Dannoun v NSW Land and Housing Corporation

NCAT Appeal Panel|2024-05-15|Before: Legal J

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) from a decision of the Consumer and Commercial Division of the Tribunal made on 29 February 2024.
The Tribunal proceedings concerned an application brought by NSW Land and Housing Corporation (which is the respondent in the appeal), against its tenant Mr Dannoun (who is the appellant in the appeal), under the Residential Tenancies Act 2010 (NSW) (the RT Act).
For convenience, in these reasons we will refer to the appellant as "the tenant", and to the respondent as "the landlord".
The orders which are the subject of the appeal are consent orders made under section 87 of the RT Act which terminated the residential tenancy agreement between the parties and required the tenant to give possession of the premises to the landlord.
Initially, the tenant sought that the orders for termination and possession be set aside, and that the matter be remitted to the Tribunal, differently constituted, for redetermination. However, following the identification at the appeal hearing of a potential jurisdictional issue, the tenant now seeks an order that the landlord's application be dismissed.
For the reasons that follow we have decided to allow the appeal, to set aside the orders of the Tribunal, and to dismiss the landlord's application.

Dispensing with a hearing

At the hearing on 15 May 2024, prior to adjourning the hearing part-heard, leave was given to both parties to rely on additional evidence which was relevant to the first and second grounds of appeal. The tenant's representative informed us that she may wish to cross-examine the landlord's witness, Mr Botany, at the adjourned hearing. We informed the parties that if no cross-examination of witnesses was required, we would consider whether to make an order dispensing with a hearing in relation to the balance of the proceedings pursuant to s 50(1)(c) of the NCAT Act. One of the directions we made was that the tenant was to notify the Tribunal and the landlord on or before 22 May 2024 as to whether Mr Botany was required for cross-examination. We also directed that on or before 3 June 2024 the parties were to notify the Tribunal and each other as to whether they consented to the Appeal Panel determining the balance of the proceedings on the papers.
The tenant did not notify us that Mr Botany was required for cross-examination and the tenant's written submissions in reply confirm that the tenant consents to the Appeal Panel dispensing with a hearing. The landlord has not made any representation in relation to this issue. As it transpires, it has not been necessary for us to consider the additional evidence relied on by the parties. This is because that evidence is relevant only to the first and second grounds of appeal, and we have been able to dispose of the appeal by considering only the third ground of appeal which raises a jurisdictional issue.
We are therefore satisfied that the balance of the proceedings can be adequately determined in the absence of the parties by considering their respective written materials, and that the parties would be put to unnecessary expense if a hearing was held. Accordingly, we are making an order dispensing with a hearing of the balance of the proceedings pursuant to s 50(1)(c) of the NCAT Act.

Grounds of Appeal

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) NCAT Act.
This appeal involves questions of law and the tenant does not seek leave to appeal.
The grounds of appeal are: 1. That the Tribunal erred when it made orders by consent without having regard to rule 37 of the Civil and Administrative Tribunal Rules 2014 (NSW). 2. That the consent agreement was vitiated by mistake. 3. That the Tribunal made an error on a question of law in making a termination order under section 87 of the RT Act when it had no jurisdiction to do so because the notice of termination was not valid.
Although the appeal was argued on several grounds, it is able to be disposed of simply by addressing the third ground of appeal. That is, whether the Tribunal erred because it had no jurisdiction to terminate the tenancy under s 87 of the RT Act.

Tenant's submissions

The tenant's submissions in relation to ground 3 can be summarised as follows: 1. Pursuant to s 87(4)(c) of the RT Act, the service of a valid termination notice that complies with s 87 is a relevant pre-condition for the Tribunal's power to make orders terminating a residential tenancy agreement. 2. Section 59(1)(b) of the NCAT Act requires the Tribunal to be satisfied that it has the power to make a decision in the terms of the agreed settlement when exercising its powers of settlement. 3. The Tribunal did not have the relevant jurisdiction to terminate the tenancy by consent of the parties under s 87 because the requirements of s 87 had not been met and therefore the Tribunal erred in determining it could settle the matter by way of consent under s 59 of the NCAT Act. 4. A failure to comply with s 87(2) is not a defect which can be waived pursuant to s 113 of the RT Act as it is a fundamental pre-condition to the exercise of the Tribunal's power to terminate a tenancy agreement under that section. 5. Alternatively, the Tribunal, in terminating the tenancy under s 87, did not waive any defect in the notice, nor did it engage in the exercise of discretion to consider waiving the defect. It did not consider evidence or submissions from the parties about the defect or whether it should be waived.

Landlord's submissions

The landlord's submissions can be summarised as follows: 1. Considering the terms of the settlement agreement, the orders formalising that agreement did not require the Tribunal to make a determination on the notice of termination or an order under s 87 of the RT Act. 2. The Tribunal erred in making a termination order in accordance with s 87 of the RT Act in circumstances where the parties had conciliated and reached an agreement for the tenancy to be terminated. The Tribunal should have terminated the tenancy consistent with the settlement agreement in accordance with the Tribunal's powers to do so under s 187 of the RT Act. 3. However, this error has no bearing on whether the appeal should be successful considering the basis of the appeal, and that the Tribunal made the termination order in the tenant's presence, with the tenant's consent (both written and oral) and in circumstances where the tenant had an opportunity to adequately put his case or ask any questions. 4. In the alternative, the Tribunal had the power under s 113 of the RT Act to make the termination order under s 87, even in circumstances where the notice of termination may not have complied with s 87(2), because the non-compliance with s 87(2) was a defect which could be waived under s 113 and because the tenant suffered no disadvantage as a result of the defect and it was appropriate for the Tribunal to make the termination order in the circumstances of the case.
The landlord also says: 1. there is little utility in remitting the matter to the Tribunal because pursuant to the tenant's bail conditions he cannot return to the premises and the landlord has possession of the premises. 2. in any event even if the bail conditions were to change, it would still not be appropriate for the tenant to reside at the premises considering the serious nature of his breaches and the apprehended violence orders protecting the neighbours. 3. it is not in the interests of justice for the appeal to succeed because of the prejudice to the respondent and concern for other tenants in the complex, the tenant's anti-social behaviour and the risk that Mr Hanna as the head landlord will terminate all nine tenancies in the building. 4. The termination order made on 29 February 2024 was made on the re-listed application and following the issue of another notice of termination dated 21 February 2024 which provided a date for vacant possession of 20 March 2024.

Legislative provisions

Before turning to deal with the parties' respective submissions it is helpful to set out the provisions of the RT Act which are relevant to ground 3.
Section 187(1) of the RT Act sets out the orders that the Tribunal may make "on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act". They relevantly include: "a termination order or an order for the possession of premises": s 187(1)(i).
Part 5 of the RT Act deals with termination of residential tenancy agreements.
Section 81, which is in Division 1 of Part 5, is headed "Circumstances of termination of residential tenancies" and relevantly provides as follows: (1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs - … (e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn.
Section 87 empowers the Tribunal to terminate a residential tenancy agreement on the ground that the tenant has breached the agreement. It provides: 87 Breach of agreement (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. Note - Section 154E sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement.
"Termination date" is defined in s 80 of the RT Act as "the day specified in a termination notice as the day on which the residential tenancy agreement is terminated and by which vacant possession of the residential premises is to be given".
"Termination notice" is defined in s 80 as "a notice terminating a residential tenancy agreement".
Section 113 is about defects in termination notices and provides: Defects in termination notices The Tribunal may make a termination order for a residential tenancy agreement or any other order even though there is a defect in the relevant termination notice or the manner of service of the notice if - (a) it thinks it appropriate to do so in the circumstances of the case, and (b) it is satisfied that the person to whom the notice was given has not suffered any disadvantage because of the defect in the notice or service or that any disadvantage has been overcome by the order and any associated order.
Section 82 deals with termination notices and states: 82 Termination notices (1) A termination notice must set out the following matters - (a) the residential premises concerned, (b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given, (c) if the notice is not given under section 84, 85, 96 or 97, the ground for the notice, (d) any other matters prescribed by the regulations. (2) A termination notice must be in writing and be signed by the party giving the notice or the party's agent. (3) A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.

Did the Tribunal err by making the orders under s 87 of the RT Act?

The termination orders which are the subject of this appeal were made under s 87 of the RT Act.
The Tribunal's discretion to terminate a tenancy under s 87 of the RT Act will only be enlivened if it is satisfied as to each of the circumstances set out in s 87(4). The Tribunal's satisfaction as to each of these circumstances are jurisdictional facts that are required to be established as a precondition to the Tribunal exercising its discretion to terminate a tenancy under s 87. Those circumstances relevantly include that "the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice": s 87(4)(c).
Here, the termination notice was given to the tenant on 27 September 2023 and specified a termination date of 10 October 2023, which is 13 days after the date on which the notice was given. Thus, the termination notice was not given in accordance with s 87(2) because it did not specify a termination date "not earlier than 14 days after the day on which the notice is given". For reasons which we explain below, this was not a deficiency of a kind which could be cured under s 113 of the RT Act.
As a result, the Tribunal could not have been satisfied that the termination notice was "given in accordance with this section" as required by s 87(4). Its discretion to terminate the tenancy under s 87 was thus not enlivened and it fell into jurisdictional error by making the termination order under s 87.
The landlord concedes that the Tribunal erred. The landlord says the Tribunal "should have terminated the tenancy consistent with the settlement agreement reached by the parties in accordance with the Tribunal's power to do so under s 187 of the Act".
There may be an argument that the Tribunal has the power to make a termination order under the RT Act where the parties have consented to such an order being made, even absent other grounds for doing so under the RT Act. Section 187(1)(i) empowers the Tribunal to make an order for termination and possession. Section 81(3) provides that a tenancy agreement terminates "if the Tribunal makes an order terminating the agreement under this Act". Section 81(4)(e) contemplates a tenancy agreement coming to an end if the tenant gives up possession of the premises with the consent of the landlord. These provisions when read together may empower the Tribunal to make an order for termination of a tenancy with the consent of the parties, whether or not there are otherwise grounds for termination. However, for reasons which will become apparent, it is not necessary for us to resolve this question.
We pause here to deal briefly with section 59 of the NCAT Act which was the subject of submissions by both parties. Section 59 deals with the Tribunal's powers when proceedings are settled. The Appeal Panel has held that s 59 enables the Tribunal to make orders in respect of agreements made outside a formal hearing. It is not a precondition or procedure to be followed in order to enliven the power of the Tribunal to make orders to which the parties provide consent at a hearing: Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 at [110].
Here the orders were made within the context of a formal hearing and thus s 59 did not apply. Nonetheless, we agree with the parties that where consent orders are made at a formal hearing, the Tribunal must still be satisfied not only that it has the power to make the orders, but also that the orders are in terms of, or terms which are consistent with, the parties' agreement.
However, that is not what occurred in this case. Here the terms of the Tribunal orders make clear that the Tribunal considered it was making orders in accordance with its powers under s 87. The notice of order specifically stated that the orders were being made under s 87, and included a finding that the tenant had "breached the residential tenancy agreement by disturbing the peace and quiet enjoyment of neighbours". However, the tenant had not agreed to the order being made under s 87 and had not agreed to the Tribunal making findings that he had breached the agreement. In this regard whilst we accept that the tenant had previously consented to the Tribunal making specific performance orders requiring him to comply with the terms of the agreement, there is nothing before us to establish that the tenant had at any stage in the proceedings, and certainly not at the hearing on 29 February, consented to the Tribunal making findings that he had breached the agreement.
It follows that there have been errors on questions of law because the Tribunal made an order under s 87 of the RT Act in circumstances where the Tribunal's discretion to make such an order had not been enlivened. In addition, it purported to make the order by consent in circumstances where the tenant had not agreed to the order being made under s 87 and did not agree to the Tribunal making findings of breach.

Section 113

The landlord submits that although the notice of termination did not comply with s 87(2), this did not deprive the Tribunal of its jurisdiction to make the termination order under s 87 because the non-compliance with s 87(2) was a defect which could be cured under s 113.
There are two problems with this submission.
Firstly, where there is a defect in a termination notice or manner of service of the notice, the Tribunal can only make a termination order if it is satisfied as to the matters specified in s 113: Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 (Navazi) at [58]. That is, it must be satisfied that it is appropriate to make the termination order in the circumstances of the case, and must also be satisfied that the person to whom the notice has been given has not suffered any disadvantage because of the defect (or such disadvantage can be overcome by the order and any associated order).
Here the Tribunal did not consider whether it was satisfied of the matters in s113(a) or (b). The landlord has made submissions as to why the Tribunal should or could have been satisfied as to those matters. However, the parties did not submit evidence or make submissions about those matters in the Tribunal proceedings, and the Tribunal did not address them or determine whether it was satisfied in relation to them. A failure of the Tribunal to consider whether it is satisfied of the matters in s 113 may constitute a jurisdictional error: Navazi at [57] - [58].
However, whether that is the case is of no consequence here because, for the reasons that follow, we are of the view that the failure to comply with s 87(2) is a deficiency of the kind that could not have been cured under s 113 in any event.
Section 113 permits the Tribunal to make a termination order in certain circumstances even where there is a defect "in the relevant termination notice or the manner of service of the notice". Thus, to be a defect of the kind covered by s 113, the relevant defect must be "in" the termination notice (ie its form or content) or must involve the "manner of service" of the notice (ie the way in which the notice is given to the recipient).
We consider that a failure to comply with the 14-day period in s 87(2) involves something more.
As discussed earlier in these reasons, in order to make a termination order under s 87, the Tribunal must be satisfied as to the three matters specified in s 87(4). These are jurisdictional facts that must be established if the Tribunal's discretion to make a termination order under s 87 is to be enlivened.
Relevant here is the requirement in s 87(4)(c) that the Tribunal be satisfied that "the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice" (emphasis added).
The only provisions of section 87 which relate to the "giving" of a termination notice are in ss 87(1) and (2). Under s 87(1) the landlord may "give" a termination notice on the ground that the tenant has breached the residential tenancy agreement. Under s 87(2) (and relevant in this case), "the termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given".
Compliance with s 87(2) is therefore a pre-requisite to the exercise of the Tribunal's power under s 87. If the Tribunal is not satisfied that the landlord has given a termination notice in accordance with s 87(2), it will not have jurisdiction to terminate the tenancy under s 87. Thus, the requirement to comply with s 87(2) involves more than merely the form or content or manner of service of a termination notice. It is a fundamental precondition to the Tribunal's power to terminate a tenancy.
The wording of s 87(2) is consistent with this view. In order to be satisfied that a notice was "given in accordance with this section" for the purposes of s 87(4)(c), the Tribunal must be satisfied that the relevant notice specifies a termination date not earlier than 14 days after the date on which the notice was given. Put another way, the Tribunal must be satisfied that the notice was given no less than 14 days before the date for termination specified in the notice.
This involves more than merely the form or content, or the manner of service, of the notice. It involves a failure to "give" the termination notice in accordance with s 87. That is, it is a failure to give the termination notice no less than 14 days prior to the date specified in the notice.
The terminology in s 113 is also significant. In order to cure a defect under s 113, the Tribunal must be satisfied of the matters in both ss 113(a) and 113(b). Importantly, section 113(b) requires the Tribunal to be satisfied that "the person to whom the notice has been given has not suffered any disadvantage because of the defect (or such disadvantage can be overcome by the order and any associated order)". For the following reasons we do not think that s 113(b) is compatible with s 87(2).
Service of a notice of termination does not bring about a termination of a tenancy or a right to possession. It is merely a step required to be taken by the landlord before the landlord may apply to the Tribunal for a termination orders. If a tenant does not vacate the premises in accordance with such a notice, the landlord can apply to the Tribunal for orders for termination and possession. Such an application must be made after the termination date specified in the notice (other than in cases involving termination for failure to pay rent or utilities): s 83(2). Once an application is made, the landlord must then wait for a hearing date to be allocated by the Tribunal. Even if the Tribunal determines the termination application on the first listing date, there will invariably be a delay between the date for vacant possession specified in the notice, and the date on which the Tribunal considers the termination application. If the Tribunal decides to terminate the tenancy, it must, according to s 83(1), also make an order for possession of the premises, and has a discretion as to when the tenant should be required to provide possession. Given the inevitable delay between the date for possession specified in a termination notice and any order of the Tribunal, it is highly doubtful that a failure to comply with the 14-day notice period in s 87(2) could ever result in a disadvantage to a tenant, or in a disadvantage which could not be overcome simply by extending the time for the tenant to give vacant possession. This is particularly the case where non-compliance with the 14-day notice requirement involves a lapse of only a day or two.
Consequently, if a failure to comply with the 14-day notice requirement in s 87(2) could be cured under s 113, then s 113(b) would effectively be an absurdity when considered in the context of s 87(2), and the 14-day notice requirement, which is a pre-condition to the Tribunal's jurisdiction under s 87, would be significantly eroded. Accordingly, we consider that when the provisions are read together, s 113(b) cannot apply to s 87(2).
Finally, it is also significant that the provisions of the RT Act which prescribe the form and content required for termination notices, and how termination notices are required to be served, are not contained in s 87. They are contained elsewhere in the RT Act and are not referenced in s 87. For example, section 82(1) specifies the information which is required to be included in a notice of termination and s 82(2) specifies that a termination notice must be in writing and signed by the parties. Section 88 sets out additional information which is required to be included in termination notices served on the ground of non-payment of rent or utilities. Section 223 sets out how a notice authorised or required by the RT Act may be given or served. Section 87 does not stipulate that the termination notice must comply with any of those requirements. Thus, the requirement for the Tribunal to be satisfied that the termination notice was given "in accordance with this section" does not extend to the provisions which regulate the form, content and manner of service of the termination notice. This supports our view that s 87(2) imposes a substantive obligation which involves more than the form and content or manner of service of a termination notice, and goes to the heart of the Tribunal's power to terminate a tenancy.
For all of these reasons we consider that a failure to comply with the 14-day time period in s 87(2) does not involve a defect which can be cured under s 113.
Although neither party referred us to the two cases discussed below, we are of the view that they ought to be considered given that they dealt with similar provisions under the now repealed Residential Tenancies Act 1987 (NSW) (the repealed Act).
In Swain v Residential Tenancies Tribunal (unreported, NSWSC, 22 March 1995) (Swain) Rolfe J considered the scope of s 66 of the repealed Act. The repealed Act was the predecessor to the RT Act and s 66 was the provision which empowered the Tribunal to waive defects in termination notices. Section 66 relevantly provided: The Tribunal may, if it thinks it appropriate to do so in the special circumstances of the case, make an order terminating a residential tenancy agreement and an order for possession of residential premises even though there is a defect in any notice of termination of the agreement ...
Rolfe J commented that "potential defects could be want of authority or failure to prescribe the necessary time limits or other matters going to the form and substance of the notice of termination". The matter was appealed to the Court of Appeal in Roads and Traffic Authority v Joy Swain and Terence Gold and Residential Tenancies Tribunal of New South Wales [1997] NSWSC 181 (Swain 2). Meagher JA (with whom Priestley JA and Cole JA agreed) concurred with Rolfe J and said "[s]ection 66 goes beyond formal defects and is broad enough to encompass defects in substance".
Those proceedings related to interpretation of the provisions of the repealed Act insofar as they related to termination of a tenancy where a "no grounds" notice had been served under s 58 of that Act. The issues to be determined involved what the Tribunal was required to be satisfied about before terminating a tenancy in such circumstances, and whether it had a discretion to refuse to terminate the tenancy if a termination notice had been validly served. There was no issue as to whether the termination notice served by the landlord in that case was defective, including as to whether the notice provided the requisite time period for the tenant to deliver vacant possession of the premises.
Thus, the comments made about s 66 in Swain and Swain 2 were obiter dicta and we do not consider that we are bound to follow them. We have however given them careful consideration. The observations were in relation to legislation which was repealed in 2011 and replaced with the RT Act. The structure and wording of the provisions of the repealed Act which dealt with termination of residential tenancies were quite different to the corresponding provisions of the RT Act. The obiter dictum in Swain and Swain 2 does not contain any commentary about s 66 of the repealed Act which would assist us to interpret the interplay of the relevant provisions of the RT Act.
One important difference between the repealed Act and the RT Act is that there was no requirement in s 66 of the repealed Act for the Tribunal to be satisfied, before waiving a defect, that the person to whom the notice was given had not suffered any disadvantage because of the defect, or that any disadvantage could be overcome by the order and any associated order. This is a significant difference which, for reasons explained above, is relevant to interpreting s 113 and whether it applies to s 87(2).
A further difference relates to s 64 of the repealed Act, which empowered the Tribunal to make termination orders on various grounds, including breach. Section 64(3) was comparable to s 87(4)(c) in that it required the Tribunal to be satisfied that a notice of termination had been given. The wording of s 64(3) was as follows: Except as provided by section 66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part.
The wording "[e]xcept as provided by section 66" meant that the requirement to be satisfied that notice was given "in accordance with this Part" was expressly stated to be subject to the power in s 66 to waive defects. Section 87, by contrast, contains no reference to s 113.
Also, the reference in s 64(3) to "this Part" was a reference to Part 5 of the repealed Act entitled "Termination of Residential Tenancy Agreements". Part 5 included not only s 66 but also s 63 which contained the requirements for the form and content of notices. By contrast, s 87 requires the Tribunal to be satisfied that the termination notice was given in accordance with "this section". As discussed above, s 87 contains no reference to s 82, nor to any of the other requirements in the RT Act which prescribe the form and content and manner of service of termination notices.
For these reasons the comments about s 66 in Swain and Swain 2 do not affect the conclusion we have reached about the interpretation of s 113.
The landlord says that the decision in Navazi supports its interpretation of s 113. We do not agree. That case involved termination of a residential tenancy agreement on the ground of non-payment of rent. The notice of termination served by the landlord was defective because it incorrectly asserted the amount of arrears owed by the tenant and because it did not comply with s 88(3) of the RT Act. There was no suggestion that there had been a failure to comply with s 87(2).
At [55] - [56] Sackville AJA (with whom Leeming JA and Adamson JA agreed) addressed (in obiter dicta) the Tribunal's power to make a termination order in circumstances where a notice of termination has been served but is not free from all defects. He said: The distinction between jurisdictional error and an error within jurisdiction is notoriously difficult to identify with clarity and may be "chimerical". [19] Recognising the difficulty, the problem with Ms Needham's submission is that it pays too little regard to s 113 of the Residential Tenancies Act. Section 113 empowers the Tribunal to make a termination order even though there is a defect in the relevant termination notice, if it thinks it appropriate to do so and if it is satisfied that the tenant has not suffered any disadvantage because of the defect. Section 87(4)(c) requires the Tribunal to be satisfied that the "termination notice was given in accordance with this section". Section 87(2) requires the termination notice to specify a termination date not earlier than 14 days after the notice. However, s 87 does not specify any other requirements and in particular does not state that the termination notice must comply with the requirement in s 88(3), although non-compliance with s 88(3) could still be regarded as rendering the notice defective. When these provisions are read together, the Tribunal's power to make a termination order is conditional upon a termination notice being served, but not a termination notice free from all defects. The very point of s 113 is to allow the Tribunal to make a termination order notwithstanding that the termination notice has a defect. It is a matter for the Tribunal to decide whether the termination notice, despite the defect, satisfies the broad criteria stated in s 113.
His Honour acknowledged that s 113 allows the Tribunal to make a termination order notwithstanding that the relevant termination notice has a defect. However, given the particular facts of that case, his Honour did not directly address whether a failure to comply with the 14-day time period in s 87(2) involves a "defect in the relevant termination notice or the manner of service of the notice" for the purposes of s 113. Nonetheless, we think it is arguably implied in the above passages that his Honour was of the view that s 113 does not apply to s 87(2).
For the reasons given, that is the view we have reached.

Other matters raised by the landlord

We will turn now to address the other submissions made by the landlord which are relevant to the third ground of appeal.

Has the landlord taken possession of the premises?

The landlord says that the appeal is futile because the tenant cannot return to the premises and the landlord "has possession of the premises".
The landlord relies on the authority in Davis v Compass Housing Services Co Ltd [2021] NSWCATAP 178 in which the Tribunal had made orders restraining the landlord from reletting the subject premises or granting possession to any other party until further order. The Appeal Panel held that what the appellant was seeking in substance was for the Appeal Panel to direct the landlord to create a new tenancy and that this was beyond the Tribunal's powers.
That case is distinguishable from the present. In that case a warrant for possession had been issued and executed in respect of the residential premises the subject of the appeal. Here, there is no evidence that this has occurred. Whilst we accept that the tenant is currently restrained by reason of his bail conditions from residing at the premises, this is not enough to satisfy us that the landlord has regained possession of the premises.
Section 120 of the RT Act sets out the requirements for taking possession of residential premises before or after the end of a residential tenancy agreement. It relevantly provides: (1) A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless - (a) the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or (b) the tenant has abandoned the premises or given vacant possession of the premises. Maximum penalty - 200 penalty units.
It is an offence for a landlord to act contrary to s 120(1).
Here, there is no evidence that a warrant for possession has been obtained or executed, nor is there evidence to establish that the tenant has returned vacant possession of the premises to the landlord. Whether or not a tenant has given vacant possession is a question of fact in each case: Phoenix v Guangyue Chen [2020] NSWCATAP 255 (Phoenix) at [77]. In this case, the fact that the tenant is not currently able to reside at the premises due to bail conditions imposed by the court is not enough, without more, to establish that he has given up possession of the premises. There is no evidence for example that he has returned the keys to the landlord, that he has removed his furniture or other personal effects, or that he has given notice to the landlord that he has given up the premises (see Phoenix at [71] - [80]). The fact that the tenant is fighting for the tenancy through this appeal process also supports the tenant's position that he has not relinquished possession of the premises to the landlord.

Notice of termination which was before the Tribunal

The landlord has made submissions regarding the notice of termination which was before the Tribunal at the hearing on 29 February 2024. It says "the termination order made on 29 February 2024 by consent was made on the re-listed application and following the issue of another notice of termination dated 21 February 2024 which provided a date for vacant possession of 20 March 2024 … There was no termination notice before the Tribunal when making the termination order on 29 February 2024 except for the Notice of Termination that the Tribunal may have accessed on the historical Tribunal file which was filed on 22 November 2023".
This submission is misconceived. Clearly, any termination order made on 29 February 2024 under s 87 could only have been made on the basis of the notice of termination issued on 27 September 2023 as that is the notice which formed the basis of the application to the Tribunal made on 6 November 2023.
The subsequent notice referred to by the landlord was issued only a few days before the 29 February 2024 hearing.
Whether or not that subsequent notice was before the Tribunal on 29 February 2024, the Tribunal could not have made a termination order on the basis of that notice as it was not yet in existence when the landlord commenced those proceedings on 6 November 2023. In any event, any termination application made in reliance on that notice could only have been made after the date for termination specified in the notice which was 20 March 2024: s 83(2)(a). This application was filed in November 2023 and decided in February 2024.
We do not consider the submissions regarding the subsequent termination notice advance the landlord's case.

Matters relevant to the Appeal Panel's discretion

The landlord has made various submissions regarding the tenant's behaviour, and the circumstances in which the Tribunal orders were made. It says that the tenant is currently precluded by his bail conditions from residing at the premises and that regardless of the tenant's bail conditions, it would still not be appropriate for the tenant to reside at the premises considering the serious nature of his breaches, the apprehended violence orders, and the concerns for the landlord's other tenants in the complex.
It also says that the Tribunal made the termination order in the tenant's presence, with the tenant's consent (both written and oral), and in circumstances where the tenant had an opportunity to adequately put his case or ask any questions.
It also refers to the fact that there are nine tenants of the landlord in the building where the premises are located, and says there is a risk that if the tenant stays at the premises Mr Hanna will seek to terminate all nine tenancies.
We understand the landlord to be saying that these matters vitiate against the Appeal Panel exercising its discretion to allow the appeal. For the following reasons we do not agree.
Whilst we accept that there are serious allegations about the tenant's behaviour and how it impacts on the tenant's neighbours, those matters have not been properly ventilated in the Tribunal. There have been no directions made for the exchange of evidence and submissions in relation to the landlord's claim, and there has been no substantive hearing. In this regard the matters which would need to be considered by the Tribunal include not only whether the tenant has breached the agreement and whether a notice of termination has been validly issued, but also whether the circumstances of the case justify termination. Moreover, in considering whether to make a termination order for a social housing tenancy, the Tribunal is also required to have regard to the additional matters set out in s 154E of the RT Act. None of these matters have yet been the subject of evidence or submissions in the Tribunal. In our view it would be inappropriate for the Appeal Panel to effectively circumvent the Tribunal's usual processes by allowing the decision to stand, particularly in circumstances where there are concerns about the tenant's mental health. We would add that allowing the appeal does not deprive the landlord of its ability to commence fresh proceedings in the Tribunal seeking termination of the tenancy under relevant provisions of the RT Act, if there are grounds available to it.
With regard to the landlord's other tenants in the building, there is no evidence as to Mr Hanna's intentions with regard to those tenancies.
We have already addressed some of the concerns we have about the scope of the tenant's consent to the orders made by the Tribunal. It is also relevant that the tenant's consent was given in circumstances where the tenant was apparently not on notice that the landlord had not complied with s 87(2) of the RT Act, which meant that if the matter had proceeded to a formal hearing the only possible result would have been dismissal of the landlord's application.

Conclusion and next steps

For all of these reasons we are satisfied that we should exercise our discretion to allow the appeal and to set aside the orders of the Tribunal made on 29 February 2024. It is not necessary to address the other grounds of appeal argued by the tenant.
Given that the failure to comply with s 87(2) of the RT Act is a deficiency which cannot be waived under s 113, and deprives the Tribunal of jurisdiction to terminate the tenancy under s 87, it would be futile to remit the matter to the Tribunal for reconsideration. We are therefore making an order substituting the orders of the Tribunal with an order dismissing the landlord's application.

Orders

For the above reasons we make the following orders: 1. The Appeal Panel dispenses with a hearing of the balance of the appeal pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The appeal is allowed. 3. The orders made by the Tribunal on 29 February 2024 in 2023/00368232 are set aside, and in lieu thereof the respondent's application is dismissed.

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 June 2024

Residential Tenancies Act 1987(NSW)

At a glance

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