Asirvadem v Wesley Community Services Ltd

Background

1. The parties have been in a landlord and tenant relationship since 2015.
2. There is no dispute that they each signed a social housing residential tenancy agreement for a fixed 12 month tenancy commencing on 12 September 2019 in respect of a unit, which we understand was shared with two others. Upon the expiry of that fixed term the tenancy became a periodic tenancy upon the same terms as the fixed term tenancy agreement, in accordance with s 18 of the Residential Tenancies Act 2010 (NSW) (RTA).
3. The RTA applied to the agreement (s 6 of the RTA), a matter that was acknowledged in the residential tenancy agreement itself (page 3, heading "Tenancy Laws")
4. The second page of the residential tenancy agreement contained some provisions concerning rent. These provisions specified that the "market rent" was $450.00 per week and "refer to section: Subsidised rent for actual payable amount". The subsidised rent provision specified that rent was $110.00 per week or $220.00 per fortnight payable in advance. It then stated: *Subsidised rent is calculated based on your household's assessable income. If you receive a Centrelink benefit we will also calculate your Commonwealth Rent Assistance (CRA) entitlement, which is included in your subsidised rent. Refer to the Rent Calculation Report for the calculation details of your subsidised rent.
5. These rent provisions then went on to specify three methods by which rent must be paid, one of which was by bank transfer/deposit into a specified bank account number with the account name of "Wesley Mission".
6. The obligation to pay rent, and to pay on time, was set out in clause 3 of the residential tenancy agreement. In this clause there was also an obligation of the landlord to provide the tenant with at least one means to pay rent for which the tenant did not incur a cost and which was reasonably available to the tenant (clause 4 (a)).
7. With respect to rent increases, it was agreed that the rent could not be increased after the end of the fixed term unless the landlord gave not less than 60 days written notice of the increase to the tenant (clause 5). It was also agreed that increased rent was not payable unless the rent was increased in accordance with the residential tenancy agreement and the RTA or by the NSW Civil and Administrative Tribunal (NCAT) (clause 6 (c)).
8. For the purpose of rental subsidy assessment, the tenant was obliged to provide the landlord with information about his income and provision was made to enable the landlord to verify that information with any third party (clause 57).
9. Rent increases are regulated by the RTA. Section s 41, relevantly, provides: 41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if - (a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and (b) the notice is given at least 60 days before the increased rent is payable. (1A) Subsection (1) does not apply to a fixed term agreement for a fixed term of less than 2 years that specifies the date on which, and the amount by which, the rent payable under that agreement will be increased. This subsection does not affect the operation of subsection (2) in relation to the renewal of a fixed term agreement. (1B) The rent payable under a periodic agreement may not be increased more than once in any period of 12 months. …. (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. (4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section. (5) Notice of a rent increase must be given by a landlord or landlord's agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement. (6) Notice of a rent increase may be cancelled or varied (so as to reduce the increase) by a subsequent written notice given to the tenant by or on behalf of the landlord. Any such later notice takes effect from the date on which the earlier notice was to take effect. …. (8) Subsections (1)-(7) are terms of every residential tenancy agreement. (9) A landlord or landlord's agent must not contravene this section. Maximum penalty - 20 penalty units. (10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section.
10. Next, s 44 (1) of the RTA, relevantly, 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 - (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, …. (2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given. …. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive - (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent - (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable. Note - A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141(1)).
11. On 7 January 2021, the landlord lodged a claim in the Tribunal for a termination order pursuant to s 87 of the RTA for breach of the residential tenancy agreement due to the non-payment of rent. In the application the landlord stated that the appellant had been given a rent increase notice with the rent increasing to $179.14, being 25% of his Disability Support Pension, that the appellant refuses to pay the increase and that was the reason why he had fallen into rental arrears.
12. A Notice of Order in those proceedings (SH 21/00791), dated 3 May 2021, records the following: On 3 May 2021 the following orders were made by consent: 1. The tenant is to pay WESLEY COMMUNITY SERVICES LTD rent, presently $145.11 per week, next payment due on the 13 May 2021 in accordance with the residential tenancy agreement. 2. The application for termination & possession is withdrawn. 3. The applicant does not seek an order for payment of rent arrears for any period prior to 3 May 21. The parties agree that the rent shall increase to $145.11 from 13 May 2021 and shall be reviewed in accordance with the residential tenancy agreement. The tenant shall provide an updated income statement to the landlord on or before 10 May 2021.
13. Notably, the orders were recorded as having been made by consent.
14. The appellant lodged an appeal against these orders (AP 2021/00138934) but he withdrew the appeal and the appeal was dismissed on 10 August 2021 pursuant to s 55 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
15. On 22 June 2021 the respondent gave the appellant a Notice of Rent Increase pursuant to s 41 of the RTA. The new rent was stated to be $180.70 payable from 22 August 2021.
16. On 2 December 2021 the respondent commenced the proceedings in the Tribunal which are the subject of this appeal (SH 21/49374). By these proceedings, the respondent sought a termination order under s 87 of the RTA for breach of the residential tenancy agreement because of the non-payment of rent. In the application the respondent stated that the appellant was paid up to 25 October 2021 but was in arrears of rent because he refuses to pay his rent increase for his subsidised rent. It was said that he refuses to advise Centrelink of his rent increase which would then allocate him more rent assistance in accordance with the Commonwealth Rent Assistance calculation sheet provided to him with his rent increase notice. It was said that if the appellant did not agree to pay the rent increase and the outstanding rent then the respondent would like an order for termination and possession of the premises.

The Tribunal's decision the subject of the appeal

1. On 25 February 2022, in proceedings SH 21/49374, the Tribunal made the following orders and notation: 1. The tenant, DEREK ASIRVADEM, [address given] is to pay the landlord, WESLEY COMMUNITY SERVICES LTD, C/-Wesley Community Services Limited 93 Milton Street ASHFIELD NSW 2131 Australia, the sum of $1,449.54 by instalments of not less than $50.00 per fortnight, first payment 04-Mar-2022. Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately. Reasons:  rent from 13-May-2021 to 25-Feb-2022 $1,449.54 2. By consent, the tenant is to pay WESLEY COMMUNITY SERVICES LTD rent, presently $145.11 per week, the next payment due on the 03-Mar-2022, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement. 3. By consent, if the orders in respect of rent are not complied with then at any time before 25-Aug-2022 the landlord may request the re-listing of the application to determine whether the tenancy agreement should be terminated. …. NOTATION: The Tribunal is satisfied that the notice of increase of rent dated 22/6/2021 increasing the rent to $180.71 is invalid because the rent increased from $110.00 to $145.11 on 13 May 2021. Section 41 (1B) of the Residential Tenancies Act 2010 provides that the rent payable under a periodic agreement may not be increased more than once in any period of 12 months. 2. The Applicant's bank account details for the instalments to be deposited are as follows: [A "Wesley Mission "bank account was specified along with a reference number for the appellant]
2. The bank account details, including the account name, specified in the notation (not in the Orders) was the same as specified on page 2 of the residential tenancy agreement.
3. Plainly, as indicated by the Notice of Order containing these orders, the reasons behind Order 1 and the consent orders were that the rent in the amount of $145.11 specified in the orders made on 3 May 2021 continued to apply between the parties because the Tribunal rejected the rent increase notified by the respondent on 22 June 2021 (for the reasons set out in the notation) and the rental arrears amount reflected the period of time in which the appellant had failed to pay the difference between the weekly rental of $145.11 and $110.00.

Grounds of appeal

1. The Notice of appeal lodged by the appellant, states that the decision appealed from was the decision in SH 21/49374 made on 25 February 2022. Whilst in another section of the Notice of Appeal, it was stated that the orders sought are that the orders in both SH 21/49374 and SH 21/00791 should be revoked, the appellant confirmed at the hearing of the appeal that it was only the decision in SH 21/49374 that he sought to appeal from. Plainly, he was correct to confirm this because no appeal from the decision in SH 21/00791 was available to him given that he had already appealed that decision and that appeal had been dismissed.
2. Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..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)
3. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. 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 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.
4. The Notice of Appeal refers to various grounds of appeal, including a contention that the orders made on 25 February 2022 were beyond the jurisdiction of the Tribunal to make. In respect of the section of the Notice of Appeal concerned with an application for leave to appeal, various matters were referred to concerning a contention that the decision was not fair and inequitable and was against the weight of the evidence.
5. The grounds of appeal raised by the appellant that emerge from the Notice of Appeal and the 3 page document, dated 3 March 2022, attached to the notice are: 1. The orders were beyond the jurisdiction of NCAT to make. 2. The Tribunal demonstrated bias and colluded with the respondent. The appellant also suggested there might be corruption as well "[G]iven the extent of the fraud perpetrated by the respondent against the federal government". The bias was said to comprise "[V]arious inappropriate statements, applicant's bullying continued, pandering to applicant, permitting applicant to instruct the appellant, and to instruct applicant to instruct Centrelink". 3. There was a denial of procedural fairness because the appellant's evidence was not even read by the member or was ignored and documents were presented to the Tribunal by the respondent that were not provided to the appellant, despite a request to the Tribunal that this be checked. 4. There was judicial misconduct by the Tribunal because the Tribunal, having previously stated that the Tribunal had no jurisdiction to make a rent calculation for Social Housing, the Tribunal proceeded to do just that and thus covered up the Tribunal's previous erroneous determination in SH 21/00791. 5. There was also judicial misconduct by the Tribunal in, falsely, framing the orders made on 25 February 2022 and 3 May 2021 as an agreement and by consent. The appellant contended that he did not consent. 6. The Tribunal's orders are untenable because Centrelink rejected the rent determined on 3 May 2021 because it was beyond the DCJ/ FACS/NSW Housing mandate, the respondent refuses to provide the normal Rent Certificate as requested by Centrelink, the order made in SH/49374 to pay rent into a nominated bank account was also rejected by Centrelink and the rent must be paid via Centrelink, and the respondent cannot demand that the tenant tell Centrelink what the rent or Commonwealth Rent Assistance should be. 7. The orders fail logic in that the Tribunal stated he had no jurisdiction in relation to a rent calculation for social housing but nevertheless made such a determination. 8. The orders were made without evidence, based on verbal instructions from the respondent or was not based on the submitted evidence. 9. The orders do not serve the common good since they validate the respondent's bullying and false claims, judicial misconduct damages the credibility of the Tribunal and erroneous Tribunal determinations reinforce injustice. At the hearing of the appeal, the appellant asserted that the rental amounts he had been ordered to pay were concocted amounts, a fraud on the Commonwealth and that the Tribunal should record a notation that this conduct was a crime.

Consideration-jurisdiction ground of appeal

1. The appellant asserted that the Tribunal had no jurisdiction to make the orders in SH 21/49374 because the Tribunal had no jurisdiction to make social housing rental calculations. When asked at the hearing of the appeal for the basis of such assertion, the appellant said that statements to that effect had been made by the Tribunal member before and at the hearing on 25 February 2022 and it had been stated at the call-over in the proceedings and it had been confirmed by NSW Housing.
2. We have not been shown any record of the precise terms of the statements made. However, whatever statements were made are not decisive because the situation is governed by the law, as outlined below. In this regard, we also note that there is no suggestion that any of these statements were part of any final and binding decision of the Tribunal.
3. We do not agree that the orders made on 25 February 2022 (or for that matter, on 3 May 2021) were beyond the jurisdiction of NCAT to make.
4. The proceedings were, properly, brought before the Tribunal as proceedings seeking an order for termination pursuant to s 87 of the RTA. Under that section, it is the Tribunal that is conferred with the jurisdiction and power to make a termination order on the basis set out in that section. Under s 187 of the RTA, the Tribunal is conferred with jurisdiction and power "in any proceedings under this Act", which includes proceedings under s 87, to make "an order for the payment of an amount of money" (s 187 (1) (c)) and to make "an order that requires an action in performance of a residential tenancy agreement" (s187 (1) (b)). Clearly, the orders made on 25 February 2022 fall within the description of such types of orders.
5. Pursuant to ss 28 and 29 of the NCAT Act the Tribunal has general jurisdiction over a matter if legislation, other than the NCAT Act, "enables the Tribunal to make decisions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter…" These provisions of the RTA that we have just referred to enable the Tribunal to make the orders concerning the payment of rent made on 25 February 2022.
6. There does, of course, need to be a recognised cause of action to support the orders made. Clearly, in this case there was because the respondent had a contractual claim for rent, including for arrears of rent. In determining the merits of that claim, the Tribunal, correctly, rejected the claim concerning the quantum of rental arrears and rent required to be paid founded upon the 22 June 2021 rent increase notice and applied the amount of rent the subject of the binding orders made by the Tribunal made on 3 May 2021. The calculation of the rental arrears amount was then a simple mathematical one, which the Tribunal was required to carry out in the exercise of its jurisdiction, and there was no restriction imposed upon it by the unfounded assertion that the Tribunal could not do a social housing rental calculation.
7. Although unnecessary for the purposes of disposing of this appeal, we do not agree that there was any jurisdictional obstacle to the Tribunal making the orders that it did on 3 May 2021. Plainly, in a context where there was a dispute as to an increase in rental, in respect of which the Tribunal could make an assessment under s 44 of the RTA as to whether the increase was excessive, the Tribunal could proceed to make consent orders resolving the proceedings, which included a consent order about a new and increased rental to be paid.
8. This disposes of the grounds of appeal identified as (1), (4) and (7) above.

Consideration-alleged bias, procedural unfairness, lack of consent and no evidentiary support for the orders.

1. The alleged bias, procedural unfairness, lack of consent and an absence of evidentiary support for the orders, grounds of appeal rise no higher than unsupported allegations. For this reason, they must be rejected. It was for the appellant to establish the facts concerning these allegations, some of which were serious allegations made against a Tribunal member, calling for precision in the allegation and clear proof, but the appellant met none of these requirements. There was a complete absence of evidentiary material before us on appeal in support of the allegations.
2. As to these allegations, clearly, they are founded upon allegations as to what transpired at the hearing on 25 February 2021. By directions for the conduct of the appeal, made on 16 March 2022, the appellant was directed to provide the sound recording or transcript of the hearing at first instance, if what happened at the hearing was being relied upon. This was not done.
3. At the hearing of the appeal, the appellant indicated he had agreed to the orders made on 25 February 2022 recorded to be made by consent but his point was that they were not made by informed consent because he had not appreciated at that stage that the Tribunal had no jurisdiction to make the orders. However, this point is answered by what we have said above about the jurisdiction of the Tribunal.
4. Furthermore, as to the ground of appeal that there was an absence of evidentiary support for the orders, it was common ground that the appellant had not paid the increased rental of $145.11 set by the binding orders made on 3 May 2021 and the amount of rental arrears was a simple mathematical calculation from these matters.
5. This disposes of grounds of appeal identified as (2), (3), (5) and (8) above.

Consideration - remaining grounds of appeal

1. The grounds of appeal identified as grounds (6) and (9) contain no legally recognised ground of appeal. Nor were these grounds supported by anything other than unsupported allegations.

Adjournment request

1. Finally, we deal with the appellant's request for an adjournment made at the hearing of the appeal. During the hearing, the appellant requested a short adjournment so as to allow him to provide the Appeal Panel with the submissions and, perhaps also the evidentiary material, he put before the Tribunal at first instance because he said he had been told by a clerk at the Tribunal that the first instance file travelled with the appeal file and so he understood that this material would be part of the material presented to us for the purpose of the appeal.
2. We are not prepared to accept this uncorroborated statement as to what the appellant was told by a clerk of the Tribunal. We were not shown any email or other document providing evidentiary support for such a statement. Such an alleged statement is contrary to practice in respect of appeals and inconsistent with the directions for the conduct of the appeal made on 16 March 2022, which included a direction to provide all evidence given to the Tribunal below on which it was intended to rely. Clearly, if the first instance file "travelled" with the appeal file, there would have been no need for such a direction.
3. Furthermore, it was far from apparent how the appellant's submissions and evidentiary material at first instance would have assisted him on the appeal in circumstances where the orders concerning rental were straight forward ones made on the basis of the rent determined on 3 May 2021 and the uncontroversial fact that the appellant had never paid the increase in the rent involved in those orders.
4. It was not clear that the appellant also sought the adjournment in order to obtain and present on appeal the sound recording and transcript but even if this objective was included in his adjournment application we are not prepared to grant the adjournment. This is because the direction for the conduct of the appeal made on 16 March 2022 made clear provision for this to be supplied nearly 2 months before the hearing of the appeal, nor did the appellant provide any statement with specific details as to what he alleged was said. The appellant said the hearing of the appeal that he did not understand the significance of the transcript but we do not accept that this could have been the case bearing in mind his central reliance upon what occurred at the hearing on 25 February 2022. We also repeat what we have said above about the straight forward circumstances supporting the orders made from which it is difficult to see how there could be merit in the appellant's claims of bias, collusion and procedural unfairness.
5. We must also apply the guiding principle in s 36 (1) of the NCAT Act to facilitate the "just, quick and cheap resolution of the real issues in the proceedings" and that the parties to the proceedings have a statutory obligation to comply with directions of the Tribunal (s 36 (3)). We also must consider the interests of the respondent, the Tribunal and other litigants in the timely and efficient conduct of appeals: see Watson v Chen [2022] NSWCATAP 44 at [30]-[40]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [4]-[5].
6. In these circumstances, we do not think it would accord with the guiding principle or otherwise be in the interests of justice for the adjournment sought to be granted.

ORDERS 1. For the above reasons, we order that the appellant's request for an adjournment of the hearing of the appeal is refused, leave to appeal is refused and the appeal is otherwise 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: 10 June 2022