Clarke v NSW Land and Housing Corporation

Clarke v NSW Land and Housing Corporation - [2022] NSWCATAP 287 - NSWCATAP 2022 case summary — Zoe

[8]

Background

The tenant entered into a residential tenancy agreement with the landlord on 26 August 2016.
By application filed 15 January 2022 the tenant sought orders pursuant to: 1. s 11 of the Residential Tenancies Act 2010 (NSW) (RT Act) declaring that an agreement is or is not a residential tenancy agreement; and 2. s 217 of the RT Act that personal information about her in a residential tenancy database be wholly or partly removed, amended or not be listed.
The reasons for seeking these orders were stated as: GIPPA application made in July and August 2019 requested an internal review application in 2020, subject to Privacy breaches from storage, creation and dissemination of inaccurate databases about the applicant nationally and internationally. A further 2021 internal review application under the Residential Tenancy Act 2010, has not been responded to 60 days + am a subject of persistent requests dated 5.12.21, 12.12.21,19.12.21,26.12.21 and 2.01.22 from FACS Housing to tick the boxes and sign a renewal of a lease agreement that does not comply to the requirements for the indications for me to be housed, hence, I rely upon Sec (No.42, (RTA 2010) 26 Disclosure of information to tenants generally under the Residential Tenancy Act 2010. (1) False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations refer to Housing Act 2001 under Notice and Declaration. Furthermore, Sec 28,50, Part 11 Residential Data Base under RTA 2010. Additional document is added in response to this application.
By amended application dated 11 April 2022 the tenant sought additional orders pursuant to ss 211 to 217 of the RT regarding information on a tenancy database. Her reasons for seeking those orders were: PLEASE SEE ATTACHED DOCUMENT SETTING OUT THE ORDERS MADE ON 29.3.22 AND MY AMENDMENT IN COMPLETENESS. I obtained Social Housing on grounds that I was unable to enter the private rental market because my employment contracts where jeopardised by a Corporate State organisation, the South Eastern Sydney Local Health District; Royal Hospital for Women and its employees repeatedly from an unjustified perspective; I commenced proceedings within judicial forums in August 2016, the very same time, I was offered a tenancy agreement by FACS, the First Respondent in the flat that is under question in response to potential breaches as noted in my attached document. Multiple State organisations became adversaries to the principal organisation, SESLHD commencing 2016 and ongoing. In 2019 DCJ amalgamated with FACS. Please see attached documents sets out my submissions.
The amended application also states that the tenant was seeking orders pursuant to ss 70 ("Locks and other security devices") and 187 ("Orders that may be made by Tribunal") of the RT Act.
On 29 April 2022, the Tribunal made interim consent orders requiring the landlord to undertake repairs to the front door, the locks to the windows and doors, and to inspect the tenant's access to electricity in the laundry, to inspect the cupboard containing the hot water system and if required replace the door to the cupboard and to inspect and if necessary repair the stove. These were respectively consent orders (2), (3), (4), (5) and (6).

[9]

The Application

A hearing was held on 24 June 2022, and the Decision published on 30 June 2022.
The Tribunal notes at [4] of the Decision that the tenant appeared in person at the hearing and gave sworn oral evidence, and that she relied on a folder of documents received by the Tribunal on 13 May 2022 as well as some emails and a letter received by the Tribunal on 10 June 2022.
During the course of the hearing the Tribunal identified the following issues were to be determined: 1. whether further repairs should be conducted on the tenant's premises; 2. whether the tenant had a claim for compensation; 3. whether the Tribunal should make orders pursuant to s 217(3) of the RT Act that personal information about the tenant be wholly or partly removed, amended in a stated way or not listed in the residential tenancy database.
As to the first issue, as noted, the Tribunal ordered the landlord to undertake certain repairs. Some repairs were agreed to by the landlord (namely the work the subject of orders (1) and (2). The work the subject of order (3) was not a consent order.
As to the second issue, that is compensation, the Tribunal stated that an entitlement to compensation by reason of the landlord breaching s 63 of the RT Act (s 63(1) being the landlord's obligation to provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises) only arises once the landlord has been put on notice of the need to repair, and if the landlord fails to carry out any necessary repairs within a reasonable time: Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254.
The Tribunal found that there was insufficient evidence to satisfy it that the landlord had breached its obligations pursuant to s 63 of the RT Act.
As to the tenant's allegation that the landlord had breached its obligation to provide and maintain locks under s 70 of the RT Act, again the Tribunal found that there was insufficient evidence to satisfy it that the landlord had breached its obligations.
Accordingly, the Tribunal did not order the landlord to pay the tenant any compensation.
As to the third issue, the Tribunal found that the tenant did not provide any evidence that the landlord retained her personal information on a residential tenancy database as defined in the RT Act.
On the contrary, the Tribunal accepted the evidence of the landlord that it does not collect, or provide, and has never collected or provided, any information about its tenants to any residential tenancy database.

[10]

Grounds of Appeal

A Notice of Appeal was filed on 5 July 2022: 1. Question of law potential breaches under the Civil and Administrative Tribunal Act 2013 Sec 73 kept contravention of orders of Tribunal (1) A person must not come up without lawful excuse, contravene a designated order of the Tribunal. 2. In the interest and administration of justice. 3. Prejudice.
The tenant says that the orders the Appeal Panel should make are: 1. The appeal be granted. 2. The matter be reheard on the grounds of the Appeal. 3. The Respondent is penalised for contravening orders made on 29 April 2022. 4. An extension of time be granted to argue on the Question of Law as to the Residential Tenancy Data Base potentially was established by the respondent under the name of FACS Housing and that the applicant be compensated in a maximum financial payment under the RTA for the breaches (i) an order for the Tribunal to make orders pursuant to section 217 (3) of the RTA 2010 (i) An order made for the irrelevances of the data captured be expunged.
As noted, an Amended Notice of Appeal was filed on 22 July 2022. This states that the orders challenged on appeal were: 1. Orders made on 29 April 2022 1-14 are challenged on grounds of prejudice sustained by the applicant from making of a judgement with order 1 - 4 on 30 June n2022, superseding the previous orders that were denied compliances by the respondent, a decision was made that was not fair and equitable. 2. Contempt in the Tribunal.
Immediately below this section of the Amended Notice of Appeal; under "Ground of Appeal; the tenant states: 1. Question of law potential breaches under the Civil and Administrative Tribunal Act 2013 Sec 73 kept contravention of orders of Tribunal (1) A person must not come up without lawful excuse, contravene a designated order of the Tribunal. 2. In the interest and administration of justice. 3. Prejudice. 4. Fraud, fabrication and publication of false information: RTA 2010, sec 217/216.
In the Amended Notice of Appeal, the tenant also states that the Decision was against the weight of the evidence. After setting out the evidence she gave at the hearing, and the evidence the landlord gave, the tenant said that the Tribunal should have given more weight to the following evidence: Sec 72 of the Civil and Administrative Tribunal Act 2013 was the key note to have placed the respondent on grounds under Division 2 Contempt of Tribunal 73 Contempt of Tribunal (1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, this is a corporation that denied complying to the basic obligations of what a Landlord was to have agreed in its Lease Agreement, and furthermore, attempted to induce the applicant to sign a lease agreement that is against the Law. In determining the claim for the applicant the Tribunal had the power to enforce its obligation as to the requirements under CATA against the respondent.

[13]

A question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right.
In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
We have undertaken that exercise, but we cannot identify any error of law in the either Notice of Appeal. However, during the course of the hearing, albeit faintly, the tenant appeared to be submitting that she had been denial procedural fairness by the Tribunal, in that she should have been granted an adjournment to obtain further evidence about compensation.
As we have the transcript of the proceedings we see no substance to the suggestion that the Tribunal failed to afford the tenant procedural fairness. The proceedings appear to have been conducted in a polite and considerate fashion, and we consider that the Member went to great lengths to ensure the tenant was appraised of the matters which she had to consider when determining the tenant's application. By way of example, at pp 45 to 46 of the transcript for the hearing on 24 June 2022, the Member explained the time limits for bringing applications to the Tribunal in the following terms: TRIBUNAL: The regulations set out time limits that people have for making applications under the Act … I can put my explanation in writing when I come to do the decision but I just want to explain it to you. You are saying that the landlord by failing to putlocks on the windows at the start of the tenancy breached his obligations under the Act right to keep the premises secure basically. Now, what the regulations say in regulation 39, is that the time limit to bring an application to the tribunal for a breach of the landlord's obligations is three months after the applicant becomes aware of the breach. So needless to say it is well beyond three months, you are out of time. TENANT: I accept that. But the thing is that I have been having ongoing security breaches in response to non-compliance from unlawful entries in terms of what was happening here .So there was still a lot of materials that were being stolen and pulled out and made a response as to what - and what was stolen from the flat. TRIBUNAL: Okay. I don't doubt that you have had some security breaches, I am not contesting that. What I am saying is that if there were security breaches, the landlord is not responsible for that because you are out of time to claim that the landlord has breached its obligations under the Act. Does that make sense? I am not expressing myself very well TENANT: Yes, I accept that, yes, I am out of time. All right then. TRIBUNAL: So do you want to withdraw that part of your claim? TENANT: In terms [of] security, no, I don't want to withdraw it at all. I want to move forward with further evidence relevant to what Housing has done. I want to be able to pursue the fact that they were - that Land and Housing, the opponent, had keys to enter in flat in my absence and have removed a number of materials and evidence that was relevant to the court and the court's processes
In addition, we note that the tenant never sought an adjournment, and we do not accept that the Tribunal was under any obligation to offer one on its own motion.
As we consider that the tenant has not identified any question of law warranting the Tribunal's orders being set aside, the tenant requires the leave of the Appeal Panel to bring the appeal.

[14]

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

[15]

Tenant's submissions

In the Amended Notice of Appeal, the tenant states that the Decision was not fair and equitable because: 1. The matter was first case conferenced before Senior Member Smith on 29 March 2022. The respondent was represented by Charity Madden. 2. The matter was set for Hearing on 29 April 2022 and orders were made for compliances for repairs to be actioned within dates specified for completion, and was heard by Member George. The respondent was represented by Sarah Travato. 3. The matter was heard on 24 June 2022 by Member George and further orders were made, despite the applicant raising the inconsistencies in the case management and the non-compliances relevant to the conduct of the respondent, suffice to say new orders were made, and no reprimand or response from the Tribunal Member was voiced against the conduct actioned by the Respondent. The respondent was represented by McCann. 4. The Tribunal Member was aware of the Respondent having a name change from FACS Housing NSW to NSW Land and Housing because, Member George made the order at order number 7 as noted in the orders attached on 29 April 2022, such that; the decision is exercised and affected greatly from prejudice. 5. The applicant was denied a notice of representation Sec 45 Representation of Parties (1) (a) (b) (i) Notice of representation in the matter complained about was denied to the applicant at all times, confusion in the carriage of the day-to-day conduct of the matter complained about is evident. 6. The applicant was not served any materials in accordance to order no. 10 made on 29 April 2022 7. The Respondent amongst other orders breached, furthermore, Orders no. 10, 11, and 13.
We gave the tenant a lengthy opportunity to supplement these matters by way of oral submission at the appeal hearing. The principal points raised in oral submissions were: 1. the landlord only complied with order (4) of the 29 April orders; 2. the landlord belatedly complied with the 30 June orders but there remain issues concerning the state of the premises; 3. FACS/Department of Communities and Justice did not attend the Tribunal hearing; 4. FACS/Department of Communities and Justice did file any materials; 5. publications on the database affected her credibility; 6. her photographs showed she suffered considerable loss due to the landlord's breaches of the tenancy agreement.

[16]

Landlord's submission

We have set out the content of the landlord's Reply to Appeal above.
We gave the landlord the opportunity to supplement those matters by way of oral submission at the appeal hearing. In addition to what was stated in the Reply set above, the landlord also relies on written submissions which we found to be of considerable assistance. In summary, after noting that orders (1) and (2) of the Decision were made by consent, the landlord submits: 1. there were sufficient grounds to make order (3) 2. there were sufficient grounds to dismiss each of the three claims for compensation; 3. there were sufficient grounds dismiss the claims relating to the residential tenancy database.
As to this last claim, the landlord submits: 27. Section 209 of the Act defines "residential tenancy database" to include: "(b) the purpose of which is for use by landlords or agents of landlords for checking a person's tenancy history to decide whether a residential tenancy agreement should be entered into with the person." That is, a "residential tenancy database" under the Act requires that third parties have access to such a database. The Respondent (and indeed the NSW Government) does not make information it holds about its tenants available to private third parties or privately run databases such as TICA, in accordance with various privacy laws. 28. The Appellant alleged that that the Respondent retains information of a sensitive and personal nature on its "database". No evidence was provided. 29. The Appellant made submissions concerning the name of the government entity that is her landlord. Member George rejecter those submissions, noting that the Respondent has always been the tenant's landlord, despite changes to the name of the Department that manages the tenancy (formerly the Department of Family and Community Services, now the Department of Communities and Justice). 30. The Respondent's employee gave evidence that the Respondent does not collect or provide, and has never collected or provided, any information about its tenants to any "residential tenancy database". That evidence was accepted by Member George: Decision at [52].
Otherwise, the landlord submits that the tenant has failed to satisfy the leave requirements of cl 12 of Sch 4 of the NCAT Act.

[17]

Consideration

We have noted above that we see no question of law being raised in this appeal. Therefore, the tenant needs leave to appeal.
We note the following matters: 1. part of the appeal is an appeal against consent orders. No basis has been explained as to why the consent orders should be set aside; 2. the tenant seeks punitive orders under s 72 of the NCAT Act. We explained earlier in these reasons, we have no power to make such orders; 3. the tenant says she has been prejudiced. No explanation of this assertion has been provided; 4. the tenant complains about the dismissal of her application for orders concerning the alleged database. The landlord's evidence was that there was no database of the kind referred to in the RT Act and the Tribunal so found. Accordingly, there is no basis for concluding that the tribunal was in error; 5. as to compensation, the Tribunal rejected this claim partly because there was no evidence of loss in that there was no evidence that the tenant paid or was obliged to pay the amounts claimed. Again, there is no basis for concluding that the Tribunal was in error. 6. The tenant's apparent reason for wishing to include FACS in the proceedings was because it was asserted by the tenant that FACS maintained information about the tenant and her family. This issue was dealt with in the Decision from [53] and there is no error in our view in the Tribunal's explanation. The tenant also made submissions contending that the landlord has committed fraud and/or false representations. In our view, there was no basis at all for these assertions and they should not have been made.
We have set out above the principles to be applied in granting leave. Put simply, we would not grant leave to appeal in respect of any of the matters raised by the tenant. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
Accordingly, we refuse any grant of leave.

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