Gay v The Minister Administering the Environmental Planning and Assessment Act

NCAT Appeal Panel|2021-06-29|Before: Rolfe J

Reasons for decision

This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 12 November 2020.
In this decision, any reference to "the tenant" is a reference to the appellants and any reference to the "the landlord" is a reference to the respondents.

Background

In about 1980, the Planning Ministerial Corporation purchased land with a residence at Appin, also known as Appin Park. In August 1988, the tenant entered into a residential tenancy agreement with landlord in relation to that property for a fixed period of 26 weeks. The tenant continued to occupy the property beyond the 26-week period under a periodic lease.
Around February 2019, the New South Wales Government announced a Strategic Open Space Program to facilitate further open space for Greater Sydney (Parks for People Program). The Parks for People Program concerned eight local community parks within Greater Sydney, which included Appin Park.
On 30 June 2020, the landlord entered into a Land Transfer Agreement with Wollondilly Shire Council whereby the landlord agreed to transfer the property to Wollondilly Shire Council.
On 20 January 2020, the landlord issued a notice of intention to issue a notice of termination to the tenant.

Extension of time

The Notice of Appeal was not lodged within the 14-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules).
The Appeal Panel has power to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 NSW (NCAT Act).
The principles on which an extension of time to bring an appeal would be granted were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22], drawing on early orthodox principle and authority: "Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice."
The criteria for assessing an extension application can be summarised from Jackson as follows: 1. the appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant; 2. the respondent, having obtained a favourable primary decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired; 3. consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success (that is, usually, whether the appellant has a "fairly arguable case"), and the extent of any prejudice suffered by the respondent; 4. As the Appeal Panel said: It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
In this case, applying the factors identified in Jackson the appeal was lodged some four months out of time. Four months is not an insignificant delay.
In submissions made with the notice of appeal, the reasons for the extension of time are set out as follows: 1. The tenant and his wife are elderly are pensioners without means to afford legal advice and representation. 2. The tenant contacted Legal Aid and asked them to consider and lodger an appeal, however, Legal Aid did not have the resources to assist 3. The tenant contacted a number of other community legal centres for assistance, but they were unable to assist in the limited time available to appeal. 4. The tenant had attempted to negotiate with the landlord for a further extension of time to remain in the property without success. 5. The stress of having to move and the inability to find alternative accommodation has had negative mental and physical health impact on the tenant and his family. 6. The tenant ultimately sought urgent legal assistance from a lawyer who has agreed to charge a discounted rate to run the appeal.
On the second day of hearing of hearing before us, Ms Gay, the tenant's wife, was cross-examined in relation to a statement she had provided to the Appeal Panel dated 5 May 2021. In the statement she explains the reasons for the delay in lodging the appeal. Annexure C to that statement was an email dated 26 November 2020 from Mrs Gay to Ms McKenzie of Legal Aid NSW which confirms that she and Mr Gay had: "…had a change of heart and would like to lodge an appeal re the NCAT decision. Would you please be able to do that for us today owing to the fact its (stet) cut-off day today."
In cross examination Ms Gay did not confirm that she was aware on that date that it was the last day, but indicated that she had not been told a specific date and could not remember if she had previously been advised of the cut-off date. The email which is signed off from "John & Sue" indicates that at the time it was sent the tenant must have been aware that 26 November 2020 was the last date for lodgement as it refers to a "cut-off day".
It appears from the answers Ms Gay gave in cross examination and the documentation, that over the following weeks, extending into months, she and Mr Gay consulted with various people including their local Member of Parliament Dr Friedlander and other friends (at least one of whom is asserted to have had legal qualifications) as to their prospects. At some stage a letter was written by or on behalf of the tenant to the (then) Federal Attorney General, Hon Christian Porter, who referred the matter back to the State Government.
On 25 January 2021, Ms Natalie Ward, the Parliamentary Secretary to the NSW Attorney General responded by letter to the Local Member Dr Friedlander. Ms Ward's letter refers to the time limitation for appeal: The timeframe for an appeal in attendance to dispute is 14 days from receiving the order although (the Appellant) may ask for an extension of time, providing a good reason for being late. Information about the appeal option, the forms and information about application fees is available on NCAT's website…
Even if the tenant's state of understanding about the existence of the cut-off date was not as reflected in the email of 26 November 2020, it seems likely that on or shortly after 25 January 2021 that position was known to them.
If the appeal had been lodged on or shortly after 25 January 2021 it would have been out of time by about a month. However, the appeal was not lodged for another two months, being received on 30 March 2021.
In cross examination Ms Gay stated that it all came down to money and it was not until later that a solicitor's firm offered financial assistance which enabled them to bring the appeal.
The landlord states that they suffer prejudice by reason of the bringing of appeal for the following reasons: 1. continued delays in relation to the final concept plan for the Parks for People Plan, which presently has been delayed from November 2020 to September 2021; 2. the proceedings will cause further delays in the commencement of embellishment works by the landlord, having changed from April 2021 to December 2021; 3. the delays to the completion of the construction, which has already been delayed from September 2021 to July 2022.
We have also considered the merits of the appeal. Weighing up the relevant matters, we are satisfied that the merit of the appeal weighs in favour of granting the extension of time to lodge the appeal because we are satisfied that the tenant was denied procedural fairness which resulted in error on the Tribunal's part.

Grounds of Appeal

Decisions of the Tribunal are internally appealable decisions and an appeal can be made from them as of right where there is an error of law and with the leave of the Appeal Panel on specified grounds: see, s 80(1) and (2)(b) of NCAT Act. The tenant has appealed on the basis of errors of law and seeks leave to appeal.
The tenant has raised eight grounds of appeal. The first three grounds of appeal relate to an interlocutory decision refusing to adjourn the proceedings, made by the Tribunal on 4 November 2020 and can be summarised as follows: 1. The Tribunal failed to adjourn the hearing 2. The Tribunal failed to make any decision or order about the tenant's request for documents and failed to inform the unrepresented tenant that he could request the issue of a Summons for the production of documents. 3. The Tribunal Member failed to make any decision or order that the Appellant's wife, Susan Lee Gay, and daughter, Catherine Lee Gay, be joined as parties to the proceedings. This ground was abandoned at hearing. The remaining grounds of appeal relate to the substantive decision and can be summarised as follows. 1. The Tribunal proceeded in circumstances where the tenant had requested the production of documents and an adjournment, and documents relevant to the issues for determination were not before the Tribunal. 2. The Tribunal erred in finding at [6] of the reasons for decision that "the matter was a straight forward case," when there was documentary evidence to the contrary, that the Member did not read. 3. The Tribunal erred in finding at [7] of the reasons for decision that "the landlord has a bona fide reason for wanting the property back," when there was no such evidence in the documents provided by the landlord. 4. The Tribunal Member made a finding against the weight of evidence that it was appropriate to make an order terminating the tenancy. 5. The Appellants were denied natural justice and procedural fairness due to the matters set out in the Notice of Appeal.
In effect the grounds of appeal are repeated and we have dealt with them below grouping them in relation to the issues they raise.

The failure to adjourn

The tenant raises this ground both as an error of law and seeks leave to appeal.
On 29 October 2020 the tenant sent an adjournment request to the Tribunal seeking adjournment of the hearing which was listed for 12 November 2020. On 4 November 2020, the Tribunal determined the request for adjournment on the papers and refused the request for adjournment.
Part of the reason the tenant was seeking an adjournment was so that the landlord could provide documents. The tenant submits that he was an unrepresented litigant and was unaware of the procedure for the issue of a summons. He had requested the Tribunal to direct the Minister to produce documents relevant to the proceedings. In those circumstances the tenant submits that the Tribunal should have explained the procedure for the issue of a summons to Mr Gay.
The tenant submits that having been made aware of the absence of relevant documents from the landlord, the Tribunal failed to ensure that all relevant material had been disclosed to the Tribunal so as to determine all relevant facts in issue in the proceedings, in breach of s38(6) of the NCAT Act.
Further, the tenant submits that the request for the documents amounted to a request for the issue of a summons and was not dealt with in accordance with s48(a) of the NCAT Act. Alternatively, even if the Appeal Panel does not find that the tenant's request for documents was a request for the issue of a summons, the Tribunal should have either directed the Registrar to issue a summons in accordance with s48(b) of the NCAT Act or the Tribunal itself could have directed the landlord to produce the requested documents to ensure that it had all relevant material before determining the issues in the proceedings.
The tenant also submits that the Tribunal had not read the documents submitted by the tenant to the Tribunal prior to the hearing and did not consider or give weight to the evidence submitted by the tenant. During the hearing, the tenant requested an adjournment so that the Tribunal Member could read the documents before making a decision; the Tribunal refused the request for an adjournment.
The tenant submits that the 15 minutes allocated to the matter was insufficient for the tenant to present the case and the matter should have been adjourned to a later date for a proper consideration of the evidence before the Tribunal.

Consideration - the interlocutory decision

In the case of John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel identified a series of grounds that might give rise to an error of law. The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present their case (at [13]). See also Minister for Immigration and Multicultural Affairs v BhardwaJ (2002) 209 CLR 597 at [40].
Section 36 of the NCAT Act sets out the guiding principle to be applied to practice and procedure of the Tribunal as follows: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
Section 38(2) of the NCAT Act provides that: [t]he Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Section 38(5) of the NCAT Act provides: The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.
In the matter of Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309, Young JA, with whom Giles JA agreed, in his reasons granting leave to appeal, stated at [43] -[46] 43. As the Full Federal Court said in Petrovic at 460, it is not sufficient that the Court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment. 44. "Injustice" is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party. 45. In making the balanced judgment required, a judge must also take into account the public interest that the judicial process must be just, cheap and quick. 46. Again this matter must be considered in a balanced way. Mr Romaniuk relied on what the plurality said in Aon Risk Services Australia v National Australia University [2009] HCA 27; 239 CLR 175, 214 at [102], that the objectives of modern court rules do not require that every application for amendment (and by analogy, adjournment) should be refused just because it wastes costs and causes some delay. Whilst these are significant matters, they are not necessarily overriding considerations. I accept that submission.
In the application for adjournment made on 29 October 2020, the tenant made the following relevant written submissions: 1. My family and I live in the house and the small unit on a 100 acre block of land which has been rented by me from DPIE for over 30 years. The homestead complex occupies about 2 acres of the overall 100 acres. 2. In June 2020 DPIE presented a proposal to the local Council to transfer the land to it for $1 on the basis it could be used to provide various public amenities which DPIE would establish at a cost of $5,000,000. 3. In July 2020 Council resolved to accept the transfer subject to a number of conditions precedent and reserved the right to withdraw from the proposed arrangement and not accept the transfer if the conditions were not met. 4. The conditions include a "significant and meaningful" community consultation process to establish the nature and extent of the $5,000,000 worth of "embellishments" which are proposed by DPIE and accepted by Council. 5. Council was clearly aware there was likely to be a significant time lapse before its conditions precedent would be met and before Council then made its final decision to accept or reject the transfer of the land. 6. Paragraph 5 of the Council resolution stated "that council strongly requests that DPIE allow the existing tenant to remain on the site as long as possible and consider a short term lease extension until the consultation process has been completed, noting the challenges in finding accommodation due to COVID -19 and the personal hardship circumstances faced by the tenants. Whilst the Application served by the agents for the DPIE states "The owners require the property vacant &need to proceed with terminating this tenancy", there is nothing in the Applicant's bundle of documents which shows why there is any need or requirement for vacant possession before the consultation process has been completed and before Council has resolved to proceed with the DPIE proposal to transfer the land to it or what DPIE intends to do with the homestead pending that determination if we are evicted. Additionally, there is nothing in the bundle which shows that the DPIE has had regard to paragraph 5 of Council's resolution. I request the Tribunal to direct the DPIE to produce any departmental memos or reports which demonstrate the DPIE's proposed use of the homestead complex if vacant possession was acquired prior to the completion of the consultation process and Council resolving to accept the transfer of the whole of the land. Please find attached a list of council resolution. Request for my wife Sue & Daughter Kate to join in these proceedings. Request to have the case adjourned to a later date.
The Tribunal provided reasons for refusing the adjournment on 4 November 2020 as follows: Reasons: There is no basis for the matter to be adjourned and delayed. The issues raised can be considered at the hearing. The matter remains listed and shall proceed.
In our view, the issue of the adjournment was properly deferred so the issues could be raised at the hearing and we do not find that the refusal of the adjournment at that stage amounted to a denial of procedural fairness. On that basis grounds 1-3 of the appeal fail.

Consideration - adjournment request at the hearing

The tenant provided to the Appeal Panel a transcript of the hearing. The landlords did not dispute the accuracy of that transcript. Section 38(5)(c) of the NCAT Act and the common law rules of procedural require the Tribunal is to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings." There is no evidence that the Tribunal did not read the evidence and the transcript shows that the Tribunal asked the tenant at least three times (see: T11:38-43; T12:8-13; T13:10-16) to take the Tribunal to relevant material contained within his evidence.
It is not, in our view, unreasonable for the Tribunal to ask a self-represented party to point out the documents that they seek to rely on in their bundle and the relevance of those documents. The tenant was given more than a reasonable opportunity to take the Tribunal to material that they sought to rely upon, and we do not find a breach of procedural fairness on that ground and on that basis, ground 5 must also fail.
However, the Tribunal proceeded in circumstances where it was on notice that the tenant was seeking an adjournment and where the tenant had requested documents be made available from the respondent.
The 'Conciliation and Hearing' on 12 November 2020 was the first time the matter had been listed before the Tribunal and as was the practice of the Consumer and Commercial Division of the Tribunal at the time, directions has been made for the parties to exchange documents prior to the hearing. In the "Reasons for Decision', the Tribunal stated at [2] the matter was heard by telephone in a 15 minute hearing with the COVID-19 pandemic arrangements. Both parties had submitted their evidence. The Tribunal was satisfied that the matter could and should proceed. Both parties were given an opportunity to state their case.
The landlord made submissions to the Appeal Panel that the tenant did not persist with the request for adjournment or documents at the outset of the hearing. An examination of the transcript demonstrates that an adjournment was not requested by the tenant at the outset, and that the Tribunal did not consider the issues raised as it had indicated in the refusal to adjourn the matter on 4 November 2020 (as set out at [46] above). The Tribunal relevantly commenced the hearing as follows: Tribunal: All right. So today the matters been listed just to see how we resolve this matter and sort things out so I know there's been some documents sent in from both parties but Ms Davies this is a - by the look of it, just a section 94 application to terminate a long term tenancy. …. Davies: Yes. Tribunal: Is that right? Davies: Yes, yes. Tribunal: Yes, okay. So yes I suppose Mr Courtney maybe you just want to perhaps outline the reasons for I guess wanting vacant possession of the property and where you're up to? Sorry Mr Courtney are you there?
After hearing from Mr Courtney the Tribunal invited the tenant's wife, Ms Gay: All right. Yes Mr or Mrs Gay, so unfortunately for you I guess under the Tenancies Act, if you're under a long term tenancy which is greater that 20 years, this is the process and if the Tribunal is satisfied that a termination order should be made well that's how we get to this stage I guess so is there anything you want to say or?
After some initial issues with the telephone, Ms Gay outlined the issue to the Tribunal as being one in which the whole process about the use of the land being clouded in secrecy. She also stated that they were not saying that they wanted all the land; they just wanted the house and the paddock. Ms Gay also made submissions about turning the property into a koala habitat and that the new parklands will impact on the koala habitats. The Tribunal informed Ms Gay that it did not have the power to control government policy and relevantly stated: …. I accept the government has plans for the landlord which they want to get underway with, they've certainly given you since earlier this year plenty notification that, you know, it's coming to the time where you're going to have to unfortunately pack up and leave your rental property and now it's just about setting a date. You know there's nothing that seems untoward about that process to me and having heard what Mr Courtney has had to say today, there is no reason that I shouldn't make the order.
Ms Gay also asked if the Tribunal had read through her entire brief. As we indicated above, the Tribunal explained to Ms Gay that if there was something she wanted to particularly rely on then she should refer the Tribunal to it. The Tribunal indicated to Ms Gay on three occasions that she should point out to the Tribunal what was relevant in her documents. After the third time that the Tribunal asked Ms Gay to refer to any particular page or paragraph, Ms Gay asked the Tribunal: Ms Gay: Can you defer it? Tribunal: No there's no need to defer this situation, an order needs to be made. As I said this has been going on since January from my understanding of this matter so today it's here
The Tribunal proceeded to make the decision to terminate the tenancy agreement.
In the reasons for decision the Tribunal relevantly stated the following: 3). The landlord stated that they wanted the property back as it had been identified for the creation of a new parkland area and recreation space for the community. The landlord stated that the works to construct the new parkland were scheduled to commence in the New Year with a completion date by the end of 2021. Whilst the management of the parkland in the future is intended to be with Wollondilly Council, if that does not eventuate, then the landlord stated that the parkland once constructed will be managed by another government agency. 4). The tenant stated that they have lived there a long time and moving will have a big impact on them. The tenant and his wife are in their 70's and clearly don't want to have to move. They believe that they have been treated unfairly and the government has conducted the matter with a lot of secrecy. The tenant stated that Wollondilly Council do not want them evicted and disputes precisely what will happen with the land. The tenant believes that there is no reason for them to be evicted. 5). The tenant submitted a large amount of material in the matter. In the time allocated the Tribunal could simply not read every page of the tenant's voluminous material. The Tribunal repeatedly asked the tenant if there was a particular document, page and/or paragraph that the tenant wanted the Tribunal to specifically read and consider. The tenant did not identify any such material. 6). The Tribunal considered that the matter was a straight forward case. It was clear from early 2020 the landlord has informed the tenant that they require the property back and the tenant has to vacate the premises. The tenant has failed to comply with any notice to vacate the property that the landlord has issued. It was clear that the landlord was then entitled to and obliged to lodge this application pursuant to Section 94 of the Residential Tenancies Act 2010. 7). In exercising discretion, the Tribunal has listened to and considered both parties cases. The Tribunal accepted that the landlord has a bona fide reason for wanting the property back and while the Tribunal accepts the tenant shall suffer a reasonable degree of hardship in vacating the property after so long as a tenant, the Tribunal accepts that the creation of a new parkland area and recreation space intended for the local community is something that is a worthwhile project and should not be delayed, altered or prevented by the tenant remaining at the property. 8). The Tribunal was satisfied that it was appropriate to make an order terminating the tenancy and returning possession of the property to the landlord. Section 94(4) requires in determining the day on which vacant possession of the residential premises is to be given to the landlord a minimum of 90 days after the order is made. Due to length of the tenancy, the Christmas and the New Year period approaching, the Tribunal decided to extend the possession date further to 31-Mar-2021.
The landlord acknowledged that the Tribunal must ensure a hearing is fair, they stated that in the case of an unrepresented party, a balance must be struck between providing assistance to an unrepresented party and achieving a fair trial for all parties. They submit that the duty does not extend to advising a party about how their rights should be exercised, rather, the decision-maker has to put the unrepresented party in the position of being able to make an effective choice and it is not the function of the decision-maker to give advice to, or conduct the case on behalf of, the unrepresented litigant.
The landlord submits that the Tribunal cannot be expected to assist the unrepresented party in a matter that a party no longer pursues during the course of the hearing. Accordingly, they submit that there was no basis in this case for Tribunal to adjourn the hearing, explain the summons procedure to the tenant or direct the Registrar to issue a summons under the NCAT Act.
An examination of s 94 of the RTA would indicate that the purpose that the land was to be used for would have been relevant to the discretion as to whether to terminate.
Section 94 of the RTA applies to termination of long term tenancies (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement - (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. (2) A landlord may make an application under this section without giving the tenant a termination notice. (3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.
The application of the NSW RTA to Commonwealth tenancies was considered in the Federal Court in the matter of Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney & Anor (No.3) [2015] FCCA 3133. At [139] - [140] Smith J stated: The approach to this case must then be to first determine whether the power to make a termination order arises. That requires consideration of whether the three conditions set out in s.94 exist on the facts of the case. Those include whether "in the circumstances" the Court considers that a termination order is appropriate: sub-s.94(1)(c). Those circumstances are, as explained in Swain, all of the matters that arise on the material before the Court including the availability of suitable alternative accommodation. Once that is considered, the second step is to consider the exercise of the discretion. As Leeming JA said in Cain, this may be surplus and may be no more than an affirmation of the consideration under sub-s.94(1)(c). Although there is a real discretion, it is difficult to imagine the circumstances in which it would be appropriate to make a termination order and then exercise the discretion not to make such an order. Once the Court decides to make a termination order it must also make an order for possession of the residential premises specifying the day on which the orders takes or took effect: s.83(1). As the minimum 90 day period specified in s.94(4) does not apply to these proceedings, there is no explicit guidance in the Tenancies Act as to the date on which possession should be ordered. In light of that, the contextual matters considered above must also be involved in the determination of the date of possession. Essentially, the determination involves a balancing of the interests of the landlord and the tenant in the circumstances of each case with some regard to the length of the tenant's possession of the land.
Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) was a case which dealt with the predecessor to the RTA which did not have a separate provision relating to the length of a tenant's occupation of premises. However, Swain provides some useful commentary on the discretion to terminate as was relevant to Residential Tenancies Act 1987 (NSW). This was summarised by Smith J in Rigney at [121] - [122]: In Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) it was argued that a landlord had the right to obtain a termination order under s.64 upon giving the requisite notice at the end of the term of a lease. Rolfe J rejected this argument, holding that the Tribunal must also be satisfied of the matters in sub-s.64(2)(c)(ii), namely, that it was appropriate to terminate the lease having considered the circumstances of the case. As to those circumstances, his Honour said: ... Possible "circumstances", which may have to be taken into account, are the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment. ... That decision was upheld on appeal: Roads and Traffic Authority v Swain (1997) 41 NSWLR 452. There, Meagher AJ, with whom Priestley and Cole JJA agreed, held at 456B, that the "circumstances" referred to in s.64 were the particular case before the Tribunal. His Honour also explained that the Act was intended to balance the rights of the landlords and tenants. See also Celemajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 at [447].
In Celemajer Holdings Pty Ltd v Kopas [2011] NSWSC, Meagher AJ, with whom Priestley and Cole JJA agreed, carefully weighed up the relevant circumstances of that case at [449]-[452] of the judgement. At [449] His Honour relevantly stated: (xiii) there is clear evidence as to the fact that the premises are wanted for another purpose and nothing to suggest that this is not a genuine purpose; there is nothing to show that the ultimate beneficiary (assuming there be one) of the trust of which Celegroup is the trustee wishes to occupy the premises personally.
At [453] His Honour, having considered all the relevant matters found: Having now found that CHPL has discharged the onus upon it to establish that the premises were not controlled premises, then the Residential Tenancies Act applies to govern the termination of Dr Kopas' tenancy. In those circumstances, having considered the matters referred to above, I am of the view that, notwithstanding the Kopas' family's long term residence in the premises, it is not appropriate to grant relief that would in effect deprive CHPL of the opportunity to derive a commercial benefit from the property for an uncertain term and grant to Dr Kopas the very life tenancy he has been unable to establish was ever agreed.
Celemajer establishes that what the premises are wanted back for and whether that is a genuine purpose may be relevant to the balancing of the discretion. In effect the tenants were challenging the purpose that the landlord wanted the premises and whether that purpose was genuine.
The landlord provided to the Appeal Panel the documents which the landlord had provided to the Tribunal prior to the hearing. Those documents included: 1. The notice of termination dates 25 June 2020 2. The residential lease agreement between the parties 3. The Trust Ledger Report 4. The Tenancy Ledger
No statements or information was contained in those documents as to the reason why the landlord required the land back.
Mr Courtney appeared at the Tribunal hearing for the landlord. He had not provided a statement beforehand to the Tribunal. While we accept that it is not necessary in every case that a statement is provided, in this case the use of the premises was a matter in contention. As is demonstrated at [52] of our reasons above, the Tribunal began the hearing by explaining to the parties that the matter was listed "just to see how to resolve the matter" and "sort things out". It did not identify that the hearing was starting or any of the processes about how the hearing would proceed.
The Tribunal then asked Mr Courtney to outline the reasons for wanting the vacant possession of the property which he did. The reason for why the respondent wanting possession of the property had not been raised in the documents of the landlord that had been provided beforehand. Mr Courtney's oral submissions at the hearing were the first time that the matter was formally addressed by the landlord to the Tribunal. There were no documents before the Tribunal to support the assertions made by Mr Courtney. We accept that if use of the property were not being challenged, oral statements made by Mr Courtney at the hearing may have been sufficient for the Tribunal to be satisfied that the landlord required the property and that the reason was genuine.
However, it is clear from the application for adjournment made on 29 October 2021 that the tenant was challenging that. This was also repeated by the tenant on a number of occasions at the hearing.
We are satisfied in those circumstances, and taking into account the guiding principle of the NCAT Act which require a 'just, quick, and cheap" resolution of matters, that an adjournment was necessary so that the parties could address the issues raised and provide any relevant supporting documents as to the use of the land. Further, the documents that were being requested by the tenant were relevant to the issues for determination by the Tribunal. We are satisfied that in those circumstances the tenant was denied procedural fairness and was denied the opportunity to seek documents from the landlord and to meet the case at the hearing. As a result grounds 4, 6, 7 and 8 have merit.
On that basis we are satisfied to extend time for the appeal and the appeal is allowed and orders made by the Tribunal are set aside.

Outcome of the Appeal

The landlord has submitted to the Appeal Panel further documents in relation to the use of the property that were not provided at the hearing. They now include a statement with annexures from Mr Courtney. The landlord submitted to us that if the appeal was upheld, then the Appeal Panel should proceed to hear the matter. We note that there is further evidence before the Appeal Panel regarding the use of the property; however the parties were not on notice to address the weighing up of the discretion or date for possession. On that basis we find that the matter should be remitted for both parties to address the matters in the weighing up of the discretion, provide any further material they seek to rely on and make submission as to the date for possession if it is found that the tenancy is terminated.
We also note that the tenants indicated they did not want all the land, the subject of the residential tenancy agreement, and only wanted 'the house and the paddock'. They say that the landlord could simply allow them to remain on part of the property and use the rest in the meantime. On a preliminary view, even if the landlord could establish a bona fide purpose for requiring return of part of the property, then that may be relevant to the exercise of the discretion. Even use of part of the land by the landlord, could in our view, establish that the premises are wanted for another bona fide purpose. In those circumstances it seems to us that the landlord would not be under an obligation to enter into a new lease arrangement for only part of the property (being the portion not required to be returned). We make this comment only as an observation.
We are also of the view that landlord only needs to establish a genuine purpose for requiring the property. It is not relevant whether the tenant may consider that the best use of the land. The termination application is not the mechanism by which the tenant can challenge what the landlord seeks to use the land for.
The matter is remitted to be re-determined by a differently constituted Tribunal. The Tribunal is to list the matters for the purposes of making directions in relation to any additional documents and submissions by the parties and otherwise to make the matter ready for the remitted hearing.
Accordingly we make the following orders: 1. The time for lodging the appeal is extended to 13 April 2021. 2. Appeal allowed. 3. The orders of the Tribunal made on 12 November 2021 are set aside. 4. Matter remitted to the Consumer and Commercial Division of the Tribunal to be heard and determined by a differently constituted Tribunal to re-determine according to law. 5. The Tribunal is to list the matters for the purposes of making directions in relation to any additional documents and submissions by the parties and otherwise to make the matter ready for the remitted hearing.

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 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: 15 November 2021

Residential Tenancies Act 1987(NSW)

At a glance

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Judgment (9 paragraphs)

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Legislation Cited (1)

Cases Cited (8)

Cited By (2)