Camilleri v Eastlake

NCAT Appeal Panel|2018-07-16

Summary

This is an appeal from the decision of the Consumer and Commercial Division of the Tribunal dated 22 February 2018. On that date, the Tribunal declared that a notice of termination served by the landlord (the appellant in this appeal) on the tenant (the respondent in this appeal) on 23 November 2017 was retaliatory and of no effect.
The landlord claims, in essence, that the Tribunal's decision was not fair and equitable, as his evidence was ignored, and/or because there was no evidence before the Tribunal to support its findings. The landlord says that the Tribunal should have given more weight to particular evidence including the evidence which demonstrated his intention to sell the property.
The landlord asks the Appeal Panel to allow the appeal. In his Notice of Appeal the landlord states that the Appeal Panel should terminate the residential tenancy between the parties with immediate effect. However, at the hearing, his agent made clear that the landlord was prepared to allow the tenant a short, but reasonable period of time of some months, in which to find alternative accommodation. Given that indication, and the tenant's preparedness to negotiate with the landlord, we adjourned during the course of the appeal hearing to give the parties time to do so. We also organised for another Principal Member of Tribunal to assist them. Regrettably, the parties were not able to reach an agreement, and the appeal hearing resumed.
For the following reasons, we have decided not to allow the appeal.

Nature of an appeal

As we informed the landlord's agent at the appeal hearing, an appeal is not a rehearing of the matter already decided. The appellant bears the onus of establishing error. In this respect, a party can appeal to the Appeal Panel as of right on a question of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
If no question of law is identified, leave to appeal is required: s 80(2). Accordingly, the appellant needs to identify an error which is a question of law, or otherwise persuade the Tribunal that there is some other error requiring a grant of leave. The landlord has not identified any error of law in his Notice of Appeal. Where appellants are not legally represented, it is appropriate for the Appeal Panel to examine the notice of appeal: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. We have examined the notice of appeal and, as we explain below, we do think that the landlord has raised a question of law. Otherwise, the landlord needs leave to appeal.

Relevant principles

Before dealing with the issues to be determined, it is appropriate to set out the relevant statutory provision, s 115 of the RT Act. That section deals with "retaliatory evictions" and provides that: (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice: (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons: (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
We note that the Tribunal took the course provided for by s 115(1)(a), that is, it declared that the notice of termination served by the landlord on 23 November 2017 had no effect.

Issues to be determined

There are three issues to be determined: 1. Has the landlord identified a question of law, and should the appeal be allowed? 2. If no, should he be granted leave to appeal on any other ground? 3. Should the time for the filing of the Notice of Appeal be extended to 12 March 2018?

Has the landlord identified a question of law, and should the appeal be allowed?

The Tribunal's finding that the notice was retaliatory

The Tribunal found that the termination notice was a retaliatory notice. It was satisfied that the landlord was wholly or partly motivated to give the notice because the tenant proposed to take any other action to enforce her rights. This was the Tribunal's conclusion based on the evidence before it.
The landlord submitted that this conclusion raised a question of law, in that s 115 of the RT Act did not apply to s 85 notices of termination, that is a "no grounds" notice issued on the basis of that the term of the residential tenancy agreement had finished and the tenant was occupying the premises pursuant to a periodic agreement. The landlord relied on the words of s 85(3), namely that 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.
This argument must be rejected. It has been considered, and rejected by:

this Tribunal sitting at first instance: O'Keefe v Davies [2016] NSWCATCD 7 at [56] to [58]; and
the Appeal Panel: Quader v Bell [2017] NSWCATAP 24.

In O'Keefe the Tribunal stated: 55. The intention of the legislature is clear. If the conditions set out in Section 85 of the Act are met, the Tribunal must make an order of termination. 56. In my view there is one exception to that general rule - Section 115, retaliatory evictions. The Tribunal may refuse to make an order of termination if the Tribunal is satisfied that the notice of termination was a retaliatory notice or if the Tribunal is satisfied that the application was a retaliatory application. 57. In the case of Howard v B. Miles Womens Foundation Inc [2012] NSWC 1173, Schmidt J considered the provisions of Section 115 in a case involving an end of fixed term notice under Section 84. The provisions of Section 84 are very similar to the provisions of section 85. Both sections require mandatory termination if the conditions set out in the sections are met. [Her] Honour said: "18. The question is thus whether, in those circumstances, notwithstanding the mandatory terms of s 84(3), the general discretions given the Tribunal by s 115 to declare that a notice of termination which has been given has no effect, or to refuse to make such a termination order, are available to be exercised by the Tribunal, even though the landlord has established that the requirements of s84(3) have been met." 58. [Her] Honour stated in his judgment that: "22. The apparent statutory purpose that in the case of a fixed term agreement, subject only to the giving of a statutory notice, a landlord is entitled to recover possession of the property at the end of the agreed term, may not be overlooked." [Her] Honour then answered the question about the relationship between Section 85 and Section 155 in the following manner: "25. It appears that it is conceivable that there may have been a statutory intention that the mandatory terms of s84 would be subject to the general discretion given by s 115."
In Quader, the Appeal Panel held at [51] that it was appropriate in that matter to deal with the tenant's claim that the notice of termination was retaliatory, for the reason that if the notice of termination was retaliatory and declared to be of no effect then the application for termination under s 85 would have failed.
A similar point was considered by the Appeal Panel in Mercieca v Fu [2017] NSWCATAP 205 in relation to notices issued pursuant to s 84 of the RT Act (notices for the end of a fixed term tenancy). The Tribunal was satisfied, relying on the Supreme Court authority of Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173 (Schmidt J), that while the "apparent statutory purpose" was that a landlord was entitled to recover possession of the property at the end of the agreed term, there could conceivably be circumstances where the s 115 discretion could have work to do, if it was available to be exercised in the case of a fixed term tenancy the subject of a s 84 application.
In Howard, Schmidt J did not have to decide this issue. However, in Mercieca, the Appeal Panel was satisfied that the decision of Schmidt J in Howard did not preclude the application of s 115 to a termination notice under s 84 at the end of a fixed term tenancy. The Appeal Panel also accepted that there was no appreciable difference between s 84 and s 85 termination notices: see [44].
Accordingly, we reject the landlord's argument that the Tribunal had no power to "invalidate the termination" and that s 115 could not apply to "no grounds" notices of termination.
We dismiss this ground of appeal.

Inadequate reasons

The second question of law advanced by the landlord was that the reasons of the Tribunal were inadequate.
We disagree. It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].
We consider that the written reasons of the Tribunal are sufficient for this purpose, and we dismiss the appeal on this ground. We explain this in more detail below where we consider the landlord's submissions that the decision was not fair and equitable.
Accordingly, this ground of appeal also fails.

Other

We discussed with the landlord's agent whether the Tribunal's conclusion raised a question of law, in that the Tribunal's conclusions were based on inferences arising from the facts. The question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is a preliminary question whether the evidence reasonably admits of different conclusions: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ at 355-56 [87].
On reflection, this ground of appeal should be considered under "other grounds" as one requiring leave. In this respect, we note that Adamson J stated in Quader v Bell [2016] NSWSC 623 at [27]: Ms Ash has raised a question of law regarding the true construction of s 115. It is arguable that the Member misapprehended its effect and considered that he was not entitled to consider whether the eviction was retaliatory since Mr Quader had not made an application under s 115(3). However, Member Kinsey went on to make a finding that, even if notice had been given in time, he would not have been satisfied that Ms Bell was motivated (wholly or partly) by any of the reasons in s 115(2). In my view, it is evident that Member Kinsey was not satisfied that Mr Quader had made out a case that the eviction was retaliatory in any event. This is a question of fact that was open to him to make and does not give rise to a question of law. That it was made on an alternative basis does not affect its worth or significance. (Emphasis added)

If no, should he be granted leave to appeal on any other ground?

The Appeal Panel may grant leave to appeal in respect of other errors only if it is satisfied that a substantial miscarriage of justice may have been suffered because:

the decision of the Tribunal under appeal was not fair and equitable; or
the decision of the Tribunal under appeal was against the weight of evidence; or
significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

In order for leave to be granted, an appellant 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. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance, an injustice which is reasonably clear or an error that is plain and readily apparent, a factual error that was unreasonably arrived at and clearly mistaken, or where the Tribunal has 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]-[20], SAB v SEM [2013] NSWSC 253 at [8].
Even if leave to appeal is granted, it does not follow that an appeal is allowed: the Appeal Panel retains a discretion whether to do so: Pholi v Wearne [2014] NSWCATAP 78 at [32].
The landlord in his submissions sets out a range of criticisms of the Tribunal's reasoning and fact finding process. These include a submission that the Tribunal showed favouritism to the tenant by referring to her as a good tenant. It is trite to observe that the agent is the landlord's representative (and mouthpiece) at the hearing. What the agent told the Tribunal (namely that Ms Eastlake was a good tenant) was therefore a submission of the landlord. We see nothing in this ground as warranting a grant of leave.
At the commencement of her reasons, the Member notes that affirmations were administered and oral evidence given. The Member also noted that both parties had filed and served bundles of documents, and that the documents were referred to during the hearing. (Here we note that the documentary evidence was before us on appeal. However, neither party provided either the sound recording of what took place at the hearing, or a transcript of any relevant parts of the hearing).
Having heard submissions, the Tribunal stated that it was "rather difficult" to accept the reason put forward for the issuing of the notice of termination, that is the landlord wanted to sell the premises. The reasons why the Tribunal came to this conclusion were that:

as recently as the prior month the landlord had been trying to sign up the tenant to a new residential tenancy agreement;
there was no evidence that the landlord had commenced renovations to a house on the same land which was to be sold at the same time;
even if he did wish to sell, the landlord would not be obstructed in selling by the presence of the tenant, who was maintaining the property in good condition, and would allow reasonable access to prospective purchasers;
it made no economic sense to have the property vacant;
the notice of termination was given unexpectedly shortly after the tenant raised concerns about the state of the driveway and the verandah roof.

These were the matters on which the Tribunal reached its conclusion that the notice was retaliatory: "having considered the evidence it does seem quite unlikely that the motivation for the notice of termination was the landlord's desire to sell the property".
The landlord says that the Tribunal erred in coming to that conclusion, and raises the following matters.
First, the landlord says that there was no reference by the Member to any evidence provided at the time of the hearing. That is not correct. The Tribunal explicitly referred to bundles of evidence and the oral evidence of the parties. In any event, the respondent submits that there was only one relevant piece of evidence in relation to the sale of the property being an email from landlord to his agent. While the reasons make no explicit reference to an email, there is explicit reference to the landlord's instructions to the agent that he was intending to sell the property and prior to doing so wanted to renovate.
Secondly, the landlord raises a point about the Tribunal describing the tenant as a "good" tenant, "without referring to any evidence". This also is incorrect. The agent representing the landlord at the hearing agreed that the tenant was a good tenant.
Thirdly, the landlord says that the termination notice was deemed to be a valid one, and that it did not "seem right" that the Member had the power to invalidate the termination. We have dealt with this submission above. The authorities establish that s 115 does apply to s 85 notices of termination.
We see nothing in these matters, or in any of the other matters raised by the landlord, as warranting a grant of leave.

In any event, should the time for the filing of the notice of appeal be extended to 12 March 2018?

The principles applicable to an application to extend time were discussed by the Appal Panel in Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider the length of the delay, the reason for the delay, the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent to the appeal. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
The Appeal Panel asked the landlord's agent to explain why the appeal was not filed within time. In this regard, the proceedings were "residential proceedings" within the meaning of the Civil and Administrative Tribunal Rules 2014 (NSW). Accordingly, any appeal must be lodged within 14 days from the date of the decision or the date when notice of the decision is received, whichever is the later.
The landlord's agent, with creditable frankness, said that there was no justification for the delay. He said that the fault was his, or that of his agency, and that this was the first time he been asked to bring an appeal to the Appeal Panel. He also indicated that it took some time for the landlord to seek and obtain legal advice.
The length of the delay was not great, being 4 days. Nevertheless, at all material times the landlord was represented by a professional agent. It is reasonable to assume that they knew, or ought to have known, the obligations of landlords arising under the RT Act, and under the NCAT Act when representing their clients in the Tribunal.
While it could not be said that the appeal was hopeless, in our view it was a weak one.
Ultimately, when weighing all these factors, and given that we think the appeal should be dismissed on the basis of a question of law, and that leave to appeal refused on any other ground, we think the appropriate order is to refuse to extend the time in which to file the Notice of Appeal.

Orders 1. The application to extend the time in which to file the Notice of Appeal to 12 March 2018 is refused. 2. The appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2018

Residential Tenancies Act 2015(NSW)

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