Hopkins v NSW Land and Housing Corporation

REASONS FOR DECISION

1. This is an appeal from a decision of the Tribunal dated 3 May 2024 to terminate a social housing tenancy for breach of the agreement under s 87 of the Residential Tenancies Act 2010 (NSW) (RT Act).
2. The relevant breach was the failure to keep the premises in a reasonable state of cleanliness.
3. The termination order was made in the absence of the tenant, after the landlord had re-listed the proceedings before the Tribunal. The tenant filed the appeal after a warrant for possession for the premises had been executed.
4. In this decision, any reference to "the tenant" is a reference to the appellant; and any reference to "the landlord" is a reference to the respondent.
5. Although a number of issues are raised in the appeal, there are three critical issues. They are: 1. Was the tenant denied procedural fairness by reason of the conduct of the hearing? 2. Did the Tribunal consider the mandatory considerations under ss 87(4)(b) and 154E of the RT Act? 3. If the appeal succeeds, can the Tribunal make orders that have the effect of restoring possession to the tenant, in circumstances where the tenant did not lodge the appeal until after the landlord had obtained a warrant for possession and executed that warrant?
6. At the appeal hearing, Ms Brooker, Solicitor, appeared for the tenant and Ms Fryer, Solicitor, appeared for the landlord.
7. The appeal involves a consideration of s 87 and 154E of the RT Act. Those provisions are as follows: 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. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note - Section 154E sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement. 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.

BACKGROUND

1. The residential tenancy between the parties commenced by way of a written residential tenancy agreement on 30 November 2004. The tenant had lived in the residential premises with his mother, who was the former tenant. She passed away in 2004. The premises is a free-standing house with a front yard and back yard.
2. At all relevant times, the tenant has resided in the property as the sole occupant.
3. On 2 May 2022, the landlord wrote to the tenant after an inspection of the property directing the tenant to take measures to clean the internal and external areas of the premises, prior to the next client service visit. The letter relevantly stated: "Failure to have your property care rectified and in a satisfactory state, or to allow access will result in action being taken at the NSW Civil and Administrative Tribunal without further notice to yourself."
4. On 31 August 2022, the Tribunal ordered that the tenant comply with the terms of the residential tenancy agreement by keeping the premises in a reasonable state of cleanliness; and authorised the landlord and/or its contractor to access the premises for the purpose of an inspection on 21 September 2022.
5. On 14 November 2023, the landlord served a notice to terminate the tenancy for breach of the agreement under s 87 of the RT Act. The breach identified was failing to keep the premises reasonably clean; failing to notify the landlord of damage; and intentionally or negligently causing or permitting damage to the premises (cl. 12.1; 12.2; and 12.3 of the residential tenancy agreement). The date of vacant possession identified in the notice was 11 December 2023.
6. On 14 December 2023, the landlord filed proceedings in the Tribunal seeking to terminate the tenancy.
7. On 1 February 2023, the Tribunal made orders that: 1. The tenant comply with the terms of the residential tenancy agreement by keeping the premises (both internally and externally) in a reasonable state of cleanliness. 2. The landlord, or its contractor, could inspect the premises on 22 February 2024. If the tenant did not provide access, the landlord could obtain access by engaging a locksmith and if that occurred, a copy of the new door opening device was to be provided to the tenant immediately. 3. If the orders were not complied with, the landlord could have the matter re-listed before the Tribunal if a re-list application was made prior to 1 July 2024.
8. The orders of the Tribunal on 1 February 2024 were made in the absence of the tenant, at a conciliation and hearing (group list).
9. On 3 April 2024, the landlord wrote to the Tribunal asking to re-list the proceedings on the basis that the tenant had not complied with the orders of 1 February 2024. A "re-list application" is the ability of a party to re-list RT Act proceedings in the Tribunal to seek termination of the tenancy, without filing fresh proceedings or a renewal of proceedings under sch 4 cl 8 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The power to make an order allowing for re-listing arises under the ancillary orders power in s 188(c) of the RT Act.
10. On 3 May 2024, the proceedings were listed before the Tribunal for a conciliation and group list (hearing). The tenant did not appear.
11. The landlord did not seek that the proceedings be set down for a special fixture hearing, with procedural directions for each party to file and serve evidence. Rather, the landlord sought to have the matter be heard and determined on that day, and that the Tribunal terminate the tenancy. Because the matter had been set down for a conciliation and group list (hearing) on 3 May 2024, there had been no previous procedural directions made by the Tribunal directing parties to file and serve documentary evidence.

The Decision of the Tribunal under Appeal

1. The Tribunal made an order terminating the residential tenancy agreement because the tenant had breached s 87 of the RT Act on the basis that he had failed to maintain the premises in a reasonable state of cleanliness.
2. The Tribunal terminated the tenancy immediately, but suspended the date of vacant possession until 31 May 2024, pursuant to s 114(1) of the RT Act.
3. The Tribunal also made an order that the landlord was to advise the tenant in writing of the orders made by delivery of a letter to the premises "by 3 May 2024",i.e. that day.
4. The Tribunal gave oral reasons for its decision.
5. We were informed by the landlord at the appeal hearing that the landlord provided documentary evidence to the Tribunal at the hearing on 3 May 2024. We were also provided, by both parties, with a transcript of the hearing and the oral reasons. The reasons do not refer to any documents being tendered into evidence by the landlord, but the transcript refers to documents of the landlord being "returned" at the end of the hearing. On the basis of the information provided by the landlord at the appeal hearing, we understand that the landlord relied upon the following documentary evidence at the hearing on 3 May 2024: 1. The residential tenancy agreement. 2. Previous orders of the Tribunal dated 31 August 2022; 6 December 2022; and 1 February 2024. 3. The notice of termination dated 14 November 2023. 4. The letter of the landlord to the tenant dated 2 May 2022 regarding "property care" issues. 5. Photographs of the residential premises taken by the landlord on 11 November 2021; 2 July 2021 11 August 2022; 28 July 2023; 26 September 2023; 19 October 2023; 22 February 2024; and 3 April 2024.
6. Of the photographic evidence regarding the state of the residential premises, some of the photographs showed both the internal and external parts of the premises. For example, the photographs taken on 22 February 2024 showed both the internal condition of the premises, and its external condition. However, the photographs taken on 3 April 2024 only showed the external condition of the premises.
7. The oral reasons of the Tribunal are succinct.
8. The hearing commenced with the Member administering an affirmation on the representative of the landlord. The landlord stated that it was seeking an order for termination and possession "today," as the matter was "back here today on a relist;" there had previously been a "specific performance order for property care" and orders for access.
9. The transcript shows that the Member did not take evidence from the landlord and then consider the issues raised and give oral reasons for the conclusions the Member had reached. Rather, the Member engaged in a step by step process in which the Member dealt with specific topics, and announced a decision with regard to each topic, before moving onto the next.
10. The Member was satisfied the tenant was given a termination notice requiring vacant possession by 11 December 2023, based on property care issues The Member was satisfied the notice was given to the tenant "in accordance with the Act." The Member noted that the landlord subsequently applied to the Tribunal for access to the premises, and on 1 February 2024 a specific performance order was made requiring the tenant to comply with the tenancy agreement by the keeping the premises in a reasonable state of cleanliness, both inside and out. The Member referred to previous orders made for access visits. The Member noted the Tribunal had been provided with evidence including "photos going back to November 2021 showing some issues with cluttering at the property and cleanliness". The Member referred to photographs in July 2021, and commented that there had "obviously been an issue going on for some time".
11. The landlord referred to "specific performance orders" on 31 August 2022 and 6 December 2022. The landlord's representative submitted that "it just appears to be an ongoing issue and the specific performance orders don't appear to be coming up with a resolution, really."
12. The Member asked the landlord's representative whether there had been "any significant improvement that you're aware of?" The landlord's representative stated that the "property care issues" had "gone back a number of years, and had been rectified at one point in time," but were "escalating again and not really being resolved."
13. The Member asked the landlord's representative whether the tenant was "engaging with any services" in respect of the property care issues, and the landlord's representative said he was not.
14. The Member then enquired about the photographic evidence in respect of the condition of the property. The Member stated that the photographs of 22 February 2024 showed that "most of the property seems very messy".
15. The Member referred to the photographs of 3 April 2024. Those photographs showed the external condition of the property. The landlord's representative stated that the landlord attempted to speak to the tenant and had attended "just to do maybe a follow-up."
16. The Member found that the Tribunal was satisfied there was "a significant breach by the tenant of the obligation to maintain the premises in a reasonable state of cleanliness;" that the breach "has been ongoing for a significant amount of time;" had "persisted notwithstanding the efforts via the landlord;" and that the tenant was "in clear breach of the specific performance order made earlier in these proceedings." The Member stated that the tenant had not attended the Tribunal hearing to provide any evidence or submissions as to why a termination order should be made. The Member was satisfied the breach was "very serious and has been ongoing for quite some time."
17. The Member stated that the Tribunal was satisfied "having regard to the factors in ss 87 and 154E of the RT Act" that the tenancy should be terminated.
18. The Member then commented that it was "safe to assume that it may be affecting the property itself," and enquired whether there were "any other neighbours affected" by the condition of the property.
19. The landlord's representative replied, "none that have explicitly complained that I can see." However, the landlord's representative stated that at the access visit on 22 February 2024, "the officer that attended reported that there was quite a serious smell coming from the property and rodents present. So I would imagine that there would be having some type of impact on the neighbours."
20. The Member then concluded by noting that the tenant had not provided any evidence as to why the tenancy should not be terminated, or of any particular hardship the tenant was likely to suffer. The Member found that, as a social housing tenant, it was likely the tenant would suffer some hardship if the tenancy was terminated, but was satisfied that this was outweighed by the factors in favour of termination. The Member stated that there was no indication that the breach by the tenant was going to be rectified in future and that social housing premises are in high demand.
21. The Member concluded by asking the landlord when it sought vacant possession of the property. The landlord's representative replied that four weeks would be an appropriate period to suspend the date of vacant possession. The Member asked whether the landlord's representative could provide a copy of the orders to the property in the near future, and the landlord's representative responded that it could be done "today." The Member then handed back the landlord's documents that were provided at the hearing, and the hearing concluded.

The Warrant For Possession

1. The landlord obtained a warrant for possession from the Tribunal as the tenant did not vacate the premises within the time stipulated in the orders of 3 May 2024. The warrant was executed on 12 July 2024.

The Filing of the Appeal and the Grounds of Appeal

1. On 24 July 2024, the appeal was filed, with an application for a stay. By this stage, the tenant was legally represented by Legal Aid New South Wales.
2. The grounds of appeal are identified as follows: - 1. Denial of procedural fairness. 2. Failing to consider the mandatory considerations under section 154E of the RT Act. 3. Jurisdictional error by failing to make a finding that the breach was, in all the circumstances of the case, sufficient to justify termination of the tenancy, in respect of s 87(4)(b) of the RT Act.
3. In respect of the stay application, the Appeal Panel made ex parte orders on 25 July 2024 restraining the landlord from re-letting the premises. The Appeal Panel also made orders for the filing and serving of evidence and submissions in respect of a stay application.
4. At a hearing on 6 August 2024, the Appeal Panel extended the operation of the stay order made on 25 July 2024.

Documents and Submissions Relied upon by the Parties in the Appeal

Appellant

1. The tenant's appeal submissions in chief are dated 20 August 2024.
2. In addition to its submissions, the tenant also sought leave to rely upon new evidence. Relevantly, that fresh evidence involved: 1. Statements of the tenant dated to August 2024, and 16 August 2024. 2. A brief medical report of Dr Collogan (GP) dated 7 August 2024.

Respondent

1. The landlord's appeal submissions are dated 26 August 2024.
2. In addition to its submissions and the documents that were provided by the landlord to the Tribunal at the hearing on 3 May 2024, the landlord also sought leave to rely on new evidence. That evidence is: 1. Statement of Ms Callaghan (client service officer) dated 5 August 2024. 2. Statement of Ms Murphy (client service officer) dated 23 August 2024.

Decision on new evidence.

1. New evidence, however, is not allowed, even with leave, in an appeal where a warrant of possession has been executed and the appeal is therefore limited to questions of law only. Clause 12(2)(b) of Sch 4 of the NCAT Act relevantly provides: Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if - (a) … (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
2. It follows that neither party may rely on new evidence in this appeal. The only other potential basis for admitting new evidence is under s 80(3) of the NCAT Act, which empowers the Appeal Panel to deal with an appeal by way of a new hearing if it considers the grounds of appeal warrant a new hearing; and permit fresh evidence. However, we are not satisfied that it is appropriate to deal with this appeal by way of a new hearing.
3. Accordingly, it is unnecessary to discuss the legal principles pertaining to leave to appeal (cl 12 (1) of Sch 4 of the NCAT Act; Collins v Urban [2014] NSWCATAP 17).

SCOPE AND NATURE OF APPEALS

1. To succeed in this appeal, an appellant must demonstrate an error by the Tribunal below on a question of law.
2. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50].
3. Each such question must be a pure question of law (adopting what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar) at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71], albeit in relation to different statutory provisions). In Cobar at [109] it was said by Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."
4. Examples of pure questions of law include: 1. Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]-[84]). 2. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it. 3. Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53]). 4. No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91])

Extension of Time

1. Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), the time period to file the appeal is "14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the latter)" subject to an extension of time being granted under s 41 of the NCAT Act.
2. The tenant submits that he was not aware of the orders of 4 May 2024 until he was evicted on 12 July 2024; and he did not obtain a sound recording of the hearing until 18 July 2024. The tenant relies on Taylor v Peslak [2018] NSWCATAP 57 (Taylor) at [38] and [44] to argue that he was only aware of the reasons for decision on 18 July 2024.
3. The appeal was filed on 24 July 2024. The tenant argues that the appeal is within time. In the alternative, if the appeal was not filed within time, the tenant submits that the Appeal Panel should exercise its discretion under s 41 of the NCAT Act to extend time, applying the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22].
4. The landlord submits that the appeal was filed out of time because the landlord complied with the order of the Tribunal to provide a copy of the orders to the premises on 3 May 2024; the Tribunal reasons were given orally on 3 May 2024; and Taylor should not be interpreted to allow a party to benefit from its lack of diligence in obtaining reasons.
5. In Taylor, the Appeal Panel dealt with whether time commenced to run under r 25 of the NCAT Rules from when oral reasons were given; or when written reasons were given. The Appeal Panel considered the approach taken in Escape Media Pty Ltd v Lawler [2018] NSWCATAP 17, which referred to the ability of a party to request reasons under s 62 of the NCAT Act.. The Appeal Panel stated at [40]-[45]: "Section 62(2) requires written reasons must be provided if a request is made within 28 days of being given notice of the decision. If a request is made, the Tribunal must provide a statement of reasons within 28 days from that request: s 62(2). That is, a party may request written reasons within 28 days from being given notice of the decision and the Tribunal is permitted a further 28 days in which to provide those written reasons. Those reasons must be in conformance with s 62(3). Consequently, the construction proposed in Escape Media would lead to the result that even where oral reasons was given and a party informed about why a particular decision was made, a total of 60 days (28 days to request reasons, 28 days for the Tribunal to provide reasons and a further 14 days to appeal) may elapse after a party is given notice of a decision before the right of appeal is lost. Such a result is inconsistent with the clear terms of r 25 and the short timeframe contemplated by the rule in respect of residential proceedings. Such a construction would also mean that either: (1) Time would never commence to run until written reasons were provided; or (2) Where oral reasons were given, time would re-start if a request for written reasons was subsequently made. In our view, this outcome is inconsistent with the intention to limit any right of appeal to a period of 14 days. On the other hand, if a party is not present at the hearing of proceedings or if the decision and/or reasons for decision are not given at the hearing, it is clear a party will not be "notified of the decision or given reasons for the decision" at this time. While a party might be given notice of the decision subsequently, either in writing by the Tribunal, or in a form otherwise authorised by the Tribunal, such notice may or may not include the reasons for decision. In this regard, while many written orders made by the Tribunal include reasons for the decision (the electronic case management system allowing the decision maker to incorporate written reasons within the document which becomes the notice of the decision), this is often not the case. Consequently, where only notice of the decision is given to a party, the prospective appellant may not know of the reasons for the decision. In this case, if a request for written reasons is made as permitted under s 62(2) of the NCAT Act, the time to appeal does not commence to run until the reasons are received. It follows that, in our view, Escape Media was wrongly decided and should not be followed. Rather, if a party is given oral reasons for decision, the time to appeal commences from the date those reasons are given."
6. However, in Taylor, the appealing party (the landlord) was present at the hearing when oral reasons were given.
7. Taylor has been referred to in a number of Appeal Panel decisions. However, those decisions arise in circumstances where the appealing party was present when oral reasons were given, or in circumstances where the decision contained written reasons (even if briefly expressed).
8. Taylor does not conclusively deal with how the limitation period in r 25 of the NCAT Rules is to be interpreted when the appealing party is not present at the hearing when oral reasons are given, and the appealing party is only given the Tribunal's orders, not the reasons for those orders. Paragraph [44] in Taylor refers to "if" the appealing party makes a request for written reasons. It does not deal with a situation where the appealing party delays in making a request for written reasons under s 62 of the NCAT Act, noting that the time period to request written reasons can be extended under 41 of the NCAT Act, nor where the appealing party delays in obtaining a sound recording of the hearing. Irrespective of s 62 of the NCAT Act, any party in Consumer and Commercial Division proceedings can request a sound recording of a Tribunal hearing from the Tribunal Registry. In this matter, that sound recording contained the reasons of Tribunal for the termination order.
9. It is unnecessary to further explore those issues in the circumstances of this matter because we would extend time required for the tenant to file the appeal under s 41 of the NCAT Act in any event. The relevant principles in Jackson are as follows: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
10. Here, the length of the delay is short. The reason for the delay is the tenant obtaining legal advice and assistance. He did this with alacrity following the eviction. The explanation for the delay is reasonable. The tenant did not unreasonably delay in obtaining a sound recording of the hearing on 3 May 2024. The tenant has a fairly arguable case. There is no prejudice to the landlord by reason of the short delay, such as the landlord not being able to obtain evidence or make adequate submissions by reasons of the delay. Time for the tenant to file the appeal is therefore extended to 24 July 2024.

Ground 1-Denial of Procedural Fairness

1. Although this ground of appeal is identified as ground 3 in the notice of appeal and appellant's written submissions, it is appropriate to deal with the issue of denial of procedural fairness first
2. The tenant identifies the denial of procedural fairness as follows: 1. The tenant was not provided with the documentary evidence the landlord relied upon prior to the hearing (paras [23]-[24] of the tenant's appeal submissions). 2. The tenant was not made aware by the landlord that the matter was listed for a conciliation and group list (hearing) on 3 May 2024, nor was he aware of the earlier hearing (and orders) of 1 February 2024. The reason for this was the tenant's agoraphobia, which meant he did not check his letterbox. The landlord failed to take measures to inform the tenant of the hearing by contacting his female friend prior to the hearing (paras [29]-[29] tenant's submissions).
3. The tenant's written submissions refer to the Appeal Panel authorities of Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 (Sinha) (at [73]-[75]); and Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 (Kline).
4. The landlord submits that the tenant was not denied procedural fairness because: 1. The Tribunal sends the notice of hearing to parties as part of its usual procedure. That notice would have been received by mail. 2. The landlord had left other notices and call notes in the tenant's letterbox; and the tenant was aware that there were proceedings on foot because of these documents and the landlord's representative speaking to him on 22 February 2024. 3. The tenant ignored notices and gave the landlord no opportunity to contact him other than attending the premises and, if contact could not be made, leaving correspondence at the premises. 4. The landlord disputed that the tenant had told a named staff member that he could only be contacted through his female friend, due being unable to answer the front door of the premises, check the letter box, or leave the premises, due to agoraphobia.

Principles of Procedural Fairness and the Failure to Serve Documentary Evidence Prior to the Hearing

1. The applicable legal principles were summarised in Boreland v Brewis [2024] NSWCATAP 140 at [59]-[62] as follows: In determining proceedings before it, the Tribunal is under a duty to afford procedural fairness to the parties. Procedural fairness, or the duty to act fairly, applies to courts and tribunals which are empowered to determine matters affecting the rights and interests of a person. Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act). It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26] and [29]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]-[20]; Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]-[38]). The appellant raised a denial of procedural fairness as a ground of appeal, noting that, in respect of a self-represented non-legally trained party, the Appeal Panel must consider the substance of what is raised as the grounds of appeal (see e.g. Cominos v Di Rico [2016] NSWCATAP 5 at [13]). Whether there has been a breach of procedural fairness raises a question of law: see e.g. Kudrynski at [52]; YHY v YHZ [2024] NSWCATAP 117. Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (Kiefel CJ, Keane and Gleeson JJ). Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.
2. In Sinha, the Appeal Panel dealt with the issue of procedural fairness in a similar factual and legal context to this appeal. In Sinha, the breach by the tenant upon which the notice of termination was based was also failure to keep premises reasonably clean. There had been a specific performance order, and the landlord had re-listed the proceedings to seek termination. At a conciliation and group list (hearing) the Tribunal terminated the tenancy, and given oral reasons. As is the usual practice of the Consumer and Commercial Division, no procedural directions had been made prior to the conciliation and group list (hearing) for the parties to file and serve documentary evidence upon each other.
3. Unlike this matter, the tenant appeared at the hearing in Sinha. In Sinha, the tenant was presented with the landlord's documentary evidence at the hearing. The circumstances in which the hearing was conducted are summarised in Sinha at para [54]. In Sinha, the Appeal Panel was satisfied that there had been a denial of procedural fairness, and that denial was material to the decision of the Tribunal to terminate the tenancy (see, in particular paras [76] and [81]).
4. Importantly, one of the reasons for the denial of procedural fairness was that the landlord had not presented its evidence to the tenant until the hearing.
5. In this matter, the landlord did not send the documentary evidence it sought to rely upon to the tenant prior to the hearing on 3 May 2024; nor did it inform the Tribunal that it had failed to do so. Irrespective of whether or not: 1. the tenant had been appropriately served with the Tribunal notice of conciliation and group list (hearing) (with the methods of service by the Tribunal being set out in rr 13 and 15 of the NCAT Rules and relevantly include service by post (r 13(2)(b)); and, 2. whether or not the Tribunal was satisfied that the tenant was aware of the hearing within r 35 of the NCAT Rules such that the hearing should proceed in his absence; the Tribunal made a decision based on documentary evidence the tenant had not been provided with prior to the hearing.
6. The submission of the landlord that, because the matter was listed for a conciliation and group list (hearing) the landlord was not directed by the Tribunal to serve evidence on the tenant, and that the landlord should not be expected to give documentary evidence to the tenant, does not address or ameliorate the denial of procedural fairness.
7. Although the Tribunal can hear a tenancy termination application at a conciliation and group list (hearing) (see, for example, Chatterjee v Pandya [2024] NSWCATAP 85 at [94]-[98]), the hearing must be conducted in a procedurally fair way.
8. This matter involved the termination of a social housing tenant for breach of the agreement by reason of failing to keep the premises reasonably clean. In that situation, photographic evidence taken of the premises at various inspections or from the street over a period of time was critical in determining whether the breach was sufficiently serious to terminate the tenancy under s 87 of the RT Act; and the mandatory considerations under s 154E of the RT Act. Without that evidence having been served by the landlord on the tenant, the tenant could not know what documentary evidence the landlord was relying upon; nor have an opportunity to consider that evidence and respond to it.
9. This is not a matter where a private landlord was seeking to terminate a tenant for rent arrears, where relevant documents may only involve a rent ledger and the notice to terminate. It is not unusual, or obviously procedurally unfair, for the Tribunal to hear and determine a non-payment of rent termination application on the first occasion where a tenant who has been duly notified of a conciliation and group list (hearing) fails to appear. The fact that the rent is unpaid will be known to the tenant. There will be situations where it is appropriate, and procedurally fair, for a tenancy termination application to be heard and determined at a conciliation and group list (hearing). However, this matter involves different considerations to termination of a private tenancy for non-payment of rent.
10. The Tribunal Member did not enquire of the landlord's representative on 3 May 2024 whether the documents the landlord sought to rely upon as evidence had been sent to the tenant prior to the hearing. Had that enquiry been made, and had the landlord informed the Tribunal that it had not served the documentary evidence it was seeking to rely upon, the Tribunal may have (a) decided it was not procedurally fair to hear the matter on 3 May 2024; and (b) set the matter down for a special fixture hearing with procedural directions for both parties to file and serve documentary evidence.
11. The landlord has a duty under s 36(3) of the NCAT Act to assist the Tribunal to achieve the just, quick and efficient resolution of the real issues in the proceedings. In Bott v NSW Land and Housing Corporation (No 2) [2018] NSWCATCD 2 at [8]-[10] reference was made to the landlord being subject to the Model Litigant Policy that applies to certain NSW government agencies. The landlord could have served its documentary evidence on the tenant prior to the hearing of its own volition without being directed to do so by the Tribunal; or it could have brought to the Tribunal Member's attention that it had failed to do so. It did neither of those things. It should have done one or the other.

Was the Failure to Serve Documentary Evidence Material to the Decision?

1. For there to be a denial of procedural fairness, we must be satisfied that the failure deprived the tenant of a realistic possibility of a different outcome. In Sinha, the Appeal Panel was satisfied that termination was not the inevitable outcome even if procedural fairness had been accorded to the tenant (Sinha at [77]). However, in Donohoe v Albourario [2024] NSWCATAP 166, the Appeal Panel was not satisfied that the purported denial of procedural fairness (involving the Member failing to inform a party of the right to seek to cross examine witnesses and to apply for an adjournment when the party had not obtained expert evidence) was material to the decision, because the appellant did not provide evidence that he would have sought to cross examine or apply for an adjournment, if so informed at the hearing by the Member (at [60]).
2. The submission of the landlord is, in essence, that the tenancy would have been terminated in any event had the landlord served its documentary evidence on the tenant prior to the hearing.
3. We are satisfied that there was a realistic possibility of a different outcome had the landlord served its documentary evidence on the tenant prior to the hearing. If it had done so, the tenant would have had the opportunity to assess the evidence that was being sought to be relied upon by the landlord and make an informed decision whether or not to seek to obtain his own documentary evidence. We are not satisfied that it is inevitable the tenancy would have been terminated if the landlord had served its documentary evidence on the tenant prior to the hearing. Moreover, the absence of recent evidence as to present state of house internally, may have provided the tenant with some counter argument to the landlord's allegations which may have persuaded the Tribunal not to terminate the tenancy.
4. Whether or not to terminate a social housing tenancy for breach of the agreement involves the exercise of discretion if the matters in s 87(4) of the RT Act are established, taking into account the mandatory considerations under s 154E of the RT Act. Relevantly, the Tribunal (in addition to the mandatory considerations under s 154E) considers under s 87(4)(b) whether the breach is, in the circumstances of the case, sufficient to justify termination of the tenancy agreement.
5. There is a reasonable possibility that, had the documentary evidence the landlord was relying upon at the hearing been served on the tenant in accordance with the service provisions under s 223 of the RT Act (which provides the method of service of documents by a landlord on a tenant) prior to the hearing, the outcome may have been different. We are not satisfied that it was inevitable the tenancy would have been terminated in any event.
6. Section 223 of the RT Act allows a landlord to serve documents on a tenant by delivering it in an envelope addressed to the tenant and leaving it in a mailbox at the tenant's residential address (s 223(a)(iii)); or sending it by post to the tenant's residential address (s 223(a)(iv)). Had the landlord sent the documentary evidence it sought to rely upon at the conciliation and group list (hearing) to the tenant prior to the hearing by post, it would have complied with s 223 of the RT Act. We note that the tenant submitted, based upon his fresh evidence, that he could not leave his house and attend the letterbox. If this were the case, it would not render the service on him in accordance with s 223 of the RT Act somehow invalid. The requirements of that section would still be satisfied.

Conclusion-The Failure to Serve Documentary Evidence

1. The failure of the landlord to serve its documentary evidence on the tenant prior to the conciliation and group list (hearing) on 3 May 2024 and to rely on that evidence at the hearing conducted on that day was a denial of procedural fairness. An error on a question of law is established.

Was There A Denial of Procedural Fairness By Reason of the Tenant Not Receiving the Hearing Notice for 3 May 2024?

1. The tenant asserts that, on the basis of the fresh evidence which we have not allowed, we should find there had been a denial of procedural fairness because the tenant was not aware of the conciliation and group list (hearing) on 3 May 2024, nor of the previous Tribunal specific performance orders obtained by the landlord.
2. Both the previous Tribunal orders and the notice of hearing for 3 May 2024 were served on the Tenant, by post, in compliance with rule 13(2)(b)(ii) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). As such, in the absence of proof to the contrary, it is taken to have been served on the Tenant "at the end of the seventh working day after the date on which the notice or document was posted" to him: see rule 13(4)(a). There is no proof to the contrary.
3. The tenant relies upon the Appeal Panel decision in Kline. There the Appeal Panel found that a social housing tenant who had "functional illiteracy," to the knowledge of a social housing landlord prior to Tribunal proceedings for termination of the tenancy under s 92 of the RT Act, was denied procedural fairness because the only notice of the hearing was the written notice sent by the Tribunal to the tenant's postal address, and the tenant could not read that document. Accordingly, the tenant was unaware that the matter was listed before the Tribunal, and did not have a reasonable opportunity to be heard under s 38(5)(c) of the NCAT Act.
4. The Appeal Panel commented that the circumstances in Kline were "unusual" (at [59]).
5. The facts of this appeal are very different to those in Kline. In Kline, the social housing landlord had knowledge of the tenant's functional illiteracy and had taken previous measures to serve documents for the tenant on an Aboriginal outreach worker (paras [24]-[34]). That is different to a tenant asserting (as was submitted) that he made brief reference on one occasion to a representative of the landlord that he had agoraphobia; didn't check the letterbox; and wanted to be contacted through a female friend. Further, even if the further evidence of the tenant were admitted, it does not establish that there are medical reasons preventing the tenant from checking his letterbox.
6. The tenant did not raise as a ground of appeal that the Tribunal had committed an error on a question of law by not considering or correctly applying rr 13 and 35 of the NCAT Rules in deciding to hear the matter in his absence. Rather, the tenant's claim of denial of procedural fairness was on the basis that the tenant did not have the ability to be aware of the hearing due to his agoraphobia.
7. The mere fact that the Tribunal conducted a hearing in his absence is not a denial of procedural fairness. It is for the tenant to demonstrate that through no contumelious, dilatory or careless conduct the tenant was nevertheless unable to be present at the hearing (Nayar v Uren [2024] NSWCATAP 47 at [23]-[24] and the authorities cited therein). This aspect of the appeal fails.

Ground 2-Mandatory Considerations under s 154E the RT Act

1. The interaction between ss 87(4)(b) of the RT Act and s 154E of the RT Act was given detailed consideration in Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 (Kelly) and King v NSW Land and Housing Corporation [2022] NSWCATAP 165 (King). The Tribunal must consider under s 87(4)(b) whether the breach of the residential tenancy agreement is sufficiently serious to justify termination of the tenancy in "all the circumstances" (Kelly at [33]). What those relevant considerations which the Tribunal "may" consider are depends upon the circumstances of each case and involves circumstances pertaining to the tenant and the landlord (Kelly at [50]). The matters in s 154E are mandatory considerations, but the mere fact that the Tribunal has not given a specific reason or finding on each of the considerations may not, of itself, mean the Tribunal had not considered them when the reasons are assessed fairly and in their full context (Kelly at [59]-[60]).
2. In King, the Appeal Panel agreed with the principles set out in Kelly (King at [37]) and explained the interaction between ss 87(4)(b) and 154E as follows at [43]-[44] and [48]-[51]: "The "superimposition" of considerations to be exercised in social housing situations, as referred to by the Tribunal, is not restricted to the requirements of section 154E. All the "circumstances of the case" must be considered. That is a mandatory consideration of broad import which will, in social housing cases, include the tenant's circumstances of personal hardship, the likely existence of which is reflected by the fact that the tenant has obtained social housing: Kelly at [51]. The fact that s 154E of the RTA predominantly focusses on the impact of the tenancy on others, the history of the prior or current tenancies of the tenant, or the tenant's compliance with prior orders, makes it apparent that these cannot be the only relevant considerations which might apply to a social housing tenant. … Again, this passage indicates error in the Tribunal's approach. The provisions of s 154E should be considered with all the other relevant factors when determining whether to terminate a social tenancy and balanced with them. Section 154E is not intended to operate as a counterweight, as it were, to a separate determination that the circumstances of the case justify termination. Nor should it be considered after that determination has been made only to see whether an otherwise concluded exercise of discretion to terminate the tenancy should be tempered by a consideration mandated by that provision. It appears from the manner of expression of the Tribunal's conclusion at [15] and [16] read with what is said at [20] of the Reasons, as cited above, that the Tribunal proceeded on the basis of inevitability as to termination unless the considerations contained in s 154E mitigated against it. That is incompatible with the due assessment of the mandatory considerations which we have referred to at [34] above. In assessing the Reasons, we have made allowance for the workload of the tenancy list of the Consumer and Commercial Division and the limited time available for preparation of reasons for decision in that jurisdiction. We have also taken into account that Ms King's condition, or at least the evidence as to it, is mentioned in the Reasons. But a mention or brief account does not of itself demonstrate due consideration according to law. We have concluded that the Reasons as a whole, and the analysis and treatment of the evidence reflected in them, does not demonstrate a "proper, genuine and realistic consideration" of the relevant mandatory considerations, in particular, Ms King's circumstances and the effect of termination on her."
3. We are satisfied that the Tribunal did not engage with the mandatory consideration under s 154E(1)(b) of the RT Act in respect of the "likelihood that that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated". That issue is only referred to briefly in the reasons, without any reference to the "likelihood" or "serious adverse effects."
4. The oral reasons of the Tribunal refer to the Member being satisfied that the tenancy should be terminated "having regard to the factors in ss 87 and 154E" before the Member specifically asked the landlord's representatives as to whether there were neighbours affected by the condition of premises. The response of the landlord's representative was that there were no complaints by neighbours to the landlord, but that at the inspection on 22 February 2024 "the officer that attended reported quite a serious smell". There was no evidence by way of a statutory declaration or affidavit from that client service officer at the hearing; and at is highest that assertion carried minimal evidentiary weight.
5. The Member then, after the landlord's representative had provided that response, moved onto whether there was any "hardship" to the tenant if the tenancy was terminated. There was no identification as to whether there was, or was not, a "likelihood that that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated" or how that mandatory consideration was to be weighed against the other mandatory considerations.
6. In circumstances where there was a failure to consider the mandatory consideration under s 154E(1)(b) of the RT Act, an error of law is established. It is unnecessary for us to further consider the other mandatory considerations under ss 87(4)(b) and s 154E within the principles elucidated in Kelly and King.
7. This ground of appeal succeeds.

Ground 3-Section 87(4)(b) of the RT Act

1. As the Tribunal failed to take into account the mandatory consideration under s 154E(1)(b) of the RT Act, it has also failed to consider whether the breach was, in all the circumstances of the case, sufficient to justify termination of the tenancy under s 87(4)(b).
2. This ground of appeal succeeds.

Does The Appeal Panel Have Jurisdiction to Make Orders that 'Reinstate' the Tenancy?

1. Section 81 of the NCAT Act states as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
2. The tenancy the subject of this appeal was terminated by the Tribunal by reason of breach of s 87 of the RT Act. However, the power to terminate is referred to in other provisions of the RT Act.
3. Section 81 of the RT Act states as follows: 81 Circumstances of termination of residential tenancies (1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs - (a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises, (b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant, (c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant, (d) the tenant abandons the residential premises, (e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn, (f) the interests of the landlord and tenant become vested in the one person (merger), (g) disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord).
4. Section 187(1)(i) of the RT Act relevantly states as follows: 87 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders - … (i) a termination order or an order for the possession of premises, …
5. The Tribunal also has the power to suspend the date of vacant possession when it makes a termination order (s 114 of the RT Act); and the power to issue a warrant of possession (s 121 of the RT Act). Section 120(1) of the RT Act makes it penalty offence for a landlord to take possession of residential premises unless (a) a warrant for possession has been issued by the Tribunal or a writ or warrant arising out of a judgment or order of a court; or (b) the tenant has abandoned the premises or given vacant possession of the premises.
6. The landlord submits that the Appeal Panel does not have the power to make orders that, in substance, are a "reinstatement" of the tenancy in circumstances where the landlord came into possession of the property after the warrant was executed. It refers to Davis v Compass Housing Services Co Ltd [2021] NSWCATAP 178 (Davis); and Kostov v Ecclesia Housing Ltd [2018] NSWCATAP 196 (Kostov).
7. In Davis, the Tribunal, made an order in the absence of the tenant terminating a residential tenancy agreement for non-payment of rent. The order was made at a conciliation and group list (hearing) on 14 January 2021. A warrant for possession was executed approximately 6 weeks later. One week later the tenant made an application to set aside the termination order. That application was dismissed because the Tribunal was not prepared to extend the time period to make the set aside application. The tenant then filed an appeal and obtained a stay order from the Appeal Panel preventing the landlord from re-letting the premises until the appeal was determined, on certain conditions.
8. The Appeal Panel dismissed the appeal, for reasons that relevantly included that there was no denial of procedural fairness. The Appeal Panel made the following comments at [30]: "In substance, the appellant is seeking that the Appeal Panel should direct the respondent, as landlord, to create a new tenancy for the appellant. The Appeal Panel considers that such relief would extend beyond the powers of the Tribunal. What the appellant is asking is that the Appeal Panel formulate a new lease, with new conditions and a new term for an unspecified period. The Appeal Panel considers that the powers provided to the Tribunal do not extend to granting such a request."
9. In Kostov, the Tribunal made an order terminating the tenancy under s 87 of the RT Act for non-payment of rent. The orders were in the absence of the tenant. The tenant filed a set-aside application, which was refused. The landlord obtained a warrant and took possession of the property. The tenant then appealed to the Appeal Panel. Among the grounds of appeal was that the landlord's obtaining of a writ of possession was "unlawful." The appeal was dismissed. The decision makes no reference to whether or not the landlord had entered into a new residential tenancy agreement with a different tenant. The Appeal Panel did not express any view about whether or not the landlord taking possession of the premises after obtaining a writ of possession meant the appeal was futile. How Kostov is relevant is therefore unclear.
10. The decision in Davis has been referred to in two other decisions of the Appeal Panel (Dannoun v NSW Land and Housing Corporation [2024] NSWCATAP 120 and Sinha). In both of those decisions, no warrant for possession had been issued and so there was no need to consider Davis.
11. We do not agree with para [30] of Davis for a number of reasons.
12. The comment is obiter dicta. It is not supported by reference to any legal authority.
13. In respect of the purported legal principle that the Appeal Panel cannot 'reinstate,' 'restore' or 'revive' a tenancy when the landlord has taken possession, that proposition does not reflect the powers of the Appeal Panel; nor the operation of the RT Act. It is also inconsistent with the principle in the Australian Capital Territory (albeit under a different statutory regime) that a residential tenancy that has been terminated by an order for termination and possession can be "revived" (Commissioner for Social Housing v Moffatt [2015] ACTSC 4 at [63]-[65]).
14. In this matter, the tenancy terminated under s 81(3) of the RT Act by order of the Tribunal. Despite the landlord making submissions that the tenant voluntarily relinquished the tenancy, that clearly did not occur. He was removed from the premises by way of enforcement of a warrant for possession. The only reasons the landlord was able to take possession of the premises was (a) the Tribunal terminated the tenancy; and (b) the order was able to be enforced by the obtaining of a warrant for possession under s 121 of the RT Act.
15. Here, the warrant for possession issued by the Registrar under s 121 of the RT Act was based upon an order of the Tribunal that contained an error of law. The preferred option open to us to address that error of law is to exercise our discretion under s 81 of the NCAT Act by setting aside the order and remitting the matter back to the Tribunal for redetermination according to law.
16. Discretionary considerations aside, to assert that the Appeal Panel is thereby creating a "new" tenancy is incorrect. If the order for termination and possession is set aside, the previous tenancy is revived. If the tenancy is a fixed term tenancy agreement (s 3 of the RT Act) then the fixed term period and rights and obligations of the parties apply. If the tenancy is periodic (s 18 of the RT Act) the rights and obligations of the parties under a periodic agreement apply.
17. If the fact that a landlord has entered into possession after a warrant for possession is executed renders an appeal nugatory, an illogical outcome will occur. The tenant, despite successfully demonstrating an error on a question of law, will be unable to re-take possession of the residential premises. In those circumstances, the only remedy of the tenant in remitted proceedings would be a monetary remedy ( the Tribunal on remittal having no power to create a new tenancy agreement, but able to make orders regarding the existing one when revived by the set aside order on appeal). We note that any claim for damages is subject to the monetary jurisdiction of the Tribunal under s 187(4)(a) of the RT Act and cl. 40 of the Residential Tenancies Regulation 2019 (NSW).
18. The submission that the Appeal Panel had no jurisdiction to make orders that have the effect of allowing the tenant to re-take possession after a warrant has been executed is also inconsistent with cl. 12(2)(b) of sch. 4 of the NCAT Act. That provision provides that an appeal from an order of the Tribunal terminating a residential tenancy agreement is limited to an error on a question of law if "a warrant for possession has been executed in relation to that order." If the legislature intended that a tenant could not appeal because a warrant had been executed and the landlord had taken possession, it would have explicitly said so. The right to appeal is enshrined in s 80 of the NCAT Act, with the relevant limitation under cl. 12 of sch. 4 being that it is restricted to error on a question of law, rather than on grounds that require leave to appeal.
19. We note that in Anforth, Christensen and Adkins "Residential Tenancies Law and Practice NSW" (8th ed. 2022) at pp 330-331 there is commentary on whether a warrant for possession can be "set aside". It is stated that "there does not appear to be much law in NSW or Australia on this point." It is also stated as follows: "There is a fundamental difference between staying a warrant for possession before it is executed or setting aside an order for termination and possession after its execution. After the execution of the warrant both the contract and the estate in land no longer exist. The landlord may have relet the premises, sold them, personally moved into the premises, commenced renovations etc. Each of these potential actions would be inconsistent with a restoration of the previous tenant to the premises. The common law on the point appears to be that developed by superior courts of the UK. If the legislature intended that an executed warrant could be set aside it would be reasonable to expect the legislature to be specific about such a significant power in the Tribunal, as the NSW legislature (sic) has in fact done. In the UK, the grounds for setting aside an executed warrant of possessions and restoring the tenant to possession are: (a) the warrant was defective; (b) the warrant was obtained by fraud; (c) there has been an abuse of process or oppression in the execution of the warrant (Hammersmith and Fulham LBC v Hill (1994) 27 HLR 33 (CA) …"
20. The commentary then refers to a number of United Kingdom decisions that apply the principles in Hammersmith and Fulham LBC v Hill (1994) 27 HLR 33 (CA) (Hill).
21. However, that commentary does not address the different statutory regime in the United Kingdom.
22. Section 85(2) of the Housing Act 1985 (UK) relevantly states: Extended discretion of the court in certain proceedings for possession … (2) On the making of an order for possession…or at any time before the execution of the order, the court may- (a) stay or suspend the execution of the order or (b) postpone the date of possession, for such periods as the court thinks fit. …
23. As discussed previously, s 114 of the RT Act allows the Tribunal to suspend the date of possession after it has made a termination order. Section 121 of the RT Act allows the Registrar of the Tribunal to issue a warrant of possession if the Registrar is satisfied that the order, or a condition of the order, has not been complied with. However, under s 121 of the RT Act, there is no requirement that the tenant be notified of the application for a warrant of possession by the landlord, nor a specific power to challenge the issue of a warrant of possession.
24. There is a power under s 188(b) of the RT Act for the Tribunal to "stay or suspend" the operation of an order made "in the proceedings or earlier proceedings". Section 188 of the RT Act also gives other wide powers to the Tribunal, including setting aside order; varying orders; making ancillary orders; and making interim orders. There is no limitation in s 188 of the RT Act which has the effect of providing that a warrant issued under s 121 of the RT Act cannot be set aside after it has been executed.
25. In Hill, Nourse L.J (with whom Wall J agreed) held there was no statutory requirement for a tenant to be given notice that the landlord was executing the order for possession, and stated as follows: "Shortly stated, the effect of the decision in Leicester City Council v Aldwinckle is that after a warrant for possession has been executed in this class of case it can only be suspended or set aside if either (1) the order on which it is issued is itself set aside (2) the warrant has been obtained by fraud; or (3) there has been an abuse of process or oppression in its execution. The authority for the first of these exceptions is the decision of this court in Governors of the Peabody Donation Fund v Hay (1986) 19 HLR 145. The second speaks for itself, in that fraud unravels everything. The third is established in the leading judgement of Leggatt L.J. in Leicester City Council v Aldwinckle, with whose reasoning Neill and Stocker L.JJ. agreed, in a passage to which I will refer later (emphasis added)."
26. Even allowing for the different statutory regime in the UK, the passage referred to in Hill supports the principle that an executed warrant for possession can be set aside if the order upon which it is based is set aside.
27. In our view, the lodging of an appeal after the execution of a warrant for possession does not, of itself, deprive the Appeal Panel from having the power to set aside the original orders for termination and possession.
28. However, that does not mean that the Appeal Panel will always make orders that set aside the original orders for termination and possession. There are discretionary reasons why the Appeal Panel may refuse to set aside the orders for termination and possession, even if they contain an error on a question of law. For example, if the landlord had entered into a new residential tenancy agreement with a new tenant, then displacing the new tenant (who has an interest in the land) to restore the former tenant may not be appropriate. A tenant bringing an appeal has the ability to avoid this occurring by seeking a stay from the Appeal Panel under s 43(3) of the NCAT Act (see, for example, Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 for a discussion of the principles pertaining to obtaining a stay) and the failure to do so may cause the Appeal Panel to dismiss the appeal because the new tenant should not be displaced. Here, the tenant obtained a stay order to the effect that the landlord not relet the premises before the Appeal is decided, thereby preserving the status quo and preventing the residential premises being re-let.
29. A further relevant circumstance affecting the discretion would be if the landlord moved into the property to reside in it after the landlord had obtain possession by way of the execution of the warrant.
30. However, none of those circumstances apply in this matter. There are no doubt other factors which may impact on the discretion to set aside possession orders and warrants based on a decision containing an error of law.
31. Finally, we refer to the comments of Basten AJA in Dokas v Gallagher [2024] NSWCA 223. The Appeal Panel had varied a Tribunal order to suspend the date of vacant possession when dismissing an appeal. The tenant then appealed to the Supreme Court. The landlord had obtained a warrant for possession which had been executed 3 days prior to the tenant filing an appeal in the Supreme Court. The Supreme Court dismissed the application by the tenant for a stay.
32. Basten AJA stated at [4]: "There is no basis for contending that the steps taken by the respondent to obtain the issue of the writ of possession and enforce it were unlawful, the stay granted by the Appeal Panel having expired. Nor is there any basis for concluding that the steps taken by the sheriff to evict the applicants were unlawful or invalid. As a result, there is now nothing to stay. There is also no basis for making a mandatory order restoring the applicants to possession."
33. Those comments are in the context of the Supreme Court refusing to grant a stay. In this matter, a stay was granted, preventing the landlord from renting out the premises to a new tenant. Whether or not a stay is granted is a different issue to whether an otherwise successful appeal in the Appeal Panel against a possession and termination order should not be allowed, on a discretionary basis, because of circumstances that have arisen since a warrant of possession was executed.

Conclusion

1. The appeal is successful, and the matter is to be remitted to the Tribunal for determination according to law.
2. As the orders for termination and possession are set aside, it follows that the warrant for possession is a nullity. As discussed previously, there are no discretionary reasons not to set aside the orders for termination and possession. In our view, it is unnecessary for us to make ancillary orders that the landlord allow the tenant to retake possession of the premises, in circumstances where the landlord is a social housing provider. As the orders for termination and possession are set aside, the landlord must allow the tenant to retake possession of the premises, pending the redetermination of the termination application by the Tribunal (or the parties setting the dispute). If the landlord fails to do so, it will be denying the tenant quiet enjoyment under s 50 of the RT Act, and leaving itself open to other proceedings in the Tribunal by the tenant.

ORDERS 1. Time to file the appeal is extended to 24 July 2024. 2. The appeal is allowed. 3. All orders of the Tribunal dated 3 May 2024 are set aside. 4. The matter is remitted to the Tribunal for reconsideration according to law before a differently constituted Tribunal, on the basis of all evidence that the Tribunal grants leave for the parties to rely upon (including fresh evidence).

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 October 2024