Elkhouri v Khuu

Elkhouri v Khuu - [2021] NSWCATAP 86 - NSWCATAP 2021 case summary — Zoe

[3]

Background

The appellant is the tenant of premises in Bringelly pursuant to a residential tenancy agreement dated 27 August 2019 (the tenancy agreement) with the respondent landlord.
The term of the tenancy agreement was 12 months, starting on 27 August 2019 and ending on 26 August 2020, after which the agreement continued as a periodic agreement pursuant to s 18 of the Residential Tenancies Act 2010 (NSW) (RT Act).
The residential premises were a 6 bedroom brick veneer house with a locked up garage, situated on a large parcel of land. The rent was $800 per week.
On 6 December 2019 the landlord caused to be served on the tenant a Notice to Remedy Breach. The Notice alleged that the tenant had breached clauses 15.1, 15.2, 15.3 and 15.4 and 27.1 of the tenancy agreement. Clauses 15.1 to 15.4 related to the tenant's use of the premises. Clause 27.1 provides that the tenant agreed not to install any fixture, or renovate, alter or add to the residential premises without the written permission of the landlord.
The Notice stated that the tenant had breached the tenancy agreement by: 1. depositing fill and spreading through the grounds at the back of premises; 2. filling in the drainage/watercourse at the residential premises; 3. removal or burying of the small bridge/driveway over the watercourse/drainage at the residential premises; 4. changing the ground level height with compacted fill at the residential premises; 5. operating an unapproved scrap business in breach of council regulations at the residential premises; 6. placing of numerous shipping containers in breach of council regulations on the residential premises; and 7. not complying with Council and/Tribunal orders to remedy.
On 29 January 2020, in proceedings RT 20/01795, the Tribunal made consent orders that on or before 26 February 2020, the tenant was to arrange for the removal of vehicles from the premises, leaving a maximum of 10 vehicles (either registered or unregistered). The evidence does not reveal how many vehicles were on the premises at that time, but by July 2020 there approximately 224 vehicles (along with 15 shipping containers) on the premises. At the time of the appeal hearing the Appeal Panel was informed that there were approximately 250 vehicles on the premises, together with 15 shipping contains. The materials before the Appeal Panel allege that the tenant operated or was associated with a business called Exoticars Parts Centre conducted at the premises.
In addition, the consent orders noted that the parties agreed that on or before 19 February 2020, the tenant would: restore the block to its original ground level, including removal of all compacted land fill materials off-site and restoration of 2 x natural water ways and rectify access to the rear of the property as per the ingoing condition report pictures.
On 5 May 2020, the landlord caused to be served a notice of termination of the tenancy agreement on the tenant. The covering letter relevantly stated: Please find attached Termination Notice under breach and end of fixed term. The date for this is 26/08/2020. With impending Council action and little communication from yourself with regards to timeframes for remedy, we have no option but to issue this to yourself.
As indicated in the covering letter, the notice required vacant possession to be given on 26 August 2020, and identified two grounds on which termination of the tenancy agreement was sought, namely: 1. pursuant to s 84 of the RT Act, that being the end of the fixed term; and 2. for breach of s 87 of the RT Act. These were the same breaches set out in the Notice to Remedy Breach dated 6 December 2019.
By application RT 20/21862 dated 19 May 2020, the landlord sought orders for termination of the residential tenancy agreement based on rental arrears, vacant possession of the premises and orders for the payment of money including the rental bond.
A Routine Inspection Report completed by the landlord's agent on 20 July 2020 in summary states: Property has around 200 cars on site. Numerous shipping containers are on site. Numerous car parts, stack metal objects, and top panels throughout the grounds. Trapped in soil is still throughout the grounds. Natural watercourse has been partially cleared. Water is noted pooling to the exterior right fence. Tenant has affectively damned [sic] the watercourse. Fence is down on both sides of the property.
By application RT 20/36600 dated 27 August 2020, the landlord sought orders for termination of the tenancy agreement based on breaches of the tenancy agreement (not being a breach of the obligation to pay rent), because the tenant causing serious damage band injury to the premises (NCAT, s 90), because of the unlawful use of the premises by the tenant (NCAT, s 91), and termination at the end of the fixed term (NCAT, s 84). In addition, the landlord sought orders for compensation and orders requiring the tenant to undertake certain actions and to restrain from other actions.
On 2 September 2020, the Tribunal directed that both matters be heard together and were subsequently listed for hearing on 9 December 2020.
The matters were then subsequently listed for hearing on 5 November 2021.
On 4 November 2020, the tenant applied for an adjournment of the hearing, and sent a medical certificate to the Tribunal. In her submissions to the Appeal Panel she states that: Throughout 2020 I had continued to suffer ongoing and debilitating migraines that would render me bedridden for hours, sometimes days. Due to the frequency and severity of these my Doctor was very concerned. Due to this ongoing matter, trying to work and look after my elderly father, I had kept postponing and rescheduling various doctor's appointments. I had appointments scheduled on the 5th November and other days before and afterwards that could not be changed again, otherwise I would need to wait until 2021. Also I had prior jobs scheduled.
However, the medical certificate reviewed by the Tribunal simply stated the tenant had a medical condition and was unfit to work on 5 November 2021.
The authorities say that a medical certificate relied upon to demonstrate that a litigant is unable to attend court must address the "critical question" whether, and if so why, the medical condition would prevent the party from travelling to the Court and participating effectively in a court hearing: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In the circumstances, and given that the hearing was to be a telephone hearing due to COVID-19, it is not surprising that the application for an adjournment was refused.
Accordingly, the hearing went ahead on 5 November 2020, the tenant not attending. The Tribunal stated in brief written reasons: [These proceedings] were heard in the tenant's absence though the tribunal called the tenant without success. The tenant had given evidence on the last occasion that her household was COVID 19 impacted. The [landlord] did not oppose that funding. The tenant have relied upon a letter from an accountant to support a finding that her income was at least 25% less than prior to COVID-19. Having made that finding, the tenant is entitled to the benefit of the moratorium in relation to the making of any orders for termination and possession. The application for termination and possession is dismissed. The orders made today are confined to orders for the payment of rent and the rental arrears. . . . The related proceedings RT 20/36600 have been stood over to a further date for the tribunal to consider whether the applicant is entitled to an order for termination and possession for breaches other than non-payment of rent, that relate to property care issues.
The Tribunal then issued the following orders: APPLICATION FOUNDED UPON SECTION 84 1. The application for termination and possession made pursuant to s 84 is dismissed because the vacate date for yielding up the premises was prior to the end of the fixed term. 2. By Determination of member, on 05 November 2020 the balance of the hearing was adjourned to a date to be fixed by the Registrar. APPLICATION FOR TERMINATION FOR BREACHES OTHER THAN FOR NON-PAYMENT OF RENT 3. The [landlord] raised breaches other than for non-payment of rent in order to seek termination and possession. 4. That application was and is dependent on whether the tribunal makes a termination order in the related proceedings RT 20/21862".
The following day, 6 November 2020, the landlord's agent sent an email to the Tribunal. It is common ground that the agent did not send the email to the tenant. The email relevantly stated: With regard to the above hearing held yesterday at 2:15 pm, I wish to make a report on Member McCue. I believe that member McCue has dismissed my Section 84 Termination in error, with failure to review and follow the guidelines in the Residential Tenancies Act 2010. Please see orders attached. The end of fixed term notice was served with more than 90 days notice (following Covid legislation) and has a termination date as the last day of the lease (being the last day of the fixed term. [The email then set out s 84(1) of the RT Act.] As my Termination Notice is dated on the last day of the fixed term (being the end), I believe that member of the queue has dismissed this even though, according to legislation, my termination notice has been served correctly. I would like this reviewed and an explanation/reasons regarding the thoughts behind the dismissal and how that relates to the above section of the Act. I would also like an explanation regarding what constitutes the definition of "on" and "after". Could you please also advise what recourse I have. Given that I believe this order has been made in contradiction of the Residential Tenancies Act 2010, my hearing should be reopened with the Termination Notice thing and orders made appointment upon the termination notice.
On 9 November 2020, the Member issued proposed orders in matter RT 20/36600. In written reasons the Tribunal stated: Tribunal proposes to set aside orders 1, 2 3 and 4 on 5 November 2020 and to make the following orders: 1. Pursuant to section 84 of the Act, the Residential Tenancy agreement is terminated, position is to be given to the landlord immediately; 2. To order for possession of suspended until 13 December 2020 [mindful of the semi-rural nature of the residential premises]; 3. The applicant is to pay a daily occupation fee of $114.28 commencing on 6 November 2020, payable weekly on each Thursday, until possession is given to the landlord. 4. The Tribunal is to send a copy of the tribunal's findings and the varied orders to the [landlord] and the [tenant] by email no later than 12 noon, 10 November 2020. Submission from the [tenant] Prior to entering the orders above, on or before 13 November 2020, the [tenant], Ms Elkhouri, may serve any submissions upon which she relies on the tribunal and the other party [confined to the proposed date of possession]. (Bolding as in original).
The reasons then continued, setting out the history of the matter, the adjournment application and subsequent hearing on 5 November 2020, and the Tribunal's power to set aside orders.
In this respect we note that the Member relied on s 188 of the RT Act to set aside the orders of 5 November 2020. Section 188 is the "general order-making power of the Tribunal" and provides: The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders - (a) an order that the Tribunal may make under this Act, (b) an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings, (c) any ancillary order the Tribunal thinks appropriate, (d) an interim order.
The reasons then relevantly stated: Given that the proceedings remain before the Tribunal, pursuant to section 188, RTA, the Tribunal has powers to set aside the orders made on 5 November 2020 and proposes to do so.
The effect of this was that the order for termination was confirmed, but the order for possession was contingent, depending on further submissions of the being received from the tenant.
The tenant did not send any submissions to the Tribunal as invited. In lengthy submissions in support of her appeal, she says that due to circumstances beyond her control (including the ill health of both herself and her father) she was unable to do so, and that she "was expecting another Notice of Hearing and thought there would be further instructions about submission in that notice".
Accordingly, on 23 November 2020 the Tribunal issued confirmatory orders as follows: 1. Pursuant to section 84 of the Act, the Residential Tenancy agreement is terminated, position is to be given to the landlord immediately; 2. The order for possession is suspended until 13 December 2020 [mindful of the semi-rural nature of the residential premises]; 3. The [tenant] is to pay a daily occupation fee of $114.28 commencing on 6 November 2020, payable weekly on each Thursday, until possession is given to the landlord. 4. Within 60 days of the date for possession of the premises specified in these [orders] the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
The tenant did not give vacant possession as ordered, and eventually the landlord obtained a warrant for possession which was to be executed on 21 January 2021.
However, on 21 January 2021, the tenant filed a Notice of Appeal and an application to stay the orders for termination and possession.
Subsequent interlocutory decisions of the Appeal Panel allowed the stay application, including an order that the order for possession made on 9 November in RT 20/36600 be stayed until 31 January 2021 after which the possession order may be enforced.
On 23 February 2021, the NSW Sherriff evicted the tenant from the premises. The tenant says that no notice had been provided by either the agent or the Sheriff. The tenant says that if she had received notice she would have applied for a stay of the execution of the warrant pending the hearing of the appeal on 23 March 2020.
On 3 March 2021, the Appeal Panel noted an undertaking given by the respondent that pending the determination of the appeal he would allow the appellant access to the premises to collect her personal possession and not relet the premises. This undertaking was conditional on the appellant continuing to pay the respondent $800 rent per week.

[4]

Notice of Appeal

In her Notice of Appeal, the tenant says the Tribunal should have given more weight to the documents she had filed on 15 October 2020.
In addition, she relies on an attached letter to the Tribunal dated 18 January 2021. This is a detailed six page document which deals with a number of topics. These topics can be summarised as follows: 1. a chronology of events; 2. submissions relating to the tenant's inability to attend the hearing of 5 November 2020; 3. the false claims made against her by the landlord, including blaming her for depositing potentially toxic soil onsite, which had in fact been left by a previous tenant 4. the hearing of 9 November 2020 took place without notice to her; 5. the validity of the notice of termination of 5 May 2020. In short, the tenant submits that as 26 August 2020 was the last date of the tenancy agreement, the notice of termination should have stated 27 August 2020. We infer that the tenant means that the date for vacant possession stated in the notice should have been 27 August 2020; 6. the health of her father, who we understand lived at the premises with her; 7. the landlord's refusal to negotiate a rental reduction; 8. her attempts to final an alternative property and to move "as soon as possible and without delay"; 9. that the previous agent for the landlord, and the landlord himself, agreed leased the premises to her knowing that she would be storing cars and storage containers on site.
In addition to the Notice of Appeal, on 22 March 2021, the tenant filed lengthy written submissions (19 pages) which raised many other issues including but not limited to those matters listed above, a commentary on the sound recording of the proceedings before the Tribunal on 5 November 2020, her response to the allegations of (non-rent) breaches of the tenancy agreement, alleged breaches of the tenancy agreement by the landlord.
In this document the tenant states that she wants the Appeal Panel to make the following orders: All orders made on 5th November 2020, 6th November 2020, 9th November 2020 and 23rd November be set aside; The matter be relisted for hearing; Rent to be adjusted to $650 per week That she be reinstated in the property so she can attend to packing and make good and to ensure her valuable assists are not stolen or vandalised
Alternatively, the tenant asks that she be reinstated in the premises and not be required to give vacant possession until 30 June 2021.

[6]

Extension of time

The first matter to consider is the extension of time. The principles relating to extensions of time are well-established. The Tribunal's power to grant an extension of time in which to lodge an appeal was considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and confirmed in Di Salvo v Leung [2014] NSWCATAP 44. Those authorities confirm that: 1. the discretion to grant an extension of time is unfettered under s 41 but it must be exercised judicially. In addition, it must also be exercised having regard to the guiding principle (NCAT Act, s 36) "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 2. the considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a notice of appeal are: 1. the length of the delay; 2. the reason for the delay; 3. the extent of any prejudice suffered by the respondent; and 4. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case;
As noted above, the appeal was filed on 20 January, which is:

62 days after it should be have been filed in relation to the orders of 5 November 2021;
58 days after it should be have been filed in relation to the orders of 9 November 2021;and
44 days after it should be have been filed in relation to the orders of 23 November 2021.

The length of the delay militates against the Appeal Panel granting an extension of time.
The lack of any explanation for the delay in filing the Notice of Appeal strongly militates against an extension of time.
And it may fairly be considered that having obtained an order for termination and possession, and having had the Sherriff evict the tenant on 23 February 2021, the landlord would suffer considerable prejudice if an extension of time was granted.
However, this is an unusual appeal in that there is one overriding reason, notwithstanding the length of the delay, and the failure to explain the delay, and the prejudice to the landlord, why an extension of time should be granted.
That reason is that on 9 November 2021, without any notice to the tenant, the Tribunal set aside its order of 5 November 2021 dismissing the landlord's application for termination and possession, and substituted a fresh decision terminating the tenant's tenancy agreement. We note in particular that: 1. no notice of the landlord's email to the Tribunal was given to the tenant by either the landlord or the Tribunal; 2. no notice of a hearing was given to the tenant; and 3. no notice was issued to the tenant inviting submissions on the matter,
This had the result that the tenant's right to possession of the premises was altered in the most fundamental way.
The obligation to provide procedural fairness to a litigant consists of principal two components, namely that:

the litigant receive a fair and unbiased hearing before the decision is made (the bias rule); and
the litigant be informed of the case against them and be given the opportunity to be heard (the hearing rule).

Aronson and Groves, Judicial Review of Administrative Action Fifth Edition (2013) have stated at [8.140] in relation to the hearing rule that (footnotes omitted): Reasonable prior notice is often referred to as the minimum content of natural justice. There are many judicial statements which confirm the "fundamental;" or "cardinal" value of notice and the important, often central, role it can play. The obvious reason is that that the proper exercise of all other hearing rights can be defeated it a person affected does not receive notice of what may happen. It is for this reason that notice, and an opportunity to be heard before a decision is made, are generally regarded as fundamental. (Emphasis as in original)
The giving of notice of a hearing which will deal with a person's important rights is fundamental to the obligation of a decision maker to provide procedural fairness to parties appearing before it. This did not occur in this instance.
For that reason alone, the extension of time in which to file the Notice of Appeal should be granted.
In the circumstances, we have not found it necessary to consider whether s 188 of the RT Act allowed the Tribunal to set aside the orders of 5 November 2020.

[9]

Exercise of the powers of the Tribunal at first instance

We need to state clearly what we are doing and what we are deciding. We are reconsidering the application of the landlord in RT 20/36600 to terminate the tenancy agreement on the basis of s 84 of the RT Act.
As noted above: 1. the tenancy agreement ended on 26 August 2020; 2. on 5 May 2020 a notice of termination of the tenancy agreement was on the tenant. That notice required vacant possession of the premises to be given to the landlord on 26 August 2020, the last day of the tenancy.
Section 84 of the RT Act relevantly provides: 84 End of residential tenancy agreement at end of fixed term tenancy (1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term. (2) The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
The effect of the various Residential Tenancies Amendment (Covid-19) Regulations is that during the moratorium period, the 30 day notice period provided for in s 84(2) has been increased to 90 days.
As the landlord delivered the notice of termination to the tenant by hand on 5 May 2020, the landlord in fact gave the tenant 113 days' notice.
The tenant submits that the notice was not valid. The core of her argument was that her tenancy did conclude until midnight during the night dividing 26 August 2020 and 26 August 2020. She submits therefore that she is not required to vacate until the tenancy ended, which she says is 27 August 2020.
We reject this submission. Section 84(1) provides that a landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term. The clause of the tenancy agreement headed "Term" states that the agreement ends on 26 August 2020. The tenancy ends that day, and s 84(1) provides that the notice of termination may be given on, or after, the end of the fixed term.
In our view, the notice of termination given by the landlord to the tenant plainly provided for termination to take effect of the tenancy agreement at the end of the fixed term. Accordingly, we find the notice of termination to be valid.
We note that the notice of termination actually states: End Fixed Term - Section 84 of the Act Termination Date: Not earlier than 90 days after the day on which this notice is served or on of later the day the term of the Tenancy Agreement ends, whichever is the later. (Emphasis added)
The underlined words in the notice do not appear in the RT Act. They appear to be an added gloss on the statutory requirements of s 84. In any event, given that the notice of termination states the date on which the fixed term ends, the words have no scope of operation.
We note that similar words did appear in the equivalent section of the now repealed s 60(2) of the Residential Tenancies Act 1987 (NSW) which provided: 60 Notice of termination of fixed term agreement without any ground . . . (2) A notice of termination given under this section shall not specify a day earlier than 14 days after the day on which the notice is given or the day the term of the residential tenancy agreement ends, whichever is the later, as the day on which vacant possession of the residential premises is to be or will be delivered up.
Having determined that the notice of termination is a valid one, subject to one issue, the tenancy agreement must be terminated: s 84(3).

[10]

Was the eviction retaliatory?

That issue is whether or not, as submitted by the tenant in her submissions of 19 March 2021, her eviction was retaliatory.
Section 115 of the RT Act states: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice - (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons - (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
Some authorities have suggested that, despite the mandatory language of s 84(3), s 115 is an exception to that rule: O'Keefe v Davies [2016] NSWCATCD 7; Howard v B. Miles Womens Foundation Inc [2012] NSWC 1173.
The retaliatory act may be a landlord making an application for a termination order, or in relation to a termination notice. Nowhere in the tenant's submissions does she state what action of the landlord is retaliatory. The landlord commenced two applications in the Tribunal and issue to the knowledge of the Appeal Panel at least two notices of termination. In short, nowhere does the tenant state what facts, matters and circumstances were retaliatory. Indeed, the tenant submits that: I have not entered into evidence to date, however given all of the events up till now, in addition to procedural unfairness due to omissions by the Landlord and Agent, their misrepresentations to NCAT about the tenancy and sequence of events, and by me bringing attention to the numerous breaches by the Landlord (many still not rectified).
In any event, the submission seems at odds with the tenant's stated intention that she wanted to vacate the premises "as soon as possible and without delay".
Given the material before us, we do not find that the giving of the notice of termination or the commencement of proceedings RT 20/20/3660 was retaliatory.
In the circumstances, a valid notice requiring vacant possession at the end of a fixed term having been issued, the tenancy agreement must be terminated, and we will make that order.

[12]

Costs

In the respondent's documents, the respondent sought an order for costs. Those costs related to his agent's preparation and attendance at various hearings, photocopying and courier fees in the total amount of $1,137.69.
Section 60 of the NCAT Act relevantly says: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
The authorities have held that "special circumstances" are circumstances that are out of the ordinary, but need not be exceptional or extraordinary: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21.
While this appeal and the underlying factual circumstances have a number of unusual features, we are not presently of the view that there are any special circumstances warranting an award of costs in favour of the landlord. However, we have not received any submissions on this issue, and it was not discussed at the appeal hearing.
If having read these comments, the landlord wishes to maintain his application for costs, then: 1. the landlord should file submissions addressing the issue of special circumstances, and why costs should be awarded, on or before 21 April 2021. Those submissions should be limited to three pages, and should confirm the amount of costs sought; 2. the tenant may respond on or before 5 May 2021, also limiting its submissions to three pages; 3. the landlord may provide submissions in reply on or before 12 May 2021.
The Appeal Panel proposes to deal with the question of costs on the papers. If either party disagrees, it should address that matter in its submissions.

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Judgment (14 paragraphs)

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