Davis v Anglican Community Services

NCAT Appeal Panel|2022-11-28

REASONS FOR DECISION

By Notice of Appeal filed 16 September 2022 Theresa Davis (Appellant) appealed against orders of the Consumer and Commercial Division of the Tribunal made on 31 August 2022 in tenancy proceedings brought by Anglican Community Services (Respondent).
The orders of 31 August 2022 relevantly provided that the Residential Tenancy Agreement between the Appellant and the Respondent was terminated pursuant to the provisions of s 87 of the Residential Tenancies Act 2010 (RTA).
By its Reply, the Respondent resisted the Appellant's appeal. The appeal was heard by the Appeal Panel on 28 November 2022. The Appellant appeared in person. The Respondent was represented by an officer or employee.

A preliminary matter

On 30 September 2022, the Tribunal stayed the operation of the order for possession until 5.00 p.m. on 12 October 2022 or the finalisation of the appeal, whichever event first occurred. The Tribunal's stay order was conditional upon the Appellant "not parking her vehicle on any part of the complex of which the premises which were the subject of the Residential Tenancy Agreement between the parties forms part".
The Tribunal further noted that the Respondent was "free at any time to make an application for the stay granted by these orders to be lifted, if a condition is not complied with or if there are any other sufficient grounds for doing so". The Tribunal added that: "For the avoidance of doubt, in the event the Respondent can produce probative evidence that the Appellant is in breach of the condition to the stay (occurring after today) the Appellant ought to expect that the Tribunal may set aside the stay".

Materials before the Tribunal

The Appellant relied upon her Notice of Appeal. The Notice of Appeal contained 20 grounds, one of which had within it 8 separate grounds. The Appellant sought leave to appeal on the basis that the decision of the Tribunal was not fair and equitable and was against the weight of the evidence. The Appellant did not file an outline of submissions. The Appellant produced photographs and other documents, some of which had been before the Tribunal at first instance, others of which appear to have been produced subsequent to the hearing at first instance.
Understandably in the circumstances, the Respondent did not file an outline of submissions in opposition to the appeal. The parties filed material in the stay proceedings which was before the Tribunal.
On 7 November 2022, the Appellant filed a handwritten submission in support of her appeal and/or the discharge of the stay of the orders of 31 August 2022. All of the material to which we have referred has been considered by the Appeal Panel.
Although this is an appeal from a decision of the Consumer and Commercial Division, given that the Appellant has been self-represented, the Appeal Panel has adopted the liberal approach to the articulation of her complaints to which the Appeal Panel referred in Ros v Commissioner of Police [2020] NSWCATAP 70 at [21] (Ros).

Principles governing the appeal

It is unnecessary to refer other than briefly to the well-established principles which govern the present appeal.
Pursuant to s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) the Appellant may appeal as of right on any "question of law". In Prendergast v West Murray Irrigation Limited [2014] NSWCATAP 69 at [13] the Appeal Panel recorded a non-exclusive list of "questions of law" being (citations omitted): "(i) whether there has been a failure to provide proper reasons; (ii) whether the Tribunal identified the wrong issue or asked the wrong question; (iii) whether a wrong principle of law had been applied; (iv) whether there was a failure to afford procedural fairness; (v) whether the Tribunal failed to take into account relevant (i.e. mandatory considerations); (vi) whether the Tribunal took into account any irrelevant consideration; (vii) whether there was no evidence to support a finding of fact; and (viii) whether the decision is so unreasonable that no reasonable decision maker would make it."
The principles governing the Appellant's application for leave to appeal are also not in doubt and require only brief reiteration.
As noted earlier, although a decision not involving an appeal against a decision of the Consumer and Commercial Division, the observations of the Appeal Panel in Ros are instructive for present purposes. The Appeal Panel there recorded at [22] that: "The jurisdiction to review merits is not predicated on the appellant identifying a question of law or persuading the Tribunal that there has been an error of law". By reference to the decision in Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel accepted in Ros that "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". The Appeal Panel reiterated at [23] the observations of the Appeal Panel in Collins 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."
As the Appellant has appealed from a decision of the Consumer and Commercial Division, Schedule 4, Part 6, clause 12(1) to the CAT Act applies to her application for leave to appeal in reliance upon "significant new evidence". We accept that the new evidence sought to be relied upon by the Appellant was not "reasonably available at the time the proceedings under appeal were being dealt with" (clause 12(1)(c)). The issue is whether that evidence establishes that the Appellant "may have suffered a substantial miscarriage of justice" in view of that new evidence.
The new evidence comprises photographs of the motor vehicles and/or persons in the parking areas of the complex in which the Appellant has been living. As will be seen, if accepted, at its highest, the further evidence could establish that the Appellant is not the only occupant of the complex who fails to comply with the parking regulations which apply to it. As will also be seen, if that is so, that does not establish that the Appellant may have suffered a substantial miscarriage of justice.

The reasons for the decision of the Tribunal at first instance

The Tribunal identified the evidence before it. That evidence has also been before the Appeal Panel. The Tribunal recorded [11]-[15] the relevant provisions of the RTA, which included the requirement that a tenancy notice comply with s 82 of the RTA , that a termination order is made pursuant to s 83 and s 87 of the RTA , that, as the landlord is a social housing provider, the Tribunal must consider s 154E of the RTA , that if a termination order is made, an order for possession must also be made (s 83(1)), and that as the Appellant's tenancy was a social housing tenancy, the suspension of the order for possession can only be up to 28 days unless the Tribunal finds exceptional circumstances exist to extend the order (s 154G).
The Tribunal set out the facts and circumstances of the proceedings [16]-[43]. Save in one important respect, there is ultimately little dispute with respect to most of the facts recorded by the Tribunal at first instance. Significantly, the Tribunal recorded [18] that the Appellant "has a disability which qualified her for the disability pension until 2 years ago when it was converted to the senior's pension. There is otherwise no evidence of her financial situation". Although the Appellant does not accept them, or that they were taken into consideration by the Tribunal, nothing to which the Appeal Panel has been referred casts doubt over the accuracy of those findings, or establishes that the Appellant's pension status was not taken into account.
The Tribunal recorded [19] that the tenancy the subject of the proceedings commenced on 11 October 2021 as a "periodic agreement", it not having a fixed term. The Tribunal recorded that the tenancy "never included a car parking space". The Appellant does not dispute that to have been the case.
The Tribunal found [20] that in March 2022 the Appellant purchased a car and: "immediately starting parking it in contravention of the Strata bylaws and the signage throughout the apartment block in which she resides. She has parked in the outside area that is reserved for service vehicles only, causing the landlord to pay to install bollards, then she parked in front of those bays blocking access to the service vehicle bays. She also regularly, and unapologetically, follows behind cars who have access to the underground parking floors through the boom gates, then parks in one of two bays reserved for residents to wash their cars. This is called the car wash bays. They are meant to be accessible for all residents who may wish to wash their cars at any hours. Alternatively she parks in visitor parking spots."
Nothing asserted by the Appellant in the appeal challenges any of those findings of fact. In substance, as frequently repeated by the Appellant during the hearing of her appeal, the Appellant claims to be justified in doing each of the things which the Tribunal found that she has done.
The Tribunal set out the history of attempts by the Respondent to secure the Appellant's compliance with the parking regulations of the complex in which the Appellant has been residing. Although the Appellant disputes that such measures have been taken with respect to other occupants that do what she does, it is not suggested that the Tribunal erred in finding as it did.
The Tribunal then referred to a number of specific controversial incidents [27]. These involved three identified residents of the complex, who set out in detail their allegations with respect to the parking of the Appellant's car in contravention of the parking regulations applicable to the complex. The Tribunal found [28] that "each of these incidents occurred" and that the female person described by each of the complainants was the Appellant. The Appellant denied having ever abused any of her neighbouring tenants, both before the Tribunal at first instance and the Appeal Panel. As the Tribunal at first instance recorded, the Appellant never denied the allegations made with respect to her parking. The Tribunal found that the Appellant had yelled at one resident "I don't give a shit, they can't do anything. I'll do what I want".
The Tribunal set out at [29] further reasons why it found that the complaints of the three residents to which it had earlier referred should be accepted. The Tribunal recorded at [29] that when "giving evidence in the hearing [the Appellant] was steadfast in maintaining that she should be able to park wherever she wants, whenever she wants, and pointed blame at others, not herself". Those findings concisely and accurately summarise the Appellant's submissions before the Appeal Panel. So do the findings of the Tribunal at [30] that the Appellant "believes she should be allocated a parking space with her social housing tenancy. She does not accept the waiting list regime the social housing landlord uses, which allocates car spaces based on need, as well as who applied first. Given there are many tenants with complex histories, it is important the landlord can allocate the limited car spaces to residents most in need of safety and protection. This includes victims of domestic violence".
The Tribunal recorded [31] the Appellant's claims that she is a victim of domestic violence, but did not accept that the Appellant was "in imminent danger of domestic violence by any person, whether the unidentified man the tenant claims she is scared of or any of his "friends" which she claimed "hang around Liverpool"."
The Tribunal then set out in a series of subparagraphs why it made those findings. Significantly, the Tribunal recorded that the only evidence that the Appellant had been a victim of domestic violence was "uncorroborated by any evidence at all". The Appellant's oral evidence was found to not be "convincing on any matter, and especially not about this". Nothing advanced by the Appellant in the appeal supports finding or inferring anything at variance with the findings recorded by the Tribunal, or the reasons for them.
The Tribunal recorded at [32] that it takes allegations of domestic violence "very seriously". The Appeal Panel also does. It is not insignificant that, although the Appellant has sought to adduce further evidence in the form of photographs assertedly depicting others confronting her in the carpark and/or parking their vehicles where they should not, no further evidence the Appellant sought to adduce in the appeal was directed to the absence of evidence with respect to her allegations about domestic violence.
The Tribunal also recorded at [32] that the Appellant "refuses to give any proof of domestic violence to the landlord who would be able to assess if this moved her up the waiting list". The Tribunal noted that the Appellant's application for the housing tenancy did not "include any reference to fear or safety concerns". Those absences of evidence continued in the appeal.
The Tribunal referred [33] to the medical evidence with respect to the Appellant's "mobility issues", which recorded that the Appellant "has a number of significant health conditions which has caused quite severe difficulties and restrictions to her mobility and day to day activities." As was the case at first instance, there is "nothing more" by way of medical evidence with respect to the Appellant's particular needs before the Appeal Panel.
The Tribunal recorded [34] that: "Prior to buying her current car in March, the tenant was given free transport with Anglicare to appointments and shops. She claimed this was insufficient but also that it made her life easier and stress free, but now the car issues have made her blood pressure "go through the roof" and she is very anxious and stressed about the constant notices about her improper parking. When asked why she did not then sell her car and return to the free transport arrangement she said she tried to but could not sell it. This answer was unconvincing."
The Tribunal found [35] that the Appellant's constant "sneaking into" the underground parking floor and insistence on parking in the residents' car wash space interfered with the "peace, comfort and privacy of her neighbours" and [36] that the Appellant's "aggressive conduct towards the three residents who complained about her improper parking interferes with their peace, comfort and privacy". As before the Appeal Panel, in her submissions at first instance the Appellant "complained about neighbours harassing her and that not enough investigation was done about that". For the reasons which it earlier recorded, the Tribunal reiterated its finding that the Appellant was "the aggressor not the three complainants".
The Tribunal considered [40] the Appellant's claim that if her tenancy was terminated she would be homeless. For the reasons which it advanced, which included that the Appellant "has placed no evidence before the tribunal about her financial situation", the Tribunal declined to make that finding. To the extent that this finding has been challenged, nothing to which the Appeal Panel has been referred, establishes that it was erroneous.
The Tribunal summarised its findings, and their legal effects, in its Reasons. Relevantly these included: 1. the Appellant had breached clause 16 of her agreement not to interfere with the peace, comfort or privacy of neighbours [44]; 2. the breach was sufficient to justify termination of the agreement [45]; 3. the breaches involved "aggression towards other residents and consistent improper parking for 5 months with no suggestion that she will cease doing so. The breaches continue despite many attempts to stop her improper parking including 4 formal notices on her car to stop the unauthorised parking, previous breaches in breach of Strata bylaws clause 66 and special condition 1 of the Tenancy Agreement and the Appellant's steadfast refusal to take any steps to remedy her breaches.
The Tribunal took into account [46] the provisions of s 154E of the RTA. The Tribunal found [48] that there were no exceptional circumstances which would allow the Tribunal to afford the Appellant longer than 28 days to return vacant possession of the premises to the landlord.

The grounds of appeal

In oral submissions the Appellant reiterated the essential complaints which she had agitated unsuccessfully at first instance. In substance, as frequently repeated by the Appellant in oral submissions, her complaints with respect to the purported termination of her tenancy were: 1. that her admitted continuing failure to comply with the parking regulations of the complex in which she has been living involved her doing no more than other occupants of the complex were doing; 2. the Appellant has health issues which make it unjust that her tenancy be terminated, and; 3. the Appellant is fearful of violence at the hands of a former unnamed partner at whose hands she alleges she has previously been a victim of domestic violence.
Permeating the Appellant's grounds of appeal, though not necessarily so expressed, are challenges to material findings of fact made by the Tribunal. Expressly or implicitly, a number of the grounds articulate "weight" challenges.
It is apparent from the Tribunal's reasons that the critical findings of fact recorded by it arose largely from statements made by the Appellant herself, or the absence of evidence to support such statements which ought to have been reasonably available if the Appellant's claims had substance, and the inconsistency between allegations made by the Appellant and such circumstantial evidence as was before the Tribunal.
The preference for the evidence of the three other occupants of the complex to which the Tribunal referred in detail in its reasons to that of the Appellant appears to result primarily from a "credit" finding. The Tribunal recorded at various places its difficulty in accepting the evidence of the Appellant and the basis of that difficulty. In Fox v Percy [2003] HCA 22 [2003] 214 CLR 118 (Fox v Percy) at [25] Gleeson CJ, Gummow and Kirby JJ said that: "The appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a Judge sitting alone, of that Judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and the conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowances in that respect"."
Their Honours added at [29] that in: "some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to competing inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect" to its own conclusion."
The Appeal Panel approaches the Tribunal at first instance's preference for the evidence of the three other residents of the complex in which the Appellant has been residing to that of the Appellant on the basis that, being a finding based on credibility, the Appellant must discharge the onus to which their Honours referred in Fox v Percy.
To the extent that other findings, not based upon credibility, are challenged by the Appellant, the observations of Barwick CJ in Edwards v Noble [1971] HCA 54 [1971];125 CLR 296 at 304 have application. His Honour there said that an appeal by way of rehearing was not "a retrial of the issues. The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do; but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position to the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not reverse the finding of fact unless it is convinced that it is wrong."
As is reasonably apparent, a number of the material findings of fact of the Tribunal at first instance were based on credibility. Importantly, none of those findings was based upon "demeanour", but on the more permissible basis of the matters to which we referred above. Put bluntly, the Tribunal focused on what he Appellant said, rather than how she said it. A number of material findings of fact made by the Tribunal were not based on credibility. We approach challenges to those findings of fact in the light of the observations of Barwick CJ to which we have referred.

Ground 1

Ground 1 of the Appellant's Notice of Appeal asserted that: "The Member erred in concluding that the tenant continuously drove around "Liverpool" during the day and that because she was able to do this, she would therefore be able to afford rent in the private market. The tenant had provided oral evidence to clarify that she did not continuously drive "around Liverpool". Instead, the Member made assumptions about the cost of fuel and its relation to the affordability in the private rental market."
Nothing to which the Appellant has referred to the Appeal Panel establishes that the finding with respect to the Appellant's driving around Liverpool was "wrong". The ground misstates the finding made by the Tribunal. The ability to drive as the Appellant herself said that she did was a factor to which the Tribunal was entitled to have regard when assessing the Appellant's claim that she could not afford to rent in the private rental market. The finding assumed relatively minor, and not inappropriate significance in the Tribunal's determination. The ground does not assert otherwise. Nothing to which the Appeal Panel has been referred establishes that this challenge has merit.

Ground 2

Ground 2 asserted: "The Member erred in assuming that the tenant was not terrified of her ex-husband because she chose to drive around Liverpool and read a book and have lunch at the park. The Member had no way of determining the degree of fear the tenant had in relation to her ex-husband and it is unclear as to how she was able to determine that driving around Liverpool, reading and eating at the local park meant that the tenant was not living in fear of her safety."
This ground materially misstates the findings of the Tribunal at first instance with respect to the Appellant's alleged fear of violence at the hands of a former partner, and the extensive and cogent reasons for that finding. The Tribunal took into account the Appellant's own evidence about her activities, in conjunction with the absence of evidence from the Appellant with respect to her fears, which the Tribunal recorded in detail in its reasons, in refusing to make the finding urged by the Appellant with respect to that issue. The Tribunal was entitled, as part of the evaluation of the Appellant's claim, to have regard to circumstantial evidence of the kind which it did with respect to the Appellant's own evidence about her driving. The Appellant alleged that she was in fear. She bore the onus of proof in that regard. The Appellant was found to have failed to establish her allegations. The Tribunal made no "assumptions" - it decided the issue on the evidence before it, which, in this instance, was essentially the Appellant's own evidence. This ground lacks merit.

Ground 3

Ground 3 asserted that: "The Member failed to consider the tenant's health condition was supported with the documents other than what was referred to in her orders as "page 18", in addition to the doctor's statement, the tenant also provided a disability mobility parking scheme card and made a statutory declaration."
The Tribunal recorded, accurately, all of those matters. This complaint appears to assert a failure to have regard to a material consideration. However, the Tribunal took this into account. The Appeal Panel has not been referred to any relevant evidence which the Tribunal has failed to have considered with respect to this issue. The weight appropriate to be given to the evidence in its evaluative determination was a matter for the Tribunal. If, although not expressly stated, this ground also involves a "weight" challenge, it fails. The Tribunal did not fail to afford the Appellant's health appropriate weight. This ground lacks merit.

Ground 4

Ground 4 asserted that: "The Member erred in finding that the tenant's conduct was abusive to her neighbours, despite the landlord's oral evidence in confirming that there was no way to corroborate or further support the allegation. The Member failed to take into account that the abuse allegations from her neighbouring tenants were unsupported and the Member made this order against the weight of evidence."
Each of these complaints misconceives the law. The Tribunal did not require corroboration of the allegations of the Appellant's neighbours in order to be able to make findings of fact with respect to their complaints. Each of the neighbours gave evidence, and were questioned or able to be questioned by the Appellant. The Tribunal was alive to the Appellant's claims with respect to their evidence. Unlike the Appeal Panel, the Tribunal had the benefit of seeing and hearing each of the neighbours, and the Appellant, give their evidence with respect to the disputed issues of fact. Nothing to which the Appellant has referred establishes that the findings of the Tribunal with respect to the Appellant's abusive conduct to her neighbours, whether or not made in reliance upon credibility, were wrong. This ground lacks merit.

Ground 5

Ground 5 asserted that: "The Member in her assumption that "the tenant does feel entitled to park wherever she wants, however she wants". There were no material facts to support that the tenant had any sense of false entitlement for this regard and that she had been unthoughtfully, parking wherever she pleased. On the contrary, Ms Davis provided in her written statement that she never parked in other people's car spaces."
This ground misconceives the findings of the Tribunal and the foundation for the findings. The inference that the Appellant feels "entitled to park wherever she wants, however she wants" was amply open to the Tribunal on the Appellant's own evidence. The Tribunal could have found beyond reasonable doubt that, by her words and actions, the Appellant revealed precisely that sense of entitlement. The Appellant's submissions before the Appeal Panel are underpinned by that same sense of entitlement. The fact that the Appellant may not have parked in "other people's car spaces" is irrelevant. The findings of fact with respect to the Appellant's unauthorised parking practices made by the Tribunal at first instance were amply open. This ground lacks merit.

Ground 6

Ground 6 asserted that: "The Member erred in finding the material fact that the tenant provided little evidence to support why she was unable to live with her family in Coffs Harbour and Western Australia. The tenant clearly indicated that her family was unable to accommodate her as they did not have any space in their home, and that her son was not in a position to off [sic] Ms Davis a home as he had recently separated from his partner."
This ground misconceives the basis of the Tribunal's decision. The Tribunal referred to, and accepted each of the matters to which the Appellant referred. The Tribunal's findings [38]-[39] record the Appellant's own evidence with respect to this issue. Not insignificantly, beyond the bald assertion that the Tribunal erred in finding that the Appellant "provided little evidence to support" her various claims, the ground does not identify any evidence which could "fill that gap". Moreover, the Tribunal did not find either that the Appellant would be able to live in any particular place or with any particular persons. The Tribunal simply found, largely in reliance upon the deficiencies in the evidence of the Appellant herself, that the Appellant failed to establish that she would be homeless if her tenancy was terminated. This ground lacks merit.

Ground 7

Ground 7 asserted that: "The Member erred in finding that the tenant's parking was the [sic] caused the landlord to pay to install bollards at the premises. There is no evidence to support that the landlord had installed the bollards as a direct response to the tenant's parking. Nor did the landlord make [sic] provide clear evidence to show that the bollards were installed shortly after the tenant started parking on the premises."
This ground does not attempt to identify on what basis it is asserted that the Tribunal could not accept the evidence of the Respondent both with respect to the installation of bollards at the premises or the reason for it. Nothing to which the Appeal Panel has been referred establishes that the findings of the Tribunal with respect to the installation of bollards, and the Respondent's reasons for doing so, were wrong. Moreover, although amply open to the Tribunal on the Appellant's own evidence, the finding was ancillary to the findings of fact which led to the making of the orders which gave rise to the present appeal. Whatever the Respondent's reasons for installing bollards, they did not cause or result in the Appellant continuing to breach the terms of her tenancy agreement. This ground lacks merit.

Ground 8

Ground 8 asserted that: "The Member erred in finding that the lengthy correspondence between the landlord and the tenant "clearly demonstrates how intractable the tenant is; that she refuses to comply with the Residential Tenancy Agreement terms, which include comply with the Strata bylaws and with special condition 1 in regards to vehicles". The Member incorrectly assumed that the communication between Ms Davis and her landlord was an act of defiance in breach of the agreement. The Member also fails to explain in her reasons, how she came to this conclusion."
The reasons for the Tribunal, read as a whole, leave the reader, and the Appeal Panel, in no doubt as to why these findings were made (see New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231).
The finding that the correspondence, taken in conjunction with the largely admitted evidence with respect to the Appellant's parking practices, amply supported a finding that the Appellant was "intractable" and refused to comply with the provisions to which the Tribunal referred. The Appellant's oral submissions in the appeal were entirely consistent with the finding that the Appellant has refused to, and will continue to refuse to comply with the parking requirements of her tenancy agreement and that she is "intractable" in that regard. This ground lacks merit.

Ground 9

Ground 9 asserted that: "The Member made an error in considering if the tenant were to be terminated, she would live somewhere else other than Liverpool. This is an irrelevant consideration and should not have been central to the Tribunal's inquiry and decision regarding the matter."
The internal inconsistency inherent in this ground is readily apparent. The ground misstates or misconceives the Tribunal's finding. The Tribunal simply failed to find that, if the Appellant's tenancy agreement were terminated, the Appellant would be homeless. It did not find, or need to find, that the tenant could live anywhere else. Even if the Tribunal had made such findings, as the Appellant submitted, these would have been irrelevant. Having not made findings in the terms asserted by the Appellant, these could not have been taken into account, much less being "central" to the Tribunal's decision. This ground lacks merit.

Ground 10

Ground 10 complained that: "The Member erred in giving substantial weight to the typed summary of the correspondence between Ms Davis and the landlord (provided in the landlord's evidence bundle). The summary was not supported with evidence in the original format."
Nothing to which the Appeal Panel has been referred establishes that the summary could not be safely relied upon by the Tribunal on the basis that it was incomplete, inaccurate or misleading. The Appeal Panel has not been referred to anything establishing that the summary was challenged before the Tribunal on any of those grounds. The Tribunal gave the correspondence "weight" as it was entitled to. Nothing to which we have been referred establishes that the Tribunal afforded the correspondence excessive weight. The correspondence supported the findings of the Tribunal with respect to both the facts with respect to the Appellant's parking practices and the inferences with respect to her intractability in that regard. This ground lacks merit.

Ground 11

Ground 11 asserted that: "The Member also erred in finding that the landlord had made enquiries with the police in regards to the stalkers and vehicle sabotage. Apart from the typed summary, the landlord tendered no further evidence to support this claim. There was no substantial evidence to support the Member's finding that Ms Davis' claims were "factitious"."
Nothing to which the Appeal Panel has been referred establishes that this, or indeed any other relevant recording or reporting by the Respondent was incomplete, inaccurate or misleading, or was disputed before the Tribunal. Contrary to the Appellant's contentions, nothing to which the Appeal Panel has been referred establishes that the finding of the Tribunal with respect to enquiries with police was wrong. On the contrary, the fact that the Respondent made such enquiries suggests that the Respondent took seriously the Appellant's asserted fears and made genuine attempts to have them investigated. Not insignificantly, the Appeal Panel has not been referred to any evidence from the Appellant that she ever approached the police with respect to her fears of violence at the hands of a former partner. From the circumstances, it was open to the Tribunal to find that the Appellant's claims was not made out.
The assertion that the Tribunal regarded the Appellant's claims with respect to her fears as "factitious" is misconceived. The Tribunal did not make such finding. What the Tribunal found [32] was that, if her claims had substance, the Appellant would have had "ample documentation about the circumstances of the offending and any of it could have been provided to assist the tenant's case, in particular she could have provided to her landlord to support her application for a car space. She also refuses to give any proof of domestic violence to the landlord who would be able to assess if this moved her up the waiting list as explained earlier". The Appeal Panel has not been referred to anything which establishes that any of those findings was wrong or not open to the Tribunal.
The Tribunal also recorded [31(a)] that the Appellant did not disclose "who the offender was and could not or would not say how long ago she had been the victim of domestic violence". That finding was undoubtedly open to the Tribunal. This ground lacks merit.

Ground 12

Ground 12 asserted that: "The Member erred in finding that the tenant abused or caused a and [sic] interference with the neighbours peace and comfort as landlord did not offer any police reports to support the claims of abuse by the neighbouring tenants. The Member does not provide reasons to show how she was able to conclusively accept that all of the complainants were referring to Ms Davis in their emails and not another tenant at the premises."
The absence of police reports did not preclude the Tribunal from making the findings it did with respect to the complaints of the three neighbours of the Appellant who gave evidence. There was a clear conflict of testimony between the Appellant and her neighbours. For reasons which it adequately revealed, which were cogent, the Tribunal preferred the evidence of the neighbours to that of the Appellant. The authorities discussed earlier in these reasons have application to this ground.
The complaint that the Tribunal failed to provide reasons for finding that the Appellant had been involved in those incidents and "not another tenant at the premises" is disingenuous. Nothing to which the Appeal Panel has been referred suggests, much less establishes, that the Appellant disputed that she was the person in question. The Appellant's own case, both at first instance and before the Appeal Panel, was clearly that there were incidents involving each of the three witness who gave evidence before the Tribunal, her position being that their allegations against her were false. This ground lacks merit.

Ground 13

Ground 13 asserted that: "The Member erred in finding that incidents of aggressive behaviour occurred at the property because the tenant did not deny any of the allegations. On the contrary, Ms Davis' statement clearly denies any abuse towards her neighbours and it is further reiterated in her representative's submissions. The landlord failed to tender and [sic] document to support the allegations made by the neighbouring tenants."
This ground misstates the Tribunal's findings. The Tribunal was clearly aware of, and its reasons were careful to differentiate between the Appellant's admissions or failure to deny that she consistently parked her motor vehicle in breach of the parking requirements of the premises, on the one hand, and her denials with respect to the allegations of threatening or harassing behaviour by the three neighbours who gave evidence before the Tribunal on the other. The Tribunal did not anywhere find that the Appellant did not deny the alleged "incidents of aggressive behaviour". As the Tribunal's reasons confirm, the Tribunal gave proper, genuine and realistic consideration to that disputed issue (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33), made findings with respect to it, and provided adequate and cogent reasons for finding as it did with respect to them.
The complaint with respect to the absence of documents to support the allegations of the neighbours is misconceived. It is clear that the issue involved competing claims with respect to the various incidents. It would be remarkable if, other than of a self-serving nature, any party to those incidents could have produced and tendered any document which was probative of that person's version of events. As with earlier challenges to the finding of fact of the Tribunal at first instance, nothing to which the Appellant has referred establishes that such findings were wrong. This ground lacks merit.

Ground 14

Ground 14 asserted that: "The Member erred in assuming that the tenant does not accept the waiting list regime applied to the parking at the premises. The Member's assumptions were not supported by any verbal or written evidence conferring Ms Davis' acceptance of the landlord's waiting list regime."
The Tribunal inferred that, by her conduct, the Appellant did not accept the waiting list regime applicable to parking at the premises applied to her. If she had, the Appellant would not have persisted with her conscious breaches of those parking requirements. As the Appellant's submissions to the Appeal Panel confirmed, the Appellant does not accept that, unlike other tenants, she should abide by the waiting list regime in place at the premises. The Tribunal made no "assumptions" about this matter. It inferred, as it was amply entitled to, that the Appellant did not accept that the waiting list regime applies to her. Those inferences were amply open on the Appellant's own evidence. This ground lacks merit.

Ground 15

Ground 15 asserted that: "The Member erred when she made the assumption that the landlord only allocated parking spaces to those residents who were most in need for safety and protection. There is no evidence to support the landlord's decision making process when allocation [sic] car spaces and no indication of a required criteria be accepted on if [sic] the applicant was in need for safety and protection. The standard form provided by the landlord also shows no reference to the requirement of "safety and protection" as part of the application process for the parking regime. At the time of the hearing, the landlord submitted oral evidence to confirm that there were 7 other applicants on the waiting list. No further evidence was provided to support the Member findings."
The substance or merits of the Respondent's "decision making process when allocating car spaces" was, in the absence of any suggestion, and there was none, that the Respondent was deliberately and unreasonably preferencing other applicants for car parking spaces over the Appellant, or unfairly declining to allocate her a car space cannot advance the Appellant's case.
The Tribunal made a number of findings, in reliance upon the Appellant's own evidence, or absence of evidence with respect to the issue, that the Appellant had failed or refused to provide any proof of the matters which, had she done so, may have inclined the Respondent to either allocate her a parking space in the premises or advance her up the list of applicants awaiting allocation of a parking space.
Nothing to which the Appellant has referred the Appeal Panel establishes either capriciousness, bias, discrimination or any absence of bona fides on the part of the Respondent with respect to the allocation of parking spaces. The Appellant's own submissions refer to 7 other applicants on the waiting list. Nothing to which the Appeal Panel has been referred establishes that the Appellant has a more compelling claim than any or all of those other applicants. This ground conveniently overlooks the evidence before the Tribunal with respect to the efforts made by the Respondent to obtain evidence which may have supported the Appellant's asserted fears, and the failure or refusal of the Appellant to provide to the Respondent evidence which, if her claims had substance, would have been available. Having regard to the findings of fact recorded by the Tribunal, no further evidence was required to support its findings. This ground lacks merit.

Ground 16

Ground 16 asserted that: "The Member erred as she failed to take into account why the tenant chose not to sell her car and rely on the free transport provided by Anglicare. Ms Davis provided oral evidence to support that the 2 hours per/week transport was insufficient for her needs as she was not able to complete her grocery shopping and make her specialist appointments."
The Tribunal referred [34] to this issue. No finding made by the Tribunal has been shown to be wrong. Nothing to which the Appellant has referred the Appeal Panel establishes that she ever requested further assistance with transport. As the Tribunal recorded, and was open to it to record at [40], the Respondent advised the Tribunal that it "would assist the tenant to find temporary transition housing" if the tenant accepted such help. This ground also overlooks the basis upon which the Appellant asserted that she had not sold her car and that "she tried to but could not sell it" [34]. Albeit the Tribunal found that her answer "unconvincing", it makes clear that the Tribunal took into account each of the matters complained of pursuant to this ground. This ground lacks merit.

Ground 17

Ground 17 asserted that: "The Member erred in assuming that the tenant would not be homeless if the tenancy were to be terminated because she was able to purchase a car. There is no evidence to support the Member's findings as the landlord failed to tender any evidence or submissions regarding this."
Apart from the obvious reality that the Respondent could not have, and did not need to, "tender any evidence or submissions" with respect to the Appellant's financial circumstances, the Tribunal did not assume or find that the Appellant would not be homeless "because she was able to purchase a car". The Tribunal recorded, amply and cogently, the absence of evidence from the Appellant with respect to her financial circumstances. Whether that was deliberate or inadvertent is irrelevant. The reality is that the Appellant chose to present no evidence whatsoever of her financial circumstances. To the extent that the Appellant gave evidence about the reasons for not selling her car, or where she could or might live, in reliance upon her past history of housing and other matters of financial relevance, the Tribunal found that evidence to be inconclusive and/or unconvincing.
The Tribunal found [40] that the Appellant would "unlikely be homeless" if her tenancy agreement were terminated. The Tribunal set out, amply and cogently, why it made that finding. The terms of the finding are instructive. The Tribunal did not find that the tenant would not be homeless but rather that it was "unlikely" that she would be. Moreover, it was for the Appellant to establish, on the balance of probabilities, that she would be homeless if her tenancy agreement were terminated. The Respondent did not bear an evidentiary or persuasive onus of establishing that the Appellant would not be homeless if her tenancy agreement were terminated. Particularly in circumstances where the Appellant failed or refused to make any relevant financial disclosures, the Respondent could never have discharged such an onus. This ground lacks merit.

Ground 18

Ground 18 asserted that: "The member erred in assuming that the tenant "thinks she should be entitled to a parking spot above all other residents" and Ms Davis continued to breach the agreement "persistently and unapologetically". There is no evidence to support that [sic] this assumption."
This ground is entirely disingenuous. If advanced by a legal practitioner, it would invite strong criticism. The Appellant's own evidence before the Tribunal was that she continued to breach the parking regulations of the premises "persistently". As the Appellant did not accept that what she was doing was in any way impermissible, she was "unapologetic" about her conduct. The Tribunal was amply able to make the findings it did in that regard. On the evidence before it, any contrary findings would have been perverse. The inference that the Appellant thought that she should be entitled to a parking spot above all other residents was also amply open to the Tribunal. The Appellant knew, before she entered the tenancy agreement, that she had no right to park a vehicle within the premises. From the moment she acquired a car in March 2022, the Appellant, on her own evidence, consistently and persistently parked within the premises, doing so by the means which she "unapologetically" confirmed in her evidence before the Tribunal. This ground lacks merit.

Ground 19

Ground 19 complained that: "The Member also erred in finding that the many of the complainants were tenants with Anglicare and have complex trauma backgrounds. On the contrary, the complainants are private landlords that reside in the same complex. There is no further evidence to support the Member's findings of tenants who have complex trauma backgrounds in the complex and who therefore may be intimidated by Ms Davis' driving."
This ground erroneously conflates two quite separate and distinct topics. The Tribunal did not find or misconceive in any way the identity of the three tenants who gave evidence with respect to incidents involving the Appellant. The Appeal Panel has not been referred to any suggestion or evidence before the Tribunal that there were no tenants living within the premises who have "complex trauma backgrounds". The inference that such persons may be intimidated by the Appellant's proven conduct was amply open to the Tribunal.
Apart from any absence of challenge to the accuracy or reliability of what was said in that regard, the officer who informed the Tribunal that there were occupants with complex trauma backgrounds was in a position to make those statements. The Tribunal recorded, as was open to it, that, as a social housing provider, it was likely that the Respondent would have occupants of the premises who had such backgrounds. This ground lacks merit.

Ground 20

Ground 20 asserted that: "The Member erred in failing to consider that the tenant had paid her rent on time and provided supporting evidence on page 22 of her evidence bundle. The Member did not make any notation of this fact in her decision."
The Tribunal did not find, either as a fact, or as a basis for terminating the tenancy agreement, that the Appellant had not paid her rent. The findings of the Tribunal [41] recorded that the tenant "pays" at least $300 per week rent for her premises. To the extent that it was relevant, which it was not, the Tribunal recorded that the tenant paid her rent. The assertion that there was no "notation of this fact" in the Tribunal's decision is erroneous. This ground lacks merit.

Leave to appeal

Under the heading "Application for leave to appeal", the Appellant reiterated some of her earlier complaints. Beyond asserting that the Tribunal's "unorthodox method of fact finding and decision making" visited a "clear injustice" upon the Appellant, nothing was advanced in support of the application. If genuine, this complaint is entirely without support. In clearly difficult circumstances, the Tribunal at first instance carefully engaged with each and every relevant issue, made findings of fact, provided reasons for such findings of fact, and arrived at a logical decision by faithful adherence to the principles which governed the proceedings. The Tribunal's "method of fact finding and decision making" accorded entirely with orthodoxy in our view.
Similarly, under the heading "Decision not fair and equitable", other than reiterating earlier complaints, the Appellant advanced nothing of relevance in support of her application. As recorded earlier, the complaint that the Tribunal failed to consider "the undisputed evidence regarding domestic violence" is disingenuous. For whatever reason, the Appellant produced no documents with respect to her allegations of domestic violence and, as the Tribunal carefully recorded, refused to reveal details of the identity of the person of whom she alleged she was in fear, or adduce evidence of having gone to the police to complain about this person or having provided information to the Respondent to pursue her allegations.
Similar observations apply to the complaint with respect to the failure to consider documents relating to the Appellant's "disability and health". The assertion that the Tribunal's decision involved "the exploitation of irrelevant factors" leading to a miscarriage of justice is not supported by anything to which the Appeal Panel has been referred, and should not have been made.
Under the heading "Decision against the weight of evidence" at [7], the Appellant identified a number of matters. To the extent that any of those matters, if accepted, would establish an entitlement to leave to appeal, each of them is predicated on either successful challenges to findings of fact of the Tribunal which we have earlier rejected, or matters involving either misconceptions or disingenuous assertions. A good example is the complaint that "there was no evidence to show that the Respondent had engaged with the police and the police had investigated the alleged harassment caused by the tenant". The Appellant did not assert that she had "engaged with the police" nor did she assert that she had provided any information to the Respondent with which it might have sought to do so. The finding of the Tribunal was irresistible in those circumstances. The Tribunal recorded, as was open to it, the efforts of the Respondent to pursue the Appellant's alleged concerns about domestic violence. Having rejected each of the Appellant's challenges to the findings of fact raised by her 20 grounds of appeal, there is no basis for finding that the Appellant may have suffered a substantial miscarriage of justice on any of the grounds asserted by her.
Beyond arguably demonstrating that there have been further incidents involving the Appellant and other occupants of the premises, the further evidence upon which the Appellant sought to rely does not assist her case. Indeed, inherent in that evidence is that the alleged confrontations arose out of the Appellant's actions in persisting with parking her vehicle in the premises despite her admitted absence of any entitlement to do so. To the extent that, as the Appellant repeatedly complained during the hearing of her appeal, the photographs show that other occupants of the premises are impermissibly parking vehicles within them, put simply "two wrongs don't make a right".
Presumably, and consistent with its rights and obligations, the Respondent has taken, or is taking appropriate action with respect to any other persons who are impermissibly parking within the premises. To the extent that the Appellant's complaints assert that she has been discriminated against by the Respondent, nothing to which the Appeal Panel has been referred provides support for so finding or inferring.

Conclusion

No ground of appeal has merit and no basis for leave to appeal has been enlivened. The appeal will be dismissed. The Tribunal will reserve the Respondent's costs of the appeal. The stay of the orders of the Tribunal at first instance having been discharged in the circumstances we have earlier described, there is no stay to discharge, and no impediment to the Respondent enforcing the orders which gave rise to this appeal.

Order 1. The appeal is dismissed. 2. Leave to appeal is refused. 3. Costs are reserved. 4. Any party seeking an order for costs file and serve written submissions not exceeding 5 pages in length in support of such application within 21 days. 5. A party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 42 days. 6. Any party opposing an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 file and serve written submissions in support of such opposition within 42 days.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2022

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Judgment (30 paragraphs)

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