leave of the Appeal Panel, on any other grounds (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2)(b)). 2. In respect of grounds which do not raise a question of law, where an appellant is appealing from the Consumer and Commercial Division of the Tribunal (as here), the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Sch 4 to the NCAT Act. Clause 12(1) of Sch 4 provides that the Appeal Panel may only grant leave under s 80(2)(b): "if 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. Mr Wilson seeks leave on the bases that he suffered a substantial miscarriage of justice because the Tribunal's decision was not fair and equitable and because it was against the weight of evidence. 2. The general principles when granting leave to appeal on the basis that an applicant for leave may have suffered a substantial miscarriage of justice were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] as follows: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 3. In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. Grounds of appeal 1. Mr Wilson set out six grounds of appeal in his Notice of Appeal, each of which is dealt with below. None of his grounds raise a question of law, meaning that he needs leave to appeal on each ground. 2. Mr Emanuel was granted leave to represent Mr Wilson at the appeal hearing. Ground 1: Removal of Mr Emanuel as a party 1. The first ground was that the landlord's representative "perjured verbal evidence" that Mr Emanuel was not a tenant. As the landlord has acknowledged, where appellants are self-represented, it may be "appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal" (Cominos v Di Rico [2016] NSWCATAP 5 at [13]). 2. We understand this ground to be, in substance, that the Tribunal erred in removing Mr Emanuel as an applicant, because it relied upon false evidence given for the landlord, and because Mr Emanuel was, in fact, a tenant. 3. Mr Emanuel said at the hearing of the appeal that he had been paying rent to the landlord and so was a tenant. He said that the Tribunal did not have evidence before it that he was paying rent but sought to rely upon new evidence that, he said, showed he was paying rent. The new evidence consisted of a Centrelink Statement for Carer Payment for 2011 in Mr Emanuel's name, and statements of his carer payments for 2012 and 2016, showing that a NSW Government Housing Payment had been deducted from his carer payment. 4. We do not grant leave to rely upon this new evidence. The appellants have not established that they could not have put it before the Tribunal and, in any event, it does not prove that Mr Emanuel was a co-tenant. The documents do not establish that Mr Emanuel was paying rent in the years they relate to, let alone in 2019. As Mr Fester submitted for the landlord, the payment of rent does not prove that Mr Emanuel was a tenant. Mr Wilson had a right to have an additional occupant at the premises. Mr Emanuel was not named as a tenant on the residential tenancy agreement. We can see no error in the Tribunal's conclusion that he was not a tenant and should therefore be removed as a party. 5. In these circumstances, we would not grant leave to appeal on the first ground. Ground 2: Compensation for moving costs 1. The second ground was that the landlord had undertaken, in correspondence, to pay for Mr Wilson's moving costs, but failed to do so. We take this ground to be a complaint that the Tribunal erred in finding that the landlord was not required to compensate Mr Wilson for his moving costs. 2. The landlord's representative told the Tribunal at the hearing that, if Mr Wilson and Mr Emanuel had moved to one of the landlord's properties, it would have paid for their moving costs. However, it would not do so in circumstances where tenants moved to private rental accommodation. 3. The Tribunal found that, as the termination arose by operation of law, rather than as a result of any breach by the landlord, Mr Wilson was not entitled to any compensation from the landlord for termination of the agreement, and was not entitled to moving costs. 4. It is unfortunate that the letters to Mr Wilson and Mr Emanuel from the landlord undertook to pay for their moving costs, without expressly indicating that the offer was conditional upon them moving into another property leased to them by the landlord. Notwithstanding that this was potentially misleading, we are not satisfied it is appropriate to grant leave on this ground. The appellants have not identified "an injustice which is reasonably clear," to use the language of Collins v Urban. They have not shown that, in reliance on this representation, they incurred costs which they would not otherwise have incurred. 5. Most importantly, the appellants have not demonstrated that the Tribunal made any error of fact or law, or that its decision was not fair and equitable or was against the weight of evidence. The Tribunal correctly found that, in circumstances where a tenancy is terminated by operation of law, the landlord is not responsible for compensating a tenant for the consequences of such termination. The appellants have not identified any basis upon which they would be entitled to enforce the gratuitous promise of the landlord to pay for their relocation costs. We do not consider there to be any. 6. Accordingly, leave to appeal on this ground is refused. Ground 3: Compensation for breach of right to quiet enjoyment 1. The third ground challenges the Tribunal's findings in paragraph 15 of its decision. In that paragraph, the Tribunal rejected Mr Wilson's claim that the landlord interfered with his reasonable peace, comfort and privacy in using the premises (see Residential Tenancies Act, s 50(2)). The Tribunal stated that Mr Wilson had a right to quiet enjoyment until his tenancy was terminated but that, afterwards, he had no such right. The Tribunal identified as Mr Wilson's real complaint that the tenancy was ended and he was not able to occupy the premises for the full period of the fixed term; and the fact that he could not occupy the premises after the tenancy was terminated did not amount to interference with his reasonable peace, comfort and privacy in using the premises. 2. Mr Wilson's third ground states that he "did not have the right to quiet enjoyment prior to" the termination. Mr Emanuel said very little about this ground at the hearing of the appeal. 3. We are not persuaded that the Tribunal made any error in the way it dealt with Mr Wilson's right to quiet enjoyment. We decline to grant leave to appeal on this ground. Ground 4: Compensation for cost of building report 1. The fourth ground challenges the Tribunal's finding that Mr Wilson was not entitled to reimbursement from the landlord for the cost of a building report. Mr Wilson had said that the building report was necessary to prove that the landlord had not carried out repairs, and that his possessions had been damaged as a result. The Tribunal found that the report was obtained after the repairs had been carried out, and that its purpose was to support Mr Wilson's claim for compensation. It was therefore part of the costs of the proceedings. The Tribunal declined to award costs, finding that there were no special circumstances warranting an award of costs within s 60 of the NCAT Act. 2. Mr Wilson appeals on the ground that there were special circumstances in having to obtain a building report to prove that the landlord had neglected its duty in not carrying out repairs to the property and to prove the extent of the damages which were denied by the landlord. 3. The question of whether there are special circumstances warranting an award of costs is a discretionary decision. Mr Wilson has not identified any error in the exercise of the discretion. 4. Mr Wilson has not shown that the Tribunal was incorrect to conclude that the building report was obtained after the repairs had been carried out. Mr Emanuel referred, at the appeal hearing, to a building report obtained in 2018, but the documentary material demonstrates that the building report which was in evidence, and which cost $449 (the amount of the claim), was obtained in August 2019. Even if the building report was necessary for the reasons given by Mr Wilson, it does not necessarily follow that there are special circumstances warranting an award of costs. 5. We do not consider that Mr Wilson may have suffered a substantial miscarriage of justice because the Tribunal's decision not to allow the cost of the building report was not fair and equitable or because it was against the weight of evidence. 6. Leave to appeal on this ground is refused. Ground 5: Compensation for cost of storage shed 1. The fifth ground challenges the Tribunal's rejection of Mr Wilson's claim for the cost of hiring a storage shed for two months to store possessions, so that they would not get damaged due to the landlord not completing repairs to the property. The Tribunal found that that cost may have been reasonably necessary as a result of the landlord not carrying out repairs, but declined to grant any further compensation to the compensation granted by the Tribunal in the renewal proceedings on 2 July 2019. It stated: "The cost of hiring a storage shed was so relevant to the subject matter of those earlier proceedings, being necessary as a result of the very breaches by the landlord that were being considered in those proceedings, that it should have been raised at that time." 1. Mr Wilson appealed from this decision on the basis that he was not permitted to raise the cost of the storage shed at the hearing on 2 July 2019 as he had not included a claim for that cost in his application to the Tribunal. 2. We do not consider that Mr Wilson may have suffered a substantial miscarriage of justice due to the Tribunal's decision not to allow him the cost of the storage hire. The Tribunal was entitled to form the opinion that this was a matter which should have been raised in the earlier proceedings. Mr Wilson did not appeal from the decision in the renewal proceedings that he could not claim, specifically, the cost of the storage shed. It was open to the Tribunal to find, in the proceedings the subject of this appeal, that it was too late for Mr Wilson to raise the issue of compensation for storage hire after the renewal proceedings had concluded. 3. We decline leave to appeal on this ground. Ground 6: Rent reduction 1. The sixth ground is a challenge to the Tribunal's decision not to order a rent reduction from 12 November 2018 to 19 February 2019. The Tribunal gave the following reasons for refusing the requested rent reduction: "The applicant seeks a rent reduction from 12 November 2018 (the date on which the application in SH18/48281 was lodged) until 19 February 2019, being the start of the period for which a rent reduction has already been allowed in SH19/19521. I am not satisfied the order sought should be made. The Tribunal was aware of the history of the situation when making the order in SH19/19521, and considered that compensation should be awarded in the form of a rent reduction of $100 per week from 19 February 2019 to 9 August 2019. I am not satisfied that any further order is warranted." 1. Mr Wilson appealed on the basis that, when making orders in the proceedings the subject of this appeal, at a hearing on 16 October 2019, the Tribunal granted leave for an amended claim which was to include an application for backdated rent reduction. 2. There is no evidence before the Appeal Panel of the orders made at that hearing or of what the Tribunal member said at that hearing. With the consent of the parties, the Appeal Panel reviewed the orders made on 16 October 2019 and the amended application, which were on the Tribunal file SH19/42824. 3. The application as lodged on 23 September 2019 did not include an application for rent reduction. On 16 October 2019 a Tribunal member granted leave to amend the claim and provide a copy to the Tribunal and the landlord, including "a list of each amount claimed, specifying the monetary amount of each claim", and "a copy of all invoices, quotes, statements and other documents which will be relied upon at the hearing". The Tribunal member's notes include a reference to a foreshadowed claim for further compensation for reduction in services and facilities. The amended application, filed 31 October 2019, includes the amount of $7138 in compensation for breaking the fixed term agreement, being compensation for "backdated rent reduction" due to lack of facilities due to failure to complete repairs, and compensation for the remainder of the fixed term lease. 4. Notwithstanding that Mr Wilson was granted leave to make an amended application, the Tribunal determining the application on the basis of that amended application and the evidence then available was entitled to come to the conclusion to which it came. That is, it was open to the Tribunal to find that the Tribunal had already considered what rent reduction should be awarded, in the context of the history of the matter, in the renewal proceedings, and that it had decided to grant compensation only from 19 February 2019. 5. The Tribunal's decision does not appear to us to be against the weight of evidence or not fair and equitable. 6. We are not satisfied that the Tribunal made any error, or that there is a proper basis for the grant of leave, and we refuse leave to appeal on this ground. Orders 1. For the reasons given above, we make the following orders: 1. Leave to appeal is refused. 2. Appeal dismissed. ********** 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: 12 May 2020