Halil v NSW Land and Housing Corporation

NCAT Appeal Panel|2022-02-28

REASONS FOR DECISION

These reasons relate to two appeals brought by a social housing tenant from two separate decisions made by the Tribunal arising out of disputes which arose between the appellant and her landlord. With no disrespect to the parties, we shall refer to them in these reasons as the tenant and the landlord.
For the reasons that follow each appeal is dismissed.
In these reasons all references to sections are references to sections of the Residential Tenancies Act 2010 (NSW) (the "RTA") unless otherwise specified.
On the appeal the tenant's nephew, Mr Hassan, sought and was granted leave to appear for the tenant. He did so by telephone. It was apparent the tenant was present for the whole of the appeal with Mr Hassan. A Turkish speaking interpreter was available to assist the tenant and the Tribunal however his services were not required. Mr Hassan spoke very good English and it became apparent that the tenant understood most of what we said without it being translated.

Extension of Time to Appeal

The Notice of Appeal was filed approximately four weeks out of time.
The principles applicable to an application to extend time in the Tribunal were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In short, it is relevant to consider the length of the delay, the reason for the delay, the tenant's prospects of success and the extent of any prejudice suffered by the landlord.
As explained below, the tenant's prospects of success are nil. The delay is relatively short and there is no relevant prejudice to the landlord in relation to the appeal arising from that delay.
In terms of the reasons for the delay, the tenant submitted that she only received the written decision from the Tribunal on 27 October 2022. That is mistaken. That was a reference to the decision of the tribunal on the set-aside applications. In her Notice of Appeal, she acknowledged receipt of the decision appealed from on 15 September 2022.
The tenant relied on a medical certificate to prove that she had been ill. However, that certificate did not establish that she was unable to attend to her appeal, and in any event, she relied on others to draft the Notice of Appeal, the grounds of appeal and the submissions in support, which extended for some 33 pages.
The tenant submitted that the appeal was very complicated and required her to make legal arguments on questions of law. She submitted there were lots of issues raised, and she needed time to write the response that was requested.
We do not agree. Although many issues were raised, they involve substantial misconceptions as to the applicable law, inaccurate descriptions of the facts and misconceived submissions. An example of the latter is that the tenant spent a lot of time at the hearing of the appeal arguing that the rental arrears due at the time of the hearing were caused by the landlord's cancellation of her rental subsidy. This was illogical. The tenant's successful appeal occurred in August 2021, with the result that her arrears were reduced from some $30,000 to just over $9,000. From that moment on, arrears accrued, self-evidently, because the tenant only paid about $110 per week instead of the rent of $425 per week.
Accordingly, we refuse the application to extend time to appeal on the basis we were not satisfied there was an adequate reason for the delay and, more importantly, because the tenant's prospects of success were nil. Our reasons for that latter observation are set out below.

The Tribunal's Decision in the Termination Proceedings

As earlier mentioned, the Tribunal refused the tenant's application for adjournment.
The Tribunal summarised the case at [22] of its reasons in the following terms: "The Tribunal has considered the parties' cases. As stated, the landlord's case is simply relating to non-payment of rent. It appears that the landlord has attempted to engage the tenant on many occasions to try and resolve the issue. The tenant has failed to engage on every occasion. It is unclear to the Tribunal on any basis on which the tenant defends this matter. It is clear that the tenant is refusing to pay the market rent and has made absolutely no attempt to rectify the breach and start paying off the arrears. In respect to the tenant's case, it is clear that the landlord accepts the need to carry out repairs to the property and is ready and-willing to do so. The landlord's response and evidence shows that despite many attempts to engage with the tenant to gain access to carry out the repairs, the tenant seems to be reluctant to engage and not forthcoming in trying to work with the landlord to organise having any required work completed, thereby mitigating any loss(es) that could have been avoided. Based upon what the Tribunal has to consider at this stage, it does not appear that the tenant has a strong case in respect of either application."
The Tribunal said that the landlord sought an order for termination and possession of the premises based upon non-payment of rent. The tenant failed to appear. The rental arrears at the date of the hearing were $27,330.18. The Tribunal checked all the landlord's documents and found that they were all in order. The Tribunal (correctly) determined that it had jurisdiction to determine the matter.
The Tribunal found that ss 82, 87, 88 and 89(5) were all satisfied. The Tribunal found that the application had been properly lodged, within time and could proceed.
The Tribunal then turned to whether the failure to pay rent was sufficient to justify termination of the agreement per s 87(4) and (5) and taking into account the considerations applicable to a social housing tenancy per s 154(E).
In relation to those matters the Tribunal said: "28. The landlord stated that the current rental arrears owing to today were $27,330.18. The tenant's rental subsidy was cancelled last year after a merit review, which has been upheld, due to unapproved additional occupants in the property. The landlord has asked the tenant continuously to engage, provide further material, and/or apply with appropriate supported information for a further subsidy review. The landlord states that there has been no engagement to that end by the tenant. The landlord submits that the breach is serious and the arrears substantial. The landlord states that the tenant has made absolutely no attempt to rectify the breach and continues only to pay a reduced amount which means that the arrears continue to escalate. 29. The landlord submits that the tenant's pension amount is not sufficient to pay the rent on this property but on an affordability assessment she can afford private rental and upon investigation on the internet there appears approximately 37 properties within the relative range of affordability for the tenant within the private sector. 30. The landlord reiterates that the tenant has been given many opportunities to engage and resolve the matter but has failed to do so. The landlord states that this is a three-bedroom townhouse with high demand and up to a fifteen year wait list which limits their ability to offer the property to another tenant when she is not paying the rent as required but remaining in the property. The landlord states that non-payment of rent also generally effects their budgets and capacity to respond and spend money on other tenant's properties where required. The landlord states that the tenant's refusal to allow them access to carry out repairs on this property is also leading to the property deteriorating, requiring further, and potentially more expensive, repairs and potentially impacting neighbouring properties as the defects spread. Overall, the landlord submits that the tenancy is now untenable because the tenant has been afforded procedural fairness and natural justice at all times and every opportunity has now been exhausted. The landlord requests an order for termination and vacant possession be made allowing four weeks' time to give the tenant a reasonable time to move. 31. The matter is uncontested because the tenant has failed to appear as required. In so much as what the Tribunal can take into account from the documents on the tenant's circumstances, the tenant is a 71-year-old pensioner. She has been at the premises since approximately 2014. She does have medical issues. Although the tenant states that she is at risk of homelessness, the tenant has not taken any steps to rectify the breach, engage with the landlord or seek to try and resolve the matter. It does appear from the history of the matter that the tenant does have family assistance and support. There is nothing in the material to suggest that the tenant can, or will, pay the market rental amount as required. 32. Taking into account all the above circumstances as presented in consideration of both the general and social housing provisions pursuant to the legislation, the Tribunal finds that the breach is, in the circumstances of the case, sufficient to justify termination of the agreement and make the orders as sought by the landlord. Based upon the material presented, the Tribunal can see no other manner in which the matter can be resolved. The Tribunal is not presented with anything that gives any suggestion that if a specific performance order were made, it would be complied with, or that the matter would resolve in any other way because the tenant has made no such efforts at all to resolve the matter before now. The order for termination and possession is made as sought allowing the tenant a reasonable time to vacate."

The Grounds of Appeal and Our Reasons for Deciding They Have No Merit

In this part of our reasons, we shall only deal with those grounds of appeal, which strictly relate to the decision to terminate the residential tenancy agreement. The tenant also raised other issues only relevant to the rent reduction appeal, and we shall consider those issues under that heading below.
Some of the grounds of appeal could conceivably have raised questions of law, some raised issues for which leave to appeal would be required. We shall not take up undue time in attempting to ascertain which grounds of appeal conceivably require leave to appeal and which do not as none have any merit. Therefore, we shall simply deal with the merit of each ground. Suffice to say that leave to appeal any of the grounds for which leave would have been required, had we extended time, would have been refused, with the balance of the appeal dismissed.
What follows below broadly follows the order of the grounds of appeal mentioned by the tenant in the document attached to the Notice of Appeal and paginated as pp.18-48.
The tenant first submitted that the Tribunal did not have jurisdiction to determine the proceedings, and that various (unidentified) sections of the RTA we are not satisfied. Why that was so was not explained. The Tribunal was satisfied it had jurisdiction and so do we. The matter fell within s 187.
The tenant submitted that the residential tenancy agreement tendered by the landlord was not the same as the document that she has in her possession. The tenant never tendered to the first-instance Tribunals or to the Appeal Panel a copy of the agreement she says she has, and which is allegedly different to the one relied on by the landlord. Therefore, there is no substance to this assertion.
The tenant submitted that the decision in the termination proceedings was incorrect because only a single page of the rent ledger was ever given to her, and therefore she was not given an opportunity to look at it or pick up errors. There was no error in the Tribunal relying upon the evidence given to it and which disclosed the balance of the rental arrears owing. At no stage, either at first instance, or on appeal, did the tenant attempt to lead any evidence of the amounts of rent that she had paid if she desired to prove that the arrears were different to those stated in the one page of the rent ledger tendered.
The tenant submitted that the termination notice was retaliatory. No oral or written submissions were advanced to support that submission and it does not appear to have been raised below. We take the view the ground was abandoned. If not abandoned, we see no substance in it.
The tenant submitted that the termination notice given to her on 21 March 2022 did not comply with s 88(3) and was therefore invalid. Section 88(3) says: A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent, water usage charges or utility charges owing or enters into, and fully complies with, a repayment plan agreed with the landlord, unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent, water usage charges or utility charges on time.
In this case, the termination notice said that the landlord would not terminate the tenancy if the tenant paid all the rent she owed or entered into and followed an agreed repayment plan until the outstanding amount was paid off. In our view the termination notice complied with s 88(3) in substance. It may not have used the exact words of s 88(3), but it was not required to. It was required to convey certain information which it did.
The tenant submitted that the circumstances of the case were not sufficient to justify termination of the residential tenancy agreement. She submitted that the Tribunal erred in failing to consider the history of the matter (what "history" was not identified), the efforts she made to engage with the landlord and the other proceedings (the rent reduction proceedings). She submitted that the landlord did not afford her procedural fairness or natural justice (how that was so was not identified) in their conduct of the case, their handling of the cancellation of the rental subsidy and the termination of the tenancy. There is no substance to these assertions which are made without any attempt to identify any factual or legal basis for the assertions. Simply making these assertions does not make them so. There is nothing to indicate any unfairness or lack of natural justice in the landlord's conduct. The tenant's engagement with the landlord (or rather the lack thereof) and other matters is dealt with elsewhere below. Suffice to say, however, that the accumulation of substantial rental arrears over a long period of time where the premises were in hazardous and poor condition because the tenant denied access to the landlord to effect repairs and maintenance amply justified termination of the tenancy.
The tenant submitted the Tribunal erred in its application of s 87 and particularly s 87(5)(c). Section 87(1)-(5) is in the following terms: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that - (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy.
The Tribunal found, at [31], that the tenant had not taken any steps to rectify the breaches (being failures to pay rent), engage with the landlord or seek to try and resolve the matter. The relevant breaches were the recurrent non-payment of rent. The tenant's submissions were not directed to those breaches, but rather to her alleged attempts to engage with the landlord in terms of the landlord's attempts to undertake maintenance and repairs. That is not the focus of s 87(5)(c) which concerns any steps the tenant took to remedy her recurrent failure to pay rent. There were none.
On the appeal Mr Hassan took us to two documents in which he said the tenant attempted to engage with the landlord in relation to rent. Neither document supported his submission.
The tenant also complained about the Tribunal's consideration of the steps taken by the landlord concerning the breaches per s 87(5)(d). Most of the tenant's submissions in this regard raised several grievances concerning the cancellation of the rental subsidy, the landlord's actions which allegedly disadvantaged the tenant in the proceedings (none of which were made out), the delay in the determination of her rental subsidy appeal and certain procedural matters. These were not related to the breach of the residential tenancy agreement upon which the landlord relied, namely, the recurrent failure to pay rent. Insofar as the tenant complained about the landlord's alleged disadvantageous conduct of the litigation, none of the allegations were made out.
As s 87(5) is discretionary, in that the sub-section says that the Tribunal "may" consider certain matters, the tenant would be required to establish error per the principles in House v R (1936) 55 CLR 499; [1936] HCA 40, namely that the Tribunal: 1. made an error of legal principle, 2. made a material error of fact, 3. took into account some irrelevant matter, 4. failed to take into account, or gave insufficient weight to, some relevant matter, or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
That is, in considering the circumstances of the case per s 87(5), the tenant would have to establish that in considering the matters the Tribunal did consider it committed one of the errors mentioned above. The tenant failed to establish any of those matters.
The tenant submitted that cl 10(2) of Schedule 4 of the NCAT Act was not considered by the Tribunal in the tenant's adjournment application determined on 12 September 2022. That clause says: 10 Proceedings causing disadvantage (1) The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal). (2) The Tribunal may - (a) if the party causing the disadvantage is the applicant - order that the proceedings (or part of the proceedings) be dismissed or struck out, or (b) if the party causing the disadvantage is not the applicant - (i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or (ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings). (3) Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following - (a) the extent to which the party is familiar with the procedures of the Tribunal, (b) the party's capacity to understand, and act on, a direction of the Tribunal, (c) whether the party suffers from a disability, (d) whether the party is acting deliberately in failing to comply with the Tribunal's directions. (4) The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act.
The tenant submitted that the landlord conducted the proceedings in a way that disadvantaged her and cited the landlord's failure to comply with the Tribunal's directions. That assertion related to the late lodgement and service of the landlord's evidence which allegedly prejudiced the tenant's preparation of her case. The Tribunal addressed that issue at [18] as follows: "Based upon the lodgement of the applications and the history of the matters, the Tribunal considers that the tenant has had more than sufficient time to prepare and present her case in respect of both the applications. The final documents that the landlord presented were submitted and given to the tenant on 29 July 2022. The tenant at that time did not request any extension of time to respond. The original procedural directions required the tenant to respond within approximately 11 days. Based upon those original procedural directions and the timeline for responses, even though the landlord's documents were late, the Tribunal finds that the tenant has clearly had more than sufficient time to prepare and respond to the landlord's documents before the hearing date. In any event, if there was an issue or that time was insufficient time for the tenant to respond, then there is no explanation from the tenant as to why she did not contact the Tribunal back then and request an extension of time to respond."
We note that 45 days elapsed between the date the landlord served its evidence and the hearing date.
Returning to the submission, the issue raised by cl 10(2) of Schedule 4 of the NCAT Act was considered by the Tribunal and the alleged error - the failure to consider it - is incorrect.
The tenant next submitted that she was a long-term tenant pursuant to s 94 and therefore the Tribunal, in determining the day on which vacant possession of the residential premises was to be given, could not order that vacant possession be given earlier than 90 days after the order was made. In this case the termination was effective immediately, and possession was to be given immediately, although the order for possession was suspended for about one month.
The tenant was not a long-term tenant because she only became a tenant when she signed the residential tenancy agreement in 2019. Before that time her husband was the tenant, he being the only one to sign the previous tenancy agreement.
The tenant submitted that the landlord's original cancellation of the rental subsidy was invalid. This was not an issue in the proceedings. In any event, it was irrelevant. The tenant appealed that decision and was successful.
The tenant submitted that the Tribunal erred in its application of s154E. That section says: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following - (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.
The Tribunal expressly referred to this section in its reasons and several factual matters which were relevant to it. The submissions now made by the tenant were not made to the Tribunal as the tenant failed to appear at the hearing, although the Tribunal realised that some hardship would be occasioned to the tenant and therefore took the hardship she would experience into account. Be that as it may, the tenant would have to establish the Tribunal failed to have regard to one or more of the matters set out in s 154E(1) or House v R error in relation to any matter considered under s 154E(2), and she failed to do either on the appeal.
The tenant submitted she suffered a miscarriage of justice because the landlord served its documents late (which we have already addressed above), that the Tribunal erred in refusing her adjournment application on 12 September 2022 because she desired to serve a summons seeking additional documents on the landlord, she required legal representation, and that the original cancellation of the rental subsidy was malicious and vexatious litigation.
The allegation that the original cancellation of the rental subsidy was malicious and vexatious is simply that, an allegation. There is no substance provided to support that serious charge, and the facts as known contradict it. In any event, the original decision was changed and to the benefit of the tenant. She never sought to challenge that later decision within the time allowed.
We deal with the adjournment application later in these reasons in relation to the rent reduction appeal. Suffice to say it was based on the alleged need to collate, lodge and serve 1,500 pages of documents and to issue a summons to the landlord to produce certain documents concerning the maintenance of the premises.
The tenant had legal representation for a time, provided by the Western Sydney Tenants' Advice & Advocacy Service which ceased acting for her as the Service was unable to get in contact with the tenant or Mr Hassan.
Further, the matters were not complex. The plain fact is that the tenant recurrently failed to pay the rent she had agreed to pay and refused to allow the landlord to effect maintenance and repairs. Any complexity in the matters arose from the tenant's conduct of the proceedings, her many attempts to obtain adjournments, her failures to appear, and her unfocused, unstructured assertions and misconceptions repeated often and at length.
We have attempted to set out above and deal with what might be regarded as matters touching on grounds of appeal. The document we have referred to was not easy to follow or understand. It stated a matter, moved to other matters, then returned to the original matter more than once later in the document. It is full of legal misconceptions, contains a plethora of unsupported assertions, and, where it does touch on evidence, is frequently inaccurate. We point that out not to be critical of the tenant but to describe the difficulty we have had in trying to determine whether there were any arguable grounds of appeal (per Cominos). We have described above as best we could those matters which we were able to distil from the materials.
For the reasons set out above, we see no merit in any of the grounds alleged and accordingly refuse to extend the time to appeal.

Extension of Time to Appeal

The Notice of Appeal was one day late. The landlord did not oppose an extension of time. There is no prejudice to the landlord if we extend the time. We therefore order that time for the tenant to lodge a Notice of Appeal be extended up to and including 19 January 2023.
We shall briefly summarise the Tribunal's decision before setting out our reasons for deciding that the grounds of appeal had no merit.

The Tribunal's Decision

The Tribunal noted that the tenant appeared by telephone represented by her nephew, Mr Hassan. A Turkish speaking interpreter was available to assist the tenant and the Tribunal.
The Tribunal said that the tenant advised the Tribunal that she was seeking the following orders: 1. an order pursuant to s 45 reducing the rent payable where the premises are unusable or uninhabitable or destroyed; 2. an order pursuant to s 44(1)(b) where the rent is excessive having regard to the reduction or withdrawal of goods or services or facilities provided with the premises; 3. an order pursuant to s 141 that the rent payable under the agreement was excessive; 4. an order for repairs pursuant to s 65. 5. an order pursuant to s 65(1)(b) that the tenant be reimbursed for urgent repairs; 6. an order for compensation pursuant to s 187 for damage to the tenant's goods and her health ($15,000.00); 7. an order pursuant to s 50 for breach of peace and quiet enjoyment by the landlord ($15,000.00); and 8. orders pursuant to ss 111 and 115 which concerned the termination of the tenancy and which the Tribunal correctly said were misconceived.
The orders mentioned in sub-paragraphs 4, 5 and 8 were not pursed on appeal and need not be further mentioned.
The tenant sought an adjournment of the hearing because she wished to issue a summons to the landlord in relation to the condition of the property and lack of repair and maintenance. The application was opposed.
The Tribunal set out the procedural history relevant to the summons at [14] as follows: "The original proceedings were filed in December 2021 and directions made for the filing and serving of documents on 2 February 2022 and 10 May 2022. The original request for a Summons was made on 9 September 2022 and the hearing of the matter was scheduled for 12 September 2022. The tenant stated that she did not request the Summons earlier due to ill health and she was also not aware of "all the false claims by the landlord" until it filed its evidence in July 2022. The tenant's application was dismissed on 12 September 2022 and the Tribunal dealt with the request for summons by the tenant in its decision. The reinstatement application was filed on 23 September 2022. A decision was made to reinstate the proceedings on 24 October 2022. A notice of hearing was sent to the tenant on 24 October 2022. The summons request was not made by the tenant until 18 November 2022. No reasonable explanation has been provided for the Tribunal for the delay in making a summons request. Despite the tenant's poor health, she has had the assistance of several family members in conducting these proceedings. There is no reasonable explanation as to why a family member has not been able to assist her."
The Tribunal noted that the landlord stated that there was no dispute that maintenance was required on the property. The Tribunal said there was little relevance in obtaining the maintenance records (the subject of the summons) in light of that concession, the matter had had a long and complex history and the matter needed to be finalised.
The Tribunal referred to s 51 of the NCAT Act which relates to adjournments, it referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 3030; [2013] HCA 46 which, the Tribunal said, established that: "… (1) applications for adjournment should NOT be considered solely by reference to whether any prejudice can be compensated by costs, (2) the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to adjourn, and (3) the impact on other pending cases is a relevant consideration since the resolution of disputes serves the public as a whole, not merely the parties to the proceedings."
The Tribunal said that to obtain an adjournment the tenant needed to explain why an adjournment was warranted, citing AHB v NSW Trustee and Guardian [2014] NSWCA 40. The Tribunal quoted (and evidently applied, at least by analogy) what was said by Macfarlan JA in that case, with whom Gleeson and Leeming JJA agreed, at [6], namely: "… This matter was fixed for hearing some considerable time ago and its presence in the List has prevented other matters being listed for hearing. The Court will not permit its List to be disrupted in this way without good reason."
The Tribunal said although each application depended on its own circumstances, a list of the matters which may affect a decision whether to adjourn were: 1. when the application should have been made and when it was made; 2. the reason(s) given for the request; 3. whether the application is the fault of one of the parties; 4. any evidence provided in support or opposition; 5. whether some or all the hearing time can be preserved; 6. the impact on the parties if the request is granted; 7. the impact on the parties if the request is refused; 8. any injustice that may occur and whether that can be avoided; 9. any cost consequences; and 10. the interests on the Tribunal.
The Tribunal said the interests of the Tribunal included the limited resources of the Tribunal, both in relation to time and money, the target finalisation date for the proceedings, the competing claims of other litigants awaiting a hearing, and a need for an expectation that matters will be heard when they are listed for hearing.
The Tribunal then said at [22]: "The application for an adjournment is refused. The tenant failed to provide a reasonable explanation for the delay in making the summons request. The tenant has had the landlord's evidence since July 2022, yet the request for a Summons was not made until 3 days prior to the hearing in November 2022. The landlord concedes the need for repairs. The applicant has not satisfied the Tribunal that the summons of maintenance records, considering the landlord conceding the need for repairs, is necessary. The matter has had a long and complex history and it is in the interests of the Tribunal and the parties to have the matter finalised as soon as possible."
The Tribunal then turned to the tenant's claims.
The Tribunal summarised the tenant's evidence at [28] and the landlord's evidence at [29]. The Tribunal said that there was little dispute as to the condition of the property. The Tribunal said that there was extensive visible mould growth at numerous locations throughout the property due to chronic damp conditions experienced internally within the dwelling and which rendered the premises not fit for habitation, and specifically not fit for occupancy by mould sensitive people. The Tribunal said that the landlord did not dispute that there was a need to carry out work on the property. Rather, the landlord argued that the tenant had denied the landlord access to the premises to effect repairs and maintenance and had therefore prevented the landlord from carrying out the necessary works.
The Tribunal noted that the only independent evidence of the condition of the property was the report of Safety and Environmental Services Australia Pty Ltd ("SESA"), and that the tenant had been given two opportunities to provide a building report but had failed to do so. The SESA report stated that the cause of the visible mould growth was building defects (which allowed water ingress) and prolonged elevated humidity.
The Tribunal then dismissed the tenant's claim under s 45. That section says that the Tribunal may make an order determining the amount of rent payable if the rent is abated under section 43(2). Section 43(2) says: (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are - (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process.
The Tribunal held that the cause of the building defect was the landlord's failure to maintain and repair the premises, that that failure was a breach of the residential tenancy agreement, and therefore the words "otherwise than as a result of a breach of an agreement" in s 43(2)(a) applied to exclude the claim.
The Tribunal then turned to the tenant's claim under s 44(1) which provides that the Tribunal may order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises.
The Tribunal dismissed that claim on the basis that the Tribunal found the tenant had not mitigated her loss in that she had acted unreasonably in not allowing the landlord access to repair and maintain the premises. The Tribunal said at [46]-[47]: "46. The Tribunal is satisfied that the tenant has acted unreasonably in not allowing the landlord access. The evidence establishes that the landlord has made numerous attempts to contact the tenant to carry out repairs since March 2021. Applications have been filed with the Tribunal to gain access. Numerous visits have been made to the property to identify a scope of works. The landlord has been willing and able since January 2022 to carry out the repairs. The tenant has failed to give proper instructions to Legal Aid and the tenant's advocate in relation to her own claims for repairs and compensation. The tenant has sought adjournments on each occasion that her own and the landlord's applications have been before the Tribunal. The tenant sought an adjournment of these proceedings before the Tribunal. The Tribunal finds that a reasonable person who is seeking repairs to the property due to the poor condition of the property would be doing everything possible to have the matters determined and finalised by the Tribunal as soon as possible, not seeking adjournments at every opportunity. The Tribunal is not satisfied that the tenant has done everything she can to try and alleviate the issues she is experiencing. The correspondence between the tenant and the landlord demonstrates that the landlord has acted reasonably and with due diligence to try and gain access, including legal steps; determining the works that need to be carried out; obtaining a scope of works and trying to obtain access to carry out the works including attempting to arrange temporary accommodation for the tenant whilst the works are carried out. The tenant has at all times been uncooperative and obstructive. 47. The Tribunal finds that the tenant has failed to mitigate her loss and therefore the tenant is not entitled to a rental reduction pursuant to section 44(1)(b)."
The tenant's Notice of Appeal said the following: A. ORDERS CHALLENGED ON APPEAL Dismissal of the application Refusal to issue a summons Refusal of adjournment request to issue summons B. GROUNDS OF APPEAL The tribunal member did not have all my evidence I submitted to the tribunal. I later discovered that the tribunal incorrectly place all my evidence into off-site storage. The tribunal failed and refused to retrieve the evidence. The matter should not have proceeded to hearing on the 21 November 22 until the tribunal discover what happened to all my evidence. Concerns were raised on multiple occasions to the member during the hearing that she did not have all my evidence. Failure of tribunal to manage documents and evidence submitted. NCAT refused to issue a summons on two separate applications Error of law mitigation of loss Failure to apply relevant law Misinterpretation of and error in applying facts and evidence Lack of procedural fairness Failure to deal with complete application Error of law access to property NCAT made an error of law by interpreting the Residential Tenancies Act incorrectly NCAT made an error of law by taking into account irrelevant considerations NCAT made an error of law by failing to take into account the factors stipulated by the statue and legislation NCAT made an error of law by failing to give an adequate explanation of its reasoning process Error of the tribunal by not properly interpreting the words of the legislation The Tribunal did not give adequate reasons for the decision the Tribunal did not have any evidence to support its factual finding The Tribunal misapplied the law to the facts that it found The tribunal member assisted the respondent in making submissions and coached the respondent in replying to the applicant. Issues were raised by the Member at the hearing that were not the subject of any prior submission or evidence put forward by the landlord. NCAT did not consider relevant matter/ evidence Tribunal erred in finding that the tenant had failed to mitigate loss Tribunal erred in not applying the correct legal principles The Tribunal erred in failing to consider other relevant circumstances Error of law Residential Tenancies Act 2010 sections s 141, s 45, s 43, s 44, s 65, s 187, s 5O, s 65(1)(b), 111, 115 C. ORDERS THE NCAT APPEAL PANEL SHOULD MAKE Set aside the decision dismissing the application

The Grounds of Appeal and Our Reasons for Deciding They Have No Merit

There is no merit in any of the grounds of appeal save for one. In relation to that one ground the Tribunal arrived at the correct result but for the wrong reasons. As with earlier in our decision, we shall not take up undue time with attempting to ascertain which grounds of appeal conceivably require leave to appeal and which do not.
The grounds of appeal were not supported by the filing of any useful or relevant submissions or evidence provided to the Tribunal at first instance by the tenant, although we did have a bundle of documents provided by the landlord which included a transcript of the hearing before the Tribunal.
We have decided this appeal by examining each of the six tenant's claims which are the subject of this appeal and in the order that they appear in the Tribunal's reasons and have done so in the manner suggested by Cominos and Mendonca (see [64] above).

Section 45 rent abatement

The first claim considered was that made under s 45 for an abatement of rent. The Tribunal held that that section did not apply (see [127]-[128] above). No oral submissions were made identifying any alleged error in the Tribunal's reasoning and none is discernible to us.

Section 44(1)(b) rent reduction

The second claim considered by the Tribunal was that made under s 44(1)(b) for a reduction or rent having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. The Tribunal dismissed that claim because the tenant had denied the landlord access to effect repairs and maintenance, and the Tribunal held that this amounted to a failure by the tenant to mitigate her loss.
We are not sure whether the so-called duty to mitigate applies to claims made under s 44(1)(b) because such a claim is not a claim for damages. In Halsbury's Laws of Australia, online edition, at [135-25], the authors only refer to a failure to mitigate arising in circumstances of a tort or breach of contract which causes damage. The authors said (footnotes omitted): "Plaintiffs who are the victims of a tort or breach of contract are required to respond reasonably to the defendant's wrong. They cannot simply lie by and let the losses flowing from that wrong multiply. Rather, they must act to keep the damages down as far as is reasonable in all the circumstances of the case. If they fail to do so, their award of damages will exclude recovery for those losses which could reasonably have been avoided. … Thus, it is apparent that the application of the principle of mitigation, which acts as a qualification of the principle of compensation, can result either in the reduction or augmentation of the plaintiff's damages. Failure to mitigate loss is not actionable, but merely reduces the damages payable by the defendant."
Whilst the Tribunal did find that the landlord breached its obligation to maintain, this particular claim was not for damages. Nowhere in the RTA is there a provision requiring tenants to mitigate their claim for a rent reduction. In that respect we are of the opinion that the Tribunal erred in erroneously applying an inapplicable legal principle.
Having said that, in our opinion the dismissal of the s 44 claim was correct but for different reasons.
A failure to maintain and repair may (not must) amount to a reduction or withdrawal by the landlord of goods, services or facilities provided with the residential premises within the meaning of s 44(1)(b). In Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 the Appeal Panel said: "113. There is no doubt a landlord is under an obligation to carry out all repairs necessary to maintain the premises in a reasonable state of repair: see s 63 of the RT Act. The obligation to repair includes an obligation to make good and maintain internal surfaces affected by mould which is caused by defects in the exterior of the premises. An order for repairs can be made by the Tribunal under s 63(2) of the RT Act in circumstances where the landlord has notice or ought reasonably be aware of the need for repairs but fails to act with reasonable diligence to have the repair carried out: see s 65(3) of the RT Act 114. Where this does not occur, an act or omission by the landlord giving rise to the state of disrepair can amount to a reduction or withdrawal of goods, services or facilities. 115. Whether there has been a breach of the obligation to repair and what is the nature of the breach depends upon the circumstances giving rise to the complaint and the actions of the landlord in rectifying the defect."
In the present case the landlord did not fail to act with reasonable diligence. Indeed, the Tribunal made a factual finding at [46] that the landlord had "acted reasonably and with due diligence to try and gain access" to the premises, including making an application to the Tribunal.
Therefore, in the circumstances described in [46] of the Tribunal's reasons, we find that the landlord did not reduce or withdraw any goods, services or facilities provided with the residential premises. Rather, on the evidence and the Tribunal's factual findings, the cause of any reduction or withdrawal of the goods, services or facilities experienced by the tenant was the tenant herself (in refusing to provide access to the landlord).
The bulk of the tenant's submissions on the hearing of the appeal amounted to an attempt to re-litigate the Tribunal's finding that the tenant had denied access to the landlord.
The Tribunal made careful and extensive factual findings in support of its ultimate finding that she had denied the landlord access at [41] of the Tribunal's reasons. Therein the Tribunal said: "The Tribunal makes the following findings in relation to the tenant denying access to the landlord. (a) On 20 January 2021 the landlord issued to the tenant a termination notice due to non payment of rent. (b) On 16 February 2021 the tenant wrote to the Minister for Housing requesting assistance regarding cancellation of her rental subsidy, as part of that correspondence the tenant reported that she believed her property was not structurally sound and was full of mould and asbestos. (c) On 2 March 2021 the landlord hand delivered to the property and left in the tenant's mailbox a letter requesting access to the property to inspect the property and carry out repairs. on 3 March 2021. (d) On 3 March 2021 the landlord attended the property and the tenant refused access for the landlord. (e) The landlord made numerous attempts to gain access to the property by visiting the property and leaving call cards for the tenant to contact them. The tenant failed to provide reasonable access to the landlord. (f) On 2 July 2021 the landlord filed an application to the Tribunal requesting an urgent hearing under ss60 and 73(a) of the Act to enable the landlord to gain access and determine what works needed to be carried out (SH21/28649). (g) A telephone hearing was arranged by the Tribunal on 12 July 2021. Legal Aid appeared on behalf of the tenant and sought an adjournment due to concerns relating to COVID and tradespersons attending the property. The Tribunal granted the adjournment as Legal Aid advised that there were no current urgent repairs that posed a risk to the tenant. The matter next came before the Tribunal on 2 September 2021 where the matter was further adjourned due to COVID 19 LGA lockdowns. (h) On 7 December 2021 the Tribunal made access orders for the purpose of conducting an inspection of the property. (i) On 15 December 2021 the landlord together with its authorised contractors inspected the property. A follow up inspection was arranged for 30 December 2021. On that date the tenant denied access to the Contract Supervisor and requested that a further inspection be arranged for the new year. (j) On 4 January 2022 the landlord was advised that its authorised contractors had been denied access. (k) On 2 February 2022 an application for access was heard by the Tribunal. Legal Aid appeared on behalf of the tenant. The matter was adjourned to give the tenant a final opportunity to provide adequate instructions to her legal representation. Interim Orders were made providing access on 9, 1O and 11 February 2022. (I) On 11 February 2022 the landlord conducted an inspection and advised that they were waiting for reports and inspection from its authorised contractor. (m) On 18 March 2022 the tenant's application for repairs and compensation was dismissed by the Tribunal due to nonappearance by the tenant. Legal Aid advised the Tribunal that they were unable to obtain instructions from her and therefore were no longer able to act for her. (n) On 5 May 2022 the tenant lodged a reinstatement application regarding maintenance and a request for compensation. On 1O May 2022 the matter came before the Tribunal and the tenant was represented by Western Sydney Legal Centre. The matter was adjourned to allow the tenant to amend her claim. (o) On 16 May 2022, the landlord sent a letter to the tenant's advocate trying to arrange temporary accommodation for the tenant whilst repairs were carried out. On 18 May 2022 the landlord was advised by the tenant's advocate that they were no longer representing the tenant as they were unable to obtain instructions. (p) On 24 May 2022 the landlord attended the tenant's property to discuss temporary accommodation and commencement of works. A call note was left in the mailbox. (q) On 30 May 2022 an attempt was made to contact the tenant and left a message for urgent contact. (r) The landlord continued to make attempts to contact the tenant to arrange for access to carry out works and arrange temporary accommodation (letter sent 5 July 2022). The letter dated 5 July 2022 requests the tenant to telephone the landlord to arrange a time for the landlord to attend the property (at the tenant's request). The tenant failed to telephone the landlord to arrange a suitable time for the landlord to attend the property. The Tribunal set a hearing date of 12 September 2022 to determine the landlord's termination application and the tenant's application. The landlord decided to await the outcome of those proceedings before taking any further action. The tenant failed to attend the hearing on 12 September 2022 and the application of the tenant was dismissed. (s) The tenant does not dispute receiving call notes and letters from the landlord regarding access and repair to the premises as well as arranging temporary accommodation. The tenant concedes that a letter was sent on 1 March 2021 seeking access on 3 March 2021. The tenant refused access for the following reasons: (a) The client reference number on the letter was not the tenant's client service number. (b) The landlord only gave 2 days notice of the visit. (c) The letter stated "this access order will give FAGS (sic) Housing permission to enter your property". The tenant considered FAGS to be a derogatory term."
The only factual finding from [41] of the Tribunal's reasons challenged on appeal was that contained within [41(s)].
The Tribunal further explained the circumstances set out in [41(s)] at [42] where the Tribunal said: "The Tribunal finds that the tenant acted unreasonably in not allowing access due to the reasons given. It is clear that mistakes were made in relation to the client service number used and the spelling error of FAGS instead of FACS , however, this is not a reasonable ground to refuse access. The tenant made no attempt to contact the landlord and arrange a more suitable time if they were not available for the visit on the day set out in the correspondence."
No issue raising a question of law in relation to [41(s)] was identified by the tenant, nor is one apparent to us. Nor were any issues raised in relation to the balance of the factual findings in [41] and nor did any become apparent to us in reading the material.
The tenant directed our attention to some correspondence she said she sent (contained in the bundle of documents lodged for the termination appeal) and in which she said she sought to arrange access with the landlord. But the correspondence to which our attention was drawn did not, when examined, contain any statements to that effect.
It follows that there has been no successful challenge to the Tribunal's finding that the tenant denied access to the landlord to effect repairs and maintenance, and therefore the tenant's claim against the landlord under s 44(1)(b) fails because, as a matter of practical reality, it was the tenant and not the landlord whose actions caused any reduction or withdrawal of any goods, services or facilities provided with the residential premises.

Flood Compensation

The third claim made was for compensation for damage to goods allegedly caused by flooding, and that the flooding was caused by the landlord's plumber when he attended in April 2022 (the only occasion she granted access to the landlord's tradesman).
At [48] the Tribunal dismissed that claim because the tenant had not established any casual connection between the landlord's plumber attending the property at the beginning of April 2022 and the flexi-hose in the kitchen bursting on 30 April 2022.
After the flexi-hose burst the landlord arranged for a plumber to attend and carry out repairs immediately. The landlord acted with reasonable diligence. There was no evidence of any breach of the residential tenancy agreement by the landlord.
The tenant also failed to provide any evidence that her goods had been damaged, that they were not repairable or what was the second-hand value of those goods.
No error was identified in those reasons, nor is one apparent to us.

Quiet Enjoyment

The fourth claim made was for damages for breach of the covenant of quiet enjoyment.
The tenant claimed the landlord had breached the covenant of quiet enjoyment. The basis of that claim were allegations that the landlord, in seeking access to the premises, had intimidated and harassed the tenant.
The Tribunal said that the tenant did not call any evidence to support the allegations and so dismissed the claim.
No error in those reasons was identified by the tenant, nor is one apparent to us.

Section 141 cancellation of rental subsidy

The fifth claim made was in relation to the cancellation of the rental subsidy.
Section 141 provides that a tenant under a social housing tenancy agreement whose rent rebate is cancelled may apply to the Tribunal for an order declaring that the rent payable under the agreement is excessive. Such a claim must be made within 30 days after the cancellation of the rent rebate takes effect - reg 39(7) of the Residential Tenancies Regulation 2019 (NSW).
The tenant's cancellation took effect from 18 January 2021 as a result of her successful appeal. Originally it took effect from 2019. However, the tenant was not informed of her successful appeal, and the amended date from which the cancellation took effect, until 13 August 2021. The tenant commenced her proceedings (which included her s 141 claim) on 6 December 2021, some 115 days later.
One could easily justify time being extended until 13 August 2021 because the tenant was unaware of the amended cancellation date. But she then delayed commencing her claim for 115 days when the regulation said that she was required to commence her claim within 30 days.
The Tribunal refused to extend the time. The Tribunal referred to the relevant principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Tribunal held the delay was substantial and the tenant had failed to provide a salient reason for the delay in filing the application. The Tribunal noted that the application was opposed and said, at [59], that it was not satisfied that the tenant had an arguable case in relation to the orders sought.
In relation to the latter observation the Tribunal referred to its finding that the tenant had failed to mitigate her loss and that the denial of access by the tenant was what gave rise to the rent being excessive when the premises, in the condition it was in according to an expert called by the tenant, was compared to the market rent for like premises in reasonable condition.
Section 141 is discretionary, not mandatory. Given our finding that the cause of the reduction or withdrawal of goods, services or facilities provided with the residential premises was the tenant, and not the landlord, and given that the said reduction or withdrawal was the basis for the s 141 application (in the context of the cancellation of the rental subsidy) there is no basis for an order declaring that the rent was excessive.

Compensation for Damage to Goods

The sixth claim made by the tenant was for alleged damage to some of her goods caused by mould.
The Tribunal said at [64]: "The Tribunal dismisses the tenant's application for compensation for damage to her goods caused by mould. The Tribunal having found that the tenant has failed to mitigate her loss by allowing access to the landlord to carry out repairs is not entitled to compensation for damage to her goods due to mould. The Tribunal finds that the damage that has been caused to the tenant's goods as a result of her failure to allow access to the landlord to carry out repairs."
No error in those reasons was identified by the tenant, nor is one apparent to us.

Orders

We make the following orders:
In proceedings 2023/00019609: 1. Leave to appeal is refused. 2. Appeal dismissed.
In proceedings 2022/00326497: 1. The application to extend time to appeal is refused. 2. Order 4 of the Tribunal made on 12 September 2022 is varied by substituting the date being six weeks from the date of this decision for the date 10 October 2022. 3. Subject to order (2) Appeal dismissed. 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 March 2023

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