El Amami v Perkins

NCAT Appeal Panel|2019-05-09

REASONS FOR DECISION

By Notice of Appeal filed on 16 April 2019 the appellant appeals a decision of the Tribunal identified in the Notice of Appeal as having been made on 9 April 2019. In fact the orders made on 9 April involved the refusal of an application made pursuant to reg 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 (NSW) to set aside a decision made on 4 March 2019 in the absence of the appellant.
The orders of the Tribunal made on 4 March were, in summary, that a residential tenancy agreement made between the appellant as tenant and the respondent as landlord be terminated in accordance with section 87 of the Residential Tenancies Act 2010 ("the RTA"). Termination was found to be justified on the basis that the appellant had breached the agreement by failing to pay rent in accordance with the agreement. The Tribunal found, in accordance with section 89 (5) of the RTA, that the tenant had frequently failed to pay rent owing in respect of the leased residential premises.
The Tribunal ordered that the residential tenancy agreement be terminated immediately and possession of the leased premises be given to the landlord on the date of termination. However, the order for possession was suspended until 11 March 2019. The Tribunal ordered: "5. The tenant shall pay the landlord a daily occupation fee at the rate of $39.29 per day from the date of termination, namely 5 March 2019, until the date vacant possession is given to the landlord."
The Tribunal ordered the appellant to pay the landlord arrears of rent in the amount of $1,453.73.
The Tribunal also ordered: "The landlord's agent is to advise a tenant in writing by the delivery of a letter to the premises by 6 pm on 4 March 2019 of the orders made today, and by email to the tenant's email address by 12 pm on 4 March 2019."

Events subsequent to Tribunal orders

The appellant's application to set aside the orders made on 4 March 2019 was dated 6 March 2019. The appellant indicated that he wished to have a new hearing, claiming that he received no notification of the date of the hearing and that he was therefore unable to attend.
The applicant claimed that he has privacy issues and manages his own postbox. The applicant alleged that the subject property had been illegally subdivided and that the postbox : "is in fact worthless inasmuch as my "address" given to me by way of rental does not exist furthermore as such does not exist in the address list of the post office. Therefore much of my mail goes undelivered. I belive (sic) this has obviously impacted on my rights during this trail (sic) not least my right to notification, I write to be herd (sic), right of due process, being just some of them.".
An application under reg 9 must be made within 7 days of the decision sought to be set aside or varied (reg 9(3)). Although the copy of the application to set aside included in the appeal papers did not indicate when it had been filed, it is apparent that it had been filed within time as, on 12 March 2019, in response to the application, the Tribunal stayed the orders for termination and possession until further order and directed that each party make submissions in respect of the application.
The managing agent of the respondent provided information to the Tribunal by email dated 26 March 2019. That email records that there had been a long history of correspondence with the tenant by email to the email address he had provided. Further, the managing agent stated that the letterbox of the tenant was clearly visible and marked with the address of the property. The managing agent stated that the appellant had never had any problems receiving correspondence in the past concerning previous hearings he had attended. The managing agent also asserted that the appellant had been written to on numerous occasions concerning his arrears of rental and that all correspondence had been directed to him as previously.
On 9 April 2019 the application to set aside or vary the decision was dismissed. Relevantly, the decision to refuse to set aside the decision included the following: "Although the orders were made in the absence of the applicant, and the Tribunal is satisfied that the party's absence resulted in the case not being adequately put to the Tribunal, in the exercise of discretion the Tribunal is not satisfied that there is a real likelihood that it would be unjust to let the decision stand because: The landlord gave the tenant a notice of termination on 11/2/19. The tenant was more than 14 days in arrears on that date. The breach alleged in the notice has been established (ie non-payment of rent in accordance with the tenancy agreement). The breach in the circumstances of the case justifies an order of termination. On the day of hearing (4/3/19) the tenant owed the landlord $1453.73 in rent. On 26/3/19 the tenant owed $2242.67 in rent and occupation fees. The tenant has not vacated the premises. The landlord is entitled to possession. The orders made on the 4/3/19 are just, fair and reasonable. The stay order made in matter number RT 19/08268 on 12/3/19 is lifted."
After the appellant filed his appeal the Appeal Panel ordered that the execution of the warrant for possession of the premises be stayed and the order for possession be suspended until further order, on condition the rent or the balance of rent was paid to the landlord before 24 April 2019; the occupation fee for the period 5 March 2019 to 24 April 2019 was paid to the landlord on or before 24 April 2019; and the occupation fee of $39.29 per day was paid weekly in advance, the first payment to be made on or before 24 April 2019 and thereafter weekly in advance. The Appeal Panel gave the landlord leave to apply to lift the stay and the suspension order in the event that those conditions were not complied with.
The tenant did not meet those conditions and the landlord made application to lift the order suspending the order for possession. That application was listed for hearing on 2 May 2019 on which occasion the stay was lifted. We were informed by the appellant at the hearing of the appeal that a warrant had been executed and he was no longer living at the premises.

The Appeal

The notice of appeal challenges the orders made and the order for possession. In that regard it is apparent that the appellant seeks to challenge the orders made on 4 March 2019 as well as the orders made on 9 April 2019.
In respect of the grounds of appeal, the appellant claims that he had a right to "due process, right to a fair hearing," a right to be heard and "most importantly right defence and to be informed have been denied and lie in tatters". The appellant claims that there was no reference in the decision to any applicable law or its application; that the decision was contrary to the rule of law, was "enacted without jurisdiction", and was obtained against the weight of evidence and obtained fraudulently.
The appellant claims that the orders should be set aside and seeks other orders which are unintelligible. The appellant acknowledges that he requires leave to appeal.

Reply to Appeal

The landlord included with her Reply to the Notice of Appeal the rental ledger in respect of the premises occupied by the appellant which showed that as at 17 April 2019 the arrears amounted to $3067.67.

Appeal hearing

The hearing of the appeal took place on 9 May 2019. The appellant attended by telephone. The landlord was represented by Ms Baker, her managing agent, and also by her father who tendered written authority from his daughter to attend and make submissions.
The appellant provided written submissions which reiterated his claim that, as he did not have a postbox, he did not receive notification of the hearing. The appellant stated that he was having health issues; and that he had had to have new locks placed in the windows to make himself feel safe. He claimed that he had a cross claim but no written information was provided to support or quantify any such claim. The appellant did not dispute the non-payment of rent. In his oral submissions, the appellant reiterated his claims that he had not received notification of the hearing; that he had a cross claim, and that he had been treated unfairly. The appellant also submitted that the leased premises had been sub-divided illegally and that, for that reason, the landlord could not claim rent in respect of the premises.
The respondent confirmed that the rental arrears had not been paid, nor had any occupation fee been paid. The rental ledger included with the landlord's reply established that the appellant had been in arrears in the payment of rent consistently since June 2017.

Observations

The Appeal Panel observes that the Notice of Appeal nominates the decision appealed from as that delivered on 9 April 2019 which was the decision refusing to set aside the orders for possession. The Notice of Appeal did not explicitly seek to appeal from the original decision of the Tribunal which directed that the tenancy be terminated immediately. Nevertheless, as the grounds of appeal are directed to the original decision, we will treat the appeal as an appeal against both decisions.
The Notice of Appeal was filed on 16 April 2019. That was within the prescribed time limit for matters under the RTA in respect of the set-aside decision. However, since the original decision of the Tribunal was made on 4 March 2019, the appellant would require an extension of time under section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to appeal against the original decision.
The grant of an extension of time is discretionary: see Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [72] - [74]; and Jackson v Land and Housing Corporation [2014] NSWCATAP 22. The appellant has produced no evidence nor has he made any submissions in support of the grant of an extension of time.
The appeal before the Appeal Panel is an internal appeal and governed by section 80(2)(b) of the NCAT Act. That section provides that the appellant may appeal on a question of law and otherwise with leave of the Appeal Panel. To the extent the appellant alleges a breach of procedural fairness or a want of jurisdiction in the Tribunal, those issues would raise a question of law (Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]).
However we observe that there is nothing in the appellant's Notice of Appeal or submissions, either written or oral, which could establish that the appellant had been denied procedural fairness or that the Tribunal was without jurisdiction to determine the landlord's application.
The Tribunal clearly had jurisdiction to determine the residential tenancy dispute, and make orders terminating the tenancy and for occupation of the premises and for payment of arrears of rent and an occupation fee, pursuant to ss 83, 88, 114, 123(4) and 187 of the Residential Tenancies Act 2010 (NSW).
Although the appellant was not present at the hearing, the NCAT Act and regulations explicitly recognise that orders may be made in such circumstances and makes provision (in Reg 9(1)(h)) for the Tribunal to set aside an order made in the absence of a party. The appellant made application for such an order and was given the opportunity to make submissions on the application. It cannot be said the appellant was denied procedural fairness.
Accordingly, as the appellant does not identify any other alleged error of law but rather claims that the decisions were not fair and equitable, the leave of the Appeal Panel is necessary before the appellant may pursue the appeal.
As this is an appeal from the decision of the Consumer and Commercial Division of the Tribunal by virtue of Clause 12 of Schedule 4 to the Act, the Appeal Panel may grant leave under section 80(2)(b) only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles applicable to the grant of leave to appeal were set out in Collins v Urban [2014] NSWCATAP 17. At [84] of Collins, the Appeal Panel stated the general principles as follows: an applicant for leave 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; leave will usually only be granted in matters involving issues of principle. Other examples which might result in a grant of leave include matters that involve: questions of public importance; 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; a factual error which was unreasonably arrived at and clearly mistaken; or 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. Further, at [76]-[79], the Appeal Panel accepted that a substantial miscarriage of justice may have been suffered in the circumstances referred to in cl 12 (1) (a), (b), or (c) of Schedule 4 to the NCAT Act where there is a significant possibility, or a chance which is fairly open, that a different and more favourable result would have been achieved for the appellant had the relevant circumstances referred to in those sub-paragraphs not occurred.
A grant of leave lies in the discretion of the Appeal Panel. The exercise of that discretion is guided by the decision in BHP Billiton Ltd v Dunning [2013) NSWCA 421 at [19] and also the leading authorities in this Tribunal namely Collins v Urban (above) and Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45].

Findings

In the appellant's application to set aside the orders of the Tribunal, he made allegations that he did not receive the notice of the hearing before the Tribunal. However, the appellant did not complete the Statutory Declaration attached to his application verifying such facts. Accordingly neither the Tribunal considering the application to set aside nor the Appeal Panel had sworn evidence that the appellant did not in fact receive notice of the original hearing, beyond the appellant's bare assertion. We also note that the material provided by the landlord confirms that correspondence has been sent to the appellant previously without difficulty; and that the appellant has a clearly marked letterbox. A photograph was attached to the landlord's submissions which showed the letterbox with the nominal address of the leased premises clearly indicated on the front.
Nevertheless, the Member who determined the set aside application did not refuse the application on the basis that the appellant had not shown he did not receive notice of the hearing. Rather, the application was refused because the appellant had not shown that there was any reason to expect that, if the appellant were given a hearing, the result would be any different.
On the material before the Appeal Panel the conclusion of the Tribunal was clearly correct.
We observe that the appellant does not dispute that he has not paid the rent claimed by the landlord, the non-payment of which was the basis of the termination of the lease.
The appellant sought to suggest that his occupation of the premises was illegal and that on that basis he could not be liable for rent. The apparent basis for that allegation is that the "property has been illegally subdivided".
We do not consider that those submissions could be well founded. The term "sub-division" is defined in s6.2 of the Environmental Planning and Assessment Act 1979 (NSW) so as not to include: "(a) a lease (of any duration) of a building or part of a building".
Moreover, pursuant to the Residential Tenancies Act a residential tenancy may be granted over a part of a premises (see the definition of "residential premises" in s3(1), and ss 13(3)(a) and 49(2)). Such a residential tenancy agreement would not constitute a sub-division of the property. Accordingly, to the extent the appellant seeks to rely upon the alleged "illegal subdivision" of the respondent's property, he cannot succeed.
Further the appellant has put forward no evidence to establish any illegality. The appellant did produce correspondence, apparently from Australia Post, stating that the address used for the premises was "not a valid delivery point and…not recognised in Australia Post's delivery system" and an email from "Vicki" at Service NSW confirming that the address of the premises had been changed in April 2017 and corrected on 4 March 2019 and recording "it isn't on the system and we do have to manually enter the address".
In respect of these documents we note, firstly, that they were not put before the Member considering the set aside application and nor has the appellant suggested that those documents were not reasonably available to him at the time of the initial hearing or the set aside application. More significantly, however, neither document establishes that the leasing of the premises to the appellant or his occupation of those premises constitutes an illegal sub-division or demonstrates any other form of illegality.
Moreover even were it the case that the property had been illegally subdivided, it would not necessarily follow that a residential tenancy agreement over part of the property was void. The Supreme Court of New South Wales has considered the issue whether the fact that the use for which premises have been let was illegal would disqualify a landlord from claiming rent.
In Australian National Car Parks Pty Ltd v State Rail Authority of NSW [2005] NSWSC 120, a lease provided that the leased premises were not to be used otherwise than for car parking purposes. That use was not permitted under planning legislation. The Court (Malpass M) found that the relevant statutory planning provisions did not expressly prohibit the making of such a tenancy agreement, or make it void: see paragraph [21].
In Australian International Academy of Education Ltd v Taluja [2011] NSWSC 647, Ball J, in considering whether a lease was unenforceable as constituting a subdivision, contrary to the Environmental Planning and Assessment Act, said at [66]: "the EPA Act does not expressly address the enforceability of agreements that involve a breach of the Act. Whether the Act has that effect depends, then, on its proper construction. As Mason J explained in Yango Pastoral Co Pty Ltd V First Chicago Australia Ltd (1978) 139 CLR 410 at 423: 'The principle that a contract the making of which is expressly or impliedly prohibited by statute is illegal and void is one of long standing but it has always been recognized that the principle is necessarily subject to any contrary intention manifested by the statute. It is perhaps more accurate to say that the question whether a contract prohibited by statute is void is, like the associated question whether the statute prohibits the contract, a question of statutory construction and that the principle to which I have referred does no more than enunciate the ordinary rule which will be applied when the statute itself is silent upon the question.' Where the statute is silent, the court will, in determining whether on its proper construction the statute renders the relevant contract void, take into account matters such as the purpose of the legislation, whether the legislation expressly prohibits the conduct in question, whether the legislation provides for the consequences of breach and the consequences for the parties if the legislation does have the effect of rendering the contract void."
After referring to Australian National Car Parks v State Rail Authority, Ball J said: 70 In my opinion, the approach taken by Malpass M should be applied in this case. Although earlier authorities suggest that a lease involving use of premises contrary to planning laws is unenforceable, as Giles J pointed out in Bawofi Pty Ltd v Comrealty Ltd (1992) NSW ConvR 55-646, those decisions were handed down before the decision of the High Court in Yango Pastoral Co; and that were taken in relation to legislation that has been superseded by the EPA Act. 71 The EPA Act treats subdivision as a form of development. It is not generally concerned with agreements. It is concerned with the way in which land is used. It provides a comprehensive structure for regulating that use. As part of that structure it permits local authorities to specify particular uses which may be the subject of consent. If land is used in a way that is inconsistent with the consent that is given or in the absence of consent, the Act gives local authorities and others broad powers to ensure that the objectives of the Act and relevant subordinate legislation are met. In exercising those powers, the local authorities and the Land and Environment Court can consider the nature of the conduct that is engaged in breach of the Act and the objectives sought to be achieved by the relevant prohibition in fashioning an appropriate order. One possibility is that the local authority or the court will decide consent should be given to the relevant activity or development, as happened when consent was sought to Noor Al Houda and Holdings continuing to operate a school at the premises. In those circumstances, I do not think that s 76A(1) of the EPA Act should be read as intending to render void all agreements made in breach of its provisions.
In Taluja v Australian International Academy of Education Ltd [2011] NSWCA 416, the Court of Appeal dismissed an appeal from Ball J's decision. At [77] - [81] Young JA, with whom Beazley and Macfarlan JJA agreed, referred to the reasoning of Ball J set out above without disapproval.
For the above reasons, even if there had been evidence of illegality in the letting of the premises to the appellant, we would nevertheless have rejected the appellant's submission that by reason of such illegality the appellant was absolved from paying rent.
A notice of termination was sent to the appellant previously and there is no evidence that he did not receive that notice or disputed the right of the landlord to provide such notice. Furthermore, there is no evidence that the appellant ever suggested that he had a cross claim against the landlord.
Significantly, the Appeal Panel was informed at the hearing that the writ for execution has now been executed and possession of the premises has been recovered from the appellant and restored to the landlord. In these circumstances, the provisions of clause 12 (2) of Schedule 4 to the Act operate. That provision states: "(2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if:… (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order."
Since, as the appellant recognises, he requires leave to bring this appeal and since the writ of possession has already been executed, the Appeal Panel is not empowered to grant leave to bring the appeal.
We observe that, on the material before us, even if we had been able to grant leave, the appeal would have been doomed to fail.

Orders The Appeal Panel orders: 1. The application for an extension of time in which to bring the appeal insofar as it relates to the decision made on 4 March 2019 is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 04 June 2019

Civil and Administrative Tribunal Regulation 2013(NSW)

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