Hawkins v NSW Land and Housing Corporation

NCAT Appeal Panel|2020-05-27

Background

Before the Appeal Panel are two internal appeals from decisions of the Tribunal's Consumer and Commercial Division. Each appeal concerns decisions relating to claims for compensation by the appellant for breach of the landlord's covenant of quiet enjoyment at social housing premises leased from the respondent.
For the reasons below in each appeal, leave to appeal is refused and the appeals are dismissed.

The Proceedings at First Instance

There were, relevantly, two separate proceedings involving the parties which were decided by the Tribunal on 28 November 2019 (SH 1839320) and on 5 December 2019 (SH 19/21805). In both proceedings the appellant had claimed compensation for breach of the landlord's covenant of quiet enjoyment.
The appellant as tenant and the respondent as landlord entered into a residential tenancy agreement on 26 March 2013. The appellant was housed in a two (2) bedroom double storey townhouse within a complex of eight (8) townhouses. He resided originally in unit 7 of the complex, but issues arose from alleged misconduct of the unit 8 occupants of the complex. The appellant brought proceedings in the Tribunal against the respondent in 2017 for a breach of the landlord's covenant of quiet enjoyment. Those proceedings were settled by way of payment of $3,000 to the appellant.

Proceedings SH 18/3920

The appellant commenced additional proceedings in 2018 (being proceedings SH 18/39320) again alleging breach of the covenant of quiet enjoyment. The matter was heard over three days in March, May and July 2019 and the Tribunal made orders on 28 November 2019 awarding the appellant compensation of $2,000. In its Reasons, which run to some 26 pages, the Tribunal summarised the significant amount of evidence that had been placed before it and dealt with over 100 instances of breach alleged by the appellant which were said to have occurred in the period 7 February 2018 to 13 January 2019. The Tribunal also considered the evidence placed before it by the respondent in response to the allegations of breach of the landlord's covenant of quiet enjoyment.
The Tribunal considered the relevant statutory provisions, being ss 50 and 187 of the Residential Tenancies Act 2010 (the RT Act) and ss 28 and 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act). The Tribunal found that it had to consider whether the conduct of the neighbouring tenants constituted an interference with the appellant's reasonable peace, comfort or privacy in the use of his residential premises. The Tribunal then considered whether the respondent had failed to take all reasonable steps to ensure that the neighbouring tenants and occupants did not interfere with the applicant's reasonable peace, comfort or privacy in using the residential premises so as to constitute a breach of s 50 of the RT Act (at [65] -[66] of the Reasons). There is no submission by the appellant that the Tribunal asked itself the wrong questions in considering these matters, nor could there be in the Appeal Panel's determination.
In summary, the Tribunal found that the appellant had made out a case that there had been an interference with the appellant's peace, comfort or privacy at the residential premises and that the respondent had failed to take all reasonable steps to ensure that the neighbouring tenants did not interfere with that peace, comfort or privacy.
After making relevant factual findings, at [72] of the Reasons the Tribunal confined itself to the appellant's complaints and evidence of matters subsequent to the settlement of the 2017 proceedings so as to avoid any overlap of claims in the two proceedings. The Tribunal considered that many of the matters raised by the appellant were beyond the scope of the application before it, for example, a claim by the appellant that he receives legal assistance for a private prosecution of the occupants and their associates of the adjoining residential units.
The Tribunal formed the view that many of the amounts claimed by the appellant, particularly for a very large amount of time spent by him on dealing with his complaints (including 500 hours apparently preparing and drafting reports) were not properly claimable as compensation. Overall, having regard to the nature of the matters found to be in breach of the covenant for quiet enjoyment and the response of the respondent, the Tribunal awarded the appellant $2,000 in compensation.

Proceedings SH 19/21085

On 22 October 2018 (about a month before the decision in the Tribunal in proceedings SH18/39320), the respondent issued a Notice of Termination to the appellant on the ground that he had breached clauses of the lease dealing with nuisance and had interfered with the reasonable peace, comfort or privacy of neighbours. Under the Notice, vacant possession was to be given by 11 November 2018. The appellant did not comply with the Notice; so the respondent commenced proceedings in the Tribunal for an order to have the tenancy terminated. On 20 January 2019 the appellant was re-settled to another location and on 31 January 2019 the respondent withdrew the application for termination.
The appellant commenced proceedings claiming compensation in the sum of $15,000 pursuant to s 187(1)(c) and s 187(1)(d) of the RT Act for "intentional harassment in direct retaliation for me bringing case SH 18/39320". The appellant alleged that the respondent's action in issuing the Notice of Termination was for the sole purpose of intimidation and harassment and in those circumstances, was "retaliatory" and in contravention of s 115 of the RT Act.
The main issue in the proceedings (leaving aside the actual complaints made by the appellant with respect to the respondent's conduct) was whether, as the appellant contended, a retaliatory notice of termination which contravened s 115 of the RT Act gave rise to a cause of action for compensation under s 187 (1)(c) and/or (d) of the RT Act. The respondent contended that the only relief available under s 115 if the grounds to make an order are established on the evidence, is a declaration that the notice of termination was retaliatory and of no force and effect.
The Tribunal agreed with the respondent's submissions and held that there was no jurisdiction for the Tribunal to make an order for compensation under s 187 even if grounds for contravention of s 115 were established on the evidence In so far as the appellant alleged harassment and intimidation over the previous years, the Tribunal held that those matters had been covered by the previous proceedings commenced by the appellant. The Tribunal found that, on the evidence before it, the appellant had failed to establish that he had been harassed or intimidated by the respondent. The proceedings were dismissed.

The Appeals

The appellant now appeals from each of the above decisions. The Notices of Appeal, although filed on different dates, are identical in terms of grounds of appeal, whether leave is required, and the reasons why the appellant contends that leave should be granted. They are also identical in that they seek that the Appeal Panel considers all of the evidence filed in the proceedings at first instance and also a complaint with supporting documents made by the appellant against the Senior Member who heard and determined both matters. As observed below, there are slightly different complaints made in the appeals, however, when properly analysed, this is a distinction of no significance.
Both Notices of Appeal state that in the section dealing with the orders challenged on appeal: Compensation of $2,000.00 is entirely inadequate Word processing alone cost me $6,0000.00 The full amount of $15,000.00 is not even enough to cover my expenses without compensation
Of course, in the SH 19/21085 proceedings, no compensation was awarded, and the proceedings were dismissed. When one has regard to the matters raised in the Notice of Appeal challenging the decision of the Tribunal we are prepared to read this section in the appeal from that decision as being an appeal against the decision to refuse to award the appellant compensation on the basis that there had been no harassment or intimidation of the appellant by the respondent.
It is apparent from the matters raised in the Notices of Appeal that, in essence, the appellant does not think he was awarded enough compensation. The appellant has also raised complaints about the conduct of the Senior Member who heard the matters. A complaint in and of itself about the Senior Member's conduct in the proceedings at first instance cannot bear upon any of the grounds for the appeals unless the complaint and supporting documents evidence, in some way, that the appellant was denied procedural fairness during the course of the first instance proceedings .
The appellant states in each Notice of Appeal that he seeks leave to appeal. We agree leave is required.
In the appeal from the November decision, the appellant states: I request that the whole case be reconsidered but with all evidence that has been presented from the start to be considered…. All relevant evidence was included from the start but not considered by the members own admission. I say the member's conduct was not in accordance with the Act and not only cost me extra thousands of dollars but because of the member's conduct I suffered a substantial miscarriage of justice in that I was not awarded the full amount that I applied for and the costs I applied for.
In that Notice of Appeal, the appellant then "responds" to the decision by seeking to challenge various paragraphs of the Tribunal's findings, mostly findings of fact and the conduct of the Member generally. It also attaches a formal complaint made by the appellant against the Senior Member. We have considered the matters raised by the appellant and we cannot discern any question of law.
In the appeal from the December decision, the Notice of Appeal also sets out a complaint against the Member. We have considered the material and, we cannot discern any question of law.
It should be observed that the appeal from the December decision does not seek to challenge the Tribunal's finding that no compensation is available when an application is made under s 115 of the RT Act for a retaliatory eviction. Rather, as noted, we understood that the appellant complains about the Tribunal's findings that his complaints of harassment and intimidation were dismissed.

Leave should be refused

The principles governing the grant of leave to appeal from a decision of the Tribunal's Consumer and Commercial Division are well known (see cl. 12 of Sch 4 of the CAT Act and the discussion in Collins v Urban [2014] NSWCATAP 17). We do not consider that, on application of those principles, the appellant has shown that he may have suffered a substantial miscarriage of justice.
In reality, the appellant submits that he should have been given more compensation in the November decision and compensation in the December decision. He disagrees with and seeks to re-agitate findings made by the Tribunal that were patently open to it on the material before it.
In the November decision the Tribunal properly considered the complaints made by the appellant and the inadequate response by the respondent and found that the appellant was entitled to compensation. The appellant did not retain any legal representation and conducted the proceedings at first instance entirely on his own so it was correct for the Tribunal to refuse to award the amounts claimed by the appellant for time he had spent on preparing for the hearing: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 410 - 411. Further, it was well within the Tribunal's discretion to assess the compensation payable to the appellant as it did. As there is no identified error in the Tribunal's reasons, we reject the appellant's contention that we should re-visit the award of compensation and increase it.
In the December decision, once again, the Tribunal did consider the complaints made by the appellant that he had been (again) harassed and intimidated. We are satisfied that it was open to the Tribunal to find that those complaints were not made out on the materials placed before it.
In both appeals, the complaints about the Senior Member's conduct do not amount to allegations of procedural unfairness. The complaints made by the appellant are more about the manner in which the appellant did not agree with how the Senior Member conducted himself at the hearings and during directions hearings prior to the final hearings. The appellant has lodged a formal complaint with the Tribunal about the Senior Member's conduct, which will be dealt with according to the Tribunal's relevant procedure. We say nothing more about it other than to observe that none of the matters raised in the complaint documents would persuade us that the appellant has identified any error on the part of the Tribunal or indeed would lead to a conclusion that the appellant may have suffered a substantial miscarriage of justice.
For the foregoing reasons, we refuse leave to appeal.

Costs

During the hearing of the appeal, the solicitor for the respondent stated that he was instructed to seek an order that the appellant pay the costs of the appeals, but he then made no substantial submission on costs. In answer to the Appeal Panel's question about the absence of a substantial submission, the respondent's solicitor accepted that it was incumbent on the respondent to demonstrate that "special circumstances" existed to warrant an order for costs being made (see s 60(2) of the CAT Act). The respondent did not then identify the special circumstances which applied in this instance. Moreover, it is well established that the fact an appellant is not successful in an appeal does not of itself give rise to a special circumstance warranting an order for costs: see, for example, ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41]. For these reasons,, the respondent cannot succeed in its application for costs and such application is formally refused.
Accordingly, the orders of the Appeal Panel in each appeal are: 1. Leave to appeal is refused; 2. The appeal is dismissed; 3. The respondent's application for its costs of the appeals is refused.

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: 16 June 2020

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