Bibi v NSW Land and Housing Corporation

NCAT Appeal Panel|2019-12-10

Introduction

On 30 October 2019, the Tribunal in its Consumer and Commercial Division terminated a tenancy of premises at Matraville ("the premises"), tenanted by the appellant in these proceedings, Ms Feroza Bibi. The landlord of the premises was the respondent in these proceedings, the NSW Land and Housing Corporation. The tenancy was pursuant to a social housing tenancy agreement.
By order of the Tribunal on that date, an order for possession was suspended until 27 November 2019.
The appellant has appealed that decision and, in the course of the appeal, sought a stay of the order for possession pending the outcome of the appeal.
On 22 November 2019, the Appeal Panel granted an ex parte stay of the order of possession and listed the application for the stay at a callover on 3 December 2019. At that callover, the Tribunal made directions, including that the appellant provide the sound recording and typed copy of the oral reasons of the Tribunal at first instance by 10 January 2020. The appeal was listed for hearing on 19 February 2020. The Appeal Panel also directed that the appellant provide the respondent access to the premises, continued the stay until further order, and adjourned the application for a stay for hearing on date to be fixed by the Tribunal, after 9 January 2019.
The matter was listed before me on 10 December 2019.
On that day, I heard evidence from officers of the NSW Land and Housing Corporation who inspected the premises on 9 December 2019 and from the partner of the appellant, Mr Rodgers.
After hearing the evidence and the submissions of both parties, I reserved the matter for consideration. This is the decision and reasons for decision from that application.
For the reasons that follow, I have determined that in the circumstances it is appropriate to continue the stay granted by the Tribunal by Order 1 made on 3 December 2019, until the determination of the appeal, upon the following condition: The appellant is to give the respondent access to the premises occupied by the appellant to inspect it, between 9 am and 5pm on 9 January 2020. I will also grant leave to the respondent to bring an application to lift the stay, no earlier than 13 January 2020.

Legislative Foundation and Principles Relating to Granting a Stay

Under s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), the lodgment of an internal appeal, such as the appeal in the present case, does not affect the operation of the decision appealed. Nonetheless, under s 43(3) the Tribunal may stay the operation of a decision pending the determination of the appeal. Section 43 provides in part: (1) This section applies to the making or lodgment of any of the following (a pending general application or appeal): … (c) an internal appeal. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
A stay affecting the operation of a decision will in many cases involve staying the orders made by the Tribunal that give effect to the decision.
As a result of the use of "may" in s 43(3) of the Act, the Tribunal has a discretion whether or not to grant a stay. That discretion must be exercised judicially and general principles that apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. The applicable principles can be summarised as follows: 1. Generally, a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in the appellant's favour: s 43(2) and (3) of the Act; Kalafair Pty Limited v Digitec (Australia) Pty Limited [2002] NSWCA 383; 55 NSWLR 737 at [28]; Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]; Aquaqueen International Pty Ltd v Titan National Pty Ltd [2015] NSWCA 9 (McColl JA) at [42]. 2. In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the Court to make such an order: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; Vaughan v Dawson [2008] NSWCA 169 at [16]. 3. The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay: s 43(2) and (3) of the Act; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. 4. The applicant for a stay must first demonstrate "that the appeal raises serious issues for the determination of the appellate court" or a serious question to be considered by the Appeal Panel. Consequently, the Tribunal should also take into account the strength or weakness of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Aquaqueen International Pty Ltd v Titan National Pty Ltd [2015] NSWCA 9 (McColl JA) at [48]. 5. An order staying the operation of a decision or other orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal: s 43(3) of the Act. This is similar, if not identical, to the approach taken by Courts where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. 6. In exercising its discretion, the Tribunal will also weigh the balance of convenience and the competing rights of the parties: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694. 7. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies: s 58 of the Act. Conditions which may be imposed are those designed to achieve a result that is fair to all parties: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5; Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. 8. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].

Background to the decision at first instance

I do not have the advantage of the reasons of the Tribunal at first instance. The order, made on 30 October 2019, indicates that oral reasons were provided and, as recorded above, the Tribunal has directed that the appellant provide a sound recording and transcript of those reasons by 10 January 2020 in the appeal.
The orders record that the Tribunal terminated the tenancy under s 87 of the Residential Tenancies Act 2010 (NSW) ("the RTA") on the basis the appellant had breached the agreement by failure to comply with clauses 14.1 and 14.2 of the agreement.
What I do have available to me, to gain an understanding of the history of the matter, is the basis for the order sought by the respondent as contained in its application to the Consumer and Commercial Division, which sets out the respondent's reasons for the orders sought at first instance, as follows: The residential tenancy agreement has been breached by the tenant Ms Feroza Bibi due to on-going premises care issues. There have been for many years with premises care, specifically hoarding. Multiple warning letters have been issued in regard to the premises care at the premises, this has resulted in head tenant Feroza Bibi acknowledging there are issues with premises care but to date these issues have not been addressed. Access orders have been granted by NCAT and on three occasions in 2018 Facs- Housing staff have attended the premises in order to monitor the condition of the premises, there has been no improvement. On one occasion Police assistance was required in order to carry out an access order due to the aggressive behaviour of occupants of the premises at [Matraville]. Local fire brigade staff attended the final access order/inspection on the 3rd October 2018 and confirmed that in it[s] current condition the premises is a major fire risk. Referrals have been made on behalf of Feroza Bibi in an attempt to assist her, there has been no positive outcome from this. An order is being sought the residential tenancy agreement be terminated.

Application in the Present Case

In the present case, the respondent should be taken to be entitled to the benefit of the decision at first instance unless the appellant can demonstrate that it is appropriate to grant a stay of the orders made.
As explained above, the appellant's lodging of the notice of appeal is insufficient, of itself, to justify granting a stay of the orders in the present case.
The first matter that I should consider is whether the appeal raises serious issues to be determined by the Panel or, in other words, whether the appellant has a reasonably arguable case on appeal.
In her Notice of Appeal, the appellant sets out the following grounds for the appeal: - Notice of order did not specify the reasons for eviction - unable to provide required documents as relevant parties (doctors) were not available - confusion as to who was helping me - grieving (mum has recently passed away) - family issues (son being [i]ncarcerated) - other sons going through depression - I am highly traumatised, getting help from Wesley Mission & Mental health nurses - was admitted to hospital after NCAT's decision
In setting out the orders she sought from the Appeal Panel, the appellant recorded: - reverse the decision and allow me to keep my tenancy while I'm working with Wesley Mission mental health nurses who are helping me manage my mental health
When completing the reasons why she says a stay should be granted, the appellant noted that she had not been able to put medical reports before the Tribunal below in relation to her depression, and noted her concerns that her son will end up homeless and in gaol if the tenancy ends. She noted that she wished to have time to clean up the house and "make it as it was".
Clearly, the grounds of appeal relied upon by the appellant are not in the form that might be expected if drafted with legal assistance. However, I am satisfied that the grounds of appeal do bring the Tribunal's reasoning for terminating the tenancy into issue between the parties in the appeal.
Noting the discretionary nature of the Tribunal's decision to make a termination order under s 87(4) of the RTA, the unavailability of the reasons also means that I am unable to make any assessment of the factors considered by the Tribunal when exercising that discretion.
As to the strength of the Appellant's case, given the absence of reasons and the absence of the evidence available below, this is impossible for me to assess. If it the case that the Tribunal, for example, overlooked the factors set out in s 154E of the RTA, that would be a strong ground of appeal.
Clearly, if the stay is not continued it is possible that the premises may be re-let by the respondent prior to the appeal hearing and the appeal thereby rendered nugatory.
As to the balance of convenience and the competing rights of the parties, the appellant contends that she will be severely disadvantaged if the stay is not granted and she is required to vacate the premises pending the appeal.
The evidence of Mr Rodgers was to the effect that the appellant had undertaken significant steps in starting to clean up the premises, and that she has realised the problems caused by her storing excessive material (which she has collected for the purpose of charity collection and sending overseas). His opinion was that the appellant will now commence keeping the premises in an appropriate state.
In terms of difficulties continuing with this proposed course of conduct, however, it was acknowledged by the appellant that her longstanding use of the premises as a charity collection point means that strangers regularly deposit unwanted goods into her yard, without her ongoing consent. The appellant also acknowledged that she has limited scope for obtaining Council collections to remove the unwanted material from the premises. Whilst her evidence was that she has booked the removal of one pile of material for 18 December 2019, she acknowledged that there is limited scope for her to make ongoing bookings for the Council to remove more.
I also considered three documents filed by the appellant with her Notice of Appeal. In the first, a letter from Francesca Wells, senior mental health clinician/social worker at St Vincent's Hospital, it is noted that the hospital runs a homeless health service in partnership with Wesley Mission and that the appellant has been a client of the Wesley Mission partnership since 22 October 2019. It records that the appellant has been receiving support for her housing and psychosocial needs. Ms Wells indicates that the appellant has nominated several goals and is committed to working towards them and that the hospital partnership is "providing health care and care coordination in order to assist the appellant to achieve positive outcomes across a range of areas including housing, health and living skills as well improved quality of life and safety". Ms Wells reports that the appellant and her children have experienced a long history of trauma and opines that the appellant would be unable to resolve her housing issue should she be evicted from the premises and returned to homelessness. In relation to the appellant's collection of goods at the premises, the report says: The appellant displays behaviours that are characteristic of hoarding disorder. She has acknowledged the amount of belongings in the property which she reports are donated by people to her charity. Her charity aims to send back items to Fiji to support people in need. A person with a hoarding disorder experiences extreme distress at the thought of getting rid of items and can experience associated health risks, impaired functioning, economic burden and adverse impacts on family. The appellant has committed to removing excess items from the property to display to housing a commitment to reducing items in the property with support from services.
The second document was a letter from Ms Caroline Ilufi-Bowker, a case worker with Wesley Mission, who indicated that "[The appellant] is currently in a very fragile estate(sic) of mind and has ended in hospital due to the current pressures being experienced as a result of her meeting with the NSW Civil and Administrative Tribunal (NCAT) last week coupled with Housing's request of increase in rent. [The premises] has been [the appellant's] place of residence for approximately 13 years and she has no other place to go to."
The last relevant document, a medical report from the appellant's general practitioner, Dr Wassif, certified that the appellant has been suffering from anxiety and depression and that the doctor was overseas during the period when the order was made terminating the residential tenancy agreement.
Having heard the evidence from Mr Rodgers and the appellant, I accept that the appellant has made a decision to commence cleaning the premises. I am mindful, though, of her acknowledged limitations and the bounds of the assistance available to her in doing so promptly.
I must also consider the respondent's evidence and submissions as to why the stay should not be continued, which focussed on the potential danger caused the appellant's storage of excess material at the premises, as evidenced by correspondence from both the NSW Police Force and the Station Officer of the Matraville Fire Station that I received into evidence.
The first of those letters, authored by Senior Constable Tony Grech of the Eastern Beaches Police Area Command (Ex3), was in the following terms: Police attached to Eastern Beaches Police Area Command attended [the premies]. Police have had previous interactions with the location due to hoarding. Several observations were made following concerns from residents & NSW Communities & Justice on hoarding at the location. Police were not able enter the location at this time and the assessment was completed from observations of the external building and photos supplied by NSW Communities & Justice taken on 9th December 2019. Hoarding can be very dangerous these dangers can include: mold(sic) growth, bug infestations, structural damage, and tripping hazards. Hoarding can also be harmful to those who are trying to help. Aside from the tripping hazards, clutter can be a deathtrap. Clutter piles can fall and block paths to get around the house or block airflow causing either low levels of oxygen or cool air on hot days. Clutter can fall on vents or block other airways, causing a lack of oxygen and raising carbon dioxide levels. Police believed that the resident and surrounding residents are at risk due to the abnormally high amount of fuel load and hazards at the location. All the Internal rooms have items stacked up in and around the rooms. These block the exits and narrow internal pathways which impede escape for the occupant and make firefighting and/or access for emergency services difficult. The occupant and surrounding occupants are at risk if there are any unsafe practices when cooking and heating. As any typical hoarding when removal of materials from the location it creates a high level of stress and the hoarder usually immediately replicates the behaviour as seen with these premises in the past. …
In an email dated 17 May 2019 (part of Ex 1), Stephen Mcfadyen, the Station Commander of the Matraville fire station "A" Platoon, indicated as follows: On the 3rd October 2018 I carried out a fire safety inspection on [the premises]. I found that the residence in question had so much material collected that it posed a very real fire risk. Further more(sic) if this did occur, multiple lives would be at a much higher risk than would be normally associated with a house fire. On Friday 17th May I completed a follow up inspection [the premises] to give an opinion on whether the premises had improved its condition. In my opinion it has for all intensive(sic) purposes stayed the same as it was on the 3rd October 2018. I could see no discernible deference(sic). Again, this premises has a huge potential for fire and should this occur the lives of the occupants, neighbours and firefighters who attend an incident here are at great risk.
I accept that the risk of fire at the premises is significant, and must be weighed against the other considerations referred to above, which favour the continuation of the stay.
In weighing all of those considerations, and noting the overriding principle that it is the interests of justice which ultimately determine whether a stay should be continued, I am satisfied that the interests of justice and the circumstances of the present case require that the stay granted by the Tribunal remain in effect, subject to a condition that requires the appellant to provide further access to the respondent to inspect the premises on 9 January 2020.
I will also give leave to the respondent to bring an application to remove the stay, not before 13 January 2020. By that time, the appellant will have been required to produce a copy of the Tribunal's reasons for the decision at first instance, and the Appeal Panel would be in a far better position to assess whether the appellant's grounds are reasonably arguable. The respondent will also know whether the appellant has maintained her commitment to reduce the risk of fire at the property pending determination of the appeal and those considerations would be relevant, in my view, on any application to remove the stay.

Orders

Accordingly, the orders of the Appeal Panel are that: 1. Order 1, made by the Tribunal on 3 December 2019 remains in effect. 2. The order is now conditional upon the appellant giving the respondent access to the premises occupied by the appellant to inspect them, between 9 am and 5pm on 9 January 2020. 3. The respondent has leave to bring an application to lift the stay, no earlier than 13 January 2020.

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: 19 December 2019

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (2)

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