This appeal is from a decision on 26 October 2015 after a hearing which occurred in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal. The appellant was unsuccessful and the application was dismissed.
The appellant tenant claimed in the Tribunal that a notice of termination of the tenancy served on behalf of the respondent landlord was retaliatory and therefore subject to section 115 of the. Residential Tenancies Act 2010 (NSW). The appellant sought that the termination notice be given no effect and an application for compensation be determined in the Tribunal below.
The appellant occupies a residential unit where the original Residential Tenancy Agreement provided for a 6 month lease starting 25 September 2013 and ending 24 March 2014. The rental pursuant to that agreement payable per month is $1586.01 and payable in advance on the tenth day of every month. The method of payment is through DEFT Payment System. Since the expiration of the lease period the tenant has remained in occupation.
The section primarily relied upon by the appellant provides:
"115 Retaliatory evictions
(1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice:
(a) declare that a termination notice has no effect, or
(b) refuse to make a termination order,
if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.
(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons:
(a) the tenant had applied or proposed to apply to the Tribunal for an order,
(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,
(c) an order of the Tribunal was in force in relation to the landlord and tenant.
(3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant."
The termination notice was served by mail and sent on 8 October 2015. The deemed date of service is 14 October 2015 and the reason given for the termination of the tenancy agreement is stated in the notice as the end of the periodic agreement in accordance with section 85 of the Residential Tenancies Act.
There were earlier proceedings in the Tribunal in 2015 which were resolved by means of a payment plan which ended on 30 June 2015. Despite reference to these proceedings by the appellant that application and resolution have no relevance to the original decision on 26 October 2015 from which the appellant appeals.
[2]
Relevant legal principles
This is an internal appeal: see sections 4 and 32 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). Section 81 of the Act provides:
81 Determination of internal appeals
(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(a) the appeal to be allowed or dismissed,
(b) the decision under appeal to be confirmed, affirmed or varied,
(c) the decision under appeal to be quashed or set aside,
(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.
An internal appeal from a final decision in the Consumer and Commercial Division is heard by the Appeal Panel. The basis upon which appeals from decisions of the Consumer and Commercial Division may arise is referred to in section 80(2)(b) of the Act. That section states that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds.
The Appeal Panel therefore has the capacity to make a different decision to that of the Tribunal below if the appeal is allowed, or leave to appeal is appropriate.
The appellant seeks leave under the first two limbs of clause 12 of Schedule 4 of the Act. The first two limbs of this provision which are the only ones relevant in this matter are as follows:
(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence,...
The decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, at [65]-[84], constituted by the President Justice Wright, Deputy President Westgarth and Principal Member Harrowell, comprehensively discussed the processes of an internal appeal such as this one.
[3]
The Appeal
The appellant seeks leave to appeal. In essence, the appellant contends that the decision in the Tribunal was not fair and equitable, and additionally says that the decision was against the weight of the evidence. If either or both of those contentions are made out then it is likely that leave to appeal would be granted. There is no appeal as of right on a question of law since none was argued by the appellant, and there is none available on the material before the Appeal Panel.
The respondent was represented by Ms Bassa on the hearing of the appeal. A letter was sent to the Registry dated 15 January 2016 which identified that the respondent landlord seeks vacant possession through the termination notice. The respondent seeks to uphold the order of the Tribunal.
The appellant supplied written material in support of the appeal. The Appeal Panel heard oral submissions during the course of the hearing on 19 January 2016. The parties were unable to mediate their dispute despite being given the opportunity to do so prior to and at the time of the hearing of the appeal.
The appellant argued that because an email was sent to the agent of the respondent requesting a further payment plan for the arrears of rent in September 2015, that there was an agreement. However, it is clear from the email correspondence relied upon by the appellant that a request was made to the agent for a payment plan by email dated 10 September 2015. On 21 September 2015 an email was sent by the agent requesting that the appellant bring the rental arrears up to date as soon as possible. On 23 September 2015 at 3:52 pm the agent emailed the tenant as follows:
... Further to our phone conversation yesterday I provide the following having held discussions with the landlord:-
We will accept the offer to a payment plan bringing all arrears to date by the 30/10/2015.
Please note this is contrary to the attached agreement made at NCAT on the 1/5/2015 (FYI-the attached notice of order).
Should you rescind the said agreement in Pt 1, we will have no choice but to take further action against you.
I hope you understand our position in this matter.
The appellant responded to that email saying that was not what was offered by the appellant in the email sent previously to the agent. It is however, clear from the email from the agent that the agent was acting under instructions from the respondent in agreeing to the payment plan set out in the email sent to the appellant. A payment plan is a consensual arrangement and it is apparent that there was no consensus.
The appellant relied upon her statement in her email dated 25 September 2015 in response to the email dated 23 September 2015 received from the agent. The statement which is made by the appellant is as follows:
The order you are referring to the application was a lie and at the tribunal the member gave you a warning that lying to the tribunal is a federal offence we can go back if you like to confirm that. (sic)
The appellant argued that this email identifies that the appellant wanted to go back to the Tribunal to sort out a payment plan. The appellant argued that there exists a right to ask for an extension of time for payment.
The Appeal Panel does not agree that this email has the effect for which the appellant contends. The appellant could not identify any document or evidence to support the contention that there was an agreed payment plan. Nor could it be said that there was anything other than negotiations, about which the parties were unable to agree, concerning the arrears of rent.
The appellant did not propose to exercise a right prior to the issue of the termination notice on 8 October 2015. The ability to lodge an application in the Tribunal is not necessarily the same as the right to seek an order on a proper basis. The appellant had not communicated to the agent that the appellant had applied or proposed to apply to the Tribunal for an order but rather only that the proposed payment plan put forward by the agent was not acceptable and not what the appellant wanted.
The appellant had not taken or proposed to take any other action to enforce a right of the appellant under the Residential Tenancy Agreement, the Residential Tenancies Act or any other law. It was not until after the termination agreement was served that the appellant acted. The rental arrears were owed and it was merely a matter of negotiation as to when the outstanding monies could be paid. There is nothing to preclude a tenant from continuing to try to negotiate a repayment plan for the rental arrears.
There was not an order of the Tribunal which was in force in relation to the respondent and appellant at the time of the termination notice. The previous agreement in the Tribunal expired on 30 June 2015.
In those circumstances, the decision below was correct to state that there was no evidence that the respondent was wholly or partly motivated to serve the notice of termination for the reasons set out in section 115(1) of the Residential Tenancies Act.
Accordingly, the appellant has not established that the decision was not fair and equitable, and has not established that it was against the weight of the evidence. Leave to appeal in those circumstances must be refused. The consequence is that the appeal is then dismissed.
The orders of the Appeal Panel therefore are:
1. Leave to appeal is refused.
2. The appeal is dismissed.
[4]
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
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Decision last updated: 09 February 2016