This appeal arises out of two decisions made in the Consumer and Commercial Division of the Tribunal. The appellant is the tenant under a social housing residential tenancy agreement and the respondent is the landlord and a social housing provider (see Pt 7 of the Residential Tenancies Act, 2010 (RT Act)). The parties had entered into the residential tenancy agreement some years ago. We will refer to the appellant as the tenant and to the respondent as the landlord.
A brief explanation gives the background to this appeal:
1. The landlord commenced an application in the Tribunal on 27 April 2016 seeking an order for the payment of an amount of money and a termination order by reason of an alleged breach of the residential tenancy agreement for the non-payment of rent;
2. On 20 May 2016 the application came before the Tribunal at which time consent orders were made. Order 1 stated that by consent the tenant was to pay the landlord the sum of $957.22 for rent owed "under the terms of the residential tenancy agreement for the period from 1 May 2016 to 20 May 2016". The order went on to say that the payment for "rent owed is due by instalments of not less than $40.00 per week, first payment 27 May 2016". Order 2 stated that by consent the tenant was to pay the landlord rent "presently $330.00 per week, next payment due on 27 May 2016 and once the arrears are paid in full to pay rent in accordance with the residential tenancy agreement". Order 3 stated that by consent if the orders in respect of rent are not complied with then at any time before 28 November 2016 the landlord may request the relisting of the application to determine whether the tenancy agreement should be terminated; and
3. The proceedings were relisted and were heard by the Tribunal on 13 October 2016 at which time orders were made terminating the tenancy agreement by reason of the tenant's breach of the agreement by failure to pay rent in accordance with the agreement. An order was made requiring the tenant to give possession and that order was suspended until 27 October 2016. There was an order for the tenant to pay a daily occupation fee from the date of termination (14 October 2016) until the date vacant possession is given. There was a further order that the tenant was to pay to the landlord the sum of $2,139.34 on or before 27 October 2016. That amount was described as "rent arrears".
Fraser v Argyle Community Housing [2017] NSWCATAP 27 | Case summary | Zoe
By a Notice of Appeal received by the Tribunal on 8 November 2016, the tenant appealed the decision of 20 May 2016. The form of the Notice of Appeal requires the tenant to indicate what orders the Tribunal should make. One order which was included by the tenant in that part of the form was to "remain in my tenancy". Accordingly, we have taken the Notice of Appeal to be also an appeal from the decision of the Tribunal made on 13 October 2016.
If the appeal is from the decision of 20 May 2016 then the appeal is well out of time: see r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) which gives 14 days to appeal and there has been no application to extend the time under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). If the appeal is also an appeal from the decision of 13 October 2016 the appeal is still out of time. The decision was delivered on 13 October 2016 and therefore the appeal should have been lodged on 27 October 2016. Again no application to extend time under s 41 of the NCAT Act has been made by the tenant.
[2]
Notice of Appeal
The grounds of appeal state in essence that the landlord had authority to calculate the tenant's rent based upon the tenant's (and her son's) actual income from Centrelink but instead of using their actual income, the landlord used Centrelink guidelines to determine the amount of rent to be paid. In summary, the tenant says that the rent that was charged was based upon an assumption that Centrelink was providing a benefit of $128.00 per fortnight approximately in respect of her son but, in fact, that benefit was only in the region of $105.00. The result was that the rent charged by the landlord was higher than it should have been had the landlord calculated the rent based upon actual Centrelink income rather than upon Centrelink guidelines.
The Notice of Appeal states that the Appeal Panel should "amend actual arrears to son's actual income not guidelines".
The Notice of Appeal states that the Tribunal's decision was not fair and equitable because it was based upon an administrative error by the landlord and it was against the weight of evidence.
At the hearing the tenant elaborated upon the submissions contained in the Notice of Appeal and we summarise the effect of those submissions below.
The tenant stated that although the orders made on 20 May 2016 were stated to have been made by consent, she was in fact intimidated and bullied into agreeing to those orders by representatives from the landlord. No evidence in support of that allegation was provided. The representatives of the landlord (one of whom was present at the hearing on 20 May 2016) denied any bullying or intimidation.
At the appeal hearing the tenant acknowledged that since 11 April 2016 the rent has correctly been charged at the rate of $670.00 per fortnight. Accordingly, her objection to the consent order made on 20 May 2016 (which recorded the rent at $330.00 per week) was an objection to the amount of the arrears stated in that order, namely $957.22. The tenant submitted that the accumulation of the arrears had come about through a miscalculation by the landlord of the rental assistance provided by Centrelink in respect of the tenant's son and therefore the evidence provided to the Member in support of the termination order made on 13 October 2016 was inaccurate.
[3]
The Landlord's Submissions
The representative of the landlord submitted that the landlord's conduct was consistent with its obligations and that it had correctly calculated the rent.
The landlord provided copies of the evidence which had been provided to the Member for the hearing on 13 October 2016. These documents included:
1. The notice from the landlord to the tenant dated 29 February 2016 increasing the weekly rent payment to $330.00 from 11 April 2016. That letter had attached to it a document which showed how the rent had been calculated by reference to the Centrelink payments. The notice recommended that the tenant send the forms to the local office of Centrelink so as to "avoid any possible rent arrears". The letter also stated that if the tenant disagrees with the landlord's assessment of the rebated rent or would like the calculations explained, the tenant should contact the landlord's local office. We were informed that this notice (dated 29 February 2016) represented a six monthly rental increase - that is the landlord each six months reviews and adjusts rent. The attached notice shows that the rent is calculated at 25% of the tenant's Centrelink income plus 25% of her son's Centrelink income. Added to the resulting figure is the amount of a Centrelink rent adjustment being an amount which the landlord assumes the tenant is receiving from Centrelink. This amount from 11 April 2016 was $64.70 per week for each of the tenant and her son, or $129.40 per fortnight;
2. Notices of termination dated 11 March 2016 and 27 April 2016;
3. The tenant's statement of account i.e. - a rental ledger which shows the amounts debited for rent and the amounts credited constituting the payments made by the tenant; and
4. A letter dated 16 May 2016 from the landlord to the tenant stating that the tenant's rent had been reviewed by officers of the landlord and stating that the amount calculated and charged for rent was correct.
The landlord submitted that it was obliged to calculate rent based upon a "calculator" provided by Centrelink which stipulated the amount of the rental subsidy which the tenant (including her son) were entitled to receive. If they in fact received less than their entitlement, it was the tenant's obligation to take that matter up with Centrelink. This position was explained to the tenant in the landlord's letter of 8 September 2016 and in a further letter dated 16 January 2017 (received by the Tribunal at the appeal hearing and marked Exhibit 1).
[4]
Decision
In our view the appeal has no merit and must be dismissed for the reasons which follow.
The fact that the appeal was filed out of time and was not the subject of an application by the tenant to extend time, was not a matter considered at the hearing. We are able to extend time on our own motion under s41 of the NCAT Act and earlier decisions of Appeal Panels of this Tribunal have set out the criteria to be considered by the Tribunal in exercising its power under s 41: see for example Di Salvo v Leung [2014] NSWCATAP 44. The factors which one must take into account are:
1. The length of the delay.
Here, there was considerable delay in appealing the consent orders made on 20 May 2016 and a short delay of only a week or so in appealing the second decision;
1. The reason for the delay.
No explanation has been offered by the tenant;
1. Prejudice suffered by the respondent.
Delay has self-evidently caused the landlord prejudice in that the landlord has not been able to achieve possession of the property and arrears of rent have continued; and
1. The tenant's prospects of success.
The tenant conceded that the amount she was being charged as at 20 May 2016 was a correct amount, namely $330.00 per week. Her objection to the amount being charged was based upon the contention that arrears of rent had accumulated because she had been charged an amount which was excessive because of a miscalculation by the landlord. The miscalculation was said to have occurred because the landlord calculated the rent due by reference to the amount which the tenant (or more particularly her son) was entitled to receive as a rental subsidy. Because he in fact received a lesser sum, there was a miscalculation.
We agree with the landlord's submissions that it was the tenant's responsibility to take up with Centrelink the issue of an incorrect amount being paid by Centrelink as a rental subsidy and to have that corrected. If the tenant's position had been explained to Centrelink, and if Centrelink had agreed, then the tenant, or her son, would have received a higher subsidy to enable her to pay that to the landlord. If Centrelink had refused to increase the subsidy the tenant would have been entitled to have the landlord consider reducing the rent, because the landlord's rental calculation was based upon the tenant's Centrelink entitlement.
In our view the landlord was entitled to proceed on the information it had and to calculate rent by reference to the Centrelink guidelines. In short, the landlord was entitled to calculate rent on the basis that it did and any disagreement which existed between the tenant and the amount derived from Centrelink was a dispute which the tenant should have taken up with Centrelink. There was no evidence that the landlord was not able to lawfully charge as rent the amount which was charged.
The tenant's right to appeal arises under s 80 of the NCAT Act. That section provides that an appeal may be made by a party to proceedings as of right on any question of law or with leave on any other grounds (s 80(2)). Clause 12 of Sch 4 of the NCAT Act provides that an Appeal Panel may grant leave under s 80(2)(b) of the NCAT Act only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
1. The decision of the Tribunal under appeal was not fair and equitable, or
2. The decision of the Tribunal under appeal was against the weight of evidence, or
3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
We are of the opinion that in relation to both decisions (i.e. the decision of 20 May 2016 and the decision of 13 October 2016) no error or question of law has been demonstrated and further that there has been no miscarriage of justice enlivening the provisions of cl 12. In addition, there is no evidence of intimidating or bullying conduct which would cause us to consider setting aside the consent orders made on 20 May 2016. We are of the opinion that the tenant was bound by the consent orders made on 20 May 2016 and that there is no basis for setting aside those orders.
At the appeal hearing we granted a stay on the operation of the possession order made on 13 October 2016 pending publication of this decision. We propose to order that the appeal be dismissed and that the stay be lifted.
We do not consider we should extend time under s 41 because the tenant did not make such an application and the landlord did not address the issue. Accordingly, it would be unfair to the landlord to extend time. However, were we to consider doing so, the merits of the appeal would be a relevant consideration (as stated earlier in these reasons) and given our view on the merits, there would be no point in extending time.
[5]
Orders
Accordingly, the Appeal Panel makes the following orders:
1. The appeal is dismissed; and
2. The order made on 25 January 2017 staying the operation of the possession order made on 13 October 2016 is lifted.
[6]
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: 09 February 2017