Kaur v Sharma

NCAT Appeal Panel|2022-11-15

Introduction

On 27 October 2022 we published reasons for decision dismissing the appellants' (the tenants') appeal against a decision made by the Consumer and Commercial Division of the Tribunal in relation to three related applications. The appeal was heard on 19 September 2022. Relevantly, we dismissed the tenants' appeal against the Tribunal's orders terminating their residential tenancy agreement with the landlord and requiring them to give vacant possession of the premises. We also lifted the stay of the order for possession which was granted by the Appeal Panel after the appeal was filed.
The respondents (the landlords) have applied for a warrant for possession. The application for a warrant for possession was not made within 30 days of the date for possession specified in the Tribunal's orders. This means that for the warrant to be issued, the Tribunal must grant a further period of time (that is, extend time) for the application in accordance with s 121(2) of the Residential Tenancies Act 2010 (NSW) (RT Act).
We have decided this application as ancillary to our decision in the substantive appeal proceedings, as the decision is consequential on our decision determining the appeal proceedings. (See the definition of "ancillary decision" in s 3 of the Civil Administrative Tribunal Act 2013 (NSW) (NCAT Act)).
For the reasons set out below, we have decided to extend time for the application for the warrant for possession.

Relevant legislation

Section 120 of the RT Act provides: (1) A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless - (a) the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court. (b) the tenant has abandoned the premises or given vacant possession of the premises. Maximum penalty - 200 penalty units. Note - Under section 106 a landlord may apply to the Tribunal for an order declaring that a tenant has abandoned the residential premises. (2) A court that finds an offence under this section proven may, in addition to any other penalty it may impose, order that compensation be paid to the person against whom the offence was committed by the person who committed the offence or on whose behalf the offence was committed. (3) This section applies to a person who enters residential premises on his or her own behalf or on behalf of another person.
Therefore, where the Tribunal has made orders for termination and possession, a landlord cannot take possession of residential premises without a warrant for possession.
The legislation concerning the issue of a warrant for possession is set out in s 121 of the RT Act, which provides: 121 Enforcement of orders for possession (1) The principal registrar of the Tribunal may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if the principal registrar is satisfied that the order or a condition of suspension of the order has not been complied with. (2) An application for a warrant for possession may be made immediately, if the order for possession so provides, or not more than 30 days after the date by which vacant possession was required or within such further period as the Tribunal may permit. (3) Without limiting subsection (2), the Tribunal may permit an application to be made within a further period if the delay in making the application is attributable to genuine attempts by the applicant to reach agreement with the tenant for reinstatement of the tenancy. (4) A warrant for possession is to be in the form approved by the principal registrar of the Tribunal and must authorise a sheriff's officer to enter specified residential premises and to give possession to the person specified in the warrant.
In dismissing the appeal, it would have been open to us to vary the date for possession ordered by the Tribunal. We did not do so. This means that the date for possession remains 15 July 2022, in accordance with the consent order made on 8 July 2022. The consequence of this is that the application for the warrant for possession was made more than 30 days after the date by which possession was required. For a warrant to now issue, the Tribunal must permit "a further period" for the application, in accordance with s 121(2) of the RT Act. We are satisfied that we have the power to make an order in accordance with s 121(2) as an order ancillary to our orders dismissing the appeal and lifting the stay order.

Submissions and evidence

The following procedural directions were sent to the parties concerning the application for a warrant: 1. By close of business on 1 November 2022, the landlord is to file and serve evidence and submissions in support of the application for issue of a warrant for possession. 2. By close of business on 3 November 2022, the tenant is to file and serve evidence and submissions in response to the application for issue of a warrant for possession. 3. Documents may be served by filed and served by email…. 4. Submissions must not exceed four pages in length. 5. The Appeal Panel proposes to deal with the matter on the papers without a hearing. If either party objects to this, they should address that issue in their submissions.
Neither party filed any evidence and submissions in support of or opposing the application for a warrant for possession. Since the procedural directions were published, the tenants' representative Mr Singh wrote to the Penrith Registry concerning Mr Sharma's statement dated 26 September 2022 and asked to inspect the Tribunal files. However, no submissions have been filed. Nor has an extension of time in which to so do so been received.
We have accordingly made a decision taking into account our reasons for decision on the appeal, the stay order made by the Appeal Panel when the appeal was lodged and the application for the warrant lodged on 10 October 2022, together with the supporting materials.

Issues

The issues to be decided in this case are: 1. Should we dispense with a hearing of the application for the warrant for possession? 2. Should we extend time for the application for the warrant for possession?

Should we dispense with a hearing of the application for the warrant for possession?

Section 50(2) of the NCAT Act allows us to make an order dispensing with a hearing if we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. Section 50(3) states that we cannot dispense with a hearing unless we have afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account.
In this case, the parties were given an opportunity to make submissions as to whether we should decide this matter on the basis of the written material provided. They did not make any submissions.
We have dispensed with a hearing because we consider that the application for a warrant can be determined on the material before us. There appears to be no relevant factual dispute between the parties as to the issues to be decided. To require the parties to attend a hearing would put them to unnecessary expense.

Should we extend time for the application for the warrant for possession?

In our view, a further period of time for the application for the warrant for possession should be permitted in accordance with s 121(2) of the RT Act. This is for the following reasons.
First, from the fact that application was made and in the absence of any evidence or submissions to the contrary, we infer that the tenants remain in possession of the residential premises, even though the tenancy agreement has been terminated and the tenants have been ordered to give possession of the premises to the landlord.
Second, while the stay order made by the Appeal Panel was conditional, whether the tenants complied with the condition is now irrelevant. Because we dismissed the appeal, we lifted the stay order. Having dismissed the appeal and lifted the stay order, the order terminating the tenancy agreement and requiring the tenants to give possession remains in full force and effect. As noted above, to enforce the Tribunal's order, the landlords require a warrant for possession. The tenants have not provided any submissions setting out why the landlords should not be able to enforce the order for possession when the orders for termination and possession remain in full force and effect.
Third, we consider there was no point in the landlords applying for a warrant for possession within the 30 day time limit set out in s 121(1) of the RT Act in circumstances where the order was stayed pending finalisation of the appeal proceedings. The fact that they ultimately applied for a warrant for possession before the appeal proceedings ended indicates that they wish to enforce the Tribunal's orders.

Conclusion

We conclude that the delay in applying for a warrant for possession is explained by the appeal being lodged and the order for possession being stayed. The delay is not excessive. Now that the appeal has been finalised and the stay order has been lifted, it is appropriate to permit a further period of time in which to apply for a warrant for possession. We have extended the time for that application to 10 October 2022, the date on which the application is taken to have been lodged in the Tribunal's Penrith Registry.

Orders 1. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Time to apply for a warrant for possession is extended to 10 October 2022.

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 November 2022

Civil Administrative Tribunal Act 2013(NSW)

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