Kendray v NSW Land and Housing Corporation

Background

1. The appellant appeared in person, assisted by her daughter Ms J Barton.
2. At the hearing on appeal, she relied upon submissions received by the Tribunal on 23 November 2020 and part of those submissions included new evidence as follows: 1. A letter from the Appellant's General Practitioner Dr Leigh Bennie dated 30 September 2020 confirming ongoing issues of depression, anxiety and Post Traumatic Stress Disorder (page 32 of the appellant's material); 2. A statement from the appellant Linda Kendray - undated (pages 1 - 3 of appellant's material); 3. A second statement from the appellant Linda Kendray - undated (pages 33 - 35 of the appellant's material); 4. A third statement from the appellant Linda Kendray- undated (page 36 of the appellant's material); 5. A fourth statement from the appellant Linda Kendray - undated (pages 38 - 41 of the appellant's material); 6. A statement from the appellant's daughter Jessica Barton - undated (page 37 of the appellant's material); 7. The appellant's first lease for the subject premises dated 18 October 1996 (pages 59 - 60 of the appellant's material); 8. Two emails in support of the appellant from friends Kirby Church and Steven Parkinson dated 17 November 2020 (pages 61 and 62 of the appellant's material).
3. Mr R Fester, solicitor, appeared for the respondent and relied upon the respondent's written outline of submissions in reply which in support relied on the following documents: 1. Submissions prepared by Ms Sue Hook which were before the Tribunal at first instance; 2. Two bundles of evidence filed before the Tribunal below; and 3. Letter dated 24 August 2020 from Housing NSW to the appellant, being evidence not before the Tribunal below.

Extension of time

1. The date of the Tribunal's decision and orders is 3 August 2020.
2. A copy of the orders were emailed to Ms Semmens who appeared as advocate for the appellant at the hearing. The respondent submitted that accordingly the Appeal Panel should accept that 3 August was the day on which the appellant was notified of the decision appealed against. The appellant did not dispute this proposition.
3. Under rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2015 (NSW) (NCAT Rules) the timeframe to lodge an appeal in residential proceedings is 14 days either from the day from which the appellant is notified of the decision appealed against or the day on which reasons were first given (either orally or in writing) whichever is later.
4. The appellant lodged her appeal on 16 October 2020 which is 74 days after she was notified of the decision appealed against and the day on which reasons were first given. In her notice of appeal there is no application for an extension of time in which to appeal.
5. Rule 8 of the NCAT Rules requires that an application for extension of time under s 41 of the Civil and Administrative Tribunal Act 2015 (NSW) (NCAT Act) is to be made in writing. The appellant on 20 October 2020 was ordered by the Appeal Panel to complete section 7 of her Notice of Appeal on or before 26 October 2020 and thereby apply in writing for an extension of time. The appellant has not done so and accordingly no application for extension of time has been made in writing.
6. The appellant at the hearing of the appeal on 11 December 2020 confirmed that she was seeking an extension of time. Even if such extension of time was properly before us, we would decline to grant such extension for the following reasons.
7. The Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] stated that generally in an application for an extension of time the Appeal Panel should consider the length of the delay; the reason for the delay; the applicant's prospects of success; and the extent of any prejudice suffered by the respondent. Length of the delay, reason for the delay
8. As indicated, the length of the delay is 74 days, being 60 days outside the required time for lodging the appeal, which is a significant period.
9. The appellant in her submissions on appeal stated that she did not receive notice of the decision until approximately two weeks after the hearing. The respondent referred to a letter dated 24 August 2020 sent to the appellant from Housing NSW enclosing the Tribunal's orders.
10. In our view, the date upon which the appellant received notice of the decision remains 3 August 2020 being the date the orders were emailed to the appellant's representative before the Tribunal. Alternatively, the appellant received notice of those orders on 24 August 2020 and in such case the period of delay is 53 days. This is still a significant period.
11. In the written material relied upon by the appellant, an explanation for the delay was provided by Ms J Barton, the appellant's daughter. In her written statement she indicated that she had made several phone calls to find out what her mother should do after "Housing finally got what they wanted". She went on to state that she had spoken to legal aid, the tenancy advocacy agent Ms Semmens from South West Tenancy Advisory Services.
12. She stated that after "many phone calls" she rang Fair Trading who told her what her mother would need to do after which the appellant lodged her appeal and that was the reason for the appeal being lodged late.
13. Orally at the hearing, the appellant indicated that the initial advice from the tenancy advocacy service was that they were unaware of the time frame within which to lodge the appeal. This was not corroborated by Ms J Barton.
14. There is an absence of material establishing exactly when the appellant sought advice on the time frame within which to lodge the appeal from the tenancy advocacy service, precisely what advice was received from Ms Semmens and when contact was made with the Department of Fair Trading. The appellant and Ms J Barton were not forthcoming on any of those details.
15. Accordingly, the Appeal Panel is not satisfied on the submissions and evidence before us that the appellant has provided an adequate explanation of the delay in lodging her appeal.
16. The lack of material providing an adequate explanation of the delay weighs against granting extension of time: see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [103].

Prejudice to the respondent

1. The respondent submitted that extending the time to appeal prejudices the respondent's ability to provide the subject premises to a suitable applicant on the social housing waitlist in circumstances where there is a large waiting list for such housing.
2. We are not satisfied that this relevantly amounts to the relevant prejudice. We are inclined to think that the prejudice to be considered is in the respondent's ability to respond to the appeal or arising from steps actually undertaken by the respondent in reliance on there being no appeal lodged.
3. The respondent did not submit that it had actually taken any steps to secure or attempt to secure an alternative tenant for the premises.

Prospects of success

1. We note that in our view the explanation for the delayed filing of the notice of appeal was unsatisfactory. In such circumstances, we think it is appropriate to delve further into the merits of the appeal in deciding whether or not to grant an extension of time: see Tomko v Polasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, lpp JA agreeing at [17] and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
2. The appellant prepared her grounds of appeal without legal representation.
3. At the hearing, the appellant confirmed with us that her grounds of appeal can be summarised as follows: 1. The respondent's application to terminate the tenancy was brought out of time (ground 1); 2. The appellant relies upon new evidence which she contends should lead to a different outcome (ground 2); 3. The Tribunal's decision to terminate the tenancy was against the weight of the evidence (ground 3).
4. For the reasons below, the Appeal Panel is of the view that all three grounds of appeal do not enjoy good prospects of success.
5. Accordingly, given the lack of prospects of success, the length of delay and the inadequacy of the reason for such delay in lodging the appeal, the application for an extension of time within which to lodge the appeal is dismissed.

Ground 1 - time limit

1. The question as to whether the termination proceedings were instituted in time is a question of law that can be made to the Appeal Panel as of right: see section 80(2)(b) NCAT Act.
2. NCAT Rule 23 applies to termination proceedings under section 91 of the RT Act and the RT Act does not specify the period within which such an application is to be made. Hence, the application was required by Rule 23(3)(b) to be made within 28 days from the day on which the landlord became entitled under the RTA to make the application.
3. Rule 23(3)(b) is in the following terms: Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (b) in any other case - within 28 days from the day on which the Appellant became entitled under the enabling legislation to make the application.
4. The Appeal Panel in Kemsley v NSW Land and Housing Corporation [2020] NSWCATAP 188 (Kemsley v NSW LAHC) accepted that the preferred construction of Rule 23(3)(b) is that the "entitlement" to make the application can only arise when the landlord has knowledge of facts that would ground the relevant application under section 91 of the RT Act or, at least, when the landlord ought to have discovered such facts with reasonable diligence: at [93]..
5. The appellant's breach of the Tenancy Agreement occurred on 5 December 2019 when a search warrant was executed by NSW Police at the subject premises. At first instance, the appellant relied on a statement from her daughter, Ms Natalie Barton, that asserts, without proof, that NSW Police would have informed the landlord of the breach within one or two weeks of 5 December 2019 and therefore the section 91 application had been commenced out of time.
6. The Primary Member accepted at [6] and [35] of the Reasons that the respondent's evidence that the landlord became aware of the breach four months later on 14 April 2020 when NSW Police emailed the landlord about the search and charges arising. The appellant asserts the respondent landlord became aware of the breach on 5 December 2019. She bases this assertion on information she says was provided by Legal Aid to her daughter, namely: Police and Housing NSW have a binding contract therefore Police would have notified Housing on 5 December 2019. The appellant provides no material substantiating that this conversation took place nor that any contract of the type she asserts exists.
7. In our view, there is no basis for challenging the respondent's evidence that the information forming the basis of the section 91 application came to the attention of the respondent on 14 April 2020 and, consequentially, the proceedings were commenced within the 28 day time limit.
8. In our view, this ground of appeal has poor prospects of success.

Ground 2: evidence not provided at first instance/significant new evidence

1. The appellant asserts that Ms Semmens and her daughter Ms Natalie Barton (who was assisting her at first instance) failed to provide the Tribunal with relevant evidence. Related to this, the appellant now seeks to rely upon new evidence, as follows: 1. A letter from the appellant's General Practitioner Dr Leigh Bennie dated 30 September 2020 confirming ongoing issues of depression, anxiety and Post Traumatic Stress Disorder (page 32 of the appellant's material); 2. A statement from the appellant Linda Kendray - undated (pages 1 - 3 of appellant's material); 3. A second statement from the appellant Linda Kendray - undated (pages 33 - 35 of the appellant's material) 4. A third statement from the appellant Linda Kendray- undated (page 36 of the appellant's material); 5. A fourth statement from the appellant Linda Kendray - undated (pages 38 - 41 of the appellant's material); 6. A statement from the appellant's daughter Jessica Barton - undated (page 37 of the appellant's material); 7. The appellant's first lease for the subject premises dated 18 October 1996 (pages 59 - 60 of the appellant's material); 8. Two emails in support of the appellant from friends Kirby Church and Steven Parkinson dated 17 November 2020 (pages 61 and 62 of the Appellant's material).
2. The receipt of new evidence requires leave of the Appeal Panel: section 80(2)(b), NCAT Act. Pursuant to Clause 12(1), Schedule 4 of the NCAT Act, leave can only be enlivened 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).
3. The Appeal Panel in Collins v Urban (2014) NSWCATAP 17 (Collins v Urban) set out some principles for the grant of leave. The Appeal Panel at [71] stated 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". With respect to Clause 12(1), Schedule 4 of the NCAT Act, the Appeal Panel in Collins v Urban stated at [76] that: "...it should be accepted that a substantial miscarriage of justice may have been suffered (because of any of the circumstances referred to in cl 12(1)(a), (b) or (c)) 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."
4. We agree with the respondent's submissions in respect of this new evidence. The new statements of the appellant (items (2) to (5)) and the emails from friends (item (8)) largely reflect the evidence in the appellant's case that was before the Primary Member. Where there is fresh information, it is not significant.
5. Further, the appellant has not provided an adequate explanation as to why this material was not available at first instance. There is merely the assertion that the appellant's daughter and advocate failed to put relevant material and evidence before the Tribunal. It is noted the appellant was represented by Ms Semmens at first instance and filed evidence in her case. On the hearing day the appellant did not give oraI evidence in her case: see [22] of the Reasons. In our view, the appellant has not demonstrated or satisfied us that this evidence was not reasonably available at the time the proceedings under appeal were being dealt with.
6. The statement of the appellant's daughter (item (6)) and the first lease (item (7)) cannot be considered significant new evidence. The daughter's statement largely repeats the submissions put forward in respect of the issue of undue hardship at first instance. The letter from the doctor (item (1)) is not significant new evidence. This letter confirms the appellant has ongoing issues of depression, anxiety and Post Traumatic Stress Disorder. This letter does not advance the appellant's case in circumstances where the Primary Member was satisfied, on the appellant's written evidence and her daughter's oral testimony, that the appellant has such ongoing issues and meets the criteria of suffering a disability within the meaning of the Anti-Discrimination Act 1977 (NSW), in turn triggering the application of section 154D(3)(b) of the RT Act: see [25]-[26] of the Reasons.
7. Further, the appellant has not demonstrated or satisfied us that this evidence was not reasonably available at the time the proceedings under appeal were being dealt with.
8. In our view, the absence of the new evidence at first instance has not resulted in the appellant suffering a substantial miscarriage of justice. We conclude that leave to appeal should not be granted as the requirements for leave have not been met.
9. In our view, this ground of appeal has poor prospects of success.

Ground 3: decision to terminate against the weight of the evidence

1. The appellant submits that when it came to the exercise of its discretion under section 154E of the RT Act, the decision to terminate her tenancy was against the weight of the evidence. An alleged failure to give 'sufficient weight' to evidence does not identify a question of law: AHB v HSW Trustee and Guardian [2017] NSWCATAP 79; House v R (1936) 55 CLR 499. Leave of the Appeal Panel is required to consider this question: 80(2)(b) NCAT Act.
2. In order to demonstrate that the discretion miscarried on the ground that it was against the weight of the evidence, the appellant would need to demonstrate that the decision to terminate the tenancy was unreasonable or that a finding or inference is made in the absence of supporting evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [70]-[75])
3. It is insufficient, for this ground of appeal to succeed, that we, or another Tribunal Member, may have come to a different conclusion on the evidence.
4. The Tribunal at [38] considered the factors it was required to address in exercising its discretion under section 154E. Given that there was evidence before the Tribunal, the Tribunal was entitled to draw the conclusions that it did under section 154E(a)-(e).
5. In our view, it was open to the Tribunal to come to the decision to terminate the tenancy.
6. Insofar as leave is sought, in our view, the appellant does not meet the principles set down in Collins v Urban. We conclude that leave to appeal should not be granted as the requirements for leave have not been met.
7. In our view, this ground of appeal has poor prospects of success.

Conclusion

1. For the above reasons, we concluded that the application for an extension of time within which to file the appeal should be dismissed.

Orders

1. The orders made on 11 December 2020 were as follows: 1. The application for an extension of time in which to appeal is dismissed; 2. The application for leave to appeal is dismissed; 3. The appeal is dismissed; 4. The stay orders of 19 October 2020 are varied as follows: 1. The order for possession made on 23 August 2020 in matter number SH20/17890 is suspended until 31 March 2021; 2. The stay of the order for possession until 31 March 2021 is conditional upon the appellant: 1. paying an any arrears of rent; and 2. paying the rent and the occupation fee

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 December 2020