Bridgford & Anor v Brien & Ors

NCAT Appeal Panel|2017-02-24

Introduction

The appellants are tenants under a residential tenancy agreement in respect of a property at Bungendore.
The respondents Greg and Kay Brien are the landlords.
The respondents Helen Seamark and Allan Bladen (co-tenants) were, apparently, co-tenants of the appellants who have apparently vacated the premises and now live at Braidwood.
There have been multiple proceedings between the parties. The present appeal relates to a decision in respect of applications numbers RT 16/22190, RT 16/26015, RT 16/31600 and RT 16/46524 (original proceedings). The co-tenants were apparently parties to those some of the proceedings, being applicants. These applications related to the following claims: 1. RT 16/22190: Application dated 10 May 2016 by the appellants seeking orders under s 61 (limiting landlords access to premises), s 44 (rent reduction order), s 65 (landlord to carry out repairs) and s 115 (order declaring termination notice retaliatory) of the Residential Tenancies Act 2010 (RT Act); 2. RT 16/26015: Application dated 27 May 2016 by respondents for orders under s 87 (termination of tenancy for breach by a tenant) and s 187(1)(b) (order to remove motor vehicle) of the RT Act 3. RT 16/31600: Application dated 8 July 2016 by the appellants for an order under s 115 of the RT Act declaring a notice of termination was retaliatory; 4. RT 16/46524: Application dated 18 October 2016 by respondents for an order to allow the landlords access under s 60 of the RT Act.
In addition to the above proceedings, there are further proceedings brought by the appellants in respect of other alleged breaches of the residential tenancy agreement by the respondent landlords. These other proceedings have apparently been listed for hearing before the Tribunal in March 2017, however, the number of the proceedings is not known.
The present appeal relates to orders made in the original proceedings. These reasons relate to an application by the appellants to prevent their eviction from the residential premises until determination of the appeal.

History of proceedings and grounds of appeal

The original proceedings were heard by the Tribunal and 2 November 2016. On the day the Tribunal made the following orders (original orders): 1. By consent, the Residential Tenancy Agreement is terminated on 31-Jan-2017 and possession is to be given to the landlord on the date of termination. The tenants may terminate the residential tenancy agreement earlier than 31 January 2017 by giving 48 hours written notice to the landlords' agent. 2. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016 pay to the tenants the sum of $3,400.00 being a reduction of rent pursuant to s 44(1)(b) of the RT Act for failure by the landlord to replace the shed/stables from 13 July 2015 to today. 3. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016pay to the tenants the sum of $8,800.00 being a reduction of rent pursuant to s 44(1)(b) of the RT Act for failure by the landlord to repair the sewerage and drainage system from 24 February 2015 to today. 4. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016 pay to the tenants the sum of $1,000.00 compensation for breach of clause 23 of the residential tenancy agreement - unauthorised and frequent access by landlord to premises. 5. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016 pay to the tenants the sum of $2,000.00 compensation for breach of clause 18.3 of the residential tenancy agreement - failure to keep the premises in a reasonable state of repair. 6. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016 pay to the tenants the sum of $2,000.00 compensation for breach of clause 1 of the residential tenancy agreement and for breach of s 49(2) of the Act failure to provide vacant possession to tenants. Default in the payment of any Instalment will cause the whole of the balance then outstanding to become immediately due and payable. 7. The Tribunal orders that the respondent(s): KAY BRIEN #### GREG BRIEN ### is to cause the undertaking of the following work in a proper and workmanlike manner on or before 30-Nov-2016. Details of Work order: repair of the drainage, sewerage ad plumbing system in accordance with the report dated 17/8/16 of SIR Plumbing, Gasfitting and Excavations as follows: a) the hot water services are to be repaired or replaced as necessary to ensure that each has a Duo valve and tempering valve present and operative. b) to repair or replace as necessary the drainage systems from all dwelling to the septic tank to ensure correct placement of the main house vent so that the water seal in each toilet operate to ensure the proper water flow and to prevent the influx of methane gas into the dwelling. 8. Having regard to the withdrawal by the landlord of the following goods, services or facilities: shed and/or stables, failure to repair or to maintain the premises, failure to remove animals and failure to deliver vacant possession of premises It is ordered that the rent shall not exceed the sum of $0.00 per week from 03-Nov-2016 to date of vacation. NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court.
As can be seen from the original orders, some orders were by consent. The other orders were apparently made following a hearing on that day.
Subsequently, the Tribunal determined that the orders made on 2 November 2016 contained errors which could be corrected under s63 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). That section provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
On 21 November 2016 the Tribunal published orders purportedly amended under s 63 (amended orders). These orders were in the following terms (the changes shown in bold print): 6. By consent, the Residential Tenancy Agreement is terminated on 31-Jan-2017 and possession is to be given to the landlord on the date of termination. The tenants may terminate the residential tenancy agreement earlier than 31 January 2017 by giving 48 hours written notice to the landlords' agent. 7. Pursuant to sS187 (1) (d) of the Residential Tenancies Act the landlord shall on or before 9 November 2016 pay to the tenants the sum of $2600 being a reduction of rent pursuant to s44 (1) (b) of the RT Act for failure by the landlord to replace the sheds/stables. This is a reduction of $50 per week for a period of 52 weeks. 8. Pursuant to sS187 (1) (d) of the Residential Tenancies Act the landlord shall on or before 9 November 2016 pay to the tenants the sum of $5200 being a reduction of rent pursuant to s44 (1) (b) of the RT Act for failure by the landlord to repair the sewerage and drainage system. This is a reduction of $100 per week for a period of 52 weeks. 9. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016 pay to the tenants the sum of $1,000.00 compensation for breach of clause 23 of the residential tenancy agreement - unauthorised and frequent access by landlord to premises. 10. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016 pay to the tenants the sum of $2,000.00 compensation for breach of clause 18.3 of the residential tenancy agreement - failure to keep the premises in a reasonable state of repair. 11. Pursuant to s 187(1)(d) of the Residential Tenancies Act the landlords shall on or before 9 November 2016 pay to the tenants the sum of $2,000.00 compensation for breach of clause 1 of the residential tenancy agreement and for breach of s 49(2) of the Act failure to provide vacant possession to tenants. Default in the payment of any Instalment will cause the whole of the balance then outstanding to become immediately due and payable. 12. The Tribunal orders that the respondent(s): KAY BRIEN ### GREG BRIEN ### is to cause the undertaking of the following work in a proper and workmanlike manner on or before 30-Nov-2016. Details of Work order: repair of the drainage, sewerage ad plumbing system in accordance with the report dated 17/8/16 of SIR Plumbing, Gasfitting and Excavations as follows: a) the hot water services are to be repaired or replaced as necessary to ensure that each has a Duo valve and tempering valve present and operative. b) to repair or replace as necessary the drainage systems from all dwelling to the septic tank to ensure correct placement of the main house vent so that the water seal in each toilet operate to ensure the proper water flow and to prevent the influx of methane gas into the dwelling.. 13. Order 8, made on 2 November 2016 is set aside. NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court.
As can be seen from a comparison of the original orders with the amended orders, Order 8 in the original orders was "set aside". In its original form, order 8 had the effect of reducing to zero the rent payable in the period from 3 November 2016 (when the original applications were heard) until 31 January 2017 (when, by consent, the residential tenancy was to be terminated and vacant possession handed up).
Following the issue of the amended orders, the appellants applied to the Tribunal for written reasons pursuant to s 62 of the NCAT Act. These reasons were published on 29 December 2016, which is the date the appellants say they received notice of the reason. The reasons did not explain why Order 8 was set aside.
The reasons published in December also renumbered orders 6-12 as orders 1-7 and omitted order 13 made on 21 November 2016. However, nothing turns on this fact.
The appellants filed a Notice of Appeal on 13 February 2017. In that document, the appellants said that they received notice of the decision on 22 November 2016. This appears to be the date of the amended orders, the reasons for decision had not been published until 29 December 2016. During the course of hearing the present application and dealing with the call over of the appeal, the Appeal Panel made orders permitting the amendment of section 2 of the Notice of Appeal to change the date the notice of the decision was received to 29 December 2016. However the appeal was still filed out of time, being a 14 day period in residential proceedings: see rule 25(4)(b) of the Civil and Administrative Tribunal Rules, 2014.
The Notice of Appeal challenged the Tribunal's amended orders, particularly the order terminating the residential tenancy agreement and providing for possession on 31 January 2017 and the order setting aside Order 8 in the original orders.
The appellants sought the following orders: Set aside Order 13 of the amended orders Order for rent reduction due to excessive rent Amend order 8 (i) of the original orders to be removed. Amend order 8 regarding rent shall not exceed the sum of $0.00 per week from 3 November 2016 to date of vacation (or no later than 30 April 2017) Order for tenancy against person with superior title. Section 125 Residential Tenancies Act 2010 or a complete rehearing of the case.
In section 5B of the Notice of Appeal, the appellants set out the grounds of appeal as follows: The agreement made in order 1 on 2 November 2016 was made on the basis that no rent was to be paid and the orders on this day were final and would not have been considered if this was not the case. The compensation that we were seeking was not even brought up as we were happy to accept the orders as they were. The orders were amended by the member and we were not given a right of reply which is a denial of procedural fairness, as the orders were changed so dramatically and significantly changed the outcome of the hearing. After many weeks of going over the orders and our evidence our solicitor has advised us to start the internal appeals process instead of taking it to a higher court.3 The hearing was rushed and was not gone through to the extent that we thought it would have been, not giving the tribunal the full picture of the contempt the landlords and the agent hold for the tribunal. We had two applications before the tribunal for retaliatory eviction notices because the landlords and the agent had been trying to evict us with in (sic) since we first started proceedings with the tribunal. The agent had broken the Residential Tenancy Act when he asked us to get insurance for our livestock. These applications were not taken into consideration when the orders were made by the member. The tribunal member on the day thought the amounts of money to be paid and the full rent reduction was a fair and reasonable amount of compensation for the landlords to pay for the breaches of the residential tenancy agreement. We believe that we should not be punished for an honest mistake by the member, considering the fact we have done nothing wrong by asking the landlords and agents to pay for the breaches of the residential tenancy agreement. We believe that we should not be punished for an honest mistake by the member, considering the fact that we have done nothing wrong by asking the landlords and agent to fix a broken toilet and abide by the laws set out in the Residential tenancy Act.

Submissions for the stay application

The parties filed written submissions and made oral submissions at the hearing of stay application.
At the hearing of the stay application, the Appeal Panel sought to conciliate the dispute. This conciliation was on terms that no objection be taken by the parties to the Appeal Panel determining the stay application if the conciliation was unsuccessful. As the matter was not resolved, the hearing of the stay application was completed.
During the course of hearing, the Appeal Panel drew to the attention of parties the decision of Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, a decision of the President of the Tribunal, Wright J, which set out the principles applicable in considering whether or not a stay should be granted.
The appellants said that the consent order terminating the residential tenancy agreement was made on 2 November 2016 pursuant to an agreement which included conditions that the tenancy would terminate on 31 January 2017 and that no rent was payable for the period 3 November 2016 until 31 January 2017. The appellants also submitted that the rent reduction issues and the appellants other claims for breach of the residential tenancy agreement which were not resolved by agreement were to be dealt with by the Tribunal in a contested hearing 2 November 2016.
The appellants said that orders 1 and 8 of the original orders gave effect to this agreement. The appellants submitted that the changes to the orders by the Tribunal in the amended orders made on 21 November 2016, that is the "setting aside" of Order 8, had the effect of making a termination order on terms that the appellants remained liable to pay rent from 3 November 2016 until the agreed vacation date of not later than 31 January 2017. The appellants said this was not agreed.
In reply, the respondents agreed that the order for termination made by consent was on terms that no rent would be payable by the appellants for the period 3 November 2016 until the agreed vacation date on 31 January 2017.
The respondents also submitted that the appeal was out of time and that an extension of time to appeal should not be granted. The respondents said that they wished to sell the property and they were suffering financial hardship because no rent was being paid and they were not meeting their obligations to their bank. They said that the appellant should not be permitted to stay in the premises pending determination of appeal and that if this was to occur the appellants should be required to pay rent for the period from 3 November 2016 until 31 January 2017 as well as rent from 1 February 2017, the rent being $700 per week (that is, after possession was required to be given to the respondents by the appellants).
In addition, the respondents said that there was an amount of $1228.55 being unpaid rent as at 2 November 2017.
The Appeal Panel was also informed by the respondents that they had not paid the money orders made by the Tribunal. It appeared to the Appeal Panel that the respondents were variously asserting: 1. they could not afford to do so; 2. "that the monies payable by the (respondent) have essentially been paid by the lack of rent paid by the (appellant) in respect of the orders made 21 November 2016" and/ or 3. the respondents needed to sell the residential premises to fund payments due under the amended orders.
In reply, the appellants challenged the respondents' assertion of financial hardship, saying the respondents had recently travelled to Queensland and had been on holidays.
In relation to the application to extend time to appeal, the appellants said they tried to obtain legal advice and they were not able to do so until after the "extended Christmas period". However no explanation was given why the appeal was not lodge until after 31 January 2017 being the date for termination and delivery up of possession.

Consideration

There are a number of issues raised by the appellants in the appeal. These include: 1. Whether the time to appeal should be extended. 2. Whether the orders of the Tribunal made on 2 November 2016 could be amended pursuant to s 63 of the NCAT Act. 3. Whether, in amending the orders in the form that occurred, the Tribunal denied the appellant an opportunity to make submissions concerning the alterations made. 4. Whether, having determined there had been breaches of the residential tenancy agreement for a period exceeding 12 months, the Tribunal was correct to amend the original orders to reduce the award for compensation in respect to the shed, stables and sewerage and drainage system so as to limit the award to a period not exceeding 12 months. 5. Whether the Tribunal was correct to set aside Order 8 in circumstances where the agreement between the parties was that the residential tenancy agreement be terminated on 31 January 2017 on terms that no rent payable by the appellants to the respondents for the period to November 2016 until 31 January 2017.
For present purposes, the issues to be resolved in respect of the stay application are: 1. whether the termination order and order for possession should be stayed or otherwise varied pending determination of appeal; and 2. if not, what, if any, orders should be made.
As Wright J said in Bentran at [9], in determining the question of a stay the Appeal Panel should have regard to the following principles: 1. generally a successful party is entitled to the benefit of the decision or orders that a party has obtained at first instance; 2. the onus is upon the applicant from state to make out a case that is appropriate an order be made in their favour; 3. the lodgement of appeal is not sufficient to justify the grant of the stay; 4. a stay will ordinarily be made if such an order is reasonably necessary to secure the effectiveness of the appeal; 5. the Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies; 6. the Tribunal is required to weigh the balance of convenience and the competing rights the parties and may impose conditions so as to achieve a result that is fair to all parties; 7. the overriding principle in an application for a stay is to ask what the interests of justice require.
In resolving this matter, the Appeal Panel is also required to give effect to the guiding principle in s 36 of the NCAT Act, namely to ensure that the real issues in dispute are resolved in a just, quick and cheap manner.
It is common ground between the parties in this application that there was an agreement between the parties that the residential tenancy agreement be terminated on 31 January 2017 with possession to be delivered on that date. It is also common ground that the agreement was on terms that no rent be payable from 3 November 2016 until 31 January 2017.
The only other "condition" that the appellant asserted in respect of this agreement was that the Tribunal would otherwise deal with each of the parties applications at the hearing on 2 November 2016. It appears to the Appeal Panel that this other "condition" was no more than an acknowledgement by the appellants that the Tribunal would hear the contested applications for rent reduction or compensation on 2 November 2016, which is what occurred.
The effect of the original orders made consequent upon this hearing was as follows: 1. The residential tenancy agreement was terminated by consent and no rent was payable for the period 3 November 2016 until the date for termination and possession, namely 31 January 2017 (Orders 1 and 8); 2. The Tribunal made 5 orders in favour of the appellants against the respondents for compensation under section 187 (1)(d) of the RT Act. The orders totalled $17,200.00. The amounts awarded were calculated as follows: 1. "$3400.00 … being a reduction of rent pursuant to s44(1)(b) of the RT Act or failure of the landlord to repair the shed/stables from 13 July 2015 to (2 November 2016)"; 2. "$8800.00 …being a reduction of rent pursuant to s44(1)(b) of the RT Act for failure by the landlord to replace the sewerage and drainage system from 24 February 2015 to (2 November 2016)"; 3. "$1,000.00 compensation for breach of clause 23 of the residential tenancy agreement - unauthorised and frequent access by landlord to premises"; 4. "$2,000.00 compensation for breach of clause 18.3 of the residential tenancy agreement - failure to keep the premises in a reasonable state of repair"; 5. "$2,000.00 compensation for breach of clause 1 of the residential tenancy agreement and for breach of s 49(2) of the Act failure to provide vacant possession to tenants". 1. The respondents (landlords) were ordered to carry out various repairs to the residential premises on or before 30 November 2016.
No orders were made in application RT 16/31600 seeking a declaration under s 115 of the RT Act was not pursued by the appellants. No doubt this was because the parties had agreed to terminate the residential tenancy on 31 January 2017.
The effect of the amended orders was to reduce the total award for damages to $12,800.00. The reduction to the total award was $4400.00 made up as follows: 1. The sum of $3400.00 was reduced to $2600.00. The Tribunal said in the amended orders "This is a reduction of $50 per week for a period of 52 weeks". 2. The sum of $8800.00 was reduced to $5200.00. The Tribunal said "This is a reduction of $100 per weeks for a period of 52 weeks".
The award for compensation for each of these claims was calculated on the basis of a 52 week period only. This appears to be despite the fact that the original orders recorded there was: 1. "failure by the landlord to replace the shared/stables from 13 July 2015 to (2 November 2016); and 2. "failure by the landlord to repair the sewerage and drainage system from 24 February 2015 to (2 November 2016).
In addition, as indicated above, the amended orders removed the order reducing to zero the rent payable by the respondents from 3 November 2016 until 31 January 2017.
It is difficult to understand the jurisdictional basis and/or the factual basis for the Tribunal to have exercised its powers under s 63 of the NCAT Act to reduce the award for compensation from a total of $17,200 to $12,800. It appears to be based on some view that an award for compensation under s 187(1)(d) of the RT Act, calculated by reference to the rent payable (as opposed to an order to reduce rent under s44 of the RT Act), could not be made where the loss suffered arose from a breach or breaches extending over a period greater than 12 months. While there are time limitations in making such an application to the Tribunal, subject to any appropriate order extending time and subject to in the general limitation issues under the Limitation Act 1969 (NSW), there seems no reason in principle why an award for compensation could not have been made in terms of the original orders.
Whether or not this is correct is a matter which is appropriate to resolve at the final hearing of the appeal. Directions were made at the call over of the appeal on 24 February 2017 to allow submissions to be filed.
However, relevant to this application, having decided to award compensation rather than making an order for reduction in rent, there appears no reason why Order 8 in the original orders was not otherwise an order which the Tribunal was permitted to make.
Further, even if the effect of the Tribunal's orders for compensation was that those orders amounted to an exercise of the order making powers under s 44 to reduce the rent for a period up to and including 2 November 2016, there appears no reason why, in order to give effect to parties' agreement, the Tribunal could not otherwise have made a termination order on the condition that no rent was payable by the appellant for the period in 3 November 2016 until 31 January 2017. Such a power is conferred on the Tribunal under s 58 of the NCAT Act.
These matters are relevant to a resolution of the present application for several reasons.
The following matters favour the grant of a stay.
First, in circumstances where the parties (as acknowledged to the Appeal Panel when hearing the present application) expressly agreed to termination of the residential tenancy agreement on terms that no rent was payable for the agreed period, the Tribunal's decision to set aside Order 8 and not otherwise to impose a condition of the type set out above is clearly wrong.
Secondly, it would be unjust to allow the respondents to execute a warrant for possession in these circumstances where they might thereafter: 1. contend they are not bound by their express agreement; and 2. as asserted in their submissions, seek to offset "rent" they claim was payable in the period 2 November 2016 until 31 January 2017 against monies they have (by their admission) failed to pay in accordance with the Tribunal's amended orders,
Thirdly, the fact respondents now assert they can avoid the condition of the agreement which gave rise to the consent order for termination suggests leave should be granted to appeal out of time , at least in respect of the termination order and Order 8 in the original orders.
On the other hand, there are a number of matters that count against the grant of a stay.
First, it is clear to the Appeal Panel from the appellants' submissions, the Notice of Appeal and form of orders sought by the appellants in the appeal, the appellants now seek to remain in possession of the property beyond the period which was agreed. In this regard, as indicated in the orders sought in the appeal, the appellants say that the Appeal Panel should amend Order 8 so as to provide "rent shall not exceed the sum of $0.00 per week from 3 November 2016 to the date of vacation (or no later than 30 April 2017". That is the appellants say they should be relieved from paying rent beyond 31 January 2017, possibly until 30 April 2017.
Making a stay order would effectively grant an extension of the tenancy and allow the appellants to avoid the agreement they acknowledge was made in respect of termination. This is so whether or not the stay was subject to a condition concerning payment of rent until the Appeal is resolved.
Secondly, there is no other issue to be resolved in the appeal that would make it appropriate for the Appeal Panel to make orders to preserve the tenancy pending final hearing of all issues in the appeal.
As outlined above, the other issues raised on the appeal (other than the setting aside of the order providing for a rent free period from 3 November until 31 January 2017) relate to whether the Tribunal was correct to reduce the award for compensation originally made in favour of the respondent on 2 November 2016 and/or had power to do so. While it is correct that the respondents have not complied with the Tribunal's orders for payment of compensation and may not have carried out various repair work that is not a reason why the appellants should not be required to comply with the orders to which they consented.
The only issue which might otherwise justify the Appeal Panel making orders to preserve the tenancy in the short-term is that the appellants seek an order under s 125 of the RT Act. That section provides: 125 Order for tenancy against person with superior title (1) This section applies if proceedings for the recovery of possession of residential premises are commenced before a court or the Tribunal (whether under this Act or otherwise) by a person (the plaintiff) who is not the landlord or former landlord under the agreement. (2) An application may be made under this section by a person who is or was, when the proceedings were commenced, in possession of the residential premises as: (a) a tenant under a residential tenancy agreement, or (b) a former tenant holding over after termination of a residential tenancy agreement. …... (4) The court or Tribunal may, on such an application, and if it thinks it appropriate to do so in the special circumstances of the case, make an order vesting a tenancy over the residential premises in the applicant. (5) The plaintiff is to be the landlord under the tenancy and the tenancy is to be on such terms and conditions as the court or Tribunal thinks fit, having regard to the circumstances of the case.
The problem with this claim is that none of the applications to which the appeal relates concern a decision of the Tribunal in respect of a claim by the appellants for orders under s 125. Whether or not the appellants have separately applied to the Tribunal for orders under that section, what is clear is that there is no appeal presently before the Appeal Panel relating to proceedings in which this issue has been dealt with at first instance.
Thirdly, the Appeal Panel notes that in seeking these orders the appellants only took action after the date for termination and delivery up of possession had passed and that the effect of granting the stay would be to allow the appellants to remain in the residential premises beyond that agreed by the parties at the hearing before the Tribunal on 2 November 2016, possibly for another 3 months.
Consequently, subject to the issue of giving effect to the original agreement reached, there is no other reason why the tenancy should be preserved pending a determination of that part of the appeal relating to the issues concerning compensation or rent reduction.
In deciding this application, the Appeal Panel is required to give effect to the guiding principle, namely the just, quick and cheap resolution of the real issues in dispute.
As can be seen from what is said above, in relation to the order for termination, the real issue for resolution is whether the orders made by the Tribunal in the form of the amended orders give effect to the agreement which the parties to this application acknowledged had been made on 2 November 2016. Both parties acknowledged to the Appeal Panel that their agreement before the Tribunal to make an order terminating the residential tenancy agreement was conditional on no rent being payable from 3 November 2016 until 31 January 2017.
In the opinion of the Appeal Panel it is clear that the amended orders did not include a condition that rent was not payable from 3 November 2016 until 31 January 2017. Further, the orders do not otherwise give effect to the agreement reached between the parties.
The error that the Tribunal has made is clear. It is a matter for which leave to appeal should be granted and is a matter which the Appeal Panel can correct in this application. In this regard parties have an opportunity to make submissions concerning the original orders and the amended orders whether the amended orders were appropriate.
While the Appeal Panel could leave this issue to be dealt with at a final hearing, this would necessitate the making of interlocutory orders to preserve the status quo. Such orders could be made on condition that rent was paid in the meantime. However, the problem with such an approach is that the respondents would be kept out of possession of their property and, on their submission, would suffer financial hardship as they need to sell the property to satisfy the bankers. This would work an injustice to them and prevent them from obtaining the benefit of the agreement which the appellants acknowledged was reached, namely that the tenancy would terminate on 31 January 2017 and possession would be delivered up on that date.
On the other hand, to allow any eviction to proceed in accordance with the amended orders would work an injustice upon the appellants in that they would not have the benefit of the condition that they be permitted to occupy the premises for a rent free period from 3 November 2017 until 31 January 2017.
However, the injustice to the appellants can be avoided by the Appeal Panel finally determining this issue in the appeal. This can be done by granting leave to appeal out of time and making orders to give effect to the agreement which the parties have acknowledged. In this way, each of the parties will receive the benefit of the agreement which was reached, thereby avoiding any continuing injustice.
Accordingly, it is appropriate that the Appeal Panel make orders granting the appellants leave to appeal out of time in respect of amended orders 6 and 13 made 21 November 2016, set aside order 13 and make the termination order conditional on no rent being payable by the appellants for the period from 3 November 2016 until 31 January 2017. It is also appropriate to dismiss that part of the appeal relating to the application RT 16/31600 under s 115 (retaliatory notices) of the RT Act.
The date for termination and possession should remain 31 January 2017 as agreed. Any claim by the respondent landlords for an occupation fee under s 123 of the RT Act can be made by application to the Tribunal if thought appropriate.
As to the question of leave to appeal in respect of the orders for compensation and issues relating to original orders 2-7 as amended by the amended orders 7-12, including extending time to lodge the appeal, this should be dealt with at the final hearing of the appeal fixed on 4 April 2017.

Orders

Having regard to the above, the Appeal Panel makes the following orders: 1. Grant leave to appeal out of time in respect of orders 1 and 8 made 2 November 2016 as varied by orders 6 and 13 made 21 November 2016 and allow that part of the appeal. 2. Orders 1 and 8 made on 2 November 2016, as varied by orders 6 and 13 made on 21 November 2016, are set aside. 3. In lieu thereof the following orders are made in application RT 16/26015: 1. By consent, the Residential Tenancy Agreement is terminated on 31 January 2017 and possession is to be given to the landlord on the date of termination. The tenants may terminate the residential tenancy agreement earlier than 31 January 2017 by giving 48 hours written notice to the landlords' agent. 2. It is a condition of order (a) that no rent is payable by the tenants to the landlords for the period 3 November 2016 to 31 January 2017. 1. The appeal in respect of application RT 16/31600 is dismissed. 2. The stay order 1 (suspending the order for possession) made 24 February 2017 is set aside. 3. Save as provided above, the issues of extending time to appeal or otherwise granting leave to appeal in respect of the grounds of appeal other than the claims resolved by these orders, are to be dealt with at the hearing of the appeal on 4 April 2017. 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

Amendments 15 March 2017 - No.s 1 & 2 of the decision reference to order corrected. 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: 15 March 2017

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