Kostov v Ecclesia Housing Limited

Notice of Appeal and background proceedings

1. The appellant's Notice of Appeal is stated to be in respect of SH 18/24878 which was an application that she made under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW). By reason of this application we conclude that the appellant was not present at the Tribunal when orders were made, as referred to in [10], on 21 May 2018.
2. Regulation 9(1) states: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
3. On 5 June 2018, the Tribunal made the following orders in SH 18/24878: The application to set aside the decision in matter number SH 18/21198 has been considered and the following orders are made: The application is dismissed because: It appears that the warrant was executed at the same time as the application was made and the landlord is now in possession of the premises. As such the set aside application is futile. Further, there is no evidence the applicant has paid the rent.
4. On 7 June 2018, the appellant instituted these appeal proceedings. However in the way the parties have approached the appeal it seems that their submissions address the Tribunal decision in SH 18/21198 (which was the subject of the appellant's set aside application) given on 21 May 2018 when the following orders were made: 1. The Tribunal is satisfied notice of the hearing was duly served on the respondent. 2. The Residential Tenancy Agreement is terminated in accordance with: - s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. - failure to pay rent in accordance with agreement. 3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 4. The order for possession is suspended until 25-MAY-2018. 5. The tenant shall pay the landlord a daily occupation fee at the rate of $13.64 per day from the day after the date of termination, namely 22-May-2018 until the date vacant possession is given to the landlord. 6. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 7. The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00 pm on 21-May-2018 of the orders made today. 8. The tenant ADRIANA KOSTOV, 10/85 Harris Street PYRMONT NSW 2009 Australia is to pay the landlord, ECCLESIA HOUSING, C/- Ecclesia Housing Limited PO BOX 2725 NORTH PARRAMATTA NSW 1750 Australia the sum of $1,745.54 for rent owed under the terms of the residential tenancy agreement for the period from 14-Jan-2018 to 21-May-2018. The payment for rent owed is due immediately.
5. Following the orders made on 21 May 2018, the respondent issued a warrant for possession of the premises being rented to the appellant and on 1 June 2018, the sheriff attended the property and took possession of those premises.

Requirements for appeal

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides that an appeal lies as of right only in respect of a question of law.
2. Section 80(2)(b) of the Act provides that an appeal on any ground other than a question of law shall be by leave.
3. In sections 6B i, ii, and iii of her Notice of Appeal, the appellant filled in the sections of the Notice raising the issues of the Tribunal decision not being fair and equitable, being against the weight of evidence, and that significant new evidence was available that was not reasonably available at the time of the hearing. These are matters that will form the basis of an application for leave to appeal as referred to in cl 12(1) of Sch 4 of the Act. Clause 12 is headed 'Limitations on internal appeals against Division decisions'.
4. Clause 12(2)(b) of Sch 4 states: 12 Limitations on internal appeals against Division decisions … (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: … (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
5. We find based on the materials that have been provided to us that the appellant's appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 (NSW) and that a warrant of possession has been executed against the order of the Tribunal dated 21 May 2018.
6. As a result, the appellant is precluded by cl 12(2)(b) of Sch 4 from bringing an application for leave to appeal based on the grounds stated in sections 6B i, ii, and iii of her Notice of Appeal.

Grounds of Appeal

1. The Notice of Appeal which is hand written and in some places not particularly clear states : I did not receive notification of pro- termination notice.(sic) I did not receive notification of this warrant Local Court proceedings already on foot NCAT was misled and deceived by respondent.
2. The appellant sought orders to revoke the warrant for possession and the termination order. She also sought a rehearing.

Appeal Directions hearing

1. At a directions hearing in this appeal on 3 July 2018, Principal Member Harrowell made orders for the filing of submissions and other documents in the appeal. The appellant was ordered to lodge in the Tribunal all the evidence provided to the Tribunal below on which the she intended to rely, any fresh evidence on which it was intended to seek leave to rely upon, and written submissions in support of the appeal. Importantly, the appellant was ordered to lodge with the Tribunal a statutory declaration setting out what rent had been paid, the date of each payment, and to attach relevant bank statements and receipts, and to provide a copy to the respondent.
2. The respondent was also ordered to lodge in the Tribunal all the evidence provided to the Tribunal below on which it intended to rely, its written submissions in opposition to the appeal and a sound recording of the hearing at first instance and a typed copy of the relevant parts, if relied upon.
3. Both parties failed to lodge in the Tribunal the evidence provided to the Tribunal at first instance on which they intended to rely. Instead they attached to their submissions and other documents lodged in the appeal, the documents that they thought were relevant. This failure to comply with the orders of 3 July 2018 has made the determination of the appeal more difficult as the Appeal Panel has not been informed about what evidence was before the Tribunal at first instance. As a means of overcoming this difficulty, we will have regard to all of the documents that the parties have placed before us.
4. The appellant also failed to lodge with the Tribunal a statutory declaration setting out what rent had been paid, the date of each payment, and to attach relevant bank statements and receipts. We will refer to this failure later in these reasons.

The appellant's submissions

1. The appellant's submissions state that she has been misled and deceived by the respondent, that she was not served with a notice of termination, and that the respondent's actions in locking her out of the premises were unlawful.
2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, an Appeal Panel stated at [12]: In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
3. Given that the parties are self-represented we will proceed in accordance with the above approach and look at the Grounds of Appeal generally. The appellant has asserted that she was not served with a notice of termination. It is unclear to us what precisely the appellant is referring to, a notice of termination under s 87 of the Residential Tenancies Act, or notice of the termination orders that the present respondent was required to serve on her pursuant to order 7 of the orders made on 21 May 2018. Consistent with what was stated by the Appeal Panel in the matter of John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd, we will consider the Notice of Appeal as raising both issues.
4. We understand the appellant's Notice of Appeal to raise the following questions of law: 1. That the order of the Tribunal on 21 May 2018 terminating the residential tenancy agreement was not properly made because contrary to the finding of the Tribunal Member, a notice of termination under s 87 of the Residential Tenancies Act was not served on her; 2. That she did not attend at the hearing because of the actions of the respondent and as a result was deprived of the opportunity of being heard and was denied procedural fairness; 3. Notice of the termination orders was not served on her in accordance with order 7 of the orders made on 21 May 2018, or at all; and 4. As a result of the above matters, the respondent's actions in obtaining a warrant for possession and thereby taking possession of the premises, was unlawful.

The Respondent's submissions

1. The respondent's submissions state that: 1. The appellant was not misled by them and the documents relied upon by her are without prejudice correspondence and therefore inadmissible; 2. The Tribunal orders dated 21 May 2018 were served on the appellant in accordance with order 7 thereof; 3. The warrant for possession of the premises was properly obtained by the respondent and possession of the premises was obtained in accordance with s 120 of the Residential Tenancies Act. 4. A notice of termination pursuant to s 87 of the Residential Tenancies Act was served on the appellant on 2 May 2018.
2. We will deal with the appellant's Grounds of Appeal in the order that we have outlined them in [26].

Notice of termination not served on the appellant

1. Sections 87(1)-(4) of the Residential Tenancies Act state: 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.
2. Section 82 of the Residential Tenancies Act sets out the matters which a termination notice must contain. Section 88 of that Act deals with termination notices for non-payment of rent.
3. The appellant has not complied with the directions made on 3 July 2018 in that she has not lodged with the Tribunal the evidence (if any) on which she provided to the Tribunal below, or fresh evidence upon which she intended to seek leave to rely upon. She also failed to lodge with the Tribunal a statutory declaration setting out what rent had been paid, the date of each payment, and to attach relevant bank statements and receipts.
4. Section 87(4) of the Residential Tenancies Act makes it clear that the giving of a termination notice in accordance with s 87 of that Act is a pre-requisite for a termination order. In our view it would be an error of law for the Tribunal to have made the orders it made on 21 May 2018 if the respondent failed, as asserted by the appellant, to serve a termination notice.
5. In her Reasons for Decision, the Tribunal member found that; The non payment termination notice complied with the formal requirements of section 82 and section 88 of the Act and provided sufficient time in accordance with the Act for the tenant to comply. The termination notice was served in accordance with the provisions of s223 of the Act. The tenant has not vacated the premises. The grounds set out in the notice of termination have been established. The rent had remained unpaid for not less that 14 days on the day the notice was served or deemed served. (Emphasis added)
6. Apart from asserting that she did not receive the termination notice, the appellant has not produced evidence in the form of an affidavit or statutory declaration that she did not receive the termination notice.
7. However in her submissions the appellant states that she would have raised the issue straight away and having regard to Local Court proceedings to which she refers, a termination notice would have been nonsensical. She also asserts that she had no reason not to respond to a termination notice and that she has no mail key and that mail goes missing at the residence the subject of the proceedings.
8. In response the respondent deals with service of the Tribunal orders terminating the appellant's residential tenancy agreement at paragraph 4.4 of its written submissions and in addition states that a notice of termination was served on the appellant on 2 May 2018. A copy of its notice of termination which is dated 2 May 2018 is attached to it submissions. The notice of termination required the appellant to deliver up vacant possession of the premises by 23 May 2018. The respondent has attached an internal email which states that its notice of termination was hand delivered to the appellant's letter box on 2 May 2018. It has also attached an email dated 2 May 2018 to the appellant which attaches a 'notice to terminate the tenancy due to rent arrears'. We note in passing that s 223 of the Residential Tenancies Act does not permit the service by email of notices or other documents required to be served. The respondent has not provided evidence of any agreement between the parties for service by email.
9. The appellant bears the onus of proving that she did not receive the notice of termination dated 2 May 2018. There is nothing apart from her assertions that would persuade us that the notice of termination was not served on her. In response to her submissions, the respondent has produced material which is capable of establishing that the notice of termination was served on her as found by the Tribunal Member. We would add that the respondent's evidence establishes that the notice of termination was served on her on 2 May 2018.
10. For the reasons provided, we reject the appellant's Ground of Appeal that the notice of termination was not served on her.

Denial of Procedural fairness

1. As we have stated, the appellant's Grounds of Appeal and her submissions, as understood by us, state that she was denied procedural fairness because for the reasons she asserts, she did not appear before the Tribunal on 21 May 2018 and was unable to present her case in response to the respondent's application for a termination order.
2. The appellant has not filed a statutory declaration or an affidavit which sets out the facts and circumstances, with supporting documentation, upon which she relies to support this Ground of Appeal.
3. In her submissions of 12 July 2018, the appellant states she had applied for rent reduction and thereafter made an application to the Local Court. She has referred to communications between herself and the respondent's solicitors in the Local Court proceedings. As a result of these communications the appellant submits that she was induced by the respondent to believe that a settlement was proposed such that she 'had no belief, and should not have had a belief, that anything was wrong, or that I was owing rent, and, my tenancy, would be, or was about to be, terminated accordingly'. The appellant repeats these submissions in paragraphs b) to d) of the Summary section of her submissions.
4. The appellant's submissions do not attach the Local Court proceedings or any of the written communications that she refers to. However the appellant has attached to her Notice of Appeal a copy of : 1. her letter to the Tribunal dated 1 June 2018; 2. the respondent's solicitor's email dated 23 May 2018 to the civil registry of the Local Court; 3. her email to the Consumer and Commercial Division of the Tribunal dated 31 May 2018; 4. Local Court consent orders dated 23 May 2018; 5. the respondent's solicitor's 'without prejudice' letter to her dated 22 May 2018; 6. her email to the Consumer and Commercial Division of the Tribunal dated 1 June 2018; and 7. her email to the respondent's solicitor dated 31 May 2018.
5. The respondent's submissions are that it objects to the matters raised by the appellant in paragraphs b) to d) of the Summary section of her submissions on the basis that the matters raised by her are the subject of without prejudice communications between its legal representatives and the appellant and are therefore inadmissible pursuant to s 131(1) of the Evidence Act 1995 (NSW).
6. Section 38(2) of the Act states that the Tribunal: is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
7. While we are not bound to apply s 131(1) of the Evidence Act, it is necessary for us to determine whether we will take into account the content of the respondent's solicitor's 'without prejudice' letter to the appellant dated 22 May 2018.
8. As part of that consideration, we are of the view that it is necessary for us to have regard to s 38(6)(a) of the Act which states that the Tribunal: is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings
9. We have decided to have regard to the respondent's solicitor's letter dated 22 May 2018 in order to determine whether the Tribunal was, as asserted by appellant, 'misled and deceived by respondent,' or as we have understood the appellant's submissions, that she did not attend at the Tribunal hearing of 21 May 2018 because of the actions of the respondent and as a result was deprived of the opportunity of being heard and was denied procedural fairness.
10. The respondent's solicitor's letter dated 22 May 2018 was a starting point for a negotiation between the parties aimed at disposing of the Local Court proceedings, and the vacation of the premises by the appellant. If these objectives were achieved, there would have been no need for the Tribunal orders of 21 May 2018 which it was proposed would be withdrawn. We have no doubt that a resolution of all of the matters in dispute between the parties was a prudent and sensible course to pursue.
11. However, we are not persuaded that the matters proposed by the respondent in its solicitor's letter of 22 May 2018 caused the appellant not to attend at the Tribunal hearing on 21 May 2018.
12. The Tribunal Member found that the termination notice was served. We have found that it was on 2 May 2018 that the respondent served the notice of termination on the appellant. The proceedings in the Tribunal at first instance were commenced on 9 May 2018. The Tribunal Member was satisfied that the notice of hearing was duly served on the appellant, a finding that the appellant does not challenge. The hearing took place on 21 May 2018 when the orders in SH 18/21198 were made. Based on these facts the appellant must have known that an application by the respondent seeking possession of the premises for non-payment of rent was to be heard in the Tribunal on 21 May 2018.
13. In her submissions, the appellant states that she received the respondent's solicitor's letter dated 22 May 2018 on 24 May 2018. Whatever that correspondence may have caused her to believe, it is our view that it cannot have played any part in her not attending at the Tribunal three days before to present her position.
14. In addition, the letter itself refers to the Tribunal orders as having been made.
15. For the reasons set out above we reject the appellant's Ground of Appeal that the respondent misled and deceived the Tribunal or that she did not attend at the Tribunal hearing of 21 May 2018 because of the actions of the respondent and as a result was deprived of the opportunity of being heard and was denied procedural fairness.

Failure to serve the termination orders

1. The orders made on 21 May 2018 included order 7 which stated: The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00 pm on 21-May-2018 of the orders made today.
2. The respondent's submissions state that the appellant was served with a copy of the termination orders on 21 May 2018 by placing a copy of a letter advising her of those orders in her letterbox at the property the subject of these proceedings. The respondent attached to its submissions a copy of a photograph taken by one of its officers of the placement of the letter dated 21 May 2018 together with the metadata, or file information of the photos. The metadata confirms that the photos were taken on or around 4:11 PM on 21 May 2018
3. We are satisfied on the basis of the respondent's documents attached to its reply submissions that it fully complied with Tribunal order 7 made on 21 May 2018.
4. We reject the appellant's Ground of Appeal, if in fact pressed, that the respondent failed to serve the termination orders made on 21 May 2018.

Failure to serve the warrant for possession: the respondent obtaining a warrant for possession and thereby taking possession of the premises, was unlawful

1. The appellant's submissions state that the respondent taking possession of the premises was unlawful because she did not receive notice of the termination and given the Local Court proceedings and the conduct of the respondent, the termination was not valid.
2. Our reasons indicate that we are not persuaded that the appellant did not receive the notice of termination, that we accept that the termination orders were served on her in accordance with Tribunal order 7 and that the conduct of the respondent did not operate to prevent the appellant from participating at the Tribunal hearing on 21 May 2018 to present her case.
3. As regards the Local Court proceedings, we have not been informed precisely what they related to or why those proceedings would have prevented the respondent from obtaining a warrant for possession.
4. The respondent submits that in taking possession of the premises, it complied with s 120 of the Residential Tenancies Act.
5. We are not persuaded by the appellant's submissions that that the actions of the respondent in obtaining a warrant and taking possession of the premises the subject of these proceedings in accordance the orders made in its favour on 21 May 2018 was unlawful. We reject this Ground of Appeal.

Other matters

1. The appellant was ordered for the purposes of the appeal to lodge with the Tribunal a statutory declaration with the Tribunal setting out what rent had been paid, the date of each payment, and to attach relevant bank statements and receipts, and to provide a copy to the respondent. She has failed to do that.
2. Such a failure leads us to find that the appellant has no basis to dispute that she failed to pay rent as found by the Tribunal Member and that as at 21 May 2018, the rent owed by her to the respondent was $1,745.54. If the appellant was successful in obtaining the orders sought, the respondent submits that would lead to a futility since it would re-apply to the Tribunal for orders terminating the residential tenancy agreement between the parties on the basis of non-payment of rent. The appellant's failure to provide evidence of the type referred to in [62] is a powerful reason for accepting the respondent's submission.
3. In addition, if the respondent was denied procedural fairness, we are of the view that the same situation would apply because of the fact that the appellant has failed to provide evidence that she has paid the rent required by the residential tenancy agreement.
4. In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ stated at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
5. In Stead v State Government Insurance Commission (1986) 161 CLR 141, the plurality stated at [9], [10], and in the first sentence of [11]: That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Conduct of the appellant

1. Statements made by the appellant during the brief period she was in the court room at the commencement of the appeal hearing suggested that she was employed by a legal practice.
2. We have ascertained that the appellant is admitted as a solicitor in New South Wales and Western Australia. We consider that in light of the appellant's conduct as referred to in paragraph [3], the appropriate course to take is to request the Principal Registrar of the Tribunal to refer the appellant's conduct to the Office of the Legal Services Commissioner of New South Wales and the Western Australian Legal Practice Board for them to take whatever action they may consider appropriate, if any.

Orders

1. The appellant has failed to persuade us that there was an error of law in the decisions of the Tribunal dated 5 June 2018 in SH 18/24878 and 21 May 2018 in SH 18/21198.
2. We will make an order that the appeal be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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: 09 October 2018