Herbert v New South Wales Land and Housing Corporation

Herbert v New South Wales Land and Housing Corporation - [2019] NSWSC 1703 - NSWSC 2019 case summary — Zoe

[4]

Residential Tenancies Act 2010 (NSW)

The relevant provisions of the Act are set out below.
Section 13(1) defines a "residential tenancy agreement" as "an agreement under which a person grants to another person for value a right of occupation of residential premises for the purposes of use as a residence".
Section 41 provides an exclusive code for increases of rent as follows: "41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if: (a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and (b) the notice is given at least 60 days before the increased rent is payable. … (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. (4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section. (5) Notice of a rent increase must be given by a landlord or landlord's agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement. … (7) Notice of a rent increase is not required to be given by a landlord or landlord's agent if the increase arises because of the end of, or a reduction in, a rent reduction. (8) Subsections (1)-(7) are terms of every residential tenancy agreement. (9) A landlord or landlord's agent must not contravene this section. Maximum penalty: 20 penalty units. (10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section. …"
Section 44 confers remedies on the tenant for "excessive rent" and provides in part: "44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders: (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (b) an 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 and that, from a specified day, the rent for residential premises must not exceed a specified amount. …"
Part 5 of the Act provides for termination of RTAs. Section 81 provides that a RTA terminates only in circumstances set out in the Act. Of present relevance, a RTA comes to an end when an order to that effect is made by the Tribunal. Division 2 provides for termination by the landlord and includes ss 87, 88 and 89 which provide in part: "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. … (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. … 88 Termination notices for non-payment of rent (1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement solely arising from failure to pay rent (a non-payment termination notice) has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given. …"
Section 89 of the Act prohibits the Tribunal from making a termination order if the tenant repays the whole of the outstanding rent or enters into a repayment plan.
Division 2 of Part 5 of the Act provides for termination by the tenant. The tenant may terminate a RTA by notice of 14 days in the case of a fixed term agreement (s 96); or 21 days in the case of a periodic tenancy. Fixed term RTAs for a fixed term of 2 years or more may be terminated by notice given by the tenant on the ground that the rent has been increased: s 99.
Division 6 of Part 5, entitled "Miscellaneous" provides for defects in termination notices as follows: "113 Defects in termination notices The Tribunal may make a termination order for a residential tenancy agreement or any other order even though there is a defect in the relevant termination notice or the manner of service of the notice if: (a) it thinks it appropriate to do so in the circumstances of the case, and (b) it is satisfied that the person to whom the notice was given has not suffered any disadvantage because of the defect in the notice or service or that any disadvantage has been overcome by the order and any associated order."
Part 7 of the Act deals with social housing agreements. Section 136, in Division 1 of Part 7, defines rent rebate as follows: "rent rebate means an amount waived or remitted, in accordance with a rent rebate scheme administered by a social housing provider, from rent payable to a social housing provider."
The Corporation is defined as a "social housing provider": s 136.
Division 3 of Part 7 relevantly provides: "140 Payment of debts by social housing tenants A tenant under a social housing tenancy agreement who incurs or has incurred a debt to the landlord in connection with that agreement or a prior social housing tenancy agreement: (a) must enter into arrangements with the landlord, in accordance with any reasonable request of the landlord, for the payment of that debt, and (b) must comply with those arrangements (including any such arrangement entered into during the term of a prior social housing tenancy agreement) and with any variations to those arrangements that may be agreed to by the landlord and tenant. 141 Cancellation or reduction of rent rebates (1) 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 (or a proposed social housing tenancy agreement for premises already occupied by the tenant) is excessive. (2) The tenant may do so within the period prescribed by the regulations after the cancellation of the rent rebate takes effect. …"
Division 5 of Part 7 deals with termination of such agreements. Subdivision 4 of Division 5 deals with breaches of such agreements. Section 154A relevantly provides: "154A Termination notice for non-payment of amount payable on variation or cancellation of rent rebate If a tenant owes a landlord under a social housing tenancy agreement a debt arising under section 57 of the Housing Act 2001 or otherwise as a consequence of the variation or cancellation of a rent rebate, sections 87, 88 and 89 apply as if the amount owed were rent and the failure to pay were a breach of the agreement."

[5]

Housing Act 2001 (NSW)

Section 6 of the Housing Act establishes the Corporation and provides that it is a statutory body representing the Crown.
Part 7 of the Housing Act 2001 (NSW) provides for rental rebates (which are the equivalent of "rent rebates" in the Act). Section 56 empowers the Corporation to grant a weekly rebate of rent to an applicant, the amount of which is to be determined in accordance with guidelines approved by the Minister. Under s 57 of the Housing Act, the Corporation may cancel any rental rebate after conducting an investigation under s 58. The Corporation is required, by s 57(2) of the Housing Act, to determine the date (being a date occurring before, on or after the making of the determination) on which the variation or cancellation has effect or is taken to have effect. Notice is to be given to the tenant of a decision to vary or cancel a rental rebate and the date on which any such variation or cancellation is to take effect: s 57(3) of the Housing Act.
Section 57(4) and (5) of the Housing Act provide: "(4) If the Corporation reduces or cancels a tenant's rental rebate under this Part with effect from a preceding date, the Corporation may, by notice in writing to the tenant, require the tenant to pay to the Corporation: (a) an amount equal to any rental rebate or part of a rental rebate received by the tenant on or after the date that the variation or cancellation took effect to which, because of the variation or cancellation, the tenant was not entitled, and (b) interest (at the rate prescribed under section 101 of the Civil Procedure Act 2005 in respect of unpaid judgments) on any outstanding amount under paragraph (a) from a date specified in the notice, being a date not earlier than the date on which the notice is issued to the tenant. (5) Any amount (together with interest) referred to in subsection (4) that is unpaid may be recovered by the Corporation as a debt in any court of competent jurisdiction."
Section 58(1) of the Housing Act provides that the Corporation may make an investigation to determine the weekly income of a recipient of a rental rebate and any other resident of the house in which the person resides. The Corporation may, under s 58(2), require a recipient to provide evidence of his or her weekly income or that of any other resident in the house in which the person resides.

[6]

The terms of RTA 1

The facts are largely uncontroversial. On 14 December 2016 the parties entered into a RTA for the Premises for a term of 2 years commencing on 19 December 2016 and ending on 16 December 2018 with a rental of $565 per week (RTA 1). It was a term of RTA 1 that Mr Herbert would pay rent in advance every Monday to the Corporation: cl 3.1.
Clause 41 of RTA 1 relevantly provided: "41. The tenant agrees for the purposes of rental rebate assessment: 41.1 that the landlord may formulate policy for the granting of rental rebates and that in accordance with such policies the landlord may grant a rental rebate in its absolute discretion; and 41.2 to provide to the landlord such material and documentation as required by the landlord to verify all the income and assets of the tenant; and 41.3 to provide to the landlord such material, documentation, or written authority as required by the landlord to verify all the income and assets of all other persons residing in the residential premises; and 41.4 to notify the landlord in writing within 28 days of any changes to the income and/or assets of the tenant; and 41.5 to notify the landlord in writing within 28 days of any changes to the income and/or assets of any other person residing in the premises; and 41.6 that the landlord may seek confirmation from any third party of the information provided under clauses 39 and 40 and sub-clauses 41.2 and 41.4; and 41.7 that the tenant will obtain the written consent on behalf of the landlord, within 28 days of the landlord's request, of all other persons residing in the residential premises for the purpose of the landlord seeking confirmation from any third party of the information provided under sub-clauses 41.3 and 41.5 in respect of those persons; and 41.8 for any third party to provide written confirmation requested by the landlord that any statements as to income or assets of the tenant or occupancy of the premises, as disclosed by the tenant from time to time, are true and correct. The confirmation requested might relate to any period of time. The authority in sub-clause 41.6 and the authority in this sub-clause cease upon the tenant giving the landlord written notice of cessation of the authority and the tenant having proof of receipt of such notice by the landlord; and 41.9 to obtain the written authority, within 28 days of the landlord's request, of all other persons residing in the residential premises for any third party to provide written confirmation requested by the landlord that any statements as to income or assets of persons residing in the residential premises, other than the tenant, are true and correct. The authority referred to in sub-clause 41.7 and the authority in this sub-clause cease upon the tenant giving the landlord written notice of cessation of the authority and the tenant having proof of receipt of such notice by the landlord; and 41.10 that failing, as required by clause 39 and this clause, to notify and/or verify income, assets or occupancy may result in the reduction or cancellation of the rental rebate from a date determined by the landlord." [Emphasis added.]
The Corporation, under Part 7 of the Housing Act 2001 (NSW) granted a rental rebate in respect of RTA 1.

[18]

The Tribunal's findings

The Tribunal made the following finding about the state of arrears as at the date of the termination notice: "[14] The evidence shows that as at the date of service of the notice Herbert was 105 days in arrears with the rent. Herbert's rent subsidy ended on 13 May 2018 when the subsidised rent of $200.25 per week increased to the market rent of $645.00 per week."
The Tribunal found, in accordance with the parties' agreement at the hearing, that "a new tenancy was created on 2 May 2018": [37] of the Tribunal's reasons.
The Tribunal also found as follows: "[40] The Tribunal finds that the intent of the agreements made on 2 May 2018 was to create a new tenancy between the parties from that date on terms and conditions similar to those in the first agreement except for the rent, the term and the start and end dates ("hereinafter referred to as "the second agreement"). I am satisfied on the evidence that a new residential tenancy agreement in the form of the second agreement commenced on 2 May 2018. [41] Importantly the rent under the second agreement was rebated to $200.25 per week. This conclusion is supported by the evidence that at the time the parties entered into the second agreement on 2 May 2018, Herbert was still eligible for the rent subsidy. The subsidy agreement was due to expire on 13 May 2018. [42] However it is clear that the subsidised rent was always subject to review in accordance with the law and Housing policy. The deliberate use of the words "currently rebated to $200.25 per week (and subject to future change in accordance with the law and policy of the Respondent)" persuade me that the intention was the rent could change during the tenancy. On any objective view of the above wording, there is no doubt that the rent was not fixed for the term of the tenancy and was always subject to review. [43] The evidence from Housing is that the rental subsidy agreement expired on 13 May 2018 and from 14 May 2018 the rent increased to $645.00 per week. Housing sent Herbert letters on 2 and 23 April 2018 and 11 May 2018 about the rent subsidy. [44] The letters dated 2 and 23 April predate the second agreement but nonetheless put Herbert on notice that information was required to assess his eligibility for the rent subsidy. Herbert did not provide the information requested and his rent subsidy was cancelled from 14 May 2018. He was informed of the cancellation of the subsidy by letter dated 11 May 2018. [45] I find that clause 41 of the first agreement was incorporated into the second agreement. The onus was on Herbert to provide information to Housing when requested to do so, information for the purposes of undertaking the rental rebate assessment. He was aware that failure to provide the requested information could result in the cancellation or reduction of the rental rebate. … [48] Housing debited Herbert's rent account each week at $645.00 commencing on 14 May 2018. Herbert continued to pay rent at $200.25 per week resulting in a shortfall each week of $444.75. I find Herbert was short paying the rent each week in breach of the tenancy agreement. [49] As at 28 July 2018 the rent ledger shows the rent owing was $9434.45 which was more than 14 days in arrears."
The Tribunal's finding at [63(4)] is the subject of ground 2. The Tribunal found: "The tenant breached the residential tenancy agreement by not paying rent in accordance with the agreement. At the date of the service of the notice of termination the tenant was more than 14 days in arrears with the rent. The ledger shows that as at the date of service of the notice of termination the tenant owed approximately $10,474.20 for rent and was about 113 days in arrears."
The Tribunal also found that the rent was unpaid for not less than 14 days before the termination notice was given and that the breach was "in the circumstances of the case" sufficient to justify termination of the agreement.
At [65], the Tribunal found: "As at 21 February 2019 the rent arrears were $21,046.20 according to the rent ledger printed on that date. The rent arrears are substantial and the tenant has had many opportunities to comply with the tenancy agreement. He has frequently been in arrears with the rent. He has been constantly and persistently behind with his payment of rent."
The Tribunal also found, at [68]: "Herbert has been given many opportunities to provide information to enable an assessment of his eligibility for the rent subsidy. For whatever reason he has refused and must now suffer the consequences of that decision."
In dismissing the appeal, the Appeal Panel relevantly concluded, at [16]: "In the light of the Tribunal's findings set out above as to: (1) the terms of the Appellant's agreement with the Respondent, and (2) the Appellant's history of failure to comply with that agreement, we are satisfied that the Tribunal did not err in law in its application of the RT Act. It took into account sections 88 and 89 of RT Act and it was entitled to conclude in the circumstances that those sections did not assist the Appellant's case."

[21]

The plaintiff's submissions

The first ground depended on the following propositions. 1. As no notice of rental increase pursuant to s 41 was given by the Corporation, the rent payable under RTA 2 was, and remains, $200.25 per week. 2. The termination notice was of no effect as Mr Herbert was not 14 days in arrears under RTA 2: s 88(1). 3. The termination order was, accordingly, invalid, as it was based on an invalid termination notice. 4. The Tribunal and the Appeal Panel were in error in finding that the rent had been validly increased to $645 per week; in holding the termination notice to be valid; and in making the termination order.
Mr Atkin submitted that what was required to cause the expiry of the rental rebate to have an effect on the rent payable was for a notice to be given to Mr Herbert under s 41. Mr Atkin argued that because no notice under s 41 was given to him, the rent was not increased from the figure in RTA 2 of $200.25 per week, with the consequence that the termination notice given by the Corporation was ineffective: s 88.
Mr Atkin submitted that there were important policy reasons why a cancellation of a rental rebate, in the circumstances of the present case, ought be regarded as effecting an increase in rent and mandating a notice under s 41. He submitted that the 60-day notice required by s 41 was intended to provide the tenant with sufficient time either to terminate the tenancy agreement under ss 96 or 99 (before he or she breached it by being unwilling or unable to pay the increased weekly amount for rent) or to approach the Tribunal to obtain relief under s 44 from alleged excessive rent. It also appeared to be accepted that there is another avenue for a tenant, being an appeal to the Housing Appeals Committee, which is an internal review body within the Corporation.
Mr Atkin submitted that the result for which the Corporation contended could have been achieved had there been a remitter (which he described as the "legally traditional view of rebate") rather than a waiver. He said that if Mr Herbert had been required, every week, to hand to the Corporation the sum of $645 (being the unrebated amount of rent) and the Corporation had been, as long as the rental rebate was in force, required to remit to him the amount of $444.75 (being the difference between $645 and $200.25), no s 41 notice would have been required if the rental rebate was cancelled since Mr Herbert would have remained liable to pay $645 per week but the Corporation would not have been obliged to remit the sum of $444.75. However, Mr Atkin submitted that the acceptance by the Corporation of the amount of $200.25 every week meant that, if this amount was to be increased by the cancellation of rental rebate, a notice under s 41 was required.
Mr Atkin submitted further that, because there was no effective termination notice, the Tribunal lacked the power to make a termination order under s 87(4) because it could not, as a matter of law, be satisfied that the termination notice was given in accordance with s 87. He argued that, because the Tribunal lacked the power to make a termination order, it had no jurisdiction to make the order. He contended that, in these circumstances, it could not be said that the notice was merely defective, so as to attract the operation of s 113: cf. Navazi at [57] (Sackville AJA, Leeming JA and Adamson J agreeing). Rather, he submitted that it was ineffective, by reason of non-compliance. Thus, it could not be saved by s 113.

[25]

The analysis in New South Wales Land and Housing Corporation v Diab

In New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 (Diab), the Court of Appeal held that retrospective cancellation of a rental rebate did not convert the (overpaid) rebate into arrears of rent. The enactment of s 154A (set out above) was designed to reverse the result in Diab. It was ultimately accepted by the parties that s 154A did not affect non-retrospective cancellations of rental rebates (such as in the present case). Although Diab was not concerned with prospective cancellation of rental rebates, the consideration by Macfarlan JA (Beazley P concurring) in Diab of the nature of a rental rebate and its relationship with rent payable is relevant to ground 1.
Macfarlan JA analysed the effect of the grant of a rebate on the agreement between the Corporation, as landlord, and the tenant as follows: "[26] …[T]he tenancy agreement was varied by the Corporation (and its predecessor) granting rental rebates and Mr Diab paying at the rebated rates ... The Corporation['s]…grant of rebates constituted offers to Mr Diab to make rebated rent payments in satisfaction of his rental obligations. Such offers were accepted by Mr Diab's conduct in paying the rent. This is an application of conventional principles relating to contracts concluded by conduct ... [27] This is not to suggest that the Corporation …[was] precluded from withdrawing rebate offers insofar as they applied to subsequent rental periods. So long as the landlord's offer to accept a rebated amount was current, it was open to the tenant to accept it by paying the rebated amount. There was no reason apparent from the facts put before this court why the varied rental would have been applicable for longer than the particular periods in respect of which Mr Diab paid rent while the offer of a rebate was still current. [28] There was consideration for the contract variations because the tenancy was only weekly and by the variations Mr Diab agreed to occupy for the period for which he paid rent in advance and the landlord agreed to let him do so at the rebated level. … [31] Termination for breach of the residential tenancy agreement (for example, if the tenant failed to pay ongoing rent at the unrebated level after the landlord withdrew a rental rebate) would be in futuro and would not therefore affect the efficacy of the variations made to the tenancy agreement in the past by the grant of rebates and their acceptance by the making of rebated rent payments… … [36] …[T]here was nothing to preclude the Corporation … withdrawing or varying its rental rebate in respect of any tenancy period prior to Mr Diab's payment of the rebated rent for that period."

[27]

The relevance and significance of s 57 of the Housing Act

The modern approach to statutory interpretation, which is both contextual and purposive, permits regard to be had to how a related statute deals with a particular topic to arrive at a coherent view of the body of law. Section 57 of the Housing Act, which is cognate legislation, empowers the Corporation to cancel a rental rebate either at the time, for the future, or for a period in the past. So much is clear from the terms of s 57(2) which provides that the Corporation is required to determine the date "being a date occurring before, on or after the making of the determination" on which the cancellation is to take effect.
It can hardly be supposed that an unfettered conferral of power such as is provided for in s 57 of the Housing Act would be read down by a provision such as s 41. If a cancellation of a rental rebate effected an increase in rent payable, any in futuro cancellation of a rental rebate would, notwithstanding the express words of s 57 of the Housing Act, require notice of 60 days to be given under s 41 of the Act. I regard such a construction as incorrect, since, among other objections, it would produce the following anomaly: 1. the Corporation could cancel a rebate retrospectively and thereby create a debt owed by the tenant to the Corporation under s 57(4) of the Housing Act, which would be deemed to be arrears of rent by reason of s 154A of the Act; 2. the Corporation could cancel a rebate in futuro and make the cancellation take effect 60 days from the date of the determination, thereby imposing an obligation on the tenant to pay rent at the market rate provided for in the residential tenancy agreement; 3. however, the Corporation could not cancel a rebate and make the cancellation effective for any date between the date of the determination and 60 days hence since it would be obliged to comply with s 41.
Although (a) and (b) above follow from the wording of the statute, (c) would be, as Mr Atkin accepted, a perverse result which cannot have been intended by Parliament.
I accept that from Mr Herbert's lay perspective, the amount he had to pay to occupy the Premises increased on 14 May 2018 from $200.25 per week to $645 per week. However, this was not, as a matter of law, an increase in the rent payable, since the rent payable was, and had been since the commencement of RTA 2 (and indeed, since 27 November 2017, under RTA 1), $645 per week. Accordingly, s 41 did not apply.
Lest this consequence for a tenant be thought inconsistent with the purposes of the Act and the Housing Act, it is significant to remember that a rental rebate is a concession given to a tenant on the basis that his or her income is adjudged to warrant subsidy. Where the tenant's income increases, or where the Corporation does not have sufficient information about the tenant's income to assess whether the tenant's income continues to warrant the subsidy by way of rental rebate, Parliament has expressed its intention that the Corporation be entitled to cancel the rental rebate. The cancellation can be retrospective, immediately or prospective. While such cancellation can, as I have found, have an immediate effect on the weekly amount which the tenant is obliged to pay, the relevant waiver being no longer operative, this is not per se unjust in the circumstances. Social housing is a valuable public resource which is to be allocated by the Corporation on grounds of need. Where the need of a particular tenant cannot be ascertained, it is not inappropriate for the public subsidy represented by the rental rebate to be withheld in the case of present or future cancellations, or withdrawn in the case of retrospective cancellations. These are matters for the Corporation. For these reasons, I am satisfied that the statutory construction set out above is not inconsistent with the purposes of the legislation and, indeed, is apt to promote them: s 33 of the Interpretation Act 1987 (NSW).
I should add, for completeness, that I was referred to the decision of P Taylor SC DCJ in New South Wales Land and Housing Corporation v Quinn (No 2) [2018] NSWDC 161 in which the relationship between s 41 of the Act and s 57 of the Housing Act was considered. His Honour found that the Corporation was not obliged to comply with s 41 when cancelling a rental rebate pursuant to s 57. His Honour said: [248] The better view may be that any rental rebate does not reduce the 'rent' as defined in the RTA, but rather operates as a means of meeting the rent obligation. 'Rent' is defined in s 3 of the RTA as 'an amount payable by a tenant under a residential tenancy agreement for the right to occupy premises for a period of the agreement'. The rent actually specified in the residential tenancy agreement is the market rent, a figure which was notified to Mr Quinn on each occasion when it was changed. Thus, as the residential tenancy agreement specifies the market rent, this is the rent within the meaning of s 41 of the RTA. On such a construction, there is no inconsistency between s 41 of the RTA and s 57 of the 2001 Act. The powers of the Corporation to effect a cancellation of rebates, recover retrospectively cancelled rebates and (by ending a rebate) charge the market rent would thus be unaffected by s 41. This is the approach which accords with that adopted by the Corporation when increasing the market rent, as those increases appear always to conform with the s 41 RTA requirements. Although this approach does not appear to sit comfortably with the reasoning of the plurality in Diab, that reasoning was not directed to s 41 of the RTA." [Footnotes omitted.]
I agree with his Honour's analysis in [248] except for one matter. I disagree that this analysis "does not appear to sit comfortably with the reasoning of the plurality in Diab". For the reasons given above, I consider the analysis to follow from the reasoning of the plurality in Diab and from the analysis of the legal effect of a rental rebate in that decision.
As referred to above, the operative decision is that of the Appeal Panel, which dismissed an appeal from the Tribunal. No error on the basis of ground 1 has been shown in the decision of the Appeal Panel.

[32]

Whether the termination notice was defective

I accept Mr Atkin's submission that the termination notice was defective since it included in the arrears of rent an amount which had been the subject of a repayment plan under a previous tenancy agreement (RTA 2). It overstated the amount owing since, in respect of the outstanding debt of $4,748.90, Mr Herbert was entitled to repay it in instalments of $50 per week. The sum of $4,748.90 was, accordingly, not due and payable as at the date of the termination notice. Mr Herbert was not 113 days in arrears, although he was plainly significantly more than 14 days in arrears as required by s 88. I accept Mr Atkin's submission that error was not merely arithmetical since it involved a legal misapprehension of the terms of the agreement made on 2 May 2018. The inclusion of a legally inapplicable category of claim in the notice of termination raises a question of law for the purposes of s 83(1) of the NCAT Act.
The relevance of s 113 arose in a similar context in Navazi where Sackville AJA said: "[56] When these provisions [ss 87, 88, 89 and 113] are read together, the Tribunal's power to make a termination order is conditional upon a termination notice being served, but not a termination notice free from all defects. The very point of s 113 is to allow the Tribunal to make a termination order notwithstanding that the termination notice has a defect. It is a matter for the Tribunal to decide whether the termination notice, despite the defect, satisfies the broad criteria stated in s 113. [57] The Notice of Termination in this case was defective. But the defect did not of itself deprive the Tribunal of power to make the termination order. The failure of the Tribunal to recognise that the Notice of Termination was defective involved an error of law, but not one that deprived it of jurisdiction to determine whether a termination order should be made. [58] There may be a stronger argument that the Tribunal committed a jurisdictional error by failing to address whether it should make a termination order despite the defect in the Notice of Termination (even though it was not asked to do so). If the Notice of Termination was in fact defective because it substantially mis-stated the extent of rental arrears, the Tribunal could only make a termination order if it was satisfied of the matters specified in s 113. The failure to consider whether it was satisfied of those matters may have constituted a jurisdictional error. However, it is not necessary to resolve this question."

[34]

The relevant principles

The Anshun principle (established by Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) applies to review of administrative decisions: S442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240 at [23] (Allsop J); Applicant S442 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 28 at [15] (Finn, Emmett, Selway JJ); BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60 at [24] (Sackville J) (BC). Thus, an estoppel arises where the matter relied on in the second action was "…so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it": Anshun at 602 (Gibbs CJ, Mason and Aicken JJ).
The Anshun principle is subject to a "special circumstances" exception. In BC, Sackville J said, at [26]: "The authorities emphasise that the Anshun principle, since it shuts out a litigant from pursuing a cause of action, should be applied only after a 'scrupulous examination of all the circumstances'."
In Navazi, Sackville AJA addressed the question whether an inferior court or tribunal could be said to have erred in law if the question of law was not raised before the tribunal. His Honour referred to Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) where relief in the nature of certiorari was granted notwithstanding that both parties had agreed that the defendant could give evidence (which was later found to be a jurisdictional error on the part of the Industrial Relations Court). Sackville AJA concluded, at [118]: "It seems to follow from Kirk that a decision by an inferior court or tribunal that involves contravention of the statutory constraints imposed on the court or tribunal constitutes an error on the face of the record even if the point was not adverted to by the parties. Whether the decision in Kirk applies to other jurisdictional errors or perhaps to serious non-jurisdictional errors is not yet clear."
In Kirk the jurisdictional error was made by the Industrial Relations Court and the appeal against the decision of the Court was dismissed. The error which was found to be jurisdictional, that Mr Kirk had given evidence for the prosecution, was raised for the first time in the course of the hearing of the appeal before the High Court. It was not submitted by the respondent in the High Court that Mr Kirk ought not be permitted to rely on it. Thus, the consideration by the High Court was, to that extent, consensual.
In Kirk, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), in construing a privative clause said at [55]: "…A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and, as explained further in these reasons, also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error."
In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51; (2004) 204 ALR 722, Lindgren J found special circumstances and, accordingly, permitted Mr Wong to argue that that there had been a denial of procedural fairness. His Honour said at [153]: "In my opinion, there are special circumstances on the basis of which I should not apply Anshun estoppel. On my construction of s 503A, or, in the alternative, on the basis of the gazetted agency argument which I have upheld, the Minister has failed completely to obey the mandate of s 501C(3), with the result that Mr Wong has not had an effective opportunity, which the Parliament intended he should have, of responding to the case made against him. It is a serious matter that there should be a total non-compliance by the Minister with a mandatory statutory provision ..."

[35]

The application of the principles to the present case

Whereas ground 1, if made out, would have raised a question of jurisdictional error, I am not persuaded that the Tribunal could be said to have committed a jurisdictional error by not addressing a defect in a termination notice which was not relied on in the hearing before it: see, for example, Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726; (1989) 20 ATR 1262 at 728 (Gummow J). The effect of Mr Herbert's failure to raise the claim was significant. Had he raised the claim before the Tribunal or before the Appeal Panel, s 113 could have been considered and the decision-maker could have decided whether to make a termination order notwithstanding the defect in the notice. There would have been powerful arguments in favour of making a termination notice. First, Mr Herbert was under no illusion as to the basis on which the Corporation said that he owed the monies in the termination notice. Secondly, Mr Herbert plainly did not propose to pay rent at the rate of $645 per week, irrespective of the erroneous inclusion of the additional amount of $4,748.90. Thirdly, the Tribunal found that by 21 February 2019 (the day before the second day of the hearing before it) the rent arrears were $21,046.20. Although the rent arrears were actually $4,748.90 less than that (on the basis of the analysis set out above), the difference was not, in that context, material.
It was, as an objective matter, not in Mr Herbert's interests to rely on such a defect before the Tribunal in any event. The Corporation did not seek an order for the rent arrears. Its claim was a claim for possession and this was the claim that Mr Herbert resisted. For Mr Herbert to propound an alternative position which accepted that he was in substantial arrears (although not to the extent of $21,046.20) would have placed him in a difficult position in endeavouring to resist a termination order. Although Mr Herbert represented himself in the Tribunal and the Appeal Panel and I accept that his skills in legal analysis were those of a layperson, he was nonetheless a relatively experienced participant in the Tribunal, which is accustomed to persons representing themselves. Whether or not the notice of termination was misleading, I am not satisfied that Mr Herbert was misled. He must have known how the figure claimed was calculated and that it included the lump sum for arrears from RTA 1.
Further, there was obvious prejudice to the Corporation: cf. NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214; [2003] FCAFC 102 at [21] (Carr, Kiefel and Allsop JJ). I accept Mr Simpson's statement that, had Mr Herbert raised an argument in terms of ground 2, the Corporation would have run its case differently. It would have tendered and relied upon the notices of market rent increase sent in September 2017 and September 2018, each of which complied with s 41 and gave more than 60 days' notice of an increase in rent. The Corporation would, inevitably, have cross-examined Mr Herbert on factors germane to s 113.
I am not persuaded that there are special circumstances on the basis of which I ought permit Mr Herbert to raise ground 2. Accordingly, leave will be refused in respect of ground 2. It is not, in these circumstances, necessary to consider the effect of s 41(10).

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