Boscolo v New South Wales Land and Housing Corporation

Residential Tenancies Act and relevant clauses of the appellant's tenancy agreement

Residential Tenancy Act

1. Section 87(4) of the RT Act gives the Tribunal a discretion, on an application by a landlord, to make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
2. Section 87(5) of the RT Act sets out a list of no-exclusive matters the Tribunal may consider in considering the circumstances of the case.
3. Where a residential tenancy agreement is a social housing tenancy agreement, and the landlord seeks an order for termination under section 87(4) of the RT Act, the Tribunal must have regard to the matters prescribed in Subdivision 4 of Division 5 of Part 7 of the RT Act. Section 137 in Division 1 of Part 7 provides that the provisions in that Part prevail to the extent they are inconsistent with any other provision of the Act or the Regulations.
4. The sections relevant to the respondent's termination application before the Tribunal in Subdivision 4 of Division 5 of Part 7 are sections 154B and 154E which provide as follows: 154B Tribunal must have regard to breaches of prior social housing tenancy agreements and to series of breaches (1) In determining under section 87 whether to terminate a social housing tenancy agreement on the ground of a breach of the agreement by the tenant, the Tribunal must have regard to - (a) any breaches by the tenant of a prior social housing tenancy agreement with the same or a different landlord, and (b) whether a series of breaches by the tenant of the social housing tenancy agreement or any prior social housing tenancy agreement with the same or a different landlord justifies termination of the agreement even though, taken alone, the circumstances of each breach would not justify termination of an agreement. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act. 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following - (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.
5. The relevant legal principles in the application of these sections was discussed in Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 (Kelly) at [31]-[33], [40]-[51]; and King v NSW Land and Housing Corporation [2022] NSWCATAP 165 (King) at [26]- [37] and [43]-[51].

Tenancy agreement

1. Clause 14.1 of the appellant's residential tenancy agreement provided that the tenant agrees to keep the residential premises reasonably clean.
2. Clause 21 makes provision for 'Landlord's Access to the Premises' and relevantly provides as follows: 21. The landlord agrees that the landlord's agent or any person authorised in writing by the landlord, during the currency of this agreement, may only enter the residential premises in the following circumstances: 21.1 in an emergency (including entry for the purpose of carrying out urgent repairs), 21.2 if the NSW Civil and Administrative Tribunal so orders, ... 21.5 to inspect the premises, if the tenant is given at least 7 days written notice (no more than 4 inspections are allowed in any period of 12 months), 21.6 to carry out, or access the need for, necessary repairs, if the tenant is given at least 2 days notice each time, 21.7 to carry out, or assess the need for, work relating to statutory health and safety obligations relating to the residential premises, if the tenant is given at least 2 days notice each time. ... 21.10 if the tenant agrees.
3. Clause 24 provides that the tenant agrees to give access to the residential premises to the landlord, the landlord's agent or any person, if they are exercising a right to enter the premises in accordance with this agreement.
4. Clause 43 of the tenancy agreement is in the following terms: 43. Hoarding 43.1 'Hoarding' means having; and/or collecting; and/or acquiring; and/or keeping; and/or permitting objects in or at the premises of an amount; and/or at a level; and/or to an extent that: 43.1.1 impairs or prevents the use of the premises or any part of the premises as residential premises; 43.1.2 impairs or prevents the use of particular rooms within the premises for their intended purpose or purposes; 43.1.3 causes or permits the premises or any part of the premises to become or to be in a condition that is unsanitary and/or unsafe and/or that makes the premises or any part of the premises a risk to personal and/occupational and/public health and safety; 43.1.4 causes or permits the premises or part of the premises to become or to be in a condition that encourages infestation by or attracts rats, mice and other rodents, fleas, life, moths, insects, vermin or other pests 43.2 Consistently with sub clause 14.1 of this agreement, the tenant agrees not to engage in or participate in or allow hoarding on the premises.

Grounds of Appeal

1. The appellant's grounds of appeal as set out in the attachment to her Notice of Appeal can be summarised as follows: 1. the Tribunal's failure to consider her oral evidence in support of Dr Wan's medical certificate which clearly stated that she was not fit for a hearing; 2. the Tribunal's failure to allow her adjournment application was: 1. a 'constructive failure to exercise jurisdiction'; 2. an 'unreasonable and plainly unjust exercise' of jurisdiction; 1. the Tribunal's failure to seek any submissions from her as to whether a refusal of her adjournment application would cause her any prejudice; 2. the Tribunal's failure to afford her the opportunity to provide evidence regarding her previous tenancy; 3. the Tribunal's failure to allow her to present evidence and make submissions about the 'hoarding' issue; 4. the Tribunal's failure to consider how the tenancy could be preserved - especially where there is a tenant with severe mental health issues; and 5. in not allowing her adjournment application, the Tribunal denied her natural justice and procedural fairness.

Reply to Appeal

1. In its Reply to Appeal (received by the Tribunal on 18 June 2024) the respondent supported the orders that were made by the Tribunal and submitted: 1. the appeal did not raise a question of law; 2. the appellant had not suffered a substantial miscarriage of justice; and 3. the appeal lacked merit and was frivolous or vexatious or otherwise misconceived or lacking in substance.

Proceedings before the Appeal Panel

1. On 29 May 2024, Principal Member A Suthers, made an order staying the decision of the Tribunal made on 14 May 2024 and the operation of the order for possessions was suspended until 5.00 pm on 12 June 2024 or the finalisation of the appeal, which ever was earlier in time.
2. On 12 June 2024, by consent, Principal Member K Rosser made an order extending the stay order until further order of the Tribunal or finalisation of the appeal, which ever was earlier in time. That order was made on the condition that the appellant paid the daily occupation fee on a fortnightly basis.
3. The appellant's appeal was initially set down for hearing on 7 August 2024. The Appeal Panel (differently constituted) adjourned the hearing of the appellant's appeal as she had made an application an adjournment on the grounds of having appealed the decision of the Legal Aid Commission to refuse her application for legal aid: Legal Aid Commission Act 1979 (NSW) sections 56 and 57. With the agreement of the appellant, the Appeal Panel made a number of orders as a condition of having adjourned the hearing that day, which included the following: 5 On or before 22 August 2024 the appellant is to remove all personal items from the front yard of the premises. 6 The appellant is to provide access to the respondent and/or its contractors to all parts of the rented premises on 22 August 2024 at 2.30 PM for the purpose of the respondent:

• undertaking a client service visit;
• inspecting and if necessary repairing or replacing smoke alarms; and
• undertaking a building and pest inspection.

1. The Appeal Panel also made an order continuing the operation of the stay order made on 29 May 2024. That order was made subject to the appellant complying with the orders made that day.
2. The appellant's appeal was subsequently listed for hearing on 18 October 2024.
3. At around 4pm on 17 October 2024, the Tribunal Registry received an email that had attached to it a handwritten note of the appellant in which she requested an adjournment of her appeal hearing and two medical certificates, one dated 15 October 2024 from Dr Sanna Kontkanen and another dated 17 October 2024 from Dr Clair Francis. On being provided with a copy of this correspondence we made an order that the appellant's adjournment application would be heard at the commence of the hearing listed for the following day and noted that a failure of any appearance by or for the appellant the following day may result in the appellant's appeal being dismissed for non-appearance.
4. The appellant did enter an appearance the following day and provided a further medical certificate from Dr Nicholas Loukakis. Ms Q Nguyen, solicitor for the respondent opposed the appellant's application for an adjournment.
5. After hearing from the appellant and the respondent and having: 1. considered the medical certificates provided by the appellant together with an email the appellant had received from Senior Rights Service on 14 October 2024 concerning her proposed adjournment request; and 2. noted that the applicant had filed written submissions, and these were the submissions on which she relied in support of her appeal; we decided to refuse the appellant's application for an adjournment. We also gave brief oral reasons for that decision.
6. We then proceeded with the hearing and at the conclusion of the hearing we reserved our decision.

Nature and scope of internal appeals

1. An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

Appeal of an adjournment (interlocutory) decision of the Tribunal

1. As we have noted above, to appeal the adjournment decision of the Tribunal the appellant must persuade the Appeal Panel to exercise its discretion under section 80(2)(a) of the NCAT Act and grant her leave to appeal.

Leave to appeal - general principles

1. The general principles that apply to the Tribunal's exercise of the discretion to grant leave to appeal was considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 (Collins). At [84] the Appeal Panel provided the following summary of these principles (citations omitted): (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: …; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, …; (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: …
2. The limitations in clause 12(1) of Schedule 4 of the NCAT Act (see below) do not apply an appeal from an interlocutory decision of the Tribunal in the Consumer and Commercial Division: see Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [31] to [33].

Appeal of any other kind of decision of the Tribunal

1. As noted above, the appellant has a right to appeal the termination decision of the Tribunal on a question of law or otherwise with the leave of the Appeal Panel on any other grounds: NCAT Act section 80(2)(b).

A question of law

1. A question of law in the context of section 80 of the NCAT Act has been interpreted by the Appeal Panel to mean 'a question of law alone' or 'a pure question of law': Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [23]. That is, it excludes questions of mixed fact and law and questions of facts alone.
2. In Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [109] the Court of Criminal Appeal (per Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing) made the following observation regarding what constitutes a question of law: Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."
3. In other words, an appellant is required to identify with sufficient precision a pure question of law, which does not turn on evidence: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [37] and [40], Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Parramatta Trust [2020] NSWCA 62 at [4] and [11] and Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [14].
4. Where a pure question of law is identified, it is this question that becomes the subject matter of the appeal.
5. In Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198 at [55], the Appeal Panel provided the following as examples of pure questions of law: (1) Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]; FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]-[84]). (2) A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it. (3) Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53]). (4) No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91]).
6. In circumstances where an appellant is not legally represented, subject to any procedural fairness considerations that may arise, it may be necessary for the Appeal Panel to determine whether a pure question of law has in fact been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and Cominos v Di Rico [2016] NSWCATAP 5 at [13].

Leave to appeal on other grounds

1. The abovementioned principles applicable to the discretion of the Appeal Panel to grant leave to appeal equally apply to an internally appealable decision of the Tribunal that is not an interlocutory decision.
2. However, where the internally appealable decision (other than an interlocutory decision) of the Tribunal is a decision made in the Consumer and Commercial Division the limitations in clause 12(1) in Schedule 4 of the NCAT Act apply Thes limitations are in the following terms: 12 Limitations on internal appeals against Division decisions (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, 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. Establishing one of the grounds mentioned in cl 12(1) of Sch 4 merely enlivens the discretion of the Appeal Panel to grant leave to appeal. This means that the Appeal Panel is still required to decide whether it is appropriate to exercise the discretion having regard to the general principles that apply to the exercise of the discretion to grant leave to appeal: see Collins at [84].
4. A 'substantial miscarriage of justice' for the purposes of clause 12(1) of Sch 4 of the NCAT Act has been held to be a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant where the appellant establishes one or more of the circumstance prescribed in (a), (b) or (c) of that clause: Collins at [76].
5. Without being exhaustive, a decision of the Tribunal: 1. will not be fair and equitable if there has been a denial of procedural fairness: Collins at [77(1)]; and 2. will be against the weight of evidence if 'the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach': Collins at [77(2)].

Appellant's material

1. In addition to the Notice of Appeal and the material attached thereto, the appellant relied on her further handwritten submissions, received by the Tribunal on 4 July 2024. Attached to those submissions was an evidentiary statement of the applicant's son, dated 7 May 2024. The statement of the applicant's son was prepared in support of proceedings he has commenced in the NSW Supreme Court. These proceedings are unrelated to this appeal and the subject matter of respondent's termination application that was before the Tribunal below.
2. In her submissions of 4 July 2024, the appellant submitted that: 1. the decision of the Tribunal was not fair and equitable as the Tribunal did not adjourn the hearing despite the oral evidence she had provided. That evidence she submitted included oral evidence about her son's abuse whilst at college; and 2. the Tribunal erred in law by terminating her tenancy agreement under the 'hoarding' clause as the clause is discriminatory and therefor void.
3. We note that the appellant had also provided material in support of her application for a stay of the orders made by the Tribunal on 14 May 2024. Much of this material is of a similar kind to that was attached to the appellant's Notice of Appeal and her submissions of 4 July 2024.

Respondent's material

1. In addition to the submissions made in its Reply to Appeal, on 17 July 2024, the respondent provided further written submissions and a large arch leaver folder of documents. The appellant did not dispute that she had also been provided with a copy of these submissions and arch leaver folder of documents. Nor did the appellant object to the folder being before the Appeal Panel.
2. The respondent's arch leaver folder of documents consisted of 863 pages. The pages are consecutively numbered, in red type, at the top right-hand corner of each page. The documents are otherwise not tabbed and, in our view, poorly organised which has made it difficult and time consuming in identify documents relevant to the matters in issue before the Tribunal and this appeal.
3. For example, the respondent's folder of documents provided in this appeal, contains two indexes. The first index is minimal and notes that copies of the material that was before the Tribunal below in support of the respondent's termination application are at pages 1-762 and 765 -774.
4. Another two-page index follows and is number (in red at the top right-hand corner) '1' and '2'. This index is entitled as being the index to the 'Evidence' of the respondent in its application to the Tribunal below (the 'Evidence' index). The index lists twelve (12) Annexures and against each Annexure is a page number range. For example, Annexure 1 is entitled 'Mrs Sylvia Boscolo Tenancy History for both 98 XXX Glebe and 45 XXX Glebe' and the page range is 1-10. These pages are also numbered (in red at the top right-hand corner) beginning with 3.
5. The page range in the 'Evidence' index is from 1 to 592, yet as noted above, the index to the folder that has been provided by the respondent in this appeal states that what was before the Tribunal below extends to page 762. Whether documents have been added to those listed on the index, or the documents were originally numbered differently has not been explained. However, we do note that page 762 of the folder is the second page of a file note of the respondent that is also numbered, in handwriting, as page number 592.
6. There is no physical divider between, or tabbing of, each Annexure and there is no detailed index of the documents within each Annexure. Each Annexure, however, contains documents relating to the prior residential tenancy of the appellant at number 98 XXX Glebe together with those relating to the premises the subject of the termination proceedings before the Tribunal (number 45 XXX Glebe).
7. In the absence of any written submissions having been provided by the respondent in support of its termination application before the Tribunal this has made the consideration of the material before the Tribunal very time consuming. Nevertheless, we note that the standing orders of the Tribunal in the Consumer and Commercial Division for such matters does not require the provision of written submissions. This does not of course prevent the respondent, a government agency, from providing written submissions on the matters in issue and cross-referencing those submissions to the evidence relied on.
8. In any event, we note that, at no time during the hearing before the Tribunal, did the appellant object to the respondent's bundle of documents.
9. At pages 775-793 of the respondent's arch leaver folder provided in this appeal is a 'transcript' of the hearing before the Tribunal that was prepared by the respondent.
10. In its written submissions of 17 July 2024, the respondent provided an outline of the proceedings and hearing before the Tribunal and elaborated on the submissions it made in its Reply. In this regard the respondent noted that the burden was on the appellant to establish her grounds of appeal, which she has failed to do. It was further submitted that the appellant was given every opportunity to be heard and as the orders made by the Tribunal were open to it the appellant's appeal should be dismissed, with the order for possession being amended to a date that is two weeks thereafter.
11. The respondent filed further submissions on 18 September 2024, in which it reiterated its earlier submission that the appellant's appeal lacked merit and was frivolous or vexatious or otherwise misconceived or lacking in substance. These submissions were made following the receipt of a building inspection report of the premises, and a Client Service Visit report at the premises on 22 August 2024. The building inspection and the Client Service Visit were undertaken, at the request of the respondent, in accordance with the orders made by the Appeal Panel on 7 August 2024.
12. The respondent sought to rely on the building inspection report and Client Service Visit report of 22 August 2024 that were prepared in accordance with the orders made by the Appeal Panel on 7 August 2024. We have considered the building inspection report no further as the photographs attached to that report do not say that they relate to number 45. To the extent relevant, we have dealt with the Client Service Visit report below.

Sound recording

1. After the hearing of the appeal, we asked the Tribunal Registry to provide us with a copy of the sound recording of the hearing before the Tribunal. We made this request because the 'transcript' provided by the respondent was not in the usual form and appeared to be incomplete. It was also disorganised in that the appellant's oral submissions have been transcribed as having occurred before the respondent's representative had made her oral submissions. Having listened to the sound recording this was clearly an error based on a misunderstanding of what time the Tribunal had said that this part of the hearing had recommenced.

Appellant's grounds of appeal

1. As noted above, the appellant's grounds of appeal concerning the Tribunal's adjournment decision are: 1. the Tribunal erred in failing to consider her oral evidence given: 1. in support of Dr Wan's medical certificate; and 2. about her son's abuse whilst at college; 1. the Tribunal erred by constructively failing to exercise its jurisdiction in granting an adjournment; 2. the Tribunal erred in failing to seek any submissions from her as to the prejudice she would suffer if her adjournment application was denied; and 3. the Tribunal's exercise of jurisdiction in refusing her adjournment application was unreasonable and plainly unjust.
2. For the reasons we set out below, we find that the appellant has failed to establish any of these grounds.

Relevant law

1. Section 51 of the NCAT Act gives the Tribunal the power to adjourn proceedings and is in the following terms: 51 Adjournment of proceedings The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).
2. It is a discretionary power concerning a matter of practice and procedure of the Tribunal.

The sound recording of the hearing

1. The sound recording of the hearing records the proceedings having commenced with the Senior Member introducing the matter, noting the appearance for the applicant (the respondent in this appeal) and the respondent (the appellant in this appeal) and noting the bundle of documents provided by the applicant (the respondent in this appeal). In response to a question asked of her by the Senior Member about whether she had a copy of the applicant's (respondent in this appeal) bundle of documents, the appellant said: 'I did, but I don't have them with me Member because I have been very unwell and I was going to ask for an adjournment today, um". This was followed by the following exchange between the Senior Member and the respondent (appellant in this appeal): Senior Member: What is the basis of your adjournment? Appellant (respondent before the Tribunal): Because I'm very unwell … I'm dealing with two people who are unwell actually. My daughter is on a pension and she has been very unwell - this has restricted me in preparing for my matter because she has been so unwell and I do have medical certificates with regard to that and Member I do apologise. Senior Member: Yes, can you hand them up and provide and show them to the other side. Appellant: Yes Senior Member: Two pages Appellant: Yes Senior Member: Document from Glebe Medical Centre marked MFI 1 and document from My Health Medical Centre marked MFI 2. Yes, anything further you want to say? Appellant: Yes, I want to say - I'd like to say - firstly apologise - I am not here to mess anyone around - secondly I would like to be able to have time to submit my evidence and again I apologise but this has not been my fault I've just been over whelmed by both my daughter and my son who have been very ill and its made things very difficult for myself and I've had Dr Wan looking after me and my health and Dr Loukakis has been looking after myself and my daughter so this is a serious matter and I just need more time to work this out. I do not know why I have been doing this and I would like to sort this out. I have a very sick daughter who has had cancer and who is still in remission and she has a lump in her throat and needs further treatment and is a very ill person and I am her full time carer - and may I say she is mentally fragile … so I'm her full time carer taking her to her medical appointments and doing all housework, so my situation is rather stressful.
2. About eight and a half minutes after the commencement of the proceedings before the Tribunal that day and after having heard from the respondent's (applicant before the Tribunal) representative, the sound recording records the Senior Member saying: Senior Member: Alright. For the reasons that will follow I will deliver later. The application for adjournment is refused. …

The Tribunal's reasons for decision

1. The Tribunal's reasons for decision for the adjournment decision are set out at [8] to [22] of its 14 May 2024 published reasons for decision.
2. In this regard the Tribunal noted: 1. at [8], that the appellant had made a request for the hearing to be adjourned and in support of her request the appellant provided a medical certificate from Dr Loukakis dated 4 April 2024 and a medical certificate from Dr Wan dated 7 May 2024; 2. at [9], that in support of her adjournment application the appellant also said she was unwell and that she was looking after her daughter who has cancer, and needed more time to submit her evidence; and 3. at [10], that the respondent did not oppose the request for an adjournment and indicated that if an adjournment was granted, an order was sought to enable the landlord to carry out a pest inspection and building inspection of the premises.
3. At [15], having noted that medical certificates should indicate both the illness and the reason(s) for the inability of a party to attend or participate in the hearing of legal proceedings, the Tribunal found that the medical certificates provided by the appellant in support of her adjournment application lacked weight and did not provide a sufficient basis for adjourning the hearing.
4. At [16], the Tribunal set out the terms of section 51 of the NCAT Act.
5. At [17], the Tribunal noted that each application for adjournment will depend on its own circumstances, and the matters which may affect the decision included: (1) when the application should have been made and when it was made, (2) the reasons given for the request, (3) whether the application is the fault of one of the parties, (4) any evidence provided in support or opposition, (5) whether some or all of the hearing time can be preserved, (6) the impact on the parties if the request is granted, (7) the impact on the parties if the request is refused, (8) any injustice that may occur and whether that can be avoided, (9) any cost consequences, and (10) the interests on (sic) the Tribunal.
6. At [18], the Tribunal referred to the High Court decision in AoN Risk Services v Australian National University [2009] HCA 27 and Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 having established that a relevant consideration in the exercise of a discretion to adjourn a hearing was the impact that a decision to adjourn would have on other pending cases before a court or tribunal.
7. At [19] the Tribunal noted that the respondent's application had been fixed for hearing some time ago.
8. At [20], the Tribunal found that the interests of the Tribunal included: … (1) the limited resources of the Tribunal, both in time and money, (2) the target finalisation date for proceedings, (3) the competing claims of other litigants awaiting a hearing, and (4) a need for an expectation that matters will be heard when they are listed for hearing.
9. At [21] the Tribunal concluded: 21 Weighing up all the circumstances of this case, and having regard to the considerations listed above, the Tribunal was not satisfied that an adjournment was justified. It is noted that the tenant sought two additional weeks for the provision of her documents, was given three additional weeks, and that, by the time of the hearing, the tenant had two months in which to provide her evidence.

Did the Tribunal err in failing to consider the oral evidence of the appellant?

1. As noted above, the oral evidence given by the appellant in support of her adjournment application was very brief. At [9] of its reasons for decision, the Tribunal specifically refers to the oral evidence, including the evidence the applicant gave about her daughter for whom she is the full-time carer.
2. We note the appellant's daughter in her early 50's and at no time during the hearing before the Tribunal, or on appeal, did the respondent dispute that the appellant's daughter had cancer and ongoing health issues.
3. Yet, the issue before the Tribunal was whether these health issues of the appellant's daughter had prevented the appellant from preparing her evidence in response to the respondent's termination application. As noted by the Tribunal at [11] of its reasons for decision, the medical certificate of Dr Loukasis, as relied by the appellant in her application for an adjournment, made no mention of the appellant's daughter having cancer or that the proceedings should be adjourned. Nevertheless, Dr Loukasis' medical certificate did support the oral submission made by the appellant subsequently during the substantive hearing before the Tribunal that her tenancy be maintained given the health needs of the appellant's daughter.
4. The appellant did not otherwise elaborate further on the Dr Wan's medical certificate in the oral evidence she gave prior to the Tribunal deciding to refuse her application for an adjournment.
5. At the hearing of her appeal the appellant asserted that, at the time of the hearing before the Tribunal, she was still very traumatised by the recent news of the alleged abuse of her son while he was at college and that she had informed the Tribunal of this when making her oral submissions in support of her adjournment application. It was in this context that the appellant had included a copy of her son's 7 May 2024 evidentiary statement with her submissions in this appeal. We note the appellant's son is in his early 40's and does not reside with the appellant.
6. Although the oral submissions of the appellant made in support of her adjournment application included a reference to her son, she did not, at that stage of the hearing make any reference to still being very traumatised by the very recent disclosure of the alleged assault. Nor did the Tribunal have before it a copy of the 7 May 2024 evidentiary statement of the appellant's son, which she acknowledged she had received prior to the 9 May 2024 hearing but forgotten to bring with her.
7. Accordingly, we find that the appellant has failed to establish that the Tribunal erred in failing to consider her oral evidence in support of her adjournment application.

Was there a constructive failure by the Tribunal to exercise its jurisdiction in granting or not granting an adjournment?

1. The appellant has not explained how it is asserted that there is a constructive failure by the Tribunal to exercise its adjournment jurisdiction. On this basis alone, this ground of appeal has not been established.
2. In our view, it would have been preferable for the Tribunal to have provided brief oral reasons for its decision to refuse the appellant's adjournment application. At the same time, we can see no error by the Tribunal in failing to do so. Nor do we see from the Tribunal's written reasons for decision that it constructively failed to exercise its jurisdiction in determining the appellant's adjournment application. As noted above, in its reasons for decision, the Tribunal identified the relevant legislative provision (NCAT Act section 51), the principles to be applied in exercising its discretion, the evidence that was before it and the findings made in regard thereto.
3. Accordingly, we find that the appellant has failed to establish that there was a constructive failure by the Tribunal to exercise its jurisdiction in granting or not granting her adjournment application.

Did the Tribunal err in in failing to seek any submissions from her as to the prejudice she would suffer if her adjournment application was denied?

1. While the appellant contends that the Tribunal had erred in failing to ask her what prejudice she would suffer if her adjournment was not granted, in our view, the prejudice she would suffer was evident from the submission she had made and the fact that she had not provided her evidence in response to the evidence provided by the respondent in support of its application before the Tribunal. Furthermore, possible prejudice to either party was identified by the Tribunal, at [17(6) and (7)] of its reasons, as a matter relevant to the exercise of its discretion as to whether to grant or refuse to grant the appellant's application for an adjournment.
2. Accordingly, we are not satisfied that the appellant has established that the Tribunal err in failing to seek any submissions from her as to the prejudice she would suffer if her adjournment application was denied.

Was the Tribunal's refusal to grant an adjournment an unreasonable and plainly unjust exercise of jurisdiction?

1. In Cameron v Ozzy Tyres Pty Ltd [2016] NSWCATAP 70 at [65] the Appeal Panel noted that there was no doubt that appellate courts exercise caution in intervening in matters of court's practice and procedure (which includes applications for adjournments) and that such are to be resolved according to the overall requirements of justice in the circumstances of the matter that is before the court. The Appeal Panel went on to say a similar approach should be adopted by the Appeal Panel of the Tribunal.
2. In Beaman v Commissioner of Police, NSW Police Force [2018] NSWCATAP 12 at [46], the Appeal Panel observed: 46 We need to be satisfied that the way in which the adjournment applications and the Tribunal directions were handled by the Tribunal resulted in a 'practical injustice'. As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
3. In GMI Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68 at [131] the Appeal Panel noted: 131 A failure to accede to a reasonable request for an adjournment may, in some circumstances constitute procedural unfairness (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, French CJ at [21], Hayne, Kiefel and Bell JJ at [48]). That is because procedural fairness requires that a person be given a reasonable opportunity to be heard (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]). However, an appellate body "should be slow to interfere with decisions to grant or refuse an adjournment unless injustice is demonstrated" (Austin v Dwyer [2023] VSCA 227 at [47]).
4. In this case, at no time did the Tribunal indicate or say that the appellant's adjournment application was unreasonably made. Instead, it dealt with the appellant's application for an adjournment on its merits having regard to the relevant legal principles and the evidence before it. In this regard the Tribunal noted that the applicant (respondent in this appeal) had provided its evidence on 7 March 2024, on 9 April 2024, the Tribunal granted the appellant's request for an extension to provide her evidence in reply (extension granted to 23 April 2024) and on 24 April 2024 the Tribunal Registry had advised the parties that the matter had been fixed for hearing on 9 May 2024 and the respondent was ready to proceed with its application even though it did not object to the adjournment application.
5. Accordingly, we find that the appellant has failed to establish that the Tribunal's refusal to grant an adjournment an unreasonable and plainly unjust exercise of jurisdiction.

Conclusion

1. In conclusion we find that the appellant has failed to establish any of her grounds of appeal to the extent they relate the Tribunal's decision of 9 May 2024 to refuse her application for an adjournment of the hearing of the applicant's (respondent in this appeal). However, this does not mean that having refused the appellant's adjournment application that in proceeding to hear the matter the appellant was not entitled to be afforded natural justice or procedural fairness: see NCAT Act section 38(2) and (5).

Termination decision

1. As we have noted above the appellant's grounds of appeal regarding the Tribunal's termination decision are as follows: 1. The Tribunal erred in law by terminating the tenancy agreement under the 'hoarding clause' because the clause was discriminatory and therefore void; 2. the Tribunal's failure to allow her to present evidence and make submissions about the 'hoarding' issue; 3. the Tribunal's failure to afford her the opportunity to provide evidence regarding her previous tenancy; 4. the Tribunal's failure to consider how the tenancy could be preserved; and 5. the Tribunal denied her natural justice and procedural fairness in not granting her an adjournment.

The hearing before the Tribunal of the respondent's termination application

1. It is necessary to provide a summary of how the substantive application of the respondent proceeded before the Tribunal on 9 May 2024.
2. After having made its decision to refuse the appellant's adjournment application, the Tribunal adjourned the hearing of the respondent's termination application for a short period of time to give the parties an opportunity to conciliate.
3. On resumption of the hearing, the Tribunal provided the appellant with a copy of the respondent's bundle of documents minus those documents that were at Annexure 2, which are identified on the index to the 'Evidence' of the respondent's bundle of documents before the Tribunal as being 'NCAT Hearings, outcomes of hearing and appeals from 07/01/2013 to 01/02/2024' and were identified to be at pages '11 - 311'. This bundle, as we have noted, was marked Exhibit A.
4. The Tribunal accepted into evidence, as Exhibit B, a 'Notice of Intention to Give an Order' from the local council, dated 15 April 2024, and addressed to the respondent concerning the accumulation of waste materials, litter and furniture stored in the front courtyard area and the premises.
5. On being advised by the representative of the respondent that no signed witness statements, affidavits or statutory declarations were relied on, the Tribunal noted that there would be no cross-examination, and the matter would proceed with oral submissions only. The Tribunal went on to: 1. explain that it would hear oral submissions from the respondent's representative first and then from the appellant and the respondent's representative would be given an opportunity to reply to the appellant's oral submissions; and 2. give a brief outline of the matters it was required to consider in determining the respondent's termination application.
6. Having noted that the respondent's application for a termination order was based on a breach of clause 43 of the tenancy agreement, the Tribunal requested that the respondent's representative structure her oral submissions so that it was clear to the appellant what the respondent's case was.
7. The respondent's representative proceeded to make her oral submissions by referring to specific page numbers in the material in the respondent's bundle of documents concerning the state of the subject premises and the appellant's prior tenancy of number 98. As we have noted above, the documents in the bundle were not sequential and did not separate those relating to the subject premises and those relating to the prior premises.
8. When the respondent's representative had completed her oral submissions, the Tribunal adjourned the hearing for 15 minutes, to give the appellant 'a chance to gather her thoughts' before she made her oral submissions.
9. On resumption of the hearing before the Tribunal, the appellant said: As I said to you when I first came here, I'm not in a fit state to conduct this matter and I've - some of these things have been said are totally incorrect and one sided. I would like to dispute that um for example um I'm just making um I'm very ill at the moment I feel quite nausea but with regard to 98 the things that have been said there are totally fabricated.
10. During her oral submissions the appellant continued to say she felt nauseous. She also disputed what had been said about the condition of her existing and previous tenancy.
11. After the appellant had finished making her submissions, the representative of the respondent said that, in the absence of the appellant having put on any evidence, she could not respond to the matters raised by the appellant.
12. The Tribunal sought submissions on the number of days being sought for a vacant possession order 'in the event a termination order is made.' The representative of the respondent said 14 days. The appellant said: 'there is no way we can get out in 14 days we don't have the means to pay, move or find alternative accommodation …' The appellant also said: I can't answer that question because I don't want there to be a termination notice. It just would be the end of my daughter, and she will kill herself. I know that. I can't have that happening this would be too traumatic for her to end up on the street. We came from the street actually into Housing and went up to 98... the worst premise ever but still we had a roof over our head...
13. In concluding the hearing, the Tribunal said: 'Alright then I'll let you both go. Obviously, I won't be giving a decision today. When I reach a decision, I will publish my reasons'.
14. This was followed by the appellant saying she would be submitting her evidence to the Tribunal the following day and that she would like to have a hearing on that evidence 'because I don't think it's right that I'm denied that'. In response the Tribunal said: If further material is submitted by you, or if material is submitted by you to the Tribunal a copy should be provided to the applicant's representative and the applicant's representative can indicate what her position is in the event that it is supplied by 4:00 pm tomorrow. All right the decision is reserved the hearing is concluded.

The decision of the Tribunal

1. At [24], the Tribunal noted that the documents relied on by the respondent (the applicant before the Tribunal) in support of its termination application were admitted as Exhibit A and as the appellant (respondent tenant before the Tribunal) did not have those documents with her, the Tribunal made a copy of Exhibit A and provided it to the appellant. At [28], the Tribunal described the documents listed in the index to Exhibit A.
2. At [25], the Tribunal noted that the appellant had not lodged any documents in response to the respondent's termination application. However, it accepted into evidence the medical certificates the tenant had provided.
3. At [29], the Tribunal noted that, even though they had been provided after the due date for the respondent's (applicant landlord before the Tribunal) documents, it had admitted into evidence, as Exhibit B, a notice issued by the local council as it was relevant to the matters in issue before the Tribunal, a copy had been delivered to the appellant (respondent tenant before the Tribunal) three days prior to the hearing, and being notices of the Tribunal could not be disputed.
4. At [30] to [36] the Tribunal summarised the submissions of the respondent (applicant landlord before the Tribunal) by reference to the relevant pages in Exhibit A. These submissions we note included documentation in Exhibit A relating to the appellant's prior tenancy at number 98.
5. At [37] to [40], the Tribunal dealt with the submissions of the appellant (respondent tenant before the Tribunal). In summary the Tribunal: 1. found that it would be procedurally unfair to permit the appellant to rely on evidence the appellant gave during her oral submissions as it would permit her to give evidence after the evidence had closed, and would not provide the respondent (applicant landlord before the Tribunal) with an opportunity to challenge her oral evidence; 2. noted that despite the statement from a neighbour having been in the landlord's bundle of documents that was Exhibit A, the tenant had submitted it was procedurally unfair to have admitted it; 3. noted that the appellant (respondent tenant before the Tribunal): 1. had referred to her own health; 2. said she wanted to bring her evidence that day, but did not provide an explanation as to why she did not do so; 3. said she was looking after her son and her daughter and maintained that the premises were clean; 4. said 'there are a few things on the front verandah' and she had rung the council, but they had not picked them up.
6. At [45] to [47], the Tribunal set out the relevant provisions of the RT Act. At [48] and [49] the Tribunal set out the terms of clauses 14.1 and 43 of the residential tenancy agreement between the respondent (applicant landlord before the Tribunal) and the appellant (respondent tenant before the Tribunal) concerning the premises at number 45.
7. At [50] the Tribunal listed twenty-two findings of fact, including the following: (1) On 4 January 2013 the tenant signed a residential tenancy agreement with the landlord in relation to premises which she previously occupied. (2) During the period of that previous tenancy, Proceedings were convinced in the Tribunal on 18 occasions, including multiple applications by the landlord for access, and culminating in a termination order being made on 25 June 2019. That order was sought on the basis that the property was uninhabitable, and possession was obtained on 23 October 2019. (3) During the period of that previous tenancy, the landlord made multiple requests to visit the premises for reasons which included client service visits, smoke alarm inspections, and maintenance inspections. (4) During the period of that previous tenancy, the landlord issued a notice for termination on three occasions. (5) On 25 October 2019 the tenant signed a residential tenancy agreement with the landlord in relation to premises which currently occupies. (6) During the period of the current tenancy, proceedings have commenced in the Tribunal on 8 occasions, including multiple applications by the landlord for access. (7) During the period of the current tenancy, the landlord has made multiple requests to make client service visits. There have been more than 20 requests for access. Access has been obtained following orders made by the Tribunal on 18 June 2021, 8 August 2022, and 31 August 2023. … (9) During the period of the current tenancy, the landlord has issued a notice for termination on three occasions: on 31 January 2020 for a failure to provide access, on 1 September 2023 for hoarding, and the current notice on 13 December 2023, also for hoarding. (10) On 11 June 2020 the local council issued an email which refer to the subject premises and spoke of the accumulation of waste materials on the front porch, the need for the tenant to 'arrange a cleanup of the premises and all organised for collection of waste', and of the area being targeted with a rat baiting programme. At that time, the materials on the front porch included a supermarket trolley, a rusted coffee table frame, and a portion of a painted timber picket fence. (11) On 9 August 2022 the landlord sent a notice to the tenant, regarding property care, plainly based on photos taken the previous day (A508-516). (12) Photos taken on 22 September 2022, 27 September 2022 and 12 October 2022 reveal further accumulation of items on the front porch, including multiple supermarket trolleys (A460-464, A523-524). (13) On 13 February 2023 a senior officer, acting on behalf of the landlord, tried unsuccessfully to speak to the tenant by phone in relation to matters which included the removal of rubbish. (14) On 29 March 2023 a notice was issued by the landlord to the tenant on that day, advising of the need to remove rubbish and clean the premises. (15) Emails from the landlord's officers in June 2023 recorded that 'the property is a fire and health safety hazard". (16) By 31 August 2023 there had been a further accumulation of items on the front porch and an accumulation of items inside the premises (A482-503) and a notice was issued by the landlord to the tenant on that day, advising of the need to clean and maintain the premises. (17) On 13 December 2023 the landlord issued a notice of termination, based on the alleged breaches of cl 14 and cl 43 of the current tenancy agreement, requiring the tenant to provide vacant position on 8 January 2024. (18) The accumulation of items on the front porch was still evident on 19 January 2024 (A520). (19) An adjoining neighbour has said the subject premises 'had a lot of rubbish and furniture in from [and] rear of the property which is causing a lot of [vermin] in the house this is also a fire hazard'. (20) On 21 February 2024 NSW Fire and Rescue (FNSW) sent an email to the council which said (emphasis original): FRNSW recommends an inspection of the premises be conducted to determine the fire risk and health and amenity. If necessary, appropriate action should be taken to reduce the impact of hoarding behaviour on both the occupant/s and neighbours (e.g. issuing of orders and or referral to appropriate treatment programmes). FRNSW attempted to conduct a safety visit at this property, however they were refused. (21) On 26 March 2024 a local council officer inspected the premises, uploaded nine photos, and headed the inspection report 'Unhealthy premises - hoarding'. (22) On 15 April 2024 the local council issued a 'Notice of Intention to Give an Order' to the landlord, based on (1) item 21 in s 124 and (2) s 132 of the Local Government Act 1993 (NSW) (LGA Act).
8. At [51] to [57], the Tribunal made the following findings: 51 The Tribunal determines that the tenant's conduct constitutes hoarding, based on (1) the photos, (2) the findings of FRNSW, and (3) the local council inspection. 52 … 53 There has been a clear breach of cl 43 of the residential tenancy agreement. Accordingly, the landlord was entitled, by s 87(1) of the RTA, to give a termination notice to the tenant. … 54 The Tribunal is satisfied not only that the tenant has breached her current tenancy agreement but also that the breach is sufficient to justify termination because the hoarding creates a safety risk, especially in relation to fire. 55 … 56 As to the circumstances of this case, the nature of the breach is both significant and serious … 57 There is nothing to suggest the tenant has taken any steps to address the hoarding issue. Indeed, there is nothing to indicate that the tenant accepts that she has a problem with hoarding. The landlord has taken steps to address the issue …
9. At [59], the Tribunal noted, in accordance with section 154B of the RT Act, that there was a similar breach in relation to the previous tenancy between the respondent (applicant landlord before the Tribunal) and the appellant (respondent tenant before the Tribunal). This the Tribunal found to strengthen the case for termination.
10. At [61] to [65], the Tribunal considered each of the factors in section 154E of the RT Act.
11. At [66] the Tribunal noted that a decision to make a termination order under section 87(4) of the RT Act was discretionary. At [68] the Tribunal set out the position of the respondent as to why a termination order should be made. At [69], the Tribunal noted that: 1. based on the medical reports submitted by the appellant (respondent tenant before the Tribunal), it appeared that she and her daughter both have health issues; 2. the appellant had suggested that she also had to deal with issues relating to her son, although there was no supporting evidence of such; 3. it is clear social housing tenants are usually unable to afford private tenancy arrangements and that the demand for rental housing far exceeds supply; and 4. there could be no doubt that an order for termination would have a significant consequence for the appellant.
12. At [71], the Tribunal said: 70 Weighing the competing cases for and against termination, the Tribunal considers that termination is the preferable course. The factors that have 'tipped the scales' in favour of the landlord are (1) the nature and extent of the hoarding (2) the period of time it has continued, the same problem arising in the previous tenancy, the numerous opportunities for the tenant to address the issue of hoarding, and above all, (5) the heightened fire risk, for which there is objective evidentiary support from FRNSW and the local council.
13. At [73], the Tribunal noted that at the conclusion of the hearing the appellant (respondent tenant before the Tribunal) said her documents would be submitted on 13 May 2024 and that its reasons were withheld to provide an opportunity for those documents to be submitted on that day and as this did not occur, the orders and reasons were published the following day.

Is clause 43 of the tenancy agreement void?

1. The appellant did not assert that she had raised this issue before the Tribunal below. Nor does the recording of the hearing record the appellant having raised an issue along these lines.
2. At [32] of its submissions of 17 July 2024 the respondent said that it: … [rejects] that if the term hoarding is discriminatory and says that it is irrelevant to the appeal proceedings. Clause 43 of the Agreement defines hoarding as having, collecting, acquiring, keeping and or permitting objects in or at the premises of an amount, level and/or/extent that impairs or prevents the use of the premises or for the premises to become or be in a condition that is unsanitary or unsafe or a risk to personal, occupational or public health and safety. Clause 43 is consistent with 14.1 of the Agreement which requires the tenant to keep the premises reasonably clean. The Tribunal reviewed the evidence and submissions put forward by both parties and accepted that the Appellant breached clause 14.1 and 43 of the Agreement by failing to keep the premises in a reasonable state of repair. The appellant admitted that she had called council and asked the Respondent to remove the clutter from the premises but denied that the premises was not kept in a reasonable state of repair: transcript page 4 at 8 minutes. The Appellant put forward oral submissions that the premises was in reasonable state of repair. To date, the Appellant has not put forward no evidence that the premises is in a reasonable state of repair or to refute the state of the premises put forward by the Respondent. …
3. In our view, the respondent has misunderstood this ground of appeal, which is whether clause 43 of the tenancy agreement is contrary to section 15(4)(a) of the RT Act and contravenes Part 4A of the Anti- Discrimination Act 1977 (NSW) (AD Act).
4. We note, that in the material provided by the appellant in support of her stay application, is a copy of a letter from the Principal Solicitor of the Tenants' Union of NSW, addressed to the respondent and dated 3 June 2024, concerning the termination of the appellant's tenancy for breach of the hoarding clause. In that letter, the Principal Solicitor noted that hoarding has been recognised as a disorder and considered to be a disability to which the Anti-Discrimination Act 1977 (NSW) applies. The Principal Solicitor also noted that, in 2021, the Tenant's Union of NSW had successfully advocated for the removal of the hoarding term from the tenancy agreements of the respondent because it was believed that the term contracted out of AD Act and was contrary to section 15(4)(a) of the RT Act.
5. In our opinion, it is not controversial that hoarding may well be a disorder, however at no stage during the hearing before the Tribunal, or in this appeal, has the appellant indicted that she has a disability of this kind that falls within the meaning of section 4 of the AD Act. On the contrary, it was the position of the appellant that she was not a hoarder and denied that she had breached clause 43 of the tenancy agreement.
6. As we have noted above, in the termination application before it, the Tribunal was tasked to determine whether the evidence relied on by the respondent (applicant before the Tribunal) established the alleged breach of the appellant (respondent before the Tribunal) that was the subject of its termination notice. That is, whether the respondent's evidence established a breach by the appellant of clause 43.2 of the tenancy agreement: namely whether the appellant had or allowed to be collected etc. objects in or at the premises of an amount; a level; or to an extent that the objects: 1. impaired or prevented the use of the premises or any part of the premises as residential premises; 2. impaired or prevented the use of particular rooms within the premises for their intended purpose or purposes; 3. caused or permitted the premises or any part of the premises to become or to be in a condition that is unsanitary, unsafe and/or that makes the premises or any part of the premises a risk to personal and/occupational and/public health and safety; 4. caused or permitted the premises or part of the premises to become or to be in a condition that encourages infestation by or attracts rats, mice and other rodents, fleas, life, moths, insects, vermin or other pests.
7. As we have noted above, the Tribunal was so satisfied. And in our opinion, on the material before it, it was open to the Tribunal to make such a finding.
8. In the absence of the appellant having articulated this ground more clearly and the respondent not having had an opportunity to provide written submissions on this ground, we have considered it no further and find that the appellant has failed to establish that clause 43 of the tenancy agreement is void.

Did the Tribunal fail to allow the appellant to present evidence and make submissions about the 'hoarding' issue?

Did the Tribunal fail to afford the appellant an opportunity to provide evidence regarding her previous tenancy?

1. It is convenient to deal with these grounds of appeal together.
2. In her oral response to the submissions made by the respondent's representative the appellant said that: 1. what had been said about the prior tenancy (number 98), was 'totally fabricated' (see at [104] above), and: … It was not until the Tribunal Member Harrowell made an order... They came in and take photos of the property, that Housing actually did something about the premises. We were living at … for almost 20 months without any basic amenities. No toilet facilities. I've got photos to show it. I've got letters which I was going to put in my submissions ... numerous complaints were made through Housing from doctors to Housing. It's unacceptable that the people of NSW live in poverty without any basic amenities. There was hardly any water in the kitchen. I couldn't even use the water in the kitchen because there wasn't any pressure. For cooking, I had to use the water from the bathroom. Similarly, ... there were no shower facilities. We lived in that property for almost 20 months without the basic amenities... 1. she had never seen any reports from neighbours - 'I just think … I've been denied procedural fairness'. When the Tribunal pointed out to the appellant that the neighbour's report was in the respondent's bundle of documents, the appellant said: … I don't see how they can report vermin, and I've never seen any of them in my property. And in the rear of the property all I have is plants … for anyone to say otherwise is unfair … it's not right. I dispute that comment … If I may say, Member, I feel very ill … I don't know what you want to do about this. I feel nauseous and I cannot continue today. I'm sorry, I have all my evidence at home which I would like to present to the Tribunal. 1. she was not denying the respondent access to the premises - it's just that her daughter has multiple illnesses and appointments come up and she had to attend them as she is dealing with someone who is very ill and mentally unwell; 2. she has asked the local council to come and pick up the furniture at the front, but they hadn't: My neighbour's phone call to them was this week was asking them to come around and take it off the property. I don't want to throw it down the street because it's heavy for me to lift … I've got an injury … and I want them to come and pick it up. I don't have any problem with that. I don't need the stuff. It's just items there which I do have … a few timber and whatever … 1. she did not damage property and that her property was clean: … it might have items around, because we do not have any furniture, or any wardrobes in the property to put things away … Things are still in boxes. It's not that it is unclean … I'm not an unclean person … we have washing, there's a washing machine, we put the washing on the line … why wouldn't we? … 1. it was unfair and wrong to say these things about her; 2. she did not need those things on the front verandah and she was doing something about it, but Council was not doing anything about it: So, I don't see why our tenancy should be jeopardized by this because we don't cause any harm to anyone. We're just trying to survive. And as I said I would've liked I'm sorry I came… I've been up the whole night looking after my daughter I'm tired - I forgot my files. I got them ready to present to the Tribunal, but it's just been too unwell so I'm sorry I apologise. … Yes, I would like the opportunity to present my evidence to the Tribunal. I know the Tribunal is limited in time, but I know when there is … when the Tribunal … the Tribunal has a responsibility to see what my evidence is. Not just accepting Housing... Housing has got legal people to do it. They got a whole office do it, someone once said. I have to do that, plus look after my family my daughter and my son. I don't disregard my poor son and what he went through. And I look after him and my daughter under poor living conditions and I try my best to make sure that nothing happens to them.
3. As noted at [106] - [109] above, at the conclusion of the hearing before the Tribunal below, the appellant said that she would submit her evidence the following day. While the Tribunal did not make any formal orders, the Tribunal did indicate that these would be considered, subject to the respondent being given an opportunity to respond if the appellant submitted her evidence.
4. The appellant did not provide any material or further response by 4.00 pm on the following day, being Friday 10 May 2024. The Tribunal determined the matter on Tuesday, 14 May 2024.
5. The question is whether, the appellant was nevertheless denied an opportunity to respond to the oral submissions made by the respondent's representative that day. If so, then this is arguably a breach of the hearing rule of procedural fairness, which would be a denial of procedural fairness.
6. While the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, section 38(2) of the NCAT Act provides that this is subject to the rules of natural justice, which is commonly referred to as procedural fairness. The hearing rule of natural justice requires a decision maker to give a person an opportunity to be heard before a decision is made affecting that person's interest: FAI Insurance Ltd v Winneke (1982) 151CLR 342, 360.
7. Section 38(5)(c) of the NCAT Act reinforces this as it provides that the Tribunal must 'take such measures as are reasonably practicable to ensure the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings'.
8. We agree with the Tribunal that the appellant had been given every reasonable opportunity to be heard and have her submissions considered in the proceedings. As noted by the Tribunal in its decision, at [6], the appellant had been provided with the respondent's material on 7 March 2024, which was some two months prior to the hearing. At no time did the appellant raise any object to that material being before the Tribunal or the Appeal Panel.
9. At her request, at the conclusion of the hearing before the Tribunal, the Tribunal gave the appellant the opportunity to provide the evidence she said she had forgotten to bring that day, the following day. Yet at no time has the appellant explained why she did not bring that evidence or what that evidence was. If it was the affidavit of her son, as we have noted, that affidavit was relevant to the matters that were in issue before the Tribunal.
10. In any event, considering the undisputed documentary evidence the respondent had provided concerning the appellant's alleged breach of clause 43.2 of the tenancy agreement, it is difficult to see how the Tribunal could have rejected the evidence if provided.
11. Concerning evidence of the prior tenancy of the appellant. In this regard, we note that, on 25 June 2019, on the application of the respondent, the Tribunal terminated the appellant's prior tenancy under section 109 of the RT Act (agreement frustrated - uninhabitable). A copy of the Tribunal's unpublished reasons for decision is contained in Annexure 2 of the respondent's bundle of document before the Tribunal. As we have noted, the documentation within Annexure 2 was extracted by the Tribunal from the copy of the respondent's bundle that was provided to the appellant at the hearing before the Tribunal.
12. However, it was in the respondent's bundle of documents that had been provided to the appellant before the hearing and it was a decision the appellant was aware of. She was the respondent to that application for termination by the respondent and the Tribunal gave an oral decision at the end of the hearing on 25 June 2019.
13. Furthermore, in the bundle of the documents copied for the appellant by the Tribunal on 9 May 2024 are several Notices of Termination issued by the respondent, to the appellant, in which a termination order was sought on the grounds of section 109. They were contained in Annexure 11 (Exhibit A page 549-553) of the respondent's bundle before the Tribunal and were dated 10 October 2018, 31 January 2019 and 8 February 2019: see pages 707 to 713 of the respondent's folder of documents before the Tribunal. We note that it was the 8 February 2019 termination notice which formed the basis on which the respondent made its 2019 termination application to the Tribunal.
14. Also included in Annexure 11 (Exhibit A page 554-556) was a copy of a Notice of Termination issued by the respondent on 23 May 2018, in which the respondent notified the appellant that her residential tenancy agreement for the premises at 98 was terminated for breach of clauses 13, 14 and 43 of the tenancy agreement: see at pages 715 to 717.
15. In her oral submissions, the respondent's representative referred to these Notices of Termination. No objection was taken by the appellant in the Tribunal having this Notice before it. While this Notice of Termination was not the basis on which the Tribunal Terminated the appellant's tenancy agreement for the prior premises, in our opinion, it was nevertheless a Notice the Tribunal could have regard, as it was relevant to the circumstances of the case before it.
16. In conclusion, we find that this ground of appeal has not been established by the appellant.

Did the Tribunal fail to consider how the tenancy could be preserved?

1. As we have noted above, section 87(4)(b) of the RT Act required the Tribunal to consider and be satisfied that the breach of the tenancy agreement was 'in the circumstances of the case, sufficient to justify termination of the agreement'. As noted by the Appeal Panel in Kelly at [49] and [51]: 49 Section 87(4)(b) requires the Tribunal to decide whether the breach is in the circumstances of the case sufficient to justify termination. In that evaluation the particular circumstances of the tenant that inform an understanding of the breach and whether it is sufficient to justify termination of the tenancy are relevant considerations. 50 … 51 A residential tenancy agreement is, at its core, an agreement that the landlord grants the right to occupy on the basis that the tenant promises to pay the rent on time and in accordance with the agreement, subject to additional statutory matters under Part 7 of the RT Act in respect of social housing residential tenancy agreements. In considering all circumstances relevant to the tenant's breach by failing to pay rent on time [in this case, failing to keep the premises reasonably clean by allowing hording] and in accordance with the agreement, the Tribunal must consider the facts and circumstances of the particular matter before it, but must also be cognizant that many social housing tenants suffer circumstances of personal hardship (reflected by the fact that they are eligible for social housing, … 52 … 53 Having identified the applicable mandatory considerations, the task for the Tribunal under s 87(4)(b) is to determine whether the breach is sufficient to justify termination of the agreement: Schaefer v Department of Housing (No 2) [2012] WASCA 229.
2. In King at [43], the Appeal Panel noted that, in social housing situations, the 'circumstances of the case' in section 87(4)(b) of the RT Act is not restricted to the requirements of section 154AE. Instead, the 'circumstances of the case' in section 87(4)(b) is a: … [mandatory] consideration of broad import which will, in social housing cases, include the tenant's circumstances of personal hardship, the likely existence of which is reflected by the fact that the tenant has obtained social housing: Kelly at [51].
3. In our view, a fair reading of the decision of the Tribunal, the Tribunal did consider the appellant's circumstances of personal hardship in determining whether the hoarding breach, in the circumstances of that case, was sufficient to justify termination of the agreement.
4. At [67] of its decision, the Tribunal expressly said that it was necessary 'to weigh up the case for the landlord for termination and the opposition of the tenant to that termination'. The Tribunal went on to consider the case for the landlord and then the tenant. As noted above, those relevant to the appellant were considered at by the Tribunal in its decision at [69]: see at [122] above. Other than making a general assertion that the Tribunal should have considered how the tenancy could be preserved, the appellant has not contended that the Tribunal incorrectly exercised its discretion under section 87 of the RT Act, or that it failed to take into consideration a matter relevant to 'the circumstances of the case' before it.
5. In King, the tenant in that case had placed before the Tribunal evidence about her health issues and the impact of these on the breaches of her tenancy agreement. In this case, there was no such evidence before the Tribunal, other than: 1. the medical certificates the appellant had presented to the Tribunal at the commencement of the hearing; and 2. those contained in the respondent's bundle of documents, which had been provided by the appellant to the respondent, during the tenancy. These medical certificates, as noted by the appellant, were provided when a proposed inspection of the premises by the respondent had to be cancelled because the appellant or her daughter had a medical appointment. They were not provided to deny the respondent an opportunity to inspect the premises.
6. As we have noted at [123] above, at [71] of its decision the Tribunal weighed up the 'competing cases' and considered that 'termination is the preferable course' and went on to list the factors that were considered to have 'tipped the scales in favour of the landlord'.
7. Again, the appellant has not contended that the Tribunal erred in the factors considered in weighing up the competing cases for and against termination.
8. In our view, the Tribunal's finding that, in the circumstances of the case before it, it was satisfied that the appellant's breach of the tenancy agreement was sufficient to justify termination of the tenancy agreement was open to it on the evidence.
9. Hence, in conclusion, we find that this ground of appeal has also not been established by the appellant.

Conclusion and Orders

1. For the reasons set out above we are not satisfied that the appellant has established any of her grounds of appeal. That is, she has failed to identify a ground of appeal that gives rise to a pure question of law, or that the Tribunal has erred in any respect for which leave to appeal could be granted to appeal the Tribunal's adjournment decision or termination decision.
2. Based on our findings, the appropriate order is to dismiss the appeal, lift the stay order made on 29 May 2024 and vary order 2 made by the Tribunal on 14 May 2024, by requiring the appellant to give vacant possession of the premises on 12 March 2025.
3. In extending the time for vacant possession we encourage the applicant to engage with the respondent and relevant support services in an endeavour to identify housing for herself and her daughter which will meet their respective needs.
4. We make the following orders: 1. Application for leave to appeal the adjournment decision is refused. 2. Application for leave to appeal the termination decision is refused. 3. Appeal dismissed. 4. The stay order made on 29 May 2024 is immediately lifted. 5. Order 2 made on 14 May 2024 in proceedings 2024/00039635 is varied to be: 'The order for possession is suspended until 12 March 2025'.

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: 22 January 2025