Corcoran v Far

Background

1. The appellant commenced residing at the premises in late March 2016 after responding to an advertisement placed by the respondent on the internet earlier in March 2016. The advertisement related to a room in the premises where the appellant proceeded to reside with the respondent and another person. He continued to reside in the premises until late May 2016 by which time he and the respondent were in a position of significant conflict.
2. We understand from the reasons for the decision subject to this appeal that the respondent first initiated proceedings in the Tribunal (RT 16/24568) but then withdrew his application after receiving advice that the Tribunal did not have jurisdiction to make the orders sought. Accordingly, there were no findings or determinations in that matter.
3. On 9 June 2016, the appellant lodged an application with the Tribunal (RT 16/27121) seeking orders against the respondent for the repayment of bond under the RTA. He also claimed, amongst other things, compensation for breach of quiet enjoyment.
4. A hearing was conducted by the Tribunal on 20 July 2016. Both the appellant and the respondent were in attendance. The Tribunal determined only to address the issue of whether it had jurisdiction in the matter, explaining as follows: 1. Both the applicant (Mr Corcoran) and the respondent (Mr Far) attended the hearing today. Due to a number of preliminary issues - such as the applicant seeking leave to increase the quantum of his compensation claim (when no notice of the increase had been given to the respondent prior to the hearing), and the fact that the respondent had filed no documents on the substantive issues, because he thought there was no jurisdiction, I determined prior to the commencement of oral evidence that today's hearing would proceed on the question of jurisdiction only. If the jurisdiction issue was decided in favour of the applicant, I would make procedural orders for a final hearing to be listed at a later date, alternatively, if the jurisdiction issue was decided against the applicant then the whole application would be dismissed. The parties agreed to this course.
5. The Tribunal concluded that it did not have jurisdiction to determine the appellant's claims against the respondent as it concluded that there was no written residential tenancy agreement between them for the purposes of s 10 (b) of the RTA and therefore dismissed the application.

The Notice of Appeal

1. On 5 August 2016, the Tribunal received a Notice of Appeal from the appellant. In the Notice of Appeal, the appellant notes that the date of the decision subject of the appeal was 20 July 2016 and that he received the decision on 22 July 2016.
2. The respondent lodged a reply to the appeal with the Tribunal on 25 August 2016. In that reply the respondent indicated that he did not accept that the appeal was lodged within time. He asserted that the Notice of Appeal was required to be lodged within 14 days of 22 July 2016. He submitted that the Notice of Appeal was dated 5 August 2016 and was date stamped as received by the Tribunal on 9 August 2016, both dates being greater than 14 days from 22 July 2016
3. At the hearing on 28 September 2016 before the Appeal Panel, the appellant submitted that he had delivered the Notice of Appeal to the Tribunal on 5 August 2016 and understood that he had lodged his appeal within the time period permitted. The respondent did not participate in the hearing so we received no further submissions on this point in addition to the objection noted in his reply to the appeal.
4. An internal appeal against a decision made in residential proceedings (which includes proceedings allocated to the Consumer and Commercial Division and arising under the RTA: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 3(1)); must be lodged "within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)": NCAT Rules, r 25(4)(b). The Tribunal may extend the time for the lodgement of an appeal: Civil and Administrative Tribunal Act 2014 (NSW) (CAT Act), s 41.
5. In the Notice of Appeal the appellant advises that he was in receipt of the reasons for the Tribunal's decision on 22 July 2016. The respondent asserts that the appellant did not file the Notice of Appeal until 9 August 2016. Whilst the Notice of Appeal does have a Registry date stamp indicating it was received on 9 August 2016, it is also stamped with another Registry date stamp indicating it was received on 5 August 2016. The Tribunal's records indicate that the Notice of Appeal was recorded as having been received on 5 August 2016 and the Appeal Panel accepts this was the case. Accordingly, the appellant lodged the Notice of Appeal within the time period permitted.

The Grounds of Appeal and the Reply

1. The Notice of Appeal contained the following grounds of appeal: (1) Error of law by deciding that it was unnecessary to consider and apply the conditions in the opening clause of s.10. (2) Error of law by deciding that s.10 required dismissal of application even though (A) there was no evidence of an agreement in writing between respondent and owner of property (B) there was no finding that any such agreement was a "residential tenancy agreement" as defined, and (C) s.187(1) entitles persons other than tenants and landlords to seek orders under the Act. (3) Error of law by deciding or assuming that a sub-tenant could never be "recognised as a tenant" for the purposes of s.10 (4) Error of law by deciding or assuming that, for the purposes of s.10, a written residential tenancy agreement had to be a fixed term agreement and by deciding or assuming that a periodic agreement could not qualify as a written residential tenancy agreement. (5) Error of law by deciding that the writing adduced by applicant did not establish a "written residential tenancy agreement" for the purposes of s.10. (6) Error of law by finding that the relationship between the parties was an "occupancy arrangement" rather than a lease that constitutes a "residential tenancy agreement". (7) Error of law (not merely an error of fact) by finding, without credible supporting evidence, that the agreement between the parties did not have a fixed term (of 4 months). (8) Denied applicant a proper hearing and procedural fairness in refusing to allow applicant to refer to legal authorities when making oral submissions. (9) Erred by deciding that written submissions were "documents" for the purposes of the tribunal's orders, resulting in procedural unfairness. (10) Denied applicant procedural fairness by allowing respondent to appear and give evidence without prior notice of the case the respondent intended to make (since no documents were provided), and without opportunity to consider possible countervailing evidence and arguments.
2. We are of the view that the appellant's grounds of appeal can be condensed into two primary questions : 1. Whether the Tribunal erred in law in deciding that it had no jurisdiction to hear the application? and 2. Whether the Tribunal erred in law by failing to afford the appellant procedural fairness?
3. The appellant also indicated in the Notice of Appeal that he sought leave to appeal on grounds other than questions of law.
4. The respondent's reply supported the original order made by the Tribunal and stated that: The appellant has no grounds to appeal; The appellant has admitted that his alleged "agreement" was partly (illegible); and The requirements of section 10 (b) [of the RTA] were not met.
5. The Appeal Panel unfortunately was unable to seek further elaboration from the respondent as he elected not to participate in the hearing.
6. As outlined below, we have concluded that the Tribunal erred in determining that it did not have jurisdiction to hear the matter, and accordingly, we have allowed the appeal on this basis. Therefore it is unnecessary for us to determine the appellant's remaining grounds of appeal alleging a breach of procedural fairness, or to determine if leave to appeal should be granted on grounds other than questions of law.

The Nature of the Appeal

1. The decision by the Tribunal below to dismiss the proceedings because the Tribunal lacked jurisdiction was a decision made in proceedings for a general decision (within the meaning of s 29 of the CAT Act and is therefore an internally appealable decision as defined in s 32(1)(a) of the CAT Act.
2. Under s 80 of the CAT Act a party may appeal to the Appeal Panel against an internally appealable decision. Section 80 provides: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
3. A decision to dismiss proceedings for want of jurisdiction is not within the definition of "interlocutory decision" in s 4(1) of the CAT Act. Rather, it is an "ancillary decision" which is defined in s 4(1) as meaning: "a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings."
4. Accordingly, under s 80(2)(b) of the CAT Act, the appellant may appeal against the decision concerning jurisdiction and the costs decision as of right on a question of law and by leave on any other ground.

Material and appearances before the Appeal Panel

1. The documents filed and before the Appeal Panel consisted of:

• Notice of Appeal dated 5 August 2016;
• Reply to Appeal dated 24 August 2016;
• Orders and reasons of the Consumer and Commercial Division for the hearing conducted on 20 July 2016 in matter RT 16/27121;
• Orders and Directions from a directions hearing conducted on 25 August 2016;
• Document entitled "Affidavit of Aaron Cocoran" dated 15 July 2016; and
• The Appellants written submissions on the appeal which were provided at the hearing.

1. The Appeal Panel did not have before it a transcript or the sound recording of the proceedings subject of the appeal.
2. The appellant was the only participant in the hearing before the Appeal Panel on 28 September 2016. The Appeal Panel was informed by the Registry that the respondent had received notice of the hearing and had advised the Registry that he would not be attending the hearing.
3. The legislative framework
4. The Tribunal has jurisdiction to make a variety of orders as set out in the RTA with respect to residential tenancy agreements. The Act applies to residential tenancy agreements in respect of residential premises: s 6.
5. Section 13 of the RTA defines a residential tenancy agreement in these terms: 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. (3) An agreement may be a residential tenancy agreement for the purposes of this Act even though: (a) it does not grant a right of exclusive occupation, or (b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities. (4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
6. Relevantly to the appeal, s 10 of the RTA provides: 10 Application of Act to occupants in shared households A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if: (a) a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or (b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with the tenant.
7. Section 8(1) of the RTA lists a number of forms of agreement to which the Act does not apply. From the contents of the reasons for the decision subject to the appeal it would seem that whether or not the agreement between the parties fell within the terms of s 8(1) was not in issue before the Tribunal. Similarly, the issue was not raised before the Appeal Panel.

Did the Tribunal err in law in deciding it did not have jurisdiction?

1. The grounds of appeal raise a question of law, specifically that the decision subject to appeal contained an error of law in concluding that the Tribunal did not have jurisdiction to hear the application by virtue of s 10 of the RTA. The appellant argues, amongst other things, that upon the correct application of that statutory provision to the findings of fact, the Tribunal has jurisdiction to determine the dispute between the parties.
2. The appellant filed detailed submissions in relation to his grounds of appeal numbered 1 to 7 which all went to the issue of the Tribunal's determination that it did not have jurisdiction. We consider the most relevant parts of the submissions can be summarised as follows:

• there was no foundation for the Tribunal to apply s 10 of the RTA as the Tribunal did not apply the whole of the provision as it was not known if there was a written residential tenancy agreement in relation the premises to which the respondent was a party;
• irrespective of the onus upon the appellant to prove the Tribunal had jurisdiction, the Tribunal had an obligation to make the requisite findings of fact so that s 10 of the RTA was enlivened; and
• in concluding that there was no written residential tenancy agreement in place between the appellant and the respondent the Tribunal erred in relying upon a finding of fact that the agreement was not for a fixed term.

Consideration

1. The Appeal Panel in the matter of Rogers v Vinloy [2016] NSWCATAP 2 were similarly tasked to determine an appeal on the issue of whether s 10 of the RTA precluded the Tribunal's jurisdiction in the circumstances of that matter. The Appeal Panel stated as follows as to the operation of s 10 and its interrelationship with s 13 of the RTA: 24. The Appeal Panel is satisfied that s 10 overrides s 13, notwithstanding that s 13 is expressed to be in exclusive terms rather than inclusive terms. This is for the reason that s 10 expressly states that, when the circumstances identified in its chapeau are met, a person is only a tenant for the purposes of the Act when the circumstances described in s 10(a) or (b) are satisfied. In other words, where the enlivening circumstances described in s 10 are satisfied, the general definition of tenant does not apply and one must, relevantly to this case, be a tenant under a written agreement as required by s 10(b) of the Act. 25. In this case, the circumstances enlivening s 10 were satisfied: the appellant occupies residential premises; the residential premises are subject to a written tenancy agreement between the respondents and the landlord (the appellant accepted this to be the case); the appellant is not named as a tenant in the written residential tenancy agreement; the appellant occupies the premises together with the named tenants (i.e. the respondents). In those circumstances the appellant could, relevantly to this case, only be a tenant for the purposes of the Act if paragraph (b) of s 10 was satisfied. That paragraph provides as follows; (b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant. 26. Whatever the ambit of the expression residential tenancy agreement, in order to be a tenant once s 10 is engaged, as here, there must be a written residential tenancy agreement between the named tenant (the respondents) and the other person (the appellant).
2. The reasons for decision for the order subject of the appeal before us commences with a statement at [2] that: The respondent is not the legal owner of the property. He is the head tenant.
3. Subsequently, the reasons provide: 15. Although there was considerable dispute between the parties about a number of factual matters, I consider that the following background facts are largely uncontested: … b) The respondent has entered into a tenancy agreement with the legal owner of the premises (whether that agreement is in writing or not is not known as there was no copy of the agreement in evidence);
4. The appellant's statement of 15 July 2016, which was before the Tribunal below, raised the spectre that the respondent could in fact be the owner of the premises as he alleged he had been conducting repair works in the premises.
5. The reasons for decision do not identify the evidence that the Tribunal relied upon to affirmatively conclude that the respondent was not the owner of the premises and that he was party to a tenancy agreement with the owner of the premises. It is also unclear to us how the Tribunal concluded that this issue was largely uncontested given the contents of the appellants' statement of 15 July 2017.
6. This finding of fact is of particular significance given that the Tribunal ultimately determined to dismiss the application for want of jurisdiction as the agreement between the appellant and respondent did not satisfy s 10(b) of the RTA.
7. To enliven s 10 of the RTA there is a requirement that a person occupies residential premises which are the subject of a written tenancy agreement to which another person with whom that person resides is a party: Rogers v Vinaolo.
8. For the Tribunal below to have dismissed the appellant's application on the basis there was no written residential tenancy agreement as required by s 10(b) of the RTA, it was first required to make a finding of fact that the respondent was a party to a written residential tenancy agreement in respect of the premises. Rather than make such a finding , the Tribunal stated that [at 29]: There was no submission made by the respondent that a lack of written agreement between the legal owner and the respondent meant that an element of section 10 had not been satisfied which would have the effect of preventing section 10 being otherwise satisfied. So I have undertaken no consideration of this particular aspect of section 10 in this decision. In other words the determination on whether section 10 has been satisfied or not has concentrated on the requirements of sub-paragraphs (a) and (b).
9. We are of the view that this reasoning illustrates that the Tribunal below failed to make the requisite findings of fact which would then have permitted it to move to an examination as to whether the agreement between the parties satisfied s 10(b) of the RTA or not.
10. We are of the view that the Tribunal below also erred in its application of the relevant legislative test to determine whether there was in existence a written residential tenancy agreement between the appellant and the respondent.
11. The Tribunal accepted that the text messages forwarded from the respondent to the tenant are a form of writing. There was no dispute between the parties that the text messages consisted of the following: "Received $300 as deposit for room at XX Pine St Chippendale. Balance on move in tomo (sic)". "Confirming receipt of $1440 for balance of 4 weeks deposit & 2 weeks rent. Bills not included. 2 weeks notice required. Thanks"
12. As to the issue of whether there was a fixed term of that agreement, the appellant asserted that there had been an oral agreement between he and the respondent that his occupancy was for a term of four months. The respondent denied there was any such agreement. The Tribunal favoured the evidence of the respondent and concluded that there was no fixed term of the agreement between the parties.
13. The reasons then subsequently conclude as follows: 35. The question of a fixed term is an important term of any residential tenancy agreement - as it gives the occupier secure possession with strict procedures under the Act for the limited circumstances of when the fixed term tenancy may be terminated. Further, when that fixed term expires the Act provides that the tenancy becomes a periodic tenancy and there are further strict procedures and protections under the Act for when and how a periodic tenancy can be terminated by either party. By having no agreement on term other than a 2 week notice period, I find that the parties were intending to create an occupancy arrangement which could be terminated on 2 weeks' notice, which is not a residential tenancy agreement. I find that the text messages do not constitute an agreement to create a residential tenancy agreement. 36. I find that there was no writing between the parties, sufficient to support a determination that there was a written residential tenancy agreement between them for the purposes of section 10(b) of the Act. It follows that the requirements of section 10(b) have not been met and the applicant is not a tenant for the purposes of the Act. The Tribunal does not have jurisdiction to determine the claims against the respondent.
14. It is apparent from this reasoning that the primary finding of fact relied upon by the Tribunal in concluding that there was no written residential tenancy agreement in place between the appellant and the respondent for the purposes of s 10 (b) of the RTA was that there was no fixed term.
15. The definition of a residential tenancy agreement provided in s 13 of the RTA does not state that there is a requirement for an agreement to contain a fixed term to amount to a residential tenancy agreement. The RTA explicitly provides for the existence of a periodic agreement which is defined as a residential tenancy agreement that is not a fixed term agreement (s 3(1)). Whilst in practical terms it is more common than not that residential tenancy agreements commence as fixed term agreements and are subsequently replaced by a periodic agreement as contemplated by s 18 of the RTA , there is no prohibition in the RTA of a residential tenancy agreement commencing in the form of a periodic agreement.
16. To have determined that the contents of the text messages from the respondent to the appellant did not constitute a written residential tenancy agreement for the purposes of s 10(b) of the RTA on the basis that it did not evidence a fixed term had been agreed was an error. The Tribunal erred in determining that a fixed term is an essential requirement in concluding the existence of a residential tenancy agreement.
17. For the reasons outlined, we have concluded that the Tribunal has jurisdiction to determine the application brought by the appellant against the respondent. Accordingly, the Tribunal below made an error of law in concluding that it did not have jurisdiction on the basis that the agreement between the parties did not satisfy s 10(b) of the RTA.

Disposal of the Appeal

1. Given we did not have before us all of the evidence that was available to the Tribunal below, and the respondent elected not to attend the hearing, we formed the view that the appropriate orders to dispose of the appeal were to uphold the appeal, set-aside the order below dismissing the application of the appellant, and remit the proceedings to the Consumer and Commercial Division of the Tribunal for rehearing.

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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: 25 January 2017