Butto v NSW Land and Housing Corporation

1. The parties entered into a residential tenancy agreement on 9 May 2024. The market rent was $315.00 per week but, as Mr Butto is a social housing tenant, the subsidised rent he is required to pay is $132.65 per week.
2. On 5 November 2024 the landlord issued a Termination Notice to the tenant for breach of the tenancy agreement by failing to pay rent and water on time.
3. The Notice records the tenant owed $2583.65 in rent and $89.05 for water, as at 2 November 2024.
4. The Termination Notice was served by post on 5 November 2024.
5. The tenant has not vacated.

1. On 5 December 2024 the landlord lodged an application with the Tribunal seeking termination of the tenancy due to non-payment of rent, and vacant possession.
2. The matter was first listed before the Tribunal on 8 January 2025.
3. The Tribunal made the following orders on 8 January 2025:

(1) The Tribunal makes an order under section 87 of the Residential Tenancies Act 2010, terminating the residential tenancy agreement immediately, as the tenant has breached the agreement, by failing to pay rent or charges.

(2) The Tribunal orders the Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.

(3) The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 22 January 2025.

(4) The tenant is to pay the landlord a daily occupation fee, at the rate of $18.95, per day from the day after the date of termination, 09 January 2025 until the date vacant possession is given.

(5) The landlord may request the relisting of this application, to determine the occupation fee, owing, within 60 days from the date of possession.

(6) The landlord's agent is to advise the tenant in writing

(a) by the delivery of a letter to the premises, by 08 January 2025 06:00 PM of the orders made today.

(7) The Tribunal orders that the respondent Abrahim Butto, is to pay the applicant New South Wales Land and Housing Corporation, the sum of $3,646.85, immediately.

1. The Tribunal gave oral reasons for the decision.

1. In deciding the appeal, we have had regard to the following:

(1) The Notice of Appeal lodged on 24 January 2025.

(2) The Reply to Appeal lodged on 5 February 2025, with documents attached.

(3) Appellant's submissions lodged on 29 January 2025.

(4) Documents lodged by the respondent on 24 March 2025.

(5) Copy of the orders appealed against.

(6) Copy of the application appealed against.

(7) Orders of the Appeal Panel of 28 January 2025 and 7 February 2025 which include an order by consent staying the operation of the Tribunal's orders dated 8 January 2025.

1. When questioned by the Appeal Panel, the tenant confirmed that he had not submitted a sound recording or transcript of the Tribunal proceedings on 8 January 2025, notwithstanding order 1(d) of 7 February 2025.

1. The Notice of Appeal was lodged on 24 January 2025. Under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) the application should have been lodged within 14 days of the tenant receiving the Tribunal's decision.
2. The Notice of Appeal states the tenant received the decision on 21 January 2025.
3. The Reply to Appeal does not address whether the landlord accepts or disputes that the appeal was lodged within time.
4. In these circumstances, we accept the tenant's evidence that he did not receive the Tribunal's decision until 21 January 2025 and therefore we are satisfied the appeal was lodged within time.

1. In the Notice of Appeal the tenant seeks leave to appeal on the following basis:

I have nowhere to stay or live other than this address. I worked for Australia for 35 years. The staff at housing Miranda is using every staff member to hunt me down and destroy me with no regard to my basic human rights. They're putting a huge pressure mentally physically and financially on me. I was treated worse than a criminal worse than a refugee.

1. The tenant identifies 2 grounds of appeal in the Notice of Appeal.
2. First, that the decision is not fair and equitable. In explanation, the Notice of Appeal states:

I am in a crisis period at this time of my life. I lost my home and five kids due to unexpected AVO from my wife. I was thrown in street. Sent to Saint George Hospital after arrest by police. Left the hospital to street. I slept in the car. Housing did not respond to my calls as I was the head tenant with my kids and wife. After a week housing sent me to emergency housing. I am a diabetic and have PTSD. I am DSP. Now housing forcing me to pay the full rent and the arrears. Housing also threatening me to be homeless again after lying to me. I live under the poverty line with no other source of income with no support from anyway of anyone. I need your assistance and support after I lost everything.

1. Second, the tenant appeals on the basis that the decision of the Tribunal was against the weight of evidence. In terms of the evidence the Tribunal should have given more weight to and why, the Notice of Appeal states:

Housing have all the documents and evidence of where and how I lived in emergency housing at first veriu hotel and the guest hotel and Marco Polo, and the first after housing at San Souci sand the second after at Kingsgrove and the circumstances of that which was inhuman and discriminatory.

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Section 80 of the NCAT Act states that an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds' (s 80(2)(b) of the NCAT Act).

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and does not depend on the answer given to the question. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. We have engaged in the process of considering whether there is a question of law that has in fact been raised. (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We do not consider that the tenant has raised a question of law.

1. Clause 12 of Sch 4 of the NCAT Act provides that, the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial division (CCD) pursuant to section 80(2)(b) of the NCAT Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76] stating that a substantial miscarriage of justice 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.

1. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(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; or

(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.

1. It is important to note that an appeal is not an opportunity for the losing party to rerun their case. (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

1. In a handwritten document lodged on 29 January 2025, the tenant says only:

I would like to discuss further evidence on the day of the hearing. Thank you for your assistance.

1. At the hearing of the appeal the tenant provided extensive oral submissions:

(1) Since 21 March 2024 he has been experiencing a crisis, his wife having obtained an AVO against him, and being required to leave the family home and his 5 children;

(2) He experienced periods of homelessness and unsatisfactory emergency accommodation;

(3) He suffers from PTSD, diabetes and receives a disability pension;

(4) He lives alone and has little, or no, social support;

(5) He has been experiencing financial difficulties and cannot afford to pay his subsidised rent;

(6) He feels that the landlord has failed to treat him with dignity and respect and has discriminated against him;

(7) The landlord and its representatives have bullied, harassed, intimidated, annoyed and lied to him;

(8) The adverse treatment he has experienced from the landlord was racially, religiously and politically motivated.

1. The tenant did not dispute the validity of the Notice of Termination, its service, nor that at the date of the Tribunal hearing he owed $3,334.35 in rent.
2. The Appeal Panel refused the tenant's application, made during his oral submissions in reply, to provide further documentary evidence, considering the principles in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22]. Oral reasons were given for this decision on the tenant's interlocutory application.

(1) The tenant has breached the tenancy agreement by failing to pay rent on time;

(2) The tenant failed to comply with an earlier Tribunal order dated 12 August 2024 to pay the arrears and rent on time;

(3) The tenant generally pays an amount of $100.00 per fortnight towards rent and $10.00 a fortnight towards water;

(4) The tenant has not complied with the terms of the stay order issued on 7 February 2025 because he has not paid the occupation fee in full;

(5) The current arrears are approximately $7,000.00;

(6) The landlord has offered the tenant support services which the tenant has refused;

(7) The landlord is open to reaching an agreement with the tenant that would allow him to sustain the tenancy, provided the tenant pay the subsidised rent and made an appropriate contribution to the arrears.

1. In his reply, the tenant made it clear that he was unable to pay more than $110.00 per fortnight for rent and water and that the landlord should pay him compensation and a crisis payment.

1. The focus of the tenant's submissions related to his treatment by the landlord since March 2024, or even prior when he and family had an earlier tenancy with the landlord. The tenant's submissions did not address the circumstances of the Notice of Termination, the hearing on 8 January 2025 and whether the decision and orders made on that day were attended by error.
2. The tenant made almost no specific submissions regarding the tenancy in question which is the subject of this appeal. The substance of the tenant's submissions would have required the Appeal Panel to review policy decisions of the landlord regarding the allocation of housing to the tenant. Neither the Tribunal nor the Appeal Panel has jurisdiction to conduct such a review.
3. Overall, the tenant's submissions did not assist the Appeal Panel in determining whether there was an error in the Tribunal's decision which is the subject of this appeal.
4. The tenant has not provided us with a transcript or sound recording of the hearing. That is an important aspect of an appeal particularly where the Tribunal gave oral reasons.
5. An Appeal Panel must know what the Tribunal's reasons for decision were in order to determine whether there was some error in those reasons.
6. The tenant was directed by order 1(d) made by the Appeal Panel on 7 February 2025 to lodge with the Tribunal and serve on the respondent 'a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing' by 14 March 2025.
7. In the absence of the tenant lodging the sound recording or transcript, we are not able to determine whether the Tribunal's decision was not fair and equitable or whether the orders were inconsistent with the evidence or the weight of the evidence.
8. The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]- [26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]- [27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]- [28].
9. Further, without the transcript it is not possible to determine whether the Tribunal had regard to the mandatory factors of s 154E of the Residential Tenancies Act 2010 (NSW) in exercising its discretion to terminate the tenancy.
10. We are satisfied that the Notice of Termination, residential tenancy agreement and rental ledger were before the Tribunal at first instance. There is no error in the Tribunal's decision evident from those documents. We are satisfied that those documents establish that:

(1) The tenant breached the tenancy agreement by failing to pay rent and water;

(2) The tenant was more than 14 days behind in rent on the date that the termination notice was issued by the landlord.

(3) The written notice of termination was prepared and served in accordance with the legislative requirements.

(4) The tenant was given 14 days or more to vacate the premises in accordance with the termination notice.

(5) The tenant has failed to vacate the premises as required.

(6) The application to the Tribunal was made within the required time.

1. We conclude that the tenant has not established any grounds for his appeal.
2. We acknowledge that the orders made by the Tribunal will cause the tenant serious hardship, and likely homelessness. However, he is in significant rental arrears and the landlord relies on the rent to provide and maintain social housing services.
3. There are many people in need and waiting for a place in social housing who will pay the rent on time if given an opportunity.
4. The landlord has made considerable efforts to help the tenant to maintain the tenancy, including referring him to NEAMI National, with support including financial counselling.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

1. It follows that the stay made on 7 February 2025 is no longer in force.

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.