Chatterjee v Pandya

REASONS FOR DECISION

1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dated 25 January 2024 terminating a residential tenancy agreement pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) (RT Act).
2. The Tribunal terminated the residential tenancy immediately, and suspended the date of vacant possession until 29 February 2024.
3. The appeal was filed on 29 January 2024. The appeal has been filed within the applicable time limit under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
4. The appeal hearing occurred on 16 May 2024. The appellant Ms Chatterjee (tenant) appeared at the appeal hearing. The respondent (landlord) was represented by his agent Mr Dalal.
5. Prior to the Appeal Panel hearing, the matter had been listed for a procedural directions/call-over in the Appeal Panel, where procedural directions had been made for the parties to file and serve their documentary materials and submissions in the appeal. Both parties had filed and served documents and submissions.
6. The tenant had also provided a sound recording of the hearing on 25 January 2024. The Tribunal Member gave oral reasons for the decision at that hearing. We listened to the recording of the hearing prior to conducting the Appeal Panel hearing, and raised salient issues that arose from the conduct of the Tribunal hearing with the parties at the appeal hearing.
7. The Appeal Panel had previously granted the tenant a stay of the termination and possession order made by the Tribunal. We continued the stay until the publication of this decision.
8. At the hearing before the Tribunal on 25 January 2024, the tenant appeared as did the landlord (Mr Pandya) and his agent. Mr Pandya gave evidence and made submissions at the Tribunal hearing. He did not attend the appeal hearing, due to work commitments.
9. The critical issue for consideration in this appeal is whether or not the tenant was denied procedural fairness. This is for the reason that the Tribunal did not give consideration to whether the Notice to Terminate that had been served on the tenant on 27 September 2023, should be set aside on the basis that it was a retaliatory notice under s 115 of the RT Act.
10. For reasons that are set out later in this decision, we are satisfied that there was a denial of procedural fairness, and accordingly an error of law is established.
11. However, we are also satisfied that it is appropriate to redetermine the matter under s 81 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) rather than remit the matter back to the Tribunal for a further hearing.

Background

1. The parties entered into a written residential tenancy agreement on 14 September 2018. The residential premises is a townhouse located in close proximity to Blacktown Hospital. The tenant resides in the residential premises with her family. She has two children (18 years old and 12 years old). Her husband is based in Melbourne for work.
2. By 2023, the fixed term of the residential tenancy agreement had expired, and the agreement became a periodic agreement under s 3 of the RT Act.
3. In July 2023, there was email correspondence between the landlord's agent and the tenant about a rent increase. It is unnecessary to set out in detail the correspondence. However, in substance, the landlord purported to increase the rent from $590 per week to $720 per week, with the rent increase coming into effect from 29 September 2023. The tenant disputed that the landlord was entitled to increase the rent, or had given valid notification of a rent increase.
4. On 23 September 2023, a periodic inspection took place at the property. A further periodic inspection occurred on 23 October 2023. According to the tenant, at the periodic inspection on 23 September 2023 the landlord attended with the landlord's agent. There was a verbal altercation about the rent increase, and other issues.
5. On 25 September 2023, the tenant filed proceedings in the Tribunal seeking an order that the proposed rent increase be set aside under s 44(1)(a) of the RT Act as it was excessive. The application makes reference to various matters, including allegations that the rent increase was excessive and that the landlord had been "rude," "abusive" and "threatening" at the periodic inspection. The landlord or someone on his behalf had allegedly said words to the effect that the landlord would "kick" the tenant out of the property.
6. In setting out those allegations, we are not asserting that the tenant's version of events is correct, or there is substance to the allegations. However, what is important is that the tenant had filed proceedings in the Tribunal, and prior to that, the landlord had represented to her he would seek to terminate the residential tenancy agreement in the context of the dispute about the rent increase.
7. On 27 September 2023, the landlord issued the tenant with a "no grounds" Notice to Terminate under s 85 of the RT Act. The date of vacant possession identified in the notice was 27 December 2023.
8. On 5 December 2023, the tenant's Tribunal proceedings came before the Tribunal at a Conciliation and Group List hearing. Both parties attended the Tribunal. The Tribunal set the proceedings down for a special fixture hearing and made directions regarding the parties filing with the Tribunal the documentary evidence relied upon. The tenant was to file and serve her documentary evidence by 12 January 2024. The landlord was to file and serve his documentary evidence by 31 January 2024.
9. On 28 December 2023, the landlord filed proceedings in the Tribunal seeking termination and possession on the basis that the tenant had not vacated the property pursuant to the "no grounds" Notice to Terminate issued under s 85 of the RT Act.
10. On 12 January 2024, the tenant filed a second set of proceedings in the Tribunal. The basis of the application, and the orders sought were unclear. However, the application stated that it was "related" to the tenant's application seeking a rent reduction. The application again referred to the landlord allegedly improperly imposing a rent increase, and being "abusive" and "threatening". The application also referred to the landlord failing to conduct adequate repairs. The application asserted that the tenant had provided to the landlord all the "relevant documentation" in support of the tenant's case, but the tenant had not received any documentation from the landlord.
11. On 25 January 2024, the landlord's application to terminate the residential tenancy was listed before the Tribunal for a Conciliation and Group List hearing. In accordance with the usual practice of the Tribunal, the parties were given an opportunity outside the Tribunal hearing room to negotiate a resolution of the dispute with the assistance of a conciliator, who was present at the Tribunal on that date.
12. The parties were unable to reach an agreement. The matter then proceeded to a hearing before the Tribunal.
13. At the outset of the hearing, the tenant raised that she had proceedings on foot in the Tribunal seeking to set aside the rent increase imposed by the landlord, and that matter had not been listed for hearing as yet. The Tribunal Member emphasised that the matter that was listed before the Tribunal on 25 January 2024 was only the landlord's application to terminate the tenancy, and this was the relevant matter for the Tribunal to determine, rather than whether or not the rent increase was valid.
14. The tenant did not clearly raise with the Tribunal Member that the "no grounds" Notice to Terminate dated 27 September 2023 was a retaliatory Notice under s 115 of the RT Act. However, she did make reference to there being a dispute with the landlord that had led to Tribunal proceedings which were still on foot as of 25 January 2024.
15. The Tribunal Member did not enquire with the parties when the tenant's Tribunal proceedings had been commenced, and whether or not they had been commenced prior to the issue of the Notice to Terminate by the landlord, or whether or not the tenant had told the landlord orally or in writing that the tenant was going to take proceedings in the Tribunal prior to the issue of the Notice by the landlord. The Tribunal Member did not raise with the parties any issue that s 115 of the RT Act may be relevant to the landlord's application to terminate the tenancy.
16. The hearing proceeded with a focus on the period of time appropriate to suspend the date of vacant possession. The Tribunal Member stated that under the terms of s 85 of the RT Act, if the Notice to Terminate was a valid Notice, and had been served in a manner that gave the tenant 90 clear days to vacate in accordance with the terms of the Notice, the Tribunal "must" terminate the tenancy. The Tribunal Member emphasised to the parties that the most important issue was an appropriate date to vacate the property.
17. The tenant accepted that she would need to move out of the property, but sought "6 months" to vacate. The key reason given by her was that due to her medical conditions of diabetes and asthma, she needed to be close to Blacktown Hospital for treatment. The tenant asserted that it was difficult to find residential properties close to Blacktown Hospital.
18. The landlord spoke to the Tribunal in person as to why he opposed the tenant being given six months to vacate the property. The landlord asserted that he had financial commitments, and six months to vacate the property was excessive. The landlord stated that he was a doctor by profession, and disputed that the tenant needed to reside near Blacktown Hospital for medical treatment. The landlord stated that diabetes was a condition that could be managed in the community. The landlord stated that he sought possession of the property within two weeks.
19. The Tribunal Member made a decision and gave oral reasons. The Member found that the Notice to Terminate was a valid notice that had been properly served, and that pursuant to the terms of s 85 of the RT Act the tenancy must be terminated. Weighing up the respective positions of the parties on an appropriate date to suspend the date of vacant possession, the Tribunal Member found that five weeks was appropriate.
20. During the course of the Tribunal hearing, the landlord had raised (and the tenant had disputed) the issue of rent arrears. The tenant had not been paying the purported rent increase, and had been continuing to pay rent at $590 per week. The landlord asserted that as of 25 January 2024, the tenant was $1180 in rent arrears. According to the landlord, this was causing him financial hardship. The tenant denied there was any rent arrears, on the basis that the purported rent increase was invalid and/or excessive, and the dispute about the rent increase had not been determined by the Tribunal.
21. At the Tribunal hearing, the landlord made no mention of any reason other than financial hardship for seeking possession of the property within a short period of time.
22. As mentioned above, the tenant then filed an appeal with the Appeal Panel. A stay of the orders for termination and possession was granted. That stay was subsequently lifted for a short period of time due to the tenant not complying with the condition to pay rent at the rate of $720 pw, but was later reimposed. At the end of the Appeal Panel hearing, we extended the stay until further or other order of the Appeal Panel.
23. In respect of the other Tribunal proceedings that the tenant had filed regarding the issue of seeking to set aside the rent increase, those proceedings were subsequently dismissed by reason of the non-appearance of the tenant on 30 January 2024 (the proceedings filed on 12 January 2024), and 7 March 2024 (the proceeding filed on 27 September 2023).
24. We raised this issue with the tenant at the Appeal Panel hearing. The tenant asserted that she was not aware that her rent reduction proceedings had been listed for hearing before the Tribunal, claiming she had not received a Notice of Hearing in respect of the hearing dates on 30 January 2024 and 7 March 2024. Further, she asserted she was under the belief that the rent increase proceedings had come to an end because the tenancy had been terminated.

Scope and nature of appeals

1. 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: s 80(2) of the NCAT Act.
2. Internal appeals involve consideration of whether there has been any error of law; or any error other than an error of law sufficient to grant leave to appeal under cl 12 of Sch 4 of the NCAT Act.
3. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (ie, mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
5. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in 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: 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).
6. 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 Sch 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."
7. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still additionally consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
8. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. Issues of principle; 2. Questions of public importance or matters of administration or policy which might have general application; 3. 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; 4. A factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
9. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
10. In respect of a self-represented non legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]).

Consideration

1. When the substance of the purported errors in the Tribunal decision and the conduct of the hearing raised in the appeal are fairly analysed, the only error on a question of law is whether there was a denial of procedural fairness because the Tribunal Member did not raise with the parties, and give the parties the opportunity to make submissions about, the issue of whether the Notice to Terminate was retaliatory.
2. Section 85 of the RT Act states: 85 Termination of periodic agreement - no grounds required to be given (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. (2A) Despite subsection (2), in the case of an employee or caretaker residential tenancy agreement, the termination notice must specify a termination date that is - (a) on or after the end of the period of notice for termination agreed to by the landlord and the employee or caretaker in that agreement or arrangement, or (b) not earlier than 28 days after the day on which the notice is given, whichever is the later date. (3) 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. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
3. The requirements for a termination notice are set out in s 82 of the RT Act. The manner of service is set out in s 223 of the RT Act. By reason of s 83(2) of the RT Act, if the tenant remains in the premises after the expiration of the date of possession in the Notice issued under s 85, the landlord may apply to the Tribunal for an order to terminate the tenancy. Pursuant to ss 81(3) and 187(1)(i) of the RT Act, the Tribunal has the power to make an order terminating a residential tenancy.

Retaliatory Evictions

1. Section 115 of the RT Act states: 115 Retaliatory evictions (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.
2. The legal principles applicable to s 115 of the RT Act were discussed in detail by the Appeal Panel in Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109.
3. Those principles are summarised as follows: 1. The tenant has the onus of providing sufficient evidence for the Tribunal to be satisfied that the Notice is retaliatory because the landlord was "wholly or partially motivated" by one or more of the grounds set out in s 115 (2)(a)-(c) of the RT Act. 2. If the Notice is retaliatory, the Tribunal has a discretion whether or not to declare the Notice as retaliatory and having no effect; or to refuse to terminate the tenancy. The Appeal Panel stated in Hughes at [120]-[121]: "As the Appeal Panel identified in Steinbeck, although the discretion is broad, the matters to be taken into account should appropriately focus upon the competing rights and interests of the landlord and tenant under the RT Act and the residential tenancy agreement. The Tribunal must then identify and weigh the matters taken into account and explain why it is satisfied that the discretion should, or should not, be exercised in favour of declaring the termination notice as having no effect, or refusing to make the termination order. Such matters may include, depending on the circumstances of the case: (1) The reasons the landlord seeks possession of the premises. (2) If the landlord was only partially motivated to issue the Notice or file the termination application by reason of one or more of the matters in s 115 (2) (a)-(c), the degree to which those matters motivated the landlord in comparison to other matters that fall outside of s 115 (2) (a)-(c). (3) If the landlord is a social housing provider, the waiting list for social housing. (5) Whether there is substantial hardship to either the landlord or the tenant if the tenancy is not terminated despite the fact that the landlord was wholly or partially motivated to issue the Notice or file termination proceedings by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act. (5) Whether the relationship between the parties has broken down to such a degree that it is in the overall interests of the parties to terminate the tenancy so that both parties may move forward. In this regard, a relevant enquiry is why the relationship has broken down and whether the parties have been involved in a cycle of disputation and litigation that is likely to continue if the tenancy is not terminated. However, any such enquiry must be careful not to unfairly benefit a party who has not complied with its obligations under the RT Act and should consider the conduct of both parties."
4. In this matter, the tenant did not file any proceedings seeking a declaration under s 115(3) of the RT Act that the Notice was retaliatory. The proceedings filed by the tenant in January 2024 did not identify that an order was sought under s 115(3). The proceedings filed on 25 September 2023 were not amended at the Group List and Directions hearing in December 2023 to seek an order under s 115(3) of the RT Act.
5. The issue then arises whether a tenant can only raise s 115 of the RT Act if the tenant has filed proceedings in the Tribunal under s 115(3) prior to the landlord's termination application being heard to seek an order under s 115(1) of the RT Act. There are time limits for the filing of proceedings by a tenant under s 115(3) contained in r 39 of the Residential Tenancies Regulation 2019 (NSW) (RT Regulation), although there is a discretion to extend time under s 41 of the NCAT Act and the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
6. The Appeal Panel decision in Hughes does not deal with this issue, as the tenant in that matter had filed proceedings in the Tribunal seeking the Notice to Terminate be declared invalid on the basis it was retaliatory under s 115(3) of the RT Act (Hughes at [57]). Nor was the issue considered in Steinbeck v McDonald [2015] NSWCATAP 90, for the same reason.
7. In Quader v Bell [2016] NSWSC 623 (Quader) at [27] and Whitehead v Anglicare Community Services [2023] NSWSC 614 (Whitehead) at [27], the issue of whether an application to the Tribunal under s 115(3) was briefly alluded to, without any detailed discussion. In Quader, Adamson J at [27] stated it was "open" to the Tribunal to make findings regarding s 115 of the RT Act, even though no proceedings had been filed by the tenant under s 115(3).
8. In Whitehead, Campbell J commented at [27] that s 115 was a "defence" to a termination application and that: "…Under clause 39 of the Residential Tenancy Regulation for the purpose of s 115(3), the period within which the defence may be raised in respect of an application for a termination order is "within 30 days after the termination notice was given."
9. However, in Whitehead, it was unclear whether or not the tenant had filed proceedings in the Tribunal under s 115(3) of the RT Act, or was merely raising the issue of the Notice being retaliatory in response to the landlord's termination application. Campbell J stated at [3] that the tenant was "out of the time prescribed for the purpose of s 115 RTA" but the Tribunal Member at first instance had "extended that time to permit the plaintiff to contend that the purported notice of termination should be dismissed on the ground that it was retaliatory within the meaning of that section".
10. No detailed consideration of the construction of s 115 of the RT Act was given in Whitehead, because Campbell J found that the Tribunal Member had considered s 115 of the RT Act and had made a factual finding that the landlord was not "wholly or partially motivated" to issue the Notice for any of the grounds set out in s 115(2)(a)-(c).
11. In Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144 (Williams), the Appeal Panel referred to the provisions of s 115(3) of the RT Act and cl 39(4)(a) of the RT Regulation as supporting the principle that s 115 can be raised as a "defence" to a termination Notice under ss 84 (end of fixed term) and 85 (no grounds-periodic tenancy), but does not directly address the issue of whether a tenant needs to file proceedings in the Tribunal under s 115(3). However, the Appeal Panel's discussion of the factual circumstances (paras [32]-[33]) indicates the tenant did not file Tribunal proceedings under s 115(3) of the RT Act, but made a "claim" at the hearing that the landlord's Notice to Terminate was retaliatory.
12. In Williams, the Appeal Panel upheld the tenant's appeal because the Tribunal had not considered the issue of whether the landlord's Notice to Terminate was retaliatory, and s 115 of the RT Act could be raised as a "defence" to the landlord's application to terminate. However, there was no discussion of the issue of whether, other than in respect of an application under s 115(3) of the RT Act, what limitation period would apply (if any) to the tenant raising s 115 of the RT Act in response to the landlord's termination proceedings in the Tribunal.
13. The remitted decision in Gerringong Housing Aboriginal Corporation v Williams [2022] NSWCATCD 133 was determined on the assumption that the tenant did not have to file an application with the Tribunal under s 115 of the RT Act; and there was no discussion of the issue of any time limit to raise s 115 as a "defence" to the landlord's termination application. The Tribunal made a factual finding that the landlord's Notice to Terminate was not a retaliatory Notice under s 115(2) of the RT Act, so the "defence" failed (at [54]-[65]).
14. In Mercieca v Fu [2017] NSWCATAP 205 (Mercieca), the Appeal Panel considered whether s 115 of the RT Act could be raised in response to a landlord issuing a Notice to Terminate under s 84 of the RT Act (end of fixed term) and taking proceedings in the Tribunal to terminate the tenancy. It held s 115 could be raised by the tenant as a "defence" to an end of fixed term Notice to Terminate and resultant application by the landlord to the Tribunal for a termination order. In Mercieca, the tenant had filed Tribunal proceedings seeking an order under s 115(3) to set aside the Notice to Terminate.
15. When discussing whether the Tribunal Member erred by refusing to grant leave to the tenant to extend time under s 41 of the NCAT Act in respect of the tenant seeking an order under s 115(3), the Appeal Panel stated (at [34]-[35]): "The tenant submitted that no extension of time was needed, as it was open to the Member to consider making an order that a termination notice is retaliatory and there is no need to make an application. If an application is required and the time limit in cl 22 of the Regulation applies, leave to appeal against the Member's refusal of leave should be granted as the Member erred in failing to consider whether a refusal to extend the time would work an injustice, by reference to the matters identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The tenant sought leave to amend the grounds of appeal to include that the Member erred in law in not extending the time for make an application under s 115(3). The tenant accepted that leave to appeal would be required, and submitted that by reference to the principles outlined in Collins v Urban [2014] NSWCATAP 17 at [84], the issue of the interaction between s115 and s 84 raises a question of public importance. We do not accept the submission that no extension of time was required. As the opening words of s 115(1) make clear, the Tribunal's power under s 115 to make a declaration that a termination notice is retaliatory or to refuse to make a termination order on that ground is enlivened in a range of circumstances, one of which is where the tenant applies for an order under the section. Where it is the tenant making an application, rather than resisting the making of a termination order on the application of the landlord, s 115(3) applies. The tenant must make the application before the termination date, and within the period prescribed by the regulations." (emphasis added)
16. In respect of the above, it is noted that (a) the reference to "cl 22" is a reference to cl 22 of the Residential Tenancy Regulation 2010 (NSW), which was the (relevantly identical) predecessor provision to cl 39 of the RT Regulation; and (b) the reference to "14 days" was in respect of the time period to file Tribunal proceedings under s 115(3) of the RT Act in respect of seeking a declaration that a s 84 Notice has no effect.
17. We are satisfied that, as a matter of statutory construction, s 115 of the RT Act can be raised as a response to an application by a landlord to terminate a tenancy irrespective whether or not the tenant filed proceedings in the Tribunal under s 115(3) of the RT Act.
18. Section 115(1) states that the Tribunal may "on application by a tenant or when considering an application for a termination order or in relation to a terminate notice" declare the termination Notice has no effect or refuse to make a termination order if the Notice is retaliatory within the terms of s 115(2).
19. That phrase is disjunctive, not conjunctive. Section 115(1) of the RT Act is enlivened if the tenant makes an "application"; or "when considering a termination order"; or "in relation to a termination notice".
20. In the circumstances of this matter (as with most applications to terminate a residential tenancy dealt with by the Tribunal) it is the landlord who is making the application to terminate the tenancy.
21. Section 115(3) states that a tenant "may" make an application to the Tribunal for a "declaration under this section". The "declaration" is that the termination notice has no effect because it is retaliatory (ie s 115(1) (a)). Section 115(3) does not state that the tenant "must" make an application to the Tribunal for a declaration that a Notice to Terminate is retaliatory. Rather, it states that the tenant "may" make such an application.
22. Section 115(1)(b) states that the Tribunal may "when considering an application for a termination order" refuse to make a termination order if it is satisfied that the application by the landlord was a "retaliatory application". It is clear from the words of s 115 that there is a distinction between a tenant making an application to declare a termination Notice has no effect (s 115(1)(a)) and refusing to make a termination order (s 115(1)(b)).
23. The application by a tenant to the Tribunal for a declaration under s 115(3) occurs in circumstances where the tenant has received a Notice to Terminate and applies to the Tribunal for a declaration that the Notice to Terminate has no effect, because it is retaliatory.
24. An example of a situation where a tenant makes an application under s 115(3) is when a tenant has received a "no grounds" Notice to Terminate under s 85 of the RT Act. Such a notice gives the tenant 90 days to vacate the premises. The tenant can bring an application in the Tribunal under s 115(3) to have that Notice declared as having no effect because it is retaliatory, before the landlord makes an application to the Tribunal for an order to terminate the residential tenancy.
25. However, the right of the tenant to do so does not mean the tenant loses the right to raise the issue of the landlord's termination application being retaliatory at (or before) the hearing of the landlord's application for a termination order. Section 115(1)(b) means that the tenant can raise in defence to the landlord's application for a termination order that the landlord's actions in seeking a termination order are retaliatory under s 115(2), and such an issue is a matter for consideration by the Tribunal at the hearing of the landlord's termination application in the Tribunal.
26. In summary: 1. Section 115(3) is not the exclusive manner in which s 115(1) and (2) may be considered by the Tribunal. 2. A tenant may raise the issue of the eviction being retaliatory as a defence to the landlord's application, at or before the hearing of the landlord's application to terminate the tenancy in the Tribunal. 3. The time limit set out in cl 39 of the RT Regulation only applies to an application filed by the tenant in the Tribunal under s 115(3), and not to the tenant otherwise raising the issue as a defence to the landlord's application for a termination order. 4. When considering whether a landlord's termination application is retaliatory, the principles in Hughes apply.

If the Tenant is Raising Section 115 as a Defence to the Landlord's Termination Application (Other Than Under s 115(3)) Is There a Time Limit to Raise the Defence?

1. Section 190 of the RT Act states: 190 Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made - (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) A landlord's agent may make an application on behalf of a landlord.
2. As noted above, the time periods for making an application to the Tribunal are set out in cl 39 of the RT Regulation. Clause 39(4) states: … (4) For the purposes of section 115(3) of the Act, the prescribed period is - (a) if the termination notice was given under section 85 of the Act - within 30 days after the termination notice is given, or (b) otherwise - within 14 days after the termination notice is given. …
3. Clause 39(9) of the RT Regulation states: … (9) For the purposes of section 190(1) of the Act, the prescribed period is within 3 months after the applicant becomes aware of the breach.
4. Rule 23 of the NCAT Rules states: 23 General applications (1) A general application must be - (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the application. (2) A general application need not specify the Division of the Tribunal to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the application form accordingly. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. (4) This rule does not apply to a referral to the Tribunal by the Ombudsman of a legal question for an advisory opinion under section 35C of the Ombudsman Act 1974.
5. If a tenant has not made a Tribunal application under s 115(3) of the RT Act, but is raising the issue of the landlord's termination application being retaliatory under s 115(1)(b) as a defence to the landlord's application for a termination order, none of the time limits set out above apply. It is the landlord who is applying to the Tribunal for an order in such circumstances. The tenant is raising the issue of the Notice for Termination (if it is the type of eviction that requires a termination Notice to be issued, as distinct from the types of matters where the landlord can apply to the Tribunal for a termination order directly, and without the prior issue of a termination Notice, such as under ss 90, 91 and 92 of the RT Act) being retaliatory under s 115(1) as a basis for the Tribunal refusing to make a termination order (s 115(1)(b)).
6. In other words, it is being raised as a defence to the landlord's application for a termination order, not as an application by the tenant for an order. It is in that context the Tribunal is considering the issue, as distinct from the tenant filing proceedings seeking an order under s 115(3) of the RT Act.
7. Accordingly, the tenant can raise the issue of a landlord's Notice to Terminate and/or application for an order terminating the tenancy as being a retaliatory eviction under s 115(1) and (2) of the RT Act at the hearing or the landlord's application for a termination order, and the Tribunal does not have to extend time under s 41 of the NCAT Act. An extension of time under s 41 of the NCAT Act is relevant if the tenant has filed proceedings with the Tribunal seeking an order under s 115(3) of the RT Act, and has done so outside the time period prescribed in cl 39(4) of the RT Regulation.
8. However, if a tenant, in response to a landlord's application to terminate a tenancy wishes to argue that the landlord's issue of the Notice to Terminate (and/or the application for a termination order) is retaliatory, it is the responsibility of the tenant to provide its evidence and arguments on that issue so that it can be properly (and fairly) considered at the hearing of the landlord's application for termination. That is consistent with the principles set out in Hughes regarding the onus on the tenant of raising and providing evidence that the conduct of the landlord is retaliatory.
9. It is the usual practice of the Tribunal to hear and determine a landlord's application to terminate a residential tenancy agreement under s 85 of the RT Act when the proceedings are first listed before the Tribunal (ie the Conciliation and Group List hearing). That practice is consistent with the guiding principle of the Tribunal under s 36(1) of the NCAT Act in circumstances where the Tribunal deals with a very high volume of residential tenancy termination applications.
10. A tenant cannot expect the hearing of the landlord's application for a termination order arising under s 85 of the RT Act will be adjourned simply because a tenant wants further time to prepare documents and submissions that the landlord's application for a termination order is retaliatory. Of course, a tenant may apply for an adjournment, but it may not be appropriate to grant the adjournment application (see Touma v Colantuono [2021] NSWCATAP 152 at [56]-[58] for a summary of the legal principles applicable to adjournment applications in the Tribunal).

Procedural Fairness

1. Under s 36(1) of the NCAT Act, the guiding principle of the Tribunal is the just, quick and efficient resolution of the real issues in proceedings. Parties and representatives have a duty to assist the Tribunal to achieve that objective under s 36(3) of the NCAT Act.
2. Section 38 of the NCAT Act relevantly states: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. …
3. It is well established the Tribunal must conduct hearings in a procedurally fair way, and the provisions of s 38 of the NCAT Act provide a statutory context to that duty.
4. As Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Lam) said at [37] in respect of procedural fairness: "...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."
5. Justice Basten addressed the same issue in Italiano v Carbone [2005] NSWCA 177 at [88]: "An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant 'lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment', as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. …"
6. The principle expressed in Lam has been considered and followed on many occasions. In Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272, Basten AJ again referred to the Lam principle as follows at [73]-[74]: "Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[13] was a case in which the applicant said that procedural fairness arose from the failure of a departmental officer to contact a particular witness, having agreed to do so. Gleeson CJ stated: '22 The applicant was unable to point to any additional information, or any argument, that might have been put before the respondent if there had been contact between the Department and Ms Tran following 7 November 2000, or if the applicant had been told that there would be no such contact. There is nothing to justify a view that, considered objectively, proper decision-making required further contact with Ms Tran.' [74] In short, the lost opportunity was not shown to have caused any detriment to the applicant. Gleeson CJ continued: '37 A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. ... A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. 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.'"
7. In Shandil v Tahany Pty Ltd [2024] NSWCATAP 82, the Appeal Panel applied the following principles to the provision of procedural fairness in Tribunal proceedings (at [55]-56]): "[55] In Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479; [2020] FCAFC 138 (Flightdeck Geelong) the Full Federal Court (Markovic, Derrington and Anastassiou JJ) considered the scope of the Court's obligation to assist an unrepresented litigant. The Court at [51]-[60] relevantly made the following observations as to the Court's duty to the litigant-in-person and relief for denial of procedural fairness: 'The Court's duty to the litigant-in-person [51] The submissions advanced on appeal revealed the existing lack of clarity as to the obligations of a court to a litigant-in-person. Though the principles might be succinctly stated at a high level of generality, their application in a particular case is somewhat more problematic. … [52] As acknowledged by the High Court in Neil v Nott (1994) 68 ALJR 509 at 510; 121 ALR 148 at 150, "[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy". …. [53] However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator: … Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties: … [54] The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent. … [55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person: (a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: … (b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: … (c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: … [56] The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: … Nor does the duty of the Court require it to view a litigant-in-person's case with a favourable eye. … [57] It seems to be well accepted that the extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": … Relief for denial of procedural fairness [58] A denial of procedural fairness must work a practical injustice on the appellant in order for the Court to exercise its discretion to grant relief: …. An appellant alleging a denial of procedural fairness need only demonstrate that they were deprived of the possibility of a successful outcome; to negate that possibility it is necessary to find that a properly conducted trial could not possibly have produced a different result: …. To put it another way, as framed by the Full Court in King v Delta Metallics Pty Ltd [2013] FCAFC 93 at [59], "[i]f the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted": …. [59] Depending on the circumstances of the case, the onus may be on the appellant to demonstrate what they would have done, or what evidence they would have led, so as to establish they were in fact denied procedural fairness. As explained by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [59]-[60]: "There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard. **493 Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given." (Footnotes omitted.) (Emphasis added.) [60] In reaching this conclusion, their Honours cited the Full Court decision of WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, where at [58] their Honours had observed that where a party has been denied an opportunity to be heard on an important issue, that will amount to a denial of procedural fairness unless it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome. ….' (citations omitted except as included) [56] We note that s 38(5) of the NCAT Act reflects the general law duties of procedural fairness and the principles in Flightdeck Geelong at [51]-[57] apply to proceedings in the Tribunal: see for example Jeray v Blue Mountains City Council [2024] NSWCATAP 66 (Jeray) at [13]-[15]. We note that the principles in Flightdeck Geelong at [58]-[60] apply to proceedings in the Tribunal: see for example Jeray at [18]."
8. In conducting a procedurally fair hearing, the Tribunal must take into account procedural fairness to all parties. As Chen J stated in Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 at [62]-[63]: "I am mindful of the fact that the appeal has been presented by the plaintiff without the benefit of legal assistance. The essential duty of the Court in cases where there is an unrepresented litigant is to ensure a fair hearing: Hamod v New South Wales [2011] NSWCA 375 at [309] ('Hamod'); Bauskis v Liew [2013] NSWCA 297 at [66] ('Bauskis'). The duty, however, has limits. Relevantly here, two of them should be emphasised. First, 'the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved …': Hamod at [310]; Bauskis at [68]. Secondly, it is 'not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant': Hamod at [312]; Bauskis at [69]. Given the plaintiff has been represented by her nephew (who is not legally trained) I have endeavoured to fairly and justly identify the nub of what was sought to be argued. Nevertheless, even approaching the matter in this way it must be recognised that there are limits. One of them is that the Court "is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point": Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]. This is particularly relevant here because, with respect to the plaintiff, much of what was argued could fairly be described in these terms."
9. The Tribunal may fail to provide procedural fairness if it fails to raise with an unrepresented party the opportunity to apply for an adjournment if the circumstances warrant it (Italiano v Carbone [2005] NSWCA 177 at [105]; CKG v Public Guardian [2014] NSWCATAP 32 at [23]; Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 at [29]-[30]). That is a separate issue to refusing an adjournment application after such an application has been made. Another example of a denial of procedural fairness may arise in some (but not all) circumstances where a party is not informed of the opportunity to question the other party's witnesses (Simjanovska v Dogan [2023] NSWCATAP 69 at [96]-[102]).
10. The Consumer and Commercial Division of the Tribunal deals with a high volume of litigation involving residential tenancy terminations. As discussed previously, such disputes need to be dealt with in an efficient way. Judicial resources are scarce, and there is obviously a public interest in those resources being used efficiently. The volume of litigation dealt with by a Court or Tribunal is a matter that can be considered when determining whether there has been a denial of procedural fairness. However, a denial of procedural fairness cannot be overlooked or excused simply because of the challenge of dealing with high volume litigation (Shrestha v Migration Review Tribunal (2005) 229 FCR 301; [2015] FCAFC 87 at [53]-[54]).
11. Having listened to and considered the sound recording of the hearing, we are satisfied that the tenant was denied procedural fairness, because the issue of the landlord's termination application being retaliatory under s 115 of the RT Act was raised in substance by the tenant. The Tribunal did not raise with the parties that s 115 of the RT Act was a matter for consideration as a defence to the landlord's termination application; nor did the Tribunal consider whether the landlord's application was retaliatory under s 115.
12. As discussed previously, the tenant did not use the word "retaliatory". However, the tenant clearly stated that she had previously commenced Tribunal proceedings seeking to set aside the rent increase, and that her application had been before the Tribunal but not determined. The tenant was also clearly indicating that the landlord was upset with her for not paying the rent increase, and had threatened to terminate the tenancy. In substance, she was raising at the hearing the landlord's application for a termination order was retaliatory under s 115 of the RT Act.
13. Had the Tribunal Member asked the parties to clarify when the tenant had filed her Tribunal proceedings, and when the landlord had served the Notice to Terminate, it would have been clear to the Member that the landlord's s 85 Notice to Terminate was served two days after the tenant had filed her proceedings in the Tribunal seeking to set aside the proposed rent increase as excessive under s 44(1)(a) of the RT Act. In those circumstances, the tenant had an arguable defence under s 115(1)(b) of the RT Act to the landlord's termination application. The tenant was not given a reasonable opportunity to argue the landlord's termination application was retaliatory, and it is possible that, had she done so, the outcome may have been different.
14. In making this finding, we acknowledge the challenges the Tribunal Member was facing. The Tribunal Member had a busy list, and limited time. The parties could have articulated their arguments more clearly, and less emotively. The Tribunal Member may also not have had readily to hand information (either in a physical form, or by electronic means) that clearly demonstrated the date on which the tenant filed her Tribunal proceedings seeking orders under s 44(1)(a) of the RT Act.
15. However, taking all the relevant circumstances into account, we are satisfied that the tenant was denied procedural fairness, and an error on a question of law has been established.

Disposition of the Appeal

1. Section 81 of the NCAT Act states as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
2. As discussed previously, we are satisfied that an error on a question of law is established. Consequently, the appeal is allowed.
3. However, we are not satisfied that the proceedings should be remitted to the Tribunal for reconsideration. The issues in dispute are narrow. Both parties, in the Appeal Panel call-over directions, were given the opportunity to file and serve all of the submissions and documentary evidence they sought to rely upon in the appeal. We have the benefit of the documents the parties provided to the Tribunal at first instance. We also have the benefit of the oral evidence given by the parties at the Tribunal hearing.
4. It is now approximately eight months since the landlord served the "no grounds" Notice to Terminate on the tenant. It is approximately four months since the Tribunal hearing. At the Appeal Panel hearing, we made clear to the parties that if the appeal succeeded, we had the power to reconsider the merits of the dispute rather than remit the proceedings back to the Tribunal. Both parties were given the opportunity to make submissions about the issues relevant to whether the tenancy should be terminated; whether the landlord's application was retaliatory; and the appropriate date of vacant possession if we terminated the tenancy.
5. We make the following findings:

Is the Notice to Terminate a Valid Notice That Has Been Served In Accordance with the Applicable Provisions of the RT Act?

1. We are satisfied the Notice to Terminate is a valid notice; it has been validly served; it gives the necessary period to vacate the premises; and the Tribunal proceedings were commenced after the date of vacant possession in the Notice had expired and within 30 days of that date.

Is The Notice to Terminate Retaliatory?

1. We are satisfied that the issue of the "no grounds" Notice to Terminate under s 85 of the RT Act dated 27 September 2023 was wholly or partially motivated by the fact the tenant had applied to the Tribunal for an order.
2. At the hearing on 25 January 2024, the landlord made no mention of any reason for seeking to obtain possession of the premises other than financial commitments and financial hardship. At the Appeal Panel hearing, we directly raised the issue of the possibility that the termination notice was retaliatory. It was asserted by the landlord's agent that the landlord sought possession because the landlord's parents needed to reside in the property. That may have arisen after the hearing on 25 January 2024. However, in circumstances where there had clearly been a dispute between the parties about the rent increase; the tenant had filed proceedings in the Tribunal on 25 September 2023; and two days later the landlord had served a Notice to Terminate, there is a compelling inference that the landlord was (at least partially) motivated to terminate the tenancy because the tenant had applied to the Tribunal for an order.

Should the Tenancy Be Terminated In Any Event?

1. We are satisfied that the relationship between the landlord and the tenant is poor, and there has been longstanding conflict since the proposed rent increase. The tenant stated at the Appeal Panel hearing she was "stressed" dealing with the landlord, and she accepted that it was appropriate the tenancy end. Her only issue was how long she and her family should be given to vacate the premises.
2. We are satisfied that, despite the Notice to Terminate being retaliatory under s 115(2) of the RT Act, we should not declare the Notice as having no effect, nor should we refuse to make a termination order.

What Should Be the Date of Vacant Possession?

1. The tenant sought a further "three to four months" to vacate the premises. The landlord sought two to three weeks.
2. Only two issues were clearly raised by the tenant.
3. The first was that the tenant needed to be near Blacktown Hospital for medical treatment. In that regard, the tenant asserted that she needed to be near the hospital for treatment in respect of diabetes and asthma.
4. The medical evidence provided by the tenant does not verify that she has serious and significant ongoing medical issues that required ongoing treatment at Blacktown Hospital she and that her family should be given a generous time period to vacate.
5. At the conclusion of the Appeal Panel hearing the tenant sought to tender a further medical report in respect of her treatment at Blacktown Hospital. The tender of that document was rejected, as it would be procedurally unfair to the landlord. In any event, the document did not support a conclusion that she requires ongoing medical treatment at Blacktown Hospital for serious medical conditions.
6. Further, there are rental properties in Blacktown and adjoining suburbs that are a relatively short travelling distance to the hospital, as well as rental properties near other hospitals and medical facilities.
7. The second issue was that the tenant was unable to find a rental property because the rent ledger of the landlord showed rent arrears due to the disputed rent increase. According to the tenant, no landlord would rent to a tenant with rent arrears, and, despite looking for a rental property, the tenant had been rejected on this basis.
8. The landlord's agent responded by stating that no other agent had contacted him seeking a reference in respect of the tenant.
9. We do not accept that the rent dispute is a significant hurdle to the tenant obtaining another rental property. The tenant's evidence about how many rental properties she had applied for was vague. There is no reason why, even if there is a dispute about the rent increase, the tenant cannot pay the arrears under protest so that there is no rent arrears on the ledger, and then seek to recover the money by application to the Tribunal for orders under ss 187 and 190 of the RT Act (if the tenant can establish a legal basis for recovery); or in the alternative seek to reinstate her s 44(1)(a) of the RT Act proceedings under s 55(2) of the NCAT Act (subject to the fact that she would need an extension of time to do so under s 41 of the NCAT Act). A bald assertion by the tenant that she cannot vacate due to the rent ledger showing arrears is not given any significant weight.
10. The tenant also made reference to "needing the bond" and the 2 weeks rent paid in advance to be in a financial position to rent another property. We do not give those matters any significant weight in the exercise of discretion. The bond is payable at the end of the tenancy, and whether or not there will be any dispute about the bond is a matter of speculation. Any rent paid in advance should ultimately be credited to the rent ledger. They are not matters causing such financial hardship that the date of vacant possession should be extended for the lengthy period sought by the tenant.
11. On the other hand, the tenant has been paying rent pursuant to the conditions of the stay (as far as we are aware, with the landlord not clearly asserting otherwise); the tenant has children residing at the property; and the landlord has not provided any compelling reason for needing possession of the property within a relatively short time.
12. Taking into account all of the matters raised by both parties and the history of the dispute, we are satisfied that termination of the tenancy and vacant possession of 30 June 2024 is appropriate.

Miscellaneous Issues

1. We note there is an ongoing dispute between the parties about the rent increase. For the purpose of disposition of the appeal, it is unnecessary for us to make a finding whether the rent payable from the end of September 2023 is $590 pw or $720 pw. If the landlord asserts there is rent arrears, the landlord can bring his own proceedings in the Tribunal to recover the rent arrears. The tenant is obliged under s 33 of the RT Act to pay rent until the date the residential tenancy ends; and an occupation fee for any period the tenant remains in possession thereafter.
2. Finally, we note that in the Tribunal orders that are the subject of the appeal, the name of the tenant was "Joydeep Chatterjee and Sangi Chatterjee." That reflects the name of the tenant on the Notice to Terminate dated 27 September 2023. For some reason, Joydeep Chatterjee was not joined as party to the appeal. However, it is unnecessary for Joydeep Chatterjee to be now joined as a party to the appeal, in all the circumstances. It is appropriate, however, for our orders made under s 81 of the NCAT Act terminating the tenancy to refer to Joydeep Chatterjee and Sangi Chatterjee as the tenant.

ORDERS 1. The appeal is allowed. 2. The orders of the Tribunal dated 25 January 2024 in Case number 2023/00469396 are set aside. 3. The Appeal Panel orders, pursuant to s 85 of the Residential Tenancies Act 2010 (NSW), the residential tenancy agreement between Jay Pandya (landlord) and Joydeep Chatterjee and Sangi Chatterjee (tenant) for residential premises at BLACKTOWN NSW 2148 is terminated on 30 June 2024 and vacant possession is to be given on or before 30 June 2024. 4. If the tenant gives the landlord vacant possession prior to 30 June 2024, the tenant is only liable to pay rent up to the date of vacant possession.

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. 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: 23 May 2024