King v NSW Land and Housing Corporation

What was this appeal about?

1. The appellant in this matter, Ms Vanessa King, has been a tenant of a social housing property at Woy Woy (the Premises) since April 2020. It is not disputed that she has schizophrenia which was first diagnosed over 20 years ago and comorbid alcohol use disorder. It is also undisputed that her excessive use of alcohol can and does contribute to and exacerbate her diagnosed psychotic symptoms, which include distressing auditory hallucinations and delusions with accompanying behavioural outbursts.
2. Prior to moving into the Premises, Ms King was homeless and lived in temporary homeless accommodation as and when it was available to her.
3. It appears to be undisputed that Ms King is subject to a community treatment order (CTO) under the Mental Health Act 2007 (NSW). The purpose of a CTO is to keep a person, who might otherwise continue in or relapse into an active phase of mental illness, well in the community: see Howard and Westmore "Crime and Mental Health in New South Wales" 2nd ed 2010 at [3.45].
4. On 2 December 2020 the Respondent, NSW Land and Housing Corporation (Land and Housing), issued a notice of termination of Ms King's tenancy of the Premises under ss 87 and 154C(9)(b) of the Residential Tenancies Act 2010 (NSW)(RTA), citing numerous breaches of Ms King's obligation under her tenancy agreement not to cause a nuisance and not to interfere with the reasonable peace or comfort of neighbours.
5. On 31 December 2020, Land and Housing applied to the Consumer and Commercial Division (C&C Division) of this Tribunal for an order terminating the tenancy based on those alleged breaches. That application was heard by a General Member of the C&C Division (the Tribunal) on 19 November 2021. On that date the Tribunal ordered that Ms King's tenancy of the Premises be terminated immediately, an application for suspension for 6 months having been refused, and that possession be given up to Land and Housing on the date of termination.
6. Written reasons for the Tribunal's decision (Tribunal's Reasons or Reasons) were finalised on 23 November 2021.
7. Ms King appealed from the Tribunal's decision based on asserted legal errors which we have discussed below and sought our leave to appeal on other grounds.
8. In preparation for the appeal, the Appeal Panel granted a stay on the order for possession pending determination of the appeal.

Our decision

1. We have decided that Ms King's appeal should be allowed because the Tribunal had fallen into error by failing to take into account mandatory considerations in applying ss 87 and 154E of the RTA in making the order terminating Ms King's tenancy. To the extent that the grounds asserted raised an error of law, rather than a question of law, we have reframed them as relevant and are satisfied no procedural unfairness arises to the respondent in the circumstances. Given that conclusion, we did not need to determine the application for leave to appeal. We will order that the original application be remitted to the C&C Division for re-hearing by a differently constituted tribunal.
2. These are our reasons for that decision.

Internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: section 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Questions of law

1. As has been noted in Robinson and Lucy's "NCAT Practice and Procedure", 2nd edition 2020, at [NCATA80.30], there is no satisfactory test of universal application to define the concept of a question of law. That was confirmed in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 394.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, so as to include: 1. Whether there had been a failure to provide proper reasons; 2. whether the Tribunal had identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there had been a failure to afford procedural fairness; 5. whether the Tribunal had failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal had taken into account an irrelevant consideration; 7. whether there had been no evidence to support a finding of fact; and 8. whether the decision was so unreasonable that no reasonable decision-maker would have made it.

Applications for leave to appeal

1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, which often cite the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17 ("Collins"). They are the same principles applied by the courts. In order to be granted leave to appeal the applicant must demonstrate something more than that the decision was arguably wrong or that there is some bona fide challenge available to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. Collins confirmed, at [84], that ordinarily it is appropriate to grant leave only in matters that involve: 1. issues of principle, questions of public importance or matters of administration or policy which might have general application; 2. 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; 3. a factual error that was unreasonably arrived at and clearly mistaken or 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.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the C&C Division are further limited by clause 12 (1) of Schedule 4 of the NCAT Act. The Panel must first be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision under appeal was not fair and equitable; or 2. the decision was against the weight of evidence; or 3. significant new evidence has arisen, being evidence that was not reasonably available when the proceedings under appeal were dealt with.
3. Collins is also authority for the proposition that a substantial miscarriage of justice should not be found to have occurred unless: [76]… 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. As a final consideration, even if a particular appeal from the C&C Division has satisfied the requirements of clause 12 (1) of Schedule 4, the Appeal Panel must still consider whether to exercise its discretion under s 80(2)(b) of the NCAT Act to grant leave to appeal.

Relevant provisions of the RTA

1. The appeal involves the construction of two key provisions of the RTA relating to termination of a residential tenancy agreement in a social housing context. They are ss 87 and 154E. For convenience of reference, those sections are set out below. 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. 154E EXERCISE OF DISCRETION TO MAKE 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.

The Appellant's case

1. At the appeal hearing Ms King pressed only the following 3 of the 4 grounds of appeal included in her Notice of Appeal: 1. Ground 1: Ms King's case is that Tribunal erred in law by applying the wrong test under section 87 of the RTA and that it did this by failing to take into account a relevant mandatory consideration. In particular she asserts that the Tribunal erred in its consideration of the circumstances of the case (a consideration which is itself mandated by section 87(4) (b)), by failing to take into account her personal circumstances or the effect on her of termination of the tenancy. 2. Ground 3: Ms King contends that the Tribunal's findings were against the weight of the evidence. She acknowledges that this does not raise a question of law and that leave of the Appeal Panel is therefore required: NCAT Act, section 80 (2). Moreover, she says that the conditions set out in Schedule 4 Clause 12 of the NCAT Act, as noted at [14] above, apply in her favour as do the other limitations on the grant of leave discussed at [13], [15] and [16] above. The evidence as to Ms King's circumstances on which she relies includes documentary expert reports from treating psychiatrists and mental health nurses as to her diagnosis, symptoms and prognosis, the oral evidence of her mental health nurse and care coordinator, policy documents from NSW Housing and Anglicare and the 2011 NSW Housing and Mental Health agreement: see Appellant's submissions 28 January 2022, at [47]; and 3. Ground 4: The Tribunal provided inadequate reasons for its decision. This Ground was stated in the Notice of Appeal and was the subject of brief treatment in the subsequent written submissions made on Ms King's behalf on 28 January 2022 and in oral submissions at our hearing. By virtue of amendment to the ground in amended submissions filed 1 February 2022, the inadequacy relied upon was the alleged absence of reasons for the Tribunal's decisions to refuse Ms King's request for suspension of any termination order for 6 months and instead to suspend the order for 28 days only.

The Respondent's case

1. As to Ground One, Land and Housing's case was, in summary, that there had been no error of law for the following reasons. 1. The Tribunal's decision was justified because there are no mandatory relevant considerations in s 87(4)(b) of the RTA. It was contended that the opening words of s 87(5) are facilitative and do not impose a mandatory obligation to consider the factors set out in paragraphs set out in that sub-section. As Land and Housing put it in their written submissions received on 21 February 2022, at [25]- [26]: 25. 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… 26.It is apparent from the reasons that the Tribunal determined that the conditions in sections 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, the Tribunal found that the discretion should be exercised to terminate the tenancy agreement.
2. As to Ground 3: the claim that the Tribunal's findings were against the weight of the evidence, Land and Housing noted that it had been acknowledged on behalf of Ms King that this ground did not raise a question of law but could only be the basis of an application for leave to appeal. Land and Housing contended that such an application would not succeed because: 1. on the basis of the evidence, it was open to the Tribunal to make its findings on the balance of probabilities that Ms King caused a nuisance and interfered with the reasonable peace of her neighbours contrary to her tenancy agreement; 2. the ground merely represented a disagreement with the Tribunal's exercise of its discretion to decide what weight would be afforded to items of evidence; and 3. the requirements for a leave application, as explained at [14] - [17] above and the requirements of cl 12 (1) of Sch 4 of the NCAT Act had not been satisfied.
3. Ground Four was that the Tribunal's reasons for decision in respect of suspension of the order for possession were inadequate. Land and Housing's response was that the reasons were sufficient and adequate in light of the observations of Bell P (as His Honour then was) in NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [65]-[77] ("Orr") and particularly at [70] where His Honour, in considering reasons of this tribunal in a tenancy matter, observed that: (I)t is generally accepted that the sheer volume of work undertaken by tribunals is such that perhaps a more relaxed standard of review of reasons …is appropriate than may be the case where an appellate court is hearing an appeal from another court.
4. Land and Housing also relied on Bell P's observations in Orr at [77] to the effect that reasons must be read fairly and as a whole and that passages of the reasons should not be read in isolation from related passages. His Honour also referred to principles emerging from Collector of Customs v Pozzolonic Enterprises Pty Ltd (1992) 43 FCR 20 at 287 (Pozzolonic), to the effect that reasons should not be inspected with a 'fine tooth comb' attuned to identifying error and that there should be a degree of tolerance for looseness in the language of the tribunal and for any "unhappy phrasing" of its thoughts or verbal slips.
5. Finally, Land and Housing contended that even if we were to conclude that the Tribunal's reasons for its decision not to suspend operation of the termination order for any longer than 28 days were inadequate, such a legal error was not such as to justify our remitting the matter for re-hearing.

Ground One: Did the Tribunal fail to take into account a mandatory consideration in the application of ss 87 and 154E of the RTA?

1. It is apparent that this Ground throws up distinct issues for determination, being: 1. whether the tenant's circumstances and the effect of termination on the tenant are mandatory considerations; and, if so 2. whether the Tribunal failed to take those mandatory considerations into account in this case.

Are those matters mandatory considerations?

1. The ground of failure to take into account to take into account a relevant consideration is only made out if the decision-maker fails to take into account a consideration that he or she is bound to take into account: Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24. The relevant legislative provisions are sections 87 (4) (b) and 87 (5) (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that - … (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, … (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.
2. Land and Housing's central contention on this issue is set out in its written submissions of 21 February 2022, at [25]- [26] in these terms: 25. 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… 26.It is apparent from the reasons that the Tribunal determined that the conditions in sections 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, the Tribunal found that the discretion should be exercised to terminate the tenancy agreement.
3. Land and Housing confirmed this position on the issue in oral submissions and in answer to our questions at the appeal hearing.
4. We would note that, on its terms, s 87(4) does make the issue of "the circumstances of the case" a mandatory consideration. It must be considered to justify findings on which the exercise of the evaluative judgment contained in s 87(4), for the Tribunal to then terminate the tenancy, is predicated. What then does the term mean?
5. An instructive decision of the Appeal Panel relevant to this issue is Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 ("Kelly"). Kelly included a detailed analytical review of relevant Court of Appeal and Appeal Panel authorities.
6. In Kelly, the Appeal Panel cited with approval the Court of Appeal's decision in Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 764; [2008] NSWCA 277 ("Scicluna"). One aspect decided by the Court of Appeal in that case was the breadth of the term "circumstances of the case" when used in section 64 (2) (b) of the Residential Tenancies Act 1987 ("the 1987 Act"). That required the Tribunal to consider whether in the circumstances of the case the breach of the tenancy agreement was such as to justify its termination. Campbell JA at [62], with whom Hodgson JA agreed, considered that the phrase "the circumstances of the case": "...encompasses all aspects of the particular case that is before the Tribunal."
7. That followed the approach adopted in earlier cases and in particular Swain v Residential Tenancies Tribunal of NSW (Unreported, Supreme Court of NSW, Rolfe J, 22 March 1995) ("Swain"), which is cited with approval in another Appeal Panel decision: Taylor v Peslak [2018] NSWCATAP 57 (Taylor). In Taylor at [62] and [65] the Appeal Panel approved the following observations by Rolfe J in Swain: [62]...(T)he Tribunal must be satisfied of the relevant matter…which, for present purposes, is that "having considered the circumstances of the case, it is appropriate to (terminate the tenancy agreement). As I have said I do not regard those words as encompassing a satisfaction as to…fulfilment of the requirements to serving a valid notice and the necessary time having run. In my view "the circumstances of the case" have a wider meaning… [65] 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 the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation…An approach such as this accommodates, more easily, the bases on which the Tribunal must proceed..
8. Rolfe J's formulation was upheld by the Court of Appeal in Roads and Traffic Authority v Swain & Ors (1997) 41 NSWLR 452.
9. Significantly for the issue before us, in Kelly the Appeal Panel followed the approach suggested by Rolfe J in Swain and in doing so, observed, at [49] that His Honour's reasoning: ..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…Consideration under s 87(5) of steps undertaken 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.
10. In Kelly, the Appeal Panel further noted, at [51]: … In considering all circumstances relevant to the tenant's breach…the Tribunal must consider the facts and circumstances of the particular matter before it, but must also be cognisant 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 the relevant circumstances under section 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. (Emphasis added)
11. That was a case where the termination was based on non-payment of rent, but the principle applies equally where, as here, termination is based on section 154C(9)(b) and a breach of specific clauses of the tenancy agreement which may have been impacted on by the appellant's diagnosed mental health conditions.
12. The decision in Kelly, with which we agree, confirms that in matters involving the Tribunal's consideration of the making of a termination order for a residential tenancy agreement (in particular but not restricted to those concerning social housing tenancies), the tenant's circumstances and the effect of termination on the tenant are mandatory considerations.

Did the Tribunal fail to take those mandatory considerations into account?

1. In Director General, Department of Finance and Services v Porter [2014] NSWCATAP 6, the Appeal Panel, citing Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49] and Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ, observed at [28] that: The Tribunal will not have given adequate attention to the relevant consideration where its process is merely a formulaic reference. Instead, what is required can be described as a proper, genuine and realistic consideration of the (mandatory matter).
2. The principal part of the Reasons dealing with the Tribunal's consideration of the nature of Ms King's alleged breach is paragraph [11]. At sub-paragraph (b) of that paragraph the Tribunal, having previously found that the breaches were persistent and ongoing, says: b) The tenant pointed to the mental health position of the tenant. The Tribunal observes: (i) The relevant factor is whether" the breach is, in the circumstances of the case, sufficient to justify termination of the agreement". (ii) There will be situations, and this is one, where an order for termination may have a serious outcome for the tenant. The weight of the evidence suggests that such an order risks for the tenant more physical deterioration, a destabilisation of the mental state, and a relapse into the psychosis and that her circumstances may preclude available housing elsewhere. (iii) In residential tenancies other than social housing tenancies, at least where the landlord has not contributed to the situation, it is difficult to see how the situation can be given much weight. (iv) In circumstances whether the legislature has superimposed in social housing tenancies an additional discretion from that to be exercised under section 87(4)(b) of the Act, it is difficult to see how the fact that the tenancy is a social housing tenancy gives more weight to such a situation… (emphasis added)
3. The apparent reasoning of the Tribunal's observations cited above is that because specific social housing provisions are included in the Act, relevantly in section 154E, the weight to be given to the other "circumstances of the case" as required by s 87(4)(b), which reasonably would include the effect of termination on that particular tenant, is somehow fettered.
4. If that was the intended meaning of the Tribunal's observation, we think it is wrong. Such a construction is inconsistent with the orthodox approach taken in authoritative or binding cases on these issues, in particular Kelly and Scicluna, both of which were concerned with social housing tenancies.
5. Whilst the question of weight to be given to relevant considerations is generally for the Tribunal, the reasons indicate that the Tribunal in fact started its consideration on the premise that no weight, or at best limited weight, could be attributed to the tenant's particular circumstances, which is an error.
6. The "superimposition" of considerations to be exercised in social housing situations, as referred to by the Tribunal, is not restricted to the requirements of section 154E. All the "circumstances of the case" must be considered. That is a mandatory consideration of broad import which will, in social housing cases, include the tenant's circumstances of personal hardship, the likely existence of which is reflected by the fact that the tenant has obtained social housing: Kelly at [51].
7. The fact that s 154E of the RTA predominantly focusses on the impact of the tenancy on others, the history of the prior or current tenancies of the tenant, or the tenant's compliance with prior orders, makes it apparent that these cannot be the only relevant considerations which might apply to a social housing tenant.
8. The Tribunal does outline the evidence as to Ms King's diagnosis and treatment at [13] (c) and (d) of its reasons, mentions her mental health position at 14 and, at 15, notes that there is evidence that Ms King is "taking steps to deal with the conduct which caused the breach" but each of those passages is merely descriptive of the evidence, not indicative of the consideration or weight given to those matters. Further, it appears to only have been considered insofar as relevant to the permissible considerations in s 87(5) RTA, and not insofar as it relates to the tenant's circumstances more broadly.
9. The Reasons at [15] and [16] reflect the following conclusions by the Tribunal: [15]...(b) In the absence of any finding of failure or fault in the landlord…the sad background of the tenant and the difficult reality that termination may make things seriously worse for her cannot be determinative. [16] At the end of the day the Tribunal is not satisfied that the possibility of improvement is something which overcomes the reality of continuing conduct akin to breach. The breach is, in the circumstances of the case, sufficient to justify termination. (Our emphasis)
10. The Tribunal then refers to section 154E and concludes, at [20]: The only additional factor beyond those already considered albeit under section 87(4) of the Act is the factor that this landlord is a social housing provider. The Tribunal is not satisfied that this factor alone operates to create via section 154E (2) a basis for declining to make such an order.
11. Again, this passage indicates error in the Tribunal's approach. The provisions of s 154E should be considered with all the other relevant factors when determining whether to terminate a social tenancy and balanced with them. Section 154E is not intended to operate as a counterweight, as it were, to a separate determination that the circumstances of the case justify termination. Nor should it be considered after that determination has been made only to see whether an otherwise concluded exercise of discretion to terminate the tenancy should be tempered by a consideration mandated by that provision.
12. It appears from the manner of expression of the Tribunal's conclusion at [15] and [16] read with what is said at [20] of the Reasons, as cited above, that the Tribunal proceeded on the basis of inevitability as to termination unless the considerations contained in s 154E mitigated against it. That is incompatible with the due assessment of the mandatory considerations which we have referred to at [34] above.
13. In assessing the Reasons, we have made allowance for the workload of the tenancy list of the Consumer and Commercial Division and the limited time available for preparation of reasons for decision in that jurisdiction. We have also taken into account that Ms King's condition, or at least the evidence as to it, is mentioned in the Reasons. But a mention or brief account does not of itself demonstrate due consideration according to law.
14. We have concluded that the Reasons as a whole, and the analysis and treatment of the evidence reflected in them, does not demonstrate a "proper, genuine and realistic consideration" of the relevant mandatory considerations, in particular, Ms King's circumstances and the effect of termination on her.

Conclusion on Ground 1

1. On that basis, we conclude that the Tribunal failed to properly take into account mandatory considerations and thereby erred on a question of law.

Ground 3: Findings against the weight of the evidence: leave application

1. As we have decided to allow the appeal on the basis of the question of law, there is no need for leave to appeal and hence no need for us to determine whether grounds for such leave have been established.

Ground 4: Inadequate reasons

1. As we have found that the Tribunal fell into legal error in relation to Ground One, there is no need for us to decide Ground 4 which was based on asserted inadequacies of the Tribunal's Reasons not to suspend the order for possession for more than 28 days.

Conclusion and appropriate orders

1. It follows that we should allow the appeal.
2. As the parties' relative circumstances will no doubt have altered since the decision was made in November 2021, we are not able to re-determine the matter.
3. In our view the appropriate course is to set aside the Tribunal's decision and remit the application to the Tribunal for determination according to law.
4. As we have found that the Member failed to undertake the statutory task required, there may be a risk or the appearance of risk of compensatory bias and the Member may feel obliged to recuse themself if the matter were remitted. On that basis, we will direct that the application be heard by a differently constituted tribunal: BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 (citing Seltsam Pty Limited v Ghaleb [2005] NSWCA 208).

Orders

1. We therefore make the following orders: 1. The appeal is allowed. 2. The Tribunal's decision is set aside. 3. The application is remitted to the Consumer and Commercial Division, differently constituted, for determination according to law.

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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: 17 May 2022