Gordon v Glowberth Pty Ltd [2023] NSWCATAP 253 | Case summary

Grounds of appeal

The appellant's Notice of Appeal set out, in an attachment, five grounds of appeal as follows: "1. The Tribunal did not afford the Appellant natural justice prior to final orders being made for the termination of the tenancy agreement and that the Appellant give up possession immediately. 1.1. The Tribunal erred in conducting a final hearing and making final orders in circumstances where the proceedings had been listed for Directions only and no direction or order had been made for the Appellant's evidence. 1.2. The Tribunal erred in depriving the Appellant of the opportunity to rely upon its evidence and make proper submissions. 2. The Tribunal erred in finding that the Appellant had frequently failed to pay rent for the premises. 3. The Tribunal did not consider or failed to give any weight to the Respondent's evidence that rent was not payable. 4. The Tribunal erred in finding that on 12 December 2022, the Respondent issued a valid Notice to Terminate. 4.1. The Respondent's Notice of Termination relied on non-payment of rent pursuant to section 88 of the Residential Tenancies Act 2010 ("the Act") in circumstances where rent was not due and payable. 4.2. The Respondent's Notice of Termination also asserted that it was the end of a fixed term tenancy pursuant to section 84 of the Act, when in fact it was a periodic tenancy and the longer notice period of 90 days was required. 5. The Tribunal erred in failing to consider the Appellant's contention that the tenancy agreement included a term that the Appellant may occupy the subject premises until they were sold."
The appellant also sought leave to appeal on each available basis. The reasons given that leave should be granted essentially repeated the grounds of appeal.
The new evidence now available that was not reasonably available at the time of the hearing was said to be: "1 Witness statement of the Appellant; 2 Evidence that rent was not payable; 3 Evidence of additional terms to the Tenancy Agreement; 4 Evidence in reply to the evidence put forward by the Respondent/Landlord."
Mr Loxton, of counsel, who appeared for the appellant, accepted in the course of oral submissions that paragraph 2 of the grounds of appeal did not impugn the order for termination and that the remaining grounds could be subsumed into one ground, that is: That the Tribunal failed to afford the appellant procedural fairness when it proceeded to determine the application for termination, when the notice of hearing stated that the hearing would be a directions hearing and the appellant had not filed the evidence upon which he would have sought to rely to establish that the appellant was not required to pay rent under the Tenancy Agreement.
The appellant filed in support of his appeal a statement from his former solicitor, Mr See, attesting that he "did not understand that there would be a final hearing on 14 March 2023 and the appellant did not have the opportunity to file and serve evidence or prepare final submissions".
The appellant also filed a statement which was said to be the evidence which the appellant "was not given the chance to produce". That statement stated, inter alia: "In discussions between us [the appellant and Mr De Prima] it was agreed that I would continue to live at and use the property and that together we would develop the property to increase its value. It was agreed that no rent would be payable and that the property would be sold and half the proceeds above the amount of $750,000 would be split evenly between us. If or when the property was sold, I would have first right of refusal."
The appellant also stated that he had undertaken work towards the development of the property and: "23 At no time have I ever paid rent to the respondent. The notice sent in December 2022 was the first time I ever received a formal demand for the payment of rent. 24 I would not prevent the respondent from marketing the property for sale while I continue to live there, although I do reserve my right under the agreement in respect to my right of first refusal to purchase the property."
Mr Loxton relied upon further written submissions for the appellant filed at the hearing (Further Submissions for the Appellant). The conclusion to those submissions was as follows: "1. While the parties admit the RTA made on 21 May, 2014, they also say that there was a concurrent agreement dealing with the development of the land. The landlord referred to the existence of this concurrent agreement in its statement of 27 February, 2023. 2. The nature and scope of that agreement has not been tested and probably requires the intervention of the Supreme Court to make declarations to settle the terms of the concurrent agreement. 3. That determination will decide whether or not the tenant is in breach of the RTA and any rent is outstanding and if so, the quantum of that rent. 4. The matter was decided before the tenant had filed his evidence. 5. He is not at fault over that, because he has never been instructed to serve any evidence. 6. The landlord pressed for final orders on 14 March, 2023 in breach of the directions given on 13 February, 2023 7. The appeal should be allowed with the orders of 14 March, 2023 to be quashed. The matter can then be returned to the Tribunal with directions for the exchange of evidence and submissions when the matter can be fairly heard. 8. Those orders therefore deal with the stay which is not longer necessary."
The respondent submitted that the appellant had been afforded every opportunity to provide the evidence that he sought to rely upon before the final orders were made for termination of the Tenancy Agreement and possession. The respondent further submitted that it cannot be said that the Tribunal erred in failing to consider the appellant's contention that the Tenancy Agreement included a term that the appellant may occupy the premises until they were sold. The respondent submitted that the terms of the Tenancy Agreement did not include such a term.
We note that the appellant forwarded two emails to the Appeal Panel Registry on 7 August 2023, after we had reserved our decision on 9 May 2023. The respondent forwarded an email in response to the first of those emails, noting that it had not consented to the sending of that email and that it opposed the Appeal Panel taking into account any of the matters referred to in the email.
It was not appropriate to file further material without leave after the Appeal Panel had reserved its decision. As the Appeal Panel held in Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 at [109], citing Bale v Mills [2011] NSWCA 226 at [57] to [61], sending submissions without leave to the Appeal Panel is wrong, the Appeal Panel may and generally will ignore what has been sent.
We have not, in considering the appeal, had regard to any matter referred to in the emails which the appellant forwarded to the Registry on 7 August 2023.

Consideration

The appellant is correct in noting that the proceedings were fixed on 14 March 2023 for directions and not for hearing. Had the appellant been unrepresented, it may have been a denial of procedural fairness for the Tribunal to proceed to determine the application without confirming with the appellant that he was ready for that to occur: see for example Waters v Chai [2016] NSWCATAP 248 at [50] - [62].
However, the appellant was represented by a legal practitioner. It was clear from the exchanges between the Tribunal and Mr Adam that the Tribunal was embarking upon a hearing of the matter. There was no protest from Mr Adam. In particular, when the Tribunal said that it needed evidence and couldn't take evidence from the bar table, Mr Adam did not make any submission that the matter was only listed for directions or that his client had not had an opportunity to file evidence.
It cannot be said that the Tribunal embarked upon the determination of the application without notice to the appellant or without giving the appellant an opportunity to be heard.
Moreover, in circumstances where the appellant acknowledged the existence of the residential tenancy agreement in its express written terms, there was no apparent basis upon which the appellant could resist the termination of the residential tenancy agreement.
The submissions upon which the appellant relied on 14 March 2023 do not allege an agreement that the appellant could occupy the premises for eight years (or any period) without paying rent. The submissions alleged only that the appellant "would be entitled to remain in and occupy the land until it was sold" and qualifications to the obligation to pay rent. These were alleged to be implied terms or arise as part of a "concurrent agreement". Any such alleged implied term would fall foul of the rule that a term will not be implied into a contract which contradicts an express term of the contract: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347. Any alleged "concurrent agreement" remained, as the Tribunal said, open to such enforcement or other proceedings in the Supreme Court as the appellant was advised.
The Tribunal had directed the parties to file submissions "on their contentions on the matter before the Tribunal". The appellant had filed, and made, submissions in accordance with those directions and at the hearing where those submissions were considered. Those contentions did not provide any basis for resistance to the clear case for termination and possession arising on uncontested facts. It was not procedurally unfair to refuse a further adjournment and finalise the proceedings in such circumstances.
In any event, the evidence relied upon by the appellant (including the further evidence filed in support of the appeal) does not support the existence of such an agreement even if the Tribunal ought, for procedural fairness and contrary to our conclusion that what occurred was not procedurally unfair, to have permitted a further adjournment for filing and service of that evidence and submissions and such evidence and submissions had been filed and served. The Further Submissions for the Appellant asserted that the concurrent agreement was "demonstrated by": "a. The nature of the special conditions to the RTA concerning the maximum length of the lease, the distribution of the proceeds of any sale and the tenant's first right of refusal on any sale. b. The delay by the landlord in bringing these proceedings. c. The submissions made by Mr Widjaja on 13 February, 2023 at TP2.40. d. The orders made by Member Mr S Smith on 13 February, 2023 at TP 9.40. e. Submissions made by counsel for the landlord on 14 March, 2023 at TP3.10 f. The written statement of Mr Mark de Prima made on 27 February, 2023 at paragraph 3 - RB27 g. The second written statement of Mr de Prima made on 1 May, 2023 at paragraphs 4 and 9 RB 31 h. The written statement of Mr Jerry Gordon made on 22 March, 2023 at paragraphs 5, 8, 9, 10, 16, 17, 18, 19 and 20 - AB 48.
The special conditions in the Tenancy Agreement do not excuse the appellant from paying rent. Submissions made by counsel for the appellant cannot establish the existence of an agreement or the terms of any agreement. The orders of the Tribunal could have no relevance to that issue. Mr Gutierrez' submissions on 14 March 2023 went no further than acknowledging that the Tenancy Agreement had "some unusual characteristics". Mr De Prima's evidence refers to rent being offset against development costs paid by the appellant and the deferral of rent while certain ventures were pursued, with none being finalised. Mr De Prima does not acknowledge an agreement that the appellant would never pay the rent due under Tenancy Agreement.
While the appellant's statement asserts an agreement between the parties "that no rent would be payable", the appellant does not attempt to explain how that agreement can be reconciled with the parties' entry into the Tenancy Agreement.
Since the appellant claimed to have filed in support of the appeal the evidence upon which he would have relied if he had been given the opportunity to do so, we are satisfied that the fact that the Tribunal determined the application before the appellant had filed the evidence upon which he sought to rely made no difference to the outcome of the application. Hence, even if we were incorrect in concluding that there was no denial of procedural fairness in the Tribunal's determination of the application on 14 March 2023, we would find that any denial of procedural fairness was not material to the decision reached by the Tribunal: See Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [2019] HCA 3; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [2021] HCA 17. The appellant has not established that the exclusion of that evidence was material in that, had that evidence been before the Tribunal on 14 March 2023 or at a later hearing, there was a realistic prospect of a better outcome: Nathanson v Minister for Home Affairs [2022] HCA 26.
The appellant is not precluded by the Tribunal's orders from taking such action as he may be advised to resolve the other alleged rights and obligations between the parties. Mr Gutierrez, who appeared for the respondent at the hearing of the appeal, acknowledged (as the Tribunal also noted during the hearing on 14 March) that an order terminating a residential tenancy agreement and an order for possession, as mandated by section 83 of the RTA, do not create any issue estoppel or res judicata preventing the appellant from making any claim, in proceedings in an appropriate forum, to an entitlement in respect of the property.
Although it was not the subject of any ground of appeal, the appellant made the submission at the hearing of the appeal that he should be allowed time to move from the property, if his appeal was not successful. The orders made on 14 March 2023 did not allow the appellant time to vacate the property but required possession to be given on that day. The appellant's statement included evidence that he had a number of heavy items of equipment on the property which it will be expensive and time consuming to move. The appellant also stated that it had taken him and his family two weeks to move into the property in August 2022 after he had lived elsewhere for a number of years. The appellant maintained that his ex-wife and daughter have resided on the property throughout the tenancy. The appellant sought a period of at least four weeks to vacate the property.
We did not understand Mr Gutierrez to oppose the orders of the Tribunal being varied to allow the appellant four weeks to vacate the property in the event that the appeal is dismissed. We consider such a variation to the orders to be appropriate and will vary the orders made on 14 March 2023 to suspend the order for possession until four weeks after the publication of this decision.
For the foregoing reasons, leave to appeal will be refused and the appeal dismissed, subject to the amendment of the orders referred to in the preceding paragraph.

Gordon v Glowberth Pty Ltd

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Judgment (6 paragraphs)

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