Kelly v NSW Land & Housing Corporation

Decision under appeal

1. The Tribunal Member gave oral reasons at the conclusion of the hearing on 5 March 2018. The tenant requested written reasons and those were provided on 2 May 2018.
2. In his written reasons the Member recorded in paragraphs [2]-[9] under the heading "The relevant facts" that the residential tenancy agreement was a social housing tenancy agreement; that as at 25 January 2018 the tenant was in arrears by the amount of $2,118.73, and had always been in arrears to some extent since 2 April 2017; that at the date of hearing the rent arrears had increased to $2,879.74; that the tenant was a single mother of six children, five of whom resided with her, and two of whom attended special needs classes in a school located near to the premises; that the tenant had sought assistance of a charitable organisation, the Samaritans, to prepare a household budget and to negotiate a moratorium of 3 months on payment of a debt to Cash Convertors which relieved her from the obligation to make repayments of $180 per fortnight; and that the landlord had been in contact with the NSW Department of Community Services so that department could assist the tenant to find other accommodation for herself and her children. The Member noted at paragraph [10] that there was no controversy as to those facts between the parties. The Member found, and it is not in dispute, that the termination notice complied with s 82(1) and (2) and s 88(3) of the RT Act.
3. The Member's reasons under the hearing "Consideration" were: 10 Given the facts set out above, in regards to which there was no controversy between the parties, the Tribunal is satisfied that the tenant has failed to pay all rent due as at the date of hearing and has failed to give vacant possession of the premises to the landlord. The Tribunal is satisfied that there has been a frequent failure on the part of the tenant to pay rent on time. 11 As the residential tenancy agreement is a social housing tenancy agreement, the Tribunal must have regard to the matters enumerated in s154E(1) of the Act. 12 The evidence before the Tribunal was such that the Tribunal could not be satisfied that the matters specified in s154E(1)(a), (b) and (c) have relevance to this matter. 13 The evidence establishes with respect to the current tenancy that the tenant has consistently been in breach of her obligation to pay rent to the landlord in accordance with the agreement. The evidence does not reveal that the tenant has otherwise breached her obligations under the agreement, and certainly there was no suggestion from the landlord to that effect. 14 The evidence also establishes that the tenant has breached prior orders of the Tribunal with respect to the payment of rent. The evidence does not reveal that she did so wilfully. Based on the evidence, the Tribunal infers that the reason for her breaches was that she was unable to manage her household budget. 15 For the purposes of section 87(4)(b) the Tribunal is satisfied that the tenant's failure to pay rent on time is sufficient to justify the termination of the residential tenancy agreement. Those factors that the Tribunal considered under s154E do not in the Tribunal's view warrant that the residential tenancy agreement not be terminated, given the tenant's past failure to pay rent and the substantial amount by which she is now in arrears in the payment of her rent. Even after she applies the additional money that will now be available to her as a consequence of the three month moratorium that the Samaritans negotiated for her with Cash Converters to reduce her rent arrears, she would still be in arrears of her rent by a large order. Given that, and given her past history, the Tribunal makes an order terminating the tenancy agreement under section 87 and makes an order under s83 for the tenant to give the landlord possession of the premises. 16 Having regard however, to the tenant's circumstances, particularly those set out in [7], the Tribunal is satisfied that hardship is likely to be caused to her and her children were the landlord to take possession of the premises. Given that the tenant, due to the moratorium the Samaritans negotiated for her with respect to her debt to Cash converters, the Tribunal considers it unlikely that the tenant's arrears will increase from that which they were at the date of hearing. Hence, were the tenant not to give immediate possession of the premises to the landlord, it seems to the Tribunal that the only hardship the landlord would suffer would be its inability to lease the premises to another tenant. In those circumstances, and bearing in mind that the landlord has contacted the Department of Community Services with a view to it assisting the tenant to find other accommodation for her and her children, the Tribunal considers it is desirable to suspend, under s114(1) of the Act, the operation of the order for possession until 30 April 2018. That will enable that Department time to provide that assistance.

Grounds of appeal

1. The Grounds of Appeal as stated in the Notice of Appeal were: 1. The orders made by the Tribunal were unreasonable; and 2. The Tribunal erred in failing to provide adequate reasons for the finding that the appellant's breach of the agreement was sufficient to justify termination.
2. In written submissions provided on 15 May 2018 the appellant stated that ground 2 is no longer pressed, and two additional and alternative grounds are propounded, so that the amended grounds of appeal are: 1. The Tribunal fell into jurisdictional error in failing to take into consideration "the circumstances of the case" in finding that the appellant's "failure to pay rent on time" was sufficient to justify termination of the agreement; 2. Further and in the alternative, the Tribunal erred in law in that the decision to terminate the agreement pursuant to s 87 amounted to Wednesbury unreasonableness or was devoid of "an evident and intelligible justification"; and 3. Further and in the alternative, the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of evidence.
3. Leave to amend the grounds of appeal was not opposed, and was granted.
4. Grounds 1 and 2 assert errors of law, and an appeal may be brought on those grounds as of right: s 80(2)(b) NCAT Act. Ground 3 would require leave of the Tribunal. This being a decision in the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
5. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
6. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
7. The landlord's Reply to Appeal filed on 19 April 2018 addressed the grounds of appeal as originally provided. The reply relevantly contends that the Tribunal did not err in the exercise of the discretion to terminate the residential tenancy agreement. In response to the entirety of the appeal the landlord contended that even if the tenant were to establish that the Tribunal erred, the tenant has not paid any amount in respect of rent, arrears, the daily occupation fee or water charges since before the hearing on 5 March 2018; the total arrears for rent and the occupation fee are $4,149.85 and unpaid water usage charges $573.05; the tenant does not have the ability to pay rent and water usage charges if the termination order is set aside; and in those circumstances even if the appeal were made out the Appeal Panel should decline to exercise its discretion to allow the appeal and set aside the orders of the Tribunal.

Evidence

1. The amended Grounds of Appeal require consideration of what evidence was before the Member. The directions made at the callover on 3 April 2018 required the appellant to provide an agreed bundle, containing all the evidence provided to the Tribunal below on which it was intended to rely, and a typed copy of the oral evidence said to have been given (the sound recording not being available).
2. The documents filed by the appellant included at tabs 2 and 3 the documents agreed to have been those provided to the Member. The documents provided at first instance by the respondent were: 1. Completed Hearing Notes form; 2. Termination notice under s 87 of the RT Act dated 25 January 2018, specifying rent arrears of $2368.74, and specifying the date for vacant possession as 11 February 2018; 3. The residential tenancy agreement dated 11 July 2016 to 1 January 2017; 4. Notice under s 142 of the RT Act dated 16 January 2018 extending the tenancy for a fixed term from 1 January 2018 to 1 January 2023; 5. Rent ledger showing payments from 11 May 2017 to 3 March 2018, income details, details of the appellant's family, and internal working notes including contacts with the appellant.
3. Documents provided by the appellant were: 1. Handwritten statement dated 3 March 2018, requesting a payment arrangement for the rent arrears, stating that she is sorry to have let the issue get out of control and understands the importance of adhering to a payment plan, she is seeking professional help from her doctor, counsellor and the police, she has started attending personal and financial counselling and started antidepressants, and is seeking a small paying job delivering papers; 2. Letter from a financial counsellor with Samaritans Foundation (G Smith) dated 2 March 2018, stating that the appellant attended an appointment on 1 March 2018 and completed a Money Plan (attached) indicating a deficit of $25.00 each fortnight; that both financial and physical domestic violence had brought about the situation of rental arrears of approximately $2000; that the appellant understands that rent comes first and has set up her rental payments through Centrepay; Samaritans has provided food vouchers; the appellant will be able to pay $500 towards the arrears before the hearing, and would be able to pay an additional $180 per fortnight towards the arrears for the next 9 fortnights; 3. Letter from Elder Street Practice (Dr Wall) dated 13 February 2018 stating that it would be in the best interests of the appellant's family to be able to continue to pay rent with a payment plan; 4. Letter from Wiripaang Public School (C Fleming, Assistant Principal) to the respondent stating that the appellant's daughter attends a "support class" due to her diagnosed disability, and expressing the hope that the appellant's daughter can remain at Wiripaang to allow stability in her life.
4. The evidence as to what was said at the hearing comes in an affidavit of the appellant dated 16 May 2018, and a statement dated 23 May 2018 by Ms Morice who represented the respondent at the hearing.
5. The appellant states that she provided the following evidence in response to questions by the Member: 1. She would put the repayment money for Cash Converters towards arrears and her financial counsellor is going to negotiate with Cash Converters to stop those payments for some time; 2. She has six children, the eldest of whom lives with her grandmother; 3. One of her daughters has autism and requires her own bedroom; 4. Her sister who is her carer resides nearby; 5. Her medical specialist is in the area, at the Mater Hospital; 6. Her immediate past relationship was characterised by domestic violence; 7. She cannot afford a private rental when she is barely keeping up with the rent.
6. Objection was taken to parts of Ms Morice's statement, and paragraphs [40]-[65], together with Annexure A and Annexure K, were relied upon for the purposes of the consideration of the grounds of appeal. In her statement at paragraphs [40]-[65] Ms Morice stated her memory of what took place at the hearing, and responded to the appellant's affidavit, primarily addressing the appellant's record of what she had said. Ms Morice recalled that the tenant stated that she had not been able to pay her rent because she was a victim of domestic violence; she cannot afford private rental; her children go to a special school and need to stay in the current area, and they need separate bedrooms due to their medical needs. In relation to statements made by the appellant, Ms Morice did not recall the statements at 19 and (5). She recalled the appellant stating that she could not afford private rental, and that she had not been able to pay rent due to being a victim of domestic violence. Ms Morice stated that she had said that if the application for termination were granted, there is a person who would help the appellant get a private rental for around 12 months.
7. While in submissions the respondent does not accept that all the matters were made out on the evidence as summarised by the appellant and Ms Morice, in her statement Ms Morice did not deny that the appellant had provided the information recorded at [19]. The fact that the appellant had six children was also recorded in the respondent's documents. Having regard to the overall consistency between the accounts of what was said at the hearing, the Appeal Panel accepts that it is likely that all the information recorded at [19] was given to the Member in the course of the hearing.

Consideration

1. The termination notice and application for a termination order, and the order made by the Member, were based on s 87 of the RT Act, which provides: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note. Section 154E sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement.
2. The appellant submits that the Member was required to have regard, as "circumstances of the case", to the matters recorded at paras [17] and [19] above; to the fact that the tenancy was a social housing tenancy and that the respondent considered the appellant eligible to remain in public housing when it extended her lease to 1 January 2023; and that while the appellant had a history of rental arrears she had extinguished the arrears previously by a payment on 23 March 2017 and had paid her rent in a timely manner from 23 March 2017 to 17 April 2017. The appellant submits that in failing to take those matters into consideration in finding that the appellant's failure to pay rent on time was sufficient to justify termination of the agreement, the Member erred.
3. The appellant submits that the matters in s 87(4) must first be established before the Tribunal's discretion to make a termination order is enlivened, and that for the purposes of s 87(4)(b) the Tribunal must be satisfied that the particular breach is sufficient to justify termination having regard to the circumstances of the case. The appellant submits that the phrase "circumstances of the case" should be given a broad construction, based on the non-exhaustive list of factors that the Tribunal may take into account in considering the "circumstances of the case". The appellant relies on the decisions of the Western Australian Court of Appeal in Schaefer v Department of Housing (No 2) [2012] WASCA 229, the NSW Supreme Court in Swain v Residential Tenancies Tribunal (Rolfe J, unrep, 22 March 1995) and on appeal to the Court of Appeal in RTA v Swain [1997] NSWSC 181, the NSW Court of Appeal in Scicluna v NSW Land & Housing Corporation (2008) NSWLR 674, and the decision of NSW Land & Housing Corporation v Mann (Consumer and Commercial Division, unrep, 9 April 2014).
4. The respondent submits that hardship to the tenant is not a mandatory relevant factor for consideration under s 87(4)(b): it is permissible to take into account the effect on the tenant of termination of the tenancy, but not mandatory. It was not necessary for the Member to make factual findings on all the matters relating to the tenant's circumstances; nor does the fact that there were no findings on a particular matter mean that no such finding was made; and nor was the Member bound to consider each and every piece of evidence in the reasons. The respondent addressed the specific matters relied upon by the appellant as follows: 1. If the matters that the appellant's daughter required her own bedroom, that her sister lived nearby, and that her medical specialist was in the area were put to the Member, those arrangements would not necessarily be interrupted if the tenancy was terminated and were therefore not relevant considerations; 2. The appellant did not elucidate the manner in which her experience of domestic violence was related to her non-payment of rent, and the Member was therefore justified in not considering that a material factual matter; 3. The extension of the tenancy occurred as a matter of course and in any event was before the issue of the notice of termination; 4. The reasons indicate that the Member did take into account that the tenancy was a social housing tenancy, that the tenant was at risk of homelessness, and that the matters in the appellant's handwritten letter and the letter from the Samaritans Foundation were taken into account.
5. The respondent submits that it is apparent from the reasons that the Member determined that the conditions in s 87(4)(a), (b) and (c) were satisfied, and that in light of all the relevant considerations including those identified in s 87(5) and s 154E and the hardship to the appellant and her children, the Member found that the discretion should be exercised to terminate the tenancy agreement.

Ground 1

1. While Ground 1 is framed in terms of jurisdictional error, s 80(2)(b) of the NCAT Act enables an appeal as of right "on any question of law". As discussed in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 12, whether the Tribunal has failed to take into account relevant considerations is a question of law.
2. There are three issues to consider: first, whether in deciding that the breach was sufficient to justify termination pursuant to s 87(4)(b), the Member was bound to take into account any or all of the matters identified by the appellant as "circumstances of the case", or was merely permitted to do so; secondly, whether in fact the Member failed to take any or all of those matters into consideration; and thirdly, to the extent that the Member did fail to take into account a relevant consideration, what effect that had on the outcome.
3. The ground of failure to take into account a relevant consideration is only made out if a decision-maker fails to take into account a consideration he or she is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 34 at 39. Aronson, Dyer & Weeks Judicial Review of Administrative Action and Government Liability 6th ed, 2017, at [5.30] distinguish between considerations which are forbidden, that is, irrelevancies whose consideration invalidates the decision; considerations which are permissive, that is, considerations that may be taken into account, but their oversight does not invalidate the decision; and considerations which are mandatory, that is those matters that are relevant and their oversight results in invalidity. A failure to take into account a mandatory consideration is an error of law, and in some circumstances, may constitute jurisdictional error: Craig v State of South Australia (1995) 184 CLR 163 at 179. Determining when a particular consideration is a mandatory consideration requires interpretation of the applicable legislation: first, any express statement of the mandatory factors; and if not expressly stated, by implication from the subject matter, scope and purpose of the statute: Peko-Wallsend at 39-40. Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify a court on judicial review setting aside the decision: Peko-Wallsend at 40. In the absence of statutory indication of the weight to be given to various considerations, and subject to consideration of whether the decision is unreasonable in the Wednesbury sense, the weight to be given to the relevant considerations is a matter for the decision-maker: Peko-Wallsend at 41.
4. These general principles were adopted by the Appeal Panel in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6, which went on to say: 28 Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision. 29 In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination.
5. In contrast to other provisions in Part 5 of the RT Act, the power to terminate a residential tenancy agreement under s 87 is a discretionary power: Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317.
6. The termination notice was based on a breach of the residential tenancy agreement, namely failure to pay rent. Section 87 (4)(a) required the Tribunal to be satisfied that the tenant had breached the agreement; s 87(4)(c) required the Tribunal to be satisfied that the termination notice complied with s 87(2) and (3) (in addition to s 82); and s 87(4)(b) required the Tribunal to consider whether the breach found in accordance with s 87(4)(a) "is, in the circumstances of the case, sufficient to justify termination of the agreement".
7. There is no dispute that consideration of "the circumstances of the case" is mandatory in the evaluation of whether the breach is sufficient to justify termination. The issue is what that phrase means.
8. Subsection 87(5) provides a non-exhaustive list of considerations which the Tribunal may consider in considering "the circumstances of the case". In contrast, the amendments made to Part 7 of the RT Act by the Residential Tenancies and Housing Legislation Amendment (Public Housing-Antisocial Behaviour) Act 2015 for termination of a social housing tenancy, include requirements that the Tribunal must consider breaches of prior social housing tenancy agreements (s154B), and under s 154E, the tenant's relationship with the landlord and the interests of persons who are not parties to the tenancy agreement (Lynwood at [39]). Section 154E (to which reference is made in the Note to s 87), provides (emphasis added): 154E Exercise of discretion to make a termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following: (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.
9. Section 154E is expressed in mandatory (but not exhaustive) terms. Its predecessor, the former s 152 provided (emphasis added): 152 Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.
10. The application before the Tribunal was for an order under s 87(4) of the RT Act in respect of a termination notice given on the ground that the tenant had breached the residential tenancy agreement, which was a social housing tenancy agreement, by failing to pay rent. The Tribunal had to be satisfied that the formal requirements for a valid termination notice were met, including those specified in s 87(2), that s87(4)(c) was met, and that the tenant had in fact breached the agreement. The Tribunal was expressly required by s 87(4)(b) to consider whether the breach was, in the circumstances of the case, sufficient to justify termination of the tenancy. Because the tenancy was a social housing tenancy, it also had to consider the matters specified in ss 154B and 154E of the RT Act. Those matters did not exclude other relevant considerations under the Act: s 154B(2) and s 154E(2). The Tribunal was entitled to consider the matters specified in s 87(5), but not limited to those matters.
11. In the absence of an express requirement for the Tribunal to consider the personal and family circumstances of the tenant, the issue is whether the requirement that the Tribunal take into consideration "the circumstances of the case" includes consideration of the personal circumstances of the tenant. Consideration of the impact on the tenant of a termination order is not an irrelevant, in the sense of prohibited, consideration when the Tribunal is considering in the exercise of its discretion whether to make such an order: Cain v New South Wales Land & Housing Corporation [2014] NSWCA 28 at [39]; Sara McGuiness v NSW Land & Housing Corporation [2014] NSWCATAP 98 at [74].
12. Caution is required in considering the relevant authorities, given the different grounds on which termination orders were sought, and differences in the legislation over time. In Swain v Residential Tenancies Tribunal of NSW (Supreme Court, unrep, 22 March 1995) Rolfe J was considering an application for termination under s 58 of the former Residential Tenancies Act 1987 (the 1987 Act), which permitted service of a termination notice "without any ground". Section 64 of the 1987 Act permitted the Residential Tenancies Tribunal to make a termination order on the application of the landlord, and relevantly provided (emphasis added): 64(1) If: (a) a landlord or a tenant gives notice of termination of a residential tenancy agreement under this Part: and (b) the tenant fails to deliver up vacant possession of the residential premises on the day specified, the landlord may, not later than thirty days after that day, apply to the Tribunal for an order terminating the agreement and an order for possession of the premises. (2) The Tribunal shall, on application by a landlord under this section, make an order terminating the agreement if it is satisfied: (a) in the case of a notice given by the landlord on a ground referred to in s56 (which relates to termination on the ground that the residential premises are being sold), s57 (which relates to termination on the ground of breach of the agreement) or s61 (which relates to termination where the agreement is frustrated): (i) that the landlord has established the ground; and (ii) if the ground is a breach of the residential tenancy agreement, that the breach, in the circumstances of the case, is such as to justify termination of the agreement; (b) that the tenant has seriously or persistently breached the residential tenancy agreement; or (c) that, having considered the circumstances of the case, it is appropriate to do so. (3) Except as provided by s66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part. (4) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises specifying the day on which the order takes effect.
13. At first instance Rolfe J held that the Residential Tenancies Tribunal had erred in limiting its consideration to whether the requisite notice had been given and the necessary time periods had elapsed; the requirement in s 64(2)(c) to be satisfied that "having considered the circumstances of the case" it was appropriate to terminate the tenancy went further. The relevant parts of his Honour's decision were extracted in the decision of the Appeal Panel in Taylor v Peslak [2018] NSWCATAP 57 at [62] and [65]: 62 Having noted at [BC9504317 at 11] that a notice given under s 58 did not operate to terminate the tenancy immediately (a matter not presently relevant to this appeal as an application under s 94 of the RT Act does not require notice to be first given), Rolfe J said at [BC9504317 at 14]: … s64(1) provides the conditions precedent or statutory requirements for bringing an application for an order terminating the agreement and for possession but, those conditions having been satisfied and the condition in subs(3) having been satisfied, the Tribunal must be satisfied of the relevant matter in subs(2) which, for present purposes, is that "having considered the circumstances of the case, it is appropriate to do so". As I have said I do not regard those words as encompassing a satisfaction as to the fulfilment of the requirements of serving a valid notice and the necessary time having run. In my view "the circumstances of the case" have a wider meaning. This is particularly so when regard is had to the intention of the legislation and, also, to the use of the words "the circumstances of the case" not only in subs(c) but also in subs(a)(ii). It is to be borne in mind that subs(c) covers cases where the notice is issued without their having been fault on the part of the tenant. … 65 In Swain's case, Rolfe J went on to explain what the expression "the circumstances of the case" refers to. At [BC9504314 at 14] his Honour said: Possible "circumstances", which may have to be taken into account, are the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment. A number of other matters, which could be relevant, were suggested by counsel for the defendant in Nicholson and they are referred to hereunder in a passage I shall quote. An approach such as this accommodates, more easily, the bases on which the Tribunal must proceed as set forth in s93(4)(b).
14. As the Appeal Panel in Taylor v Peslak noted, Rolfe J's conclusion that the circumstances of the tenant as well as those of the landlord had to be taken into account in reaching the required level of satisfaction under s 64(2)(c) was confirmed by the Court of Appeal in Roads and Traffic Authority v Swain & Ors (1997) 41 NSWLR 452, where at 456 Meagher JA (with whom Priestley and Cole JJA agreed) said: The question then becomes what the words "circumstances of the case" mean. They are clear enough; they require regard to be had to the particular case before the Tribunal. If they were intended to be limited to matters of form and time, then s 64(3) merely repeat what is said by s 64(2)(c). It is difficult to see why the words do not mean what they say. I think it can be fairly stated that the Act is intended to balance the rights of the landlords and tenants. The argument urged against accepting Rolfe J's interpretation of s 64(2) is that it could be unduly harsh on the landlord. That argument fails as hardship to the landlord is something which the Tribunal must consider as part of "the circumstances of the case" but further, the matter is specifically addressed in s 69, which does not seem to have been raised at any stage of the history of the case. That section enables the Tribunal to terminate a tenancy, even in the absence of a breach, simply to avoid hardship to the landlord. Section 69 can, in this way, be seen as the landlord's counterpart to s 64(2)(c). If Rolfe J's interpretation were not upheld, then a landlord could plead hardship to obtain an early termination, but the tenant, in circumstances where no breach had occurred, could not plead hardship to avoid eviction; the tenant could only rely on s 65(1) to postpone eviction or rely on the limited grounds of refusal to make an order which are provided for in s 65(2) and which do not include hardship to the tenant.
15. The decision in Swain was considered by the Court of Appeal in Scicluna v NSW Land & Housing Corporation (2008) 72 NSWLR 674; [2008] NSWCA 277. In that case the landlord had served a termination notice under s 57 of the 1987 Act on the ground that Mr Scicluna had breached the tenancy agreement by permitting the premises to be used for an illegal purpose (now s 91 of the RT Act). Section 64(2)(b) of the 1987 Act at that time required the then Consumer Trader and Tenancy Tribunal to make an order terminating the tenancy if satisfied, in the case of a notice given under s 57 relating to breach of the agreement: (i) that the landlord has established the ground, and (ii) that the breach, in the circumstances of the case, is such as to justify termination of the agreement, …
16. Subsection 64(4) as then in force, provided (emphasis added): (4) Without limiting the obligations of the Tribunal under subsection (2) (b) or (c), in considering the circumstances of a case concerning social housing premises under that provision, the Tribunal, in addition to having regard to the circumstances of the tenant and other circumstances of the case, is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the residential tenancy agreement was a serious one (and, in particular, whether it was one to which subsection (6) applies), and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including, if the tenant is a tenant under a public housing tenancy agreement, any prior tenancy of the tenant arising under any such agreement.
17. At [12] Basten JA (with whom Hodgson JA agreed on this point), identified as the matters the Tribunal "could and must" consider in the following terms: 12 The answer to the third question is that the Tribunal must have regard to: (a) the nature of the breach; (b) whether the breach was serious and whether the behaviour or likely behaviour of the tenant would subject or continue to subject neighbours or other persons or property to unreasonable risk in the event of failure to terminate; (c) any serious adverse effects "the tenancy" has had on neighbours or other persons; (d) the landlord's responsibility to its other tenants; (e) whether there has been breach of an order of the Tribunal, and (f) the history of the tenancy.
18. At [13] Basten JA held: 13 Each of these considerations might have been mandatory considerations as a matter of implication from the terms of s 64(2); that conclusion is made explicit by s 64(4) in relation to "social housing premises", which include those provided by the New South Wales Land and Housing Corporation (the respondent).
19. Campbell JA, with whom Hodgson JA agreed, considered Swain, and stated: 62 Under the legislation as it now stands, section 64(1) sets out conditions precedent which must be satisfied before a landlord has the standing to apply to the Tribunal for an order terminating a residential tenancy agreement and an order for possession of the premises. Section 64(2)(b) is the only paragraph within section 64(2) which applies in the present case. It requires the Tribunal, first, to consider whether the landlord has established the ground referred to in section 57. The Tribunal must then consider whether the breach, in the circumstances of the case, is such as to justify termination of the agreement. The "circumstances of the case" encompass all aspects of the particular case that is before the Tribunal. In the course of considering the circumstances of the case, where social housing premises are in question, the Tribunal is directed by section 64(4) to have regard to "the circumstances of the tenant and other circumstances of the case", and also to such of the other specific matters listed in section 64(4)(a)-(e) as may be relevant.
20. It is important to observe that the statement by Campbell JA that the "circumstances of the case" "encompass all aspects of the particular case that is before the Tribunal" was made in the context where "the circumstances of the tenant" were expressed as a mandatory consideration in the termination of a social housing tenancy.
21. Swain and Scicula confirm that "the circumstances of the case" have a wide meaning, and encompass all aspects of the particular case that is before the Tribunal. The Appeal Panel in Taylor v Peslak, applying Swain, concluded at [78] that in considering whether to make a termination order under s 94 of the RT Act, the Tribunal was required to consider the evidence provided by each of the parties and balance the interests of each of the landlord and tenant in deciding whether or not it was satisfied that a termination order should be made "in the circumstances of the case".
22. A different view was expressed by another Appeal Panel in Sara McGuiness v NSW Land & Housing Corporation [2014] NSWCATAP 98, in the context of termination under s 91 based on use of residential premises for an unlawful use. The Appeal Panel held at [75] that impact on the tenant of termination and hence the application of the policy on future ineligibility for social housing was not a mandatory relevant consideration; it was, however, not an irrelevant, prohibited consideration (at [78]). That conclusion was based on the wording of s 91(2), which provides that the Tribunal may consider the nature of the unlawful use, any previous unlawful uses, and the previous history of the tenancy. Not only is there no reference to the impact on the tenant, s 91 does not require consideration of "the circumstances of the case".
23. The reasoning of Rolfe J in Swain supports the proposition that the personal and family circumstances of the tenant are considerations that must be taken into account as circumstances of the case. That approach was adopted in Taylor v Peslak, which confirmed that the Tribunal was required to consider the evidence provided by each of the parties and balance the interests of each of the landlord and tenant in deciding whether or not it was satisfied that a termination order should be made "in the circumstances of the case". Swain was a "no grounds" termination, as was the application under s 94 of the RT Act in Taylor v Peslak. The present appeal concerns the application of s 87 in an application for termination based on breach. Consideration under s 87(5) of steps taken by the tenant to remedy a breach, and the previous history of the tenancy, of necessity require some understanding and consideration of the tenant's personal and family circumstances, in particular as that may explain why the breach or breaches were not remedied. Section 87(4)(b) requires the Tribunal to decide whether the breach is in the circumstances of the case sufficient to justify termination. In that evaluation the particular circumstances of the tenant that inform an understanding of the breach and whether it is sufficient to justify termination of the tenancy are relevant considerations.
24. That conclusion does not mean that there is in all cases concerning breach of residential tenancy agreement a list of mandatory relevant considerations. The decision in NSW Land & Housing Corporation - T407 v Mann (Consumer and Commercial Division, unrep, 10 June 2014) lists a range of factors including the length of the tenancy, the tenant's age and health, employment, connections to the area, and inability to find alternative accommodation as factors regularly considered as circumstances of the case. Those are some of the matters that could, in the language of Aronson, Groves and Weeks, be regarded as "permissive" considerations, depending on the context. The language of s 87(4)(b) requires focus on the breach, and the Tribunal is not, as suggested at [45] in Mann, limited to consideration of the particular circumstances of the tenant. As Taylor v Peslak confirms, the circumstances of the landlord are relevant as well.
25. A residential tenancy agreement is, at its core, an agreement that the landlord grants the right to occupy on the basis that the tenant promises to pay the rent on time and in accordance with the agreement, subject to additional statutory matters under Part 7 of the RT Act in respect of social housing residential tenancy agreements. In considering all circumstances relevant to the tenant's breach by failing to pay rent on time and in accordance with the agreement, the Tribunal must consider the facts and circumstances of the particular matter before it, but must also be cognizant that many social housing tenants suffer circumstances of personal hardship (reflected by the fact that they are eligible for social housing, and often eligible for reduced rent compared to tenants in the private market) and that relevant circumstances under s 87 of the RT Act in a case involving breach by reason of not paying rent are to be considered in the context of why the tenant is not paying rent, and whether or not the breach by reason of the tenant's failure to pay rent is sufficient to justify termination of the tenancy.
26. Otherwise, a tenant could fail to pay rent for a long period of time and successfully argue that the tenant's very significant personal hardship issues mean the tenancy cannot be terminated. That could lead to a situation where the social housing tenant was relieved of the consequences of failing to honour the contractual promise of the tenant to pay rent, in circumstances where social tenancy housing waiting lists are long, and there are many persons likely to be in circumstances of significant hardship who cannot gain access to social housing because of limited stock.
27. Having identified the applicable mandatory considerations, the task for the Tribunal under s 87(4)(b) is to determine whether the breach is sufficient to justify termination of the agreement: Schaefer v Department of Housing (No 2) [2012] WASCA 229.
28. The appellant submits that having regard to the written reasons the Tribunal simply found that the breach was sufficient to justify termination of the agreement and that in doing so the Member failed to take into consideration "the circumstances of the case". That submission is based on the absence of any express reference to the requirement to have regard to the particular circumstances of the tenant, and the absence of any express reference to the particular circumstances of the tenant as set out at paragraph [17] and [19] above. The appellant relies on the Member's express reference to the other mandatory consideration in s 154E, and the incorporation in paragraph [16] of the "cursory recitation" of the particular circumstances of the tenant, and submits that statement at paragraph [15] that the finding is "[f]or the purposes of s 87(4)(b)" is but a token reference.
29. The respondent submits that it is apparent from the Member's reasons that the conditions in s 87(4)(a)(b) and (c) were satisfied, and that in light of all the relevant circumstances including those identified in ss 87(5) and 154E and the hardship to the tenant and her children, the Tribunal found that it should exercise the discretion to terminate the tenancy agreement.
30. In Torbey Investments Corporation Pty Ltd v Ferrara [2017] NSWCA 9 Basten JA (with whom McColl and Simpson JJA agreed) at [66] confirmed that a tribunal is not obliged to refer to all the material before it which a party (or even a reviewing court) considers constitutes relevant evidence, so long as it considers properly the scope of its functions, and the claim made, and does not ignore or overlook apparently credible and relevant information which might support an essential step in the reasoning process.
31. As the Appeal Panel noted in Ciccone v NSW Land and Housing Corporation [2016] NSWCATAP 120 at [14], The Full Court of the Federal Court said, in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". This language was repeated with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.
32. Approaching consideration of the Member's reasons on that basis, the structure reflects his consideration first, as required by s 87, whether the residential tenancy agreement should be terminated, and secondly, whether the order for possession he was required to make under s 83 should be suspended. The cross references indicate that the evidence recorded at paras [2]-[9] relating to the tenant and her family informed each step.
33. The Member recorded matters relevant to the tenant's circumstances, which he noted were not in dispute between the parties. He had regard to her circumstances in his finding that the reason for the breaches of prior Tribunal orders for payment of rent was that the tenant "was unable to manage her household budget", and at [13] and [14] he referred to evidence favourable to the tenant. At paragraph [15] the Member expressly addresses the s154E matters, and at [15] and [16] takes into account the evidence as to the steps taken by the tenant with the assistance of the Samaritans to address her financial situation. At [16] the Member expressly refers to the tenant's circumstances as recorded in para [7] of his reasons, in which he noted the evidence that she is a single mother of six children five of whom reside with her, and that two of those children attend special needs classes in a school located near to the premises. While the discussion in [16] follows the recording of the decision to terminate the tenancy agreement, the Member expressly recognises the likely hardship to the tenant.
34. The Member did not expressly refer to each item of evidence as recounted at [17] and [19] above. However, given the context in which "the circumstances of the case" needed to be considered under s87, on a fair reading of the Member's reasons he did have regard to aspects of the tenant's circumstances relevant to an understanding of the breach. We are satisfied that the Member did take into account the tenant's circumstances, and that he took into account the mandatory considerations. Ground 1 is not made out.

Ground 2

1. The appellant contends that the Member's decision was unreasonable, in the sense articulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, namely as a conclusion so unreasonable that no reasonable authority could have reached it; or in the broader sense as put by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], as a conclusion that lacks "an evident and intelligible justification". If established, that would be an error of law: Prendergast at [12].
2. In support of that proposition the appellant submits that the Tribunal had before it evidence as to her particular circumstances which demonstrated the overwhelming desirability of the appellant and her family to remain in the premises. However the Member focused on the breach, namely the past failure to pay rent and the amount of the rental arrears to the exclusion of that evidence. The appellant submits that the evidence that the appellant had extinguished the rental arrears on one occasion, depositing a payment exceeding the amount outstanding, and had continued to make payments during periods when she was in arrears, demonstrated a sustained commitment to extinguishing the rental arrears in the context of difficult personal circumstances.
3. In substance, this ground is a disagreement with the merits of the decision. For the reasons we have given above, we are satisfied that the Member did take into consideration the tenant's circumstances, including the hardship likely to be caused if the tenancy was terminated. In undertaking the evaluation required by s 87(4)(b), the Member noted at [4] that the tenant had been in arrears to some extent since 2 April 2017, at [6] that the amount of the arrears had increased at the date of the hearing, at [13] that she had consistently been in breach, and at [14] that she had breached prior orders of the Tribunal with respect to payment of rent. The Member acknowledged in [14] the reasons for the breaches. The Member referred in [10] to the facts and circumstances which were not in contest, and in [16] to the particular circumstances of the tenant's children and their schooling. The Member's reasons do not support the contention that his focus was on the breach to the exclusion of the evidence as to the tenant's circumstances. This ground is not made out.

Ground 3

1. As previously noted, the tenant requires leave to appeal on ground 3. To establish that the tenant may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence requires that the Appeal Panel be satisfied that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Collins v Urban at 77. The tenant submits in support of this ground that in finding that the tenant's failure to pay rent on time was sufficient to justify terminating the tenancy agreement, and in making an order terminating the agreement consequent on that finding, the Member failed to consider the particular circumstances of the tenant. For the reasons above, we are satisfied that the Member did have regard to the tenant's circumstances, and the decision was clearly open on the evidence before him. While the appellant disagrees with the outcome, we are not persuaded that the decision was "… not one that a reasonable Tribunal member could reach". Accordingly, there is no basis on which leave to appeal on this ground should be granted.

Conclusion

1. The appellant has not established that there was an error of law, or a basis on which leave to appeal should be granted. That makes it unnecessary to consider whether the Appeal Panel should exercise its discretion to grant leave in accordance with the principles stated at [84] in Collins v Urban. Leave to appeal is not granted and the appeal is dismissed.
2. Order 3 made on 5 March 2018 suspending the order for possession until 30 April 2018 was stayed on 3 April 2018 by consent until further order of the Tribunal, conditional on the tenant complying with the order for payment of an occupation fee until the date vacant possession is given.
3. At the resumption of the hearing on 18 June 2018 the Appeal Panel foreshadowed the orders as to the outcome of the appeal, and sought submissions as to whether pursuant to the power granted in s 81(1)(b) of the NCAT Act, the order for possession should be varied. The parties disagreed as to the extent to which the tenant has been complying with the condition on the stay. The landlord's representative stated that $2,776.20 is owed as occupation fee, and the tenant has paid $540; the tenant's representative stated that $1,240 has been paid. We note that whichever amount is correct, the tenant has not fully complied with the requirement to pay the occupation fee, but has made an effort to do so. Order 6 of the orders made on 5 March 2018 enables the landlord to request the relisting of the matter to determine the amount of occupation fee owing. The parties agreed that it would be appropriate to suspend the order for possession for a further 8 weeks.

Orders

1. The Appeal Panel orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay granted on 3 April 2018 is lifted. 4. Order 4 in proceedings SH 18/04797 is varied to read as follows: "The order for possession is suspended until 13 August 2018."

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: 22 June 2018