Housing NSW v Hamilton

Background

1. Ms Hamilton occupies "social housing premises" provided by Housing NSW. On 4 May 2012 Housing NSW and Ms Hamilton entered into a residential tenancy agreement (the Agreement).
2. For the past two years, one of Ms Hamilton's neighbours, a tenant of Housing NSW, has damaged Ms Hamilton's premises and been physically and verbally abusive towards Ms Hamilton and other tenants. Police have been called to deal with the tenant's disruptive behaviour on numerous occasions. The neighbouring tenant apparently uses "ICE", a form of the illicit drug, methamphetamine. According to Ms Hamilton, the neighbour's conduct while using ICE is intolerable. Ms Hamilton's treating medical practitioner is of the opinion that the disruption caused by the neighbouring tenant has had a deleterious effect on Ms Hamilton's health.
3. Ms Hamilton has made numerous complaints to Housing NSW about the neighbouring tenant. In May 2014, Ms Hamilton applied to NCAT seeking orders that Housing NSW be required to take steps to ensure her "quiet enjoyment" of the tenancy. On 26 June 2014 Housing NSW and Ms Hamilton reached an agreement and Ms Hamilton withdrew her application to NCAT. The Tribunal noted: [Housing NSW] will commence action against the tenant causing a breach of the quiet enjoyment of [Ms Hamilton]. By consent, [Ms Hamilton] may seek leave to renew these proceedings in the event these undertakings by [Housing NSW] are not complied with by the other party.
4. In August 2014 Ms Hamilton applied to NCAT for "renewal of proceedings", contending that the orders made by the Tribunal on 26 June 2014 had not been complied with. She sought orders for compensation in the sum of $15,000 and a reduction in rent on account of the neighbour's "unacceptable behaviour".
5. Ms Hamilton alleged that Housing NSW was in breach of the Agreement and the Act. Clause 12 of the Act provides: TENANT'S RIGHT TO QUIET ENJOYMENT 12. The landlord agrees: 12.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord, and 12.2 that the landlord or the landlord's agent will not interfere with or causal permit any interference the, the reasonable peace, comfort or prophecy of the tenant in using the residential premises, and 12.3 that the landlord or the landlord's agent will take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises
6. Section 50 of the Act mirrors cl 12 of the Agreement, and states: Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.

The Tribunal's decision

1. In its reasons for decision the Tribunal held that: 1. It was an implied term of the agreement entered into between the parties on 26 June 2014 that, in consideration of Ms Hamilton foregoing a valuable right, by agreeing to withdraw proceedings, Housing NSW would exercise such power as was available to it to terminate the tenancy of the neighbouring tenant. 2. The failure of Housing NSW to take reasonable steps to prosecute an application for termination of the neighbour's tenancy was a "fundamental breach" of the Agreement and s 50(3) of the Act. 3. That failure caused Ms Hamilton loss and damage.
2. Having determined that Housing NSW was in breach of the Agreement and had contravened the Act, the Tribunal went on to consider at [74] "how to value the loss suffered by [Ms Hamilton]": 76. [Ms Hamilton] evidently seeks an order from the Tribunal that will provide the quiet enjoyment that clearly has been denied to her for the whole of her tenancy; and the necessary security that is required given her assistance to the New South Wales police force in acting as an informant as to the conduct of persons who are engaging in the illicit sale of illegal drugs in and about the precincts of the properties under the management and control of the respondent 77 Ex hypothesi, that would require an order that [Housing NSW] take steps to relocate [Ms Hamilton] to another property.
3. In rejecting the submission made by Housing NSW that it lacked jurisdiction to order that Ms Hamilton be relocated, the Tribunal reasoned: first, that the submission "confused jurisdiction with power" (at [80]); second, s 187 of the Act conferred on it the power to make the relocation order. Having noted that the power conferred by s 187(1)(d) of the Act - to make "an order as to compensation" - was "different to and wider than" an order for the payment of money under s 187(1)(c), the Tribunal held that it was open to it to frame an order (in respect of relocation) under s 187(1)(d) "as extended by s 187(2)(b)" (at [82], [83], [84]).
4. The Tribunal reasoned: 82. The concept of 'compensation', which the Tribunal is empowered to order pursuant to s. 187(1)(d) of the Act, clearly is different to and wider than an order for the payment of money which is available to the Tribunal in the exercise of its discretion under s. 187(1)(c) of the Act. 83. If there were any doubt as to this proposition, it is removed by the operation of s. 187(2)(b) of the Act which permits compensation for any other breach of a residential tenancy agreement. 84. As the finding of the Tribunal is that the Respondent breached the residential tenancy agreement, it is open to it to frame an order in reliance upon the operation of s.187(1)(d) of the Act as it is extended by s.187(2)(b) of the Act.
5. The Tribunal ordered Housing NSW to: 1. Forthwith shall take all such steps as are necessary or convenient to relocate [Ms Hamilton] to alternative premises under the control and management of the [Housing NSW]. 2. Have regard to the stated concerns of the New South Wales Police Force enumerated within the statement of Det. Snr. Const. Kench dated 7 February 2015, in this respect; 3. Before taking any such steps to relocate [Ms Hamilton], but in any event no later than 14 days from the date of this order, shall consult with and [Ms Hamilton] and Det. Snr. Const. Kench, or such other responsible officer of the New South Wales police force with knowledge and understanding of the facts, matters and circumstances identified by Det. Snr. Const. Kench in her statement dated 7 February 2015 as may be available, so as to form an understanding of current and operative security risks to [Ms Hamilton] in carrying out the terms of this order in so far as they pertain to the relocation of [Ms Hamilton] to other premises before that shall occur; and 4. Bear the whole of any and all costs, charges or other out-of-pocket expenses as shall be occasioned in carrying this order into effect.
6. For convenience in the Reasons we will refer to orders 2, 3 and 4 as "the associated orders".

Grounds of appeal

1. The primary ground of appeal relied upon by Housing NSW is that the Tribunal lacked power to make each of the orders made. Housing NSW contends that the Act is directed to restraining breaches of a residential tenancy agreement or compelling performance of obligations under a residential tenancy agreement. It argues that neither s 187 nor s 188 of the Act expressly give the Tribunal jurisdiction to compel a landlord to enter into a separate residential tenancy agreement for a separate property, to compel a landlord to have regard to comments made by a police officer, or to direct a landlord to pay for a tenant's removal costs to a different property.
2. This ground is determinative of the appeal and therefore it is not necessary to address the other grounds outlined in Housing NSW's amended Notice of Appeal.

Power to make orders under the Act

1. Part 9 of the Act is headed "Powers of the Tribunal". Contained in Part 9, s 187 of the Act states: 187 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: (a) an order that restrains any action in breach of a residential tenancy agreement, (b) an order that requires an action in performance of a residential tenancy agreement, (c) an order for the payment of an amount of money, (d) an order as to compensation, (e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation, (h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations, (i) a termination order or an order for the possession of premises, (j) an order directing a landlord or landlord's agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove. (2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following: (a) loss of rent, (b) any other breach of a residential tenancy agreement, (c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database. (3) An order under subsection (1) (a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available. (4) The Tribunal must not make an order for: (a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or (b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section. Note: This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders, to declare that premises have been abandoned, to make orders about holding fees and to make various orders about rental bonds.
2. Section 188 is also relevant to this appeal: General order-making power of Tribunal The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders: (a) an order that the Tribunal may make under this Act, (b) an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings, (c) any ancillary order the Tribunal thinks appropriate, (d) an interim order.

Did the Tribunal have power to make the relocation order?

1. NCAT is a creature of statute. Its jurisdiction is circumscribed by the statute establishing it, namely, the Civil and Administrative Tribunal Act 2013 (NSW). Section 28(1) of that Act states that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under that Act or any other legislation. One of the types of jurisdiction conferred on NCAT is the "general jurisdiction" (s 28(2)(a)). Section 29(1) of the Civil and Administrative Tribunal Act states that the Tribunal has "general jurisdiction" over a matter if: (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note: The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction.
2. Clause 3(1) of Schedule 4 to the Civil and Administrative Tribunal Act states that the functions of the Tribunal in relation to the Act, are allocated to the Consumer and Commercial Division of NCAT.
3. We have not been taken to any other legislation which enables the Tribunal to make decisions in relation to disputes between residential tenants and landlords. It follows that the question of whether the Tribunal had power to make the relocation order and the associated orders turns on whether the Act gave the Tribunal power to make those orders.

Did the Act confer on the Tribunal the power to make the relocation order?

1. Sections 187 and 188 list the type of orders the Tribunal may make (see [18] and [19] above). In our view, the only provisions of potential application in this matter are s 187(1)(b) - an order that requires an action in performance of a residential tenancy agreement; s 187(1)(d) - an order as to compensation; s 187(1)(h) - an order directing a landlord, landlord's agent or tenant to comply with a requirement of this act or the regulations.

Can the relocation order be characterised as "an order that requires an action in performance of a residential tenancy agreement" (s 187(1)(b) of the Act)?

1. Clause 12.3 of the Agreement requires Housing NSW: [To] take all reasonable steps to ensure that [Housing NSW's] other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises [emphasis added]
2. Clause 12.3 requires Housing NSW to take all reasonable steps to ensure that its neighbouring tenants do not interfere with Ms Hamilton's reasonable peace, comfort or privacy "in using the residential premises" (emphasis added). The residential premises referred to in cl. 12.3 are the premises the subject of the Agreement, that is, the premises where Ms Hamilton now resides. The "reasonable steps" must relate to Ms Hamilton's use of those premises.
3. The relevant step, in this case the relocation order, would have the effect of removing Ms Hamilton from the interference posed by the neighbouring tenant. However, it does not satisfy the second limb of the clause because it does not relate to Ms Hamilton's "us[e] of the residential premises [the subject of the Agreement]". Accordingly, s 187(1)(b) did not empower the Tribunal to make the relocation order.

Can the relocation order be characterised as an order directing Housing NSW to comply with a requirement of the Act or the regulations (s 187(1)(h))?

1. Section s 50(3) mirrors cl 12.3 of the Agreement, and appears to be the only relevant provision of the Act. Like cl 12.3 of the Agreement, the "reasonable step" referred to in s 50(3) must relate to the tenant's use of the premises the subject of the residential tenancy agreement. For the reasons given above, the relocation order could not be characterised as an order directing Housing NSW to comply with s 50(3). It follows that s 187(1)(h) did not empower the Tribunal to make the relocation order.

Can the relocation order be characterised as an order as to compensation (s 187(1)(d))?

1. Ms Hamilton submits that the Tribunal did not err in holding that s 187(1)(d) gave it power to make the relocation order. She contends that the word "compensation" in s 187(1)(d) is not synonymous with "money", and points in support to the definition given by the Concise Oxford Dictionary: something, typically money, of order to someone in recognition of loss, suffering or injury; something that counterbalances or makes up for an undesirable or unwelcome state of affairs
2. She contends that the relocation order, if implemented, would "counterbalance" or "make up for" the undesirable state of affairs she was forced to endure by the neighbouring tenant.
3. Ms Hamilton states that the tenancy came at a great personal cost and she has every right to ask for appropriate compensation as provided by the Act, in this case, a home. Ms Hamilton also submits that her application to NCAT was never "about money". At all times, what she wanted was for Housing NSW to take steps to stop the offending neighbour interfering with her peace and privacy. She says that the relocation order was a measured and appropriate order in the circumstances and, further, that the Tribunal gave detailed and cogent reasons for its decision that it had power to make that order.
4. Housing NSW concedes that the word "compensation" in s 187(1)(d) should not be construed to mean money. It submitted that it might extend, for example, to an order that the landlord repair or replace a good (such as a washing machine). Nevertheless, it contended that even on the most generous construction the power conferred by the provision does not extend to the making of a relocation type order.

Consideration

1. In interpreting s 187(1)(d) it is necessary to have regard to its text, context and purpose (see s 33 of the Interpretation Act 1987 (NSW) and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71]; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12]-[13]).
2. The word "compensation" is not defined in the Act. As Ms Hamilton points out, it is an ordinary English word and as a starting point it is necessary to consult dictionary definitions to ascertain its meaning. The definitions relied on by Ms Hamilton make clear that the word "compensation" is not synonymous with the word "money".
3. The text of s 187(1)(d) itself also supports Ms Hamilton's contention that the word compensation should not be construed to mean money. The language of the provision - "an order as to compensation" - makes no reference to either payment or money.
4. The context of the provision provides further support for Ms Hamilton's argument. One of the types of orders the Tribunal can make under s 187(1) is "an order for the payment of an amount of money" (s 187(1)(c)). If s 187(1)(d) were interpreted to mean monetary compensation alone, s 187(1)(c) would have no work to do.
5. Section 187(1)(d) plainly gives the Tribunal power to make orders for non-monetary compensation. The real issue is whether the relocation order can be characterised as an order for non-monetary compensation. While the relocation order would have the effect of removing Ms Hamilton from the interference posed to her quiet enjoyment of the subject premises, in our opinion it goes somewhat further than, and could not be characterised as, compensating Ms Hamilton for the loss resulting from that interference. Nor, in our opinion, could it be said to be an order "in recognition of" the loss suffered by Ms Hamilton, or something that "counterbalances" or "makes up" for the interference she has suffered.
6. For these reasons the relocation order does not fall within the scope of s 187(1)(d).

Can the relocation order or the associated orders be characterised as "an ancillary order"?

1. While the Tribunal did not purport to rely on s 188 of the Act, in the interests of completeness we will consider whether that provision could be said to give the Tribunal power to make the relocation order or any of the associated orders.
2. Of the orders listed in s 188 as falling within the Tribunal's "general, order-making power", s 188(c) is potentially relevant. Section 188(c) permits the Tribunal to make an "ancillary order". An ancillary order is an order that is "incidental or supplemental to" an order the Tribunal is empowered to make (see for example, New South Wales Crime Commission v Ollis [2006] NSWCA 76 at [28]). So for example, if the Tribunal was empowered to make the relocation order, it would be permitted to make each of the associated orders as they would be incidental to that order.
3. For the Tribunal to make an ancillary order, there must first be a primary power that the ancillary order is said to support. For the reasons given, s 187 did not permit the Tribunal to make the relocation order. It follows that neither the relocation order nor any of the associated orders could be said to be an ancillary order within the meaning of s 188(c) of the Act.

Conclusion

1. Sections 187 and 188 of the Act did not confer on the Tribunal the power to make either the relocation order or any of the associated orders. We are unable to identify any other provision of the Act which would permit the Tribunal to make those orders. The decision to make those orders therefore constitutes an "error of law".
2. We have decided to make orders under s 81(1) of the Civil and Administrative Tribunal Act to allow the appeal, and set aside and remit the decision for reconsideration according to law.
3. Housing NSW urged the Appeal Panel to remit the matter to a differently constituted Tribunal. It stated that if the decision was remitted to the Tribunal as originally constituted, it would make a recusal application on the ground of apprehended bias. In support of that foreshadowed application, Housing NSW filed a large amount of material, including the transcript of the original proceedings. Ms Hamilton opposes NSW Housing's application. She argues that the original member is familiar with, and best placed to reconsider, the matter.
4. In our opinion, ordinarily, where an Appeal Panel has decided to remit an application to the Tribunal for reconsideration, the decision about the constitution of the Tribunal should be left to the appropriate Divisional Head who is best placed to take into account listing practicalities, including member availability. A decision to direct that a matter be reconsidered by a differently constituted Tribunal on the basis of a foreshadowed recusal application is not one that should be lightly made. Nonetheless in the circumstances of this case, given the delay likely to result from Housing NSW's foreshadowed application, we think it appropriate to direct that the matter be heard by a differently constituted Tribunal.
5. We have considerable sympathy for the position Ms Hamilton finds herself in. Our decision to allow the appeal is made on the basis that the Tribunal lacked power to make the form of orders made. It should not be taken to indicate that in our opinion, no form of order should or could have been made.
6. Housing NSW informed us that Ms Hamilton has been assessed as eligible for alternative accommodation and been given priority. We understand that there may be considerable delay in locating appropriate alternative accommodation. It would plainly be in the interests of all parties for Ms Hamilton to be provided with alternative accommodation as soon as practicable.

Orders

1. For the above reasons, the Appeal Panel makes the following orders. 1. The appeal is allowed. 2. The decision under appeal is set aside. 3. Remit the matter to the Consumer and Commercial Division of the Civil and Administrative Tribunal constituted by a member other than the member who made the original decision, to be determined in accordance with these reasons and otherwise according to law. 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: 09 July 2015