This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dated 18 May 2022 involving a social housing tenancy.
The tenant commenced proceedings in the Tribunal on 24 September 2020. The application identified that the tenant was seeking compensation under s 187 of the Residential Tenancies Act 2010 (NSW) ('the RT Act') and a rent reduction under s 44 (1) (b) of the RT Act. Although the application briefly referred to lack of "insulation and other logistics (parking, gardening, rubbish etc)" the majority of the complaints of the tenant were in respect of her allegedly being harassed and intimidated by other social housing tenants of the landlord in the strata building.
In substance, the tenant's application was for compensation under s 187 of the RT Act due to a loss of quiet enjoyment under s 50 of the RT Act by reason of the actions of her neighbours who were also social housing tenants of the landlord.
The Tribunal dismissed the application because the Tribunal found the application was out of time and the Tribunal was not satisfied that the time period to bring the application should be extended under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act').
[2]
Reasons of the Tribunal
The Tribunal noted at paras [2]-[4] that there had been other related proceedings between the parties were the landlord sought an order that the tenancy be terminated under s 87 of the RT Act because the tenant had breached her obligation under the residential tenancy agreement not to unreasonably interfere with the peace, comfort and privacy of her neighbours. The Tribunal stated that those proceedings had been determined with the Tribunal refusing to terminate the tenancy, but making a 'specific performance' order that the tenant comply with Cl. 15.2 and 15.3 of the residential tenancy agreement. The Tribunal had given oral reasons in those proceedings.
The Tribunal stated that the tenancy had commenced in December 2013, and the tenant was bringing proceedings against the landlord for breach of s 50 of the RT Act. Section 50 of the RT Act states as follows:
50 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 noted at paras [8]-[9] that the tenant was alleging the landlord had failed to take reasonable steps to ensure the tenant's neighbours had not interfered with the tenant's reasonable peace, comfort and privacy. Further, although the tenant had raised other orders in the proceedings, her claim was primarily a claim for damages under s 187 of the RT Act for breach of s 50 (1) and (3) of the RT Act.
The Tribunal set out at paras [12]-[14] the limitation period. For a claim for damages under s 187 of the RT Act, the applicable limitation period to bring Tribunal proceedings was 3 months after the tenant became aware of the breach (s 190 of the RT Act and Reg. 39 of the Residential Tenancies Regulation 2019 (NSW)).
At the hearing, the tenant's advocate who represented the tenant submitted that "the claim for compensation was limited to matters in and around 15 October 2019, rather than as alleged in the narrative attendant (sic) to the application" (para [15] Tribunal's decision).
The Tribunal stated that it must be satisfied that there should be an extension of the limitation period and that this matter should be addressed first. The Tribunal set out the applicable principles for whether time should be extended in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], being:
1. The length of the delay.
2. The reason for the delay.
3. Prospects of success, which is usually whether the party seeking the extension has a reasonably arguable case, although it may be appropriate to go further into the merits if the explanation for the delay is less than satisfactory or if the other party has a substantial case of prejudice.
4. The extent of any prejudice suffered by the other party.
The Tribunal noted at paras [27]-[33] that both parties had been given the opportunity to make submissions on the issue of whether the limitation period should be extended. The Tribunal stated that it was "uncontroversial" that disharmony in the strata building commenced not long after the tenant moved into the premises in 2013; there had been numerous attendances by Police over a long period of time; and the appellant and her neighbouring tenants had repeatedly complained to the Police and the landlord blaming each other for noise, threats, harassment and intimidation.
In refusing to extend the limitation period under s 41 of the NCAT Act, the Tribunal found as follows:
1. There was a significantly long delay, in circumstances where the applicant was aware of the actions neighbours and had made consistent complaints to the landlord over many years (para [36]);
2. The merits of the tenant's case were not strong, in circumstances where the Tribunal had found in other proceedings that the tenant had breached Cl. 15.2 and Cl. 15.3 of the residential tenancy agreement in respect of her conduct towards other tenants of the landlord (para [38] Tribunal decision);
3. There was significant prejudice to the landlord because of the number of alleged incidents over a long period of time. The Tribunal noted that although the tenant was arguing at the hearing that a particular incident occurred on 19 October 2019, the substance of her application referred to alleged conduct of neighbours over a long period of time. The Tribunal accepted the submissions of the landlord on this issue, and stated at para [40]:
Mission Australia's (sic) submissions addressed the issue of prejudice to deal with the matter given the effluxion of time. The respondent's evidence is that there were a number of housing officers dealing with Ms Kaye and other occupants of the residential complex. Mission Australia submitted that it would be difficult to provide evidence from those persons, some now former employees, as to reasonable steps that Mission Australia took in the circumstances to deal with the ongoing complaints made, not only by Ms Kaye against the other occupants, but also by those other occupants against Ms Kaye.
The Tribunal also noted that the landlord had made an offer to relocate the tenant to other premises, which had been refused by the tenant due to her seeking to remain close to medical services who had provided treatment to her over a number of years. The Tribunal also noted that several of the neighbouring tenants about whom the tenant complained of had vacated the strata building.
As the Tribunal refused to extend the limitation period, it did not discuss whether the tenant had established any breach of s 50 of the RT Act. In respect of s 50 (3) and the duty of the landlord to take "all reasonable steps" applicable principles are set out in Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 and Makowska v St George Community Housing [2022] NSWCA 5.
[3]
GROUNDS OF APPEAL
The tenant filed the appeal on 1 June 2022, and it has been filed within the applicable time period under r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW).
The grounds of appeal identify that the tenant is appealing the decision both on grounds of error of law and on grounds that leave to appeal should be granted.
The notice of appeal, and the written submissions of the applicant (which were repeated orally at the appeal hearing) do not clearly set out any errors of law. Rather, they repeat the assertions made by the tenant at the hearing that other tenants had been aggressive towards hear; made unnecessary noise; been violent towards her; and threatened her. The tenant complained that the landlord had taken no measures to address this, such as providing additional sound insulation at the premises; and had not provided details of complaints made by other tenants about her conduct.
The tenant asserted that the complaints by other tenants were false and vindictive.
[4]
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]).
[5]
CONSIDERATION
No error on a question of law is established.
The Tribunal correctly identified and applied the legal principles regarding whether it would extend time under s 41 of the NCAT Act. The principles in Jackson are well established. There was no failure of the Tribunal to correctly identify applicable legal principles.
Section 41 of the NCAT Act contains a discretion as to whether the Tribunal extends time. The provision states that the Tribunal "may" extend time, not that it "must" extend time.
For the tenant to demonstrate that a legal error had occurred in respect of the exercise of that discretion, we would need to be satisfied that it was the type of error described by the High Court in 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 exercise of the discretion involved an error within the principles set out in House v The King.
On the issue of leave to appeal, the tenant sought to rely upon fresh documentary evidence. However, none of that evidence is significant new evidence that was not reasonably available at the date of the hearing. The documents provided were either reasonably available at the date of the hearing; or are documents pertaining to the tenant's medical issues and complaints to the landlord subsequent to the hearing, and do not fall within cl.12(1) (c) of Sch. 4 of the NCAT Act. The test whether evidence was not reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but by applying an objective test and considering whether the evidence in question was unavailable because no person could reasonably have obtained the evidence before the Tribunal hearing (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]-[24]). The appellant has failed to satisfy that test in respect of the additional documents sought to be relied upon.
We are also not persuaded that the decision was not fair and equitable; nor against the weight of evidence such that we would grant leave to appeal on the principles set out in Collins v Urban.
[6]
ORDERS
1. Leave to appeal is refused.
2. Appeal dismissed.
[7]
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
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Decision last updated: 26 April 2023