Ciccone v NSW Land and Housing Corporation

Ground 1

1. The Tribunal erred in law in applying the wrong test under s.87 of the Act in connection with the termination order that was made.
2. Section 87 of the Act states: '(1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.'
3. The appellant submits that the Tribunal Member applied the wrong test because at paragraph 20 of the Reasons for Decision he stated: 'The order is made in the interests of justice as between the parties.'
4. The respondent submits that the Tribunal Member did not apply the wrong test and that paragraph 20 of the Reasons for Decision was no more than a concluding paragraph. The respondent also states the correct test is referred to in paragraph 13 of the Reasons for Decision by the reference to the words 'sufficient to justify termination'. Paragraph 13 of the Reasons for Decision states: 'The landlord may serve a notice to terminate which gives at least 14 days notice s87(2) and the Tribunal may make the termination order if it is satisfied that the tenant is in breach of the Agreement, which is sufficient to justify termination, and the tenant has not vacated as required by the Notice.'
5. We reject the appellant's submission that paragraph 20 as extracted above embodied the test that the Tribunal applied in determining that a termination order should be made. We accept the respondent's submission that the paragraph is intended to indicate nothing more than the orders made reflect the merits or justice of the case based on the findings in the preceding paragraphs. In that regard the orders made are set out at the very beginning of the Reasons.
6. The appellant also submits that paragraph 13 of the Reasons for Decision does not state the correct test because it does not refer to the words in section 87(4)(b) of the Act, 'in the circumstances of the case'.
7. The appellant's submissions refer to the decision in Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277 at [14] - [19], [62] - [71]. In that case the issue also concerned the termination of a residential tenancy agreement. The section under consideration was a predecessor to section 87.
8. The Tribunal Member in Scicluna v NSW Land and Housing Corporation stated in her reasons: "I am satisfied that the landlord has established the ground of the breach and that the ground is a breach of the residential tenancy agreement, (s.64(2)(b)(ii)) and that in the circumstances justifies the termination of the agreement. (s.64(2)(c))."
9. At paragraph 67 of his judgement Campbell JA pointed out that the Tribunal Member had made errors in referring to the relevant parts of section 64. The reference to s.64(2)(b)(ii) was incorrect. The correct reference was to s.64(2)(b)(i). Further the reference to s.64(2)(c) was also incorrect. The correct reference was to s.64(2)(b)(ii).
10. In addition the Tribunal Member had erred in other respects, one of which was to refer to 'special circumstances of the case' where the relevant statutory requirement was to refer to the 'circumstances of the case'
11. In our view the following paragraphs of Campbell JA's judgement are relevant: '68 In my view, the Tribunal has not applied the correct legal test. That shows that it has made an error with respect to a matter of law. A misapprehension of the correct legal test to apply is the sort of error that is likely to materially affect the decision that the Tribunal has come to. 69 The statement of the correct test is a matter of importance, concerning which it is appropriate to grant leave to appeal. In any event, the granting of leave is not opposed. 70 My conclusions that the Tribunal has not applied the correct legal test and that the error is one likely to materially affect the decision of the Tribunal have the effect that the appeal should be upheld. That then gives rise to a question of what further orders, if any, should be made under section 67(3) CTTT Act. 71 It is not at all clear from the Tribunal's reasoning that it has given consideration to whether the circumstances of the case are such as to justify termination of the agreement. While the Tribunal has said that the proved breach "in the circumstances justifies the termination of the agreement" it was only after making that statement that the Tribunal went on to consider whether there were "special circumstances". That it proceeded in this manner raises a suspicion that the matters stated to be "special circumstances" may not have already been taken into account.'
12. The above passages support the appellant's submission that the Tribunal did not state or apply the correct test to the question of whether the termination order should be made.
13. Given that we have rejected the appellant's submission that paragraph 20 of the Reasons was the Tribunal Member's statement of the relevant test, the basis of this ground of appeal lies in the fact that the Tribunal Member omitted the words, 'in the circumstances of the case', from paragraph 13 of the reasons for decision, as quoted above.
14. In Scicluna v NSW Land and Housing Corporation there were a number of matters which the Court of Appeal identified and relied upon in remitting the matter to the Tribunal to be reheard.
15. In these proceedings under this ground of appeal we do not have the complicating factor of the wrong citation of the relevant sections and reference to the special circumstances as were present in Scicluna.
16. In considering whether the omission of the words 'in the circumstances of the case' amounted to the application of the wrong test, we have decided to have regard to the approach identified earlier in these reasons, namely that the Tribunal Member's reasons for decision 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.
17. We have been provided with the transcript of the hearing before the Tribunal Member. We have had regard to T24, (page 185 of the appellant's bundle) where the Tribunal Member stated: 'Well I don't want to know because that's not part of the consideration of "hasn't (b)reached his obligations", and that's the question, has he and are the breaches sufficient to justify termination of a social housing tenant, taking into account all the matters that have to be considered.'
18. We are not persuaded that the Tribunal Member applied the wrong test since he stated during the course of the hearing that he was required to take into account all the matters that have to be considered which, in our view is the equivalent of having regard to the circumstances of the case. Further, in our view his reasons disclose an examination of the circumstances of the case leading to the conclusion that he had full regard to the requirement to examine those circumstances.
19. We dismiss this Ground of Appeal.

Ground 2

1. The Tribunal erred in law in the exercise of its discretion in taking into account an irrelevant consideration.
2. The Appeal Panel decision in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (23 October 2014)stated in connection with irrelevant considerations: 'Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend per Mason J at 40: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.'
3. The parties have not cited any authorities that deal with a decision maker taking into account irrelevant considerations.
4. The discretion given to the Tribunal to terminate the tenancy was very broad. Section 87(4) of the Act stated the matters that the Tribunal had to be satisfied about before a termination order could be made. Section 87(4)(b) of the Act stated that the Tribunal had to be satisfied that the breach the subject of the termination notice was, in the circumstances of the case, sufficient to justify termination of the tenancy agreement. Section 87(5) of the Act stated that in considering the 'circumstances of the case' the Tribunal was to consider a range of factors which were stated, but its consideration was not limited to those matters.
5. The irrelevant consideration is stated to be that the Tribunal took into account whether the appellant had entered into an acceptable behaviour agreement during the hearing as a matter relevant to whether the appellant had permanently changed his behaviour.
6. As stated at the commencement of these reasons, the respondent is a social housing provider. It is common ground that the agreement between the parties was a social housing tenancy agreement. Section 152 of the Act relates to the termination by the Tribunal of a social housing tenancy agreement. It states that the Tribunal is to have regard to specified matters in determining whether to terminate a social housing tenancy agreement. Whether or not the appellant had entered into an acceptable behaviour agreement was not one of the matters set out in s152 of the Act.
7. At paragraph 7 of the Reasons for Decision the Tribunal Member stated: 'At the hearing the respondent was asked whether he would enter into an acceptable behaviour agreement with the applicant, but declined to do so.'
8. At paragraph 12 of the Reasons for Decision the Tribunal Member stated: 'Other provisions which may apply include RTA s153 (Termination notice - acceptable behaviour agreements) and 154 (Termination by Tribunal on behaviour grounds). These do not apply as no such agreement has been made.'
9. Further, at paragraph 19 of the Reasons for Decision which was the penultimate paragraph of the reasons and in that regard may be read as being of a conclusionary nature, the Tribunal Member stated: 'In addition I note that the respondent declined to enter into an acceptable behaviour agreement, which if he had, would have provided some additional comfort for the applicant as it provides a powerful basis for termination for breach thereof under RTA s154, if one had been given. There is no comfort for the applicant that the respondent has permanently changed his behaviour.'
10. In support of this ground of appeal the appellant states that the issue of an acceptable behaviour agreement was irrelevant because there was no evidence for it and because both advocates before the Tribunal confirmed that there was no offer of an acceptable behaviour agreement made by the respondent for the appellant to decline. It is also said by the appellant that the possibility of an acceptable behaviour agreement was pure speculation on the part of the Tribunal. It was not a matter raised by either of the parties.
11. Further and importantly the appellant states that the issue of an acceptable behaviour agreement was not a consideration relevant to the test of whether in the circumstances of the case, as referred to in s87(4)(b) of the Act, the breach of the residential tenancy agreement was sufficient to justify termination.
12. The respondent states in its submissions that on the basis of the transcript it was open to the Tribunal to find that the appellant had declined to enter into an acceptable behaviour agreement. We disagree. In any event the issue is whether the question of an acceptable behaviour agreement was relevant to the Member's consideration of the termination, not whether it was open for the Tribunal to make a finding concerning such an agreement.
13. Further, the respondent states that the Tribunal's finding was stated to be in addition to the conclusion already drawn, and if there were an error made, it could not be said to have been likely to have materially affected the Tribunal's decision.
14. The parties have not referred us to or considered paragraph 12 of the Reasons for Decision which we have extracted above. In our view paragraph 12 is important as it is a clear indication that the Tribunal was aware that the issue of an acceptable behaviour agreement was not relevant. The Tribunal stated that no acceptable behaviour agreement had been made and that as a result a termination notice based on s153 of the Act and a termination of the tenancy agreement under s154 of the Act had no application.
15. Nonetheless the issue of whether the Tribunal Member took an acceptable behaviour agreement into account given his discussion of the issue in paragraph 19 of his Reasons for Decision, remains to be resolved.
16. As we have stated above, the Tribunal was not limited in considering the circumstances of the case sufficient to justify the termination of the tenancy agreement. Pursuant to s87(4)(b) of the Act its discretion is broad and includes the factors in s87(5), if the Tribunal considers them to be relevant. In our view the Tribunal Member was not constrained from taking into account the absence of an acceptable behaviour agreement in considering whether or not the appellant had permanently changed his behavior as he contended was the case, as recorded in paragraph 18 of the Reasons for Decision. In our view the Tribunal Member was entitled to consider whether the appellant was a changed person and should be given another opportunity. In that context, the Tribunal Member was entitled to consider the issue of an acceptable behaviour agreement.
17. For these reasons we have formed the view that the Tribunal Member did not take into account an irrelevant consideration when he referred to the absence of an acceptable behaviour agreement in his consideration of whether or not the appellant was a changed person who should be given a chance to avoid the termination of the residential tenancy agreement.
18. This ground of appeal is accordingly dismissed.

Ground 3

1. The Tribunal erred in law in finding that the breach was 'serious'. The appellant has not identified what provision of the Act this error of law relates to. We have assumed it relates to section 152(1)(b) of the Act which states: 'Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk.'
2. We start our consideration of this ground of appeal by noting the appellant's concession that there was sufficient evidence to make a finding as to breach.
3. At paragraphs 16 of the reasons for decision, the Tribunal Member considered section 152 of the Act and concluded generally that the conduct of the appellant involved a prejudice to adjoining tenants. Section 152 of the Act as it applied at 26 October 2015 (it has since been repealed) required the Tribunal to have regard to specified matters when determining whether to terminate a social housing tenancy agreement.
4. The Tribunal's reasoning process was to consider s152 of the Act and the matters referred to in sub-paragraphs (a)-(e) of that section.
5. The Tribunal Member in considering the breach of s152(1)(b) which was described as 'The extended period of loud noise since 2013' stated that he had 'no doubt that the extended period of the breach of the Agreement' subjected 'the neighbouring tenants to an unacceptable risk to their health and state of mind.'
6. We have had regard to the fact that the Tribunal Member has not made an express finding that the breaches were serious. The appellant submits that even if we were to find that it is implicit in the Tribunal's reasons which directly relate to s152(1)(b), the fact is that the Tribunal Member erred because the breaches were not serious.
7. The respondent submits that paragraph 16(b) of the Reasons for Decision when read as a whole, indicates that the Tribunal was considering the seriousness of the breaches, and in fact found that the breaches were serious
8. Despite the Tribunal Member's failure to make an express finding that the breaches were serious, we agree with the respondent's submission that paragraph 16(b) of the Reasons for Decision when read as a whole, indicates that the Tribunal was considering the seriousness of the breaches, and in fact found that the breaches were serious.
9. In coming to this conclusion we have had regard to the principle stated above that the Tribunal Member's reasons for decision 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.
10. Further we have also come to the conclusion that the breaches were in fact serious, contrary to the appellant's submission. While we agree that isolated instances of noise or loud music will not constitute a 'serious' breach of the tenancy agreement, the Tribunal Member's findings indicate a series of behaviour by the appellant which justify the conclusion that the breaches complained of were serious. The Tribunal Member stated: 'The evidence is that despite attendance of Police, and the applicant's officers at the premises with requests for the music to be turned down; SPO's; and noise abatement orders; the respondent has continuously breached the terms of the Agreement. The extended period of loud noise since 2013 shows that respondent has failed to recognise his obligations, and has wilfully disregarded all opportunities for him to maintain his tenancy.'
11. In our view a continuous breach of the terms of a tenancy agreement relating to causing or permitting nuisance and not interfering, or causing or permitting interference with the reasonable peace, comfort or privacy of neighbours will amount to a serious breach of the agreement. The fact that the appellant's breaches required attendances by the police and the respondent's officers and that specific performance orders and noise abatement orders were made, without the appellant ceasing to breach the tenancy agreement support the implicit finding by the Tribunal Member that the appellant's breaches were serious.
12. We dismiss this ground of appeal.

Ground 4

1. The Tribunal erred in law either in making a finding without evidence, or in denying the applicant procedural fairness and finding that the extended period of the breach of agreement subjected neighbouring tenants to an unacceptable risk to their health and state of mind.
2. This ground of appeal arises out of paragraph 16(b) of the Tribunal's Reasons for decision.
3. As stated above, the Tribunal Member in considering the breaches which were described as 'The extended period of loud noise since 2013' stated that the extended period of the breach of the Agreement subjected 'the neighbouring tenants to an unacceptable risk to their health and state of mind.'
4. The Tribunal member went on to state: 'The use of loud noise has been well recognised to affect the health of those to whom it is directed, as who kind can forget the success of the US Government Authorities in Panama in causing the surrender of President Noriega from a foreign embassy by the use of extremely loud and continuous music directed at that building'
5. The appellant raises the following issues in connection with the above paragraph. First, the issue was not raised with the parties at the hearing. As a result, the appellant had no opportunity to address the issue and to make submissions in connection with it.
6. Further, it is submitted that the Tribunal should have been addressing a breach of quiet enjoyment and whether the risk was that if that breach continued, it was unreasonable. The appellant states that the Tribunal addressed unacceptable health risks to the state of mind of the neighbours when there was no evidence in the proceedings of noise affecting the health of any resident or neighbour.
7. The breaches of the tenancy agreement relied upon by the respondent were based on the appellant causing or permitting nuisance and interfering with the reasonable peace, comfort or privacy of neighbours. Given that the appellant has conceded that there was sufficient evidence to make a finding of breach, this Ground of Appeal, even if established, does not in our view lead to a conclusion that there was an error of law in making termination order. However if we are wrong about this conclusion, we have nonetheless considered this Ground of Appeal.
8. The respondent submits that the Tribunal Member's paragraph as referred to above was no more than a 'rhetorical flourish' which if it was an error of law, was not likely to have materially affected the decision.
9. The respondent also makes the point that there was evidence before the Tribunal Member from neighbours about the effect of the appellant's noise, or music, however one might want to describe it. This evidence is at pages 98 - 108 of the appellant's appeal bundle. The documents are part of a bundle described as the 'Respondent's Documents at First Instance'.
10. The Tribunal Member stated that the extended period of the breach of the Agreement subjected 'the neighbouring tenants to an unacceptable risk to their health and state of mind.' In our view the documents at pages 98 - 108 provide ample ground for the Tribunal Member's finding. The documents from neighbouring tenants state in relation to the appellant: 1. 'frightened to go out the door'. 'came at May with a white stick as if he was going to hit her and frightened her'; 2. 'has made existence in this building intolerable and unbearable'; 3. 'I feel constantly threatened by his anti social behaviour with his vocal and recorded sounds' 'at high volume at any time'; 4. The appellants 'unrespected destruction of property which has caused undue stress & unreasonable inconvenience.' 5. 'having to call the police regularly has been a stressful ongoing experience and a constant interruption to one's daily duties. Not to mention health recovery levels ' 6. 'it is very frightening for us to go out the main door' 7. 'Has sometimes stopped me from my sleeping in the mornings to have woken up abruptly to his music' 8. 'the resident in apartment 1 impacts on my life in a very negative way. He has personally threatened me and has said he will "kill me" when I have asked him to turn his music down. His screaming and yelling is very upsetting as its verbally abusive with foul language'.
11. While the evidence referred to in the preceding paragraph goes beyond noise and loud music there is sufficient evidence of the issues, causing or permitting nuisance and interfering with the reasonable peace, comfort or privacy of neighbours.
12. The last item of evidence is a graphic illustration of the conduct complained of leading to breach.
13. In our view the statement by the Tribunal Member as quoted at paragraph 67 above was not a material part of his conclusion or reasoning process that there had been a breach of section 152(b) of the Act. The statement followed his critical finding that he had 'no doubt that the extended period of the breach of the Agreement' subjects the neighbouring tenants to an unacceptable risk to their health and state of mind.'
14. The evidence that there was before the Tribunal, as referred to above, was sufficient to support his findings and conclusions.
15. For the reasons expressed, we dismiss this ground of appeal.

Ground 5

1. The Tribunal erred in the exercise of its discretion and in particular the misconstruction and/or misapplication of s 152 (1) of the Act
2. Section 152 of the Act stated: 'Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.' [Emphasis added] The respondent submits that on a plain reading of section 152(1)(e) of the Act:'the reference to the "tenancy concerned" is to the lease of the premises to the tenant which is the subject of the residential tenancy agreement between the parties. In that context the words "including any prior tenancy of the tenant…" cannot be taken to be a reference to some lease of other premises as that would be inconsistent with the word "including" and as such, the second clause must be taken to refer to any early lease of the same premises under social housing tenancy agreement.'
3. The respondent submits that on a plain reading of section 152(1)(e) of the Act: 'the reference to the "tenancy concerned" is to the lease of the premises to the tenant which is the subject of the residential tenancy agreement between the parties. In that context the words "including any prior tenancy of the tenant…" cannot be taken to be a reference to some lease of other premises as that would be inconsistent with the word "including" and as such, the second clause must be taken to refer to any early lease of the same premises under social housing tenancy agreement.'
4. We do not accept the respondent's construction of section 152(1)(e) of the Act. In our view the words in the section 'including any prior tenancy of the tenant arising under a social housing tenancy agreement' are to be read broadly and literally so that the enquiry relates to 'any prior tenancy' arising under a 'social housing tenancy agreement' meaning that the enquiry is not constrained to the actual tenancy agreement existing between the parties at the relevant time or the premises the subject of that agreement. In our view there is no justification to construe section 152(1)(e) as being restricted to the tenancy the subject of the termination application or the premises the subject of that agreement.
5. At paragraph 16(e) of the Reasons for decision the Tribunal Member stated in connection with section 152(1)(e) of the Act: '(e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. the facts show that the history of this tenancy is one of continuing breach almost from the first days of the tenancy.'
6. The appellant submits that the Tribunal Member failed to have regard to the length of time that the appellant had been a tenant of the respondent.
7. At paragraph 3b of the Reasons the Tribunal Member found as a material fact that the appellant had been a tenant of the respondent 'for about 13 years at various locations around Sydney'.
8. At paragraph 3c of the Reasons the Tribunal Member found that on 30 January 2013 the parties entered into a Residential Tenancy Agreement for the appellant to occupy premises at Surry Hills for a fixed period of five years at a weekly rent of $430 in the standard form of the residential tenancy agreement contained in schedule 1 of the regulations to the Act.
9. The appellant submits that the Tribunal Member's consideration of the requirement in section 152(e) of the Act to have regard to 'the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement.' was deficient because the Tribunal Member had only considered the history of the tenancy concerned and not, as required, the prior tenancy of the tenant under a social housing tenancy agreement and therefore did not consider the full 13 years the appellant had, as found, been a tenant of the respondent.
10. We reject this submission. The Tribunal Member had clearly had regard to fact that the appellant had been a tenant of the respondent for about 13 years at various locations. He also had regard to the history of the tenancy the subject of the termination notice. By reason of these matters as stated in the Reasons for Decision, the Tribunal Member did have regard to the requirement in s152 (1)(e) of the Act.
11. In addition s152 (1)(e) of the Act required the Tribunal to have regard to the matters set out in (a) - 'as may be relevant'. The fact that the Tribunal Member having found that the appellant had been a party to prior tenancies with the respondent for about 13 years did not consider that factor in greater detail is not, in our view an error of law. The Tribunal Member clearly did not consider that to be a matter relevant to his consideration of the matters referred to in s152 of the Act.
12. We dismiss this ground of appeal on the basis that the Tribunal Member's reasons for decision indicate that he had regard to section 152(1)(e) of the Act.

Ground 6

1. The Tribunal in the exercise of its discretion failed to consider whether the order ought to be suspended under s114 of the Act as requested by the appellant at the outset of the hearing.
2. Section 114 of the Act states: '(1) The Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension. (2) The Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended.'
3. The appellant submits that the application of s114 of the Act was agreed to and there was a submission made early in the proceedings by the respondent concerning suspension, yet the Tribunal Member did not proceed to deal with it.
4. The transcript records that at the commencement of the hearing the respondent stated that it was hoping to get a termination at the end of the hearing with a negotiated period of suspension. The Member stated in response to the respondent's position: 'So it's a termination but with a suspension and then rehousing'.
5. The respondent confirmed that position.
6. The respondent submits that while it referred at the beginning of the hearing to a possible negotiated period of suspension, it was not clear that it actually sought such an order from the Tribunal and there were no submissions made to the Tribunal as to what the period of suspension should be. The respondent also states the appellant did not agree to a period of suspension of the termination order and in those circumstances the Tribunal was not obliged to consider whether to suspend the operation of the termination order under s114 of the Act.
7. The appellant's submissions are that it was the respondent who suggested suspension. The appellant was opposing the respondent's application and made no application for an order under s114 of the Act.
8. While the transcript records that the respondent in opening before the Tribunal Member raised the issue of a suspension, there is no indication that the issue of a suspension was ever pursued after the initial mention of the issue.
9. The Transcript discloses at pages 183-185 of the appellant's bundle that in its final submissions the respondent made no formal application for a suspension order under s118 of the Act.
10. Given that the parties to the proceedings did not apply for a suspension order, and that an order under s118 is in the discretion of the Tribunal, we can see no error on the part of the Tribunal Member in not considering such an order when none was sought.
11. We dismiss this ground of appeal.

Ground 7

1. The Tribunal erred in law in failing to take into account a relevant consideration, namely the mental health of the applicant, in the exercise of its discretion.
2. The appellant's submission is that the mental health of the applicant was relevant either in the context of hardship under s114 of the Act or as a factor relevant to the circumstances of the case and therefore related to the correct test argument contained in Ground 1 as discussed above.
3. The respondent submits that the Tribunal included a reference to the appellant's mental health in paragraph 5 of the Reasons. It further submits that there must be some connection between the appellant's mental health and the decision to be made which makes the mental health issue relevant.
4. In our view, the Tribunal Member did have regard to the issue which the appellant states that he failed to take into account. The appellant's mental health is not a mandatory matter which the Tribunal Member was bound to take into account. As discussed in Appeal Ground 1, the Tribunal member was required to have regard to the circumstances of the case, one of which was the appellant's mental health as recorded in paragraph 5 of the Reasons.
5. The fact that the Tribunal Member did not deal with that subject in an exhaustive way does not in our view mean that he failed to take into account a relevant consideration.
6. On that basis this Ground of Appeal is dismissed.

Ground 8

1. The Tribunal's decision was against the weight of the evidence.
2. Leave to raise this Ground of Appeal is required. As stated above, clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act deals with the 'Limitations on internal appeals against Division decisions'. It states: '1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).'
3. In Collins v Urban [2014] NSWCATAP 17 (9 April 2014) the Appeal Panel stated at paragraph 84 after an exhaustive consideration of the relevant law and principles concerning the grant of leave under section 80(2)(b) of the Civil and Administrative Tribunal Act: 'The general principles derived from these cases can be summarised as follows: (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: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.'
4. The appellant submits in support of his application for leave, the following factors: 1. his behaviour being attributable to his mental health; 2. his lengthy history of tenancy with the respondent; 3. his disabilities which would exacerbate the hardship he would suffer on termination; 4. the fact that an approval for transfer of the tenancy had not taken place; 5. the weight given to the failure to enter into an acceptable behaviour agreement; 6. the history of breaches; and 7. the respondent's responsibility for other tenants and its potential liability to them for any harm caused by the appellant's conduct.
5. In considering the criteria referred to in Collins v Urban at paragraph 84(2) we are of the view that there is no issue of principle involved in these proceedings. Further, there are no questions of public importance or matters of administration or policy having general application which are involved.
6. Having regard to all of the circumstances, we do not think that there is any injustice which is reasonably clear which goes beyond what is arguable. The Tribunal Member made a termination order after having regard to all of the relevant facts. In our view the evidence made it plain that the appellant's conduct had, in breach of the tenancy agreement, caused a nuisance and had interfered with the reasonable peace and comfort of neighbours. Their evidence was that the appellant had made existence in the building 'intolerable and unbearable'. A fuller account of the appellant's anti-social behaviour is given earlier in these Reasons. To have terminated the tenancy in the circumstances that had been disclosed by the evidence was not in our view unjust.
7. We are also of the view that the appellant has been unable to point to an error which was plain and central to the Tribunal's decision. Nor has the appellant pointed to a factual error unreasonably arrived at and clearly mistaken. The appellant does not contend that the Tribunal has gone about the fact finding process in an unorthodox manner or in such a way as to produce an unfair result.
8. The factors which the appellant has referred to in his submission do not either individually, or taken together, satisfy us that the Tribunal's decision was against the weight of evidence, or that having regard to those factors any one of the criteria in paragraph 84(2) of Collins v Urban was satisfied.
9. For these reasons we decline to grant the appellant leave to appeal on the basis that the Tribunal's decision was against the weight of evidence or on the basis of any of the criteria referred to in the passage from Collins v Urban as set out above.

Orders

1. For the reasons provided we are of the view that this appeal should be dismissed pursuant to section 81(1) of the Civil and Administrative Tribunal Act.
2. The stay of the orders made by the Tribunal on 26 October 2015 is dissolved as from 5.00pm of the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2016