Hughes v Hume Community Housing Association Co Ltd

NCAT Appeal Panel|2023-03-23

REASONS FOR DECISION

This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dated 9 January 2023 involving a social housing tenancy under the Residential Tenancies Act 2010 (NSW) ('the RT Act').
The critical issue in the appeal is whether a 'no grounds' Notice to Terminate under s 85 of the RT Act was retaliatory under s 115 of the RT Act; and if so, whether the tenancy should be terminated in any event. The Tribunal found that the Notice to Terminate was not retaliatory, and terminated the tenancy.
The appellant is the tenant, and the respondent is the landlord.
The appeal was filed on 23 January 2023, and has been filed within the time period prescribed under r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW).
The decision under appeal comprises of a 68 page written decision. Both parties were legally represented at the Tribunal hearing on 14 October 2022. The date of decision was 9 January 2023.

BACKGROUND

The parties had entered into a residential tenancy agreement on 4 September 2009, in respect of a two bedroom townhouse with a garage. The tenant resided in the premises with her daughter, who is now a teenager. There are a number of other townhouses in the same block. The residential premises is more than 20 years old.

History of the Dispute

In October 2019, the tenant took proceedings in the Tribunal seeking orders that the landlord perform repairs to the premises and pay the tenant compensation. The gravamen of that application was that due to water ingress the premises was significantly mould affected which was deleterious to the health of the tenant and her daughter.
The tenant had applied to the landlord for transfer of her tenancy to different premises, which the landlord agreed to in December 2019. However, for various reasons, the tenancy was not transferred.
In January 2020, the tenant succeeded in her Tribunal proceedings. The Tribunal found that the premises were not fit for habitation due to the inability to prohibit water ingress that caused ongoing mould problems. The Tribunal awarded compensation to the tenant of $4,480.
In the period between late January 2020 and September 2020 the landlord made offers to the tenant of multiple alternative social housing properties; and as an alternative that the landlord would facilitate the tenant moving to private housing with a rent subsidy. The tenant refused the offers on the basis that she did not regard the offered premises as suitable to her family needs.
The landlord also, during this period, offered the tenant temporary accommodation in a serviced apartment whilst repairs were performed to the residential premises. The tenant refused the offer.
After the Tribunal's orders of 22 January 2020, the landlord abated the tenant's rent by $5 per week.
On 22 September 2020, the tenant withdrew her application to be transferred to alternative residential premises. The landlord then recommenced expert investigations into repairing the premises, including having the premises inspected by engineers, builders and a mould specialist.
Between mid-November 2020 and January 2021 there were further offers of temporary accommodation so that repairs could be performed, which were rejected by the tenant.
On 23 December 2020, the tenant took fresh Tribunal proceedings seeking orders that the premises be repaired. That application was subsequently amended to include a claim for compensation of $15,000.
On 12 January 2021, the landlord adjusted the tenant's rent by way of a retrospective rent reduction, and a reduction of current rent payable to $5 per week from 22 January 2022.
On 18 January 2021, the landlord proposed a scope of works to repair and sought access to the premises to conduct extensive repairs. The landlord sought access commencing 29 January 2021. The tenant refused access.
On 3 February 2021, the Tribunal made orders granting the landlord access to the premises between 5 February 2021 and 19 April 2021 to conduct repairs. The tenant declined the landlord's offer of temporary accommodation; and moved to reside with her mother.
Repair works were performed in the period to June 2021. The works included roofing works; structural works; and a new kitchen.
In June 2021, the landlord engaged a mould remediation expert to perform works at the premises. Such works were substantial.
In early June 2021, the landlord had the premises inspected by a mould expert/biologist, Ms Williams. In a report of 8 June 2021, Ms Williams asserted the premises were substantially mould free (other than a side window frame that required surface cleaning).
The tenant returned to live in the premises on about 12 June 2021.
The landlord provided a further reassessment of the tenant's rent; with a rent abatement period and a reduction in rent until repairs were completed to the balcony and garage of the premises.
In late October 2021, the landlord sought access to the premises on a number of occasions to complete repair works. Access was not provided.
In November 2021, the tenant's Tribunal proceedings were set down for hearing. The Tribunal ordered that the tenant provide access to the landlord for the landlord to prepare a scope of works in respect of outstanding repair issues. The tenant gave the landlord access on about 3 December 2021.
On 7 December 2021, the tenant obtained her own mould remediation expert report (Mycotox). That report stated there were bacterial and fungal species in the premises and further remediation and reassessment was warranted.
In response to the Mycotox report, the landlord had further mould and bacteria testing performed by an expert, Airsafe. The results of that report found no significant microbiological contamination; and that small areas where there was "minor contamination" could be managed by normal cleaning and hygiene.
On 18 December 2021, the tenant emailed the landlord stating that after obtaining the Mycotox report she believed the residential premises were unsafe and she was sleeping in her car. The tenant subsequently emailed the landlord stating that she and her daughter were living in a tent in the backyard of the premises. The landlord offered alternative temporary accommodation, which was rejected.
On 10 January 2022, the tenant's Tribunal proceedings were listed for hearing. The hearing did not conclude as the parties agreed to a partial resolution of the tenant's Tribunal proceedings, including an order that specified repair works be performed by 11 July 2022; and the tenant was to provide reasonable access. The Tribunal noted that the tenant contended that none of the consent repair orders were urgent and her position was that repairs should not be attended to until "the matter of whether the applicant is to be relocated is resolved."
The Tribunal on 10 January 2022 refused the tenant's application to amend her proceedings to seek an order that the landlord relocated her to other premises. The Tribunal commented that it had no apparent power to do so under the provisions of the RT Act.
As of 10 January 2022 the tenant was residing temporarily in an AirBnB property arranged and paid for by the landlord. The landlord offered to extend the temporary accommodation for a further week to complete repairs. The tenant refused because she regarded the AirBnB premises as unclean. The tenant asserted that rather than repairing the current premises she should be relocated to new premises the subject of a residential tenancy agreement; and that the current premises would never likely to be fit for habitation and safe from mould/bacteria exposure to the tenant and her daughter. The tenant asserted the landlord was trying to terminate her tenancy.
The position of the landlord was that the residential tenancy premises were fit for habitation; it was attempting to complete repairs; and it was not seeking to terminate the tenancy at that time.
The tenant filed an appeal from the Tribunal's decision of 10 January 2022 to the Appeal Panel. That appeal was subsequently withdrawn and dismissed on 24 March 2022.
In February 2022, the tenant informed the landlord that she believed she had a personal injury claim against the landlord due to mould exposure.
Notwithstanding that there were current proceedings between the parties; in February 2022, the tenant filed separate proceedings in the Tribunal seeking (a) property relocation; (b) rent reimbursement; (c) costs; (d) there remain a residential tenancy agreement between the parties; (e) compensation; and (d) repairs to the premises.
On 18 February 2022, the tenant's part-heard proceedings were again before the Tribunal for hearing. The Tribunal refused the tenant's application to adjourn the part of her proceedings seeking further repairs be performed, and dismissed the outstanding part of her application seeking repairs. Written reasons were provided. The tenant's claim for compensation was adjourned.
On 21 February 2022 Ms Williams conducted further testing at the premises and stated they were fit for habitation.
In March 2022, the tenant gave the landlord a "list of her needs/requirements for a replacement (sic) house, which was long and particular" (para [68] Tribunal decision). The 'requirements' are set out at para [69] of the Tribunal decision. Those 'requirements' include 3-4 bedrooms; separate space for home schooling; yard and fencing sufficient for assistance dog; secure garage; no history of death at the premises; reasonable proximity to medical and support services; no electronic towers nearby; not south facing; no water ingress issues; good drainage; and no history of water ingress or mould.
In March 2022, the landlord made further offers to relocate the tenant to different premises. The tenant refused to accept the offers; again asserting that the properties offered were not suitable.
On 10 April 2022, the tenant obtained a further report from Mycotox. That report disagreed with the conclusions of Ms Williams; and stated that further repairs and decontamination works were required at the premises.
On 29 April 2022, the Tribunal dismissed the tenant's concurrent Tribunal proceedings that had been filed in February 2022. Written reasons were provided. The application by the tenant that the landlord relocate her to other premises was dismissed on the basis that the Tribunal had no jurisdiction to make such an order under the RT Act. The tenant's application for a repair order was withdrawn; and the tenant's other claims were dismissed on the basis that they were misconceived in light of the existing part-heard proceedings before the Tribunal and previous repair orders made.
On 10 May 2022, the Tribunal further adjourned the tenant's part-heard proceedings. The Tribunal also made orders requiring the tenant to provide submission as to why access orders should not be made in circumstances where the landlord was seeking access to the premises to perform the works set out in the 10 January 2022 consent orders.
On 11 May 2022 the tenant's General Practitioner, Dr Wong, authored a medical report that referred to the Mycotox test results from December 2021 and asserted that the tenant and her daughter should be relocated to different premises to avoid exacerbation of the medical condition of the tenant. The medical condition identified was chronic inflammatory response syndrome (CIS) being a "muti-system, muti-symptom inflammatory condition associated with exposure to various biotoxins."
On 13 May 2022, the tenant filed an appeal to the Appeal Panel from the Tribunal's decision of 29 April 2022. That appeal was withdrawn and dismissed on 7 July 2022.
On 19 May 2022, the landlord's expert Ms Williams performed further tests at the premises. Her report indicated that moisture recordings in parts of the premises had increased; and there was evidence of mould activity beyond the level that had been recommended as not exacerbating the tenant's medical condition by Dr Wong. However, Ms Williams further commented that the premises appeared not to have been occupied since early 2022; and that factor combined with the above average rainfall in Sydney during the first half of 2022 was likely to have significantly contributed to the moisture and mould recordings.
On 25 May 2022, the tenant's part-heard proceedings were again listed before the Tribunal. The Tribunal made orders authorising the landlord to enter the premises on various dates in June 2022 to undertake the majority of repairs that had been ordered on 10 January 2022. The Tribunal also extended the order to apply non-slip paint to the veranda of the premises to 31 August 2022. The Tribunal ordered the tenant to provide reasonable access to the landlord so that repair works could be performed.
The Tribunal's reasons referred to the evidence of the tenant that she was living in a tent in the backyard of the premises and not accessing the internal part of the premises. The Tribunal stated the tenant "will need to adopt a more flexible approach to enable the subject repairs to be carried out…" The Tribunal noted the tenant had been approved for a housing transfer by the landlord, but due to the long waiting list for social housing properties it could be up to 10 years before another property became available. The Tribunal also noted that, despite the tenant's complaints about the condition of the premises, her position was that repair works should be postponed until she was transferred to another property.
The tenant's claim for compensation was further adjourned by the Tribunal on 25 May 2022. However, that claim was not ultimately determined by the Tribunal because on 30 May 2022 the tenant withdrew the proceedings (although that withdrawal did not affect previous orders made by the Tribunal).
On 2 June 2022, the tenant sent a copy of the recent Mycotox report to the landlord. The tenant asserted that the landlord was trying to force her to reside in an unsafe residence, and if she did not do so the landlord was threatening to terminate her lease.
On 2 June 2022, the landlord made a further offer to relocate the tenant to a 3 bedroom property with a yard. The written offer requested the tenant respond within 48 hours.
On 8 June 2022 (and with the tenant not responding to the offer of 2 June 2022) the landlord sent two letters to the tenant. The first was that the tenant's transfer application had not been assessed as a "high priority community transfer" after the tenant had previously sought an internal appeal of the landlord's decision that the transfer was a "general" transfer rather than a "high priority" transfer.
The second letter stated that as the tenant had not responded to the offer made on 2 June 2022 and had made previous multiple offers of transfer which had been refused, the landlord had removed the tenant form its "transfer register" as under the landlord's "Transfer Policy" the tenant was no longer eligible. The letter concluded by stating that the tenant remained on "the Housing Pathways register" and "as outlined in the letter of 2 June 2022 we are now considering options for the ongoing management of the tenancy…which may ultimately include termination of the tenancy".
The tenant then sent further correspondence to the landlord making a number of allegations about the landlord which were to the effect that the landlord had acted improperly, unethically and illegally.
On 7 July 2022, the landlord served a 'no grounds' Notice to Terminate the tenancy under s 85 of the RT Act, with a date of vacant possession identified in the notice as 6 October 2022. As discussed previously, on 7 July 2022 the tenant had withdrawn her appeal proceedings in the Appeal Panel.
On 8 July 2022, the tenant filed Tribunal proceedings seeking the Notice of Termination under s 85 of the RT Act be set aside on the basis it was a retaliatory notice under s 115 of the RT Act.
On 10 October 2022, the landlord filed Tribunal proceedings seeking a termination order as the tenant has not vacated the premises pursuant to its Notice to Terminate dated 7 July 2022.
The tenant's application and the landlord's application were listed for hearing together on 14 October 2022. As discussed previously, both parties were legally represented (the tenant being represented by NSW Legal Aid).
Both parties relied upon a large amount of documentary evidence. The tenant gave oral evidence to the Tribunal. The landlord did not seek to cross examine the tenant.
The tenant's evidence at the hearing stated that she and her daughter were sleeping in a tent in the garage of her mother's home; and the tenant attended the premises daily to shower under the hose in the back yard. Otherwise, the tenant and her daughter had not been inside the premises for a considerable period of time because the tenant believed it was unsafe.
Ms Van Haren, a Solicitor employed by the landlord, gave oral evidence at the hearing and was cross examined.
No other witnesses were called to give evidence at the hearing.
Both parties provided the Tribunal with detailed written submissions.

Decision of the Tribunal

The Tribunal noted at paras [114]-[115] of the decision that there was no dispute the Notice to Terminate complied with the applicable provisions of the RT Act; had been served in accordance with the RT Act; and had given the tenant at least 90 days to vacate the property. Further, there was no dispute that the tenant's proceedings or the landlord's proceedings were within applicable limitation periods.
The Tribunal set out the provisions of s 115 of the RT Act; and referred to a number of legal authorities dealing with that provision. The Tribunal made factual findings at para [120] of the decision.
The Tribunal was not satisfied the Notice to Terminate was a retaliatory notice under s 115 of the RT Act because the tenant had failed, on the balance of probabilities, to establish what the landlord's motives were in issuing the Notice. The Tribunal was not satisfied the tenant had established either that the landlord was wholly or partially motivated to issue the Notice by reason of one of the matters set out in s 115 (2) of the RT Act; or that the issue of the notice or the taking of proceedings to terminate the tenancy was "unreasonable, excessive or vindictive in the prevailing circumstances when the termination notice was issued and when the termination application was made" (para [121] of the decision).
In respect of the tenant establishing the motivation of the landlord when the Notice to Terminate was issued, the Tribunal found: 1. The evidence was insufficient for the Tribunal to draw an inference as to the landlord's motivation for issuing the Notice (para [121] decision); 2. The tenant had failed to question the landlord's witness at the hearing as to what motivated the landlord to issue the Notice. While the Tribunal accepted that rules of evidence do not strictly apply in the Tribunal under s 38 (2) of the Civil and Administrative Tribunal Act 2013 (NSW), the failure of the tenant to question the landlord's witness on this issue and put directly to the witnesses the alleged motivations suggested in the tenant's submissions were relevant considerations in respect of the failure to prove the landlord's motivation (para [122]-[124] of the decision). 3. Although the Tribunal order of 10 January 2022 had not fully been complied with when the Notice to Terminate was issued, the landlord had diligently attempted to comply with the orders; and the landlord's ability to do so had "been impeded by the delays and restrictions on access imposed by the tenant outside the scope of the Tribunal's orders and the terms of the RT Act". Had the tenant given reasonable access the order would have been complied with prior to the issue of the Notice to Terminate (paras [125] (1)-(3) of the decision). 4. The tenant had informed the landlord that she intended to pursue legal proceedings in respect of a personal injury claim. No such proceedings had been taken. However, this information was provided by the tenant more than 6 months prior to the issue of the Notice of Termination. The Tribunal was not satisfied on the balance of probabilities the landlord was motivated to issue the Notice by reason of the prospect of such legal proceedings by the tenant (para [121] (4)-(6) of the decision). 5. Although the Tribunal had found in 2020 that the residence was not fit for habitation; there had been subsequent repair orders; there had been longstanding Tribunal litigation; and the tenant had foreshadowed on many occasions future potential claims, that was not sufficient for the Tribunal to be satisfied on the balance of probabilities that the landlord's motivation in issuing the Notice was retaliatory under s 115 of the RT Act (para [121] (7)-(8) of the decision). 6. In respect of the submission that the landlord had failed to follow its internal policies regarding transfer of the tenancy, the tenant had failed to establish that such policies conferred legal rights on the tenant that fell within s 115 (2) of the RT Act (para [121] (9)-(12) of the decision). 7. Although the tenant had a legal right to quiet enjoyment of the premises under s 50 of the RT Act; her decision to limit her use of the premises due to her belief that the premises was deleteriously affecting her health and the health of her daughter was not established as a motivation of the landlord to issue the Notice to Terminate; nor was this issue put to the landlord's witness at the hearing. Further, the landlord was not "subverting legitimate mechanisms" to terminate the tenancy due to breach by the tenant (s 87 RT Act), or due to the premises being wholly or partially uninhabitable other than by reason of breach by either party (s 109 of the RT Act) because the landlord had an independent right under s 85 of the RT Act to issue a "no grounds" Notice under s 85 of the RT Act (para 121 (12)-14) of the decision).
The Tribunal at paras [126]-[128] of the decision found that the landlord was motivated to issue the Notice to Terminate because it realised it "could not service the tenant's specific needs further" based on Ms Williams expert opinion; the demands of the tenant to be relocate; and her refusal to accept multiple alternative rental properties offered by the landlord (paras [126]-[128] of the decision).
The Tribunal found that even if it had been satisfied the Notice to Terminate was retaliatory in whole or part, it would not have exercised its discretion in favour of setting aside the Notice or refusing to make a termination order. At paras [131]-[135] of the decision, the Tribunal set out the matters relevant to the exercise of its discretion. Such matters included the landlord realising that "it was not able to service the tenant's particular housing needs;" the landlord's efforts to conduct repairs to the premises and offer the tenant alternative housing; the tenant's medical evidence; the risk of homelessness to the tenant if the tenancy was terminated; and the deterioration of the relationship between the parties which included the tenant's allegations of illegal conduct by the landlord.
The Tribunal stated at paragraph [133]: Having weighed and considered all of those circumstances the tenant has not satisfied me that it would be appropriate for the termination notice to be declared void and/or a termination order refused in the circumstances of this case. In this analysis, I give particular heavy weight to the difficulties that landlord has had in obtaining sufficient access to repair the premises with the concurrence of the tenant, the difficulties that the landlord has experienced in finding and offering alternative housing to the tenant and the significantly deteriorating relationship between the parties, as witnessed by the regular and increasingly incensed allegations by the tenant that the tenant has made to the landlord over recent times.
The Tribunal then, after finding that the Notice to Terminate was not retaliatory under s 115 of the RT Act and, even if it were, the Tribunal would still terminate the tenancy, the Tribunal considered the issue of suspension of the date of vacant possession. The Tribunal referred to s154G of the RT Act, and whether there were any exceptional circumstances to justify suspending the date of vacant possession beyond 28 days. The Tribunal considered the evidence of hardship and potential hardship.
The Tribunal was not satisfied that exceptional circumstances had been established, and suspended the date of vacant possession for 28 days from the date of possession, subject to the payment of an occupation fee (paras [137]-[140] of the decision).

GROUNDS OF APPEAL; CONDUCT OF THE APPEAL HEARING; AND SUBMISSIONS OF THE PARTIES

The tenant filed and served a Notice of Appeal and a large bundle of documents in support of the appeal.
The tenant asserted that the decision of the Tribunal contained errors of law and, additionally, that leave to appeal should be granted under cl. 12 of sch. 4 of the NCAT Act.
Regrettably, the tenant's Notice of Appeal and appeal documents did not clearly articulate what her grounds of appeal were. Rather, they contained much of the documentary evidence that she had relied upon at the Tribunal hearing; with submissions to the effect that the landlord had damaged the health of the tenant and the tenant's daughter; the landlord had attempted to "bribe" the tenant with offers of alternative housing and temporary accommodation; the landlord had acted unreasonably by not transferring the tenant to alternative premises suitable to the tenant and her daughter's needs; and the tenant would devote her time and resources to seek a suitable outcome from the landlord.
The landlord had served a written outline of submissions and a bundle of appeal documents. The landlord's written submissions were served one day outside the procedural timetable made by the Appeal Panel. The tenant opposed the Appeal Panel considering the written submissions. The tenant stated she had "not bothered to read" the landlord's written submissions as they had been served late.
Although the landlord's submissions were served slightly beyond the timetable requirement, no procedural unfairness was caused to the tenant in circumstances where the tenant still had sufficient time prior to the appeal hearing to read the submissions and be able to respond to them at the hearing. In those circumstances, it was appropriate to grant the landlord leave to rely upon the written submissions.
At the appeal hearing the tenant appeared by Audio-Visual Link (by telephone) and the landlord's Solicitor appeared in person.
The tenant did not make an application for an adjournment.
The tenant made oral submissions. The landlord relied upon its written submissions and did not seek to orally supplement them at the appeal hearing.
During the course of the oral submissions, the tenant complained that she was not given sufficient time to cover all of the matters she wished to raise. At the outset and during the course of the oral submissions, we made clear the amount of time each party would be given to make their oral arguments. In doing so, we exercised our power under s 38 (5) (c) and (6) (c) of the NCAT Act to provide structure to the presentation of the appeal, while providing a reasonable period to the applicant to present her oral arguments.
Further, most, if not all, of the tenant's oral submissions complained of the conduct of the landlord, particularly in respect of the tenant not being provided with alternative rental premises that she regarded as satisfactory. The oral submissions of the tenant were not of assistance in articulating the grounds of appeal.
Neither party provided a transcript of evidence or sound recording of the Tribunal hearing on 14 October 2022.

SCOPE AND NATURE OF APPEALS

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
Internal appeals involve consideration of whether there has been any error of law; or any error other than an error of law sufficient to grant leave to appeal under Cl. 12 of Sch. 4 of the NCAT Act.
An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of Cl. 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
In respect of a self-represented non legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]).

CONSIDERATION

If a Notice to Terminate is issued in respect of a period tenancy under s 85 of the RT Act is a valid notice which has been validly served; gives the tenant a minimum of 90 days to vacated the premises; and proceedings are taken in the Tribunal after the date of vacant possession of the Notice but within 30 days of the date of vacant possession of the Notice; and the tenant has not vacated the property, the Tribunal "must" terminate the tenancy. The Tribunal has a discretion regarding suspending the date of vacant possession. However, if the Notice is a retaliatory notice under s 115 of the RT Act, the Tribunal may declare the Notice has no effect and refuse to make the termination order.
As this matter involved a social housing landlord seeking to terminate under s 85 of the RT Act, the provisions of s 154E of the RT Act are inapplicable (Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317).
It is well established that a tenant can rely on s 115 of the RT Act to assert that a s 85 RT Act 'no grounds' termination notice is retaliatory, and seek to have that notice declared invalid.
Section 115 of the RT Act states: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice - (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons - (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
In Steinbeck v McDonald [2015] NSWCATAP 90 ('Steinbeck'), the Appeal Panel described the operation of s 115 of the RT Act as follows (at [29]-[33]): Section 115(2) of the Act requires the tribunal to undertake a two-step process. First, the tribunal must ask - "Is the subject notice a retaliatory notice?" That is, was the landlord wholly or partly motivated to give the notice for one or more of the reasons listed in paras (a) to (c) of s 115(2). Second, if the answer to that question is yes, the tribunal "may" declare that the termination notice has no effect (s 115(1)(a)). … The mischief s 115 seeks to remedy is the termination of a tenancy in circumstances where the landlord is motivated to do so, wholly or partly, because the tenant has, or proposes to, exercise their rights under a tenancy agreement and/or the Act. In short, its purpose is to protect tenants against "retaliatory evictions." …
In respect of the 'second step' under s 115 (2) of the RT Act, the Appeal Panel stated in Steinbeck at [57]: The Act does not prescribe any factors that must be taken into account in deciding whether to exercise the power conferred by s 115. The relevant considerations therefore must be implied by considering the subject matter, scope and purpose of the Act. The Member identified the "interests of both parties" as relevant considerations and described the task required to be undertaken by s 155 (sic) as "to balance the competing rights of the landlord and tenant". We see no error in that approach.

The 'First Step' (i.e. Was the Notice or Termination Application Retaliatory?)

In respect of a "retaliatory notice" or a "retaliatory application" under s 115 (1) of the RT Act, what makes the notice or application "retaliatory" is that it is motivated, in whole or part, by any of the matters in s 115 (2) (a)-(c). The legislature used the word "is" in s 115 (2) of the RT Act, not the word "includes". The focus of the inquiry in the 'first step' under s 115 (2) of the RT Act is whether the landlord was wholly or partially motivated to issue the Notice to Terminate, or make a termination application to the Tribunal, by reasons only of the matters set out in s 115 (2) (a)-(c).
There is no motivation that is "retaliatory" and falls within the meaning of s 115 of the RT Act, unless it involves the matters in s 115 (2) of the RT Act. The language of s 115 (2) prescribes what is "retaliatory".
At para [116] of the decision, the Tribunal stated: …Nevertheless, as noted by the Tribunal in DuPreez v Linda's Homes Pty Ltd [2010] QCATA 2, and by the Queensland Court of Appeal in Maksymiuk v Savage [2015] QCA 177 [24], the section appears to be designed to protect a tenant who had justifiably taken action in retaliation to the tenancy, or where something similar to that had occurred, and then been served with a termination notice (or a termination application): (1) that is responsive to the tenant's act; and (2) which is unreasonable, excessive or vindictive in the prevailing circumstances- to prove (sic) that it was in retaliation for the tenant's act.
To the extent that it is suggested that a termination notice or termination application can be retaliatory other than on the grounds set out in s 115 (2) of the RT Act, we disagree.
Determination of whether a termination notice or termination application is retaliatory under s 115 of the RT Act does not involve a general inquiry as to whether the landlord was acting in an unreasonable, excessive, vindictive, spiteful or vengeful way when issuing the termination notice or filing the termination application in the Tribunal.
A landlord can be wholly or partially motivated to issue a Notice to Terminate or file a termination application by reason of one or more of the matters in s 115 (2) (a)-(c) without acting in an unreasonable, excessive, vindictive, spiteful or vengeful manner. Concomitantly, a landlord may be acting in an unreasonable, excessive, vindictive, spiteful or vengeful manner when issuing a Notice to Terminate or making a termination application, but unless the motivation falls within the matters set out in s 115 (2) (a)-(c) the termination notice cannot be invalidated or the termination order refused under s 115.
A number of Queensland authorities have focused upon the meaning of "retaliatory" and whether the landlord has acted in a unreasonable, vindictive, spiteful or vengeful manner by issuing a notice to terminate in response to actions of the tenant (Du Preez v Linda's Homes Pty Ltd [2010] QCATA 2; Maksimiuk v Savage [2015] QCA 177; Donovan v Inkster [2015] QCATA 147; Cook v Southern Cross Consultancy Pty Ltd t/as Beechmont Mountain Sales [2018] QCATA 20; Du Bruyne v Ray White Waterford [2020] QCATA 113 ('Du Bruyne').
In Du Bruyne the appeal division of QCAT summarised those authorities as follows: [18] Retaliate' is a potent expression. The Act does not define it; hence its meaning is to be derived from ordinary language, with such assistance as judicial decisions provide. According to the Macquarie Dictionary retaliate' means to return like for like (especially for harm done) [or to] take reprisals.' The Concise Oxford Dictionary agrees: Retaliate - Repay injury, insult etc in kind ... do as one is done by, esp. Return evil, make reprisals. [19] A conclusion that reprisals are being practised for harm done, or that evil, injury or insult is being exchanged is not to be lightly reached. Observations of Wilson P in Du Preez v Linda's Homes Pty Ltd are pertinent: Section 291(3) requires careful consideration of the particular circumstances in each case in which it is raised. If retaliatory' is considered too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify ... It is improbable that the legislature intended that effect. Rather, the section appears to be designed to protect the tenant who has justifiably taken action ... and is then served with a Notice which is apparently responsive to the tenant's acts, but also ... unreasonable, excessive or vindictive. In each case the decision-maker is required to consider the particular facts and circumstances which arise, and determine whether or not they can fairly be categorised as falling within the section. [20] In an earlier decision the same judge stated: In its ordinary meaning, to `retaliate' is to return like for like, especially evil for evil ... It connotes a causal connection between the initial act, and the act said to be retaliatory, and looks to the nature of each act, and the motivation of the second actor. [21] The latter decision was approved by the Court of Appeal in Maksimiuk v Savage by North J, with whom McMurdo P and Henry J agreed. [22] Du Preez was followed by appeal tribunals in Donovan v Inkster and in Cook v Southern Cross Consultancy Pty Ltd (t/a Beechmont Mountain Sales.
However, such authorities were dealing with differently worded legislation to s 115 of the RT Act.
Section 291 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states: 291 Notice to leave for end of fixed term agreement (1) The lessor may give a notice to leave the premises to the tenant if the residential tenancy agreement is a fixed term agreement and the notice relates to the end of the agreement. (2) However, the lessor must not give a notice to leave under this section because - (a) the tenant has applied, or is proposing to apply, to a tribunal for an order under this Act; or (b) the tenant - (i) has complained to a government entity about an act or omission of the lessor adversely affecting the tenant; or (ii) has taken some other action to enforce the tenant's rights; or (c) an order of a tribunal is in force in relation to the lessor and tenant. (3) Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant. (4) A notice to leave under this section is called a notice to leave for "end of fixed term agreement" . (5) This section does not apply to a residential tenancy that is a short tenancy (moveable dwelling).
Under s 291 of the applicable Queensland legislation, a notice which "constitutes taking retaliatory action against the tenant" under s 291 (3) is a separate and additional consideration to the prohibition on issuing a notice on the grounds set out in s 292 (2). Further, the Queensland legislation does not include the phrase "wholly or partially motivated" which is contained in s 115 (2) of the RT Act.
The distinction between the NSW legislative scheme and the Queensland legislative scheme was acknowledged in Maksimiuk v Savage [2015] QCA 177 at para [22], although there was no extensive elaboration on the differences.
Further, none of the NSW Supreme Court or NCAT Appeal Panel decisions which have dealt with s 115 of the RT Act have suggested that there is any grounds upon which a notice to terminate or application to the Tribunal may be retaliatory other than in respect of whether the landlord was wholly or partially motivated by the matters set out in s 115 (2) (a)-(c) of the RT Act (e.g. Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173; Quader v Bell [2016] NSWSC 632; Mercieca v Fu [2017] NSWCATAP 205; Smith v Li [2020] NSWCATAP 59; Williams v Gerringong Aboriginal Housing Aboriginal Corporation [2022] NSWCATAP 144).
Whether a landlord was "wholly or partially motivated" to issue the termination notice or file the termination application by reason of one of the matters set out in s 115 (2) (a)-(c) is a question of fact to be determined objectively based on an assessment of all the relevant evidence. The tenant bears the onus of proving, on the balance of probabilities, that the landlord was wholly or partially motivated to issue the termination notice or file the termination application proceedings by reason of one or more of the matters in s 115 (2) (a)-(c).
In respect of proving a fact on the balance of probabilities, Hallen J in Pollock v NSW Trustee & Guardian [2022] NSWSC 923 set out the applicable authorities as follows at [74]-[75]: Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]: "When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342." In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with "a probability in excess of 50%". His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].
As the tenant has the evidentiary onus of proving on the balance of probabilities that the landlord was "wholly or partially motivated" to issue the termination notice or file termination proceedings by reason of one or more of the matters in s 115 (2) (a)-(c), the landlord does not have to prove it was not motivated by reason of one of those matters.
The landlord's motivation may be proved by evidence sufficient to draw an inference irrespective of whether the landlord gives an explanation of why it issued the notice of termination or took termination proceedings, as all evidence is to be weighed according to the power of one side to have produced, and in the power of the other side to have contradicted (Ho v Powell [2001] NSWCA 168 at [15]).
Further, the mere fact that a landlord gives evidence that the landlord was not wholly or partially motivated by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act does not mean that, when all of the evidence is considered, the Tribunal cannot be satisfied that the tenant has discharged the onus of proof.

The Second Step (i.e. If a Notice or Termination Application is Retaliatory, Should the Tribunal Declare It Has No Effect Or Refuse to Terminate the Tenancy)?

As discussed previously, if the Tribunal is satisfied that the landlord was wholly or partially motivated by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act, the Tribunal has a discretion whether or not to declare the Notice as having no effect; or refuse to terminate the tenancy. Neither party bears an onus in respect of the 'second step.' The Tribunal must simply determine whether it should, or should not, exercise its discretion to invalidate the Notice to Terminate and/or not make a termination order.
As the Appeal Panel identified in Steinbeck, although the discretion is broad, the matters to be taken into account should appropriately focus upon the competing rights and interests of the landlord and tenant under the RT Act and the residential tenancy agreement. The Tribunal must then identify and weigh the matters taken into account and explain why it is satisfied that the discretion should, or should not, be exercised in favour of declaring the termination notice as having no effect, or refusing to make the termination order.
Such matters may include, depending on the circumstances of the case: 1. The reasons the landlord seeks possession of the premises. 2. If the landlord was only partially motivated to issue the Notice or file the termination application by reason of one or more of the matters in s 115 (2) (a)-(c), the degree to which those matters motivated the landlord in comparison to other matters that fall outside of s 115 (2) (a)-(c). 3. If the landlord is a social housing provider, the waiting list for social housing. 4. Whether there is substantial hardship to either the landlord or the tenant if the tenancy is not terminated despite the fact that the landlord was wholly or partially motivated to issue the Notice or file termination proceedings by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act. 5. Whether the relationship between the parties has broken down to such a degree that it is in the overall interests of the parties to terminate the tenancy so that both parties may move forward. In this regard, a relevant enquiry is why the relationship has broken down and whether the parties have been involved in a cycle of disputation and litigation that is likely to continue if the tenancy is not terminated. However, any such enquiry must be careful not to unfairly benefit a party who has not complied with its obligations under the RT Act and should consider the conduct of both parties.

Is Any Error of Law Established in the Tribunal's Decision?

When the reasons of the Tribunal are read fully and fairly, we are satisfied that the Tribunal considered and applied the 'two step' principles set out in Steinbeck. We do not regard the comments of the Member at para [116] of the decision as diverting the Member from the 'two step' process set out in Steinbeck. The comments are obiter dicta and do not constitute an irrelevant consideration that is an error of law.
We are satisfied the focus of the Tribunal remained on whether the tenant had established the landlord was wholly or partially motivated by one of the matters in s 115 (2) (a)-(c) and, if so, whether its discretion should be exercised in favour of declaring the Notice to Terminate invalid and refusing to make a termination order.
In respect of the 'first step' the Tribunal found that it was not satisfied on the balance of probabilities that the landlord was wholly or partially motivated to issue the Notice to Terminate by reason of one of the matters in s 115 (2) (a)-(c), and it carefully considered the arguments advanced by the tenant on this issue.
The findings made by the Tribunal were orthodox and logical. They were findings that were open to the Tribunal to make on the basis of the evidence before it.
The submissions of the tenant (both in her written material and in her oral submissions) demonstrate that she strongly disagrees with the factual findings made. However, her subjective belief that the decision is unmeritorious is insufficient to establish any error on a question of law.
The Tribunal, after finding that it was not satisfied the landlord was wholly or partially motivated to issue the Notice to Terminate went on to consider the 'second step' in Steinbeck even if it was wrong regarding the 'first step.'
We discern no error of law in the exercise of the discretion under the 'second step' of Steinbeck. The Tribunal gave a clear explanation of the matters it was taken into account in respect of the exercise of its discretion, and how it attributed weight to such matters.
If we were satisfied an error of law was established in respect of the 'first step' in Steinbeck (which we are not), no error of law is established in respect of the 'second step.'
For the tenant to establish an error of law in respect of the exercise of the Tribunal's discretion, it is necessary for there to have been an error of the type described by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 ('House v The King') at 504-505 as follows: [i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance
We are not satisfied that the Tribunal exercised its discretion in a manner that contravened the principles in House v The King. The Tribunal explained in detail why it formed the view that the tenancy should be terminated. We do not regard the tenant has having established the exercise of the discretion to be unreasonable or plainly unjust.

Should Leave to Appeal Be Granted?

The submissions and documents of the tenant do not persuade us that there are any arguable grounds to grant leave to appeal pursuant to the principles enunciated in Collins v Urban.
The tenant's Notice of Appeal referred to the tenant having fresh evidence. However, it was not clearly established what that fresh evidence was; nor that it was not evidence reasonably available to the tenant as of the date of the hearing.
Additionally, we are not satisfied the decision was not fair and equitable, or against the weight of evidence.

CONCLUSION

As we are not satisfied any error of law has been established; or error of a type that leave to appeal should be granted has been established, the appeal must be dismissed.
However, due to the appeal process and the tenant having been granted a condition stay of the termination order by the Appeal Panel previously, the landlord will not be able to seek to enforce the order without an extension of time as the period to enforce the order has now expired.
Under these circumstances, it is appropriate for us to exercise our powers under s 81 of the NCAT Act to vary the original Tribunal order regarding the date of suspension of vacant possession.
Section 154G of the RT Act states: 154G Order for possession (1) If an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day. (2) The order for possession cannot be suspended for a period that would result in it taking effect later than 28 days after the day on which the termination order was made unless the Tribunal is satisfied that there are exceptional circumstances justifying a longer period of suspension.
As discussed previously, the Tribunal considered s 154G of the RT Act and found that it was not satisfied there were exceptional circumstances to justify extending the date of vacant possession beyond 28 days from the date of the termination order.
We are also not satisfied that "exceptional circumstances" have been established. We accept that the tenant has medical evidence from her General Practitioner of CIS; that such a condition also may be suffered by her daughter; that she cares for her daughter; her daughter has a dog which is described as an "assistance animal"; the tenant may have limited financial means; and the tenant may find it difficult to obtain alternative housing, even taking into account that she and her daughter have been, from time to time, living in the garage of the tenant's mother.
However, despite her medical condition and the medical condition of the tenant's daughter, they have been able to physically reside in a tent (after the tenant has rejected multiple offers of alternative housing by the landlord over a number of years) and the tenant's documents do not contain any evidence regarding her medical condition from a medical specialist such as a respiratory physician or ENT surgeon setting out the tenant's disabilities. Further, despite the tenant's medical condition and living conditions she has been able to author a large volume of correspondence to the landlord; has been capable of seeking and obtaining legal assistance in the past; and has been capable of filing multiple proceedings in the Tribunal and the Appeal Panel.
We must also take into consideration that many persons who live in social housing have medical conditions and disabilities; and have minimal financial means.
The evidence before the Tribunal was that the tenant has not been residing within the internal walls of the residential premises for a considerable period of time.
Having considered such matters, we are not satisfied that the tenant's circumstances are "exceptional circumstances." We are satisfied that it is appropriate to suspend the date of vacant possession for the maximum period of 28 days under s 154G of the RT Act to allow the tenant to move from the residential premises in an orderly way.

ORDERS 1. Leave to appeal refused. 2. Appeal dismissed. 3. Previous stay orders of the Appeal Panel are lifted immediately. 4. Pursuant to s 81 of the Civil and Administrative Tribunal Act 2013 (NSW) order 4 of the Tribunal dated 9 January 2023 is varied to suspend the date of possession to 28 days from the date of this decision.

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: 19 April 2023

LEASES AND TENANCIES---Residential Tenancies Act 2010(NSW)

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