Bungree Aboriginal Association Ltd v Cosgrove

NCAT Appeal Panel|2023-03-08

Background and relevant provisions

A landlord may give a "90 day termination notice", without being required to demonstrate a reason for doing so, if the tenancy agreement is a periodic agreement: RT Act s 85(1) and (2). 85 Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
Section 85(3) provides: "The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice".
On or about 5 September 2022, the landlord issued to the tenant a 90 day termination notice specifying a termination date of 14 December 2022 (the Notice).
On 15 December 2022 the landlord lodged the Application Form online. It is apparent that the form was lodged on that date because the electronically generated copy of the form states "15/12/2022" next to the column headed "Date Lodged".
The matter came before the Tribunal for a conciliation and group list hearing on 9 January 2023. At the hearing the Tribunal decided the matter and dismissed the application. The Notice of Order issued by the Tribunal stated: The Tribunal has no jurisdiction to determine the application for termination and possession because the application was made prior to the date specified in the notice.

Conclusion and orders

For the reasons given, we have decided to uphold the appeal and to set aside the order by the Tribunal on 9 January 2023.
We are not satisfied that in accordance with s 81(1)(d) of the NCAT Act, we can fairly determine the dispute on the basis of the limited materials before the Appeal Panel. For example, we have not been provided with a copy of the residential tenancy agreement and therefore cannot determine whether the agreement was in fact a periodic agreement at the time the Notice was issued. Nor do we have sufficient evidence to properly exercise the available discretion to suspend the order for possession for a period, if that is warranted.
Accordingly, in accordance with s 81(1)(e) of the NCAT Act, we will remit the matter back to the Consumer and Commercial Division to reconsider the landlord's application for termination.
For these reasons, we make the following orders: 1. The appeal is allowed. 2. The order of the Tribunal made on 9 January 2023 in SH 22/55433 is set aside. 3. The proceedings are remitted to the Tribunal for reconsideration in accordance with these reasons and otherwise according to law.

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: 08 March 2023

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act s 80(2).
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel said at [84] that 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.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos v Di Rico), the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

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