Basha v Rathsam

NCAT Appeal Panel|2016-07-21

Introduction

Ms Basha, a tenant, has appealed against the following orders made by the Consumer and Commercial Division of the Tribunal on 18 May 2016: 1. The tenant's application (RT 16/14472) for an order under s 115 of the Act declaring that a termination notice has no effect because it was a retaliatory notice is dismissed. 2. The landlord's application for leave to extend the time for making their application for a termination order under section 85 of the Act is granted and the time for making the application is extended to 17 February 2016. 3. The residential tenancy agreement between the Tanya Basha as tenant and Van Huan and Leander Rathsam as landlords is terminated and possession of the premises is to be given to the landlords on the date these orders are published. 4. The order for possession is suspended until 1 July 2016. 5. The tenant shall pay to the landlord a daily occupation fee at the rate of $52.14 per day from the date of these orders until the date possession is given by the tenant. 6. If the tenant gives up possession earlier than the date ordered in these Orders then the tenant must give not less than 48 hours' notice of vacating the premises and any occupation fee will then only be payable to the date that the tenant gives up possession.
The orders relate to two applications which were before the Tribunal for determination. The first was application RT 16/07816 made by the respondent landlords, Dr Van Huan and Mr Rathsam, on 16 February 2016. That application sought orders for termination and possession of the tenancy. The second was application RT 16/14472 made on 23 March 2016 by the appellant who sought a declaration that the notice of termination was retaliatory or that the Tribunal should to make an order for termination.
In this appeal the appellant only appeals the decision in matter RT16/07186.

History of Proceedings and the decision at first instance

On 8 October 2015 the respondents' agent served on the appellant a notice to terminate a periodic agreement pursuant to s 85 of Residential Tenancies Act 2010 (RT Act). The notice required that the appellant deliver possession of the premises on 12 January 2016.
On 14 October 2015 the appellant filed an application with the Tribunal seeking among other things an order that the termination notice was retaliatory. That application, RT 15/57015, was dismissed by the Tribunal on 26 October 2015 and the appellant appealed the decision of the Tribunal to the Appeal Panel. On 9 February 2016 the Appeal Panel refused the tenant leave to appeal and dismissed the appeal: see Basha v Rathsam [2016] NSWCATAP 35.
On 16 February 2016 the respondents filed an application for a termination order based on the notice of termination issued on 8 October 2015.
Section 83 (2)(a) of the RT Act states that an application for termination to the Tribunal by the landlord must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations
Reg 22 of the Residential Tenancies Regulation 2010 requires that a landlord make an application for termination within 30 days after the termination date specified on the notice. Section 41 of the NCAT Act allows the Tribunal to extend time.
The respondents' application for termination was made outside the time prescribed by reg 22.
The Tribunal was required to deal with three substantive issues. 1. The Tribunal dismissed application RT 16/14472 brought by the appellant. This was because the Tribunal found the issue of whether or not the notice of termination was retaliatory had been dealt with in earlier proceedings, including the appeal proceedings to which we have referred above. 2. Secondly, the Tribunal was required to determine whether or not to extend time for the respondents to bring their application for termination under s 85 of the RT Act. In its decision at para 36 - 53, the Tribunal considered the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and exercised its discretion and granted leave pursuant to s 41 of NCAT Act, for an extension of time for the landlord to bring the application. 3. Thirdly, the Tribunal determined that a notice of termination had been given under s 85 of the RT Act and that an order for termination and possession should be made.

Grounds of Appeal

The Notice of appeal raised various grounds. At the appeal hearing The appellant identified the following issues for determination on appeal: 1. The agent for the landlord had misled the Tribunal at a call over hearing in the appeal about outstanding rent monies 2. The landlord had failed to serve any evidence in the initial proceedings and had requested an extension of time to make the application by email which is not allowed by the Tribunal 3. Ms Bassa who had been the agent who made the application on the landlords' behalf had not appeared at the hearing. 4. The reasons for the orders stated on the landlord's application for termination and possession were misleading and false. 5. Leave was not granted pursuant to s 45 of the RTA for Mr Ha to appear on behalf of the landlord at the hearing. 6. The Tribunal improperly extended time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT ACT)for the making of the application 7. The tenancy should not have been terminated pursuant to s85 of the RTA.
The respondents filed a Reply to Appeal stating that the orders made by the Tribunal were correct and that the appeal should be dismissed.
It is convenient to deal with the submissions made by the appellant by reference to each of the topics above.

Consideration

The appeal was lodged with the Tribunal on 1 June 2016, 14 days after the decision was made and within the time specified by clause 25 (4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
An internal appeal may be made as of right on any question of law or with the leave of the Appeal Panel, on any other grounds pursuant to s 80(2)(b) of the NCAT Act.
In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in cl 12 of Sch 4 to the NCAT Act. The appellant has appealed on matters of law and also sought to leave to appeal as necessary.

Issue 1- The agent for the landlord misled the Tribunal at a call over hearing relation to outstanding monies owing by the tenant

The appellant referred the Appeal Panel to parts of the transcript of earlier proceedings in which the agent Mr Ha acknowledged that there were no outstanding monies owing by her as a tenant.
The appellant also took the Appeal Panel to an extract of a transcript of the separate appeal proceedings related to the retaliatory notice heard on 19 January 2016 and to an extract of a transcript of a call over on 28 June 2016 relating to a stay of the proceedings involving this appeal. She said those transcripts indicated that the agent for the landlords was alleging outstanding rent being owed by the appellant and that was inconsistent with what the agent had told the Tribunal initially.
The Appeal Panel asked the appellant to explain what relevance the issue of unpaid rent and the subsequent call overs in the appeal proceedings had to the present appeal beyond that she alleged that it demonstrated that the landlord's agent was not credible.
This was because in determining the application for termination under s 85 of the RT Act, the Tribunal did not consider the issue of what rent was outstanding nor was it required to do so. Rather, the Tribunal only made an order in relation to the payment of an occupation fee after termination. Consequently, any issue in relation to outstanding rent or unpaid occupation fees may relevantly be dealt with in a separate application if the landlord alleges amounts are outstanding.
The appellant was unable to demonstrate any relevance.
The ultimate question on this appeal is whether a termination order under s 85 for termination of a periodic tenancy was properly made. Whether or not incorrect statements were made about what rent remained unpaid from time to time is irrelevant to a resolution of this issue. This is because if a valid notice to end a periodic tenancy has been served, the Tribunal was required to terminate the residential tenancy agreement whether or not rent was paid: see s85(3) RT Act.
Accordingly, this ground of appeal fails.

Issue 2- The landlord had failed to serve any evidence in the initial proceedings and had requested an extension of time to make the application by email which is not allowed by the Tribunal

The appellant stated that evidence had never been served and that a request for an extension of time had never been made. She stated that this was because the Tribunal did not allow documents or applications to be received by email.
At paragraph 22 of its reasons, the Tribunal noted that at a directions hearing on 16 March 2016 the Tribunal had ordered that the landlords file and serve their documents on or before 23 March 2016. The landlords' agent sent an email to the Tribunal registry enclosing the documents on 24 March 2016. The Tribunal also noted at paragraph 23 of its decision that that the landlord had not complied with the directions as to time or the form in which documents had been presented and that the tenant objected to the landlords relying on the documents filed out of time. At para 25 of its reasons for decision the Tribunal said: 25 The Tribunal notes that the landlord has not complied with the directions as to time or the form in which documents have been presented. The tenant objects to the landlords relying on documents filed out of time. The Tribunal is not satisfied that the tenant has demonstrated she has or suffered prejudice by the filing of the landlords' documents one day late or by the form in which the documents are presented. The Tribunal grants leave to the landlords' to rely on the documents filed on 24 March 2016.
The Tribunal then said at par 33 33 As to the landlords application, the landlords seek leave to bring the application out of time in that it was made more than 30 days after the date in the [notice of termination] requiring the tenant to give up possession of the premises. That is, on the face of it, it should have been brought before 11 February 2016.
The appellant alleges an error of law on the basis that the landlord did not apply for an extension of time in the form required by the Tribunal and therefore no extension of time should be granted. In that regard she is alleging lack of procedural fairness.
Section 38 of the NCAT Act prescribes the procedure of the Tribunal generally. Section 38(4) requires the Tribunal "to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms".
The Tribunal is required to comply with the rules of natural justice: NCAT Act, s 38(2) and (5). In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mason J said, at 584: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
S 38(5) (c) of the NCAT Act requires that the Tribunal ensures: that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
Clause 13(3) of the NCAT Rules sets out how documents may be served on, given to or lodged with the Tribunal: A notice or document may be served on, given to or lodged with the Tribunal: (a) by leaving it at the Registry, or (b) by sending it by post to the Registry, or (c) by such electronic means as the Tribunal has made available for use for the service, giving or lodgment of notices or documents with the Tribunal.
It is not in dispute that the agent for the landlords sent an email to the Tribunal Registry on 24 March 2016 requesting an extension of time to make the application.
Clause 13(3) of the NCAT Rules does not prevent the Tribunal from considering documents sent by email. However, having been sent in this form the issue for the Tribunal to consider was whether or not the appellant had a reasonable opportunity to respond to any request and/or was prejudiced by the manner in which that request was made.
The reasons for decision demonstrate that the Tribunal considered any disadvantage that may have been caused to the appellant by the delay of the landlord in providing the documents and the form. The Tribunal found that the appellant suffered no prejudice in relation to either the lateness or the form. The Tribunal granted leave for the landlords' to rely on the documents filed on 24 March 2016 after having considering the appellant's objections.
Accordingly, the Appeal Panel is not satisfied there has been denial of procedural fairness and no error of law is shown to have been made.
This ground of appeal fails.

Ms Bassa who had been the agent who made the application on the landlords' behalf had not appeared at the hearing; and

The reasons for the orders stated on the landlord's application for termination and possession were misleading and false

Under the heading "Reasons for the Order/s" on application RT 16/07816 Jyoti Bassa, who is noted as the author of the application and was then the agent of the respondent, stated: The termination date was 12/1/16, however the tenant had appealed the matter prior to expiry of the termination notice. The matter AP 15/59507, was heard on the 19/1/2016 and we were advised by S.Westgarth, Deputy President and M Anderson, Senior Member to wait for the published orders which were not received by our office till I called the office of NCAT today. The Order was subsequently emailed by Mary at 1.56pm today. The landlord wishes to have their property back hence requesting the order.
The appellant submits that reasons for the order noted on the application form were false and that the agent who made the application did not appear at the hearing, presumably denying her the opportunity to test those claim. Again the appellant appears to be alleging an error of law on the basis of denial of procedural fairness.
At paragraphs 36 to 38 of the reasons for decision the Tribunal stated: 36 The Tribunal considers the reasons stated by the landlords in their application that "we were advised by S Westgarth, Deputy President & M Anderson, Senior Member to wait for the published orders which were not received by our office till I called the office at NCAT today. The Order was subsequently emailed by Mary at 1:56pm today [16 February 2016]". 37 The tenant denies that this statement was made by the Appeal Panel Members. 38 As a result the Tribunal has listened to the sound recording of the appeal hearing to determine if the Appeal Panel Members gave the direction as claimed by the landlords' agent. The Tribunal is not satisfied that either member of the appeal panel made the statement attributed to them by the landlords' agent. The Tribunal does not consider this to be fatal to the landlords' application for leave to be granted to extend the time for filing the application for termination and possession. It is only a factor to be considered in relation to giving judicial consideration to the discretion to grant leave.
Clearly, the Tribunal in its decision found that the Appeal Panel Members did not make the statements that were being attributed to them by Ms Bassa in the application and accepted the appellant's submission this did not occur. However, the Tribunal did not consider that fact to be fatal to the landlords' application for leave to extend time. Rather the Tribunal determined it was a factor to consider in the exercise of its discretion as to whether to grant leave to extend time for the application for a termination order under s85 of the RT Act.
In paragraphs 40 - 53 of the reasons for decision, the Tribunal, guided by the principles summarised in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, set out the grounds on which it exercised the discretion to extend time for the making of the application.
In relation to the grounds recorded in the application, the Tribunal said at paragraph 48 : 48 The reason for the delay in bringing the application is that the appeal intervened and the decision was made dismissing the appeal on 9 February 2016. The Tribunal has already considered the landlords' purported reasons for delaying in bringing the application because of alleged comments made by the Appeal Panel members and has found that the lack of those comments are not fatal to this application for leave. The delay caused by the appeal may be attributed to the inexperience of dealing with matters before the appeal panel. It is noted that neither party had the benefit of legal representation at the appeal. The landlords' agent mistaken belief about delaying the bringing of the application is plausible in the circumstances.
While the respondents' asserted in the application that they were told something by the Appeal Panel at the Appeal proceedings in January 2016 which caused them to delay making the application for termination, it is clear this assertion was rejected by the Tribunal. Therefore, the failure of Ms Bassa to appear and/ or explain why the application was filled out in a particular manner is not a matter that has affected the outcome of the proceedings.
Accordingly, this ground of appeal fails.

Issue 5- Leave was not granted for Mr Ha to appear on behalf of the landlord at hearing

The initiating application for a termination order by the landlord was made by Mr Bassa, a managing agent. At the hearing, Mr Ha, another agent from the same agency appeared for the respondents.
The appellant alleges that no leave was sought or granted for Mr Ha to appear on the landlord's behalf at hearing. Consequently she says that the proceedings are in some way invalidated and the Tribunal was in error in making the termination order.
Section 45 of the NCAT Act provides: 45 Representation of parties (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or
The appellant stated to the Appeal Panel that an application for leave pursuant to s 45 was never dealt with at the hearing. Consequently the appellant said she had not made any objection to Mr Ha's appearance.
The appellant did not suggest to the Appeal Panel that the failure to grant leave had caused any disadvantage to her. She certainly did not suggest that there was any reason why Mr Ha as agent could not appear and/or would not have been granted leave if she had objected at the relevant time.
In the High Court Case of Coulton v Holcombe (1986) 162 CLR 1 Deane J said at para 11: 11. In the course of the argument, senior counsel for the appellants placed particular reliance upon the following general statement in the joint judgment of Latham C.J., Williams and Fullagar JJ. in Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438: "Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards". The relevant appeal in that case was the appeal to this Court direct from a single judge exercising the equitable jurisdiction of the Supreme Court of New South Wales. It was an appeal in the strict sense to a court which has resolutely turned its face against the reception of further evidence on such an appeal. Moreover, it was an appeal in a case which had turned at first instance, as would the new point which it was sought to raise for the first time on appeal, on closely disputed questions of fact. Even in the context of such an appeal in such circumstances, the above broad and unqualified statement would seem to require some reconsideration in that circumstances could well arise in which justice would demand that an amendment to raise a new point be allowed notwithstanding that that would involve the matter being sent back for a new trial or the hearing of further evidence in the court of first instance (cf., e.g., McCann v. Parsons [1954] HCA 70; (1954) 93 CLR 418, at pp 431-432). It is unnecessary to consider that question here, however, since it is obvious that the above unqualified statement cannot properly be applied to a case, such as the present, where the relevant appeal is "by way of rehearing" (s.75A(5) of the Supreme Court Act) to an appellate court which is entrusted by statute with the general discretionary powers "concerning ... amendment" of "the court ... from whom the appeal is brought" (s.75A(6)(a)) and with a broad discretionary power to "receive further evidence" on unspecified "special grounds" (ss.75A(7) and 75A(8)). Indeed, for this Court to limit those full discretionary powers of the Court of Appeal by the adoption of such a broad unqualified principle would be to do precisely what, as recently as Norbis v. Norbis, unreported, 30 April 1986, it has said in emphatic terms that it is not competent for an appellate court to do.
Further, the Appeal Panel in Hudson v Arap 1 (NSW) Pty Ltd [2014] NSWCATAP 61 said at para 15: The appellant submitted that the issue raised by this proposed ground of appeal would turn on the factual circumstances surrounding what were said to be complex transactions which included the contract of sale of the property, the agreement under which the appellant became a tenant and an option agreement. It was conceded by Ms Breeze that there was no question but that the respondent may have conducted its case differently and led different evidence in the Tribunal below if this issue had been raised at first instance. The situation appears to be similar to the circumstances referred to by Mason J in O'Brien v. Komesaroff (1982) 150 CLR 310 at 319 (even though the Appeal Panel is far from an ultimate court of appeal): In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh (1892) AC 473, at p 480; Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438; Green v. Sommerville [1979] HCA 60; (1979) 141 CLR 594, at pp 607-608). However, this is not such a case. The facts are not admitted nor are they beyond controversy. The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.
The appellant was on notice that an agent representing the respondent landlords from the same agency had made the application. Whether leave to be represented should be granted involves questions of fact and law. The appellant did not raise leave as an issue at the hearing on 18 May 2016. Accordingly, this matter cannot now be raised on appeal.
Further, and in any event, it is clear from the reasons for decision and the history of the various proceedings that all parties proceeded on the basis that the respondents had been and were being represented by an agent, Mr Ha, being the representative at the hearing before the Tribunal on 18 May 2016.
To the extent there was a failure to grant leave, at best this was an irregularity, but does not in any way affect the outcome of the proceedings. It is not a matter that in any relevant sense deprived the appellant procedural fairness or a reasonable opportunity to present her case and be heard.
This ground of appeal is without merit and fails.

Issue 6- The Tribunal Improperly Extended Time

The appellant stated that the Tribunal improperly extended time pursuant to s41 NCAT Act for the making of the application.
In effect the appellant alleged an error of law on the basis that the exercise of the Tribunal's discretion to extend time for the application miscarried.
To interfere with an exercise of discretion, it must be shown that in the Tribunal acted on wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistaken the facts, did not take into account some material consideration or that the decision was manifestly wrong: see House v The King [1936] HCA 40 (1936) 55 CLR 499 at 504 - 505.
At the appeal hearing the appellant indicated that she had been denied procedural fairness because at the expiration of the time for making the application for termination and possession she was entitled to believe that the landlord was no longer going to pursue termination of the tenancy. The Tribunal considered the fact that the application was made 5 days out of time and said at para 50: 50 The Tribunal has considered the extent of any prejudice the tenant will suffer if leave is granted to extend the time for filing the application. The tenant has been on notice that the landlord intended to terminate the residential tenancy agreement and regain possession of the premises since at least the [notice of termination] was served on the tenant. The likely result in the dismissal of the tenant's applications for declarations that the [notice of termination] was retaliatory was that the landlord could obtain orders from the Tribunal for termination and possession. It has made that application, on the face of it, four working days late. It is for the tenant to demonstrate that she is prejudiced by the granting of leave. The tenant's response to the likely order that she give up possession is that she may need time in order to find alternative accommodation. The Tribunal notes that the tenant has no other persons living in the premises.
It is clear to the Appeal Panel that the Tribunal weighed up all the relevant factors in the manner required by Jackson. The Tribunal considered the landlords request and any prejudice alleged to have been caused to the tenant. The Tribunal found that the tenant had failed to identify any relevant prejudice to warrant rejection of the application to extend time.
In our opinion, having regard to the failed attempts by the appellant to have the notice of termination at the end of a periodic tenancy declared invalid, and having regard to the short delay in bringing the application, there is no basis to conclude that the relevant discretion miscarried in a manner that would justify setting aside the order to extend time or otherwise justify interfering with the decision of the Tribunal to terminate the residential tenancy agreement.
Accordingly, this ground of appeal fails.

Issue 7- The tenancy should not have been terminated pursuant to s85 of the RTA.

The appellant made submissions that the tenancy should not have been terminated pursuant to s85 of the RTA. Initially the appellant claimed this was because the termination was retaliatory. However this claim must fail because of the earlier unsuccessful proceedings. In any event, that part of the Tribunal's decision on 6 May 2016 has not been appealed to this Appeal Panel.
The appellant also claimed that she had paid all rent up to date.
Section 85 of the RTA provides the following in relation to termination of a periodic agreement: 85 Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. ….
The pre-condition to the exercise of the Tribunal's power to make a termination order under s 85 of the Act is that the tenant was issued with a valid termination notice, relevantly a notice issued at least 90 days before the purported termination. Section 85 (3) requires that a Tribunal "must" terminate on the application of the landlord if those conditions are met. Accordingly, as stated above, the amount of rent outstanding is irrelevant to whether a termination order should be made and no suggestion is otherwise made that the notice was invalid.
Accordingly, this ground of appeal fails.

Orders

For the reasons set out above, the appeal is unsuccessful and should be dismissed.
The effect of the orders previously made by the Appeal Panel on an interlocutory basis provided that the order for possession which had initially been suspended by the Tribunal until 1 July 2016 has been suspended until determination of this appeal. Consequently, the appellant tenant has remained in possession since the tenancy was terminated by the Tribunal on 6 May 2016.
In dismissing the appeal, the Appeal Panel should now lift the stay made by the Appeal Panel on 14 June 2016. In doing so, the Appeal Panel should nonetheless allow the appellant a short time to vacate the premises, after which the respondents will be entitled to apply for a warrant for possession.
In the circumstances of this case, in our view a period of 3 weeks is sufficient for the appellant to vacate the premises having regard to the fact that she has remained in possession since 6 May 2016.
Accordingly, the Appeal Panel makes the following orders: 1. The appeal is dismissed. 2. The stay made 14 June 2016 is lifted. 3. Order 4 made 6 May 2016 in application RT 16/07816 is varied to read as follows: 4. The order for possession is suspended until 21 days after the publication of the Appeal Panel's reasons for decision and orders in appeal AP 16/25698.

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: 09 September 2016

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (15)